U.S. v. State of Or.

• Decision Date: 27 August 1990
• Docket Number: Nos. 88-4311,88-4316 and 88-4347,s. 88-4311
• Citation: 913 F.2d 576
• Parties: 20 Envtl. L. Rep. 21,232 UNITED STATES of America, Plaintiff-Appellee, Confederated Tribes of the Warm Springs Reservation, et al.; Confederated Tribes & Bands of the Yakima Indian Nation; Confederated Tribes of the Umatilla Indian Reservation; Nez Perce Indians, Intervenors-Appellees, State of Idaho, Shoshone-Bannock Tribe, Intervenors-Appellants, Makah Indian Tribe, Applicant in Intervention Appellant, v. STATE OF OREGON; State of Washington, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 576

913 F.2d 576

20 Envtl. L. Rep. 21,232

UNITED STATES of America, Plaintiff-Appellee Confederated Tribes of the Warm Springs Reservation, et al. Confederated Tribes & Bands of the Yakima Indian Nation Confederated Tribes of the Umatilla Indian Reservation; Nez Perce Indians, Intervenors-Appellees State of Idaho, Shoshone-Bannock Tribe, Intervenors-Appellants, Makah Indian Tribe, Applicant in Intervention Appellant, v. STATE OF OREGON; State of Washington, Defendants-Appellees.

Nos. 88-4311, 88-4316 and 88-4347.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 10, 1990.

Decided Aug. 27, 1990.

Marc D. Slonim and Alvin J. Ziontz, Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, Wash., Clive J. Strong and Charles F. Adams, Deputy Atty. Gen., Boise, Idaho, and Howard A. Funke, Fort Hall, Idaho, for defendants-intervenors-appellants.

Dirk D. Snel, Land & Natural Resources Div., and M. Alice Thurston, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Howard G. Arnett, Marceau, Karnopp, Petersen, Noteboom & Hubel, Bend, Oregon, Timothy Weaver, Cockrill, Weaver & Bjur, Yakima, Wash., Craig Dorsay, Oregon Legal Services and Lindsey, Hart, Neil & Weigler, Portland, Or., for intervenors-appellees.

Robert K. Costello, Asst. Atty. Gen., Olympia, Wash., and Cheryl F. Coodley, Asst. Atty. Gen., Portland, Or., for defendants-appellees.

Thane W. Tienson and Mary Kyle McCurdy, Mitchell, Lang & Smith, Portland, Or., for amici curiae.

Appeal from the United States District Court for the District of Oregon.

Before BROWNING, BEEZER and RYMER, Circuit Judges.

BEEZER, Circuit Judge:

These appeals concern the Oregon district court's approval of a plan allocating the harvest of Columbia River salmon and steelhead. The State of Idaho and the Shoshone-Bannock tribes challenge the allocation of fish that reach Idaho. They opposed the plan at the time of the district court's approval hearings, but the court approved the plan over their objections. The Makah, an ocean fishing tribe, challenge the quota allocated to the ocean fishery. They sought to intervene in the suit, but their motion was denied. Each party appeals the adverse rulings affecting it. We affirm.

I

A complex judicial and administrative scheme has evolved to regulate the harvest of Columbia River salmon and steelhead. These fish travel hundreds of miles along an arduous migratory route and are very valuable. See Idaho ex rel. Evans v. Oregon, 444 U.S. 380, 382, 100 S.Ct. 616, 618, 62 L.Ed.2d 564 (1980) (Idaho I ). Ordinarily, regulation of these fisheries would be a local matter, determined by state law. However, in 1968, the Supreme Court held that Indian tribes with treaty rights to fish may not be limited by state regulations that infringe on those rights. Puyallup Tribe v. Department of Game, 391 U.S. 392, 88 S.Ct. 1725, 20 L.Ed.2d 689 (1968). Shortly thereafter, suits were filed in the federal district courts of Oregon and Washington to enforce this standard against the states. See Sohappy v. Smith/United States v. Oregon, 302 F.Supp. 899 (D.Or.1969); United States v. Washington, 384 F.Supp. 312 (W.D.Wash.1974), 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). Both courts retain continuing jurisdiction. In addition, Congress enacted the Fishery Conservation and Management Act of 1976 (FCMA), ¹ which regionalizes fishery management and can preempt state regulation.

United States v. Oregon became the forum for allocating the harvest of fish that enter the Columbia River system. See United States v. Oregon, 699 F.Supp. 1456, 1458-60 (D.Or.1988); Comment, Sohappy v. Smith: Eight Years of Litigation Over Indian Fishing Rights, 56 Or.L.Rev. 680 (1977). The parties to the suit are the states of Washington, Oregon, and Idaho, four Columbia River treaty tribes (Yakima, Nez Perce, Umatilla and Warm Springs), the Shoshone-Bannock tribes and the Colville tribe. The fishery is directly regulated by the states of Washington and Oregon under the 1918 Columbia River Compact. ² Harvest quotas are set by the compact states after negotiations with the other parties and adopted with court approval. A Technical Advisory Committee advises the Oregon court.

