The opinion of the court was delivered by: BOLDT
COMPILATION OF MAJOR POST-TRIAL SUBSTANTIVE ORDERS
The initial decision of the court dated February 12, 1974, (hereinafter Final Decision # 1) and related rulings and decree of March 22, 1974, in this case are set forth at 384 F. Supp. 312 ( Aff'd 520 F.2d 676 (9th Cir. 1975), Cert. denied, 423 U.S. 1086, 96 S. Ct. 877, 47 L. Ed. 2d 97, rehearing denied 424 U.S. 978, 96 S. Ct. 1487, 47 L. Ed. 2d 750 (1976)). Under the court's retention of continuing jurisdiction, subsequent decisions and orders of a substantive nature rendered through June 30, 1978, are set forth or summarized below. All summarizations or editing herein of the provisions as entered, are by the court.
Subsequent to Final Decision # 1 herein, the following parties were allowed to intervene as additional plaintiffs: Duwamish, Jamestown Band Clallam, Lower Elwha Band Clallam, Nooksack, Port Gamble Band Clallam, Samish, Snohomish, Snoqualmie, Steilacoom, Suquamish, Swinomish, Aboriginal Swinomish and Tulalip Tribes. The Nisqually and Puyallup Tribes which had only been represented by the United States, were allowed to intervene on their own behalf. Applications to intervene as additional defendants by the Northwest Steelheaders' Council of Trout Unlimited, Gary Ellis its president, Purse Seine Vessel Owners Association and Washington State Commercial Passenger Fishing Vessel Association were denied.
By separate order the court appointed United States Magistrate Robert E. Cooper as Master and Dr. Richard R. Whitney
as fisheries science and management advisor to assist the court. A Fisheries Advisory Board was established as set forth, Infra.
DECISION, INJUNCTION AND ORDER RE STATE COURT INJUNCTIONS PREVENTING ENFORCEMENT OF CERTAIN DEPARTMENT OF FISHERIES REGULATIONS
Paragraph 5 of the Interim Plan and Stay Order entered by this court on March 22, 1974 (384 F. Supp. at 420), obligates defendants State of Washington, Washington Department of Game and its Director and Washington Department of Fisheries and its Director, (hereinafter "defendants") to make significant reductions in the non-Indian fishery as deemed necessary to achieve the objectives of the court's definition of Indian treaty fishing rights. In carrying out this order the court anticipated that defendants would promulgate and enforce regulations reducing the non-Indian fishery. Defendants have promulgated certain regulations establishing reductions in the non-Indian fishery but have been unable to enforce them by reason of certain directives and orders of the Thurston County Superior Court in Washington State Commercial Passenger Fishing Vessel Association v. Tollefson, No. 50380, Washington Kelpers Association v. Tollefson, No. 50552 and Puget Sound Gillnetters Association v. Tollefson, No. 50757.
No additional or alternative regulations have been proposed by defendants. Therefore, it now appears that in order to effectuate the prior orders of this court and to preserve this court's jurisdiction over the subject matter, further orders of this court are necessary to clarify the scope of the court's jurisdiction and of the duties imposed upon defendants under Final Decision # 1.
Data submitted by the United States Fish and Wildlife Service, which includes Department of Fisheries statistics, indicate that through August 1974, with the exception of the Nisqually River chum harvest in January which, for management purposes would be considered part of the 1973 run, Indian fishermen in the case area in 1974 have caught less salmon of each species than they caught in 1973, both in terms of total numbers of fish caught and in terms of the percentages of Indian harvest as contrasted with total non-Indian commercial salmon, or 3.5% Of the total as compared with 3,404,710 salmon harvested by non-Indian commercial interests; through August of 1974, Indians have harvested 89,402 salmon or 2.4% Of the total as compared with 3,628,513 salmon harvested by non-Indian commercial fishermen; when the sport catch through August of 1974 of 837,099 salmon is included, the Indian share of the total harvest is 2.0%.
These figures illustrate in the most startling manner the gross inequities between Indian and non-Indian harvest, and the complete failure and inability of defendants to comply with this court's orders to make significant reductions in non-Indian fishing and to afford to Indians an opportunity to catch approximately 50% Of the harvestable resource at their usual and accustomed grounds and stations. Because by their nature substantial fish resources will be lost for 1974 to plaintiff tribes if not harvested during the currently ongoing seasons, the immediate threat of substantial economic harm and serious hardship to many treaty-right fishermen convinces this court that prompt action is required to protect federal treaty rights that this court has found are constitutionally guaranteed as the law of the land and to assure the viability of this court's Final Decision # 1, unless and until it be modified or reversed.
In all court litigation in which the United States has an interest, including cases involving the interpretation and application of treaties duly enacted as required by federal law and the national Constitution, the Attorney General of the United States, acting through the Justice Department and United States Attorneys, is the official authorized to speak and act for the people of the Nation in such matters. In this instance, the United States Attorney, presumptively in the national interest, has requested that this court enjoin enforcement of the injunctions issued in all three of the above-referred to state court proceedings. Plaintiff tribes, as descendants of signatories to treaties with the United States, have joined in that request.
Rather than consider the state court proceedings in toto, upon the record now presented this court finds it necessary to consider the injunctions separately and therefore will discuss each of them in the order of issuance. It must be recognized, however, that each of the three state court proceedings was instituted by litigants none of whom was a party to this federal court action. Additionally, none of those state court proceedings joined the United States or the plaintiff tribes, the real parties in interest who could be, if not irreparably, at a minimum grievously, injured by state court injunctions preventing enforcement of the Department of Fisheries regulations promulgated for the express purpose of making more fish available to treaty-right fishermen. Finally, at none of the state court hearings were witnesses interrogated nor was any of the hearings a full scale evidentiary hearing; only affidavits of the litigants were presented, not subject to cross-examination, and the state court judges could only act upon the materials presented to them.
Beyond question, the state court judges who issued the restraining orders involved herein performed their judicial functions in accordance with established law and practice in the state courts, and in an able and responsible manner beyond criticism in any particular whatever. However, it is clear from the cited authorities that the circumstances above recited can and should be considered by this court together with the full record before it, significant portions of which were not available to the state courts, in determining what action, if any, to take with regard to these state court proceedings.
(1) In Commercial Passenger Fishing Vessel Assoc. v. Tollefson, supra, plaintiffs herein obtained a temporary injunction preventing enforcement of a Department of Fisheries regulation reducing the personal use salmon angling daily bag limit in Washington coastal waters and the Strait of Juan de Fuca from three salmon to two salmon. Upon the evidence before it, this court finds that plaintiffs herein have not sustained their burden of showing that enforcement of that regulation reducing the daily salmon sport bag limit would achieve the purpose of making a significant number of additional fish available for harvest by treaty-right fishermen. For these reasons, this court finds no reason to interfere with the state court temporary injunction currently in effect in Cause No. 50370.
(2) In Washington Kelpers Association v. Tollefson, supra, plaintiffs therein succeeded in temporarily enjoining enforcement of a Department of Fisheries regulation which effectively closed commercial trolling for salmon within the three-mile limit under state jurisdiction. Evidence in the record before this court discloses that the total harvest by the Kelpers Association within the three-mile limit is not substantial and that the runs of fish involved would not significantly enhance the harvest opportunity of treaty-right fishermen because they pass through other non-Indian commercial fisheries before reaching tribal fishing grounds. This court finds that plaintiffs herein have not met their burden of showing that enforcement of the regulation in question, proposing to close commercial trolling for salmon within the three-mile limit, would achieve the purpose of making a significant number of additional fish available for harvest by treaty-right fishermen. For these reasons, this court finds no reason to interfere with the state court temporary injunction currently in effect in Cause No. 50552.
(3) In Gill Netters Association v. Tollefson, supra, plaintiffs therein obtained a temporary injunction enjoining enforcement of a Department of Fisheries regulation proposing reductions in fishing time for gillnetters and purse seiners in the Puget Sound marine fishery. Unlike the evidence concerning the prior temporary injunctions, the record in this case is replete with factual data which establishes beyond reasonable question that very significant portions of the harvestable fish not taken by the non-Indian fishermen referred to would reach the usual and accustomed off-reservation fishing grounds of plaintiff tribes in substantial numbers. Plaintiffs herein have overwhelmingly met their burden of proof to show that enforcement of this proposed Department of Fisheries regulation calling for reduced fishing time for gillnetters and purse seiners in Puget Sound would achieve at least partial compliance with this court's directives to make additional fish available for harvest by treaty-right fishermen, and that prohibition by the state court of enforcement of that regulation presents an immediate threat of substantial economic harm and serious hardship to plaintiff tribes.
Upon the facts found as above stated and after most serious and meticulous consideration of written memoranda and oral arguments by all parties and written submissions by parties to the state court actions, this court finds and holds that injunctive relief in the form set forth below must issue to enjoin enforcement of the state court injunction in Cause No. 50757, as follows:
(1) For the reasons hereinabove stated, unless and until this court orders otherwise, it is now hereby ORDERED AS FOLLOWS:
That the Superior Court of the State of Washington, County of Thurston, is hereby prohibited and enjoined from in any manner or to any extent enforcing the temporary injunction issued by said court on August 30, 1974, in Puget Sound Gillnetters Association v. Tollefson, No. 50757, and from issuing any other order in said cause which in effect will prevent the Department of Fisheries from fully enforcing the regulations in question adopted pursuant to Administrative Order No. 1143.
This injunction shall in no manner whatever preclude said court from expeditiously proceeding with preparation and trial of the issues presented in said cause.
(2) IT IS FURTHER ORDERED:
That defendants State of Washington, Thor Tollefson, Carl Crouse, Departments of Fisheries and Game of the State of Washington, and their officers, agents, servants, employees and attorneys, and those persons in active concert or participation with any of them, shall not obey, carry out, enforce or otherwise treat as having any lawful force or effect the order of the Thurston County Superior Court for the State of Washington referred to in paragraph (1) above.
For reasons not clear to this court, the Department of Fisheries takes the anomalous position of opposing entry of the injunction issued above, while asserting the correctness and appropriateness of the regulations enjoined in the state court proceedings. This court's injunction confirms the propriety of the Department of Fisheries regulations adopted pursuant to Administrative Order No. 1143. Moreover, this court has not and will not direct, limit or in any manner whatever interfere with full exercise of the prerogatives, duties and discretion vested by state law in the Directors of the Departments of Game and Fisheries, excepting to the extent necessary to enforce the judgment and decree entered pursuant to Final Decision # 1 and to restore or preserve the Indian treaty rights specified therein. Nothing in this decision or in the above injunction should be construed or applied to the contrary.
However, due to the circumstances previously recited, and to aid in achieving an equal opportunity to both Indian and non-Indian fishermen to harvest fish in the case area and to compensate treaty-right fishermen for not having been able to harvest the fish resource to the extent determined by Final Decision # 1, this court finds it necessary in aid of its jurisdiction and to protect and effectuate its judgment, to provide as follows:
IT IS HEREBY ORDERED THAT:
(1) The defendants are required to make significant reductions in the non-Indian fishery, as are necessary to achieve the ultimate objectives of the court's Final Decision # 1 without requiring mathematical precision, but in making such reductions shall do so consistent with the concept of permitting the full harvest of fish.
(2) Reductions in the non-Indian fishery, once adopted by the defendants in accordance with the court's prior rulings and this order, shall not thereafter be relaxed or rescinded without prior notice to this court and all parties to this action, unless consent of the affected plaintiff tribes has been obtained prior thereto.
