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January 26, 1994

JOSEPH W. CASSIDY, et al., Plaintiffs,
UNITED STATES OF AMERICA, et al., Defendants.

The opinion of the court was delivered by: JUSTIN L. QUACKENBUSH

 BEFORE THE COURT is the Government's Motion to Dismiss for Failure to Join Indispensable Parties (Ct. Rec. 28, CS-93-19-JLQ), the Government's Motion for Summary Judgment (Ct. Rec. 32, CS-93-19-JLQ), the Government's Motion to Clarify and Supplement Record (Ct. Rec. 57, CS-93-19-JLQ), Plaintiffs' Motion to Strike and Expunge Portions of the Record or, in the Alternative, Motion to Compel Discovery (Ct. Rec. 60, CS-93-19-JLQ), and Joseph Cassidy's Renewal of Motion to Dismiss Information (Ct. Rec. 25, CR-92-194-JLQ), heard on November 15, 1993 and January 11, 1994. Jerry Boyd appeared on behalf of Plaintiffs; the Government was represented by Assistant United States Attorney James R. Shively. Having reviewed the record, heard from counsel, and being fully advised on this matter, the court rules for Plaintiffs.

 At issue in this case is whether a non-Indian can be prosecuted under 18 U.S.C. § 1165 *fn1" for fishing on waters that have been reserved for the "paramount," instead of the "exclusive," use of Indians. The court finds that a non-Indian cannot be so prosecuted.


 The relevant facts in this case are undisputed. The Colville Indian Reservation was created by Executive Order dated July 2, 1872, and the Spokane Indian Reservation was created by Executive Order dated January 18, 1881.

 On August 30, 1935, Congress authorized the construction of Grand Coulee Dam on the Columbia River. Act of August 30, 1935 (49 Stat. 1028). In aid of the construction of the Grand Coulee Dam project, Congress granted to the United States all right, title, and interest of the Indians in and to the tribal and allotted lands within the Spokane and Colville Reservations as designated by the Secretary of Interior. Act of June 29, 1940, (54 Stat. 703), 16 U.S.C. § 835d. Congress further provided that:

The Secretary of Interior, in lieu of reserving rights of hunting, fishing, and boating to the Indians in the areas granted under this Act [ 16 U.S.C. §§ 835d et seq.], shall set aside approximately one-quarter of the entire reservoir area for the paramount use of the Indians of the Spokane and Colville Reservations for hunting, fishing, and boating purposes, which rights shall be subject only to such reasonable regulations as the Secretary may prescribe for the protection and conservation of fish and wildlife.

 16 U.S.C. § 835d.

 After construction of the Grand Coulee Dam and the establishment of what is now Lake Roosevelt, the Grand Coulee Dam National Recreation Area, comprised of Lake Roosevelt and the surrounding area, were open for use by the general public. The general public had a right to fish and boat on the entire reservoir, subject to reasonable management by the National Park Service. From 1940 until the present, the State of Washington has regulated fishing by non-Indians on the entire reservoir.

 In 1945, prior to the set-aside, the Solicitor for the Department of the Interior opined that 16 U.S.C. § 835d did not grant the Tribes an exclusive right to hunt and fish on the set-aside portion of Lake Roosevelt. In 1946, the Secretary of Interior established two zones on Lake Roosevelt for Indian use, known at the time as the Indian Zone. (Memorandum Agreement, Plaintiff's Exhibit 35.) This was done in compliance with Congress' directive in section 835d to set-aside one-quarter of the acquired land for the paramount use of the Tribes for hunting, fishing, and boating.

 In 1974, the Solicitor for the Department of Interior rendered a contrary opinion, finding that the Indian tribes were entitled to exclusive occupancy of the land set aside pursuant to section 835d. *fn2" After this opinion was rendered, both the Colville and Spokane Tribes attempted to regulate fishing by non-Indians within the set-aside area. In 1982, the United States Attorney for the Eastern District of Washington assured the Tribes that non-Indians fishing within the Indian Zone would be prosecuted in federal court for trespassing.

 Under the authority delegated to them under the Agreement, the Spokane Tribe requires a permit for non-Indian fishing within the Spokane Reservation portion of the Reservation Zone. The Colville Tribes and the State of Washington have an agreement whereby the Colville Tribes allow non-Indians to fish in their portion of the Reservation Zone with a valid State of Washington fishing permit.

 In June 1992, Joseph W. Cassidy fished on the northern half of the Spokane arm of Lake Roosevelt, which is located within a portion of the Reservation Zone allegedly under the regulatory control of the Spokane Tribe. (The Agreed Pretrial Order only states that he was fishing "on the waters of Lake Roosevelt;" however, it does not appear to be disputed that he was, in fact, fishing on the northern half of the Spokane Arm, which is within the Spokane Reservation.) At the time, Mr. Cassidy possessed a valid fishing license issued by the State of Washington, but he had not obtained a fishing permit from the Spokane Tribe.

 In July 1992, an amended criminal information was filed against Mr. Cassidy in federal court. It was alleged therein that without lawful authority or permission, Mr. Cassidy fished upon lands belonging to the United States that were reserved for Indian use, in violation of 18 U.S.C. § 1165. Specifically, Mr. Cassidy was charged with fishing from the northern bank of the Spokane Arm of Lake Roosevelt without permission from the Spokane Tribe.

 It was evident pretrial that resolution of the criminal case would require a legal determination as to who had regulatory jurisdiction over the Spokane Arm of Lake Roosevelt. Because the criminal action involved a purely legal question, the court stayed the criminal action so that Mr. Cassidy could seek a civil declaratory judgment regarding who had regulatory control over the Spokane Arm of Lake Roosevelt.

