548 P.2d 1058 (Wash. 1976), 43736, Department of Game v. Puyallup Tribe, Inc.

Docket Nº:43736.
Citation:548 P.2d 1058, 86 Wn.2d 664
Opinion Judge:HUNTER,
Party Name:DEPARTMENT OF GAME of the State of Washington, Respondent, Northwest Steelheaders Council of Trout Unlimited and Gary Ellis, Intervenor-Respondents, Western Steelheaders, Inc., Intervenor-Respondents, v. PUYALLUP TRIBE, INC., et al., Appellants.
Attorney:Stan Pitkin, U.S. Atty., Harry J. McCarthy, Asst. U.S. Atty., Seattle, George D. Dysart, Asst. Regional Solicitor, Dept. of the Interior, Portland, Or., for appellants., William H. Rodgers, Jr., Georgetown University Law Center, Washington, D.C., for Puyallup Tribe, Inc., John Sennhauser, Legal S...
Judge Panel:HAMILTON and WRIGHT, JJ., concur. WRIGHT, UTTER and HOROWITZ, JJ., concur.
Case Date:April 08, 1976
Court:Supreme Court of Washington
 
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548 P.2d 1058 (Wash. 1976)

86 Wn.2d 664

DEPARTMENT OF GAME of the State of Washington, Respondent,

Northwest Steelheaders Council of Trout Unlimited and Gary

Ellis, Intervenor-Respondents,

Western Steelheaders, Inc., Intervenor-Respondents,

v.

PUYALLUP TRIBE, INC., et al., Appellants.

No. 43736.

Supreme Court of Washington, En Banc.

April 8, 1976

Rehearing Denied June 25, 1976. [86 Wn.2d 665]

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Stan Pitkin, U.S. Atty., Harry J. McCarthy, Asst. U.S. Atty., Seattle, George D. Dysart, Asst. Regional Solicitor, Dept. of the Interior, Portland, Or., for appellants.

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William H. Rodgers, Jr., Georgetown University Law Center, Washington, D.C., for Puyallup Tribe, Inc.

John Sennhauser, Legal Services Center, Seattle, for Ramona Bennett.

Willner, Bennett, Riggs & Skarstad, Don S. Willner, Portland, Or., Riddell, Williams, Ivie, Bullitt & Walkinshaw, Vincent R. Larson, Seattle, for Northwest Steelheaders and Gary Ellis.

Slade Gorton, Atty. Gen., Edward B. Mackie, Deputy Atty. Gen., Olympia, for Dept. of Game, State of Washington. [86 Wn.2d 666]

HUNTER, Associate Justice.

The appellants (defendants), the Puyallup Tribe and Ramona Bennett, the Tribal Council chairwoman, 1 appeal from a decision of the Superior Court for Pierce County, which determined the extent of their right to commercially fish for steelhead. The Washington State Department of Game has also appealed from certain aspects of the trial court's decision.

This case does not involve a conflict of recent origin. Rather, the initial litigation commenced in 1963. Since that time, we have written two decisions, both of which have been reviewed by the United States Supreme Court. In order to place the present case in proper perspective, we shall initially set forth the nature of the issues previously raised and the decisions rendered.

In Department of Game v. Puyallup Tribe, Inc., 70 Wash.2d 245, 422 P.2d 754 (1967), we recognized that the Puyallup Tribe still existed and that its members enjoyed certain fishing rights under the Treaty of Medicine Creek. Furthermore, we held that these rights could only be limited through statute or regulations to the extent reasonably necessary for the conservation of the fishery. On review, the United States Supreme Court affirmed our decision. It held that while the rights secured by the treaty extended to off-reservation fishing, nevertheless 'the manner of fishing, the size of the take, the restriction of commercial fishing, and the like may be regulated by the State in the interest of conservation, provided the regulation meets appropriate standards and does not discriminate against the Indians.' Puyallup Tribe v. Department of Game, 391 U.S. 392, 398, 88 S.Ct. 1725, 1728, 20 L.Ed.2d 689 (1967) (hereinafter cited as Puyallup I). However, that Court remanded the case for a determination of the issue of whether the total bar against [86 Wn.2d 667] the use of set nets in freshwater streams or at their mouths was a reasonable and necessary conservation measure. In response to this decision, the Department of Fisheries, charged with the duty of regulating the salmon fishery, changed its regulations to allow a net fishery for salmon in those areas of the Puyallup River not utilized for spawning.

On the other hand, the Department of Game, which is the governing agency with regard to steelhead, refused to pass a similar regulation and continued to prohibit all net fishing for steelhead trout. In an appeal to this Court, we held that the regulations passed by the Department of Fisheries were reasonable and consistent with the necessary conservation standards. Department of Game v. Puyallup Tribe, Inc., 80 Wash.2d 561, 497 P.2d 171 (1972). In regard to steelhead, we stated that while the Indians may have a right to a net fishery, nevertheless the steelhead run was not of sufficient size to withstand a commercial net fishery for that year. On review, the United States Supreme Court held that a total ban of net fishing would discriminate against the Indians, since the steelhead fishery was totally preempted by the hook

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and line, non-Indian sport fisherman. Washington Game Dept, v. Puyallup Tribe, 414 U.S. 44, 94 S.Ct. 330, 38 L.Ed.2d 254 (1973) (hereinafter cited as Puyallup II).

