U.S. v. State of Wash.

• Citation: 759 F.2d 1353
• Decision Date: 29 April 1985
• Docket Number: No. 81-3111,81-3111
• Parties: , 15 Envtl. L. Rep. 20,813 UNITED STATES of America, Plaintiff-Appellee, and Quileute, Makah, Lummi, Muckleshoot, Squaxin Island, Skokomish, Lower Elwha, Snoqualmie, Duwamish, Stillaguamish, Sauk-Suiattle, Nisqually, Swinomish, Tulalip, Puyallup, Quinault, Upper Skagit, Yakima, Nooksack, Steilacoom, Samish, Snohomish, and Port Gamble Band of Clallam Indian Tribes, Plaintiff-Intervenors-Appellees, v. STATE OF WASHINGTON, Defendant-Appellant, and State of Washington Department of Fisheries and State of Washington Department of Game, Defendant-Intervenors.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1353

759 F.2d 1353

2 Fed.R.Serv.3d 23, 15 Envtl. L. Rep. 20,813

UNITED STATES of America, Plaintiff-Appellee and Quileute, Makah, Lummi, Muckleshoot, Squaxin Island Skokomish, Lower Elwha, Snoqualmie, Duwamish, Stillaguamish Sauk-Suiattle, Nisqually, Swinomish, Tulalip, Puyallup Quinault, Upper Skagit, Yakima, Nooksack, Steilacoom, Samish, Snohomish, and Port Gamble Band of Clallam Indian Tribes, Plaintiff-Intervenors-Appellees, v. STATE OF WASHINGTON, Defendant-Appellant, and State of Washington Department of Fisheries and State of Washington Department of Game, Defendant-Intervenors.

No. 81-3111.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc

Oct. 12, 1983.

Decided April 29, 1985.

Anne S. Almy, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Alam C. Stay, Evergreen Legal Service, Seattle, Wash., for Quileute and Nisqually Tribes.

Edward B. Mackie, Deputy Atty. Gen., Olympia, Wash., for defendant-appellant.

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

Before BROWNING, SNEED, KENNEDY, ANDERSON, SKOPIL, SCHROEDER, ALARCON, POOLE, FERGUSON, NELSON, and NORRIS, Circuit Judges.

PER CURIAM:

The State's petition for rehearing is granted and our opinion of December 17, 1984 is withdrawn. The opinion of the panel which first heard the case is vacated. See United States v. Washington, 694 F.2d 1374 (9th Cir.1983). The following constitutes the opinion of the court.

The State of Washington appeals from the district court's grant of declaratory judgment in the second phase of this protracted '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 ....' "

litigation over Indian Treaty fishing rights in the Pacific Northwest. The trial court granted the declaratory relief sought by the United States on behalf of the treaty Indians. The Tribes named in the caption joined as intervenors. The district court characterized its disposition as "but the most recent link in a long chain of opinions construing the following twenty-seven words:

United States v. Washington, 506 F.Supp. 187, 189 (W.D.Wash.1980).

The district court granted a declaratory judgment with respect to two issues, which it designated as the hatchery fish issue and the environmental issue. To resolve the hatchery fish issue, the court declared that hatchery fish are included in the fish to be apportioned by the treaty. To resolve the environmental issue, the court declared that the right to take fish necessarily includes the right to have those fish protected from man-made despoliation, so that the treaties impose upon the State a corresponding duty to refrain from degrading or authorizing the degradation of the fish habitat to an extent that would deprive the treaty Indians of their moderate living needs. We affirm the district court's declaratory judgment on the hatchery fish issue. We hold that declaratory relief on the environmental issues must be denied and vacate that part of the judgment of the district court.

A century-old conflict over fishing rights between the Indians and the State prompted the United States in 1970 to begin litigation on its own behalf and as trustee of interested Indian tribes. The suit 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.), 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), various appeals dismissed, 573 F.2d 1117, 1118, 1121 (9th Cir.1978), decisions at 459 F.Supp. 1020, 1097-118 (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 ").

District Judge Boldt's 1974 decision determined that the fishing clause appearing in six treaties negotiated by Governor Issac Stevens between the United States and several Pacific Northwest Indian tribes in 1854 and 1855 entitles the Tribes to a specific allocation of the salmon and steelhead trout in the treaty area. The treaties bind the State of Washington under the Supremacy Clause, U.S. Const. art. VI, cl. 2, which imposes upon the states the obligation to observe and carry out the provisions of treaties of the United States. 506 F.Supp. at 189 n. 2, 206; United States v. Washington, 384 F.Supp. 312, 401 (W.D.Wash.1974). 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 Supreme Court affirmed. It held that "[b]oth sides have a right, secured by treaty, to take a fair share of the available fish.... [A]n 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 nontreaty 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.

