Hynes v. Grimes Packing Co, 24

CourtUnited States Supreme Court
Writing for the CourtREED
Citation69 S.Ct. 968,337 U.S. 86,93 L.Ed. 1231
PartiesHYNES, Regional Director, Fish and Wildlife Service, Department of the Interior, v. GRIMES PACKING CO. et al
Docket NumberNo. 24,24
Decision Date31 May 1949

337 U.S. 86
69 S.Ct. 968
93 L.Ed. 1231
HYNES, Regional Director, Fish and Wildlife Service, Department of the Interior,

v.

GRIMES PACKING CO. et al.

No. 24.
Argued Oct. 21, 1948.
Decided May 31, 1949.

[Syllabus from pages 86-88 intentionally omitted]

Page 89

Mr. Roger P. Marquis, Washington, D.C., for petitioner.

Messrs. W. C. Arnold and Frank L. Mechem, Seattle, Wash., for respondents.

Mr. Justice REED delivered the opinion of the Court.

The Secretary of the Interior on May 22, 1943, issued Public Land Order 128. It is set out in full below.1 In this case the significant part of No. 128 is that the Secretary included in the reservation by paragraph 2, adjacent tidelands and coastal waters along the entire shore line of the uplands that touched Shelikof Strait between Kodiak Island and the Alaska Peninsula. The authority of the Secretary to utilize presidential power in the designation of this reservation out of public lands in Alaska flows from a delegation to the Secretary of presidential power to withdraw or reserve public lands and revoke or

Page 90

modify prior reservations. Executive Order No. 9146, of April 24, 1942, 1 C.F.R., Cum.Supp. 1149. The presidential power over reservations is made specific by the Act of June 25, 1910.2 Another statutory provision, however, is the principal basis for Order 128. This is

Page 91

s 2 of the Act of May 1, 1936, 49 Stat. 1250. This act was passed to extend to Alaska the benefits of the Wheeler-Howard Act of June 18, 1934, 48 Stat. 984, 25 U.S.C.A. § 461 et seq., and to provide for the designation of Indian reservations in Alaska. As § 2 is important in our discussion, the pertinent provisions are set out in full:

'Sec. 2. That the Secretary of the Interior is hereby authorized to designate as an Indian reservation any area of land which has been reserved for the use and occupancy of Indians or Eskimos by section 8 of the Act of May 17, 1884 (23 Stat. 26), or by section 14 or section 15 of the Act of March 3, 1891 (26 Stat. 1101), or which has been heretofore reserved under any executive order and placed under the jurisdiction of the Department of the Interior or any bureau thereof, together with additional public lands adjacent thereto, within the Territory of Alaska, or any other public lands which are actually occupied by Indians or Eskimos within said Territory: Provided, That the designation by the Secretary of the Interior of any such area of land as a reservation shall be effective only upon its approval by the vote, by secret ballot, of a majority of the Indian or Eskimo residents thereof who vote at a special election duly called by the Secretary of the Interior upon thirty days' notice: * * *'

The Native Village of Karluk held a meeting on May 23, 1944, and accepted 'the proposed Indian Reservation for this village. The adoption of said Reservation passed by a vote of 46 for and 0 against. 11 of the eligible voters were absent.' See note 26, infra. Under § 19 of the Wheeler-Howard Act, 25 U.S.C.A. § 479, the Alaskan aborigines are classified as Indians.

On March 22 and August 27, 1946, the Secretary of the Interior amended the Alaska Fisheries General Regu-

Page 92

lations, 50 C.F.R., 1946 Supp., § 208.23, that related to the commercial fishing for salmon in the Kodiak Area Fisheries by the addition of a subsection (r), reading as follows:

'(r) All waters within 3,000 feet of the shores of Karluk Reservation (Public Land Order No. 128, May 22, 1943), beginning at a point on the east shore of Shelikof Strait, on Kodiak Island, latitude 57 32 30 ' N., thence northeasterly along said shore to a point 57 39 40 '.

'The foregoing prohibition shall not apply to fishing by natives in possession of said reservation, nor to fishing by other pesons under authority granted by said natives (49 Stat. 1250; 48 U.S.C. 358a (48 U.S.C.A. § 358a)). Such authority shall be granted only by or pursuant to ordinance of the Native Village of Karluk, approved by the Secretary of the Interior or his duly authorized representative.'

