Amicus Brief — Washington State Charterboat Ass'n v. Baldrige

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Ss .&

NO. 83-459

IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM 1983

WASHINGTON STATE CHARTERBOAT ASSOCIATION,

PETITIONER,

VS.

MALCOLM BALDRIGE, SECRETARY OF COMMERCE,

RESPONDENT.

On Petition for Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit

MOTION FOR LEAVE TO FILE AND

BRIEF FOR AMICUS CURIAE TRIBES

IN OPPOSITION

Susan Kay Hvalsoe Rk‘chard Reich

Counsel for Amicus Counsel for Amicus

Curiae Hoh, Curiae Quinault

Quileute Tribes Nation

Suite 301 Heritage Quinault Legal Office

Federal Savings P. 0. Box 189

and Loan Bldg. Taholah, WA 98587

Fifth and Columbia (206) 276-8211

Olympia, WA 98501

(206) 943-6747

NO. 83-459

IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM 1983

WASHINGTON STATE CHARTERBOAT ASSOCIATION,

PETITIONER,

VS.

MALCOLM BALDRIGE, SECRETARY OF COMMERCE,

RESPONDENT.

On Petition for Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit

MOTION FOR LEAVE TO FILE BRIEF

IN OPPOSITION AS AMICUS CURIAE

Susan Kay Hvalsoe Richard Reich

Counsel for Ami-us Counsel for Amicus

Curiae Hoh, Curiae Quinault

Quileute Tribes Nation

Suite 301 Heritage Quinault Legal Office

Federal Savings P. O. Box 189

and Loan Bldg. Taholah, WA 98587

Fifth and Columbia (206) 276-8211 ae.

Olympia, WA 98501

(206) 943-6747

The Quileute Indian Tribe, the Hoh

Indian Tribe and the Quinault Indian

Nation respectfully move this Court for

leave to file a brief in opposition to

the Washington State Charterboat Asso-

ciation's petition for writ of

certiorari to the United States Court of

Appeals for the Ninth Circuit. This

motion is based upon the following facts

and law.

de By order of this Court of

October 20, 1983, the time for filing

the brief in opposition to the petition

for writ of certiorari is November 18,

1983.

i Petitioner seeks to litigate

the substance of rights of the movant

Quileute, Hoh and Quinault Indian Tribes

under the Treaty of Olympia, 12 Stat.

971 (1855). Examination of that inter-

“est shows that the tribes are indispens-

able to the readjudication sought by

petitioner.

MOTION FOR LEAVE - 1

ae The tribes participated as

amicus curiae before the Court of

Appeals and the District Court below.

Petitioner nevertheless informed counsel

for the tribes on November 14, 1983,

that it objects to the tribes

participation here.

4, The interpretation of the

Treaty of Olympia, 12 Stat. 971, and the

tribes' substantive rights thereunder,

were fully adjudicated in United

States v. Washington, 384 F. Supp. 312

(W.D. Wash. 1974), aff'd, 520 F.2d 676

(1975), cert. denied, 423 U.S. 1086

(1976), substantially aff'd sub non.,

Washington v. Washington State Commer-

cial Passenger Fishing Vessel _ Asso-

ciation, 443 U.S. 658 (1979), (hereafter

"Fishing Vessel Ass'n").

- In Fishing Vessel Ass'n, the

‘petitioner, together with the tribes,

the United States, and the State of

Washington, fully participated in this

MOTION FOR LEAVE - 2

Court's adjudication of the issues again

presented in .the Association's petition

here.

6. The adjudication petitioner

seeks would deprive the moving tribes of

their right to catch fish at some of

their most important, indeed their

homeland, river fishing locations.

Fi The non-party tribes and the

Secretary would still be bound to the

Treaty interpretation and run-by-run

allocation decrees of United States v.

Washington and Fishing Vessel Ass'n. It

is impossible to accord complete relief

in the absence of the tribes, and the

Secretary should be protected by

Rule 19(b)(2)(ii), finding himself in a

role comparable to that of the "stake-

holder" in Western Union Telegraph

Co. v. Pennsylvania, 368 U.S. 71, 75

(1961) who is not to be compelled "to

relinquish [the stake] without assurance

that he will not be held liable again

MOTION FOR LEAVE - 3

in a suit brought by a claimant

who is not bound by the first judgment."

Here, the mnon-party tribes can be

expected to make demands oon the

Secretary to enforce the adjudication of

their rights in United States v.

Washington and Fishing Vessel Ass'n.