The United States, and the Tribes as intervenors, initiated Phase II in 1976 by filing amended and supplemental complaints. The complaints requested a declaration We consider first whether the orders of the district court are final and appealable. The district court's grant of declaratory relief followed months of procedural maneuvering by the parties. In July 1978, the Tribes filed with the district court a "Statement of Declaratory and Injunctive Relief." In November 1978, the plaintiffs filed a summary judgment motion seeking a declaratory judgment that the treaty reserves to the Tribes a right to protection against the State's "adverse environmental actions or inactions." In January 1980, the plaintiffs moved for partial summary judgment on the hatchery fish issue, seeking a declaration that "hatchery fish are included within the 'treaty right of taking fish.' "

that artificially propagated hatchery fish are included in the allocable fish population, a declaration that the right to take fish incorporates the right to have treaty fish protected from man-made despoliation, and such further relief as the court deemed necessary to safeguard the rights declared. This phase of the litigation in district court ended with the court's grant of declaratory relief on the hatchery fish and the environmental issues. The State appeals.

The district court granted the motions and directed the parties to file a proposed order consistent with the factual findings and legal conclusions stated in its opinion. 506 F.Supp. at 208. The Tribes filed a proposed declaratory judgment, citing to 28 U.S.C. Sec. 2201, on both the environmental and hatchery fish issues. The proposed order by its terms excluded from its scope any "issue of whether the state has violated the treaty tribes' right to have the ... environment protected" and "what remedies, if any, plaintiffs are entitled to." The proposed order stated that it "constitutes a final Declaratory Judgment and is reviewable as such."

The district court entered an "Amended Judgment" in January 1981, noting its jurisdiction "pursuant to 28 U.S.C. Secs. 1331, 1343(3) and (4), 1345, and 1362, to enter a declaratory judgment pursuant to 28 U.S.C. Sec. 2201." The court's judgment adopted the language of the Tribes' proposed order regarding the scope of the judgment, and reiterated that the "Amended Judgment constitutes a final declaratory judgment and shall be reviewable as such."

The district court's judgment completely resolved the Tribes' claims in Phase II of the action. The plaintiffs were granted the only relief they sought, declaratory judgment on the environmental and hatchery fish issues. We therefore have jurisdiction under 28 U.S.C. Sec. 1291 to review the district court's grant of declaratory judgment pursuant to 28 U.S.C. Sec. 2201. See United States v. Adair, 723 F.2d 1394, 1397 (9th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 3536, 82 L.Ed.2d 841 (1984); Laguna Hermosa Corp. v. Martin, 643 F.2d 1376, 1978 (9th Cir.1981).

The Declaratory Judgment Act does not grant litigants an absolute right to a legal determination. Zemel v. Rusk, 381 U.S. 1, 19, 85 S.Ct. 1271, 1282, 14 L.Ed.2d 179 (1965); Public Service Commission v. Wycoff Co., 344 U.S. 237, 241, 73 S.Ct. 236, 239, 97 L.Ed. 291 (1952); 28 U.S.C. Sec. 2201 (1982). The decision to grant declaratory relief is a matter of discretion, A.L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324, 331, 82 S.Ct. 337, 342, 7 L.Ed.2d 317 (1961); Cheesebrough-Ponds, Inc. v. Faberge, Inc., 666 F.2d 393, 396 (9th Cir.), cert. denied, 459 U.S. 967, 103 S.Ct. 294, 74 L.Ed.2d 277 (1982), even when the court is presented with a justiciable controversy. International Harvester Co. v. Deere & Co., 623 F.2d 1207, 1217 (7th Cir.1980); Muller v. Olin Mathieson Chemical Corp., 404 F.2d 501, 505 (2d Cir.1968). In fact, the court may, after a full consideration of the merits, exercise its discretion to refuse to grant declaratory relief because the state of the record is inadequate to support the extent of relief sought. National Automatic Laundry & Cleaning Council v. Schultz, 443 F.2d 689, 703 (D.C.Cir.1971).

The customary deference for the district court is not applicable to its determination to grant a declaratory judgment. The court of appeals must exercise its own In determining whether the decision to grant declaratory relief is proper, we consider both the...