Opposition Brief — Quinault Indian Nation v. Washington

f Supreme Court, US.

org FILED

No. 85-535

DEG 19 1985

JOSEPH F- — JR.

Jn the Supreme Court of the H

OCTOBER TERM, 1985

QUINAULT INDIAN NATION, ET AL., PETITIONERS

Vv.

STATE OF WASHINGTON, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

FHE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

F. HENRY HaBIcut II

Assistant Attorney General

ANNE S. ALMY

BLAKE A. WATSON

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

"BEST AVAILABLE COPY al

QUESTIONS PRESENTED

1. Whether the State of Washington may challenge the

continuation of a five-year experiment, designed to probe

for the maximum sustained harvest and escapement levels

for fall chinook on the Queets, Hoh, and Quillayute Rivers,

on the ground that the fixed harvest premise of the probing

experiment infringes on the State’s right to dedicate its

share of the harvestable runs to non-harvest uses.

2. Whether the court of appeals erred by construing the

district court’s decision as an appealable final order.

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TABLE OF CONTENTS

Page

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Argument ....... Tree eee TTT TTT Tree 6

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TABLE OF AUTHORITIES

Cases:

United States v. Washington, 774 F.2d

Se Bho ohh 60S ORNs 60600604 060s oe ecen ees 8

United States v. Washington, 384 F. Supp.

312, aff'd, 520 F.2d 676, cert. denied,

423 U.S. 1086, further proceedings,

459 F. Supp. 1020, aff'd, 573 F.2d 1123,

substantially aff'd sub nom. Washington

v. Washington State Commercial

Passenger Fishing Vessel Ass'n,

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Treaties, statute and rule:

Treaty of Dec. 26, 1854,

United States-Nisquallys Indians,

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Treaty of Jan. 22, 1855,

United States-Dwamish Indians,

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Treaty of Jan. 26, 1855,

United States-S’Klaliams Indians,

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IV

Treaties, statute and rule—Continued:

Treaty of Jan. 31, 1855,

United States-Makah Tribe,

12 Stat. 939 ef SQ... cece ewww ee ceeee

Treaty of June 9, 1855,

United States-Yakima Indians,

12 Stat. 951 ef Sq... cc rcccccccccesncccees

Treaty of July 1, 1855 and Jan. 25, 1856,

United States-Qui-nai-elts-Quil-leh-ute

Indians, 12 Stat. 971 et seq. ... 2... - eee ees

28 U.S.C. 1292(b) ... cece cece cere senes »haee

Fed. R. Civ. P. 54(b) 2... cece eee ee eee eee

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In the Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-535

QUINAULT INDIAN NATION, ET AL., PETITIONERS

V.

STATE OF WASHINGTON, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-A12) is

reported at 761 F.2d 1404. The opinion of the district court

(Pet. App. Ci-C2) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on May

28, 1985, and a petition for rehearing was denied on June 28,

1985 (Pet. App. B1). The petition for a writ of certiorari was

filed on September 25, 1985. The jurisdiction of this Court is

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

STATEMENT

1. This case involves one facet of the longstanding con-

troversy between treaty and nontreaty fishermen over the

management and allocation of Pacific Northwest anadrem-

ous fish pursuant to the so-called “Stevens Treaties.”

'Treaty of July 1, 1855 and Jan. 25, 1856 (Olympia), United States-

Qui-nai-elts-Quil-leh-ute Indians, 12 Stat. 971 ef seq.; Treaty of June 9,

1855 (Yakimas), United States-Yakima Indians, 12 Stat. 951 et seq.;

(1)

ee

2

See United States v. Washington, 384 F. Supp. 312 (W.D.

Wash. 1974), aff'd, 520 F.2d 676 (9th Cir. 1975), cert.

denied, 423 U.S. 1086 (1976), further proceedings, 459 F.

Supp. 1020 (W.D. Wash.), aff'd, 573 F.2d 1123 (9th Cir.

1978), substantially aff'd sub nom. Washington v. Washing-

ton State Commercial Passenger Fishing Vessel Ass'n (Fish-

ing Vessel), 443 U.S. 658 (1979).