(3) To the extent reduction in the non-Indian fishery adopted in accordance with the court's prior rulings already have been relaxed or rescinded prior to the entry of this order by reason of the temporary injunction of the Thurston County Superior Court in Puget Sound Gillnetters Association v. Tollefson, No. 50757, issued August 30, 1974, defendants shall cease immediately from carrying out directives, orders or policies in accordance with said temporary injunction and shall resume forthwith to implement the regulatory schemes and policies previously adopted to effect reduction in the non-Indian commercial net fishery for salmon on Puget Sound and related waters.
ORDER FOR PROGRAM TO IMPLEMENT INTERIM PLAN
(By order dated October 8, 1974, as amended and supplemented November 21, 1974, and August 6, 1975, this court ordered the following program as an initial program called for by paragraph 20 of the injunction (384 F. Supp. at 417-418) to implement the Interim Plan set forth at 384 F. Supp. at 420. By order of April 5, 1976, this program was extended indefinitely until further order of the court).
This program is subject to modification and further refinement as additional information and further experience become available. The parties will continue to develop such information and experience and will consult frequently with each other on general and specific problems or conditions in an effort to achieve more completely and as rapidly as possible full compliance with the spirit and objectives of the orders of March 22, 1974. Any modifications or refinements agreed to by the affected parties shall become effective upon filing with the court without further action or approval of the court unless such further action is specified therein. Any party may submit requests for other modifications or refinements for approval or other appropriate order by the court.
Tribes having qualified for self-regulation are not bound by the particulars of this program, other than as directed by the terms of Final Decision # 1 and the injunction entered pursuant thereto.
A. Guideline Principles for Regulating Fisheries.
Guideline Principles for Regulating Fisheries pursuant to paragraph 2 of the Interim Plan and Stay Order shall be filed with the court.
B. Exchange of Information Preliminary to Regulation.
Data required to be furnished by the state agencies under paragraphs 17 and 18 of the injunction (384 F. Supp. at 413-419) and paragraph 7 of the Interim Plan and Stay Order (384 F. Supp. 420) and data required to be furnished by the tribes under paragraph 17 of the injunction and paragraph 7 of the Interim Plan and Stay Order shall be furnished at the earliest practical time after such data becomes available, but no later than the following schedule:
1. At least sixty (60) days prior to entry of a run into the first fishery subject to state control run-size predictions, numbers of harvestable fish set pursuant to paragraph 17 of the injunction and information concerning run size, timing and condition requested by the tribes pursuant to paragraph 18 of the injunction and paragraph 7 of the Interim Plan and Stay Order shall be furnished by the state agencies.
Until such time as predictions of steelhead run size are possible, Game shall determine the harvestable portion of the run in the best manner practicable after consulting with the plaintiffs to receive their suggestions. Such predictions relating to harvestable numbers of fish shall be subject to review if the tribes believe there is better information from another source. If the parties cannot agree on the best source the court shall make a determination through the Master in consultation with its Fisheries Technical Advisor. All predictions of harvestable numbers shall be further subject to review during the fishing season as additional information is obtained.
2. At least fifty (50) days prior to the entry of a run into the first fishery subject to state control, the tribes shall furnish information concerning their anticipated fishing activity as requested by the state under paragraph 17 of the injunction.
4. At least twenty-one (21) days before a proposed opening, regulations shall be adopted and filed pursuant to paragraph 1 of the Interim Plan and Stay Order; Provided that emergency regulations are enforceable upon filing them with the court and service upon the other parties affected of a copy of such regulations and a statement of the facts and circumstances of the emergency on which the regulations are based. Any party may respond and seek immediate review. Requests for emergency consideration by the court will be given priority and determined rapidly.
C. Limitation on Harvest.
Whenever such closure or curtailment will (1) increase the opportunity of the other fishery (i. e., non-Indian or Indian, respectively) to take more of the harvestable portion of such run, and (2) not result in overescapement for such run, the Department of Fisheries will close or curtail the non-Indian fisheries on any run of salmon when the non-Indian catches reach or are expected to reach 50% Of the harvestable portion of that run. That department may likewise close or curtail Indian off-reservation commercial fisheries on said run whenever those fisheries have taken 50% Of the harvestable portion of said run. The Department of Game may close or curtail the Indian off-reservation steelhead commercial fisheries or the non-Indian sport fisheries, respectively, on any river system steelhead run whenever such fisheries have taken 50% Of the harvestable portion of said run. For purposes of this paragraph the harvestable portion of the run shall be the number determined by the Department of Fisheries for salmon or the Department of Game for steelhead and supplied in accordance with paragraph B.1. above.
D. Identification of Indian-Caught Steelhead.
The defendants may apply and enforce the provisions of WAC 232-12-210, 232-12-211, 232-12-212 and 232-12-360, as amended or adopted October 2, 1974, to treaty Indians outside of Indian reservations and allotments, and to steelhead caught in the exercise of treaty-secured fishing rights by members of the Intervenor-tribes herein, subject to the following exceptions or limitations:
1. The requirements of WAC 232-12-210 that acceptance or possession of steelhead taken by another person must be accompanied by a written statement as therein described shall not apply to acceptance or possession for noncommercial purposes by a treaty Indian or member of the immediate family (parent, spouse or child) of a treaty Indian of steelhead lawfully caught by a treaty Indian.
2. WAC 232-12-211 shall not be applied so as to prohibit acceptance or possession for noncommercial purposes by the members of the immediate family of a treaty Indian of steelhead lawfully caught by a treaty Indian.
3. The provisions of WAC 232-12-212 shall not be applicable to any tribally-owned enterprise or to any Indian who sells solely to a tribally-owned enterprise provided that said tribal enterprise has previously notified the Department of Game in writing of its name and the addresses of its receiving, processing and storage facilities and has agreed to furnish to that Department the data described in WAC 232-12-212(2), on forms to be provided by the state.
2. For each run of fish the state agencies shall provide the U. S. Fish and Wildlife Service or the tribes summaries of the non-Indian commercial catch no less than weekly and sport catch biweekly.
F. Determination of Tribal Treaty Status and Fishing Areas.
1. The defendants shall not, with respect to any Indian tribe or group which has not specifically been determined by this court to be entitled on an interim or permanent basis to be recognized as a treaty tribe, treat any off-reservation taking of fish from stocks of the case area by such tribe or group as treaty fishing in making any allocation of fish to treaty Indians or in restricting the fishing of tribes recognized by this court as treaty tribes pursuant to the decree and orders in this case, without first obtaining the concurrence of the tribes involved.
2. In order to be entitled to exercise its off-reservation treaty fishing rights, any tribe allowed to intervene in this case to assert its claim of treaty fishing rights shall, prior to any attempt to exercise such rights, present prima facie evidence and arguments supporting its claim to treaty status and tribal organizations upon which the court may make a preliminary determination as to whether such tribe is to be dealt with as a treaty tribe entitled to fish at specified locations pursuant to the Interim Plan and Stay Order pending final determination of said tribe's status after a full hearing; Provided, however, that nothing in this paragraph shall preclude members of such tribes from fishing off-reservation in conformity with state regulations applicable to anadromous fish, to the same extent as nontreaty-right fishermen. Any party disputing a tribe's claim of treaty entitlement or the recognition of specific usual and accustomed places shall cooperate in allowing the matter of final determination of such matters to be made promptly and as rapidly as the court calendar and the interests of justice permit.
G. Nonanadromous Fish and Shellfish.
1. In order to be entitled to exercise off-reservation treaty fishing rights to nonanadromous fish and shellfish, any tribe party to this case shall, prior to any attempt to exercise such rights, present prima facie evidence and arguments supporting its claim to treaty entitlements to such nonanadromous fish and shellfish upon which the court may make a preliminary determination as to the tribe's entitlement to such species, pending final determination of tribal treaty-right entitlement to nonanadromous fish and shellfish; Provided however, that nothing in this paragraph shall preclude members of such tribes from fishing off-reservation in conformity with state regulations applicable to nonanadromous fish and shellfish, to the same extent as nontreaty-right fishermen. Following such preliminary determination, off-reservation fishing areas shall be opened only to the extent that tribes which are determined to have such entitlement adopt and file with the court and defendants tribal regulations for the nonanadromous fishing activities of their members specifying the areas to be opened to such fishing. Any party disputing a tribe's claim of treaty entitlement or the recognition of specific usual and accustomed places shall cooperate in allowing the matter of final determination of such matters to be made promptly and as rapidly as the court calendar and the interests of justice permit.
3. Any of the parties may invoke the continuing jurisdiction of this court in order to determine:
a. The procedure and/or method for adopting management principles with respect to any particular species of nonanadromous fish or shellfish;
b. The species taken at treaty times, where (usual and accustomed grounds), and by what tribes (who are entitled to exercise treaty entitlement);
c. Questions of allocation between plaintiff tribes and non-Indian fishermen of the harvestable portion of the specific species on nonanadromous fish or shellfish;
d. A timetable for the taking of evidence regarding any particular nonanadromous species or shellfish; and
e. Such other matters as the court may deem appropriate. ORDER DIRECTING PROMPT NOTICE TO FISHERIES TECHNICAL ADVISOR WHEN FISHERY PROBLEMS ARISE
There appears to be some lack of prompt and meaningful communication on problem matters between the counsel for the parties. Whether due to oversight, inadvertence or otherwise the result hampers and sometimes precludes bona fide efforts to promptly reach solutions acceptable to all concerned. As the Fisheries Science and Management Expert appointed by the court, Dr. Richard R. Whitney is now well known to all counsel and most parties in the case and in all matters within his competence he should be able to improve the timeliness and extent of genuine discussion on most fishing problems that may arise. Therefore, the court has requested and Dr. Whitney has agreed that he will act for the court in bringing about, by informal or informal means, earlier and better discussion between interested parties and counsel on fishery problems soon after they arise.
Accordingly, whenever a fishery problem arises that might lead to emergency closure or opening, or to the filing of a motion or petition either with the court or the Master before any action is taken with respect to such matters the interested party or parties, acting through their counsel, are hereby directed to report the matter informally to Dr. Whitney as soon as the matter comes to their attention. A failure to do so will preclude hearing of the matter by either the Master or the court, unless a clear showing is made of exceptional circumstances preventing Dr. Whitney from promptly discussing the problem with interested parties and their counsel, or if the emergency is so urgent as to require immediate action.
DECISION RE QUINAULT FISHERY OUTSIDE THE CASE AREA
1. Grays Harbor and its watershed, including the Humptulips River, are outside the case area of this litigation. (See Final Decision # 1, p. 1 and C.L. # 7; 384 F. Supp. at 328 and 400).
2. The Quinault Tribe has usual and accustomed fishing places in Grays Harbor and its watershed, including the Humptulips River. (See F.F. # 121, 384 F. Supp. at 374-375).
3. The decision, decree and orders of this court heretofore entered do not prohibit members of the Quinault Tribe from exercising treaty fishing rights at usual and accustomed grounds and stations outside the case area.
First and Second Supplemental Findings of Fact
(December 31, 1974; February 26, 1975)
The intervenor Swinomish Indian Tribal Community is the present-day tribal entity which, with respect to the matters that are the subject of this litigation, is a political successor in interest to certain tribes and bands and groups of Indians which were parties to the Treaty of Point Elliott, 12 Stat. 927. It is recognized by the United States as a currently functioning Indian tribe maintaining a tribal government on the Swinomish Indian Reservation in Skagit County, Washington. The reservation was established pursuant to said treaty by Executive Order of January 9, 1873. The Swinomish Indian Tribal Community is organized pursuant to section 16 of the Indian Reorganization Act of June 18, 1934, 48 Stat. 987, 25 U.S.C. § 476. Its membership is determined in accordance with its Constitution and Bylaws approved by the Acting Secretary of the Interior on January 27, 1936. It does not have a current federally approved tribal membership roll but it has a current membership of approximately 313 persons.