8. Because it is clear that the

Association seeks to readjudicate and

alter the most important treaty secured

rights of the moving tribes—their right

to fish at their traditional reservation

homeland fishing locations—the tribes

should be permitted to participate now

as amicus curiae.

Respectfully submitted this 16th

day of November, 1983.

Counsel for/Amicus Curiae

ribes

cho d [a

Counsel for Amicus Curiae

Tribes

MOTION FOR LEAVE - 4

NO. 83-459

IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM 1983

WASHINGTON STATE CHARTERBOAT ASSOCIATION,

PETITIONER,

VS.

MALCOLM BALDRIGE, SECRETARY OF COMMERCE,

RESPONDENT.

On Petition for Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit

BRIEF FOR AMICUS CURIAE TRIBES

IN OPPOSITION

Susan Kay Hvalsoe Richard Reich

Counsel for Amicus Counsel for Amicus

Curiae Tribes Curiae Tribes

Suite 301 Heritage Quinault Legal Office

Federal Savings P. O. Box 189

and Loan Bldg. Taholah, WA 98587

Fifth and Columbia (206) 276-8211

Olympia, WA 98501

(206) 943-6747

QUESTIONS PRESENTED

) Whether this petitioner can

relitigate matters it presented under a

different name in Washington v.

Washington State Commercial Passenger

Fishing Vessel Association, No. 77-938,

443 U.S. 658 (1979), and whether it is

bound by that case.

Zs Whether the Court of Appeals

erred in determining that the 1854 and

1855 Stevens Treaties between northwest

Indian tribes and the United States were

not impliedly abrogated by the Magnuson

Fishery Conservation and Management Act

of 1976 (MFCMA), 16 U.S.C. 1801 et seg.

TABLE OF CONTENTS

QUESTIONS PRESENTED .

TABLE OF CONTENTS

TABLE OF AUTHORITIES .

OPINION BELOW

PARTIES

JURISDICTION .

STATEMENT OF THE CASE

ARGUMENT

as The issues raised are

res judicata 2incing on

the Association :

a The MFCMA does not

abrogate the Stevens

Treaties .

3. Petitioner has suffered

no injustice . : * «

CUNCLUSION .

APPENDIX .

ii

12

13

TABLE OF AUTHORITIES

Cases

Hoh Indian Tribe v. Baldrige,

922 F. Supp. 683 (W.D.

Wash. 1981) — va

eo, sa

Hoh Indian Tribe v. Baldrige,

676 F.2d 710 (Sth Cir. 1982)

(memorandum), cert. denied

U.S. 103 S.Ct.

Ben, 78% Le Ed7d 120 (1982). , 5

Menominee Tribe v. United

States, 391 U.S. 404

a. a ee 10

Tacoma v. Taxpayers of Tacoma,

357 U.S. 320, 340-41

¢) >} : tae. + 9

United States v. Washington,

384 F, Supp. 312 (W.D. Wash.

1974), aff'd, 520 F.2d 676

(1975), cert. denied, 423 U.S.

1086 (1976), rehearin

denied, 424 U.S. 978 71976),

. Supp. 1020

(W.D. Wash. 1974-1978)

(post-trial decisions),

various appeals dismissed,

573 F.2d 388) (9th Cir.

1978), 573 F.2d 1118 (9th

Cir. 1978), 573 F.2d 1121

(9th Cir. 1978), various

appeals aff'd sub non.,

Puget Sound Gillnetters'

ssociation v. United

States District Court,

. t Ze

iii

1978), aff'd in part,

vacated in part, and

remanded sub nom.

Washington v. “Washington

State nhs mmercial Passenger

Fishing Vessel Association,

443 U & 658 (1979),

remanded to District Court

for continuing jurisdiction,

605 F.2d 492 (9th Cir.

1979); 642 F.2d 1141 (9th

Cir. 1981), cert. denied,

454 U.S. 862 (1981);

645 F.2d 749 (9th Cir.

1981); 694 F.2d 188 iar

ey GE we eee a

Washington v. Washington State

Commercial Passenger Fishing

Vessel Association,

oO. ~ ; .S. 658

Seren ats 2 6 see ee Bok Be

Washington State Charterboat

Association v. Malcolm

Belicise, 702-F.2d 820

Washington Troller's v. Baldrige

and Washington State

Charterboat Assn, No.

- ash.

