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UNITED STATES v. WASHINGTON

March 5, 1981

UNITED STATES OF AMERICA, Plaintiffs,
v.
STATE OF WASHINGTON, et al., Defendants


Walter E. Craig, United States District Judge.


The opinion of the court was delivered by: CRAIG

By Order dated June 6, 1979, this Court designated United States Magistrate Robert E. Cooper to conduct all hearings pertaining to the motion of the Makah Indian Tribe regarding State enforcement of Washington Department of Fisheries Emergency Order No. 7929 (WAC 220-28-04000A) which imposes a 28" minimum size troll catch limitation. On July 5, 1979, a hearing was held upon the Makah Indian Tribe's motion for a temporary restraining order in this matter. Following that hearing and further briefing, the Magistrate issued a report and proposed temporary restraining order. After transmission of that report to the Court, the Makah Tribe moved for confirmation of the Magistrate's report and issuance of a preliminary injunction.

 After full review and careful consideration of the defendants, and the report of the Magistrate the Court hereby FINDS, CONCLUDES, AND ORDERS

 That the State of Washington and the Washington State Department of Fisheries and all officials and employees thereof are hereby enjoined from enforcing Washington Department of Fisheries Emergency Order No. 79-29 (WAC 220-28-04000A) and all other subsequent orders which impose a 28" minimum size troll catch limitation upon members of the Makah Indian Tribe when fishing at usual and accustomed places in Washington coastal waters and Washington salmon catch reporting area 4B.

 This Order is based upon the following findings of fact and conclusions of law.

 FINDINGS OF FACT

 1. On April 30, 1979, the Washington Department of Fisheries enacted Emergency Order No. 79-29 (WAC 220-28-04000A). This regulation imposed a 28" minimum size limitation on troll fishing in Washington coastal waters and catch reporting area 4B. The justification for this minimum size limit was purportedly to "implement state regulations consistent with regulations adopted by the United States Department of Commerce" in the ocean and to assure the "wise use aspect" of resource conservation.

 At the same time, non-treaty sports fishing was proceeding (and continues) in the same places under a 24" minimum size limit. [WAC 220-56-013(5) and WAC 220-56-063(4)]

 2. During the fishing period of June through September, 1979, five-year averages indicate that an estimated catch of 5,000 chinook salmon in the Neah Bay area sports fishery between 24" and 28" long would occur. At the same time, if allowed to fish during that period, Makah fishermen would catch approximately 1,450 fish in the same size range. Thus, non-treaty fishermen would catch about 77.5% and treaty fishermen would catch about 22.5% of the fish in that size range. Although actual numbers of fish caught will vary depending on run size and other factors, the percentage would remain about the same. (Testimony of Makah Biologist, AL HARTT; Makah Exhibit No. 2 attached to the Makah Indian Tribe's Memorandum in Support of Motion for Temporary Restraining Order, incorporated herein by reference.)

 3. There is no conservation necessity for limiting Makah commercial fishermen to the minimum 28" limitation. (Testimony of Makah Biologist, AL HARTT; Report of the Court's Advisor, DR. RICHARD WHITNEY.)

 4. The estimated dollar loss to Makah trollers in 1979 from the prohibition on under-28" fish is approximately $ 20,000.00. (Testimony of Makah Biologist, AL HARTT, Makah Exhibit No. 2, supra, at para. 3.)

 5. The issuance of this injunction is necessary to prevent irreparable injury to the plaintiff Makah Indian Tribe and its fishermen.

 CONCLUSIONS OF LAW

 1. Limiting Makah fishermen to a minimum 28" size for troll caught salmon is not necessary for conservation as that term was defined in Final ...


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