# Petition — Washington v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1418%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 444 U.S. 816 ## Text IN THE -—_ Supreme Court, U. S. -- Supreme Court of the United States FILED OCTOBER TERM 1977 JUL 2 1978 N. _wR=-13 9) _MICHAEL RODAK, JR., CLERK PUGET SOUND GILLNETTERS ASSOCIATION, et al., Petitioners, V. UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, Respondent. STATE OF WASHINGTON, et al., Petitioners, Vv. UNITED STATES OF AMERICA, et al., Respondents. PETITION FOR WRIT OF CERTIORARI TO THE NINTH CIRCUIT COURT OF APPEALS Office and Post MORIARTY, LONG, MIKKELBORG & Office Addresses: BROZ By CHARLES T. YATES 3300 Seattle-First Nat] Bank Bldg. Attorneys for Puget Sound Seattle, WA 98154 Giitnetters Association JOSEPH T. MIJICH/JOHN P. WORLD 3920 Bank of Cali- fornia Center Attorneys for Petitioner Seattle, WA 98164 Purse Seine Vessel! Owners Association TABLE OF CONTENTS Petition For Writ Of Certiorari. ....-+-+-e+-s 1 cs Il. VI. Opini ons Below. . . . . . . . . . . > . >. . Re a ge ere «see 6s 6 eee ee 6a 6 > Ww WH Constitutional Provisions, Treaties, So ee a ee Treaties . . . . . . . . . . . . . . . . . 6 Seatement OF Tne FeGthc «2 we ees on 6 GB Reasons For Granting Writ of Certiorari .. 19 A. The Conflict of Decisions by the Washington Supreme Court and the Federal District Court Require Doe! ot. re The Lower Court Has Decided A Federal Question In A Way In Conflict With Applicable De- etetens GF THUS GONFEs cece ees seen The Rights Under These Indian Treaties Are an Important Question of Federal Law Which Should Be Settled By This Court. .....+-. 30 The Lower Court Has Rendered a Decision On an Important State Question in a Way That Is In Conflict With State Law and the Sactsten eof THIS COure 2 ew wc eo we eo eo a OA With the Sanction of the Court of Appeals, the Lower Court Has So Far Departed From the Accepted and Usual Course of Judicial Proceedings As To Call For an Exercise of This Court's Power of Supervision. ....+-++-+-. 33 VII. Conclusion ij F. The Effect of United States v. Washington IV is a Matter of Such Imperative Public Impor- tance as to Justify Deviation from Normal Appellate Process ... . 36 APPENDICES: A B Constitutional Provisions, Treaties ... .A-l Opinion PSGA v. U.S. District Court Filed 4/24/78 s 2-2 -— 8 2 © 08 82 SD @ 8 € 6 B-1 Preliminary Injunction re Enforcement of Limitations on Nontreaty salmon fisheries for 1978 and subsequent seasons ..... .C-l Findings of Fact, Conclusions of Law U.S. v. Washington 6/6/78 Preliminary Injunctions staying court injunction and order implementing pre- liminary injunction U.S. v. Washington 8/31/77 ....... .D-l Temporary Restraining Order re Enforcement of 1977 fisheries U.S. y. Washington Filed 8/31/77... . .E-l Memorandum, Order and Preliminary In- junction U.S. v. Washington Filed 8/31/77 .... .Fe-l Memorandum Adopting Salmon Management Plan U.S. v. Washington 8/31/77. . . ..... Gl Preliminary Injunction re: Enforcement of 1977 fisheries U.S. vo Washington SO/77. 2 2 «0 6 0 2 eo Hel 7 o . o . . . . . . . . . . . . 40 Page I - Order for Service of Notices regarding 1978 Enforcement Hearing U.S. ve Washington L2/S/77 «4. « 2 « 2 @ elel J - Opinion U. S. v. Washington, 9th Cir. No. 75-2835, 76-1042 oe 6) eo & 3 & SS wJ-l K = National Marine Fisheries Services Letter. K-1l TABLES OF AUTHORITY Table of Cases Carroll v. Presidents and Commissioners of Princess Anne, 393 U.S. I75 (1968) ... .35 Chase National Bank v. Norwalk, 291 U.S. 431 (1934). e * a - e + 7 7 . e . . 2 7 . 34-35 Choctaw Nation of Indians v. United States, S16 UsS. 425 (1943S) . 2 0 0 0 0 tw 8 ot chy 24 Confederated Band of Ute Indians v. United otates, 350 U.S. 169 (1947) . 2. 2. 2 ww 2 2 24 Department of Game v. Puyallup Tribe, Inc., 414 U.S. 44, 36 L. Ed. 2d 254 (19/3) (Puyallup II)... + « © ebeees Federal Trade Commission v. Raladum Co., ra | a >. ee Missouri ex rel. Laclede Gaslight Co. v. PTD, SFU Usde 76 (LEGG) s « © 0 0 0 0 2dhead Puget Sound Gillnetters Association v. Moos, BB Wn.cd 667, P.2d (1977)... 11,24,31 Puyallup Tribe of Indians v. Department of Game, 391 U.S. 392, 20 L. Ed. 2d 689 (1968) (Puyallup I) ...... . 28,29,30 iv Page Puyallup Tribe, Inc. v. Department of Game of the State of aesae aeons 45 L. Week uya up _ — _ . + . . . o 28 Supervisors of Carrol] County v. United States ex rel. Keynolds, 18 Wall /1l, (18/3). . * a e a . . - - - . + . . © . . - 32 Tulee v. LD 315 U.S. 681, 861 L. Ed. _ . J * . . . - — > _ o . > 2 . 28 United States v. Choctaw Nation, 179 U.S. 494 { 1900) 8 e . . . « . _ . > _ _ . . s . - > — 24 United States ex rel. Johnston v. County Court of Clark County, 95 U.S. /69, (18/8). ao . e . . 7. J s . . . 8 7. eo 7 . > . 32 United States v. Washington, 384 F. Supp. 312 (1974). “ef © @ @ @ 9-10,15,19,20-21,30,34 United States v. Washington, 520 F.2d 676 (19/76). ° e . ° . . ’e o o . . o + . . 10,21,29 United States v. Washington, 423 U.S. 1086 [aee@le «0 6.5.6 0.8 6 o 6 8 oe OheRegneeee United States v. Washington, 5/73 F.2d 1121 (1978). . . io ° a e ce - 7 * 7 oO o . 36,37 United States v. Winans, 198 U.S. 371, 49 L. Ed. eae REeees os ae e's oo & 208. Oe e 6 oe eee Washington State Commercial Passenger ishing Vessel Association v. Tollefson, 89 Wn.dd 2/6, __ Pedd_ _—s (977) 2 2 « 2 0 2 0 « 024,26,29,31 Statutes eee ee) eee ee ee ee a ee ee Constitutional Provisions U.S. Const., art. I § 8. art. I11§2. art. I1§3. art. III § 1 art. III § 2. U.S. Const. amend. V... Other Authority Treaty with the Makah (Treaty of Neah Bay), 12 Stat. 939. oo a > _ . > . . . -_ >. a Treaty of Medicine Creek, 10 Stat. 1132. ... Treaty of Point Elliott, 12 Stat. 927. .... Treaty of Point No Point, 12 Stat. 933... Treaty with the Quinaults (Treaty of Olympia) 12 Stat. 971. > . >. > . o . . . . . . . . . Treaty with the Yakimas. 12 Stat. 951. ..... U.S. Supreme Court, Rule 20 ...-. ec cee TEES. 5 «© © © © ¢ a. - 6 » 6 » 6 . 6 - 6 oe Vee . 7 7 - 4,36 eS Oe eee IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM 1977 NO. PUGET SOUND GILLNETTERS ASSOCIATION, et al., Petitioners, Ve UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, Respondent. STATE OF WASHINGTON, et al., Petitioners, Ve UNITED STATES OF AMERICA, et al., Respondents. PETITION FOR WRIT OF CERTIORARI TO THE NINTH CIRCUIT COURT OF APPEALS PETITION FOR WRIT OF CERTIORARI Petitioners, Puget Sound Gillnetters Asso- Ciation and Purse Seine Vessel Owners Association, hereinafter referred to as petitioners, pray that writ of certiorari issue to review: 1. The opinion and judgment of the United States Court of Appeals for the Ninth Circuit 2 entered in Puget Sound Gillnetters Association, v. United States District Court for the Western District of Washington, cause No. 77-3129; 2. The opinion and judgment of the United States Court of Appeals for the Ninth Circuit entered in United States v. Washington, cause Nos. 77-3654 and 77-3655; 3. Findings of Fact, Conclusions of Law, and Preliminary Injunction re: Enforcement of Limita- tion on Non-Treaty Salmon Fisheries for 1978 and subsequent seasons entered by the United States District Court, Western District of Washington, at Tacoma, United States v. Washington, No. 9213 (June 6, 1978). as OPINIONS BELOW The opinion of the United States Court of Appeals for the Ninth Circuit in Puget Sound 3 hereinafter be referred to a. United States v. Washington III. The Findings of Fact, Conclusions of Law and Preliminary Injunction Re: Enforcement of limitation on non-treaty salmon fisheries for 1978 and subsequent seasons entered by the United States District Court Judge for the Western District of Washington at Tacoma, George H. Boldt, in United States v. State of Washington, are unreported, are set forth in Appendix C, and will hereinafter be referred to as United States v. Washington IV. Il. JURISDICTION The decision of the United States Court of Appeals for the Ninth Circuit in United States v. Washington III was issued on April 24, 1978. The Gillnetters Association v. United States Dis- trict Court For The Western District of Washington Findings of Fact, Conclusions of Law and Prelimi- nary Injunction issued by the United States Dis- trict Court, Western District of Washington in United States v. Washington IV was rendered June 6, and United States v. Washington, as reported in 573 F.2d 1123 (1978), appears in Appendix B, and will 1978. The jurisdiction of this court is invoked under 28 U.S.C. § 1254. This single petition is 4 filed pursuant to Rule 23.5 of this Court because the court of appeals rendered a single decision in the matters of Puget Sound Gillnetters Asso- ciation, et al. v. United States District Court, supra, and United States v. Washington III, supra. Writ of certiorari is sought in United States v. Washington IV pursuant to Rule 20 of this Court prior to judgment by the court of appeals because the matter is of such imperative public importance as to justify the deviation from normal appellate processes. III. ISSUES Is Judge Boldt's interpretation of the treaty language correct, and, if not, is the injunction issued pursuant to that interpretation invalid? 2. Is an individual who conducts business in a state, in sucn privity to that state, that a court may directly enjoin the citizen without his being a party to or a participant in the cause of action in which the State is a party? Assuming privity, if an injunctive order is sought against 5 an individual, is that individual entitled to notice of and participation in the injunctive hearing prior to its issuance? 3. Are the Indian treaties non-self-execut- ing, and non-justiciable, thereby precluding judicial implementation? 4. Did Judge Boldt exceed his authority by ordering the Department of Commerce and Transpor- tation to involve themselves in the management of Puget Sound salmon when the executive branch has no statutory authority to do so? 5. Is an allocation of over 50% of the salmon resource to less than 1% of the population of a state or an allocation of over 80% of the commer- cially harvested salmon to less than 17% of the commercial fishermen an abuse of discretion in the utilization of its equitable powers by a court? IV. CONSTITUTIONAL PROVISIONS, TREATIES, STATUTES INVOLVED Constitutional provisions, treaties, and statutes involved are as follows and are reprod- uced in Appendix A, infra, pp. A-l to A-_. (1) Constitutional Provisions of the United States (a) Article I, § 8, Powers of Congress A-1 (b) Article II, § 2, Powers of the Presi- dent A-2 (c) Article II, § 3, Powers and Duties of the President A-3 (d) Article III, § 1, Judicial Powers A-3 (e) Article III, § 2, Jurisdiction of The Federal Courts A-3 (f) Amendment V - Due Process A-4 Treaties Six treaties were entered into by the United States with various Indian tribes and bands living in the State of Washington in 1854 and 1855. The six treaties are: 7 (a) Treaty of Medicine Creek, 10 Stat. 1132 (1854). A-5 (b) Treaty of Point Elliott, 12 Stat. 927 (1855). A-5 (c) Treaty of Point No Point, 12 Stat. 933 (d) Treaty with the Makahs (Treaty of Neah Bay), 12 Stat. 939 (1855). A-6 (e) Treaty with the Quinaults (Treaty of Olympia), 12 Stat. 971 (1855). A-6 (f) Treaty with the Yakimas, 12 Stat. 951 (1855). A-7 Those six treaties each contain a similar pro- vision, and only that provision is repeated in the appendix. The following is typical: The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with al] citizens of the Territory, and of erecting temporary houses for the purpose of curing together with the privilege of hunting, gathering roots and berries, .. . On open and unclaimed lands. Provided, however, that they shall not take shellfish from any beds staked or cultivated by citizens. V. STATEMENT OF THE FACTS This proceeding is before this Court to esta- bish entitlement to manage and harvest the sa’ non resource in Puget Sound, State of Washington. The value of this resource approaches, in an unpro- cessed state, $50,000,000 each year. Salmon, of which there are five species in Puget Sound, chinook, coho, chum, pink and sockeye, are ana- dromous fish that spawn in fresh water, migrate into the Pacific Ocean and then return to fresh water to spawn and die. Prior to the settlement of the Northwest by non-Indians, salmon was a staple of the Indian tribes living in the Puget Sound region. In the mid-1850's the United States entered into a series of treaties with Indians in the Puget Sound region, which provided for the movement of the various Indians onto reservations but granted to the Indians: "(T]he right of taking fish, at all usual and accustomed grounds and stations, ... in 9 common with all citizens of the territory." (See Appendix A). As methods for the preservation and canning of salmon developed, the value of the resource increased. Fishing on salmon stocks grew until it became necessary for the State of Washington to undertake management of the resource in order to conserve it. It was the State of Washington's efforts to conserve the salmon that created the conflict between the State of Washington and various treaty tribes over the Indians’ entitlement to harvest salmon contrary to regulations adopted by the State. This battle resulted in the filing of the suit which is the underlying basis for this application. The United States, in its capacity as trustee for various Indian tribes in the State of Washing- ton, filed a complaint against the State alleging that the State's statutory and regulatory scheme for managing the salmon fishery was interferring with the fishing rights of various Indian tribes. Judge Boldt, in United States v. Washington, 384 F. 10 Supp. 312 (1974), found that the State of Washing- ton through its statutes and regulations did interfere with the treaty granted fishing rights of the various tribes and further interpreted those treaty rights to include a guarantee of an oppor- tunity to harvest at their usual and accustomed off reservation fishing grounds 50% of the salmon not necessary for conservation. During the pendency of the case, Judge Boldt denied intervening party status various non-treaty individuals and assocations who were involved in the commercial or recreation harvest of salmon. He did grant party status to the various tribes located in the Pacific Northwest whose interests were represented by the United States government. Following his decision and its affirmation by the Ninth Circuit Court of Appeals, United States v. Washington, 520 F.2d 676 (1976), Judge Boldt continued