US v. State of Wash., CV 9213.

CourtUnited States District Courts. 9th Circuit. United States District Court (Western District of Washington)
Citation873 F. Supp. 1422
Docket NumberNo. CV 9213.,CV 9213.
PartiesUNITED STATES of America, et al., Plaintiffs, v. STATE OF WASHINGTON, et al., Defendants.
Decision Date20 December 1994

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Christopher Pickrell, Asst. U.S. Atty., W.D. of Wash., Seattle, WA, co-counsel for USA.

Allan E. Olson, Sharon I. Haensly, LaConner, WA, for Swinomish Indian Tribal Community.

William A. White, Asst. U.S. Atty., U.S. Dept. of Justice, Indian Resources Section, Environment & Natural Resources Div., Washington, DC, co-counsel for USA.

Mason D. Morisset, Pirtle Morisset, et al., Seattle, WA, for Tulalip Tribes.

Kevin R. Lyon, Olympia, WA, for Squaxin Island Tribe.

Richard Reich, Eric Nielsen, Office of the Reservation Atty., Taholah, WA, for Quinault Tribe.

Phillip E. Katzen, Allen H. Sanders, Debora Juarez, Evergreen Legal Services, Seattle, WA, for Jamestown, Lower Elwha, Pt. Gamble Bands of S'Klallam, Nisqually, Nooksack, Sauk-Suiattle, Skokomish, Squaxin Island, Stillaguamish Tribe, and Upper Skagit Tribes.

Annette M. Klapstein, John Howard Bell, Debra S. O'Gara, Law Office, Puyallup Tribe, Tacoma, WA, for Puyallup Tribe.

Daniel A. Raas, Harry L. Johnsen, Andrea S. McNamara, Bellingham, WA, for Lummi Tribe.

Bill Tobin, Vashon, WA, for Nisqually Indian Tribe.

Jack W. Fiander, In-House Counsel, Yakama Indian Nation, Toppenish, WA, for Confederated Tribes and Bands of the Yakama Indian Nation.

Robert L. Otsea, Jr., Laura Ann Lavi, Office of the Tribal Atty., Auburn, WA, for Muckleshoot Tribe.

Peter C. Monson, Indian Resources Sect., Denver Environment & Natural Resource Div., U.S. Dept. of Justice, Denver, CO, co-counsel for USA.

Kathryn Nelson, Amy C. Lewis, Eisenhower, Carlson, et al., Tacoma, WA, for Pt. Gamble Jamestown, & Lower Elwha Bands of S'Klallam and for the Skokomish Tribe.

Marc Slonim, John Arum, Richard Berley, Ziontz, Chestnut, et al., Seattle, WA, for Makah Tribe.

John Sledd, Suquamish, WA, for Suquamish Tribe.

Vernon Peterson, Regional Solicitor's Office, U.S. Dept. of Interior, Portland, OR, co-counsel for USA.

Leslie Barnhart, Quileute Natural Resources, LaPush, WA, for Quileute Tribe.

Nettie Alvarez, Richard Ralson, Seattle, WA, for Hoh Tribe.

John W. Hough, Sr., Asst. Atty. Gen., Olympia, WA, for State of Wash.

Robert K. Costello, Asst. Atty. Gen., Jay Geck, Olympia, WA, for Depts. of Fisheries & Wildlife.

Robert Zuanich, Seattle, WA, for Puget Sound Vessel Owners Assoc. and Gary Westman.

Jeffrey Jon Bodé, Bellingham, WA, co-counsel for Nooksack Tribe.

Mary Linda Pearson, Suquamish, WA, co-counsel for Suquamish Tribe.

Edward G. Maloney, Sedro Wooley, WA, Harold Chesnin, Mathews Garlington-Mathews & Chesnin, Seattle, WA, co-counsel for the Upper Skagit Tribe.

Robert C. Hargreaves, Asst. Atty. Gen., Olympia, WA, co-counsel for State of W.Va.

Steven Marshall, Perkins Coie, Bellevue, WA, James R. Rasband, Al Gidari, Perkins Coie, Seattle, WA, co-counsel for intervenors Puget Sound Shellfish Growers.

Eric Richter/John A. Roberts, Skeel, Henke, et al., Seattle, WA, for intervenor defendants James and Ann Carter, William and Charmond Adkins, Alexander, et al.

Harold P. Dygert, Asst. Atty. Gen., Joseph S. Montecucco, Jay D. Geck, Asst. Attys. Gen., Shellfish Div., Olympia, WA, co-counsel for State of W.Va. James M. Johnson, Olympia, WA, co-counsel for intervenors 26 UPOW.

John A. Knox, Williams Kastner & Gibbs, Seattle, WA, counsel for amicus curiae party Inner Sound Crab Ass'n.

MEMORANDUM OPINION AND ORDER

RAFEEDIE, District Judge.