That Court remanded the case for a determination of the percentage of the run which had to be allowed to escape in order to perpetuate the species, and the number of catchable fish which had to be apportioned to an Indian commercial net fishery. In a concurring opinion, three Justices noted that the majority opinion applied only to the natural run of steelhead.

On remand, the Superior Court for Pierce County held that the fishing rights afforded under the treaty did not extend to the hatchery run, that one-half of the natural run had to be allowed to escape in order to perpetuate the species, and that the Indians were entitled to catch 45 percent of the remaining one-half of the natural run. The Puyallup Tribe has appealed from the trial court's decision in its entirety. The State Department of Game has appealed [86 Wn.2d 668] from that portion of the decision which determined the size of the total natural run and the apportionment of 45 percent of the catchable fish to the tribe.

At the outset it seems appropriate to discuss the jurisdictional aspects of this case. Appellants have contended all along that the state courts do not have jurisdiction in this matter because issues pertaining to federal treaty rights are exclusively federal matters. We believe this contention is without merit for two reasons. First, in this case the State is concerned with a matter that is clearly within its jurisdiction--it is seeking to determine the extent to which it can apply its sovereign power to regulate resources for the purpose of conservation. See Puyallup I, 391 U.S. at 398--400, 88 S.Ct. 1725. In order to do so, it is necessary to determine the extent to which Indians may be exempt from state regulations because of overriding federal treaty rights. See State ex rel. Campbell v. Case, 182 Wash. 334, 341, 47 P.2d 24 (1935). In this posture, the case is analogous to 'a suit to enjoin violations of state law by individual tribal members fishing off the reservation,' a situation clearly within state jurisdiction. See Puyallup I, 391 U.S. at 397 n. 11, 88 S.Ct. at 1727.

Second, and more importantly, jurisdiction is proper because the United States Supreme Court specifically remanded this case for a determination of a fair allocation that 'accommodate(s) the rights of Indians under the Treaty and the rights of other people.' See Puyallup II, 414 U.S. at 49, 94 S.Ct. at 333. We view Puyallup II as expressly conferring jurisdiction in this matter in the state courts.

It has also been contended that the recently established, continuing existence of the Puyallup Indian Reservation, See United States v. State of Washington, 496 F.2d 620 (9th Cir. 1974), Cert. denied, 419 U.S. 1032, 95 S.Ct. 513, 42 L.Ed.2d 307 (1974), precludes any state jurisdiction over activities occurring within the reservation boundaries. We believe that this is at most simply not the case, and at least an open question after Mattz v. Arnett, 412 U.S. 481, 485, 93 S.Ct. 2245, 37 L.Ed.2d 92 (1972). In addition, the Supreme Court's clear mandate in Puyallup II would seem to include on-reservation [86 Wn.2d 669] state jurisdiction. In order to control the escapement necessary for the conservation of the species, it is inescapable, given the geography in this case, that the State must be able to control on-reservation fishing activities. State regulation of on-reservation fishing is mandated by, and consistent with, the Supreme Court's view of Indian treaty rights as presented in Puyallup II, 414 U.S. at 49, 94 S.Ct. at 333:

We do not imply that these fishing rights persist down to the very last steelhead in the river. Rights can be controlled by the need to conserve a species; and the time may come when the life of a steelhead is so precarious in a particular stream that all fishing should be banned until the species regains assurance of survival. The police power of the State is adequate to prevent the

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steelhead from following the fate of the passenger pigeon; and the Treaty does not give the Indians a federal right to pursue the last living steelhead until it enters their nets.

Finally, any suggestion that this Court should defer to the United States District Court of Western Washington, in light of its continuing jurisdiction in a similar fishing matter, on grounds of comity, is not well taken. The present case was remanded by the Supreme Court to the state courts Before that federal action was even started. There is no reason we should defer to the subsequently commenced, ongoing litigation in that federal court.

Therefore, we conclude that our jurisdiction is proper. Furthermore, as will be indicated later in the opinion, continuing jurisdiction over the Indians' steelhead fishery must be exercised by the State Department of Game.

Before considering the issues raised by the appellants and cross-appellants, an analysis of the United States Supreme Court's decision in Puyallup II is essential. Reading Puyallup II in context with Puyallup I, we feel that the issue of whether the Treaty of Medicine Creek gives the Indians a right to a commercial net fishery is at least an open question. In Puyallup II, the United States Supreme Court stated on page 48, 94 S.Ct. on page 333: 'Our prior decision recognized that net fishing by these Indians for commercial purposes [86 Wn.2d 670] was covered by the Treaty. 391 U.S., at 398--399, 88 S.Ct. 1725.' However, as demonstrated below, the...

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