to exercise jurisdiction over the matter and issued a series of directives to the State of Washington requiring that it issue regulations governing the harvest of salmon by non-treaty commercial fishermen in order to allow 11 treaty fishermen a guaranteed number of salmon. The State of Washington issued these regulations, and the non-treaty commercial fishermen challenged their validity in Washington State courts. These challenges included an application for writ of mandamus filed with the Washington State Supreme Court on behalf of the two fishing associations representative of the majority of non-treaty commercial fishermen. As a result of this applica- tion, the Washington State Supreme Court issued its decision in Puget Sound Gillnetters Ass'n v. Moos, 88 Wn.2d 677, 565 P.2d 1151 (1977), in which the State Supreme Court concluded that neither the State Constitution nor its statutes permitted the State through its Department of Fisheries to restrict non-treaty fishermen in order to allocate salmon to treaty fishermen. Addition- ally the Washington State Supreme Court concluded that Judge Boldt had erred in his interpretation of the Indian treaties. The court found that the “in common with" language of the treaties entitled individual Indians to access to their fishing 12 grounds and an equal opportunity to participate in the salmon fishery with non-Indians. The court further found that Judge Boldt could not require by his injunctive authority a State agency to act beyond its authorized statutory powers. An application for writ of certiorari has been filed in this case and is pending before this Court (Puget Sound Gillnetters Association v. Moos, petition for cert. filed, no. 77-983 (Jan. 6, 1978). Despite the decision by the Washington Supreme Court defining the authority of the Department of Fisheries, Judge Boldt continued to issue mandates to the Department of Fisheries requiring the promulgation of regulations restricting nontreaty fishermen in order to effect his allocative scheme (See Appendix D). The Department of Fisheries issued the regulations as required but was unable to enforce them through the State courts because of the Washington State Supreme Court decision. As a result there was no effective method for the implementation of Judge Boldt's decision except through his direct intervention. See Appendix E. ‘ a WAIT | BY 13 In August of 1977, a series of orders and two preliminary injunctions were issued directly against commercial non-treaty fishermen and associ- ations prohibiting commercial salmon fishing (See Appendices E & F). These orders and injunctions were issued with no notice to the fishermen or their associations. Also, during the month of August 1977, Judge Boldt issued a number of injunc- tive orders which provided among other things: 1. That the State of Washington enforce regu- lations that its supreme court had determined to be beyond the scope of the authority of the State to act; Appendix D. 2. That the State courts were not to inter- fere with the implementation of the State regula- tions, although they had been determined to be contrary to State law by the state supreme court; Appendix 0. 3. An estimate of salmon available for har- vest in 1977, and ordered the numbers of salmon to be harvested by each of the treaty and non- treaty fishermen; Appendix F. 14 4. A plan for the management of salmon har- vest on Puget Sound for the next five years; Appen- dix G. 5. Ordered the United States through its agencies and officers to take all steps necessary to insure an orderly harvest of salmon on Puget Sound and to preserve the salmon runs; Appendix E. All of the foregoing orders were proposed and drafted by the United States. On September 27, 1977, at the request of and in the form proposed by the United States, Judge Boldt issued a pre- liminary injunction which closed Puget Sound to all net fishing by non-treaty fishermen. The fishermen were not parties to the case nor allowed to participate in the hearing. Included in the order was a directive to various federal agencies to involve themselves directly in the enforcement of the terms of the order. As a result of this injunction, the Department of Commerce through its National Marine Fisheries Service Officers served the injunctive order on non-treaty fishermen and issued citations to fishermen found to be in violation of the order. Approximately 27 citations 15 were issued and to the date of this application, four non-treaty commercial fishermen have been found guilty of contempt for fishing contrary to the injunctive order of the court and have each been sentenced to 60 days in jail. The remainder are still pending trial. Those individuals who have been tried and sentenced to jail have appealed to the Ninth Circuit Court of Appeals for relief. The State of Washington filed an appeal from the issuance of the injunctive order of Sep- tember 27, 1977 and the Puget Sound Gillnetters Association and the Purse Seine Vessel Owners Association filed an application for writ of mandamus with the Court of Appeals for the Ninth Circuit. The associations challenged: 1. The authority of Judge Boldt to enjrin fishing by non-treaty fishermen when the fishermen were not parties to United States v. Washington nor provided notice of the hearing or and an oppor- tunity to participate therein prior to the issuance of the injunction; 2. The authority of Judge Boldt to involve himself in the management of the salmon resource; 16 3. The authority of Judge Boldt to enforce a non-self-executing treaty for which no implementing legislation had been adopted; 4. The correctness of Judge Boldt's interpre- tation and implementation of treaty rights as a result of the treaty provisions allowing "the right of taking fish at all usual and accustomed grounds and stations, is further secured to said Indians in common with all citizens of the terri- tory;" 5. The utilization of a federal agency in a manner not authorized by that agency's enabling statutes. The Ninth Circuit Court of Appeals, United States v. Washington III, found: 1. That Judge Boldt's interpretation of the Indian treaties was within his equitable powers; 2. That commercial fishermen were in privity with the State and therefore their interest was represented by the State in the litigation and the court could proceed directly against the fishermen; and 17 3. That the treaties are self-executing. Petitioners are commercial fishing associa- tions which represent a majority of the commercial salmon harvesters in Puget Sound. Judge Boldt's orders since his original decision in 1974 have resulted in the reduction of fishing time in South Puget Sound by non-treaty commercial net fishermen from a pre-1974 authorization of in excess of 130 days to an authorization in 1976 of three days for the total season. If similarly restricted in the future, the approximately 2,000 commercial net fishermen on Puget Sound will be financially ruined. On December 7, 1977, Judge Boldt ordered the State of Washington to not issue any net salmon fishing licenses for 1978 or subsequent seasons. He set a hearing on the United States' motion for an injunction comparable to the one issued in 1977 and ordered any individual or Organization wishing to appear at that hearing to file a Notice of Appearance and a Memorandum setting forth objections to the proposed 1978 injunction, copies of this order and the proposed 18 injunction were served on a large number of commer- cial fishermen. A hearing on the proposed injunc- tion for 1978 and subsequent salmon fishing seasons was held on April 5, 6, and 24, 1978. A number of commercial fishermen appeared at that hearing with two being represented by counsel. The court allowed the fishermen appearing to make a statement but refused the fishermen the right to call] witnes- ses on their behalf and the right to examine witnesses. Following the hearing, a preliminary injunction was issued for the enforcement of limitations on non-treaty salmon fisheries for 1978 and subsequent seasons. The order provided among other matters: 1. That Puget Sound by nor-treaty fishermen were prohibited from net fishing at all times unless authorized by Judge Boldt; 2. That personnel of the National Marine Fisheries Service, and the Coast Guard, may board fishing vessels for the purpose of investigating Suspected violations of this injunction; . a7 a + he at & rs er OR 19 3. That the Coast Guard and National Marine Fisheries Service shall serve copies of the injunc- tion on fishermen; and 4, That the State of Washington is required to cite any fisherman fishing contrary to Judge Boldt's orders. VI. REASONS FOR GRANTING WRIT OF CERTIORARI On February 12, 1974, Judge Boldt rendered "final decision number 1" in United States v. Washington, 384 F. Supp. 312 (1974). Although the decision was quite lengthy (110 pages) it was primarily a recitation of facts and a restatement of Indian treaty law. Two aspects of the decision, however, were substantial departures from the existing body of judicial decision, and have resulted in chaos in the management of the Puget Sound Salmon fisheries. Judge Boldt: A. Exempted to a large degree Indian fisher- men from the regulatory authority of the State Management Agency; 20 B. Quantified the treaty Indians opportunity to fish. Judge Boldt based his decision on the follow- ing treaty clause: “The right of taking fish at all usual and accustomed grounds and stations is secured to said Indians in common with all citizens of the territory; ..." Judge Boldt in his original decision relied upon an 1862 edition of Webster's American Diction- ary of the English language and found that the term “jn common with" entitled treaty fishermen to the opportunity to take up to 50% of the harvestable number of fish that may be taken by all fishermen at usual and accustomed grounds and stations. See United States v. Washington, 384 F. Supp. 312, 343, 356 (1974). Judge Boldt also found that the State of Washington could not use its laws and regulations to manage fishing by treaty fishermen unless it could be shown that such restrictions were reasonable and necessary to preserve and maintain the resource and that all non-treaty fishermen had first been fully restrained from fishing. See United States v. Washington, supra, 21 at 342, 405-409. The judgment of the lower court was appealed to the Court of Appeals for the Ninth Circuit. That court in its decision United States v. Washington, 520 F.2d 676 (1976), examined Judge Boldt's interpretation of the “in common with" clause and found that it was not an abuse of his equitable powers to apportion the opportunity to harvest fish. In emphasizing the importance’ that the apportionment be of opportunity rather than fish, however, the court of appeals stated: The District Court's apportionment does not purport to define property interest in the fish; fish in their natural state remain free of attached property interest until reduced to possession. Rather the Court decreed an allocation of the opportunity to obtain possession of a portion of the run. 520 F.2d at 687 (citations omitted). Tne United States Supreme Court denied an application for writ of certiorari to review the decisions of Judge Boldt and the Ninth Circuit Court of Appeals. United States v. Washington, 423 U.S. 1086 (1976). Judge Boldt retained jurisdiction of the matter and has, since the decision, effectively 22 become the sole manager of the Puget Sound salmon resource. During his retention, however, he has substantially altered his 1974 decision. It is the substantial alterations which are the basis for this application for writ of certiorari. The orders which are challenged here guarantee an actual number of fish to the treaty Indians rather than guaranteeing them an “opportunity” to partici- pate in the harvest of salmon at their usual and accustomed fishing grounds. In his Memorandum, Order and Preliminary Injunction (Appendix F) Judge Boldt set out actual numbers of fish to be har- vested by treaty and non-treaty fishermen. He did this both in terms of absolute numbers and per- centages. Then, in order to effect this allocation of fish, Judge Boldt proceeded from his original concept of restricting the State of Washington in its management of treaty fishermen to directly prohibiting non-treaty fishermen from harvesting salmon (See Appendices H and £). Despite these substantial changes by Judge Boldt in his interpretation of treaty entitlements thai nae 23 and methods of implementation, the court of appeals refused to review the interpretation of the Indian treaties which Judge Boldt has now made. The court of appeals did reaffirm its incor- rect belief that Judge Boldt's interpretation of the treaty is defensible as an appropriate use of his equitable power. United States v. Washington III, Appendix B-1. The court found that the guarantee of fish to treaty Indians was an equitable partitioning of a co-tenancy. Aside from the fact that it is wholly inappropriate to apply this concept to a wildlife resource (See United States v. Washington III, Appendix B-22 concurring opinion Judge Kennedy), the any use of equity concepts in inter- preting Indian treaties is incorrect. In Choctaw Nation of Indians v. United States, 318 U.S. 423 (1943), the Supreme Court after acknowledging the liberal view relied on below went on to say, in reversing the lower court decision which was based upon "findings" of Indian intent: 24 But even Indian treaties cannot be re- written or expanded beyond their clear terms to remedy a claimed injustice or to achieve the asserted understanding of the parties. [Citations omitted]. 318 U.S. at 432. See also, Confederated Band of Ute Indians v. United States, 330 U.S. 169 (1947); United States v. Choctaw Nation, 179 U.S. 494 (1900). The court of appeals and Judge Boldt are destroying an industry and a resource with a wrong interpretation of Indian treaties. A. The Conflict of Decisions by the Washington supreme Court and Judge boidt Kequire 1s Court s Review There is presently before this Court an application for writ of certiorari, cause no. 77-983, in the matter of Washington State Commer- cial Passenger Fishing Vessel Association v. Tollefson, 89 Wn.2d 276, _ P.2d __—s.