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September 26, 1980

UNITED STATES of America et al., Plaintiffs,
STATE OF WASHINGTON et al., Defendants

The opinion of the court was delivered by: ORRICK

This opinion constitutes but the most recent link in a long chain of opinions construing the following 27 words:

"The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory, * * *." *fn1"

 This complex case, which was commenced in 1970 by the United States on its own behalf and as trustee of seven Indian tribes, *fn4" involves three key issues: (1) whether the treaties' fishing clause entitles the Indians to a specific allocation of the salmon and steelhead trout *fn5" in the "case area"; *fn6" (2) if such allocation is required, whether hatchery-bred and artificially-propagated fish are included in the allocable fish population; and (3) whether the right of taking fish incorporates the right to have treaty fish protected from environmental degradation.

  The case has been litigated in two phases. In Phase I, which focused on the allocation issue, a series of trial and appellate court decisions culminated in a 1979 Supreme Court opinion which conclusively established the tribes' treaty-based right to take the lesser of 50 percent of the "harvestable" case area fish or a sufficient quantity of fish to provide them with a moderate standard of living. United States v. State of Washington, 384 F. Supp. 312 (W.D.Wash.1974) ("Final Decision I"), aff'd 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086, 96 S. Ct. 877, 47 L. Ed. 2d 97 (1976); United States v. State of Washington, 459 F. Supp. 1020 (W.D.Wash.1974-1978) ("Post-Trial Decisions"), various appeals dismissed, 573 F.2d 1117 (9th Cir. 1978), 573 F.2d 1118 (9th Cir. 1978), 573 F.2d 1121 (9th Cir. 1978), decisions at 459 F. Supp. 1020, 1097-1118 (W.D.Wash.1977-1978), aff'd sub nom. Puget Sound Gillnetters Ass'n v. United States District Court for the Western District of Washington, 573 F.2d 1123 (9th Cir. 1978), aff'd in part, vacated in part, and remanded sub nom. Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 685-687, 99 S. Ct. 3055, 3074-3075, 61 L. Ed. 2d 823 (1979) ("Washington Phase I"). While retaining jurisdiction to ensure the implementation of the Phase I-decreed allocation, the Court here considers the hatchery and environmental issues which were raised in Phase I but reserved for decision in Phase II. *fn7" Currently pending are the parties' cross-motions for partial summary judgment on the hatchery issue and plaintiffs' motion for partial summary judgment on the environmental issue. Bound and informed by the numerous decisions heretofore rendered in this case, particularly the recent Supreme Court opinion, having found no genuine issue as to any material fact, and for the additional reasons set forth below, the Court concludes that plaintiffs are entitled to judgment as a matter of law on the hatchery issue and on that aspect of the environmental issue thus far presented for adjudication.


 The treaties in question were negotiated between Isaac Stevens, the first Governor and first Superintendent of Indian Affairs of the Washington Territory, and tribal representatives. Few contemporaneous documents explicate the parties' intentions regarding the scope of and limitations on the tribes' fishing right. For the simple reason that fish were plentiful in 1854-1855 but have since become relatively scarce, the allocation, hatchery and environmental issues which all arise from the fact of scarcity were not addressed. *fn8" However, the extensive record developed in connection with this litigation and recounted in the many opinions issued to date provides considerable insight into the treaty negotiations. Preceding opinions have spelled out in impressive detail the parties' intentions and the surrounding circumstances, as well as relevant subsequent events; only a capsule summary is necessary here. *fn9"

 When the treaties were negotiated, fish were the mainstay of the Indians' economy and the focal point of their culture. "All of (the otherwise-diverse tribes) shared a vital and unifying dependence on anadromous fish." Washington Phase I, supra, 443 U.S. at 664, 99 S. Ct. at 3064. See also id. at 665-666, 99 S. Ct. at 3064-3065 and other Phase I opinions cited therein. *fn10"

 An essential element of consideration for which the Indians bargained was the right to continue fishing as they had always done. "It is perfectly clear * * * that they were invited by the white negotiators to rely and in fact did rely heavily on the good faith of the United States to protect that right." Id. at 667, 99 S. Ct. at 3065. *fn11"

 In 1854-1855, Indians constituted approximately 75 percent of the 10,000-person case area population and accounted for most of the fishing activity. *fn12" In 1974, Indians represented approximately 10.8 percent of case area's commercial fishermen *fn13" and they netted 2.4 percent of the commercial catch. *fn14" The dramatic decline in the Indians' case-area fishing activity is attributable to such factors as the settlement of the West by predominantly non-Indians and the industrialization of fishing and related activities, *fn15" acculturation of Indians into non-Indian forms of employment, *fn16" belated access of Indian fishermen to the salmon runs by virtue of the location of Indians' fishing sites, *fn17" and the discriminatory manner in which state officials have applied fishing laws and regulations to Indian fishermen. *fn18"

