U.S. v. State of Wash.

• Citation: 694 F.2d 1374
• Decision Date: 03 January 1983
• Docket Number: No. 81-3111,81-3111
• Parties: 13 Envtl. L. Rep. 20,126, 13 Envtl. L. Rep. 20,441 UNITED STATES of America, et al., Plaintiffs-Appellees, v. STATE OF WASHINGTON, et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1374

694 F.2d 1374

13 Envtl. L. Rep. 20,126, 13 Envtl. L. Rep. 20,441

UNITED STATES of America, et al., Plaintiffs-Appellees, v. STATE OF WASHINGTON, et al., Defendants-Appellants.

No. 81-3111.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 5, 1982.

Decided Nov. 3, 1982.

As Amended Jan. 3, 1983.

Edward B. Mackie, Deputy Atty. Gen., Olympia, Wash., for defendants-appellants.

William A. White, Washington, D.C., for plaintiffs-appellees.

Alan C. Stay, Seattle, Wash., for amicus curiae Hoh/Quileute/Nugually Tribe.

Appeal from the United States District Court for the Western District of Washington.

Before SNEED, ANDERSON, and REINHARDT, Circuit Judges.

SNEED, Circuit Judge:

I.

OVERVIEW

In this case the State of Washington ("the State") appeals the grant of summary judgment in the second phase of this protracted litigation over Indian treaty fishing rights in the Pacific Northwest. The district court characterized its opinion as "but the most recent link in a long chain of opinions construing the following 27 words:

'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 ...'."

United States v. Washington, 506 F.Supp. 187, 189 (W.D.Wash.1980). The district court held that hatchery fish are included in the fish to be apportioned by the treaty. The court further held that the right of taking fish incorporates the right to have treaty fish protected from environmental degradation. Thus, the treaties impose upon the State of Washington a duty to refrain from degrading or authorizing the degradation of the fish habitat to an extent that would deprive the treaty Indians ("the Tribes") of their moderate living needs.

On review of a grant or denial of summary judgment, the standard we apply is whether, viewing the evidence in the light most favorable to the party against whom summary judgment is granted, the district court correctly found that there was no genuine issue of material fact and that the moving party was entitled to judgment as a matter of law. Vuitton Et Fils S.A. v. J. Young Enterprises, Inc., 644 F.2d 769, 775 & n. 2 (9th Cir. 1981); SEC v. Murphy, 626 F.2d 633, 640 (9th Cir. 1980). Our review is identical to that of the district court. State ex rel. Edwards v. Heimann, 633 F.2d 886, 888 n. 1 (9th Cir. 1980).

We find that hatchery fish are included in the fish that Indians have the right to take "in common with" non-Indian fishermen in Washington. The treaties do not, however, guarantee an adequate supply of fish to meet the Tribes' moderate living needs. Nor do they create an absolute right to relief from all State or State-authorized environmental degradation of the fish habitat that interferes with a tribe's moderate living needs. Rather, we find that when considering projects that may have a significant environmental impact, both the State and the Tribes must take reasonable steps commensurate with the respective resources and abilities of each to preserve and enhance the fishery. ¹ Both share in the beneficial use of a fragile resource. Each to the other owes this obligation.

II.

BACKGROUND

This suit was commenced in 1970 by the United States on its own behalf and as trustee of seven Indian tribes. It was bifurcated for trial into separate parts or "phases." United States v. Washington, 384 F.Supp. 312, 327-28 (W.D.Wash.1974) (Boldt, J.) ("Final Decision I "), 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); United States v. Washington, 459 F.Supp. 1020 (W.D. Wash.1974-1978) ("Post-Trial Decisions "), various appeals dismissed, 573 F.2d 1117 (9th Cir. 1978), 573 F.2d 1118 (9th Cir. 1978), 573 F.2d 1121 (9th Cir. 1978), decisions at 459 F.Supp. 1020, 1097-1118 (W.D.Wash.1977-1978), aff'd sub nom. Puget Sound Gillnetters Association v. United States District Court, 573 F.2d 1123 (9th Cir. 1978), aff'd in part, vacated in part, and remanded sub nom. Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979) ("Fishing Vessel "). Phase I addressed whether the fishing clause appearing in six treaties ² The plaintiffs-appellees formally initiated Phase II in 1976 by filing amended and supplemental complaints. Phase II addresses whether artificially-propagated hatchery fish are included in the allocable fish population, and whether the right of taking fish incorporates the right to have the treaty fish protected from environmental degradation. ³ After extensive discovery and pretrial preparation, the plaintiffs-appellees moved for partial summary judgment on the issue of the environmental right. ⁴ The parties filed cross-motions for summary judgment on the hatchery issue. The district court, as already noted, held that the hatchery fish were includible and that treaty fish were protected from environmental degradation.