(1977) and Puget Sound Gillnetters Association v. Moos, 88 Wn.2d 677,565 P.2d 1151 (1977). In these decisions the Washington State Supreme Court found that the various Indian treaties with their “in common with" 25 Clauses guarantee to the Indians access to their usual and accustomed fishing places and prohibit restraints on Indian fishing at those places except to the extent that regulations which are necessary conservation measures restrain the fishing rights of all citizens. The court rejected Judge Boldt's decision which interprets the treaties as granting an absolute number or percentage of fish to Indians. The results of these conflicting deci- sions in the state and federal courts have been disastrous in terms of impact upon the salmon resource and the salmon fishing industry. Some non-treaty commercial fishermen relying upon the protection of the decision of the Washington State Supreme Court have attempted to participate in the harvest of salmon in Puget Sound. They have been charged with contempt by Judge Boldt and sentenced to jail. Some have attempted to comply with Judge Boldt's orders and have been financially ruined. Judge Boldt has ordered various Federal agencies to interdict this fishery. The result has been an enforcement and management nightmare resulting 26 in gun point confrontations and, in at least one case, the near loss of human life. Federal agents, ill-equiped and unknowledgeable in the problems of fisheries management, are confronted by commer- cial fishermen whose economic life is dependent upon their fishing consistent with the Washington State Supreme Court rulings and in violation of Judge Boldt's orders. The resolution of this conflict in judicial decisions lies exclusively with the United States Supreme Court. As the Washington Supreme Court stated in Washington State Commercial Passenger Fishing Vessel Association v. Tollefson, 87 Wn.2d 417, 421, 553 P.2d 113 (1977): The resolution of this question cannot come from this court or the Federal District Court, if no definitive authority upon the subject exists. It must come from a higher court whose decisions are binding on both of us. In short this dilemma can be resolved only by the Supreme Court of the United States . . « e Perhaps the most compelling reason for this Court to review the lower court's interpretation and implementation of the Indian treaties is the absolute frustration felt by the non-treaty com- mercial fishermen as a result of their attempts 27 to utilize the judicial system to protect their industry. They first sought protection in their state supreme court. That court agreed with them only to have Judge Boldt use federal executive agencies to neutralize the decision. They then soucht relief in the United States court of appeals where two of those judges stated: “It has not been clearly demonstrated that the rule of 50% appor- tionment is a necessary and proper implementation of [the Indians] treaty right." (Concurring Opin- ions of Judges Wallace and Kennedy. Appendix B-22 - B-30). Despite two appellate court determinations that Judge Boldt's decision is not “proper” it continues to be enforced. The fishermen cannot understand why these courts agree with them and they still receive no relief from their plight. B. The Lower Court Has Decided A Federal Question Contrary to Past Vecisions of [nis Court The United States Supreme Court has been called upon on numerous occasions to interpret the treaty provision which is at issue here. See 28 United States v. Winans, 198 U.S. 371, 49 L. Ed. 1089 (1905) (Winans); Tulee v. Washington, 315 U.S. 681, 861 L. Ed. 1115 (1941) (Tulee); Puyallup Tribe of Indians v. Department of Game, 391 U.S. 392, 20 L. Ed. 2d 689 (1968) (Puyallup I); Depart- ment of Game v. Puyallup Tribe, Inc., 414 U.S. 44, 38 L. Ed. 2d 254 (1973) (Puyallup II); Puyallup Tribe, Inc. v. Department of Game of the State of Washington, 45 L. Week 4837 (1977) (Puyallup III). In Winans, the Court found that “the right of taking fish at all usual and accustomed places in common with the citizens of the territory" was a guarantee of access to the fishing grounds to the Indians. In Tulee, the Court found that the treaty provision leaves the state with power to impose on Indians equally with others such restrictions of a purely regulatory nature concerning the time and manner of fishing outside the reservation as are necessary for the conservation of fish but it forecloses the state from charging the Indians a fee. 29 In Puyallup I the Court found that the right to fish at all usual and accustomed places may not be qualified by a state but the manner of fishing, the size of the take, the restriction of commercial fishing, and the like may be regulated by the state in the interest of conservation, provided, that the regulations meet appropriate standards and do not discriminate against the Indians. In Puyallup II the Court found that the right of equal protection was implicit in the phrase "in common with." Judge Boldt in United States v. Washington has moved the “in common with" language from being a shield against State interference with treaty fishing to becoming an affirmative obligation on the part of the State and Federal government to tp guarantee a number of fish to the tribes. This interpretation is blatantly inconsistent with the equal protection interpretation found in Puyallup I and II. Judge Boldt's attitude toward Puyallup I & II, however, is reflected in his analysis of 30 these decisions. In United States v. Washington, 384 F. Supp. 312 (1974) at 337-8, Judge Boldt states in reference to Puyallup I: If that seeming nonsequiter be the law, it certainly is deserving of more specific legal analysis and justification than it has ever had in any U.S. Supreme Court decision. ... It also appears that the United States Supreme Court has exercised a prerogative specifically reserved by and to Congress in the treaties. Congress has never exer- cised its prerogative to either limit or abolish Indian treaty right fishing. C. The Rights Under These Indian Treaties Are an Important Question of Federal Law Which Should be settied By [nis Court Even assuming that Judge Boldt's decision is not in conflict with the decisions of this Court, it certainly raises an important question of federal law which has not been but should be settled by this Court. Potential destruction of an industry and a natural resource by judicial fiat certainly requires at least that the fiat be from this country's highest court. 31 D. The Lower Court Has Rendered a Decision On an Important State Question in a Way Ihat Is In Conflict With State Law and the Decisions of This Court. The Washington State Supreme Court in Puget Sound Gillnetters Ass'n v. Moos, supra, found that regulations promulgated by the Washington State Department of Fisheries for the purpose of allo- cating salmon between user groups and not based solely upon the need for conservation were beyond the authority of that agency to act and therefore void and unenforceable. Following the decision and with full knowledge of the state supreme court interpretation of State law restrictions on the authority of an agency to act, Judge Boldt ordered: The defendants [State Department of Fisheries] are required to enforce the regulations providing for management and control for purposes of conservation and Over the non-treaty allocation share so that the treaty allocation shall not be encroached upon. See, Appendix D, p. D-l. In ordering a state agency to disobey a decision of the State's highest court, Judge Boldt 32 is very effectively deciding an important state question in direct conflict with the applicable state law. Judge Boldt's attempt to expand the authority of a state agency beyond its enabling statues, not only conflicts with state law, but it is in direct conflict with the decisions of this Court. This Court has stated clearly that a federal court will not compel state governmental officers to do any act which they are not authorized to do by the laws of the state from which they derive their power. Supervisors of Carroll County v. United States ex rel. Reynolds, 18 Wall 71, (1873); United States ex rel. Johnston v. County Court of Clark County, 95 U.S. 769 (1878); Missouri ex rel. Laclede Gaslight Co. v. Murphy, 170 U.S. 78 (1898). In Missouri v. Murphy, supra, the Court Stated at 962: "Mandamus lies to compel a party to do that which it is his duty to do but can confer no new authority, and the party to be coerced must have the power to perform the act." 33 Following at 964, the Court stated: The street commissioner had no power under the charter and ordinances to issue the permit requested in the absence of the assent of the Board of Public Improvements, which had general control; and the court could not command him to do that which it was not his official duty to perform. (emphasis added). E. With the Sanction of the Court of Appeals, Judge Boldt Has So Far Departed From the Accepted and Usual Course of Judicial Proceed- ings As to Call For the Exercise of This Lourt s Power of Supervision Judge Boldt fails to recognize any bounds on his judicial authority. As indicated above, he had no reluctance in ordering a state agency to perform acts it clearly was not authorized to do. But in addition to involving himself in the management of the State of Washington affairs, Judge Boldt has undertaken to expand the authority of the federal executive agencies. Despite the total lack of any statutory authority to do so, Judge Boldt has ordered the direct involvement of the Department of Commerce and the Department of Transportation in the management of Puget Sound origin salmon stocks. See Appendices E, H, and C. 34 See also the letter from Terry L. Leitzell, assis- tant administrator for Fisheries, National Marine Fisheries Service, to Hon. John E. Cunningham, Appendix K, which states in part, "[U]nder U.S. v. Washington, the Executive Branch is required to adopt strategies which will accomplish the intent of the decision. . .." The extension of executive powers beyond the terms and necessary implications of the statutory grant by a court is wholly im- proper. Federal Trade Commission v. Raladum Co., 283 U.S. 643 (1931). The non-treaty fishermen have a constitu- tionally protected entitlement to work. Judge Boldt eliminated this right by giving no notice and allowing no opportunity to oppose, to present evidence or to examine witnesses. The court of appeals justifies this by finding the fishermen "in privity" with the state, thereby having no right to due process prior to the loss of their right to work. This Court has refused to allow the judicial use of injunctive powers against a non-party. Chase National Bank v. City of Norwalk, 291 U.S. cc ROLL LC LET SLE 35 431 (1934). This Court has condemned the use of injunctive powers without notice and a hearing. Carroll v. Presidents and Commissioners of Princess Anne, 393 U.S. 175 (1968). This Court should not allow a circumvention of these prohibitions through such an unsupported theory. Independent of its impact on the petitioners, this Court should undertake review of the court of appeals decision sustaining such broad use of injunctive powers because of the incredible poten- tial for abuse. That court found privity because the fishermen's interest is derivative of the state's interest. Every corporation in every state is a derivative of the state. By the logic of the court of appeals anyone seeking relief from a corporation then may sue the state of incorporation and there is no entitlement on the part of the business of notice or participation in the judicial hearings and it will be bound by the court decrees obtained. 36 F. The Effect of United States v. Washington IV is a Matter of Such Imperative Public Impor- tance as to Justify Veviation from Norma! Appellate Process Writ of certiorari is sought in United States v. Washington IV pursuant to Rule 20 of this Court prior to judgment by the court of appeals because the matter is of such imperative public importance as to justify the deviation from normal appellate processes. The Findings of Fact, Conclusions of Law and Preliminary Injunction rendered in United States v. Washington IV, which were appealed to the United States Court of Appeals for the Ninth Circuit by Notice of Appeal on July 19, 1978 (Court of Appeals No. 78-2523) are identical in nature and impact to the orders which were challenged and examined by the Court of Appeals in United States v. Washington III. The orders examined by the court of appeals were issued for the 1977 fishing season and the Findings of Fact, Conclusions of Law and Injunc- tion issued June 6, 1978, will regulate the fishing season for 1978 and following seasons. A second PE I 2 PGI rt een a alia aes 37 review of the same concepts by the court of appeals would be redundant. The court of appeals in a decision on other issues raised in United States v. Washington, 573 F.2d 1118 (1978) (Appendix J) discussed the issues raised herein: It must be quite apparent that the case tendered for our decision here would re- quire us to address procedural questions that touch upon fundamental principles controlling the delicate balance of state and federal power. Beyond these questions we would further be required to interpret substantive rights of the parties under United States v. Washington that are of great significance to the fishing industry in the Northwest. We would not serve the vital interests of the parties by address- ing such questions in a hypothetical case while other pending cases present the issues in an active context. 573 F.2d at 1121. Because the court of appeals has already ruled on the issues raised by the Injunction of June 6, 1978 and because a resource and an in- dustry are in immediate jeopardy, it is appro- priate that this Court deviate from normal appel- late processes and review the Injunction of June 6, 1978. 