United States v. Washington became the forum for allocating fishing rights within the jurisdiction of the state of Washington, extending three miles out to sea. See United States v. Washington, 384 F.Supp. at 312. The parties to the action include the Puget Sound treaty tribes, ocean treaty tribes (including the Makah ³), certain Columbia River tribes for limited purposes, and the state of Washington. A Fisheries Advisory Board advises the Washington court.

Outside the three-mile limit, ocean fishing is regulated by the federal government under the FCMA. The FCMA establishes the Pacific Fishery Management Council (PFMC), which is composed of representatives of Washington, Oregon, California and Idaho, one representative of the Indian tribes, and the federal government. 16 U.S.C. Sec. 1852(a)(6). The PFMC develops a regional fishery management plan which must be consistent with applicable law, including Indian treaty rights, and must consider the regulations of coastal states. 16 U.S.C. Secs. 1853(a)(1)(C); 1853(b)(5).

These appeals concern the most recent Columbia River Fish Management Plan, approved by the Oregon court in 1988. It was negotiated by the parties to the suit from 1983 to 1987 and is intended to be effective for 10 years. In its final form, the plan sets minimum "escapement" levels for all Columbia River runs with quotas low enough to protect the weakest runs.

Idaho and the Shoshone-Bannock tribes fear the plan gives inadequate protection to Idaho wild steelhead. They also allege defects in the court's approval process. The Makah, not a party to the suit, contend that the plan assigns most of the allowable catch of the weakest run to river fishermen, requiring low ocean quotas. They seek to intervene to oppose the ocean quotas and to participate in future negotiations.

We have jurisdiction over these timely appeals under 28 U.S.C. Sec. 1291. The court's order approving the 1988 plan is an appealable post-judgment final order under the district court's continuing jurisdiction. United States v. Washington, 761 F.2d 1404, 1406-07 (9th Cir.1985). Denial of a motion to intervene is a final order and immediately appealable. Diaz v. Trust Territory of the Pacific Islands, 876 F.2d 1401, 1404 (9th Cir.1989).

II Idaho's Opposition to the Plan

Idaho opposed the 1988 plan chiefly because it provides insufficient protection for Idaho wild steelhead, which Idaho believes could face extinction. Accordingly, although Idaho participated in the negotiations, it did not sign the final plan. Idaho now challenges the court's approval of the plan on procedural and substantive grounds.

A. Procedural Claims

Idaho first argues that the district court erred because it considered Idaho's opposition to the plan to be a request for an injunction, placing the burden on Idaho to show the balance of hardships weighed in its favor. Idaho argues that the plan is more like a consent decree, requiring the court to review the substance of the plan for legality and fairness, with the burden on the proponents.

A consent decree is "essentially a settlement agreement subject to continued judicial policing." Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir.1983). It is not a decision on the merits or the achievement of the optimal outcome for all parties, but is the product of negotiation and compromise. See United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971). Consent decrees are often designed to be carried out over a number of years. Local 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 523 n. 13, 106 S.Ct. 3063 n. 13, 3076 n. 13, 92 L.Ed.2d 405 (1986). We have implied in earlier decisions that agreements reached in this matter may be consent decrees. See, e.g., United States v. Oregon, 769 F.2d 1410, 1416 (9th Cir.1985).

On appeal, all parties state that the plan is most like a consent decree. We agree that this characterization fits here. We review acceptance of a consent decree for abuse of discretion. Davis v. City & County of San Francisco, 890 F.2d 1438, 1445 (9th Cir.1989); Officers for Justice v. Civil Service Comm'n of the City and County of San Francisco, 688 F.2d 615, 625-26 (9th Cir.1982), cert. denied, 459 U.S. 1217, 103 S.Ct. 1219, 75 L.Ed.2d 456 (1983). Under this standard, we will reverse the district court only if its decision was based on an error of law or clearly erroneous findings of fact. United States v. Oregon, 769 F.2d at 1416. We may not substitute our notion of fairness for that of the district court. Davis, 890 F.2d at 1445.

Idaho identifies several aspects of the district court's ruling that it contends are errors of law. We discuss each in turn.

1. Standard of review by district court

Idaho first argues that the district court applied the wrong legal standard to evaluate the plan. It argues that the court applied a balance of hardships test, when a more rigorous investigation into the legality of the plan was required.

Before approving a consent decree, a district court must be satisfied that it is at least fundamentally fair, adequate and reasonable. Id. In addition, because it is a form of judgment, a consent decree must conform to applicable laws. See United States v. City of Miami, 664 F.2d 435, 439, 441 (5th Cir.1981)(en banc)(per curiam)(Rubin, J., concurring); see also SEC v. Randolph, 736 F.2d 525, 528 (9th Cir.1984)(citing Miami with approval).

However, a consent decree need not impose all the obligations authorized by law. See Local 93, 478 U.S. at 522-23, 106 S.Ct. at 3075; EEOC v. Safeway Stores, Inc., 611 F.2d 795, 800 (10th Cir.1979)(consent decree will not be vacated "merely because it is legally erroneous"), cert....