In particular, this case involves the question of salmon

escapement on the Queets, Heh, and Quillayute Rivers in

northwestern Washington. The problem of proper spawn-

ing escapement is a complex one: both fisheries biologists

and past court decisions have recognized that, in limited

instances, too many spawners can be as harmful to the

reproductive success of a run as too few. See, e.g., Fishing

Vessel, 443 U.S. at 664 (“fish runs may be harmed by harv-

esting either too many or too few of the fish returning to

spawn”).

In 1982 and 1983, the district court’s Fishery Advisory

Board (FAB) (see Pet. 7 & n.4; Pet. App. A3 n.1) wee

presented with a dispute between petitioners and the State

of Washington concerning the appropriate number of fall

chinook that should be allowed to escape the in-river fisher-

ies for spawning purposes. In general, petitioners and the

State disagree over the number of spawners necessary to

produce a maximum sustained harvest. In late 1982, the

FAB developed a five-year interim plan designed to “probe”

for the escapement level that would yield the maximum

sustained harvest. The interim plan also would provide data

Treaty of Dec. 26, 1854 (Medicine Creek), United States-Nisquallys

Indians, 10 Stat. 1132 et seqg.; Treaty of Jan. 26, 1855 (Point No Point),

United States-S’Klallams Indians, 12 Stat. 933 et seq.; Treaty of Jan. 31,

1855 (Neah Bay), United States-Makah Tribe, 12 Stat. 939 er seq.;

Treaty of Jan. 22, 1855 (Point Elliott), United States-Dwamish Indians,

12 Stat. 927 et seq.

3

to aid tn evaluating the perennial disputes that arise between

tribal and state biologists. This probing plan was in the

nature of an experiment: a fixed 40% of the fall chinook in

the three rivers involved would be harvested each year,

provided that conservatively-established minimum spawn-

ing escapement levels were met to ensure conservation of the

chinook stocks. Because the sizes of the runs over the next

few years were expected to vary, the constant 40% harvest

rate and concomitant 60% escapement rate were designed to

produce a range of actual numbers of spawners — which

could then be compared to year-by-year estimates of viable

offspring, providing resource managers with some hard

data in their attempts to estimate the optimal number of

spawners. See Pet. App. D3. This interim plan was deve-

loped with virtually no cooperation from the State of

Washington, and the State did not contest the plan in dis-

trict court.”

In 1983, however, the State objected to the continued

implementation of the FAB interim plan. Specifically, the

State argued that harvestable fish must be split 50-50

between the treaty fishery and the in-river non-Indian sports

fishery, even though the sports fishery cannot catch more

than a fraction of the State’s harvestable share. Under the

State’s view, the State may devote its share of the harvesta-

ble fish to “non-harvest” uses, including extra escapement to

improve the runs, to add to the food chain of wild animals,

and to provide additional “opportunity” to sport fishers.

The State thus argued that the 40% harvest rate must be

decreased (and the 60% escapement rate increased) to the

degree that the non-Indian river sport fishery is unable to

harvest its share. Pet. App. DI-D2 (Queets River).

?The United States did not participate as a formai party in the 1982

FAB proceeding.

4

Petitioners, on the other hand, argued that the 40% ixed

harvest rate was an essential premise of the FAB plan for

probing for maximum sustained yield and escapement lev-

els. Pet. App. D3. Petitioners also contended that, within

the 40% harvest rate, fish determined unharvestable by one

party may legally be harvested by the other. /bid. Petition-

ers argued that, if they were not allowed to catch that portion

of the harvest that the non-Indian sports fishery is unable to

catch, the 40% harvest rate necessary for purposes of the

FAB experiment would not be achieved. /d. at D13.

The district court’s technical advisor, in his reports on the

1983 fall chinook season on the Queets, Hoh, and Quil-

layyte Rivers, recommended that the 40% harvest rate be

construed and implemented in accordance with petitioners’

position, i.e., that within the 40% harvest rate fish deter-

mined to be unharvestable by one party could be harvested

by the other party. Pet. App. D4-D5. The advisor noted

that the 40% harvest rate, along with a “floor” escapement

of 2,500 fali chinook, “is an integral part of a management

plan which protects the resource and effectively probes

towards [maximum sustained yield] escapement” (id. at

D5). The advisor also noted that while petitioners’ plan

would reduce the number of fish available for sports

fishermen, the numerical reduction in the estimated sports

catch would be minimal compared to the estimated loss to

tribal fishermen under the State’s plan (sport fishermen loss

of 22 fish under petitioners’ plan for the Queets River

compared to an estimated tribal loss of 900 fish under the

State’s plan). /d. at D6. Although the advisor did not accept

the State’s proposed plan, he did earmark for the sports

fishery more than twice the number of fish that the State

had estimated could be caught by sportsmen. See id. at D8.