August 17, 1983) °

Statutes

oN ae ae ©

U.S.C. 1853(a) (1)

U.S.C. 1254(1) .

iv

12

OPINION BELOW

The Court of Appeals for the Ninth

Circuit issued an opinion reported at

702 F.2d 820 (March 29, 1983).

PARTIES

The petitioner represents a group

of non-Indian salmon fishing interests

which operates charter services in the

recreational fishing industry that has

been operating off the Washington coast

since the early 1950's. It is the very

same Association that was before the

Court in another case that bears its

different name, Washington v.

Washington State Commercial Passenger

Fishing Vessel Association, No. 77-983,

433 U.S. 658 (1979) ("Fishing Vessel

Ass'n" herein). There is no dispute as

to this identity as petitioner admits

that it uses the names interchangeably.

At page 4 of its brief in Fishing Vessel

Ass'n, the Association said:

The opening brief of the

petitioner State of Washington

contained certain facts

applicable to the respondent

Washington State Commercial

Passenger Fishing Vessel

Association ("Charterboat

Association") in No. 77-983.

The Charterboat Association

adopts the State of

Washington's statement of the

case insofar as applicable.

Respondent is the Secretary of

Commerce, who regulates the ocean

fisheries under the Magnuson Fishery

Conservation and Management Act of 1976

(MFCMA) .

Appearing as amicus curiae are

three federally recognized Indian tribes

with fishing rights secured under a

treaty with the United States, the

Quinault Indian Nation, the Hoh Indian

Tribe, and the Quileute Indian Tribe.

Each of these tribes has its own sepa-

rate fishing grounds on the rivers that

run through its own separate reservation

homeland on the north £Washington

coast. i

JURISDICTION

The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT OF THE CASE

This case is the third time in five

years in which petitioner has come to

this Court seeking a different interpre-

tation of the clause in the Stevens

Treaties which secured fishing rights to

amicus curiae tribes. In 1979 this

Court heard the arguments of petitioner

(and others) that the interpretation of

the Stevens Treaties should be changed

from that given by the United States

1/contrary to petitioner's claim at

Petition, p. 5, amicus curiae tribes do

not have "coterminous" treaty fishing

rights. Each tribe's primary fishing

grounds are on the rivers that run

through their exclusive and distinct

reservations. See map of north

Washington coast, Appendix 1.

District and Circuit courts in United

States v. Washington, 384 F. Supp. 312

(W.D. Wash. 1974), aff'd, 520 F.2d 676

(1975), cert. denied, 423 U.S. 1086

(1976), rehearing denied, 424 U.S. 978

(1976), 459 F. Supp. 1020 (1978), aff'd,

S73 F.2@ #1123 (1978). This Court,

however, affirmed the essentials of the

District and Circuit courts’ formulation

of the tribes' rights.

In our view the purpose and lan-

guage of the treaties are unambigu-

ous; they secure the Indians' right

to take a share of each run of fish

that passes through tribal fishing

areas. But our prior decisions

provide an even more persuasive

reason why this interpretation is

not open to question. For notwith-

standing the bitterness that this

litigation has engendered,’ the

principal issue involved is vir-

tually a "matter decided" by our

previous holdings.

Fishing Vessel Ass'n, 443 U.S. at 679

(emphasis added). The Court’ also

considered the Association's claim that

these rules should not to apply to the

ocean fisheries. The Court rejected

their argument and held instead that the

Secretary had a duty to enforce the

treaty fishing rights of the Northwest

tribes in his regulation of ocean

fisheries under the FCMA, Fishing

Vessel Ass'n, supra, at 688.

In 1981 amicus curiae tribes suea

the Secretary, and the state, to enforce

their treaty fishing rights as set forth

in Fishing Vessel Ass'n. Petitioner

untimely sought intervention to reliti-

gate the underlying interpretation of

the treaty, and was denied participa-

tion. Hoh Indian Tribe v. Baldrige, 522

F. Supp. 683 (W.D. Wash. 1981). The

denial of intervention was affirmed by

the Ninth Circuit, which noted that the

attempt was a "thinly veiled effort by

the Association to relitigate issues

that have previously been decided." 676

F.2d 710 (9th Cir. 1982) (memorandum),

cert denied U.S. , 103 S.Ct. 181,

74 L.Ed2d 120 (1982).

At the same time in 1981 petiti ner

initiated this separate action against

the Secretary to change this Court's

interpretation of the Stevens Treaties

vis-a-vis the non-Indian ocean

fisheries. Petitioner here sought (as it

had in Hoh) to replace the "run-by-run”

approach with an "aggregate" sharing

approach which, although it would

disenfranchise some tribes of their

traditional fisheries, af

would allow

the Association's non-Indian members to

take a greater share of the total

fishery in the ocean.