 The most salient effect of Phase I was to reverse this trend and place Indian fishermen on an equal footing with non-Indians. In February, 1974, following a month-long trial and several months of post-trial briefing and argument, Judge Boldt held that the treaty language securing to the Indians "the right of taking fish * * * in common with all citizens" entitles them to up to 50 percent of the harvestable fish passing through the tribes' usual and accustomed fishing grounds. Final Decision I, supra, 384 F. Supp. at 343-344. The quantity of harvestable fish subject to the 50/50 allocation between Indians and non-Indians was to be computed by subtracting the following categories of fish from all those within the case area: (1) fish taken on, rather than off of, Indian reservations; (2) fish taken at off-reservation sites other than the tribes' usual and accustomed fishing grounds; (3) fish taken by the tribes for ceremonial and subsistence needs; and (4) fish not to be taken at all but to "escape" for spawning or conservation purposes. In addition, Judge Boldt called for an equitable adjustment augmenting the tribes' share because non-Indians take a "substantially disproportionate" number of the fish caught offshore that would otherwise have passed through the tribes' fishing grounds. Id. at 344. Finally, Judge Boldt abstained from deciding whether hatchery-bred fish should be excluded from the allocable fish population. Id. at 344-345. *fn19" The Ninth Circuit affirmed Judge Boldt's allocation in all significant respects, modifying only the formula for computing the equitable adjustment. United States v. State of Washington, supra, 520 F.2d 676. *fn20" Initially, the Supreme Court denied certiorari. 423 U.S. 1086, 96 S. Ct. 877, 47 L. Ed. 2d 97. However, the Court later reviewed Judge Boldt's rulings when a conflict arose between the Washington state courts, which enjoined the State's Department of Fisheries ("Fisheries") from enforcing regulations designed to implement the allocation decision, *fn21" and the federal courts, which had decreed and undertook directly to implement the treaty-based allocation. *fn22" The Court consolidated the state and federal court proceedings, affirmed and adopted Judge Boldt's construction of the treaties, and upheld, with slight modification, his allocation decision. Washington Phase I, supra. The Court affirmed the Ninth Circuit's modification of the equitable adjustment formula, and further modified the computation of allocable fish by including: (1) fish taken on-reservation as well as those taken off-reservation; (2) fish taken off-reservation at sites other than the tribes' usual and accustomed fishing sites; (3) fish taken by the tribes for ceremonial and subsistence needs. Id., 443 U.S. at 687-688, 99 S. Ct. at 3075-3076. The Court amplified the 50/50 allocation ruling by emphasizing that the crucial determinant of the tribes' treaty share is that quantity of fish sufficient to provide a moderate standard of living, subject to a ceiling of 50 percent of the harvestable fish.

"The 50% figure imposes a maximum but not a minimum allocation * * *. The central principle here must be that Indian treaty rights to a natural resource that once was thoroughly and exclusively exploited by the Indians secures so much as, but no more than, is necessary to provide the Indians with a livelihood that is to say, a moderate living." Id. at 686, 99 S. Ct. at 3075.

 See also Final Decision I, supra, 384 F. Supp. at 401-402. Finally, the Court noted that this Court had not yet reached a final decision on the hatchery issue and therefore expressed no opinion as to "whether the treaties give Indians the same right to take hatchery-bred fish as they do to take native fish." Id., 443 U.S. at 689 n.30, 99 S. Ct. at 3076 n.30.

  In August, 1976, several months after the Supreme Court denied certiorari in the first round of Phase I, the plaintiffs formally commenced Phase II by filing amended and supplemental complaints. The State responded with an answer and counterclaim. The issues were further refined through joint and separate statements of the issues to be resolved in Phase II. After considerable discovery and pretrial preparation, the plaintiffs moved for partial summary judgment on the issue "whether the federal treaty fishing right reserves to treaty tribes a right to have the fishery resource protected from adverse environmental actions or inactions of the State of Washington." *fn23" Excluded from the scope of the plaintiffs' motion, and not yet presented to the Court for resolution, are two subsidiary environmental issues: (1) whether, if such right exists, the State has violated it; and (2) what remedies, if any, are appropriate. After extensive briefing by all parties, the Court heard oral argument on May 11, 1979. The Supreme Court's opinion in the second round of Phase I was handed down two months thereafter, and the parties submitted additional briefs regarding the significance of that opinion in relation to the pending environmental issue.

 Following a status conference in September, 1979, the parties filed cross-motions for summary judgment on the issue "whether the federal treaty fishing right includes all, some or no artificially-reared fish released into public waters." *fn24" Each party supported its motion with statements of facts and legal contentions, briefs, and affidavits *fn25" in accordance with the procedures outlined in Section 3.30 of the Manual for Complex Litigation. Oral argument took place on April 10, 1980, and, after the parties filed supplementary factual material, both the hatchery and the environmental issues were deemed submitted.