255. The intervenor Tulalip Tribes of Washington is the present-day tribal entity which, with respect to the matters that are the subject of this litigation, is a political successor in interest to certain tribes, bands or groups of Indians which were parties to the Treaty of Point Elliott. This tribe is recognized by the United States as a currently functioning Indian tribe maintaining a tribal government on the Tulalip Indian Reservation in Snohomish County, Washington. The Tulalip Reservation was established, pursuant to said treaty, by Executive Order of December 23, 1873. The tribe is organized pursuant to section 16 of the Indian Reorganization Act of June 18, 1934, 48 Stat. 987, 25 U.S.C. § 476. Its membership is determined in accordance with its Constitution and Bylaws approved by the Acting Secretary of the Interior on January 24, 1936. It has a base roll as of January 1, 1935, approved by a representative of the Secretary of the Interior on February 1, 1965, which has been maintained and kept current by the tribe since that date. The tribe presently has approximately 1077 enrolled members.
256. The intervenor Port Gamble Band of Clallam Indians is the present-day tribal entity which, with respect to the matters that are the subject of this litigation, is a political successor in interest to certain tribes, bands or groups of Indians which were parties to the Treaty of Point No Point, 12 Stat. 933. This tribe is recognized by the United States as a currently functioning Indian tribe maintaining a tribal government on the Port Gamble Indian Reservation in Kitsap County, Washington, under its official name Port Gamble Indian Community. It is organized pursuant to section 16 of the Indian Reorganization Act of June 18, 1934, 48 Stat. 986, 25 U.S.C. § 476. Land upon which the reservation is located was purchased by the United States in the 1930's under authority of said Indian Reorganization Act and was proclaimed as an Indian Reservation pursuant to section 7 of that act, 25 U.S.C. § 467, by the Secretary of the Interior on June 16, 1938. Membership of the tribe is determined in accordance with its Constitution and Bylaws approved by an Assistant Secretary of the Interior on September 7, 1939. The intervenor Port Gamble Indian Community has a current federally-approved membership roll, approved August 22, 1974, and supplemental rolls approved September 3, 1974, and October 15, 1974, and presently has approximately 388 members.
257. The intervenor Lower Elwha Band of Clallam Indians is the present-day tribal entity which, with respect to the matters that are the subject of this litigation, is a political successor in interest to certain tribes, bands or groups of Indians which were parties to the Treaty of Point No Point. This tribe is recognized by the United States as a currently functioning Indian tribe maintaining a tribal government on the Lower Elwha Indian Reservation in Clallam County, Washington under its official name Lower Elwha Tribal Community. The tribe is organized pursuant to section 16 of the Indian Reorganization Act of June 18, 1934, 48 Stat. 987, 25 U.S.C. § 476. Land for the reservation was purchased by the United States in the 1930's under authority of said Indian Reorganization Act, and proclaimed as an Indian reservation pursuant to section 7 of said Act by the Secretary of the Interior on January 19, 1968. The tribe's membership is determined in accordance with its Constitution and Bylaws approved by an Assistant Secretary of the Interior on April 29, 1968. Its present membership roll was approved by a representative of the Secretary of the Interior on July 9, 1973. The tribe presently has approximately 311 enrolled members.
258. By Act of March 3, 1925, 43 Stat. 1102, Congress authorized $ 400,000 to be paid per capita to Clallam Indians upon an individual's relinquishment of "all claims of any nature against the United States under any treaty, agreement, or Act of Congress" and his acceptance of such payment "in full satisfaction of any and all claims whatsoever against the United States." Substantial numbers of Clallam Indians executed such written releases on behalf of themselves, their assigns, heirs and representatives and received such payments. Such claims settlement was made after the Clallam Indians had filed claims against the United States for nonfulfillment of promises said to have been made in connection with the Treaty of Point No Point, 12 Stat. 933 principally an alleged promise to establish a reservation for the Clallams in their home country. The written claim did not include denial of fishing rights by the United States.
259. The United States Department of the Interior has not construed or interpreted the said Act of March 3, 1925, or the releases executed pursuant thereto as repealing, modifying or restricting in any way the fishing rights of the Clallam Indians secured by the Treaty of Point No Point.
260. The intervenor Suquamish Indian Tribe was a party to the Treaty of Point Elliott. It is recognized by the United States as a currently functioning Indian tribe maintaining a tribal government on the Port Madison Indian Reservation in Kitsap County, Washington. The reservation was provided for the Suquamish Indians in Article II of the treaty and was enlarged by Secretary of the Interior Order of October 21, 1864. The Suquamish Tribe is organized under section 16 of the Indian Reorganization Act of June 18, 1934, 48 Stat. 987, 25 U.S.C. § 476. Its membership is determined in accordance with its Constitution and Bylaws approved by the Under Secretary of the Interior on July 2, 1965. It does not have a current federally approved membership roll, but it has a membership of 275 estimated as of July 1, 1972.
261. In negotiating the Treaty of Point Elliott, Governor Stevens designated four head chiefs and a larger number of subchiefs to represent and to give assent to and sign the treaty on behalf of all the Indians with whom he was treating. It was the treaty commission's intent to include the Nooksack Indians in the Point Elliott Treaty Council. Each of the four head chiefs was intended to represent the Indians of one of the major drainages of the area ceded by the Indians.
262. On January 16, 1855, six days before the Treaty of Point Elliott was signed, George Gibbs, a member and secretary of the treaty commission, recorded that a census of Indians at the treaty camp that date included 256 Nooksack. There was no evidence submitted that the Nooksack withdrew from the Council or refused to participate in the treaty.
263. No signator of the Treaty of Point Elliott is specifically identified thereon as having been a Nooksack Indian.
264. A Lummi Indian named Chow-its-hoot was designated as one of the four head chiefs and signed the treaty for "The Lummi and other tribes." On the basis of the evidence offered the court finds that the reference to "other tribes" includes the Nooksack Tribe.
266. The Nooksack Indians of 1855 were included in the Treaty of Point Elliott and the United States considered them bound to the treaty by Chow-its-hoot's signature on the treaty, and the provisions of Article V of the treaty were applicable to them.
267. The intervenor Nooksack Indian Tribe of Washington is the present day tribal entity which, with respect to the matters that are subject of this litigation, is a political successor in interest to the Nooksack Indians of 1855. 12 Stat. 927. It is recognized by the United States as a currently functioning Indian tribe maintaining a tribal government on the Nooksack Reservation in Whatcom County, Washington. The reservation was established pursuant to section 7 of the Indian Reorganization Act of June 18, 1934 (48 Stat. 986, 25 U.S.C. § 467) by proclamation of the Acting Secretary of the Interior dated March 22, 1973. The Nooksack Indian Tribe of Washington is organized pursuant to section 16 of said Indian Reorganization Act, 48 Stat. 987, 25 U.S.C. § 476. Its membership is determined in accordance with its Constitution and Bylaws approved by a representative of the Secretary of the Interior on September 24, 1973. It does not have a current federally-approved membership roll. Its present membership is about 371 persons.
Based on the foregoing findings of fact, the court makes the following:
First and Second Supplemental Conclusions of Law
49. The intervenors Swinomish Indian Tribal Community, Tulalip Tribes of Washington, Port Gamble Band of Clallam Indians, Lower Elwha Band of Clallam Indians and Suquamish Indian Tribe each hold a right under one or more of the treaties cited in paragraph 1 of the findings of fact of Final Decision # 1 to fish at usual and accustomed places outside of reservation boundaries.
50. Neither the Act of March 3, 1925, 43 Stat. 1102, nor the acceptance of any payment by individual Indians pursuant thereto constituted any repeal, relinquishment, modification or diminishment of fishing rights secured to the Clallam Indians by Article IV of the Treaty of Point No Point, 12 Stat. 933.
51. The Intervenor Nooksack Indian Tribe of Washington holds a right under the Treaty of Point Elliott to fish at usual and accustomed places outside of reservation boundaries.
52. Neither the Act of February 12, 1925, 43 Stat. 886, 887, nor the acceptance of any payment by individual Indians pursuant thereto, nor the decision of the Court of Claims in Dwamish, et al. v. United States, 79 Ct.Cl. 530 (1934), nor the decision of the Indian Claims Commission in Nooksack Tribe v. United States, 3 Ind.Cl.Comm. 479 (1955), constituted any repeal, relinquishment, modification or diminishment of fishing rights secured to the Nooksack Indian Tribe by Article V of the Treaty of Point Elliott, 12 Stat. 927.
At the conclusion of oral argument February 13, 1975, on the state's Objections to the Master's Report, the court indicated that it would briefly state in writing the reasons for overruling of the state's objections. The primary thrust of the state's position is that the decisions in Dwamish et al. v. United States, supra, and Nooksack Tribe of Indians v. United States, supra, are binding precedents denying treaty status to the Nooksack Tribe and collaterally estopping the Nooksack Tribe from asserting treaty fishing rights in the above-entitled cause.
(1) Was the issue decided in the prior adjudication identical with the one presented in the action in question?
(2) Was there a final judgment on the merits?
(3) Was the party against whom the plea is asserted a party or in privity with a party in the prior adjudication?
In dicta, the Washington State Supreme Court has recognized the trend toward elimination of the requirement of mutuality of parties in Henderson v. Bardahl Int'l. Corp., 72 Wash.2d 109, 115, 431 P.2d 961, 967-8 (1967), which added a fourth question with respect to collateral estoppel which must also be answered in the affirmative:
(4) Will the application of the doctrine not work an injustice on the party against whom the doctrine is to be applied?
Proceedings before the Court of Claims in Dwamish, and the Indian Claims Commission in Nooksack, dealt with compensation claims for tribal lands taken by the United States, and in no way dealt with asserted Indian treaty fishing rights. Certain historical and anthropological evidence presented for consideration of the Master in this case, which evidence was not rebutted by the defendant State of Washington, was not available to the Indian Claims Commission or to the Court of Claims in the earlier proceedings cited.
For these reasons, there is serious doubt whether the first criterion set forth above, that of identity of issues, is satisfied with respect to the current proceeding. Furthermore, with respect to the fourth criterion listed above, the court is satisfied that in these circumstances application of the doctrine of collateral estoppel may indeed work an injustice on the party against whom the doctrine is to be applied. Because the findings of the Master are not clearly erroneous, and are based upon substantial evidence clearly sufficient to establish a prima facie showing of treaty entitlement in the Nooksack Tribe, the court has approved the findings and conclusions proposed by the Master as set forth above and as supplemented by Conclusion of Law No. 52 above.
The absence of a determination that a specific fishing area is a usual and accustomed fishing place of a particular tribe shall not preclude the tribe or its members from exercising treaty fishing rights at such location if opened under a tribal regulation filed pursuant to paragraph 1 of the Interim Plan, subject to the state's authority to contest the location consistent with the
prior judgment and orders of this court. PRELIMINARY INJUNCTION AND MEMORANDUM DECISION RE GREEN RIVER STEELHEAD FISHERIES
(January 14 and 20, 1975)
The United States and the Muckleshoot Tribe filed motions for a preliminary injunction against the State of Washington, its Directors of Fisheries and Game and other officers and agents to prohibit them from basing their determination of numbers of "harvestable fish" for the purpose of complying with this court's decree and orders in this case on anything other than the total estimated run of free-swimming fish, including those resulting from wild runs as well as those resulting from hatchery or artificially propagated runs without first seeking and obtaining from this court a determination of their right to do so in accordance with the prior orders of this court. They asked for an injunction against enforcement of a purported "closure" of certain steelhead fisheries issued by the Game Department's attorney and against any interference with steelhead fishing by the Muckleshoot Tribe pursuant to its own tribal regulations.
