Sohappy v. Smith, s. 75--2409
| Decision Date | 28 January 1976 |
| Docket Number | Nos. 75--2409,74--2376 and 74--2617,s. 75--2409 |
| Citation | 529 F.2d 570 |
| Parties | Richard SOHAPPY et al., Appellees, v. McKee A. SMITH et al., Appellants. UNITED STATES of America, Appellee, v. STATE OF OREGON et al., Appellants. Richard SOHAPPY et al., Appellees, v. STATE OF WASHINGTON, Appellant. UNITED STATES of America, Appellee, v. STATE OF WASHINGTON, Appellant. Richard SOHAPPY et al., Plaintiffs-Appellees, v. McKee A. SMITH et al., Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. STATE OF OREGON et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before HUFSTEDLER and WRIGHT, Circuit Judges, and LINDBERG, * District Judge.
On July 8, 1969, the district court filed its opinion and decree defining the treaty rights of the Confederated Tribes and Bands of the Yakima Indian Nation, the Confederated Tribes of the Umatilla Reservation (the Walla Walla, Cayuse, and Umatilla Tribes), the Nez Perce Indian Tribe of Idaho, and the Confederated Tribes of the Warm Springs Indian Reservation. It construed the treaty right 'of taking fish at all usual and accustomed places' on the Columbia River and its tributaries, and declared the manner and extent to which the State of Oregon could regulate Indian fishing. (Sohappy v. Smith (D.Or.1969) 302 F.Supp. 899.) The district court retained jurisdiction to grant further or amended relief and permitted '(a)ny party at any time (to) apply to the court for a subsequent modification of any provision of this decree where the continued application of the decree has become inequitable or impracticable, but this right shall not affect the finality of the decree with respect to times prior to any such modification.' No one appealed.
All concerned parties accommodated themselves to the decree, albeit restively, until April 1974, when a dispute arose over Indian fishing rights in the 1974 spring run of Chinook Salmon. The spring run was not large enough to satisfy all the demands upon it and to conserve the resource. On April 17, 1974, the Washington Department of Fisheries moved to intervene and sought an injunction prohibiting any treaty fishing until the States of Oregon and Washington promulgated regulations permitting Indian fishing. The State of Washington was then substituted for the Department of Fisheries. Upon receiving the consent of Washington to be bound by the 1969 decision and judgment and conditioned thereon, the district court permitted intervention. Oregon and Washington had previously held a hearing which resulted in the decision to close the Columbia River to Indian commercial fishing for the 1974 spring Chinook run while allowing Indian subsistence and ceremonial fishing (a trivial quantity of fish) and sports fishing under general state law. The States then sought a preliminary injunction to restrain the Indians from commercially fishing the river. On April 29, 1974, the district court denied the motion because the States' decision had not been made in conformity with the standards set out in the court's 1969 opinion. The next day the States held another hearing and again found that the closure of the river to Indian commercial fishing was necessary. Based on this finding, the district court issued a temporary restraining order against the Indians on April 30, 1974. After several hearings, the court dissolved the temporary restraining order on May 8, 1974, because in conducting the States' hearings to promulgate regulations for the 1974 Chinook run, the States did not comply with the requirement of the prior decree that state regulations must be the least restrictive upon Indian treaty rights as can be imposed consistent with assuring the necessary escapement of fish for conservation purposes. The district court found that the States had not considered means less restrictive upon the protected Indian treaty rights than limiting Indian commercial fishing nor had they accorded to the Indians the rights to proper notice and to hearing secured to them by the decree.
If that is all that had happened, this controversy would have evaporated at the end of the 1974 run, but the district court, on May 10, 1974, also entered an order amending the 1969 judgment as follows:
The States attack the amendment on several grounds, and the United States and the Indians defend the apportionment. Before we discuss these contentions, we dispose of some preliminary points.
Washington has attempted to appeal from the order dissolving the temporary restraining order. This portion of the appeal must be dismissed because the order is not appealable under 28 U.S.C. § 1292(a)(1). (St. Helen v. Wyman (9th Cir. 1955), 222 F.2d 890, 9 J. Moore, Federal Practice P110.20(5), at 253--54 (2d ed. 1975).) Washington did not seek an interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
We dismiss Washington's appeal from the district court's order denying her motion for a preliminary injunction. This order is appealable under 28 U.S.C. §...
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