U.S. v. State of Or.
| Decision Date | 29 August 1985 |
| Docket Number | No. 83-4254,83-4254 |
| Citation | 769 F.2d 1410 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, and The Confederated Tribes and Bands of the Yakima Indian Nation; the Confederated Tribes of the Warm Springs Reservation of Oregon; Confederated Tribes of the Umatilla Indian Reservation; and Nez Perce Tribe of Idaho, Intervenors-Appellees, v. STATE OF OREGON, Defendant, State of Washington, Defendant-Appellant, State of Idaho, Intervenor. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Howard Arnett, Johnson, Marceau, Karnopp & Petersen, Bend, Or., Tim Weaver, Hovis, Cockrill, Weaver & Bjur, Yakima, Wash., for intervenors Indian Tribes.
Stephen V. Goddard, Deputy Atty. Gen., Boise, Idaho, for State of Idaho.
James M. Johnson, Sr. Asst. Atty. Gen., Kenneth O. Eikenberry, Atty. Gen., Olympia, Wash., for State of Wash.
Appeal from the United States District Court for the District of Oregon.
Before BROWNING and ALARCON, Circuit Judges, and WILKINS, * District Judge.
This appeal arises out of continuing litigation, begun in 1968, over the rights of various Indian Tribes to the anadromous fishery of the Columbia River and its tributaries. In the current dispute, the States of Washington and Idaho appeal from an expired preliminary injunction issued in 1983 at the request of the Tribes under the district court's retained jurisdiction in the case. The injunction prevented the States of Oregon and Washington from enforcing certain fishing regulations against the Tribes during the fall 1983 fish runs; it also adopted the Tribes' 1983 proposed fishing seasons.
Originally, the parties to this appeal included the Tribes, the United States, the State of Washington, and the State of Oregon. Oregon, however, abandoned its issues on appeal, and the State of Idaho intervened as of right. See United States v. Oregon, 745 F.2d 550 (9th Cir.1984).
Although the parties raise several issues on appeal, we consider only those issues which are necessary to resolve this dispute and which the parties properly raised below. The primary issues concern the district court's finding that the fishery regulations promulgated by the Columbia River Compact violated the Indians' treaty fishing rights, and that court's jurisdiction to set aside those regulations and adopt the Tribes' proposed seasons by means of an injunction. We affirm.
In 1968, the United States and individual members of the Confederated Tribes and Bands of the Yakima Indian Nation filed separate actions against the State of Oregon to define the Indians' treaty right to take fish "at all usual and accustomed places" on the Columbia River. Four Indian Tribes intervened, and the district court consolidated the actions. In 1969, the court entered judgment, defining the extent to which Oregon can regulate Indian fishing, and enjoining Oregon from enforcing certain fishing regulations against the Tribes. Sohappy v. Smith, 302 F.Supp. 899 (D.Or.1969); see also United States v. Oregon, 657 F.2d 1009, 1011 (9th Cir.1981). The district court expressly retained continuing jurisdiction to review future fishery regulations and to modify or enforce its decree. Sohappy, 302 F.Supp. at 911; Sohappy v. Smith, 529 F.2d 570, 571-72 (9th Cir.1976) (per curiam).
In 1974, after agreeing to be bound by the 1969 decree, the State of Washington intervened as of right. Over the years, the parties invoked the district court's jurisdiction several times; in turn, the district court encouraged the parties to adopt a comprehensive plan concerning fishery on the Columbia.
The parties finally signed an agreement, the Columbia River Management Plan (the Plan), which the district court formally approved on February 28, 1977. The Plan set conservation goals for each fish species, established certain fishing regulations, and provided for the establishment of future management techniques. The Plan did not establish fishing locations, times, or definite The Plan contained several provisions of particular relevance to this action. First, the Plan set escapement goals for each species of fish, and permitted the Tribes to reduce their deficit harvest quotas in succeeding years. Second, the Plan prohibited the Tribes from establishing commercial fisheries for steelhead trout. Third, it restricted to a minimum of eight inches the mesh size of nets used to harvest fish. This provision permitted smaller fish, including steelhead, to escape. Fourth, the Plan specified that:
quotas. The states regulate these details through the Columbia River Compact (the Compact), an interstate agency which controls commercial fishery on the river. United States v. Oregon, 718 F.2d 299, 302 (9th Cir.1983).