The District Court heard this case

on cross-motions for summary judgment,

2/For example, in 1981 petitioners

formulation of sharing would have denied

the Hoh Tribe its fishery all together,

while some other tribe would have been

allowed a greater catch to maintain an

"aggregate" sharing balance.

6

and granted summary judgment in favor of

the Secretary. The Court of Appeals

affirmed, 702 F.2d 820, re-stating after

discussion of the lengthy and repetitive

history of this controversy, that "The

run-by-run approach for allocating

salmon is required by the Stevens

treaties and has not been abrogated by

the Magnuson Act." Id, at 824.

ARGUMENT

i The issues raised are res

judicata binding on the

Association.

Petitioner litigated both’ the

underlying run-by-run sharing standard

and the obligation of the Secretary to

manage ocean fisheries under the MFCMA

in compliance with the Stevens Treaties

in Fishing Vessel Ass'n.

The Association also is bound under

‘the principle of parens patriae by the

state's participation and representation

7 .

of non-Indian interests in the

fisheries, including petitioner and

other user group associations, in United

States v. Washington, supra, and in Hoh,

supra. If this were not the case the

state (and for the ocean fisheries the

Secretary) would find it impossible to

regulate non-Indian fisheries in a way

that fairly balances the interests of

the newer ocean fishing groups, such as

petitioner,with the older non-Indian

"inside" fishing groups, such as river

sports fisheries, and non-Indian gill

net fishermen in Puget Sound and coastal

harbors. This Court considered _ the

issue in Fishing Vessel Ass'n, saying

that such individuals and associations

enjoyed "common public’ rights’ as

citizens of the state, were represented

by the state in those proceedings, and,

‘like it, were bound by the judgment."

Fishing Vessel Ass'n, supra at 692,

citing Tacoma v. Taxpayers of Tacoma,

357 U.S. 320, 340-41 (1958).

Zs The MFCMA does not abrogate

the Stevens Treaties.

Petitioner also argues that the

MFCMA impliedly abrogated the Stevens

Treaties. The Association's argument is

based on its unique interpretation of

the "optimum yield" goal under national

standard four of the MFCMA. Petitioner

argues that fish caught by amicus curiae

tribes in their traditional river

fisheries, and by other’ non-Indian

groups fishing the "inside" waters of

Washington and other states, somehow do

not contribute to the "optimum yield".

Aside from the speciousness of this

proposition in its own terms, it ignores

the statutory mandate that each fishery

management plan of the Secretary shall

-be consistent with all provisions of the

act and with any other applicable law.

6. U.S.C. §18535(a)(i}. There is no

legislative history which suggests that

Congress intended to omit the Stevens

Treaties and the federal court decisions

interpreting them from the "other law"

provision of the Act, and this Court has

consistently held that a very clear

expression of Congressional intent is

required in order to find an abrogation.

Menominee Tribe v. United States, 391

U.S. 404 (1968). Moreover, this Court

has already decided that the MFCMA

requires the Secretary to regulate the

ocean to comply with Indian tribes'

fishing rights under the’ treaties.

Fishing Vessel Ass'n, supra, at 688.

7 Petitioner has suffered no

injustice.

Petitioner has not suffered from

the enforcement of amicus curiae tribes

rights under the Stevens Treaties.

10

In 1981, the year for which peti-

.tioners brought this case, there was no

reduction in petitioner's fishery as a

result of the enforcement of amicus

curiae tribes' fishing rights by the

District Court in Hoh. Instead, they

exceeded the catch allocation set for

them before Hoh was brought by some

18,000 fish. The tribes' rights were

implemented by moderating the state's

overly restrictive spawning escapement

goals and directing the tribes, the

Secretary’ and the state to develop a

plan for the long-term management of the

affected fisheries. Hoh, supra, at 690,

692.

Moreover, this year the Secretary

provided a larger share of the ocean

fishery to the Association. Petitioner

and similarly situated recreational

11

fishing interests were allowed 662% of

the ocean catch compared to their

historic 402 share. The Secretary's

decision was upheld in a case in which

petitioner participated. Washington

Troller's v. Baldrige and Washington

State Charterboat Ass'n, No. C83-753R,

in the Western District of Washington,

memorandum judgment, August 17, 1983.

There simply is no injustice here

that commands another review by this

Court.

CONCLUSION

The Petition for Writ of Certiorari

should be denied.

Respectfully submitted,

Counsel for Amicus Curiae

Tribes

12

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APPENDIX I

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