State v. Courville, s. 11120-5-

• Citation: 36 Wn.App. 615,676 P.2d 1011
• Decision Date: 12 December 1983
• Docket Number: 11121-3-I and 11122-1-I,Nos. 11120-5-,s. 11120-5-
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Rodney COURVILLE, Mark P. James and George Starr, Petitioners.

Page 615

36 Wn.App. 615

676 P.2d 1011

STATE of Washington, Respondent, v. Rodney COURVILLE, Mark P. James and George Starr, Petitioners.

Nos. 11120-5-I, 11121-3-I and 11122-1-I.

Court of Appeals of Washington,

Division 1.

Dec. 12, 1983.

Richard Reich, Auburn, for petitioners.

Norman K. Maleng, King County Pros. Atty., Douglas Whalley, Deputy Pros. Atty., Seattle, for respondent.

CALLOW, Judge.

The defendants, Rodney Courville, Mark James, and George Starr, Sr., whose cases have been consolidated on appeal, now appeal, on discretionary review, the decision on RALJ appeal entered by the King County Superior Court which reversed an order of dismissal entered by the Federal Way District Court. The appellant inquires whether individual treaty fishermen may be criminally prosecuted for possession of shellfish in excess of state fisheries regulations even though he or she proves that such shellfish were taken at their tribe's usual and accustomed fishing grounds. The appellant also presents a claim that the defendants have been subjected to double jeopardy.

On May 20, 1981, Mark James and Rodney Courville were stopped by a Washington Department of Fisheries officer, as they were returning to their vehicle after digging clams at Adelaide Beach in Federal Way. Both were charged with possessing shellfish in excess of the personal use limits established by WAC 220-56-310.

The following day George Starr, Sr. was also stopped by the officer while returning to his vehicle after digging clams at Adelaide Beach. He was also charged with possession of shellfish in excess of the personal use limits under WAC 220-56-310.

A summary of the charges follows:

Mark P. James--Possession of 14 pounds of hardshell clams and 14 horse clams over the limits set by WAC 220-56-310(1)(a) and (4).

Rodney Courville--Possession of 8 pounds of hardshell clams and 21 horse clams over the limits set by WAC 220-56-310(1)(a) and (4).

George Starr, Sr.--Possession of 24 pounds of hardshell clams over the limit set by WAC 220-56-310(1)(a).

The pertinent sections of former WAC 220-56-310 state:

It shall be lawful unless otherwise provided for any one person to take in any one day or possess for personal use at any one time the following quantities and sizes of shellfish:

(1) Cockles, borers and clams in the shell, except razor clams, geoduck clams and horse clams:

(a) All areas except Willapa Bay, seven pounds in the aggregate not to exceed a count of forty clams.

....

(4) Horse clams: First 7 clams taken.

These cases were originally brought in the Federal Way District Court. On June 30, 1981, the defendants filed a motion to dismiss and supporting memorandum asserting "that each of the defendants is an enrolled member of the Muckleshoot Indian Tribe possessing treaty rights to harvest shellfish and therefore WAC 220-56-310 is invalid as applied to defendants". On July 7, 1981, the trial court denied the defendant's motion to dismiss following a hearing on said motion based on its determination that the treaty rights asserted by the defendants constituted an affirmative defense requiring proof at trial of certain factual issues. The three cases were then consolidated and jury trial waived.

The cases were heard on July 17, 1981, and the district court found each of the defendants to be a member of the Muckleshoot Tribe and Adelaide Beach to be a usual and accustomed clamming beach of that tribe and dismissed the consolidated cases.

The State appealed the decision of the district court to the superior court. On November 20, 1981, the superior court entered a Decision on RALJ Appeal reversing the district court, stating in part:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the decision of the court of limited jurisdiction is reversed for the following reasons: (1) Washington State courts have jurisdiction over the subject matter and over the defendant, absent a prior determination of treaty rights by the Federal District Court, pursuant to United States v. Washington, 459 F.Supp. 1020, [1037 (W.D.Wash.1978) ]; (2) Absent a prior adjudication of the right to take shellfish in United States v. Washington, respondents are barred from asserting a treaty right to take shellfish as a defense to state criminal charges of possessing shellfish in excess of state limits ....

On February 5, 1982, we granted the defendants' motion for discretionary review pursuant to RAP 2.3(d) and consolidated the appeals of the defendants.

The initial issue is whether individual treaty fishermen may be criminally prosecuted for possession of shellfish in excess of state fisheries regulations even though he proves that such shellfish were taken at his tribe's usual and accustomed fishing grounds.