I. INTRODUCTION
A. History of the Case

This sub-proceeding, filed by the United States and 16 Indian Tribes,1 involves the Stevens Treaties2 which were interpreted in United States v. State of Washington, 384 F.Supp. 312 (W.D.Wash.1974) (hereinafter Washington I); aff'd, 520 F.2d 676 (9th Cir. 1975) (hereinafter Washington II); aff'd in substantial part, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979). The parties filed this action seeking a declaration of the nature and extent of tribal off-reservation shellfishing rights, and the extent to which such rights may be affected by the following limiting provision ("the Shellfish Proviso"): "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 ... Provided, however, that they shall not take shellfish from any beds staked or cultivated by citizens."3

Washington I was decided in 1974. At that time, the Court reserved jurisdiction to hear other unresolved issues arising out of the Stevens Treaties. In Washington I, the issue before the Court was the nature and extent of the treaty Tribes' off-reservation fishing rights with respect to anadromous fish. That decision established the locations of the Tribes' usual and accustomed grounds and stations and found that the Tribes were entitled to take 50% of the harvestable fish from those grounds and stations. Subsequently, the Supreme Court substantially affirmed the decision finding that the trial court had correctly adjudicated the nature and extent of the Tribes' fishing rights. Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979) (hereinafter Fishing Vessel).

Thus, the treaty Tribes' rights with respect to anadromous fish in the Puget Sound area is the law of the land. Finally, on September 2, 1993, consistent with Washington I and Fishing Vessel, this Court ruled that "shellfish" are "fish," within the meaning of the Treaties. Thus, the treaty Tribes' right to take shellfish is limited, if at all, only by the Shellfish Proviso in the Treaties or to the extent that the Court finds the Moderate Living Doctrine to be applicable from the evidence and the law.

B. The Parties' Contentions

In this action, the tribal plaintiffs seek the following declaratory relief: (1) that they have the right to take 50% of all of the species of harvestable shellfish that may be safely harvested within their usual and accustomed grounds and stations; (2) that the usual and accustomed grounds and stations are those previously adjudicated in Washington I; (3) that the phrase "staked or cultivated by citizens" in the Shellfish Proviso be interpreted to mean only those non-natural beds that have been staked or cultivated; (4) that the right to take shellfish extends to natural clam beds that exist under the artificial shellfish beds; (5) that the Tribes' authority to regulate the harvest be confirmed; (6) that the Court order co-management of the resource between the Tribe and the State; (7) that the Court enjoin the application and enforcement of specific state statutes which the Tribes claim would be discriminatory in practice; (8) that the Upper Skagit Tribe is the successor to the Nuwha'ha and the Bsigwigwilts and is therefore entitled to take shellfish at the usual and accustomed grounds and stations of the Nuwha'ha and Bsigwigwilts; and (9) that the Yakama Nation has not established any usual and accustomed grounds and stations and thus is not entitled to take shellfish.

Because the Court has found that shellfish are fish, only a limited issue is currently before the Court, namely the effect of the Shellfish Proviso and the nature and scope of the remedy to be granted.

Opposing the plaintiffs are the State of Washington and the intervenors4 who contend that the "staked or cultivated" provision protects state and private property from shellfishing by the Tribes. Alternatively, but in a similar vein, the intervening shellfish growers argue that the lands which they own or occupy and upon which they conduct the business of shellfish growing have been "staked or cultivated" within the meaning of the Treaties' Shellfish Proviso, hence they conclude that those lands should be exempted from tribal shellfishing under the treaties.

C. Canons of Interpretation

In interpreting the Shellfish Proviso, in general, the Court is bound by both general rules of interpretation, and the specific rules handed down by the Supreme Court which apply when Indian Tribes assert treaty rights. In particular, the Court must use special canons of construction to determine the meaning of Indian treaties, all of which amount to the same proposition: "Ambiguities occurring will be resolved from the standpoint of the Indians." Winters v. United States, 207 U.S. 564, 576, 28 S.Ct. 207, 211, 52 L.Ed. 340 (1908). Similarly, treaties with Indians "are to be construed, so far as possible, in the sense in which the Indians understood them, and `in a spirit which generously recognizes the full obligation of this nation to protect the interests of a dependent people.'" Choctaw Nation of Indians v. United States, 318 U.S. 423, 432, 63 S.Ct. 672, 678, 87 L.Ed. 877 (1943) (quoting Tulee v. Washington, 315 U.S. 681, 684, 62 S.Ct. 862, 864, 86 L.Ed. 1115 (1942)).

These canons of construction, however, do not give the court license to interpret a treaty according to the Indians' preferences. The Supreme Court has left no doubt that "even Indian treaties cannot be re-written or expanded beyond their clear terms to remedy a claimed injustice or to achieve the asserted understanding of the parties." Choctaw Nation, 318 U.S. at 432, 63 S.Ct. at 678. Such an exercise "would be an intrusion upon the domain committed by the Constitution to the political departments of the government." Choctaw & Chickasaw Nations v. United States, 179 U.S. 494, 532, 21 S.Ct. 149, 164, 45 L.Ed. 291 (1900).

Finally, in United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089 (1905), the Supreme Court adopted a "reservation of rights" approach in interpreting treaties with Indian Tribes. In Winans, the controversy arose when the settlers, who owned the land fronting the Columbia River, denied Indians access to the river abutting their land and by exercising their rights...

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