U.S. v. State of Wash.

• Citation: 520 F.2d 676
• Decision Date: 04 June 1975
• Docket Number: Nos. 74-2414,74-2437,s. 74-2414
• Parties: 5 Envtl. L. Rep. 20,552 UNITED STATES of America, Plaintiff-Appellee, Quinault Tribe of Indians et al., Intervenors-Plaintiffs, v. STATE OF WASHINGTON, Defendant-Appellant, Thor C. Tollefson, Director, Washington State Department of Fisheries, et al., Intervenors-Defendants, Northwest Steelheaders Council of Trout Unlimited and Gary Ellis,Intervenor-Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, Quinault Tribe of Indians et al., Intervenors-Plaintiffs, v. STATE OF WASHINGTON, Defendant, Thor C. Tollefson, Director, Washington State Department of Fisheries, et al., Intervenors-Defendants, Washington Reef Net Owners Association, Intervenor-Defendant-Appellant. UNITED STATES of America, Plaintiff, Quinault Tribe of Indians et al., Intervenors-Plaintiffs, Muckleshoot Indian Tribe et al., Plaintiffs-Appellants, v. STATE OF WASHINGTON, Defendant-Appellee, Thor C. Tollefson, etc. et al., Intervenors-Defendants. UNITED STATES of America, Plaintiff-Appellee, Quinault Tribe of Indians et al., Intervenors-Plaintiffs, v. STATE OF WASHINGTON, Defendant-Appellant, Thor C. Tollefson, Director, Washington State Department of Fisheries, et al., Intervenors-Defendants, Carl Crouse, Director of the Department of Game, the Washington State GameCommission, Intervenors-Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, Quinault Tribe of Indians et al., Intervenors-Plaintiffs, v. STATE OF WASHINGTON, Defendant-Appellant, Thor C. Tollefson, Director, Washington State Department of Fisheries, et al., Intervenors-Defendants, Thor C. Tollefson, Director, Washington State Department of Fisheries, Intervenor-Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, Quinault Tribe of Indians et al., Plaintiffs, v. STATE OF WASHINGTON, Defendant, Thor C. Tollefson, Director, Washington State Department of Fisheries, et al., Defendants, Washington Reef Net Owners Association, Defendant-Appellant. UNITED STATES of America, Plaintiff, Quinault Tribe of
• Court: U.S. Court of Appeals — Ninth Circuit

Page 676

520 F.2d 676

5 Envtl. L. Rep. 20,552

UNITED STATES of America, Plaintiff-Appellee, Quinault Tribe of Indians et al., Intervenors-Plaintiffs, v. STATE OF WASHINGTON, Defendant-Appellant,

Thor C. Tollefson, Director, Washington State Department of

Fisheries, et al., Intervenors-Defendants,

Northwest Steelheaders Council of Trout Unlimited and Gary

Ellis,Intervenor-Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, Quinault Tribe of Indians et al., Intervenors-Plaintiffs, v. STATE OF WASHINGTON, Defendant,

Thor C. Tollefson, Director, Washington State Department of

Fisheries, et al., Intervenors-Defendants,

Washington Reef Net Owners Association,

Intervenor-Defendant-Appellant.

UNITED STATES of America, Plaintiff, Quinault Tribe of Indians et al., Intervenors-Plaintiffs, Muckleshoot Indian Tribe et al., Plaintiffs-Appellants, v. STATE OF WASHINGTON, Defendant-Appellee, Thor C. Tollefson, etc. et al., Intervenors-Defendants.

UNITED STATES of America, Plaintiff-Appellee, Quinault Tribe of Indians et al., Intervenors-Plaintiffs, v. STATE OF WASHINGTON, Defendant-Appellant,

Thor C. Tollefson, Director, Washington State Department of

Fisheries, et al., Intervenors-Defendants,

Carl Crouse, Director of the Department of Game, the

Washington State GameCommission,

Intervenors-Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, Quinault Tribe of Indians et al., Intervenors-Plaintiffs, v. STATE OF WASHINGTON, Defendant-Appellant,

Thor C. Tollefson, Director, Washington State Department of

Fisheries, et al., Intervenors-Defendants,

Thor C. Tollefson, Director, Washington State Department of

Fisheries, Intervenor-Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, Quinault Tribe of Indians et al., Plaintiffs, v. STATE OF WASHINGTON, Defendant,

Thor C. Tollefson, Director, Washington State Department of

Fisheries, et al., Defendants,

Washington Reef Net Owners Association, Defendant-Appellant.

UNITED STATES of America, Plaintiff,

Quinault Tribe of Indians et al., Plaintiffs,

Puyallup Tribe of Puyallup Reservation, Plaintiff-Appellant,

V.

STATE OF WASHINGTON, Defendant-Appellee,

Thor C. Tollefson, Director, Washington State Department of

Fisheries, et al., Defendants.

UNITED STATES of America, Plaintiff, Quinault Tribe of Indians et al., Plaintiffs, Nisqually Indian Community of the Nisqually Reservation, Plaintiff-Appellant, v. STATE OF WASHINGTON, Defendant-Appellee,

Thor C. Tollefson, Director, Washington State Department of

Fisheries, et al., Defendants.

Nos. 74-2414, 74-2437 to 74-2440, 74-2567, 74-2602 and 74-2705.

United States Court of Appeals, Ninth Circuit.

June 4, 1975.

As Amended on Denial of Rehearing and Rehearing En Banc July 23, 1975.

Don S. Willner (argued), Portland, Or., for appellant.