In response to the advisor’s recommendation, the State

filed a “Request for Determination” with the district court,

seeking a declaration that the non-Indian fishery cannot be

5

curtailed simply to achieve a level of catch considered desir-

able by the district court’s technical advisor for scientific

and economic purposes. On December 19, 1983, the district

court entered a two-page order (Pet. App. C1-C2) adopting

the advisor’s recommendation.

2. The State appealed the district court’s decision with-

out seeking certification under Fed. R. Civ. P. 54(b) or 28

U.S.C. 1292(b). On June 5, 1984, the court of appeals

denied petitioners’ motion to dismiss the appeal for lack of

jurisdictivu (Pet. App. B2). The court of appeals reaffirmed

this ruling in its decision on the merits (id. at A4-A7). The

court held that the principle of finality should be applied

with greater flexibility in the context of post-judgment

orders, because the danger of piecemeal review is lessened

once the underlying dispute has been resolved (id. at AS).

The court also concluded that the State’s appeal presented

the only opportunity for meaningful review, because, by

definition, the FAB plan approved by thé district court

would always be an “interim” plan (id. at 6). ™

With respect to the State’s contention that the FAB plan

conflicted with this Court’s decision in Fishing Vessel

insofar as that case held that the tribal catch may not exceed

50° 5 of the harvestable fish, the court of appeals ruled that

the 50% figure “should be viewed as a ceiling only when

there is actual competition for use of the resource” (Pet.

App. A10). If the non-treaty fishers choose not to “use”

their share of the resource, the court held, the Indians

should be permitted to take the otherwise unharvestable

portion unless doing so would interfere with conservation.

Ibid. In the present case, however, the court concluded that

the State is in fact “using” its share of the resource by

dedicating it to the sports fishery in order to provide a

“sustained recreational experience” (id. at All). Because

the fixed 40% harvest rate called for by the FAB probing

plan reduced the number of fish available for sports fisher-

men, the court of appeals held that the plan infringed on the

6

State’s treaty rights despite the fact that the estimated

decrease in the fish available for sportsmen was minimal.’

The court ordered that, in the future, the FAB probing plan

“must respect the State’s right to allocate up to 50% of any

harvestable run to the sports fishery without diminution for

failure to harvest all available fish” (id. at A12).

ARGUMENT

Management of the Pacific Northwest anadromous

resources and effectuation of the fishing rights of Indian

and non-Indian fishermen present numerous complex

problems, both technical and equitable. In the present

action, a dispute arose between petitioners and the State

over the level of escapement necessary to provide for maxi-

mum sustained harvest of fall chinook on the Queets, Hoh,

and Quillayute Rivers. In order to resolve that factual dis-

pute, a five-year experiment was undertaken under the

auspices of the FAB to collect data and probe for the

optimal escapement and harvest levels. Because the United

States believed the FAB plan should be allowed to run its

course, and because the plan was premised on a fixed 40%

harvest rate, the government opposed the State’s attempt to

undercut the experiment after only one year of operation by

raising after-the-fact “treaty allocation” issues. The court of

appeals’ decision, however, has altered the nature of the

FAB probing experiment by requiring an adjustment to the

plan to allow the State to allocate its share of the harvesta-

ble runs to the sports fishery. While we believe this ruling is

inimical to the continuation of the five-year FAB plan, the

?Although the court agreed with petitioners that waste of harvestable

fish should be avoided, it held, in light of the uncertainty as to the

maximum sustained harvest and escapement levels, that “the Tribes’

contention that the State’s non-harvest-use is waste is premature” (Pet.

App. All). At the same time, however, the court also held that the

policy against waste must give way to the State’s right to dedicate a

portion of its allocation to the “inefficient sports fishery” (ibid.).

J

decision below does not conflict with any decision of this

Court and does not squarely present any issue of broad

importance warranting review by this Court.

