Anderson v. Evans

Decision Date20 December 2002
Docket NumberNo. 02-35761.,02-35761.
Citation350 F.3d 815
PartiesWill ANDERSON; Fund for Animals; Humane Society of the United States; Australians for Animals; Cetacean Society International; West Coast Anti-Whaling Society; Sandra Abels; Cindy Hansen; Patricia Ness; Robert Ness; Lisa Lamb; Margaret Owens; Charles Owens; Peninsula Citizens for the Protection of Whales; Dan Spomer; Sue Miller; Steph Dutton, Plaintiffs-Appellants, v. Donald EVANS, Secretary, U.S. Department of Commerce; Conrad Lautenbacher, Administrator, National Oceanic and Atmospheric Administration; William Hogarth, Assistant Administrator for Fisheries, National Marine Fisheries Service, Defendants-Appellees, Makah Indian Tribe, Defendant-Intervenor-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Eric R. Glitzenstein and Kimberly D. Ockene, Meyer & Glitzenstein, Washington, D.C., for the plaintiffs-appellants.

Robert H. Oakley, Environment & Natural Resources Division, United States Department of Justice, Washington, D.C., for the defendants-appellees.

John B. Arum, Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, Washington, for the defendant-intervenor-appellee.

Appeal from the United States District Court for the Western District of Washington; Franklin D. Burgess, District Judge, Presiding. D.C. No. CV-02-00081-FDB.

Before: James C. HILL,* Ronald M. GOULD and Marsha S. BERZON, Circuit Judges.

Opinion by Judge BERZON for sections I and II; Opinion by Judge GOULD for sections III and IV.

ORDER

The panel majority opinion filed December 20, 2002, appearing at 314 F.3d 1006 (9th Cir.2002), is AMENDED as follows:

Slip op. page 7 [314 F.3d at 1008], paragraph 2, lines 2-3:

Delete "the Tribe leadership" and insert "the Tribe's leaders".

Slip op. page 13 , lines 13-15:

Delete "but such whaling must conform to quotas for various whale stocks issued by the IWC" and replace it with "but such whaling must conform to quotas issued by the IWC for various whale stocks."

Slip op. page 14 , lines 1-3:

Delete "In 1996 the NOAA entered into a written agreement with the Tribe to obtain an aboriginal subsistence quota from the IWC." and replace it with "In 1996 the NOAA entered into a written agreement with the Tribe committing the NOAA to seek an aboriginal subsistence quota from the IWC."

Slip op. page 14 , line 12:

Substitute "and individual citizens" for "and other citizens."

Slip op. page 34 , line 23:

Add a comma after "that pre-date the MMPA" so that the sentence reads "Section 1372(a)(2) exempts only international treaties that pre-date the MMPA, without also exempting amendments to those treaties."

Slip op. page 38 [314 F.3d at 1026], footnote 21:

Add the following sentences at the end of the footnote: "Indeed, because the states do not have the power held by Congress to regulate affairs with Indian nations, state regulation of treaty hunting or fishing rights may be more limited in scope than federal regulation. See Eberhardt, 789 F.2d at 1362. We express no opinion as to whether and, if so, the extent to which our decision has relevance to assessment of state conservation regulation that touches on treaty rights."

Slip op. page 38 , line 8:

Add a new footnote after "622 F.2d at 1015." The text of the new footnote shall read: "Fryberg addressed whether the Eagle Protection Act, 16 U.S.C. § 668 et seq., abrogated treaty hunting rights by prohibiting the taking and killing of bald eagles. 622 F.2d at 1011. Though the ultimate issue in Fryberg was abrogation, Fryberg also articulated a test for identifying conservation statutes that affect treaty rights. Id. at 1015. That test was based on Supreme Court authority that allows conservation statutes to affect treaty rights to the extent necessary to achieve their conservation purpose. Id. at 1014-15. The Supreme Court authority relied on by Fryberg remains good law. See Antoine v. Washington, 420 U.S. 194, 95 S.Ct. 944, 43 L.Ed.2d 129 (1974); Wash. Dep't of Game v. Puyallup Tribe, 414 U.S. 44, 94 S.Ct. 330, 38 L.Ed.2d 254 (1973) (Puyallup II); Puyallup Tribe v. Wash. Dep't of Game, 391 U.S. 392, 88 S.Ct. 1725, 20 L.Ed.2d 689 (1968) (Puyallup I); Kennedy v. Becker, 241 U.S. 556, 36 S.Ct. 705, 60 L.Ed. 1166 (1916). Moreover, Fryberg did not purport to substitute the conservation necessity test for an abrogation analysis. Rather, Fryberg used the conservation purpose of the statute to bolster its conclusion that Congress clearly intended to abrogate treaty rights by enacting the Eagle Protection Act. Later, the same conclusion was reached by the Supreme Court in United States v. Dion, 476 U.S. 734, 106 S.Ct. 2216, 90 L.Ed.2d 767 (1986), though the Supreme Court did not discuss the conservation necessity principle. Still, regardless of Fryberg's posture as an abrogation case, we conclude that the conservation necessity test articulated by Fryberg has not been undermined by later cases and is supported by the Supreme Court authorities above cited."

