769 F.2d 1410 (9th Cir. 1985), 83-4254, United States v. State of Or.

Docket Nº83-4254.
Citation769 F.2d 1410
Party NameUNITED 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
Case DateAugust 29, 1985
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1410

769 F.2d 1410 (9th Cir. 1985)

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.

No. 83-4254.

United States Court of Appeals, Ninth Circuit

August 29, 1985

Argued and Submitted July 9, 1985.

Page 1411

[Copyrighted Material Omitted]

Page 1412

Maria A. Iizuka, Dirk D. Snel, Dept. of Justice, Washington, D.C., for the U.S.A.

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.

ALARCON, Circuit 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.

FACTUAL BACKGROUND

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

Page 1413

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).

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:

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...

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    ...argues that we should decline to hear Schumaier's challenge because it was not presented to the court below. See United States v. Oregon, 769 F.2d 1410, 1414 (9th Cir.1985) ("[A]bsent exceptional circumstances, an issue not raised below will not be considered on appeal."). Schumai......
  • 936 F.Supp. 738 (D.Idaho 1996), CV. 94-0159, Pacific Rivers Council v. Thomas
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    ...the power to modify the terms of its injunction in the event that changed circumstances require it. United States v. State of Oregon, 769 F.2d 1410, 1416 (9th Cir.1985); System Federation v. Wright, 364 U.S. 642, 646, 81 S.Ct. 368, 370, 5 L.Ed.2d 349 (1961); Anderson v. Central Point School......
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243 cases
  • 326 B.R. 683 (6th Cir.BAP (Ohio) 2005), 04-8062, In re Gasel Transp. Lines, Inc.
    • United States
    • Federal Cases United States Bankruptcy Courts Sixth Circuit
    • June 9, 2005
    ...880 (9th Cir.2000) (" '[T]he label attached to a motion does not control its substance.' ") (quoting United States v. Oregon, 769 F.2d 1410, 1414 n. 4 (9th The labels used in Volvo's application for administrative expense claim convey mixed legal requests. The application purports......
  • 25 F.3d 743 (9th Cir. 1994), 91-55070, Credit Managers Ass'n of Southern California v. Kennesaw Life and Acc. Ins. Co.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • May 19, 1994
    ...raised this issue in the district court and no exceptional circumstances exist, we will not consider it. See United States v. Oregon, 769 F.2d 1410, 1414 (9th Cir.1985) ("The rule is well-established that absent exceptional circumstances, an issue not raised below will not be considere......
  • 842 F.2d 1074 (9th Cir. 1988), 87-5838, Kirshner v. Uniden Corp. of America
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • March 18, 1988
    ...argues that we should decline to hear Schumaier's challenge because it was not presented to the court below. See United States v. Oregon, 769 F.2d 1410, 1414 (9th Cir.1985) ("[A]bsent exceptional circumstances, an issue not raised below will not be considered on appeal."). Schumai......
  • 936 F.Supp. 738 (D.Idaho 1996), CV. 94-0159, Pacific Rivers Council v. Thomas
    • United States
    • Federal Cases United States District Courts 9th Circuit District of Idaho
    • July 5, 1996
    ...the power to modify the terms of its injunction in the event that changed circumstances require it. United States v. State of Oregon, 769 F.2d 1410, 1416 (9th Cir.1985); System Federation v. Wright, 364 U.S. 642, 646, 81 S.Ct. 368, 370, 5 L.Ed.2d 349 (1961); Anderson v. Central Point School......
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