In the event that significant management problems arise from this agreement that cannot be resolved by mutual agreement, the parties agree to submit the issues to federal court for determination. In any event, the Court shall retain jurisdiction over the case....
Finally, the Plan provided that:
Upon thirty days written notice by any party, after five years from date, this comprehensive plan may be withdrawn or may be renegotiated to assure that the terms set forth represent current facts, court decisions, and laws.
In early 1982, two Tribes gave notice of their intent to withdraw from the Plan. However, later that year the court apparently directed the parties to continue following the Plan.
On August 3, 1983, the Tribes notified the Plan's management committee that they were considering submitting a proposal to the Compact that would eliminate the eight-inch mesh restriction and permit them to establish commercial steelhead fisheries.
On August 12, 1983, the Compact met to establish fishery regulations for the fall 1983 fish runs. At that meeting, the Tribes formally proposed that the Compact remove the eight-inch mesh restriction and permit them to harvest steelhead commercially. They also proposed seasons for the fall runs.
The Compact rejected the Tribes' proposal and adopted seasons shorter in duration and more restrictive geographically than those proposed by the Tribes. The Compact contended that its seasons conformed to applicable legal standards and the Plan, and that its seasons were necessary for the conservation of the fish, particularly the upriver "bright" salmon.
On August 16, the Tribes orally notified the States of Oregon and Washington that the Tribes would seek an order preventing the States from enforcing the Compact regulations. On August 19, the Tribes served the States with the motion for a preliminary injunction and their supporting memorandum and affidavits. 1
On August 24, 1983, the district court held a hearing on the preliminary injunction. The district court denied the State of Idaho's motion to intervene as of right, and found that the Compact's fall 1983 regulations violated the Indians' treaty rights. Specifically, the court found that the Compact regulations regarding upriver brights were not the least restrictive regulations necessary for conservation of the fish and that the States had impermissibly subordinated the Tribes' treaty rights to goals other than conservation.
The district court also found that the Compact's geographical restrictions were unnecessary to preserve the fish, and that the eight-inch mesh requirement unnecessarily restricted the Tribes' right to harvest available steelhead trout, coho salmon, and fall chinook jack salmon. The court noted that changed circumstances and a threat of irreparable injury to the Tribes justified its modification of the Plan. Under its retained jurisdiction, the court therefore enjoined the States from enforcing the 1983 Compact regulations, adopted the Tribes' The States of Washington and Idaho now appeal.
proposals, and ordered the parties to negotiate a new management plan. 2
Washington and Idaho contend that the district court exceeded its authority in issuing the injunction. Specifically, they argue that the Compact has exclusive authority to establish fishery regulations for the Columbia River; that the Compact's 1983 regulations complied with all relevant legal standards, including the 1977 Plan; and that therefore the district court lacked the power to enjoin the States from enforcing the Compact regulations or to adopt regulations not proposed by the Compact. The States further contend that the district court should have required the Tribes to bring any action for modification under Fed.R.Civ.P. 60(b) rather than as a motion for preliminary injunction, and that the district court failed to provide them with proper notice and an adequate hearing on the motion. In connection with these arguments, the parties dispute whether the 1977 Plan remains in effect after two Tribes noticed their intent to withdraw. The Tribes argue that the appeal is moot.
As a preliminary matter, we decline the Tribes' invitation to reconsider their contention that this appeal is moot. Although the 1983 fishing season has expired, a motions panel of this court found that the appeal presents questions which are "capable of repetition, yet evading review." Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975) (per curiam). We see no reason to disturb that ruling. The appeal presents not only questions concerning the allocation of fish, but questions concerning the district court's ability to review and modify fishery regulations that allegedly violate the Indians' treaty rights. These issues are likely to recur. 3 See United States v. Oregon, 718 F.2d 299, 302-03 (9th Cir.1983) (); United States v. Oregon, 657 F.2d 1009, 1012 n. 7 (9th Cir.1981...
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