Slip op. page 40 [314 F.3d at 1027], footnote 22, line 4:

Replace "would be necessary to achieve" with "would be appropriate to achieve."

Slip op. page 40 , lines 21-23:

Delete "If the Tribe has retained whaling rights, it could use evolving technology to facilitate more efficient hunting of the gray whales." and replace it with "The Tribe, therefore, could use evolving technology to facilitate more efficient hunting of the gray whales."

Slip op. page 40 , lines 27-29:

Delete "But if a treaty right is presented, it is not necessarily limited to the approvals of the IWC or the Tribe's Gray Whale Management Plan." and replace it with "But it is not clear the extent to which the Tribe's treaty right is limited to the approvals of the IWC or the Tribe's Gray Whale Management Plan."

Slip op. page 41 , lines 17-18:

Insert a period after "hunt for marine mammals" and start a new sentence with "Although such mammals might not be the subject of `fishing,' there is ..."

Slip op. page 41-42 :

Delete "To effectuate the purpose of the MMPA, which is to make informed, proactive decisions regarding the effect of marine mammal takes, we conclude that the MMPA must apply to the Tribe, just as it would apply to any other person within the jurisdiction of the United States." Replace that deleted sentence with "To effectuate the purpose of the MMPA, which is to make informed, proactive decisions regarding the effect of marine mammal takes, we conclude that the MMPA must apply to the Tribe, even if its treaty rights must be considered and given weight by NMFS in implementing the MMPA, an issue we do not decide."

Slip op. page 42 , line 8:

After "applied to the Tribe," delete "as to all others."

Slip op. page 42-43 :

Delete "While this clause does not strip Indians of the substance of their treaty rights, see Washington v. Washington Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 677 n. 22, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979), it does prevent Indians from relying on treaty rights to deprive other citizens of a fair apportionment of a resource, see id. at 683-84, 99 S.Ct. 3055. Moreover, the clause means we must consider the status of non-Indians when we assess the scope of the Tribe's treaty rights."

Slip op. page 42 [314 F.3d at 1029], footnote 24:

Delete the existing footnote 24.

Slip op. page 43-44 :

Delete "Our conclusion that the application of the MMPA to the Tribe is necessary to achieve the conservation purpose of the MMPA is consistent with the `in common with' language of the Treaty of Neah Bay because the MMPA will allow the taking of marine mammals only when it will not diminish the sustainability and optimum level of the resource for all citizens. The procedural safeguards and conservation principles of the MMPA ensure that marine mammals like the gray whale can be sustained as a resource for the benefit of the Tribe and others." And, insert: "While this "in common with" clause does not strip Indians of the substance of their treaty rights, see Washington v. Washington Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 677 n. 22, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979), it does prevent Indians from relying on treaty rights to deprive other citizens of a fair apportionment of a resource. See id. at 683-84, 99 S.Ct. 3055. In Washington Commercial Passenger Fishing Vessel Ass'n, the Supreme Court concluded that: "Non-treaty fishermen may not rely on property law concepts, devices such as the fish wheel, license fees, or general regulations to deprive the Indians of a fair share of the relevant runs of anadromous fish in the case area. Nor may the treaty fishermen rely on their exclusive right of access to the reservations to destroy the rights of other `citizens of the Territory.' Both sides have a right, secured by the treaty, to take a fair share of the available fish. That, we think, is what the parties to the treaty intended when they secured to the Indians a right of taking fish in common with other citizens." Id. at 684-85, 99 S.Ct. 3055. This holding might be read to suggest that the Tribe's treaty right gives the Tribe a right to a "fair share" of whales that are to be taken. The "fair share" formula, however, does not provide a ready answer in this case, which involves now-protected marine mammals rather than salmon and other fish available, within limits, for fishing. The question presented to us is not how whaling rights can be fairly apportioned between Indians and non-Indians. Rather, the Tribe asserts a treaty right that would give the Tribe the exclusive ability to hunt whales free from the regulatory scheme of the MMPA. Just as treaty fisherman are not permitted to "totally frustrate... the rights of the non-Indian citizens of Washington" to fish, Puyallup Tribe v. Dept. of Game of Wash., 433 U.S. 165, 175, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977) (Puyallup III), the Makah cannot, consistent with the plain terms...

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