Anderson v. Evans
Decision Date | 20 December 2002 |
Docket Number | No. 02-35761.,02-35761. |
Citation | 350 F.3d 815 |
Parties | Will 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. |
Court | U.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.
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:
Slip op. page 38 , line 8:
Add a new footnote after "622 F.2d at 1015." The text of the new footnote shall read:
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 ..."
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."
Delete
Slip op. page 42 [314 F.3d at 1029], footnote 24:
Delete the existing footnote 24.
Delete 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: 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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