38 VII. CONCLUSION For the above reasons, writs of certiorari should issue to review the opinion of the court of appeals and the Findings of Fact, Conclusions of Law and Injunction of the lower court. Respectfully submitted, MORIARITY, LONG, MIKKELBORG & BROZ By CHARLES T. YATES Attorneys for Puget Sound GilTnetters Association JOSEPH T. MIJICH/JOHN P. WORLD Attorneys for Petitioner Purse Seine Vessel Owners Association APPENDIX A CONSTITUTIONAL PROVISIONS, TREATIES ARTICLE I, SECTION 8 POWERS OF CONGRESS. The congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and ex- cises shall be uniform throughout the United States; To borrow money on the credit of the United States; To regulate commerce with foreign nations, and among the several states, and with the Indian tribes; To establish an uniform rule of naturaliza- tion, and uniform laws on the subject of bank- ruptcies throughout the United States; To coin money, regulate the value thereof, and of toreign coin, and fix the standard of weights and measures; To provide for the punishment of counter- feiting the securities and current coin of the United States; To establish post offices and post roads; To promote the progress of science and use- ful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; To constitute tribunals inferior to the supreme court; To define and punish piracies and felonies committed on the high seas, and offences against the law of nations; To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; To raise and support armies, but no appro- priation of money to that use shall be for a longer term than two years; Te provide and maintain a navy; To make rules for the government and regula- tion of the land and naval forces; A-2 To provide for calling forth the militia to execute the laws of the union, suppress insurrec- tions and repel invasions; To provide for organizing, arming, and disci- plining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respec- tively, the appointment of the officers, and the authority of training hte militia according to the discipline prescribed by congress; To exercise exclusive legislation in all cases whatsoever, over such district (not exceed- ing ten miles square) as may, by cession of parti- cular states, and the acceptance of congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legisla- ture of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock yards, and other needful buildings; and To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and al other powers vested by this Consti- tution in the government of the United States, Or in any department or officer thereof. ARTICLE 2, SECTION 2 POWERS OF THE PRESIDENT. The president shall be commander in chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment. He shall have power, by and with the advice and consent of the senate, to make treaties, pro- vided two-thirds of the senators present concur; and he shall nominate, and by and with the advice A-3 and consent of the senate, shall appoint ambassa- dors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the congress may by law vest the appointment of such inferior officers, as they think proper in the president alone, in the courts of law, or in the heads of departments. The president shall have power to fill up all vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session. § 3 POWERS AND DUTIES OF THE PRESIDENT. He shall from time to time give to the congress in- formation of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extra- ordinary occasions, convene both houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think pro- per; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States. ARTICLE III § 1 JUDICIAL POWER, TENURE OF OFFICE. The judicial power of the United States, shall be vested in one supreme court, and in such inferior courts as the congress may from time to time or- dain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their contin- uance in office. § 2 JURISDICTION. The judicial power shall ex- tend to all cases, in law and equity, arising under A-4 this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassa- dors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states, be- tween citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.* In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the supreme court shall have original jurisdiction. In all the other cases before mentioned, both as to law and fact, with such exceptions, and under such regulations as the cougress shall make. The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the congress may by law have directed. *Note: Clause changed by Amendment XI. AMENDMENT V RIGHTS OF ACCUSED IN CRIMINAL PROCEEDINGS. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a present- ment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb, nor shall be compelled CT eal t hak A-5 in any criminal case to be a witness against him- self, nor be deprived of life, liberty, or prop- erty, without due process of law; nor shall pri- vate property be taken for public use, without just compensation. TREATIES TREATY OF MEDICINE CREEK December 26, 1854 10 Stat. 1132 ARTICLE IIlL. The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing, to- gether with the privilege of hunting, gathering roots and berries, and pasturing their horses on open and unclaimed lands: Provided, however, That they shall not take shell fish from any beds staked or cultimvated by citizens, and that they shall alter all stallions not intended for breed- ing horses, and shall keep up and confine the latter. TREATY OF POINT ELLIOTT January 22, 1855 12 Stat. 927 ARTICLE V. The right of taking fish at usual and accumstomed grounds and stations is further secured to said Indians in common with all citi- zens of the Territory, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting and gathering roots and berries on open and unclaimed lands. Provided, however, that they shall not take shell-fish from any beds staked or cultivated by citizens. A-6 TREATY OF POINT NO POINT January 26, 1855 12 Stat. 933 ARTICLE 4. The right of taking fish at usual and accustomed grounds and stations is further se- cured to said Indians, in common with all citizens of the United States and erecting temporary houses for the purpose of-curing; together with the priv- ilege of hunting and gathering roots and berries on open and unclaimed lands. Provided, however, That they shall not take shell-fish from any beds staked or cultivated by citizens. TREATY WITH THE MAKAH (TREATY OF NEAH BAY) January 31, 1855 12 Stat. 939 ARTICLE IV. The right of taking fish and of whaling or sealing at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the United States, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting and gathering roots and berries on open and unclaimed lands: Provided, however, That they shall not take shell-fish from any beds staked or cultivated by citizens. TREATY WITH THE QUINAIELTS July 1, 1855 12 Stat. 971 ARTICLE III. The right of taking fish at all usual and accustomed grounds and stations is se- cured to said Indians in common with all citizens of the Territory, and of erecting temporary houses A-7 for the purpose of curing the same; together with the privilege of hunting, gathering roots and berries, and pasturing their horses on all open and unclaimed lands. Provided, however, That they shall not take from any beds staked or culti- vatged by citizens; and provided, also, that they shall alter all stallions not intended for breed- ing, and shall keep up and confine the stallions themselves. TREATY WITH THE YAKIMAS June 9, 1855 12 Stat. 951 ARTICLE IIlL. And provided, That, if neces- sary for the public convenience, roads may be run through the said reservation; and on the other hand, the right of way, with free access from the same to the nearest public highway, is secured to them; as also the right, in common with citizens of the United States, to travel upon all public highways. The exclusive right of taking fish in all the streams, where running through or bordering said reservation, is further secured to said confederated tribes and bands of Indians, as also the right of taking fish at all usual and accus- tomed places, in common with citizens of the Terri- tory, and of erecting temporary buildings for curing them; together with the privilege of hunt- ing, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land. APPENDIX B OPINION ee PSGA v. U.S. DISTRICT COURT UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PUGET SOUND GILLNETTERS ASSOCIATION, et al., Petitioners, Ve No. 77-3129 eh ke UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, Respondent, UNITED STATES OF AMERICA, , he et al., Real Parties in Interest. COLUMBIA RIVER FISHERMEN'S PROTECTIVE UNION, INC., et al., Petitioners~-Appellants, Vv. No. 77-3208 No. 77-3209 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON, Respondent, and UNITED STATES OF AMERICA, et al., Real Parties in Interest- Appellees. No. 77-3654 No. 77-3655 UNITED STATES OF AMERICA, et al., Plaintiffs-Appellees, v. STATE OF WASHINGTON, et al., Defendants-Appellants. ee Nf tf NN I I OPINION B-2 Appeal from the United States District Court for the Western District of Washington Before: GOODWIN, WALLACE, and KENNEDY, Circuit Judges. GOODWIN, Circuit Judge: These consolidated appeals are the latest in a series of efforts by agencies of the State of Washington and various associations of non-Indian fish catchers to overturn decisions of the Dis- trict Courts of Oregon and of the Western District of Washington apportioning between treaty Indians and others the right to take fish. See United States v. Washington, 385 F. Supp. 312 (W.D. Wash. 1974), aff'd, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976); Sohappy v. Smith, 302 F. Supp. 899 (D. Or. 1969); United States v. Oregon, 529 F.2d 570 (9th Cir. 1976). The geo- graphic areas covered by these appeals are Puget Sound, the Washington coast south to and including Gray's Harbor, and the Columbia River. I Background Litigants reached an agreement concerning the Columbia River, and that agreement was incorporated in a final decree of the District Court, Order of February 28, 1977, United States v. Oregon. That case retains minor problems of enforcement. Agencies of the State of Washington and vari- ous of its constituencies continue to attack the judgment in United States v. Washington. Accord- ingly, we will again set forth the treaty basis of that decision and reaffirm its validity. The state's extraordinary machinations in resisting the decree have forced the district court to take over a large share of the management of the state's fishery in order to enforce its decrees. Except for some desegration cases (see Morgan v. Kerrigan, 530 F.2d 401 (lst Cir.), cert. denied sub nom. McDonough v. Morgan, 426 U.S. 935 (1976); Morgan v. McDonough, 540 F.2d 527 (lst Cir. 1976), cert. B-3 denied, 429 U.S. 1042 (1977)), the district court has faced the most concerted official and private efforts to frustrate a decree of a federal court witnessed in this century. The challenged orders in this appeal must be reviewed by this court in the context of events forced by litigants who of- fered the court no reasonable choice. When Europeans first came to the Northwest, they found it occupied by many bands of Indians, who together exercised superficial control over the entire territory. The Indians knew nothing of English land tenure, but they were destined to learn. For most tribes living along Puget Sound, the Pacific Coast, or a major stream, the yearly runs of anadromous fish were central to their econo- mies and their cultures. As settlement from the East increased during the 1840's and 1850's, the white settlers created political pressure to limit Indian occupation to designated lands so that more land would be available to the settlers for enclosure and exclusive possession. Under in- structions from the federal government, Governor Isaac Stephens of Washington Territory negotiated a series of treaties in 1854-55 to achieve set- tlement goals. The treaties followed a pattern, the Treaty of Medicine Creek, 10 St'at. 1132 (1854), being typical. In article II the Indians reserved to themselves certain lands for reservations, and in article III the government further guaranteed them the right to continue taking fish at their usual and accustomed sites off the reservation, in com- mon with all citizens of the Territory. This court has previously construed these clauses in earlier chapters of this litigation. We held that article II reserved an exclusive right to fish on the reservation and that article III established something analogous to a cotenancy, with the tribes as one cotenant and all citizens of the Territory (and later of the state) as the other. United States v. Washington, 520 F.2d at 685, 690. It is crucial to remember that these B-4 treaties did not grant the tribes anything; rather, the tribes granted the United States a vast expanse of land, reserving to themselves cer- tain interests in it and in its profits a prendre.! The negotiations and treaties show that the right to take fish was to the Indians one of the most important rights reserved. These rights were reserved, not by the indi- viduals who happened to be alive in 1854 or 1855, but by tribes, with which the United States treated as sovereign entities.2 See United States v. Washington, 520 F.2d at 688. The sovereignty of Indian tribes was the legal foundation for the relations between the United States and the Indians from the origins of this country, even though tribal sovereignty was viewed as the limited sovereignty of a domestic dependent nation. Under the Constitution, only the United States may deal with an Indian tribe. Cherokee Nation v. Georgia, 30 U.S. (5. Pet.) 1, 17-19 (1831); Worcester v. Georgia, 3l U.S. (6 Pet.) 515, 557-60 (1832). All Indians are now citi- zens of the United States, 8 U.S.C. § 1401(a)(2), and the United States has not made treaties with the tribes since 1871, 25 U.S.C. § 71. As we noted in United States v. Washington, 520 F.2d at 685, tribal sovereignty does not fully explain current Indian status. Yet, as we also noted there, the concept of tribal sovereignty remains necessary to explain the extent of the tribes’ reserved rights under the treaties, which have not been affected by the changes. The Supreme Court has recently indicated that tribal sovereignty continues as a necessary part of Indian law. In McClanahan v. Arizona State Tax Commission, 411 U.S. 164 (1973), it Overturned a state tax on income earned by a réservation Indian from reservation sources. In doing so it noted that tribal sovereignty provides a backdrop against which treaties and statutes must be read. The Indian claim to sovereignty long predates that of the United States or of any state. Indians on reservations B-5 remain a separate people, exempted from many laws of the state within whose borders they live. 411 U.S. at 172-73. In Morton v. Mancari, 417 U.S. 535 (1974), the Court upheld a hiring preference for Indians in Bureau of Indian Affairs positions. It noted that the preference was political, not racial, 417 U.S. at 553 n.24, given to “members of quasi-sovereign tribal entities," 417 U.S. at 554. In United States v. Mazurie, 419 U.S. 544 (1975), the Court upheld the power of Congress to delegate to an Indian tribe the right to regulate the sale of liquor on non-Indian land within an Indian reservation. The Court specifically rejected the Tenth Circuit's holding that Indian tribes are simply voluntary associations of private citizens, citing Worcester and McClanahan among other cases. 