                negotiated by Governor Isaac Stevens between the United States and several Pacific Northwest Indian tribes in 1854 and 1855 ("the treaty" or "the treaties") entitles the Indians to a specific allocation of the salmon and steelhead trout in the treaty area.  The geographical region affected by the treaties comprises the State of Washington west of the Cascade Mountains and north of the Columbia River drainage area, including the American portion of the Puget Sound watershed, the watersheds of the Olympic Peninsula north of the Grays Harbor watershed, and the offshore waters adjacent to those areas ("the case area").  506 F.Supp. at 190 n. 6.  The Supreme Court concluded that "[b]oth sides have a right, secured by treaty, to take a fair share of the available fish.... [and] an equitable measure of the common right should initially divide the harvestable portion of each run that passes through a 'usual and accustomed' place into approximately equal treaty and non-treaty shares, and should then reduce the treaty share if tribal needs may be satisfied by a lesser amount."   Fishing Vessel, 443 U.S. at 684-85, 99 S.Ct. at 3073-74
                

III.

DISCUSSION

A. The Hatchery Issue

1. The district court's holding.

At the summary judgment hearing in the court below, the State argued that the "first generation" of hatchery-produced fish should be excluded from the allocation. It conceded that subsequent generations, which spend their entire life cycle in the natural environment, are part of the allocable population. The district court rejected the State's position. It held that all hatchery fish must be included in the computation of shares "in order to effectuate the parties' intent and the purposes of the fishing clause." 506 F.Supp. at 197. The court mustered support for that result from (1) its interpretation of Fishing Vessel; (2) its inability to discern any recognized limitations on the Indian right to take fish on the basis of fish species or origin; (3) the role that non-Indian commercial fishing and non-Indian degradation of fish habitat played in causing the natural fishery's decline; (4) the fact that the State hatchery program was established to replace natural fish that were "artificially" lost; and (5) the practical effect of excluding what constitutes an ever-increasing proportion of the case fish population from the treaty allocation area. ⁵ Id. at 197-99. Thus, the district court held that hatchery fish are "fish" under the treaty regardless of whether they originate in State, Indian, or federal hatcheries, or from cooperative ventures. 506 F.Supp. at 202.

The district court, in interpreting the Supreme Court's resolution of the Phase I allocation question in Fishing Vessel, considered the hatchery fish issue as virtually decided by that case as well. To quote the district court, "[t]he Supreme Court's recent reaffirmation of the longstanding view that the treaties were designed to guarantee the tribes an adequate supply of fish goes far toward resolving the hatchery issue." 506 F.Supp. at 197. While we reach the same conclusion as the district court on the hatchery fish issue, we differ with its interpretation of Fishing Vessel. Because that difference is fundamental to understanding our position in this case, we set it forth here.

In Fishing Vessel, the Supreme Court held that the fishing clause gives the Indians more than equal access to the fishing grounds. Under the unforeseen circumstances of relative scarcity, the treaty right entitles the Indians to an allocation of up to fifty percent of the harvestable fish runs that pass through their usual and accustomed fishing places, subject to reduction if the Indians' moderate living needs can be satisfied with less. Fishing Vessel, 443 U.S. at 686-87, 99 S.Ct. at 3074-75. The Court did not say that the treaty right guarantees the Indians that there will always be an "adequate supply of fish." Compare 443 U.S. at 686 & n. 27, 99 S.Ct. at 3075 & n. 27 with 506 F.Supp. at 197. Nor did Fishing Vessel say that the treaty guarantees them a means by which their moderate living needs can be met by fishing in perpetuity.

Although the district court qualifies its "guarantee" with an express limitation (the requirement of sharing the harvest "in common with" non-Indians) and some implicit ones, ⁶ we believe that these qualifications do not undo the faulty presumption inherent in the district court's "guarantee" of an adequate supply of fish--i.e., that Fishing Vessel created a floor on Indian fishing rights as well as a ceiling. Cf. 443 U.S. at 686 & n. 27, 99 S.Ct. at 3075 & n. 27. As we read the Supreme Court's opinion, Fishing Vessel mandates an allocation of fifty percent to the Indians, subject to a revision downward if moderate living needs can be met with less. ⁷

2. The State's arguments on appeal.

On appeal the State argues that the district court erred in relying on Fishing Vessel to find that hatchery fish are subject to treaty allocation; that inclusion of hatchery...