The Muckleshoot Tribe also sought an order requiring the Department of Game to return to the tribe or its members any nets or other equipment or fish taken from them pursuant to such purported "closure."
The court hereby finds that:
1. Defendant Department of Game, its Director and officers, employees and agents, have attempted to interfere with, prevent and impede the fishing activities of the Muckleshoot Indian Tribe and its members at their usual and accustomed fishing places, and have seized and damaged property of said members, all in violation of the decree and orders of this court previously entered in this case.
2. Said defendant has not adopted or filed with this court any emergency or other regulation prohibiting or restricting such fishing by members of the Muckleshoot Tribe or any statement or finding of conservation need for such restriction.
3. Said defendant has announced and notified plaintiff tribes and this court of its intention to restrict Indian treaty-right harvest of fish by all plaintiff tribes fishing in accordance with the decision and orders of this court in this case, by excluding from the numbers of fish from which such harvest can be taken all artificially propagated steelhead, without first seeking or obtaining either the concurrence of the affected tribes of the approval of this court for such exclusion as required by the prior orders of this court.
4. Unless the defendant is enjoined from continuing to impose and enforce such restrictions in violation of the provisions of the prior orders or this court, the plaintiff tribes and their members will suffer irreparable injury.
IT IS HEREBY ORDERED that, except as necessary to comply with the judgment or orders of the state courts with reference to fishing by or under the authority of the Puyallup Tribe and its members that may be issued in the case of Department of Game v. Puyallup Tribe, Inc., No. 158069, Superior Court of the State of Washington in and for Pierce County, the defendant Department of Game, its Director and officers, agents, and those acting under its direction or control, are hereby restrained and enjoined from basing the determination of numbers of "harvestable fish" for the purposes of complying with the decree and orders of this court in this case on anything other than the total estimated runs of free-swimming fish, including those resulting from wild spawning and rearing and those resulting from hatchery or other artificial propagation or transplanting programs, without first seeking and obtaining from this court a determination of the right to do so in accordance with the prior orders of this court.
Said defendant and persons are further enjoined from enforcing the purported closure of the Green River commercial steelhead fishery as set out in a notice filed with this court dated December 31, 1974, signed by Assistant Attorney General James M. Johnson. Said defendant may close an Indian fishery pursuant to paragraph C of the Order for Program to Implement an Interim Plan only by the promulgation of an appropriate department regulation pursuant to previous orders of this court.
The Department of Game, its officers, agents and those acting under its direction or control, are hereby further ordered to return and make any restitution for loss or damage to any nets or other equipment or fish taken from Muckleshoot Indians subsequent to December 31, 1974, pursuant to said "closure" notice or any other closure that was not filed with this court in accordance with the prior orders of this court.
This injunction shall remain in effect until further order of this court made in connection with any request for determination filed pursuant to the prior orders of this court with respect to the exclusion or separate consideration of artificially propagated fish in determining the harvestable portion of fish to which treaty-right fishermen are entitled under the decree and orders of this court.
This memorandum decision further explains the court's reasons for issuing the foregoing preliminary injunction of January 14, 1975. The state's action in this matter is based upon applying the Pierce County Superior Court Memorandum Decision in Department of Game v. Puyallup Tribe, Inc., No. 158069, dated December 23, 1974 (hereinafter Puyallup III ) to litigants in this case. That decision is not yet final even in the superior court. However, even if it has become final as far as the superior court is concerned, that order is still subject to appeal to the state appellate courts. The adverse parties will undoubtedly appeal it.
To reiterate what this court has said previously (see Final Decision # 1, 384 F. Supp. at 344-345), this court has jurisdiction of the limited issue involved but has abstained from exercising it until the courts of this state, up to and including the final decision on appellate review by the Supreme Court or the highest court that acts on it, have had an opportunity to pass on it. Until then this court wants to allow the state judges to review the state trial court's decision. When the final decision that may be rendered in the state courts at the highest level is of record, this court will review it to see whether or not at that point it should exercise such jurisdiction as it has of the matter. But the state trial court decision in Puyallup III is not in effect as far as this case, United States v. Washington, is concerned, nor may the parties in this case act on the theory that it in any way supersedes the decision and judgment in this case until such time as the matter is finally determined in the state courts and this court has had an opportunity to consider whether to then exercise whatever jurisdiction it may have.
This court has heretofore abstained solely because the Puyallup case was one which was a state court case from its inception and was remanded by the Supreme Court of the United States back to the supreme court of the state, which court remanded it to the Pierce County Superior Court to hear and to determine the allocation of wild and propagated steelhead. That case is applicable only to the Puyallup Tribe and the Puyallup River and the places where the Puyallups fish and does not directly pertain to anything but steelhead.
The matter now before this court on this motion concerns fishing in an entirely different stream by different fishermen, and the Puyallup III decision does not have any effect whatever upon, or permit violation of, the rulings this court has made on this subject.
The present controversy involves the Department of Game's premature attempt to exclude all hatchery-propagated steelhead from the harvestable shares available to all treaty-right fishermen. Although this court has deferred trial of environmental issues in this case to a later time, and has abstained from ruling on the precise issue before the state court in Puyallup III, the prior decision, judgment, decree and other orders entered by this court have never recognized a distinction between natural and artificially propagated anadromous fish resources in determining the scope of treaty fishing rights. The following language from pages 2 and 3 of the declaratory judgment and decree, entered February 12, 1974, is pertinent:
"In addition and specifically for the purposes of interpreting all provisions of this decree, the following definitions shall be controlling:
"1. Anadromous fish: Any fish which Spawns or is artificially reproduced in freshwater, reaches mature size while rearing in saltwater and returns to freshwater to reproduce, and which spends any portion of its life cycle in waters within the Western District of Washington.
"2. Adequate production escapement: In an approximate number of Anadromous fish, that level of escapement from each fishery which will produce viable offspring in numbers to fully utilize All natural spawning grounds and propagation facilities reasonable and necessary for conservation of the resource, as defined in the Decision of the court.
Following issuance of the Pierce County Superior Court's memorandum decision, which held that Indians of the Puyallup Tribe fishing at their usual and accustomed places in the Puyallup River system (including saltwater approaches thereto) did not possess a treaty right to harvest hatchery-propagated steelhead, the Game Department notified this court and counsel by letter dated December 24, 1974, that it intended to revise the numbers of steelhead harvestable by treaty Indians to exclude hatchery fish. This action was not in compliance with the following provisions of this court's order of October 8, 1974, approving a Program for Implementing the Interim Plan:
"1. At least sixty (60) days prior to entry of a run into the first fishery subject to state control run-size predictions, numbers of harvestable fish set pursuant to paragraph # 17 of the injunction and information concerning run size, timing and condition requested by the tribes pursuant to paragraph 18 of the injunction and paragraph 7 of the Interim Plan and Stay Order shall be furnished by the state agencies.
"Until such time as predictions of steelhead run size are possible, Game shall determine the harvestable portion of the run in the best manner practicable After consulting with the plaintiffs to receive their suggestions. Such predictions relating to harvestable numbers of fish shall be subject to review if the tribes believe there is better information from another source. If the parties cannot agree on the best source the court shall make a determination through the Master in consultation with its Fisheries Technical Advisor. All predictions of harvestable numbers shall be further subject to review during the fishing season as additional information is obtained. " (Emphasis added) (p. 1035 Supra of this document).
Counsel for the Game Department thereafter filed with this court on January 2, 1975, a notice dated December 31, 1974, entitled "Closure of Green River Treaty Indian Commercial Steelhead Fishery" which purported to order a closure of Muckleshoot tribal commercial net fisheries for steelhead on the Green River. This action did not comply with paragraph 19 of the court's injunction entered March 22, 1974, which states as follows:
"19. In order to accommodate unforeseen circumstances as readily as possible, consistent with conservation necessity, defendants may utilize procedures for making emergency regulations affecting taking of fish under their jurisdiction and control; Provided that they shall adhere in every respect to the requirements of the Washington State Administrative Procedures Act and the regulations under it, and that the approval of such emergency regulations by this court where otherwise required by Final Decision # 1 and this injunction or the consent of all affected tribes has been obtained; Provided, however, that Emergency regulations are enforceable by the state upon filing with the tribes affected (or their counsel of record, if any) a copy of such regulations and a statement of facts and circumstances of the emergency on which the regulation is based. Any such tribe may respond and seek immediate court review. Requests for emergency consideration by this court will be given priority and determined speedily." (Emphasis added) (384 F. Supp. at 417).
It should be emphasized that these unauthorized activities by the Game Department, its Director, officers and agents, occurred despite the fact that procedures exist for proper and prompt presentation of such controversies to this court. For example, paragraph 25 of the injunction of March 22, 1974 (384 F. Supp. at 419), establishes the following procedure pursuant to this court's continuing jurisdiction:
"25. The parties or any of them may invoke the continuing jurisdiction of this court in order to determine:
"a. whether or not the actions, intended or effected by any party (including the party seeking a determination) are in conformity with Final Decision # 1 or this injunction;
"d. disputes concerning the subject matter of this case which the parties have been unable to resolve among themselves;
"In order to invoke such jurisdiction, the party shall file with the clerk of this court and serve upon all other parties (through their counsel of record, if any) a "Request for Determination' setting forth the factual nature of the request and any legal authorities and argument which may assist the court, along with a statement that unsuccessful efforts have been made by the parties to resolve the matter, whether a hearing is required, and any factors which bear on the urgency of the request. Any party shall have an opportunity to respond to, join in, or supplement the request within seven days of its service or such other time as may be directed by the court. The court may then decide the matter, hold a hearing, or refer the request to the special master to hear evidence and legal argument, as soon as practicable.
Counsel for the Game Department and counsel for amicus curiae Northwest Steelheaders have urged that this court give full faith and credit and apply collateral estoppel to the state court decision in Puyallup III, and thereby hold that all plaintiff tribes in the case area possess no treaty rights to harvest hatchery fish. Neither the law nor the factual setting presented justifies such a result. Initially, it must be recognized that the state court decision in Puyallup III is a "Memorandum Decision," that findings of fact, conclusions of law and a decree have not yet been entered and that, therefore, the state court's determination is neither a final decision nor judgment at this time. In that case, even a final judgment by the Pierce County Superior Court must be limited to consideration of the Puyallup Indian fisheries on the Puyallup River system vis-a-vis the state hatchery program for steelhead released into that river system. In addition, none of the plaintiffs in this case, other than the Puyallup Tribe, is a party to or in privity with a party to, the state court case. Also, it is possible that the issue before the state court and the issues to be brought before this court concerning the possible relationship between environmental factors and artificial propagation may not be identical. For these reasons, this court foresees serious questions as to whether the full faith and credit and collateral estoppel doctrines, even if properly applicable, would in any way affect the jurisdiction of this court, except as to the Puyallup Tribe and the Game Department solely with respect to hatchery-propagated steelhead in the Puyallup River System. See Bernhard v. Bank of America Nat'l. Trust & Sav. Ass'n., 19 Cal.2d 807, 122 P.2d 892 (1942); Henderson v. Bardahl Int'l. Corp., 72 Wash.2d 109, 431 P.2d 961 (1967).