419 U.S. at 557. Most recently, the Court held unanimously that a conviction by a tribal court does not bar federal prosecution for the same offense, because the tribal and federal courts are arms of different sovereigns. "Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status." United States v. Wheeler, v.8. ‘ , 46 U.S.L.W. 4243, 4246 (1978). II Equal Protection The state and the non-Indian fish catchers argue that to treat Indian fish catchers differ- ently from non-Indians in allocating fishing opportunities and determining fishing regulations is a patent violation of basic equal protection principles. The Washington state courts have accepted this argument. See Washington State Commercial Passenger Fishing Vessel Association v. Tollefson, 89 Wash. 2d 276, 571 P.2d 1373 (1977). Yet the most obvious conclusion from this back- ground is that “equal protection" is an issue in this case only as it limits the state's regulation of Indian fishing in those areas where the state B-6 has a right to regulate. Comparisons between the numbers of treaty and nontreaty fishers, or the quantity of fish each category has an opportunity to take, are simply irrelevant under the law. The treaty tribes reserved their preexisting rights to fish, and they continue, as quasi-sovereign enti- ties, to hold those reserved rights. As we pointed out in United States v. Washing- ton, 520 F.2d at 685, the treaties established something anaiagees to a cotenancy in the off-reser- vation fishery. The treaty fishers derive their rights from one of the cotenants, the tribes. The nontreaty fishers derive their rights from the other, the state as the successor to the United States. The population-head-count disparity is the unremarkable result of normal principles of prop- erty law applied to changing numbers within co- tenant classes. Treaty fishers fish under the regulation of one quasi-sovereign, nontreaty fishers under the regulation of another. The rights of each sover- eign are reserved or granted in the treaties, as the district court and this court have authorita- tively construed them. These principles, applied in good faith, should answer most of the state's arguments; the problem is then one of enforcement. III Enforcement A Enforcement is a problem because the state, its courts, and the non-Indian fishers have never fully accepted the principle that treaty rights can be claimed by a politically impotent minority. Before 1977 the state enforced the district court's orders grudgingly at best.4 The current crisis is the result of a breakdown in state law enforce- ment in 1977. The state agencies had, with well- publicized reluctance, issued fishing regulations which, if enforced, would have met the district court's requirements. The agencies found, however, B-7 that some state prosecutors refused, again with the vocal approval of their constituents, to prosecute violations of the regulations in the few instances where the state issued citations. More important, the Washington Supreme Court in a recent series of decisions attempted to strip the state agencies of their power to comply with the district court's orders. In Puget Sound Gillnetters Association v. Moos, 88 Wash. 2d 677, 565 P.2d 1151 (1977), and Purse Seine Vessel Owners Association v. Moos, 88 Wash. 2d 799, 567 P.2d 205 (1977), the court held certain regulations which the state Department of Fisheries issued to comply with the district court's orders to be beyond the Department's authority under state law. The Department thereupon withdrew its regulations and issued new ones which made no attempt to protect tribal rights in the fishery. This situation led the district court to cease its attempts to work through the state government and, instead, to undertake fishery management directly. The court's enforcement actions are the special focus of the present appeal. The tribes have a right to the enforcement of the treaties. This court has previously upheld the district court's construction of those treaties. The state was a party to that construction and remains a party now. The state is bound by the previous decisions. The district court might have required the state to comply with its orders despite the con- flicting state court rulings, but a direct confron- tation would have raised serious questions of federalism. In an effort to minimize friction in a delicate state-federal situation without denying the tribes the rights they reserved in the treaties and vindicated in court, the district court entered into the direct management of the fishery. Unless or until Congress acts to harmonize state and treaty interests in the fishery, the default of state government leaves the district court as the only instrument available to vindicate the treaty rights. B-8 The pertinent questions, therefore, are not whether the court was right or wrong in 1974, but whether the court's actions are reasonable now. A subsidiary question is whether the court may enforce its orders against "nonparty" fishers directly. B We held in United States v. Washington, 520 F.2d at 687-90, that the district court had discre- tion in its allocation of the fishery; we now extend that holding to recognize its broad discre- tion in managing the fishery. Further, none of the district court's actions now before us constitutes an abuse of that discretion. The district court's orders set forth an allo- cation of fishing opportunity® between the treaty and nontreaty fishers intended, for 1977 only, to provide nontreaty fishers with 55% of the totais opportunity and treaty fishers with 45%. Because the district court included the amount taken in close-in ocean waters in the estimate of the total opportunity available to nontreaty fishers, the allocations generally pushed upward the opportunity in Puget Sound and the coastal streams for treaty fishers. / The difference in technology between white and Indian fishers is explained in United States v. Washington, and in the voluminous record here. The district court made its allocation orders upon the best technical advice available. It made its orders binding upon fishers’ associa- tions and upon all persons fishing under the authority of the State of Washington. We have noted that the appellants argue that the district court's actions violate equal protec- tion. The allocation is not an allocation among an indistinguishable mass of citizens but between two groups of persons each claiming undivided half- interests in a quasi-cotenancy. Each of the co-owners, the state and the tribes, is a quasi- sovereign, and the distinction between their members is thus political rather than racial. B-9 Ethnic origin is relevant only to the degree it happens to define tribal, and therefore political, status. An ethnic Indian who is not a member of a tribe with reserved fishing rights is in the same position with respect to Washington fish and game laws as any other citizen of the state. We find no abuse of discretion in the district court's orders allocating the opportunity to take fish. The circumstances compelled the court to intervene in fisheries management, and the state does not appear to quarrel seriously with the specific allocations. Indeed, we do not see how, given the state's inability or unwillingness to act, the district court could have protected tribal rights without making orders allocating fish in some manner. The numbers question is one of degree, not one of principle. Fish reach the tribal fishery after passing through the areas of heaviest nontribal fishing. The technology of commercial salmon fishing favors the nontribal fisher. If the nontribal fishery were not limited, the tribal fishery would never have the opportunity to take its full share, particularly in light of the need to provide an escapement of fish suffi- cient to preserve the run. Preserving the tribal Opportunity requires limiting the nontribal oppor- tunity. In restating this obvious truth, we are not unmindful of the equities that lie on the side of the State of Washington. Its hatcheries help produce fish that will be caught by Indians as well as by non-Indians. But these equities call for state, federal, and tribal cooperation. They do not justify an attitude of total intransigence. IV Gray's Harbor Because of uncertainty over whether the Quin- ault tribe would continue as a plaintiff in the earlier litigation, the original pretrial order defined the case area to include only coastal streams north of the Gray's Harbor watershed. This area includes the Quinault reservation and several B-10 off-reservation streams which are usual and accus- tomed locations for Quinault fishers. There was evidence at the trial concerning Quinault fishing in Gray's Harbor as well as within the case area. The court found that Quinault Indians had important fisheries, shared with other tribes, in Gray's Harbor and its tributaries, although it did not specifically find them to be usual and accustomed fishing places. 384 F. Supp. at 374-75. In 1974, in response to a motion by the state, the court held that the Quinault tribe had usual and accus- tomed fishing places in the Gray's Harbor area and that nothing in its previous decisions prevented them from using those places. The state filed a notice of appeal from this ruling, but the appeal apparently lapsed for want of prosecution. Since the district court's original decision the Quinault tribe has been actively developing its Gray's Harbor fishery, both by increasing its fishing capacity and by manging the run to produce more fish. The state's actions in response to the state court decisions threatened the continuance of this Indian fishery, and the district court's order and injunction of August 10, 1977, as interpreted on August 12, excluded Gray's Harbor fishing from its protection. In response to this situation, the Quinault tribe, with the support of the United States, asked the district court to extend the case area to cover Gray's Harbor. The court agreed to the request. After a series of hearings the court allocated the opportunity to take fish between the treaty and nontreaty fishers in a fashion similar to its other allocations. One question on appeal is whether the district court had the authority to expand the case area beyond that defined in the pretrial order and in its original decree; Gray's Harbor was included in the original complaint. The United States argues that the district court simply extended its decree, without modification, to cover a new area. We cannot agree with this statement. In its conclu- sion of law number 7, 384 F. Supp. at 400, the court explicitly excluded Gray's Harbor from the case area. To change the case area requires B-11 changing this conclusion of law. Since the decree depends on the conclusions of law, such a change would be a modification of the decree. The state suggests that the tribe's request may be a motion to modify the decree under Fed. R. Civ. P. 60(b). Rule 60(b), however, deals with relief from judgments, not modification at the prevailing party's request to extend the judgment's scope. The best interpretation of the district court's order is that it is a supplemental decree based on a modification of the pretrial order to conform to the evidence presented at the trial. Under Fed. R. Civ. P. 15(b), the pleadings may be amended, even after judgment to conform to the evidence. The same standard should be applied to the modification of a pretrial order under Rule 16 in these circumstances. 3 Moore's Federal Practice { 15.13[1]. We have previously upheld a district judge who applied Rule 15(b) standards to amend a pretrial order to conform to the proof, Gsell v. Adams, 316 F. Supp. 394 (D. Or. 1969), aff'd, 431 F.2d 1204 (9th Cir. 1970), and one whose holding was based on a theory which had evidentiary support and was argued but which was not in the pleadings or the pretrial order, Dering v. Williams, 378 F.2d 417 (9th Cir. 1967).*4% Here the parties tried the issue of Quinault off-reservation fishing without objection. The trial court found that Quinault Indians traditionally used Gray's Harbor and its watershed for their fishing; its failure to use the treaty words “usual and accustomed fishing places" was the result of the exclusion of Gray's Harbor from the case area of the original decree. When the state asked the court to limit Quinault fishing in Gray's Harbor, the court specifically found that the Quinault tribe had usual and accus- tomed locations there; the state failed to pursue its appeal from this finding.!! In the light of these circumstances, we will treat the court's order expanding the case area as a supplemental decree based on an implied modifica- tion of the pretrial order to conform it to the B-12 evidence actually presented. 1/2 (The court retained continuing jurisdiction to enter further decrees.) As a supplemental decree, the order is appropriate. Some action was necessary to protect Quinault treaty rights in Gray's Harbor. The alternative to the supplemental decree would have been to bring a separate action, which the court would undoubtedly have consolidated with this action. The evidence and parties were such that the state would probably have been collaterally estopped to deny most of the necessary facts; the court could certainly have issued a temporary restraining order or preliminary injunction with little extra delay. The court did hold factual hearings before making its allocations of fishing Opportunity. The only result of requiring a separate action would have been to add further complexity to an already complex case. 13 V Binding Nonparties Several of the district court's orders were directed to individual fishers and to fishers' assocations, although these persons and associa- tions were not parties to the litigation. The fishers argue that the court was therefore without jurisdiction over them. The United States suggests several theories which would support the district court's actions. Without ruling on the other theories, we agree that the fishers are bound because they are in privity with the state, which is a party. Wild animals and fish belong to the people of a state as a whole in their sovereign Capacity, and the state may regulate the manner of their taking or prohibit it entirely. Geer v.. Connecticut, 161 U.S. 519, 527-30 (1896).