There is no contention that the defendants did not in fact take the clams as alleged by the State in a quantity in excess of State Fisheries Regulation WAC 220-56-310. Rather, the defendants contend that they are enrolled members of the Muckleshoot Indian Tribe and that the clams were taken from Adelaide Beach which is a usual and accustomed fishing ground of that tribe and, therefore, are not subject to state regulation. The State contends that United States v. Washington, 459 F.Supp. 1020, 1037 (W.D.Wash.1978), requires that a preliminary determination of off-reservation treaty shellfish rights must be made in federal court before an individual tribal member may raise such a right as an affirmative defense to state criminal charges of possessing shellfish in excess of state limits.

The Muckleshoot Indian Tribe (Muckleshoot Tribe) is the holder of treaty hunting and fishing rights under the Treaty of Medicine Creek, December 26, 1854, ratified March 3, 1855, and proclaimed April 10, 1855, 10 Stat. 1132, and the Treaty of Point Elliot, January 22, 1855, ratified March 8, 1859, and proclaimed April 11, 1859, 12 Stat. 927. United States v. Washington, 384 F.Supp. 312, 349, (W.D.Wash.1974), aff'd, 520 F.2d 676 (9th Cir.1975), cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976). Each of these treaties, with insubstantial variations, contains the following provision securing to the Indians certain off-reservation rights:

The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians .... Provided, however, That they shall not take shell fish from any beds staked or cultivated by citizens....

Treaty of Medicine Creek, Art. III; Treaty of Point Elliot, Art. 5. Treaties entered into between Indian tribes and the United States are essentially contracts between two sovereign nations and are supreme over the constitution and laws of a state. Washington v. Washington State Comm'l Passenger Fishing Vessel Ass'n, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979); Skokomish Indian Tribe v. France, 269 F.2d 555 (9th Cir.1959). The State does not contend that the reservation to take "fish" in these treaties exempts shellfish. In fact, the reservation of a right to take shellfish in these treaties is confirmed by the express reference to shellfish in the treaty fishing provision. "The right of taking fish ... is further secured to said Indians .... Provided however, That they shall not take shell fish from any beds staked or cultivated by citizens". The shellfish taken by the defendants were not taken from any beds staked or cultivated by citizens.

"A regulation which is validly promulgated and necessary for conservation purposes may be applied in a nondiscriminatory manner to restrict both treaty and nontreaty fishing." State v. Reed, 92 Wash.2d 271, 273, 595 P.2d 916 (1979); see Puyallup Tribe, Inc. v. Department of Game, 433 U.S. 165, 171, 97 S.Ct. 2616, 2620, 53 L.Ed.2d 667 (1977); Puyallup Tribe v. Department of Game, 391 U.S. 392, 88 S.Ct. 1725, 20 L.Ed.2d 689 (1968). The State has made no showing, nor does it contend that WAC 220-56-310 is reasonable and necessary for conservation. Hence, the treaty rights of the Muckleshoot Tribe prohibits the State from regulating off-reservation fishing by enrolled members of the tribe while fishing at their usual and accustomed fishing grounds. United States v. Washington, 384 F.Supp. 312. These rights are, subject to qualification by the states, necessary in the interest of conservation. Puyallup Tribe v. Department of Game, supra; Tulee v. Washington, 315 U.S. 681, 62 S.Ct. 862, 86 L.Ed. 1115 (1942). Moreover, the Muckleshoot Tribe has the power to regulate the treaty fishing rights of its individual members off-reservation provided the tribe first complies with specified qualifications and conditions. United States v. Washington, 384 F.Supp. at 340-41.

In United States v. Washington, 384 F.Supp. 312, the court retained continuing jurisdiction to ensure that state police power regulations were not used to impair the rights of the treaty tribes. Based on this exercise of continuing jurisdiction, by order dated October 8, 1974, as amended and supplemented November 21, 1974 and August 6, 1975, the court entered an Order for Program to Implement Interim Plan. United States v. Washington, 459 F.Supp. at 1035-38. That order provided, inter alia, that a treaty tribe must seek a preliminary determination of its treaty rights in federal court before it could exercise off-reservation treaty rights to nonanadromous fish and shellfish.

In order to be entitled to exercise off-reservation treaty fishing rights to nonanadromous fish and shellfish, any tribe party to this case shall, prior to any attempt to exercise such rights, present prima facie evidence and arguments supporting its claim to treaty entitlements to such nonanadromous fish and shellfish upon which the court may make a preliminary determination as to the...