However, this court expresses no views as to the merits of the state court decision at this time, having expressly abstained and reserved ruling on the matters before that court, but recognizes that interpretation of federal treaty provisions is a federal question which can only be finally determined by the federal courts. Nevertheless, the preliminary injunction issued January 14, 1975, expressly excludes from its coverage any action taken by the Department of Game, its Director, officers and agents "necessary to comply with the judgment or orders of the state courts with reference to fishing by or under the authority of the Puyallup Tribe and its members that may be issued in (Puyallup III )."
By agreement of counsel, the motions of plaintiffs to include the State of Washington and Department of Fisheries within the coverage of that injunction shall remain under advisement by the court until such time as the motion may be noted for hearing.
MEMORANDUM DECISION AND ORDERS RE NISQUALLY RIVER FISHERIES
(February 14 and 26, 1975)
This memorandum decision details the bases for the court's denial of a preliminary injunction against certain on-reservation fishing by the Nisqually Indian Tribe and provides guidance to all parties in future comparable situations. The court FINDS AND ORDERS AS FOLLOWS:
1. This court will not, in the exercise of its continuing jurisdiction in this case, entertain any application for interference with on-reservation treaty-right Indian fishing, excepting only
(a) when it is clearly established that a critical emergency exists which threatens to reduce or destroy a given run of fish, or
(b) when necessary to assure adherence to the opportunity for fair sharing of harvestable fish by both treaty and nontreaty fishermen.
2. The decision of this court, among other things, established the concept of "equal sharing" of the opportunity to harvest the fish resources which was intended to be a guiding principle for Indians and non-Indians alike. Just as the defendant state agencies are in general required to limit nontreaty-right fishermen to a catch of 50% Of the harvestable portion of fish runs, exclusive of on-reservation catch, the plaintiff tribes in their off-reservation fisheries are required to limit the catch of their members to 50% Of the off-reservation harvestable portion of the runs and to allow for the opportunity of nontreaty-right fishermen to harvest the remainder, except in unusual circumstances spelled out in the Interim Plan. The on-reservation catch does not need to be shared with non-Indians but does need to be subtracted from the harvestable number.
In the particular instance presented on the Nisqually River (for the 1974-75 winter steelhead run) the Nisqually fishermen chose to conduct a substantial fishery off-reservation, apparently without giving sufficient consideration to the effect this would have on the necessity to allow sport fishermen the opportunity to catch a number of steelhead approximately equal to the Indian off-reservation catch. Although establishment of guidelines to be applied in such a situation is desirable, the court and counsel have not had sufficient opportunity to consider all possibilities. In some instances a reservation may occupy a sufficient area on a stream that the runs of fish appropriately might be so identified with the tribe that they might be entitled to 100% Of the harvestable number. On the other hand, the Nisqually Reservation is upstream in a situation where it clearly seems proper that runs of migratory fish should be shared with non-treaty citizens. The problem is to determine an appropriate formula.
The court is of the opinion that for the 1974-75 winter steelhead run the best estimate of catch assignable to on-reservation fishing can be derived by utilizing the present estimate of 6,630 as the total harvestable number of steelhead and subtracting the best assignable estimate of the shares to be taken off-reservation by sport fishermen and Indians. The court finds that the best estimate assignable to all off-reservation fishing is the average number of steelhead taken by sport fishermen prior to the 1969-73 period, or 3,700 fish. Thus, the off-reservation Indian share of the 1974-75 runs is 1,850 steelhead and the sport fishing share is also 1,850 steelhead. Subtracting the 3,700 fish to be taken off-reservation from the total harvestable number leaves 2,930 fish to be taken by Nisqually fishermen on-reservation and for subsistence and ceremonial purposes. The total Indian share would therefore be 4,780 steelhead. In the future, as run size estimates may develop and revisions may be made in the harvestable number, the court would assign approximately 44% Of the harvestable number of steelhead to the on-reservation catch. The remainder of the harvestable number will be shared equally with sport fishermen. The court will expect these 44% Actually to be taken on-reservation in future years, with minor latitude as required for practical purposes.
In future years, the court expects the Nisqually tribal fishing regulations to establish a catch ceiling for steelhead caught on-reservation which will not be more than 44%, and a catch ceiling for the off-reservation fishery amounting to
not more than 50% Of the remainder. ORDERS RE HERRING FISHERIES AND DETERMINATION OF USUAL AND ACCUSTOMED FISHING PLACES OF ADDITIONAL TRIBES
(March 28, 1975, and April 18, 1975)
The defendants Department of Fisheries and Department of Game have filed a Request for Determination re Nonanadromous Fish and certain tribes have filed Requests for Determination of Right to Engage in Herring and/or Herring Roe Fisheries. The court makes the following determinations:
The subject matter of the original trial in this action was limited to off-reservation treaty Indian fishing rights in the case area and the application of said rights to anadromous fish resources. (See FPTO § 5 and C.L. # 7, 384 F. Supp. at 400).
The court has, however, expressly retained continuing jurisdiction to assure implementation of the court's rulings and to deal with environmental issues and other relevant matters. (See 384 F. Supp. at 347 and C.L. # 48, 384 F. Supp. at 405). Issues relating to fishing outside of the case area, on-reservation fishing, or nonanadromous fishing are clearly within the subject matter jurisdiction of this federal district court (See F.F. # 11 and C.L. # 21, 384 F. Supp. at 352 and 401) so that that litigation with respect to such issues could clearly be brought before this court in separate actions. However, equity favors prevention of a multiplicity of actions, Camp v. Boyd, 229 U.S. 530, 33 S. Ct. 785, 57 L. Ed. 1317 (1913), and in the opinion of this court, proper exercise of its jurisdiction permits, and efficient administration of justice requires, this court to deal with matters related to, but not included within, Final Decision # 1 such as possible treaty-right nonanadromous fishing.
The court, having thoroughly considered all of the pleadings, testimony, evidence, memoranda and oral arguments, HEREBY FINDS, ORDERS AND DECREES AS FOLLOWS:
1. The Intervenor-plaintiff Upper Skagit Tribe's oral motion to withdraw, without prejudice to its subsequent resubmission, its Request for Determination as to its treaty entitlement to fish for herring, to which motion no objection was made, is granted.
2. The Intervenor-plaintiffs Lower Elwha Tribe, Lummi Tribe, Muckleshoot Tribe, Nisqually Tribe, Nooksack Tribe, Port Gamble Band of Clallam, Puyallup Tribe, Skokomish Tribe, Squaxin Island Tribe, Suquamish Tribe and Swinomish Tribal Community have each made a prima facie showing, on the basis of evidence that was not controverted, of their treaty-secured right to take herring at their respective usual and accustomed fishing places and it is HEREBY DECREED, subject to reconsideration as specified in paragraph 8 hereof that each of said tribes has the right under such of the treaties referred to in Final Decision # 1 in this case as have heretofore been held to apply to said tribe, to take herring at all of its usual and accustomed fishing places to the same extent and subject to the same terms and conditions as specified in Final Decision # 1 with respect to the right of taking anadromous fish and subject further to the provisions of paragraph 7 below.
3. The usual and accustomed fishing places of the Lower Elwha Tribe include all of the streams draining into the Strait of Juan de Fuca from the Hoko River east to the mouth of Hood Canal and the waters of the Strait of Juan de Fuca.
4. The usual and accustomed fishing places of the Nooksack Tribe include the Nooksack River and its tributaries, Bellingham Bay, Chuckanut Bay, Birch Bay, Semiahmoo Bay and Semiahmoo Spit and surrounding marine waters.
5. The usual and accustomed fishing places of the Suquamish Tribe include the marine waters of Puget Sound from the northern tip of Vashon Island to the Fraser River including Haro and Rosario Straits, the streams draining into the western side of this portion of Puget Sound and also Hood Canal.
6. The usual and accustomed fishing places of the Swinomish Tribal Community include the Skagit River and its tributaries, the Samish River and its tributaries and the marine areas of northern Puget Sound from the Fraser River south to and including Whidbey, Camano, Fidalgo, Guemes, Samish, Cypress and the San Juan Islands, and including Bellingham Bay and Hale Passage adjacent to Lummi Island.
7. Although Indians from several Puget Sound area tribes, including specifically those which were predecessors in interest to the Swinomish Tribal Community, regularly and customarily used Hale Passage adjacent to Lummi Island for travel and fishing before, during and after treaty times, said Passage was an area over which the Lummi Tribe exercised and was acknowledged by many others to have primary control as regards fishing or other resource gathering and occupancy. Prior to the hearing in this case the Lummi, Nooksack and Suquamish Tribes without relinquishing any claims to fishing locations, agreed for the present time to resolve any differences on this matter among themselves and not to request a court determination as to their relationship with each other in this area. As to the Swinomish Tribal Community, the court finds that its treaty-right fishing in said Hale Passage is subject to the permission of the Lummi Tribe.
8. The findings and determinations made in paragraphs 2 through 7 above are made on the basis of a prima facie showing as heretofore provided and each is subject to reconsideration on the basis of a full evidentiary hearing if requested by any party by written request filed on or before May 19, 1975. If no such reconsideration is requested within said time as to any such finding or determination, the latter shall become final and reviewable as provided by 28 U.S.C. §§ 1291 and 2201 without further order of this court.
9. The treaty tribes found by this court to be entitled to participate in the herring sac-roe fishery in northern Puget Sound waters on the one hand, and the nontreaty fishermen entitled to participate in said fishery pursuant to state law on the other hand, are each entitled to take 50% Of the off-reservation harvestable amount of herring.
(The March 29 and April 18, 1975, orders also contained provisions applicable to the conduct the 1975 herring fisheries. These are omitted here in view of the subsequent approval of an interim plan for management of future herring
fisheries. P. 1063 Infra ). DECISION AND DECREE RE 1975 FRASER RIVER SOCKEYE AND PINK SALMON HARVEST (FOURTH SUPPLEMENTAL FINDINGS OF FACT AND CONCLUSIONS OF LAW)
(Order of July 16, 1975, as modified and supplemented August 6, 1975)
As used in findings Nos. 271 through 284 and Conclusions of Law Nos. 55 through 66, Infra, the terms
"Convention" means the Convention for the Protection, Preservation and Extension of the Sockeye Salmon Fisheries of the Fraser River System, entered into by the United States and Canada and signed at Washington on the 26th day of May, 1930 (50 Stat. 1355; TS 918), as amended by the Pink Salmon Protocol signed at Ottawa on the 28th day of December 1956 (8 UST 1057; TIAS 3867) (Ex. USA-79; USA-80).
"Commission" means the International Pacific Salmon Fisheries Commission (IPSFC) established pursuant to the Convention.
"Convention Waters" means those waters described in sections 1, 2 and 3 of Article I of the Convention of May 26, 1930.
"U.S. Convention Waters" means those Convention Waters located in, or under the fisheries regulatory control, of the United States.
"Period of Commission control" means, with respect to any portion of U.S. Convention Waters, the 1975 period that such portion is under the regulatory control of the Commission. As of the date of this Order said period is from June 26, 1975, to September 20, 1975, inclusive, for U.S. Convention Waters between the Bonilla-Tatoosh line and the Angeles Point-William Head line and from June 26, 1975, to September 27, 1975, for certain of those waters east of the latter line plus the period September 28, 1975, to October 11, 1975, inclusive, for an area near Point Roberts as described in the Commission's recommended regulations. (Ex. USA-77)
271. The Commission has adopted recommendations and the United States Government has approved those recommendations for restrictions on the commercial taking of sockeye and pink salmon in certain Convention Waters, including those comprising Washington Department of Fisheries Puget Sound Salmon Fishing Areas 1, 2, western portion of 3, and western portion of 8, as defined in WAC 220-47-201, WAC 220-47-202, WAC 220-47-203 and WAC 220-47-209 (Director of Fisheries Order No. 1210, June 26, 1975) during the 1975 period of Commission control. (Ex. JX-2a, Fig. 18, p. 254; Ex. USA-77). The Washington Director of Fisheries, after a public hearing, adopted regulations implementing the Commission's recommendations. (Ex. USA-78) Neither the Commission's recommended regulations nor the Director of Fisheries' regulations make any specific reference to or distinctive provisions for fishing by treaty Indians at their usual and accustomed fishing places.