+% Both Oregon and Washington hold that fish within their borders, so far as title can be asserted, belong to the state in its sovereign Capacity in trust for its people. Anthony v. Veatch, 189 Or. 462, 474-75, 486-87, 220 P.2d 493, 498-99, 503-04, rehearing denied, 189 Or. 504, 221 P.2d 575 (1950); Columbia River Fishermen's Protec- tive Union v. City of St. Helens, 160 Or. 654, 661, B-13 87 P.2d 195, 198 (1939); Monroe v. Withycombe, 84 Or. 328, 334-35, 165 P. 227, 229 (1917); Washington Kelpers Association v. State, 81 Wash. 2d 410, 414-15, 502 P.2d 1170, 1172-73 (1972), cert. denied, 411 U.S. 982 (1973); State ex rel. Bachich v. Huse, 187 Wash. 75, 79-80, 59 P.2d 1101, 1103-04 (1936). The Washington Supreme Court has recently specifically held that fishers have no private property rights in taking salmon. "In regulating the fisheries, the state is merely enacting legis- lation concerning its own property and prescribing the methods which may be used in acquiring it by private persons." Washington Kelpers Associa- tion v. State, 81 Wash. at 415, 502 P.2d at ll?3. While the quoted statement of state ownership may be too strong, it shows that under Washington law the citizen's right to take fish is purely deriva- tive of the state's power to regulate rights in the fish. The fishers' interest is therefore deriva- tive of the state's interest; the fishers are in privity with the state and are bound by actions affecting its sovereign interests to which it is a party. City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 340-41 (1958); Wyoming v. Colorado, 286 U.S. 494, 506-09 (1932).1 This being the case, the district court had authority to act against the fishers directly when it appeared that the state was unable to do so. Since the fishers are bound by the district court's actions, they may not collaterally attack them now, and they are subject to penalties for contempt if they have actual knowledge of the court's orders and violate them, 16 Any complaints the fishers may have concerning the state's representation of their interests are matters between them and the state. Indeed, much of the difficulty in this case is the direct result of the pressure these same fishers have brought to bear upon the state government. The district court's injunction against state court action was both necessary and proper. The state trial court sought to require the Department of Fisheries to authorize a harvest of fish without regard to tribal rights or the district B-14 court's orders. This action went beyond the Washington Supreme Court's holding that the Depart- ment was without authority to obey the district court's orders; instead, it required a direct violation of them. The normal requirements for injunctive relief were clearly present. Washing- ton's reliance on 28 U.S.C. § 2283, which limits injunctions of state court proceedings, is mis- placed. Section 2283 does not apply when the United States requests the injunction. Leiter Minerals, Inc. v. United States, 352 U.S. 220, 224-26 (1957). Nor should the district court have waited for the state system to resolve questions of state law; none were relevant. As a party to this action, the state was bound not to interfere with the district court's enforcement of its decree, and any state law to the contrary would fall under the Supremacy Clause. U.S. Const. art. VI, cl. 2. VI Columbia River A few issues concerning the Columbia River case deserve comment. The agreement reached by all the parties in early 1977 is a decree of the District Court of Oregon. No party has raised any questions in the district court concerning the State of Washington's authority to enter into the agreement and consent to the decree; the state is therefore bound by it. Under the principles discussed above, the fishers from both sides of the river, Oregon and Washington, are bound by the decree binding the states, and the district court had authority to hold violators with actual knowl- edge in contempt. The district court's jurisdiction extends to the entire Columbia River, not simply to the Oregon side. Oregon Admission Act of February 14, 1859, § 1, 11 Stat. 383; The Annie M. Smull, 1 Fed. Cas. 983 (No. 423) (D. Or. 1872). Nielsen v. Oregon, 212 U.S. 315 (1909), simply holds that Oregon may not enforce its regulatory laws on the Washington side. It does not question the power of the district court to enforce federal law over the entire river. B-15 VII Conclusion We do not entertain the illusion that this is the last appeal we will see in this case. The issues involved are too volatile and raise too many emotions for a mere statement of the law to resolve them. On the other hand, neither this court nor the district court has any desire to be a permanent fish master in Washington waters. It is to be hoped that the parties can reach an agreement, as they did in the Oregon case, and that Washington law will be changed to allow the state to Carry it out. Until the state decides to cooperate, the district court will have to continue protecting the tribes’ rights. The state and the fishers hold the key to lifting federal judicial interference with their fish-management prerogatives. In Nos. 77-3208 and 77-3129, the applications for writs of mandamus are dismissed. . In Nos. 77-3209, 77-3654, and 77-3655, the judgments are affirmed. The cases are remanded so that the district courts may retain continuing jurisdiction. B-16 PUGET SOUND GILLNETTERS ASSN. et al. GT. U.8-8 4G. O86. Nos. 77-3129/3208/3209/3654/3655 FOOTNOTES: Ithis reservation included customary uses outside the area ceded. See Seufert Brothers Co. B-17 expressed by analogy in the earlier case. Obvious- ly, not all the rules of cotenancy in land can apply to an interest of the nature of a profit. Another analogy might have been drawn to the doctrine of equitable apportionment between states claiming the yearly flow of a common stream. The Supreme Court has often resolved the conflicting claims of quasi-sovereign states in this context. Nebraska v. Wyoming, 325 U.S. 589 (1945); Wyomin v. United States, 249 U.S. 194 (1919). 2tt is questionable whether Anglo-American concepts of sovereignty existed in these Indian cultures, or whether the collections of villages Governor Stephens made for purposes of his negotia- tions were in fact tribes. The United States treated them as tribes, however. The villages were then exercising and the tribes have since exercised what we would consider sovereign powers over their members and territories. These concepts have become basic to the legal justification for pre- serving the tribes as legal and cultural entities, a goal which the treaties were intended to serve and which Congress has recently reaffirmed. Indian Self-Determination Act of 1975, Pub. L. 93-638, Title I, 88 Stat. 2203, 2206. We will therefore use these concepts, recognizing that in doing so we may not be perfectly adapting Western legal con- cepts to Indian culture. 3we refer to the cotenancy analogy only because it is helpful in explaining the rights of the parties, not because all the rights and inci- dents of a common law cotenancy necessarily follow. The shared interest is in a yearly run which is apportioned on a yearly basis between two parties, each having equal rights in it. It is this equal- ity of right between two quasi-sovereigns which we v. Colorado, 2 UeS. 419 (1922). Similar prin- ciples might apply here with the addition, of course, of the equality of rights which the trea- ties guarantee. The primary point is that the state and the tribes stand in similar positions as holders of quasi-sovereign rights in the fishery, and that the federal courts are, when necessary, the arbiters of those rights. 4 Judge Burns pointed out this recalcitrance in his concurrence in United States v. Washington, 520 F.2d 676, 693 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976). SIn those cases, and in Washington State Commercial Passenger Fishing Vessel Association v. Tollefson, 89 Wash. 2d 276, 571 P.2d 1373 (1977), the court construed the treaties as simply guar- anteeing tribal Indians equal treatment with other citizens and stated that the district court's actions had created a class based on an impermis- sible racial classification. We reject these positions for the reasons given above and in Justices Horowitz’ and Utter's dissents. We assume that the Washington court has unwittingly miscon- strued the basic concepts of Indian law and failed to understand a long line of Supreme Court deci- sions beginning with United States v. Winans, 198 U.S. 371 (1905). B-18 This misconstruction of Indian law was one basis for the Washington court's denial of state authority to allocate fish between treaty and nontreaty fishers. The state court thought that such an allocation would violate equal protection, something the state could not be required to do. We question whether the court would continue to deny state agencies the authority to allocate under a correct view of tribal status and rights. 6The appellants argue that the district court attempted to transfer title in the fish to the tribes although fish in their wild state are incapable of being owned. This was not the dis- trict court's order. Considered in light of the record as a whole, the orders allocate only the opportunity to take fish. That allocation can best be expressed and enforced, of course, by numbers of fish taken. 7There is a small tribal ocean fishery, and the parties do not agree whether it is included in the tribal share. If it is not now included, we presume the district court would include it on a proper showing. 8tThe appellants do question the district court's limitation only of commercial fishing. Such a limitation may be the most practical way to enforce the district court's orders. The state can always propose limitations effective against both sport and commercial fishers if it can give reason- able assurances that such limitations would be enforceable. If the state were able and willing to regulate its fishery in a way consistent with the B-19 district court's orders, of course, the sport/com- mercial fishery issue would be entirely a state concern so long as tribal fishers had an opportun- ity to take their treaty shares. 9appellants urge that the treaties are not self-executing but require Congressional action to be effective. The treaties specifically reserved rights to the tribes and gave federal guarantees of those rights; we do not know what more would be necessary to make the treaties effective and enforceable in federal court as the supreme law of the land. See United States v. Washington, 520 F.2d at 684. 10other circuits have reached similar conclusions. In Monod v. Futura, Inc., 415 F.2d 1170 (10th Cir. 1969), the court in dictum stated that Rule 15(b) standards apply to a postjudgment amendment of a pretrial order if the issue has been tried without objection. The Sixth Circuit agrees, if the parties understood that the evidence was directed to the unpleaded issue. MBI Motor Company, Inc. v. Lotus/East, Inc., 506 F.2d 709 (6th Cir. 1974). The Fifth Circuit points out that in these circumstance allowing the amendment is mandatory. Wallin v. Fuller, 476 F.2d 1204 (5th Cir. 1973). Ilthe fact that Gray's Harbor is outside the area ceded is irrelevant if Quinault Indians cus- tomarily fished there. Seufert Brothers Company v. United States, 249 U.S. 194 (1919). B-20 12nNo one suggests a need for the trial court to go back and amend the pretrial order if we can say on appeal that it would have been justified in doing so. Dering v. Williams, 378 F.2d 417 (9th Cir. 1967). An appellate court may uphold a judgment on any theory which finds sup- port on the record even though the lower court relied upon a wrong ground or gave a wrong reason. Jurinko v. Edwin L. Wiegand Company, 477 F.2d 1038 (3d Cir.), vacated on other grounds, 414 U.S. 970 (1973). l3the state's only objection to the speci- fic allocations seems to be based on the equal protection argument which we rejected above. We thus have no occasion to decide whether the allo- cations were within the district court's discre- tion. 14Douglas v. Seacoast Products, Inc., 431 U.S. 265, 284-85 (1977), simply holds that a state does not have title to its fish to the extent that it can give its citizens rights superior to those of citizens of other states who hold a federal fishing license. This holding does not deny the state's substantial interest in fish or that its claim to them, as a sovereign, represents the claim of all its citizens. See Justice Rehnquist's opinion in Douglas, 431 U.S. at 187-88. 