Harry Sachse, Asst. U. S. Atty. (argued), Washington, D.C., for appellee.

Before CHOY and GOODWIN, Circuit Judges, and BURNS, ^* District Judge.

CHOY, Circuit Judge:

The United States brought this suit to enforce compliance by the State of Washington and its Departments of Game and Fisheries with certain treaties between the federal government and various Indian tribes of western Washington (treaty Indians; treaty tribes). The Government initially represented the interests of seven named tribes. Other tribes intervened, and fourteen tribes are now named parties plaintiff. Organizations of commercial and sports fishermen intervened as parties defendant or participated as amici curiae.

The district court found that Washington could not apply its existing fishing regulations to members of the treaty tribes without violating their federal treaty rights. The court held that the state could enforce only those regulations necessary for conservation, decreed an allocation of fishing opportunity between treaty Indians and other citizens, ¹ and retained continuing jurisdiction to provide advance judicial scrutiny of all future state regulations affecting Indian treaty fishing rights. United States v. Washington, 384 F.Supp. 312 (W.D.Wash.1974). Both sides appealed. ² We affirm and remand.

Historical Background

In the early 1850's, an increasing flow of American settlers poured into the lowlands of Puget Sound and the river valleys north of the Columbia. Washington Territory was organized in 1853. Isaac Stevens, its first governor, was commissioned to smooth the way for settlement by inducing the Indians of the area to move voluntarily onto reservations.

George Gibbs' official chronicle of the treaty proceedings reveals the governor as a tactful and effective negotiator. He united the scattered Indian communities into a number of tribes and selected "chiefs" from each tribe with whom to bargain. The Indians west of the Cascade Mountains were known as "fish-eaters"; their diets, social customs, and religious practices centered on the capture of fish. Their fish-oriented culture required them to be nomadic, moving from one fishing spot to another as the runs varied with the seasons. Stevens nevertheless persuaded them to settle down on designated reservations, thus freeing the great bulk of the land for American settlement without a bloody war of conquest. In exchange, he promised the tribes money and the benefits of the white man's civilization material goods and education. Governor Stevens assured them, moreover, that they were restricted to the reservations only for the purpose of residence; he explained that they would remain free to fish off the reservations at their traditional fishing places in common with the white settlers.

In negotiating the treaties, Stevens read a predrafted document and asked for the Indians' comments and approval. Although the treaties read as typical legal documents, few if any of the Indian negotiators read or spoke English. The treaties and the Americans' explanation of their terms were translated into Chinook jargon, a trade medium of some 300 words common to most Northwest Indians. The district court found that the jargon was inadequate to express more than the general nature of the treaty provisions.

During 1854 and 1855, Stevens executed treaties with all of the treaty tribes. Each treaty contained a provision guaranteeing off-reservation fishing rights similar to that found in the Treaty of Medicine Creek, 10 Stat. 1132:

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 . . ..

To this day, fishing remains an important aspect of Indian tribal life, providing food, employment, and an ingredient of cultural identity. Indians have adopted modern techniques of sport and commercial fishing. They share the concern of other citizens with preservation of runs of anadromous fish. Some tribes regulate the times and manner of fishing by their members.

Decree of the District Court

The district court held that the state and its agencies can regulate off-reservation fishing by treaty Indians at their usual and accustomed grounds only if the state first satisfies the court that the regulation is reasonable and necessary for conservation. The court defined "conservation" as the perpetuation of a run or of a species of fish. The state must also show that the conservation objective cannot be attained by restricting only citizens other than treaty Indians. In addition, the regulation must not discriminate against treaty Indians and must meet appropriate due process standards.

Those treaty tribes meeting certain qualifying requirements (384 F.Supp. at 340-41) may regulate fishing by their own members free from any state regulation. Qualified tribes will be required, however, to fulfill certain conditions designed to keep the state informed concerning their regulations and fishing activities. The court found the Yakima Nation and the Quinault Tribe already qualified for self-regulation.

Each year, a certain escapement of fish is necessary to preserve the run. After this escapement has been allowed by either state or tribal regulation, the remainder of the run is available for harvest. The court decreed an allocation of this harvestable run between the treaty tribes and other citizens. The state may not regulate treaty Indians' taking of this harvestable run at their "usual and accustomed grounds and stations" unless necessary to limit them to 50 percent of the harvest at those grounds. Treaty Indians thus are to have the opportunity to take up to 50 percent of the available harvest at their traditional grounds.

The harvest to be allocated comprises not merely those fish which actually pass the traditional fishing grounds, but also those captured en route and those bound for those grounds but caught in marine waters by non-treaty fishermen. The court decreed an "equitable adjustment" to the harvestable catch to compensate for attrition from these sources. On the other hand, those fish caught by treaty Indians on reservations or taken for traditional tribal ceremonies or personal consumption by tribal members and their immediate families are to be totally disregarded in calculating the harvestable catch.

The state and its agencies challenge virtually all of these features of the district court's decision.

Federal Preemption of State Regulation

By virtue of its police power, the state has initial authority to regulate the taking of fish and game. Geer v. Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793 (1896). The federal government, however, may totally displace state regulation in this area. For example, Congress has the power, under the commerce clause, to authorize construction of hydroelectric facilities, even though a dam totally destroys existing runs of fish in the river in violation of the public policy of the state and the desires expressed by a majority of its enfranchised citizens. See City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 78 S.Ct. 1209, 2 L.Ed.2d 1345 (1958); Washington Department of Game v. FPC, 207 F.2d...