 On January 21, 1993, Mr. Cassidy and Mr. Lee filed a complaint seeking both injunctive and declaratory relief. They filed an amended complaint on June 1, 1993. The Plaintiffs seek a declaration that the United States does not have jurisdiction under existing laws and regulations to regulate or prohibit fishing by non-Indians in any waters of Lake Roosevelt, so long as the individuals comply with the laws and regulations of the State of Washington. The Plaintiffs also ask the court to declare that it is not a violation of 18 U.S.C. § 1165 for non-Indians with valid Washington state fishing licenses to fish on Lake Roosevelt.

 On June 3, 1993, the Plaintiffs filed a motion for default and, in the alternative, for a preliminary injunction. On June 17, 1993, the court entered an order denying the Plaintiff's motion. (Ct. Rec. 21, CS-93-19-JLQ.)

 The Government filed a motion to dismiss on June 7, 1993, arguing that the court lacked jurisdiction over the Defendants in this case, based on the doctrine of sovereign immunity. Having found that sovereign immunity was waived in this case, the court entered an order on July 23, 1993 denying the Defendants' motion to dismiss.

 The Defendants subsequently filed two additional motions, the resolution of which the parties agree will decide this case. First, the Defendants seek a dismissal based on a failure to join indispensable parties. In the alternative, the Defendants seek a judgment on the merits as a matter of law. Although the Plaintiffs have not formerly filed a cross-motion for summary judgment, the substance of their response brief can be reasonably construed as not only opposing the Defendants' motion, but also seeking judgment as a matter of law.

 The Defendants seek dismissal on the ground that an indispensable party has not been joined in this action. Specifically, it is argued that the Spokane and Colville Tribes are indispensable parties. Neither the Spokane nor the Colville Tribe is a party in this case; *fn3" however, the Colville Tribe has filed an amicus curiae brief. The Defendants alternatively argue that they are entitled to judgment as a matter of law and, therefore, summary judgment should be entered in their favor.

 A. Spokane and Colville Tribes as Indispensable Parties

 Federal Rule of Civil Procedure 19 identifies "necessary" parties:

(a) A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.

 Once a party is identified as a necessary party under Rule 19(a), there remains the question of whether the party is indispensable, thus requiring dismissal of the cause of action if the indispensable party is not joined.

(b) If a person as described in subdivision (a)(1)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable.

 Fed. R. Civ. P. 19(b). Rule 19(b) goes on to identify the factors which the court must consider in deciding whether a party is indispensable:

first, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

 The court employs a two-step analysis under Rule 19. First, it must determine whether an absent party is "necessary" to the suit. Fed. R. Civ. P. 19(a). If so, and if that party cannot be joined, the court must assess whether the absentee party is "'indispensable' so that in 'equity and good conscience' the suit should be dismissed." Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir. 1990). "The inquiry is a practical one and fact specific, and is designed to avoid the harsh results of rigid application. The moving party has the burden of persuasion in arguing for dismissal." Id. (citations omitted).

 1. Necessary Party

 The first issue is whether the Spokane and Colville Tribes are necessary parties to this action. To resolve this issue, the court must determine whether complete relief is possible among those already parties to the suit. Lujan, 928 F.2d at 1498. "This analysis is independent of the question whether relief is available to the absent party." Makah, 910 F.2d at 558. Even if complete relief is available among the existing parties, thus suggesting that the absent party may not be necessary, the court must still decide whether the absent party has a legally protected interest in the case. Id. This is because under Rule 19(a), a party is necessary if complete relief cannot be granted among the existing parties or the absent party has a legally protected interest that might be impeded if the case proceeds in its absence. If a legally protected interest is found to exist, the issue becomes whether that interest would be impaired or impeded if the case were to proceed without the absentee party. Id. "Impairment may be minimized if the absent party is adequately represented in the suit. The United States may adequately represent an Indian tribe unless there is a conflict between the United States and the tribe." Id. Finally, the court must determine whether the risk of inconsistent rulings will affect the parties presently in the suit. Id. at 559.

 The Plaintiffs seek no relief from the Tribes. Rather, they seek injunctive and declaratory relief against the United States, the United States Attorney, and the United States Marshal from prosecuting them for exercising their claimed right to fish in the Indian Zones of Lake Roosevelt with only a valid Washington fishing license. The Plaintiffs argue that complete relief between the existing parties is not only possible, but it is the only relief that is requested.

 The Defendants note that resolution of this case will require an examination of 16 U.S.C. § 835d and the Agreement. Section 835d provides that in lieu of reserving hunting and fishing rights in the area acquired for construction of the Grand Coulee Dam, the Secretary of Interior shall set aside one-quarter of the entire reservoir area for the paramount use of the Indians of the Spokane and Colville Reservations for hunting, fishing and boating purposes, subject only to such reasonable regulations as the Secretary may prescribe for the protection and conservation of fish and wildlife. The Agreement allocates and delegates regulatory authority over portions of Lake Roosevelt between the federal government and the Spokane and Colville Tribes.

 The Defendants contend that the Tribes' legally protected interest in this case is their right to control the use of the reserved land under the Agreement and their interest in their fishing rights granted under section 835d. The Defendants also argue that the Tribes have a legal interest here because they have an interest in enforcing the Agreement, Lujan, 928 F.2d at 1499, and because they have an "interest in preserving their own sovereign immunity, with its concomitant 'right not to have [their] legal duties judicially determined without ...

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