15The United States and the tribes cite Wyoming v. Colorado and several other water law cases in their brief. We agree with them that this is the most nearly analogous area of the law. States litigate their quasi-sovereign rights to water, and appropriators under the states' laws are bound by those decisions without being parties. BRP Ferre B-21 Nebraska v. Wyoming, 295 U.S. 40, 43 (1935). Washington's fishers are its privies in litigation over the state's quasi-sovereign right to its fish in the same way that Wyoming's appropriators are its privies in litigation over the state's quasi- sovereign right to water. l6The appellants make a number of technical attacks on the injunctions. We find them to be without merit. In the context of all the proceed- ings in this case, the state and the fishers knew what was being enjoined. The use of a telephone hot line for daily information on fisheries open- ings and closings was appropriate and may have been the only practical way to get the information to all the fishers affected by the court's orders. B-22 RE: PUGET SOUND GILLNETTERS ASSN. v. USDC, W.D. WASHINGTON, et al., No. 77-3129 COLUMBIA RIVER FISHERMEN'S PROTECTIVE UNION v. USDC, D. ORE., et al., Nos. 77-3208/3209 UNITED STATES v. WASHINGTON, Nos. 77-3654/3655 KENNEDY, Circuit Judge, Concurring: The dimensions of the state's resistance to the decrees in these cases are, in my view, over- stated by the opinion for the court, but I fully agree that by its policy with respect to this litigation the state has unduly complicated the issues without advancing its own cause. I agree further that an apportionment of fishing rights half to the treaty Indians and half to all other fishermen is binding on this panel. United States v. Washington, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976). However, the court undertakes to restate the rationale for the appor- tionment rule of our earlier decision, and I find it necessary to suggest that the explanation of this critical point remains somewhat obscure. The prior decision of this court and the opinion for the court on this appeal rely on an analogy to a cotenancy or to a “quasi-cotenancy’ to rationalize the rule of even apportionment. The principles of a cotenancy apply to the legal relation among parties who share a right of posses- sion in real or personal property. ! But the parties to this dispute claim rights of access and exploitation in a wildlife resource of fluctuating and uncertain extent. These rights do not depend upon possession, or even upon ownership, of the wildlife itself. The cotenancy analogy would be of dubious relevance even in an era when the supply of fish exceeded the demands of the fishing popula- tion.2 Certainly it is inadequate to resolve the present conflict between treaty rights and asserted state authority to conserve and allocate a fishery that cannot sustain the full demands of all the B-23 parties to this litigation. A cotenant, absent acts of waste or ouster, has the right to possess and use the entire property. Accordingly, serious application of the analogy might permit a fishing group to take all the fish it has the Capacity to catch, a result contrary to the one we affirmed in the principal case.4 Most importantly, the concept of a cotenancy does not help the court determine what share of the disputed rights should be allocated to each of the parties. By relying so heavily upon the theory, the court seems to imply that an even apportionment follows from creation of a cotenancy; but, of course, it does not. Cotenancy is not synonymous with entitlement to equal shares.» Nor does the right of a cotenant to partition provide guidance for an equitable division of the fish. Effective use of that remedy presupposes a method of deter- mining the percentage interests of the parties, but that is precisely the question to be answered in the case. By using the cotenancy theory to explain the critical ruling on apportionment, the court tends to mask the most difficult problems of this litiga- tion: definition of the rights recognized by the treaties, reconciliation of those rivits with the state's legitimate interest in conservation,® and declaration of the parameters of the state's authority to protect its interest by appropriate regulation. These are the issues that must be resolved if the district court is ever to return the task of supervising the fishery to the state. Indian treaties are not second-class agree- ments, and rights declared by them may not be whittled down year by year as the state asserts a need to exercise its regulatory authority. The state, and, absent its cooperation, the federal courts, must protect the fishing resource in a manner that respects the rights of the treaty parties. The boundaries of the state's authority and any rule of apportionment must therefore be drawn with precise reference to the treaty under- standings. The district court undertook to explain B-24 those understandings in its original decision, and proper review of its ruling requires a like analy~ sis. No doubt it would be correct to determine that the Indian tribes retained by treaty the right to fish for subsistence and ceremonial purposes and the right to a fair opportunity to compete in the recreational and commercial fisheries. But it has not been clearly demonstrated that the rule of fifty percent apportionment is a necessary and proper implementation of those treaty rights. I recognize that the opinion of the court does not advocate strict adherence to the technical rules of common law cotenancy as a means of resolv- ing this case. The defects of the analogy, however, should be noted specifically, since alternative justifications for the apportionment rule have not yet been fully discussed. This panel is bound by United States v. Washington, supra, and thus I concur in today's judgment. However, I would not attempt to restate or explain that decision by means of an inappropriate analogy. We do not sustain the dignity of the treaties in question by deriving an apportionment rule from a hesitant reference to property concepts that are unrelated to the rights asserted by the parties. /s/ United States Circuit Judge Tren oe tae B=25 FOOTNOTES Footnote 1 (reference page 1) "For indeed tenancies in common differ in nothing from sole estates but merely in the blend- ing and unity of possession." 2 W. Blackstone, Commentaries *180. Footnote 2 (reference page 1) The term "tenants in common" was used in an early case to describe the rights of state citizens to the ownership of New Jersey oyster beds. Corfield v. Coryell, 6 Fed. Cas. 546, 552 (C.C.E.D. Pa. 1823). The phrase, however, was used solely to explain the court's holding that state citizens collectively held one hundred percent of the rights to the shellfish to the exclusion of noncitizens, rather than as a point of departure for explaining a method of division. Footnote 3 (reference page 2) 2 American Law of Property § 6.13, at 52-53 (A. J. Casner ed. 1952); R. Powell & P. Rohan, Powell on Real Property {¢ 603 (1 vol. ed. 1968); H. Tiffany, The Law of Real Property § 199 (3d ed. 1970). At common law, property rules pertaining to Ouster and waste insured that cotenants share finite resource fairly, but to apply those rules to effect an allocation of the parties' rights here would stretch an already attenuated analogy to the breaking point. Moreover, there is substantial doubt that the apportionment theory of this case follows from those rules. The standards which define waste for which a life tenant or tenant for years may recover are not necessarily applicable as between cotenants. The English rule is that, since a cotenant of a fee simple estate has the right to enjoy and use the common property in any reasonable way, the usual B-26 and ordinary use of the property by an owner in severalty is not waste. 2 American Law of Property, supra, § 6.15, at 64; 2 W. Walsh, Commentaries on the Law of Real Property § 131, at 69 (1947). Thus, any cotenant may cut trees that are mature and fit for cutting, Martyn v. Knowllys, 101 Eng. Rep. 1313 (K.B. 1799), and may develop and operate mining land, Job v. Potton, 20 Eq. 84 (1875), without liability for waste. In the United States, while it is clear that acts which amount to de- structive permanent damage to the common property are held to constitute waste, E. Hopkins, Handbook on the Law of Real Property § 214, at 342 (1896); 2 W. Walsh, supra, § 131, at 72, some cases have follow the English rule allowing the cutting and sale of timber, Hihn v. Peck, 18 Cal. 641 (1861); Buchanan v. Jencks, 38 R.I. 443, 96 A. 307 (1916); Williams v. Bruton, 133 S.C. 395, 131 S.E. 18 (1925); McDodrill v. Pardee & Curtin Lumber Co., 40 W.Va. 564, 21 S.E. 878 (1895), and the operation of mines, quarries, and oil wells, Prairie Oil & Gas Co. v. Allen, 2 F.2d 566 (8th Cir. 1924); Cascaden v. Dunbar, 191 F.471 (9th Cir. 1911); McCord v. Oakland Quicksilver Mining Co., 64 Cal. 134, 27 P. 863 (1883); Payne v. Callahan, 37 Cal. App. 2d 503, 99 P.2d 1051 (1940), while others have held that the cutting and sale of timber, Fitzhugh v. Nor- wood, 153 Ark. 412, 241 S.W. 8 (1922); Emmons v. Evans, 178 Ky. 180, 198 S.W. 900 (1917), or the development or operation of mines or oil wells, Clark v. Whitfield, 218 Ala. 593, 119 So. 631 (1929); Abbey v. Wheeler, 170 N.Y. 122, 62 N.E. 1074 (1902); McNeely v. South Penn Oil Co., 58 W.Va. 438, 52 S.E. 480 (1905), constitutes waste. In cases following the later rule, courts have tended to call the action one for waste but to hold the defendant merely to a duty to account for the net proceeds from the operations rather than to impose the usual penalties, such as trebel damages, for waste. See generally cases cited above and 2 American Law of Property, supra § 6.15; 2 W. Walsh, supra Soe, B-27 Injunctive relief in an action for waste by one cotenant against another is granted only for waste which is “of a malicious character, or so unusual or umreasonable as to constitute a wanton destruction of the estate." Mott v. Underwood, 148 N.Y. 463, 42 N.E. 1048, 1050 (1896); see McCord v. Oakland Quicksilver Mining Co., 64 Cal. 134, 27 P. 863 (1883); R. Powell & P. Rohan, supra, 4 647, at 695. With reference to ouster, a tenant who ex- cludes his cotenants from the commonly held prop- erty by adverse possession is guilty of an ouster, and an action in ejectment may be brought by a dispossessed tenant. J. Cribbet, Principles of the Law of Property 104 (2d ed. 1975). "(T]he ousting tenant's possession must be exclusive, for mere possession and use of the entire property by one cotenant is not an ouster, nor is his possession adverse, so long as the other cotenants remain voluntarily out of possession, and are not kept out of possession by the acts of the possessor-tenant.” 2 American Law of Property, supra § 6.13, at 52-54 (footnotes omitted). Footnote 4 (reference page 2) While courts will not interfere by way of injunction with cotenants' exercise of their rights to use and enjoyment of the cotenancy even when one cotenant has committed waste, see note 3 supra, an action for an accounting for rents and profits between cotenants may be available when one coten- ant has taken certain advantages from the property. Even when a cotenant's use does not constitute waste or ouster, he is required to account to his cotenants for their proportionate share of the net amount received from the cutting and selling of timber or the operation of mines or oil wells. Prairie Oil & Gas Co. v. Allen, 2 F.2d 566 (8th Cir. 1924) (oil); Cascaden v. Dunbar, 191 F. 471 (9th Cir. 1911) (gold mining); Buchanan v. Jencks, B-28 38 R.I. 443, 96 A. 307 (1916) (timber); see Martyn v. Knowllys, 101 Eng. Rep. 1313 (K.B. 1799). However, a cotenant is not required to account for crops grown and harvested by him. 2 American Law of Property, supra note 3, § 6.14, at 60; see, e.g., Black v. Black, 91 Cal. App. 2d 328, 204 P.2d 0 (1949); Le Barron v. Babcock, 122 N.Y. 153, 25 N.E. 253 (1890). The distinction seems to be that a cotenant need not account for profits from a use of the cotenancy which does not reduce the perma- nent value of the property. Cf. 3 B. Witkin, Summary of California Law § 216, at 1948, (8th ed. 1973), suggesting that because of the possibility of exhausting the resources, the rule of accounting is a special rule applying only to oil and mineral rights. In Mott v. Underwood, 148 N.Y. 463, 42 N.E. 1048 (1896), the court assumed that a cotenant who planted oysters in a commonly held oyster bed could prevent his cotenants from interfering with the crop, though no cotenant could maintain an action for trespass or conversion against his cotenant for taking natural oysters from the land held in common. That case suggests that oysters, at least, might be treated in a manner similar to crops for purposes of an accounting. To the extent that a run of anadromous fish is capable of self- perpetuation, that is, up to the point where fishing activity reduces the quantity of fish in future runs, perhaps each cotenant should be allowed to take free from a duty to account. Another factor in the equitable equation is that the State of Washington operates salmon hatcheries. In an acction for an accounting, a cotenant who makes improvements on the property generally may not claim a credit for such expendi- tures. 2 American Law of Property, Supra note 3, § 6.18, at 81. In an action for partition, however, a cotenant who has made an improvement is awarded any additional amount which the property might bring as a result of the improvement. 2 American Law of Property, supra note 3, § 6.18, at 83; IV S. Symons, Pomeroy's Equity Jurisprudence § 1389, at B-29 1018 (5th ed. 1941). Apparently neither the district court nor this court has considered whether the state's operation of hatcheries should have an effect on apportionment of the fish. Cf. Department of Game v. Puyallup Tribe, 414 U.S. 44 (1973) (Puyallup II) (reserving the question of whether the catch of steelhead that was developed from the state hatchery program could be taken into consideration in allocating the yearly catch between treaty Indians and sport fishermen). Again, the cotenancy analogy, if taken seri- ously with reference to the rule of even apportion- ment, creates more problems than it solves. Footnote 5 (reference page 2) cilia ie dani ae. ae Each tenant in common may have a share greater or smaller than the shares of the others. 2 American Law of Property, supra note 3, § 6.5, at 19. If the shares are not fixed in the instrument creating the cotenancy it may be presumed that the cotenants take in equal shares, but an intent that they hold different fractional shares may be established by the circumstances. Id. at 19-20; E. Hopkins, supra note 3, § 209, at 336. Footnote 6 (reference page 2) See Puyallup Tribe v. Department of Game, 391 U.S. 392, 398 (1968) (Puyallup I). B-30 Puget Sound Gillnetters Association ve. USDC - No. 77-3129 Columbia River Fishermen's Protective Union v. USDC - Nos. 77-3208-3209 United States v. State of Washington Nos. 77-3654/3655 WALLACE, Circuit Judge, Concurring: While I sympathectically agree with Judge Kennedy's statement that "it has not been clearly demonstrated that the rule of fifty percent appor- tionment is a necessary and proper implementation of [the Indians'] treaty rights," I am compelled to join with Judge Goodwin based upon our prior decision in United States v. Washington, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976). APPENDIX C UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA UNITED STATES OF AMERICA, et al., ) CIVIL NO. 9213 ) Plaintiffs, )PRELIMINARY IN- ) JUNCTION RE: vs ENFORCEMENT OF )LIMITATIONS ON )NONTREATY SAL- STATE OF WASHINGTON, et al., MON FISHERIES )FOR 1978 AND Defendants. ) SUBSEQUENT ) SEASONS Upon the motion of the United States, together with the exhibits, the testimony of witnesses and the records and files of this case, the court finds that the State of Washington and its officers and agencies remain unwilling or unable to carry out the existing orders of this court and to prevent certain nontreaty fishermen from taking, under color of state law and in some cases in defiance thereof, salmon which under the orders of this court are to be left available for harvest by the plaintiff tribes and their members under reserved rights expressly secured by federal law. The court further finds that this situation, if permitted to continue, will frustrate the decrees of this court, irreparably harm the plain- tiff tribes and their members by substantially depriving them of their rights to harvest such salmon, imperil the perpetuation of the salmon resource and lead to a breakdown of law and order, and that to prevent such continuance, only direct action of this court, including the issuance of and enforcement of an injunction against certain nonparties, is required in the form and manner hereinafter set forth. C-2 The court also finds that adequate public and/ or personal notice of the hearing on the govern- ment's motion for an injunction on this matter and an opportunity to be heard prior to the entry of any injunction was given to affected nonparties. The court finds that service of the notice and invitation to be heard was made by the United States Marshal's Service on some 2,445 persons who were State-licensed commercial net salmon fishermen for 1977, out of a total of 2,700. The court has considered all relevant points and authorities presented by such nonparties. Therefore, it is hereby ORDERED THAT: 1. Fishing in the waters of Puget Sound and other marine waters easterly of the Bonilla Point-Tatoosh Line (located at the western end of the Strait of Juan de Fuca) and their watersheds, all Olympic Peninsula watersheds, and all Grays Harbor and its watersheds is subject to the provi- sions of this order. 