1. As an initial matter, we note that the decision below is

internally inconsistent: the court of appeals has agreed that

the FAB five-year pian, designed to develop data and to

probe for the maximum sustained harvest level of fall chi-

nook on the rivers in question, should continue, but that it

must be conducted prospectively in such a manner as to

allow the State to dedicate its full share of the harvestable

runs to the admittedly inefficient sports fishery for non-

harvest uses. Yet the fixed 40% harvest rate, which is “an

integral part of [the] management plan which * * * effec-

tively probes toward [maximum sustained yield] escape-

ment” (Pet. App. DS), cannot be realized unless petitioners

are permitted to harvest the fish that cannot be harvested by

the sports fishery. The court’s invalidation of the FAB

interim plan is particularly troublesome in view of the

State’s failure to contest the probing experiment in 1982

when the plan was formulated.

2. Nevertheless, we believe that further review of this

controversy is not warranted. The court of appeals’ decision

was rendered in the context of a dispute over the best

method by which to resolve the factual question of the

maximum sustained harvest of fall chinook on the rivers in

question. Until that question is settled, as noted by the court

of appeals (Pet. App. All), petitioners’ contention that the

State’s non-harvest uses constitute waste is premature. An

adequate record that demonstrates, as a matter of fact, that

the State’s dedication of its full share of the harvestable fish

to the sports fishery leads to over-escapement of chinook

salmon to the spawning grounds and ~onsequential wastage

of fish is a necessary predicate to petitioners’ contention

that they should be permitted to harvest fish in excess of

their harvestable share. The court of appeals has remanded

8

the case to the district court with instructions to develop a

plan that will produce the necessary data. /d. at Al2.

Thus, the broader issue of “foregone opportunity” is not

squarely presented in this case.‘ In some instances, the State

may have legitimate non-harvest uses that do not result in

wastage; in other instances, the State may not have a factual

basis for a claim that its failure to harvest the non-Indian

share of the harvestable fish is a legitimate “use” of the type

protected from infringement. In the present case, the factual

record is lacking with respect to the capability of the sports

fishery, the extent of the ocean catch, and the issues of

wastage and optimal escapement. Because the facts are not

yet sharply focused, the underlying legai questions have not

been fully defined. We therefore believe that the present

‘In contrast, the Ninth Circuit has recently affirmed the “foregone

opportunity” doctrine in United States v. Washington, 774 F.2d 1470

(1985), which involves Puget Sound saimon. In that case, the United

States supported the tribes’ position that the State should not receive an

“equitable adjustment” when tribal fishermen catch more than 50% of

the harvestable runs, as long as the fish were known to be clearly surplus

to spawning escapement needs and would ctherwise have been uncaught

by the non-Indian fisheries. The Ninth Circuit generally agreed with the

Indians, holding that no equitable adjustment is due when a party

catches fish in excess of its share if it is shown that “(1) the fish taken in

excess of its share were identified in-season and (2) the other side had

notice that the excess fish would be harvested.” 774 F.2d at 1480.

We note that, unlike the present case, in which the dispute is between

the upstream nontreaty sports fisheries and the tribal fisheries located at

the mouths of the rivers, the dispute in the Puget Sound case was

between nontreaty commercial fishermen operating in the marine areas

of Puget Sound and Indian fishermen whe fish in freshwater and the

inland areas where the salmon return to spawn (see 774 F.2d at 1473). It

remains to be seen — perhaps after the collection of data from a revised

FAB experiment in the instant case —- how the two decisions will be

reconciled.

‘Correspondingly, while the matter is not entirely free from doubt, we

believe the court of appeals’ decision should not be interpreted as

significantly curtailing the legal contentions that could otherwise be

made in the context of a more fully developed factua! showing.

9

case is an inappropriate vehicle by which to address the

questions where, or under what circumstances, a tribe may

harvest more than 50% of a harvestable fish run.®

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

F. Henry Hasicut II

Assistant Attorney General

ANNE S. ALMY

BLAKE A. WATSON

Attorneys

DECEMBER 1985

6Petitioners also argue (Pet. 15-19) that the court of appeals’ failure to

dismiss the appeal in light of the absence of a certification pursuant to

Fed. R. Civ. P. 54(b) by the district court warrants review by this Court.

Although we argued below that the district court’s order was not final in

light of the fact that further proceedings were contemplated by the

parties, we do not believe the court of appeals’ contrary interpretation

of the order merits review.

DO}J-1985-12