272. In transmitting the Commission's 1975 recommendations to the Washington Director of Fisheries for implementation the United States Department of State, on behalf of the U.S. Government, advised the Director as follows:
"In this regard, the United States has reached an understanding with the Government of Canada which we believe will ensure sufficient flexibility in the Commission to accommodate domestic implementation of that decision. Specifically, should action to implement the decision, through means such as restrictions of fishing on certain U.S. fishing days to Indian fishermen, create a situation in which effort by the Indians as insufficient to permit the U.S. fishery to reach the catch goals set by the Commission, then the Commission could take action to remedy this imbalance by providing extra time to assure that the targets are reached. Thus, regulation by the State of Washington in conformity with the Boldt decision can be undertaken in a manner consistent with the overall obligations of the U.S. under the Convention." (Ex. USA-77)
273. The Commission takes the position that while it is aware that changes in units of gear and in fishing effort have occurred in different segments of the industry and that these changes sometimes affect individual catches, the Commission fulfills its responsibilities to assure proper spawning escapement and to divide the allowable catch in Convention Waters by considering the catches that are made, and not by setting the number of days of fishing in the abstract. The number of days allowed for fishing need not be, and often is not, the same for each country. The Commission has no jurisdiction over the numbers or types of gear that may be operated in Convention Waters. Jurisdiction over these matters rests with the respective national or state or provincial governments as matters of domestic law. (Ex. USA-89)
274. The best available estimates of the number of treaty Indian gear that are likely to be used in U.S. Convention Waters during the 1975 period of Commission control, as compiled by the Northwest Indian Fisheries Commission from treaty tribes having treaty-right usual and accustomed fishing places within those waters, are 65 large gillnet boats, 39 gillnet skiffs and 4 purse seine vessels. (Ex. USA-84)
275. In 1974 the number of units of United States gear landing sockeye during the period of Commission Control was 272 purse seine, 1140 gillnets and 54 reef nets. (Ex. USA-85)
276. The 1974 Fraser River sockeye run totalled 8.5 million fish and the Convention Waters catch was 5 million fish, of which U.S. fishermen caught 2,476,073 (Ex. USA-86) and Canadian fishermen caught 2,500,019. The Indian portion of the United States catch was 34,277 (Ex. USA-86). Pink salmon runs occur only in odd-numbered years. (Ex. USA-86)
277. The Commission presently forecasts a 1975 Convention Waters run of 5.5 million Fraser River sockeye.
278. A regulation by the State of Washington or its Director of Fisheries limiting fishing in U.S. Convention Waters to treaty Indians for at least one day per calendar week of the days on which fishing in such waters is authorized by the Commission during 1975 would not adversely affect the conservation of any species or run of fish under normal fishing patterns, deny non-Indians an opportunity to take up to 50% Of the harvestable fish available at the Indian treaty usual and accustomed fishing places, or adversely affect any obligation of the United States under the Convention with Canada. Such a regulation is appropriate "to approach more nearly an equal allocation of the opportunity to harvest fish at usual and accustomed grounds and stations" as required by Final Decision # 1 in this case, 384 F. Supp. at 344.
280. The Canadian Government has indicated that it will not consider it contrary to United States' obligations under the Convention if the State of Washington or its Director of Fisheries authorizes, during period of Commission control in 1975, a fishery in U.S. Convention Waters that is less extensive than the fishery authorized by the Commission, so long as such action has not been shown either to prevent the Commission from assuring a proper escapement to the spawning grounds of Fraser River sockeye and pink salmon, or to preclude an equal division of the harvestable catch as between Canada and the United States or to unduly burden the Government of Canada in fulfilling its obligations or realizing the benefits due its citizens under the Convention.
281. On or about July 10, 1975, the Director, Washington Department of Fisheries, contacted the United States Department of State, outlining four alternative proposals for action by the State of Washington, with respect to its fisheries under the jurisdiction of the Commission. The Director therein requested guidance as to whether any or all of these alternatives would be consistent with the obligations of the United States under the Convention. The State Department, by William L. Sullivan, Jr., after consultation with the Canadian Government, responded to the Director by cable on July 11, 1975, to the effect that the first alternative (extra days for treaty Indian fishermen) would be objectionable to the State Department; that the second alternative (restricting non-Indian fishing more than the Commission's regulations would otherwise require), would be acceptable thereto; that the third alternative (allowing all treaty Indians to fish with any gear whenever the Commission allowed fishing by any United States fisherman), was not objectionable in principle, although some technical changes in the Commission's regulations might be necessary; and that the State Department had no legal objection to the fourth alternative (closing down the United States' non-Indian fishery) although it might seem to violate the spirit of the Convention. (Ex. USA-90) Further, the State Department sent a subsequent telegram to the Director, State of Washington Department of Fisheries, stating that, at the present time, the State Department is opposed to the third alternative given existing Commission regulations, but not indicating that the State Department's lack of objection in principle thereto had been changed.
282. In light of the need to provide for Indian treaty fishing rights, and with regard to the management scheme of the Commission, of all of the alternatives presented to the court and practically available to this court at this time for meeting that need, the one which would cause the least disruption to the Commission's management scheme and to the non-Indian fishery and which would not violate the responsibilities of the United States under the Convention would be one allowing treaty Indians to fish with any gear whenever the Commission's regulations would allow fishing by any United States fishermen in Convention Waters.
283. It has not been clearly established that a violation of the responsibilities of the United States under the Convention would occur if the fishery management authorities of the treaty Indian tribes were to allow treaty Indian fishermen to fish with any gear whenever the Commission's regulations would allow fishing by any United States fishermen.
Conclusions of Law
55. The Sockeye Convention of May 26, 1930, between the United States and Canada, as amended by the Pink Salmon Protocol of December 28, 1956, does not require the State of Washington to open its fisheries in U.S. Convention Waters, or any portion thereof, to all Washington fishermen or any specific group or category of Washington fishermen during all or any portion of the times when the Commission-prescribed regulations authorize fishing in such waters. A Washington regulation prohibiting fishing by persons who are not treaty Indians during certain portions of the fishing time allowed by the Commission or in portions of the U.S. Convention Waters within which fishing is not prohibited by the Commission would not necessarily be in conflict with the Convention or the United States' obligation under the Convention.
56. The Convention does not confer any rights on Washington non-Indian fishermen to a greater share of fish taken in Washington waters than they would have under the earlier treaties of the United States with the Indians.
57. The State of Washington and its Director of Fisheries may, consistent with the United States' obligations under the Convention and the 1975 regulatory recommendations of the Commission approved by the United States, allow fishing only to treaty Indians during certain times or in certain areas authorized to be open to fishing by such approved regulatory recommendations so long as such action has not been shown either to prevent the Commission from assuring a proper escapement to the spawning grounds of Fraser River sockeye and pink salmon, or to preclude an equal division of the harvestable catch as between Canada and the United States or to unduly burden the government of Canada in fulfilling its obligations or realizing the benefits due its citizens under the Convention.
58. The management authorities of the various Indian treaty fishing tribes or the State of Washington may allow treaty Indian fishermen to fish in Convention Waters with any gear whenever the Commission's regulations would allow fishing by any United States fishermen.
59. The Director of Fisheries may allocate the fishing times authorized by the Commission for Washington waters that are under Commission control so as to fulfill as nearly as possible the twin objectives prescribed by the orders of this court of February 12, 1974, and March 22, 1974, of providing Indian treaty fishermen an opportunity to take up to 50% Of the U.S. share of the harvestable fish and of permitting a full U.S. harvest of said harvestable quota.
60. The temporary withdrawal by the United States of its approval under the Convention of those parts of the Commission regulations which seek to allocate the open fishing periods among various types of gear is a valid exercise of its rights and responsibilities under the Convention.
61. The Commission may prohibit all fishing within Convention Waters but Commission regulations do not preclude the state from allocating the time allowed United States fishermen among various user groups.
62. The Commission regulations, as approved by the United States, allow fishing time without regard to gear limitations.
64. Through federal preemption of state regulation of Indian fishing at treaty fishing grounds, this court has jurisdiction to suspend, modify or substitute state regulations.
65. The Washington Director of Fisheries has authority under state law to adopt regulations of the Commission and, under order of this court, to allocate the United States' share of Fraser River sockeye and pink salmon among user groups.
66. The adoption of regulations as required by order of this court of July 16, 1975, modified July 30, 1975, is a valid exercise of the authority delegated to the Director by the state legislature as limited by this court.
In accordance with Findings Nos. 271-284 and Conclusions of Law Nos. 55-66, it is HEREBY ORDERED, ADJUDGED AND DECREED as follows:
1. It is necessary for proper enforcement of state and tribal regulations that may be promulgated to carry out the orders of this court that the number and identity of boats and gear used in the treaty Indian fishery be known to state, tribal and federal enforcement authorities. Accordingly, no boat or fishing gear shall be used in the exercise of Indian treaty rights with respect to any fishery or in any area over which the International Pacific Salmon Fisheries Commission is exercising control until such boat or gear has been specifically registered with, and use in such fishery or area authorized by, the tribal authorities of the user's tribe and notice of such registration and authorization has been given by the tribal authorities to the Washington Department of Fisheries and the Regional Director of the National Marine Fisheries Service. Such offices shall also be immediately notified of the cancellation or suspension of any such registration or authorization. The registration and notice shall contain at least the following information: name and address of the owner and operator; type and name, if any, of the vessel; tribal identification number; type of gear to be used; and area or areas for which registered. No boat or unattended gear shall be used in the exercise of Indian treaty rights with respect to any fishery or in any area over which the Commission is exercising control unless there is affixed to it an identification tag, the style and type of which and the location at which affixed shall have been agreed to previously by the Director, Washington Department of Fisheries. Use of any vessel or gear in violation of this paragraph may be subject to the provisions of state law or regulation applicable to nontreaty fishermen.
2. The defendants State of Washington, Washington Department of Fisheries, and Donald W. Moos, its Director, are HEREBY ENJOINED from allowing any fishing, authorized by the 1975 regulations of the International Pacific Salmon Fisheries Commission by persons not entitled to exercise Indian treaty rights pursuant to the decrees of this court, until the Department of Fisheries adopts and files with this court regulations within the limitations required by the regulations of said Commission as they may from time to time be modified, and which conform with this court's orders that defendants must, to the extent consistent with permitting the full permissible total harvest, afford treaty Indians an opportunity to take an equal share of the total number of harvestable fish which, absent the fishing activities of other citizens, would be available for harvest at their usual and accustomed fishing grounds within Washington waters, or must otherwise equitably adjust the treaty Indians' share of other species or in other areas to compensate them for disproportionate numbers of fish taken by other Washington citizens under regulations issued by said Commission.
3. Said defendants are directed to file with this court and serve on the following participating tribes to wit, the Makah Tribe, Lower Elwha Band Clallam Tribe, Port Gamble Band Clallam Tribe, Suquamish Tribe, Lummi Tribe, Nooksack Tribe, the Swinomish Indian Tribal Community and Tulalip Tribes the United States and the United States Commissioners of the International Pacific Salmon Fisheries Commission, copies of such regulations by July 1, 1975 (sic) and to thereafter similarly file and serve within 24 hours after adoption any changes or supplementary regulations that may be adopted as a result of any modification to the Commission's regulations.