2. All gillnet, purse seine and reefnet fish- ermen licensed by the State of Washington, all other persons who attempt to net or assist in netting salmon in any portion of the waters des- cribed in paragraph 1, the Puget Sound Gillnetters Association, the Purse Seine Vessel Owners Associ- ation, Grays Harbor Gillnetters Association, and all persons in active concert or participation with them, are hereby enjoined and prohibited from taking, attempting to take, or offering for sale, salmon of any species taken from such waters, or assisting in any of the foregoing, unless such person has, within the previous twenty-four hours, ascertained from the National Marine Fisheries Service telephone "“hot-line" (toll free number: 1-800-562-5672) that such fishing in the area in which the individual intend to fish is not prohi- bited by this court at the time of such fishing, provided that this paragraph shall not apply to treaty Indians fishing pursuant to tribal regula- tions promulgated in accordance with the orders of this court. The National Marine Fisheries Service shall announce all lawful openings of nontreaty C-3 fishing and all lawful conservation closures on its "hot-line" and shall maintain a written copy of all announcements for a period of at least 60 days beyond the end of the calendar year in which the announcement was made. as All fishermen described in paragraph 2 are hereby prohibited from possessing salmon of a particular species in any area in which at that time fishing for that species by such person is prohibited by paragraph 2 of this order; provided that this paragraph shall not prohibit fishermen from transporting salmon caught in an open area through a closed area for the purpose of selling the catch. 4. Personnel of the National Marine Fisheries Service, the Coast Guard, the United States Mar- shal's Service and the Washington Department of Fisheries and persons lawfully deputized by any such agency may board fishing vessels for the purpose of investigating suspected violations of this injunction. 5. At the direction of any enforcement agent described in paragraph 4, all persons described in paragraph 2 are hereby ordered to stop their vessels, permit boarding by enforcement agents, permit themselves and their vessels to be photo- graphed, permit their catch to be examined, identi- fy themselves and their vessels to the satisfaction of the boarding enforcement agents, and produce either a valid Washington Department of Fisheries net salmon fishing license or a valid treaty Indian identification card for the then-current fishing season which, by this order, all fishermen are required to carry when engaged in any salmon fishing activity described in paragraph 2. Any fisherman failing to identify himself as provided herein may be placed under arrest and shall be taken before a United States Magistrate for pro- ceedings pursuant to Rule 5 of the Federal Rules of Criminal Procedure. 6. The United States, through the Coast Guard, the National Marine Fisheries Service, the United States Marshal's Service, and such other C-4 agencies as may be appropriate, may serve copies of this injunction and other relevant orders or process on fishermen described in paragraph 2. All Officers and Petty Officers of the United States Coast Guard and the National Marine Fisheries Service assigned by their respective superiors to carry out the provisions of this order are hereby appointed as process servers and agents of the court within the meaning of Title 18, United States Code, Sections 1501 and 1509. The orders, cita- tions and papers required to be served by enforce- ment agents under this order are found to be judicial writs and process of this court within the meaning of Title 18, United States Code, Sections 1501 and 1509. 7. The State of Washington and the United States are ordered to maintain reasonable surveil- lance of the fishing areas affected by this order and to cite any fishermen who, having had notice of this injunction, thereafter continues or engages in any act prohibited by paragraphs 2 or 3 of this injunction or fails to do any act required by paragraph 5, to appear before the United States District Court to be ordered to show cause why he should not be held in contempt. 8. Nothing in this order shall relieve the defendant State of Washington or its agencies, officers and employees of any obligation under prior orders of this court including, but not limited to, the obligation under paragraph 8 of the Injunction of March 22, 1974 (384 F. Supp. at 415-16), to diligently and vigorously enforce, as far as circumstances permit, their applicable statutes and regulations in order to safeguard the fish resources from depletion or destruction due to unlawful fishing by persons subject to the state's jurisdiction. 9. The issuance of this injunction is neces- Sary to prevent irreparable injury to the plaintiff tribes and their members and to the salmon resource for which there is no adequate remedy at law. C=5 10. The issuance of this injunction is neces- sary in aid of this court's jurisdiction and to protect or effectuate this court's judgments. This injunction shall remain in effect until further order of this court. IT IS HEREBY SO ORDERED this 6th day of June, 1978. /s/ George H. Boldt SR. UNITED STATES DISTRICT JUDGE 6 AO MT TIS ORM C-6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA UNITED STATES OF AMERICA, et al., ) ) No. 9213 Plaintiffs, ) ) vs ) ) FINDINGS OF ) FACT STATE OF WASHINGTON, et al., ) ) Defendants. ) 1. The treaty fishing rights of the plaintiff tribes have been previously determined by this Court. 2. Since 1974 there has been increasing difficulty in enforcing treaty fishing rights. Denial of treaty fishing opportunity will result in injury to economic, cultural and governmental interests of the plaintiff tribes. 3. If the lack of enforcement of treaty Indian fishing rights by the State of Washington continues, there will be irreparable harm to the plaintiffs' rights assured them under the decision of this court. 4. The evidence has established that there have been numerous instances of violations of State regulations designed to allocate additional fish to treaty Indians, but there has been a lack of enforcement against these violators, either due to State court decisions or the enforcement policies set by the Washington State Department of Fish- eries. 5. The State of Washington has indicated through its court decisions, and through its executive policy, that the Director of the Depart- ment of Fisheries is not empowered to promulgate the regulations allocating additional fishing opportunity to treaty Indians as required by the decision of this court. C-7 6. The Washington Department of Fisheries did not assist in issuing citations or serving the enforcement injunction during 1977. 7. An emergency exists because of the State of Washington's continuing inability and unwilling- ness to assume its regulatory and enforcement responsibilities under Final Decision 1. This mandates the creation of a federally-led enforce- ment group, which needs time to develop a compre- hensive enforcement plan for the upcoming season. 8. Alternativ.s to direct injunction of non- treaty fishermen which have been used by this Court in previous years to obtain compliance with its orders have not sufficiently deterred violations of those orders, nor provided adequate additional fishing opportunities to treaty tribes. 9. Although the Court may speculate that if no injunction were issued, there might be less havoc in the fishery, that is not the test. The test is whether or not treaty fishing rights can be effectuated without the entry of the injunction. No alternative plan which contemplates enforcement of treaty fishing rights has been presented. 10. The Court has the authority to enjoin the fishermen who are non-parties in this case. Rule 65(d) of the Federal Rules of Civil Procedure does not enumerate the only non-parties who may be enjoined. See also, Puget Sound Gillnetters Association v. United States District Court for the Western District of Washington, F.2d __,_~No. 773129 (9th Cir. Apr. 24, 1978). 1l. Notice of this hearing has been given to approximately 2,455 of the 2,700 commercial net fishermen directly affected by the proposed injunc- tion. Additionally, the Puget Sound Gillnetters Association, the Purse Seine Vessel Owners Associa- tion and the Grays Harbor Gillnetters Association have been given notice. Several of these non- parties have appeared and have been given the opportunity to address the Court and to present evidence. The fact that they are not parties to this lawsuit has placed restrictions on the scope of their participation. c-8 12. None of the non-party associations or per- sons asked for intervention in connection with this proceeding. Under the reference to the Magistrate, there was no power for him to grant the status of party to a non~party. 13. Although both the United States and the plaintiff tribes offered to make witnesses avail- able to the non-party participants, none took advantage of this offer. 14. Although the implementation of the treaty rights as determined in Final Decision 1 neces- sarily diminishes the opportunity of the non-treaty fishermen to harvest fish, that fact is not con- trolling. 15. Until a better solution arrives through agreement by the parties, congressional action, or the willingness of the State of Washington and its courts to assume the State's management and en- forcement responsibilities as directed by Final Decision 1, this Court, in its continuing jurisdic- tion over the resource, must provide for protection of treaty fishing rights. 16. It is appropriate to limit those circum- stances under which enforcement officers may board fishing vessels for purposes of investigating violations of the injunction to those situations where they have probable cause to believe that a violation has occurred. 17. The nature of the fishery is such that an effective Management and enforcement system must provide the ability to open and close the fishery on short notice. 18. The enforcement injunction presented by the Government provides a reasonable means by which to notify the fishermen of lawful openings and closings. 19. A toll-free telephone “hotline” has been used to announce fishing regulations in the State of Washington for several years. 20. Statements of several of the fishermen who appeared before this Court indicate that widespread resistance to recognizing treaty fishing rights still exists. C-9 21. Voluntary reductions in non-Indian fishing are unlikely. An individual fisherman wishing to make a good faith effort to comply with Final Decision 1 cannot do so unless some government tells him when he may fish without infringing on treaty rights. The State of Washington will not do this. 22. Because the non-treaty marine fishing fleet is much larger and more efficient than the treaty fleet, and because much Indian fishing occurs in the terminal areas, substantial curtail- ment of the marine fishing opportunity for non- treaty fishermen is necessary in order to permit treaty fishermen the opportunity to catch the share of the runs to which they are entitled. 23. During the 1976 and 1977 fishing seasons the Washington State Department of Fisheries developed a policy of not issuing citations to violators of allocation closures. 24. The Washington State Department of Fish- eries has the power to regulate the fishermen it controls in such a way as to shift the burden of providing treaty Indian fishing rights away from the net fishermen and spreading it to the hook-and- line fishermen by controlling their seasons, bag limits, gear type, and otherwise restricting hook~and-line fishing. 25. During the 1977 fishing season, there was a substantial amount of fishing during conser- vation closures. While most of this fishing was done by non-treaty fishermen, the State of Washing- ton cited over 100 treaty Indians for fishing in violation of conservation closures as defined by the Washington Department of Fisheries. 26. During 1976, over 135,000 fish were taken in violation of State regulations,and during 1977, over 183,000 were taken by fishermen licensed by the State of Washington. DATED this 6th day of June, 1978. /s/ UNITED STATES DISTRICT JUDGE C-10 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA UNITED STATES OF AMERICA, et al., No. 9213 Plaintiffs, OF LAW STATE OF WASHINGTON, et al., ) ) ) ) ) : CONCLUSIONS ) ) Defendants. ) ) 1. In order to provide treaty Indians with the opportunity to catch 50% of the salmon return- ing to their usual and accustomed grounds, it is necessary to provide them with substantial exclu- Sive fishing time. 2. Because of State Court interpretation of its regulatory authority, the Washington State Department of Fisherie [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1418%3A1. Public record. Not legal advice.