 Indian treaties must be interpreted so as to promote their central purposes. United States v. Winans, 198 U.S. 371, 381, 25 S. Ct. 662, 664, 49 L. Ed. 1089 (1905). They must be read "in light of the common notions of the day and the assumptions of those who drafted them." Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 206, 98 S. Ct. 1011, 1020, 55 L. Ed. 2d 209 (1978). The Supreme Court has been notably attentive to the intentions and assumptions of the Indians as they entered into the treaties.

"The United States, as the party with the presumptively superior negotiating skills and superior knowledge of the language in which the treaty is recorded, has a responsibility to avoid taking advantage of the other side. "(T)he treaty must therefore be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians.' " Washington Phase I, supra, 443 U.S. at 675-676, 99 S. Ct. at 3069-3070, quoting in part from Jones v. Meehan, 175 U.S. 1, 11, 20 S. Ct. 1, 5, 44 L. Ed. 49 (1899).

 See also Tulee v. Washington, 315 U.S. 681, 684-685, 62 S. Ct. 862, 864, 86 L. Ed. 1115 (1942). Any ambiguities must be resolved in the Indians' favor; "the wording of treaties * * * with the Indians is not to be construed to their prejudice." Antoine v. Washington, 420 U.S. 194, 199, 95 S. Ct. 944, 948, 43 L. Ed. 2d 129 (1975). See also Choctaw Nation v. Oklahoma, 397 U.S. 620, 631, 90 S. Ct. 1328, 1334, 25 L. Ed. 2d 615 (1970). The Supreme Court has repeatedly relied on the rule of attending to the Indians' common-sense understanding of the treaties "in broadly interpreting these very treaties in the Indians' favor." Washington Phase I, supra, 443 U.S. at 676, 99 S. Ct. at 3070.



 Prior to 1973, the State had never drawn a distinction in either its legal arguments or its fisheries programs between natural and hatchery-bred fish. The State initially proposed that distinction in oral argument before the Supreme Court in a case involving discriminatory state regulation of steelhead trout fishing in the Puyallup River. In the course of striking down the state regulation as impermissible infringement upon the Puyallup Tribe's treaty-based fishing right, the Supreme Court expressly reserved ruling on whether the existence of a license fee-funded hatchery program should affect the allocation of steelhead trout under the fishing clause. Department of Game v. Puyallup Tribe, 414 U.S. 44, 48, 94 S. Ct. 330, 333, 38 L. Ed. 2d 254 (1973) ("Puyallup II "). *fn26" In a concurring opinion, three Justices suggested that the Indians' treaty right should not extend to hatchery fish subsidized by non-Indian sport fishermen. Id. at 49-50, 94 S. Ct. at 333-334.

 On remand, the State courts converted that suggestion into a ruling. Department of Game v. Puyallup Tribe, No. 158069 (Super.Ct.1975), aff'd 86 Wash.2d 664, 548 P.2d 1058 (1976). Although the Puyallup litigation involved fishing by the Puyallup Tribe (but not the other 20 tribes that are parties to this litigation) for steelhead trout (but not the other five species of salmon that are the subject of this litigation) in the Puyallup River (but not the entire case area), the State moved to exclude all hatchery fish from the 50 percent treaty share to which Judge Boldt had declared all of the Indians in this case to be entitled. Judge Boldt then enjoined the State from extending the State court's holding beyond the Puyallup parties and subject matter. Post-Trial Decisions, supra, 459 F. Supp. at 1042 (following Pierce County Superior Court decision) and at 1072 (following Washington Supreme Court decision). When the State court's ruling was reviewed by the Supreme Court, the case was decided on other grounds and the Court again declined to address the hatchery issue. Puyallup Tribe v. Department of Game, 433 U.S. 165, 177 n.17, 97 S. Ct. 2616, 2623-2624 n.17, 53 L. Ed. 2d 667 (1977) ("Puyallup III "). In short, none of the numerous federal opinions in the Puyallup trilogy addresses the merits of the hatchery issue; neither the governing law nor the applicable facts were discussed, much less adjudicated. See Post-Trial Decisions, supra, 459 F. Supp. at 1079 (Memorandum Decision and Order Granting Preliminary Injunction re Hatchery Propagated Fish). Throughout Phase I, which was litigated concurrently with Puyallup II and III, hatchery fish have been legally indistinguishable from natural fish.


 Although the legal status of hatchery fish did not assume significance until 1973, the State's hatchery program has been in existence since 1895. *fn27" The hatchery activities of the Fisheries and Game Departments have steadily increased since that time, particularly in the more recent years. *fn28" Currently, the State operates 19 steelhead trout and 16 salmon hatcheries in the case area. *fn29" Another 16 facilities provide limited salmon production assistance. *fn30" The State-run facilities are funded by federal and local, as well as State, monies. *fn31"

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