4. The treaty Indians' opportunity to take fish up to the share specified in Final Decision # 1 and the related orders of this court shall be taken into consideration in making any equitable adjustments or with respect to other fisheries subject to state regulatory control.
5. Regulatory restrictions prescribed by the Commission limit somewhat the latitude of means that will be available to the state and the tribes for achieving the allocation of fish in accordance with the Stevens treaties. This makes it particularly necessary that the tribes and the state regulatory agency retain and promptly exercise, when appropriate, the authority and capability to enact on an emergency basis, and place into immediate effect, subject to limitations prescribed by this court, additional openings or closures or other modifications to their respective regulations that in conjunction with the permissible regulations of the other parties and the applicable provisions of the Commission requirements will reasonably assure protection, proper harvest, and the allocation of, or compensatory adjustments from, the fishery resource within the state's total regulatory authority required by this and prior orders of this court in this case. Accordingly, this court retains continuing daily jurisdiction over the implementation of this order and decree. Any party hereto or any other person aggrieved by any action or failure to act on the part of another party pursuant to this decree shall bring the matter to this court for an appropriate order to implement the requirements of this decree. Consideration of such matters will be given on a highly expedited basis by the court, particularly if it develops that the Commission or the Canadian Government raises serious objection hereto, or if the effective implementation of the Commission's management responsibilities is hindered hereby. The Master is hereby authorized and directed, subject to the provisions of Rule 53, Federal Rules of Civil Procedure, to act upon any request for relief at any time that the undersigned judge is unavailable to give timely consideration to the request.
6. The court retains the authority to modify or terminate the provisions of these findings, conclusion and decree, and the order signed July 16, 1975, implementing such, either on its own initiative or on motion of any party, whenever it appears to the court that such change is necessary or appropriate to conform to the holding of Final Decision # 1 or comply with the obligations of the United States under the International Sockeye Convention and Pink Salmon
Protocol. PERMANENT INJUNCTION RE 1975 FRASER RIVER SOCKEYE AND PINK SALMON HARVEST
(Order of July 16, 1975, as modified July 30, 1975)
IT IS HEREBY ORDERED, AND ADJUDGED that the Director of the Washington Department of Fisheries shall promulgate appropriate regulations effective immediately to insure that Indian treaty fishermen may fish with any gear authorized by the State of Washington in all IPSFC Convention Waters when such
waters are open to fishing by any United States fishermen. INJUNCTION STAYING PROCEEDINGS RE 1975 IPSFC FISHERIES IN CAUSE NO. 52881 BEFORE THE SUPERIOR COURT FOR THURSTON COUNTY, STATE OF WASHINGTON; AND DENIAL OF DEFENDANTS' MOTIONS
The court having considered all evidence, briefs and oral argument of the parties hereby ORDERS as follows:
1. The court finds and concludes that it is necessary, in aid of this court's jurisdiction, and to protect and effectuate the judgment of this court securing rights guaranteed plaintiff Indian tribes by federal treaties, to stay and enjoin further proceedings in the Superior Court of the State of Washington for Thurston County in Purse Seine Vessel Owners Assoc., et al., v. Donald W. Moos, et al., (Cause No. 52881).
2. The injunction issued in said cause by the aforementioned superior court, dated July 23, 1975, and amended on August 1, 1975, is hereby stayed.
3. The aforementioned superior court is hereby enjoined, pursuant to 28 U.S.C. § 2283, from enforcing the injunction referred to in paragraph 2 above; and further proceedings in Cause No. 52881 are hereby stayed pending further order of this court.
4. This court hereby reaffirms its Findings of Fact, Conclusions of Law and Order of July 16, 1975, as amended on July 30 and August 6, 1975, and directs the State of Washington, its Department of Fisheries and the Director thereof, to repromulgate the regulations rescinded on August 1, 1975, by the Director of Fisheries by orders No. 1238 and No. 1239.
5. The motions of the defendant State of Washington for a further stay of this court's order and for certification of this court's order for expedited appeal
are hereby denied. PRELIMINARY INJUNCTION RE SWINOMISH INDIAN TRIBAL COMMUNITY CHINOOK FISHERY IN WEST BEACH AREA
(August 8, 1975, as corrected August 18, 1975)
On motion of the Swinomish Indian Tribal Community and after hearings the court FINDS, HOLDS AND ORDERS as follows:
The treaty between the United States and Canada relates to the regulation of fishing for sockeye and pink salmon. The Swinomish Indian Tribal Community should be allowed to fish for chinook under regulations which safeguard the sockeye and pink salmon escapement.
IT IS ORDERED AND ADJUDGED that the State of Washington is hereby enjoined from prohibiting the fishing for chinook salmon by Swinomish Indian Tribal Community fishermen in the West Beach area defined as that area lying easterly of a line from Deception Island to Lawson Reef to Partridge Point and westerly of Whidbey Island provided that such fishing shall be done by the use of nets with a minimum eight and one-quarter inch stretch mesh, using a ten-pound weight on a wet net, unless said fishing results in more than an incidental catch of sockeye or pink salmon, or closure is necessary for conservation of the chinook salmon, and
IT IS FURTHER ORDERED that Mr. Ronald Costello, fish biologist for the Swinomish Indian Tribal Community, constantly monitor the fishery and if the catch of sockeye or pink salmon exceeds 5% Of the catch to require closure of the fishery or report to the court, and
IT IS FURTHER ORDERED that the permanent injunction application be heard at
9:30 a.m., October 20, 1975. ORDER RE CONDITIONAL FISHING RIGHTS OF CERTAIN PLAINTIFF-INTERVENOR TRIBES
This matter having come on regularly for hearing on the motion of the Samish, Snohomish and Steilacoom Tribes, and the court having found that it would be in the best interests of all parties to enter an order granting those tribes, along with the Snoqualmie Tribe who joined in the above motion, a temporary treaty fishing right to be exercised only after the compliance with special terms and conditions which are set out below. The court further finds that the Duwamish Tribe has forfeited its right to such conditional fishery. Therefore,
IT IS HEREBY ORDERED THAT:
The Samish, Snohomish, Steilacoom and Snoqualmie Tribes may exercise the following special fishing rights:
1. The right to fish under state regulations at times and places open to all citizens without the requirement of purchasing a state fishing license or being subject to the Washington State limited entry law, RCW 75.28.450-485; and
2. The right to fish at the invitation and under the regulations of any Indian tribe already having established treaty fishing rights in this case.
It is further ORDERED that prior to exercising those fishing rights established above, the Samish, Snohomish, Steilacoom and Snoqualmie Tribes shall comply with the following special conditions:
a. Compile, certify and file a complete list of those tribal members who are eligible to exercise the temporary treaty fishing right and who will be exercising the fishing rights established above.
b. Provide for each member whose name appears on the above-described list an identification card which will contain a picture of the card holder, along with the name of the card holder's tribe, tribal identification number and certificate of the tribal chairman establishing that the card holder may exercise treaty fishing rights.
It is further provided that prior to exercising treaty fishing rights at the invitation of any tribe which has already established its treaty fishing rights the Samish, Snohomish, Steilacoom and Snoqualmie Tribes shall
b. File and serve on all parties a declaration from the tribe that while fishing under the regulations of an inviting tribe each tribal member shall submit to the full regulatory power and authority of the inviting tribe including the power of the inviting tribe to enforce all tribal regulations on a member of one of the above-named tribes who is fishing under the inviting tribe's regulations.
No fishing shall commence under the conditions set out above until the required documents and/or agreements have been filed with the court and served on all parties. In addition, this order shall become effective only upon certification by counsel to the Department of Fisheries that each person of the respective tribe possesses a tribal identification card and upon the service on the Department of Fisheries of copies of the respective identification cards.
Except as may be otherwise provided by subsequent order of this court, the provisions of this order shall cease to apply to each of the aforesaid tribes and its members at such times as the court enters an order with respect to determination of the treaty status of said tribe.
ORDER RE TULALIP TRIBES' USUAL AND ACCUSTOMED FISHING PLACES
(September 10, 1975, as amended October 15, & December 29, 1975)
Pursuant to paragraph 25 of the injunction of March 22, 1974 (384 F. Supp. at 419), the Tulalip Tribes of Washington filed a Request for Determination of their Usual and Accustomed Fishing Places.
The Tulalips request a determination of their usual and accustomed fishing places both as to marine and fresh waters and anadromous and nonanadromous fish. The following areas are claimed as usual and accustomed fishing grounds and stations:
(1) All marine waters of the State of Washington lying within the lands and waters ceded to the United States of America by Article I of the Treaty of Point Elliott.
(2) All fresh waters of the Stillaguamish and Snohomish River systems together with all tributaries thereof including but not limited to all fresh water lakes connected thereto and the Snoqualmie and Skykomish River systems.
(3) All marine waters of Puget Sound and of the Strait of Juan de Fuca lying within the territorial limits of the State of Washington and outside of those waters ceded to the United States of America by Article I of the Treaty of Point Elliott.
Additionally, the Tulalip Tribes seek a finding that certain of the claimed usual and accustomed fishing areas are their Exclusive fishing locations such that other tribes may be excluded or regulated.
The Stillaguamish Tribe objects to the Tulalip claims contending the latter have no usual and accustomed fishing grounds and stations on the Stillaguamish River or the northern portion of Port Susan. The Stillaguamish argue that under the current method of determining the usual and accustomed fishing places of a tribe entitled to treaty rights, no fishing places of the Stillaguamish should accrue to the Tulalips because of the small number of Indians of Stillaguamish descent presently enrolled as Tulalips. It is further argued that Stillaguamish Indians never settled on the Snohomish Reserve or the Tulalip Reservation in significant numbers for any substantial period of time. A grant of Stillaguamish fishing areas to the Tulalips, it is argued, cannot be sustained upon the minimal interaction between the two groups.
The Snohomish Tribe also objects to the Tulalip claims of exclusive fishing areas. It is argued that the Snohomish and Tulalips claim certain usual and accustomed fishing places, in common. Therefore a finding of exclusivity would either foreclose Snohomish claims or subject their fishing to Tulalip regulation.
An additional method of locating tribal fishing locations subsequent to entering into treaties was established in these proceedings, upon the credible testimony of tribal elders who speak from personal experience or data acquired from other sources. In the present case the testimony of Mrs. Harriett Shelton Dover regarding marine fishery areas of a tribal component of the Tulalip Tribes was substantially confirmed by the testimony of Dr. Barbara Lane. Where there is conflicting evidence or the testimony of tribal elders is the sole evidence of usual and accustomed fishing grounds and stations, counsel should make extra efforts to assure the court that such testimony is of sufficient accuracy to support findings of usual and accustomed fishing places or areas. A few examples of the court's concerns are the source(s) of the witnesses' information, the knowledgeability of the witnesses with respect to fishing places, means and methods, the identity of the user group(s) and the frequency of fishing activities. There are other similar considerations and the foregoing list is not exhaustive. The court does not mean to suggest that the testimony of any tribal member was knowingly exaggerated or erroneous; indeed, each of the witnesses was highly credible to the extent of his or her knowledge. The court's concern and objective is to act upon the most accurate and authoritative data concerning usual and accustomed fishing places that can be developed by thorough investigation and research.
