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HOH INDIAN TRIBE v. BALDRIGE

September 22, 1981

HOH INDIAN TRIBE, et al., Plaintiffs,
v.
Malcolm BALDRIGE, Secretary of Commerce, Defendant, v. STATE of Washington, Intervenor-Defendant



The opinion of the court was delivered by: CRAIG

FINDINGS OF FACT AND CONCLUSIONS OF LAW

STATEMENT OF THE CASE

 This case involves the treaty fishing rights of three separate Washington coastal Indian tribes as they are affected by the regulations of the defendant Secretary of Commerce governing fishing for salmon in the waters of the Fishery Conservation Zone off California, Oregon, Washington, and Alaska and regulations of the intervenor-defendant State of Washington in state waters of northwestern Washington.

 The action was commenced on June 22, 1981, and the matter came on for hearing August 3, 1981, on plaintiffs' and defendant's cross-motions for summary judgment.

 This Court has jurisdiction under 28 U.S.C. § 1362 and 16 U.S.C. §§ 1855(d) and 1861(d). Venue exists under 28 U.S.C. § 1391(b) and (e).

 The Court having considered the Pleadings, the Administrative Record before the Secretary of Commerce, testimony given before the Court, and the written and oral submissions of the parties, now hereby makes the following findings of fact and conclusions of law.

 FINDINGS OF FACT

 1. The Hoh Indian Tribe, the Quileute Tribe of the Quileute Reservation, and the Quinault Indian Nation are separate and distinct federally recognized Indian tribes each of which separately holds fishing rights secured by the Treaty of Olympia, 12 Stat. 971, to take salmon and other fish at their respective usual and accustomed fishing places located on and off of their respective reservations. These rights have been authoritatively construed and defined in the ongoing case of United States v. Washington, 384 F. Supp. 312 (W.D.Wash.1974), aff'd, 520 F.2d 676 (9th Cir. 1975), later proceeding, 459 F. Supp. 1020, 573 F.2d 1123 (9th Cir. 1978), substantially affirmed sub nom. Washington v. Washington Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 99 S. Ct. 3055, 61 L. Ed. 2d 823 (1979). This Court has retained continuing jurisdiction in that case. The Quileute Reservation is located at the mouth of the Quillayute River, the Hoh Reservation is at the mouth of the Hoh River, and the Quinault Reservation is further south on the Washington coast and includes the mouth and major portions of the Queets River and substantially all of the Quinault River and its tributaries. The Quinault Nation also has off-reservation usual and accustomed fishing grounds in Grays Harbor and portions of its watershed. The location of each reservation was selected primarily to provide the respective tribes and bands a home near, and direct access to and exclusive use of, some of their principal salmon and steelhead fishing grounds.

 2. The Secretary of Commerce (hereinafter "Secretary") is responsible for approving or preparing, implementing, and (together with the Secretary of Transportation) enforcing fishery management plans or amendments to such plans (hereinafter collectively "FMP") under the Magnuson Fishery Conservation and Management Act (90 Stat. 331, 16 U.S.C. §§ 1801-1882) (hereinafter "FCMA") in the Fishery Conservation Zone from 3 to 200 miles off the coast of the United States (16 U.S.C. § 1811) and for promulgating regulations governing such fisheries. The Secretary relies heavily on the statutorily-created (16 U.S.C. § 1852) Pacific Fishery Management Council (PFMC) and North Pacific Fishery Management Council (NPFMC) for development of, and for advice on, plans, and the preparation of proposed regulations, for the fisheries off California, Oregon, and Washington, and off Alaska, respectively. The FCMA requires that any fishery management plan must contain the conservation and management measures which are consistent with the national standards set forth in 16 U.S.C. § 1851, the provisions of the FCMA, and any other applicable law including applicable treaties with Indian tribes.

 4. The coho salmon is perpetuated primarily on a three-year cycle. The typical life history pattern consists of one year of juvenile residence in fresh-water and two summers in the marine environment, with maturing adults returning to spawn in their third year of life during the months from August through December. United States v. Washington, 443 U.S. 658, 99 S. Ct. 3055, 61 L. Ed. 2d 823, Ex. JX 2A, p. 4 and Tables 1, 38-41. Coho salmon originating in the Washington coastal rivers contribute to ocean fisheries from Southeast Alaska to California (id., p. 32).

 5. The FMP for Managing the 1981 Salmon Fisheries off the coast of California, Oregon and Washington, prepared by the PFMC (hereinafter "1981 FMP"), which is in the form of an amendment to the 1978 FMP for those fisheries, was approved by the Secretary's designee on May 18, 1981, and the 1981 Regulations were issued as Emergency Interim rules, effective June 5, 1981. 46 F.R. 30633. They were extended for an additional 45 days on July 22, 1981. 46 F.R. 37703.

 6. For management sub-area A, the area between the Canadian boundary and Cape Falcon, Oregon (also referred to as the WPP area), the Secretary's 1981 regulations provide for a commercial troll season from May 1 to May 31 for all salmon species except coho and an all salmon species commercial season from July 15 to September 1, the latter being subject to closure when the commercial coho harvest in the area reaches 372,000 fish. For the same area the regulations provide for a recreational fishery from May 23 to September 7 with a daily bag limit of two salmon (three north of the Queets River, only two of which may be chinook or coho) subject to closure when the recreational coho harvest in the area reaches 248,000 fish. 1981 FMP, pp. 1-3.

 7. In United States v. Washington (supra), this Court held that the rights secured by the treaties to the plaintiff tribes is a reserved right which is linked to the areas where the Indians fished during treaty times and which exists in part to provide a volume of fish which is sufficient for the fair needs of the tribes. Neither the Indians nor the non-Indians may fish in a manner so as to destroy the resource or to preempt it totally. The State's police power to regulate the exercise of the treaty right "exists only to the extent necessary to protect the fishery resource." It is limited to those measures which "are reasonable and necessary to the perpetuation of a particular run or species of fish." 384 F. Supp. 312, 342 and Conclusions of Law Nos. 20, 23 and 28, at pp. 401-402. A run is defined as "a group of anadromous fish on its return migration, identified by species, race and water of origin." Id. at 405. This Court also held in that case that:

 
"The shares which treaty and nontreaty fishermen are to be accorded the opportunity to harvest shall be calculated on a river-system by river-system basis wherever practical. This shall be based upon the system of origin and shall apply regardless of where the fishery occurs. * * * In some cases, for more effective management or because data for stock separation do not exist, the sharing must be on a regional basis.
 
"Shares will be calculated * * * on a river-system by river-system basis for * * * the Washington coast * * *.

 Id., 459 F. Supp. 1020, 1070. These holdings were affirmed by the United States Supreme Court in Washington v. Fishing Vessel Assoc. (supra) which held:

 
"In our view * * * the treaties secure the Indians' right to take a share of each run of fish that passes through tribal fishing areas."

 443 U.S. at 679, 99 S. Ct. at 3071.

 
"We also agree with the Government that an equitable measure of the common right should initially divide the harvestable portion of each run that passes through a "usual and accustomed' place into approximately equal treaty and nontreaty shares, and should then reduce ...

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