Because the court was provided with copies of findings of fact supporting decisions of the Indian Claims Commission, a caveat concerning that source of information is appropriate. The primary purpose of those proceedings was for the establishment of aboriginal territories in order to base claims for compensation pursuant to 25 U.S.C. § 70a. That inquiry was not directed to determining fishing places but to prove land use and occupancy. In the present case, the findings of the Claims Commission of the Indian coastal and river villages, from which fishing activities may be presumed, coincide with the findings of Dr. Lane and the testimony of Mrs. Dover. Future utilization of Indian Claims Commission decisions and findings for the purpose of establishing usual and accustomed fishing places shall be given consideration consistent with the above stated limitations.
After fully considering the memoranda and argument of counsel as well as the testimony of Dr. Lane, Mrs. Dover and Mr. Williams, the court finds and holds as follows:
The Tulalip Tribes claim extensive marine areas as usual and accustomed fishing places. Notwithstanding the court's prior acknowledgement of the difficulty of proof, the Tulalips have the burden of producing evidence to support their broad claims. In view of their burden, the evidence adduced in this matter, and subject to the conditions enumerated hereafter, the following described areas are found to be usual and accustomed marine fishing areas of the Tulalip Tribes of Washington: Beginning at Admiralty Head on Whidbey Island and proceeding south, those waters described as Admiralty Bay and Admiralty Inlet, then southeasterly to include the remainder of Admiralty Inlet including Mutiny and Useless Bay, then northeasterly to include Possession Sound and Port Gardner Bay, then northwesterly to include the waters of Port Susan up to a line drawn true west of Kyak Point and Holmes Harbor and Saratoga Passage up to a line drawn true west of Camano on Camano Island.
The court is satisfied that the Indians who settled on the Snohomish Reserve and the Tulalip Reservation, and whose descendants comprise the numerical majority of the present Tulalip Tribes, were members of tribes known today as Snoqualmie, Snohomish and Skykomish. The following usual and accustomed fresh water fishing places of the foregoing tribes are for present purposes the usual and accustomed fishing places of the Tulalip Tribes, subject to the conditions below: the Snohomish River system including tributaries and fresh water lakes and the Snoqualmie and Skykomish River systems.
These findings of the Tulalip Tribes' usual and accustomed fishing places are provisional until further order of the court. The court will entertain future argument and receive further evidence, from any affected party, going to possible expansion or limitation of these provisional findings and whether the findings should be made permanent. Ruling on the Tulalip Tribes' claims of exclusive fishing areas is reserved pending receipt of further evidence and argument. These provisional findings shall have no application whatsoever upon claimed usual and accustomed fishing places by the Duwamish, Samish, Snohomish, Snoqualmie and Steilacoom tribes.
STIPULATION RE NOTICE OF REGULATIONS
The Puyallup Tribe has requested a determination of the requirements for adequate notice prior to state enforcement of state regulations against treaty Indian fishermen. In resolution thereof the court hereby approves a stipulation of the Department of Fisheries, the Department of Game and certain plaintiffs in which it is agreed that notice of emergency regulations promulgated by said departments may be served on the tribes by first-class mail addressed to the most recent tribal address filed with the Department of Fisheries or Game, as the case may be, or by personal service on the tribal chairman or other designated tribal representative; Provided, that no enforcement action shall be undertaken against a tribal fisherman until (a) 24 hours after such regulation has been filed with the court and delivered to the home or office of the designated tribal representative either in person or by reasonably anticipated mail or other receipt during normal office hours, or (b) the fisherman has been given personal notice of the regulation and an
opportunity to desist from further noncompliance after such notice. DECISION RE CERTAIN ON-RESERVATION FISHERIES OF PUYALLUP AND NISQUALLY TRIBES
(October 21, 1975)
The following finding of fact is made in this action:
No. 285. The on-reservation fisheries of the Puyallup and Nisqually Tribes for pink and chinook salmon involve runs which are subject to the decrees of this court in this case because they are the subject of treaty provisions securing to these and other Indian tribes the right of taking fish at off-reservation locations in common with others. These fish are subject to Indian and non-Indian fisheries both before and after they pass through the reservations. Thus, on-reservation and off-reservation fisheries on these runs are interrelated and the preservation of such runs can be affected by the extent of both on- and off-reservation fishing on them.
The following conclusions of Law are made in this action:
No. 67. The State of Washington has no jurisdiction to restrict or regulate fishing by Puyallup or Nisqually Indians within the exterior boundaries of their reservations.
The finding of fact and conclusions of law set forth in the previous paragraphs are hereby certified as final determinations for the purposes of
appeal pursuant to 28 U.S.C. § 1291. ORDERS ESTABLISHING FISHERIES ADVISORY BOARD AND PRESCRIBING PROCEDURES FOR STATE EMERGENCY REGULATIONS
(October 28, 1975, as amended and supplemented December 17, 1976)
In order to promote the goals established in Final Decision # 1 increased communication between the parties (384 F. Supp. at 329-330) and consultation before tribal or state regulations affecting treaty fishing are adopted (384 F. Supp. at 341, 420) and to establish a more orderly procedure for making day-to-day management decisions, thereby reducing the need for adversary proceedings,
IT IS HEREBY ORDERED THAT
1. Establishment and Composition of Fisheries Advisory Board.
1.1 There is established a Fisheries Advisory Board composed of two members selected as follows:
(a) One member selected by the State of Washington and the defendant agencies.
(b) One member selected by the Treaty Indian tribes.
1.2 There shall be in addition a nonvoting chairman whose function shall be to convene meetings, act as moderator, and perform such other duties as are provided herein, or agreed to by the parties, or directed by the court. Dr. Richard Whitney, the court's technical advisor, shall serve as chairman.
1.3 The state and the tribes are responsible for selecting their representatives and shall promptly inform the chairman of any changes or substitutes appointed by either the state or the tribes. The representatives shall serve as the members of the Fisheries Advisory Board until the chairman is notified by either the Northwest Indian Fisheries Commission or the state of the selection of new or alternative representatives.
2. Jurisdiction and Authority of the Board.
2.1 Submission to Board. The Board shall consider only those matters relating to the fishery resource that are submitted to it by the court or any party. The Board shall advise the court on technical aspects of the case and make recommendations on questions of management and regulation of the resource.
2.2 Committee Reports. The Board members, upon agreement, shall have the authority to appoint temporary committees to study particular matters submitted to the Board for which more information is needed. A committee shall have only those powers delegated to it by the Board members and shall report back to the Board by a date certain. Committee reports are not binding on any party or Board member and need not be filed with the court but shall be given to any party upon request. The Board may adopt such other and further procedures as are acceptable to the parties.
2.3 Right to Judicial Determination of Matters. Nothing in this order shall affect the right of any party to judicial determination of any matter within the court's continuing jurisdiction, as specified in previous orders of the court, provided that if the matter is within the Board's jurisdiction, it has first been submitted to the Board for consideration and an aggrieved party seeks review of the Board's determination or the Board has been unable to reach agreement. If the matter for determination is of such an emergency nature that delay would threaten serious harm to the resource, then submission to the Board shall not be required prior to submission to the court.
3.1 The Board shall convene at the request of a member or any party or the court. The chairman shall give to all parties, amici, the Northwest Indian Fish Commission and the members of the Board such notice of a Board meeting as is practicable, taking into account the urgency of the matters to be considered. Provided, however, that any party directly affected by the matters to be considered shall be given actual notice within such time as is reasonable in the then existing circumstances. Any party may object to the jurisdiction of the Board to hear any matter referred to it. In such a case the Board shall take no action until the court has determined that the Board has jurisdiction to hear the matter.
3.2 The chairman shall preside over meetings of the Board. The chairman shall briefly state the matter to be considered and then call upon the Board member or party referring the matter to the Board to make a presentation concerning it. In any proceeding, an affected party may be represented by the person of the party's choice. Any party may call witnesses to give testimony in the nature of evidence before the Board. No person shall have a right to give testimony before the Board unless called as a witness by an affected party, a Board member or the chairman. Board members may participate in questioning witnesses and the representative of the parties. Proceedings shall not be under oath but any portion thereof may be recorded at the request of any party. The chairman may make whatever rulings deemed reasonably necessary in terms of limiting the number of participants and the length of time allowed to each participant. Meetings shall be open to attendance by any person or group.
To aid in an orderly procedure, any party requesting a meeting of the Board shall attempt to advise the chairman as soon as possible as to the nature of the party's presentation, including the number of participants, time needed, etc.
3.3 The Board chairman or member designated by a majority of the Board shall prepare a written report of the Board's proceedings after each meeting which shall be filed with the court and served on all parties and amici. The report shall be limited to a summary of what transpired at a Board meeting, and shall include whenever applicable an exact statement of any agreements reached by the participants.
3.4 The court's technical advisor shall, upon the request of the court, or any party, report to the court and all parties, his analysis of the matters discussed in the Board meeting and recommendations, if any. Whenever practicable said analysis and recommendations shall be provided to all parties and the court in writing prior to a hearing.
3.5 The Board shall establish such other and further procedures for its deliberations as it deems advisable and shall include a description of such procedures in its reports to the court and parties.
4. Procedures for Promulgation and Enforcement of State Conservation Regulations.
4.1 The state shall retain the responsibility for conservation closures.
4.2 This section 4 is intended to further define paragraph 19 of the injunction of March 22, 1974 (384 F. Supp. at 417), which requires: "a statement of facts and circumstances of the emergency on which the regulation is based."
4.3 No state conservation regulation which would close or limit an off-reservation treaty fishery which is open pursuant to tribal regulation shall be enforceable unless adopted pursuant to the requirements of this section 4; Provided, the state may apply directly to the court for enforcement of an emergency conservation regulation that is adopted without following the procedures specified herein. Any state emergency conservation regulation which complies with the procedures of this section, or is specifically approved by the court, may be enforced by the state.
4.4.1 Each tribe that desires to be governed by the notice procedures and requirements contained in paragraphs 4.5 and 4.6 shall contribute to a central 24-hour telephone service to receive notice by the state of any proposed emergency conservation closure.
4.5 At least forty-eight (48) hours prior to the effective date of any state emergency conservation regulation which would affect off-reservation treaty fishing, the state shall:
4.5.1 Request that the Fisheries Advisory Board convene to study the need for such regulation.
4.5.2 Serve on all affected tribes copies of any emergency regulation along with a statement of the basis of the alleged emergency and supporting data that would justify the proposed emergency conservation regulation.
4.6 The Fisheries Advisory Board shall convene, if desired by any party, at least twenty-four (24) hours prior to the effective date of the proposed state emergency conservation regulation and shall consider the propriety of the proposed regulation(s).
4.6.1 The state shall present to the Board all data supporting the state's proposed regulation with an explanation of the relevancy of such data.
4.6.2 Any affected party may present additional data or explanation thereof intended to rebut or support the state's presentation.
4.6.3 Whenever possible the Board shall convene so as to facilitate oral presentation of all relevant data.
4.7 Reports of any Board recommendation shall be prepared consistent with paragraph 3.3 of these procedures.
4.8 Any affected party may seek immediate court review. Request for emergency consideration by the court will be give priority.
This order does not apply to self-regulating tribes except where made applicable to them by Final Decision # 1, and previous orders of this court; Provided, that by agreement between any self-regulating tribe and a state defendant, the procedures set out in this order may be invoked to provide a hearing before the Board on any issue within the scope of this order.
6. These rules and guidelines shall apply until further order of the court or until modified by agreement of all parties. If after a substantial period of time, barring any emergency, this order proves unsatisfactory, any party may apply to the court for modification of the order.
ORDER FOR INTERIM PLAN FOR MANAGEMENT OF HERRING FISHERIES
(February 13, 1976)
IT IS HEREBY ORDERED that the following Interim Plan for Management of Herring Fisheries as agreed to by the parties shall be followed.
I. General Provisions for Management of All ...