The authority for the regulation is given as 34 Stat. 264 and 478, as amended by the Act of June 6, 1924, 43 Stat. 464, 48 U.S.C.A. § 221 et seq., an Act for the protection of the fisheries of Alaska, known as the White Act.3 As the controlling section of this statute also is important, it is set out here,4 44 Stat. 752:

'Section 1. That for the purpose of protecting and conserving the fisheries of the United States in all waters of Alaska the Secretary of Commerce from time to time may set apart and reserve fishing areas in any of the waters of Alaska over which the United

Page 93

States has j risdiction, and within such areas may establish closed seasons during which fishing may be limited or prohibited as he may prescribe. Under this authority to limit fishing in any area so set apart and reserved the Secretary may (a) fix the size and character of nets, boats, traps, or other gear and applicances to be used therein; (b) limit the catch of fish to be taken from any area; (c) make such regulations as to time, means, methods, and extent of fishing as he may deem advisable. From and after the creation of any such fishing area and during the time fishing is prohibited therein it shall be unlawful to fish therein or to operate therein any boat, seine, trap, or other gear or apparatus for the purpose of taking fish; and from and after the creation of any such fishing area in which limited fishing is permitted such fishing shall be carried on only during the time, in the manner, to the extent, and in conformity with such rules and regulations as the Secretary prescribes under the authority herein given: Provided, That every such regulation made by the Secretary of Commerce shall be of general application within the particular area to which it applies, and that no exclusive or several right of fishery shall be granted therein, nor shall any citizen of the United States be denied the right to take, prepare, cure, or preserve fish or shellfish in any area of the waters of Alaska where fishing is permitted by the Secretary of Commerce. * * *' See for definition of 'several,' 2 Bl.Com. 39—40.

These are the statutes and orders that created the situation that led to this litigation.

The issuance of the White Act regulation of March 22, 1946, brought concern to the commercial fishing interests of Alaska. This was because of its drastic penalties. See note 49, infra. The native village of Karluk

Page 94

spoken of in Order No. 128, establishing the reservation is situated on the Karluk River, long recognized as one of the most important salmon spawning streams of Alaska. The natives live at its mouth on Shelikof Strait. There the salmon must congregate from the Strait to enter the channel of the river leading to their spawning grounds in the interior of Kodiak Island. The waters included in the reservation are those stretching eight miles along the coast north and south of the mouth, 3,000 feet into the Strait. Thus the best of the Karluk salmon fishery is put into the reservation by Order No. 128.5 For an understanding of the locality, a sketch map is appended.

The importance of the Karluk fishery will be appreciated by reference to a few of the facts in connection with it. When Russia ceded Alaska to the United States in 1867, 15 Stat. 539, Karluk was already well known as an abundant salmon fishery.6 By 1885 the salmon canneries were flourishing and Bancroft reports the Karluk pack at 36,000 cases out of a total of 65,000.7 The production continued large.8 The red salmon was most prolific. There were variations in the catch but it was

Page 95

always valuable.9 In later years, the fluctuations continued and other varieties increased relatively.10

None of the respondent companies have packing plants at Karluk. All are, however, on Kodiak, Island, which is around 100 miles long and 50 broad, and within fishing distance of the reservation waters. There is a fish refrigeration plant on the river. These canners have canned fish from these waters for from seven to twenty-four years. The percentage of each canner's pack that comes from the reserved waters is so large that the trial court found irreparable injury to the packers if they could not obtain the catch of the reservation. '* * * no other replacement source of such salmon for their canneries

Page 96

on Kodiak Island is available to them.' The canners' investment is substantial, running from two to five hundred thousand dollars respectively. The fishing is done by men who own their own three- to four-man boats, use similar company boats or operate under boat buying contracts. Prices for the catch vary for these classifications. These packers employ over four hundred fishermen, chiefly residents of Alaska and over six hundred cannery employees, chiefly nonresidents.

The fishing season at Karluk begins around June 1 and continues intermittently, depending upon the run of fish, until Sept. 30. After the issuance of § 208.23(r) restricting the fishery at Karluk Reservation to Karluk natives and licensees, respondents brought this action against the Regional Director for the Territory of Alaska of the Fish and Wildlife Service to permanently enjoin the exclusion of their fishermen from the reservation on the ground that neither regulation § 208.23(r) nor Public Land Order No. 128 legally closed the fishery of the coastal waters to respondents. The District Court granted the permanent injunction and held invalid both the regulation and the land order. 67 F.Supp. 43. On the same grounds the Court of Appeals for the Ninth Circuit affirmed the order for permanent injunction. 165 F.2d 323.

I.

(a) At the outset the United States contends that the Secretary of the Interior is an indispensable party who must be joined as a party defendant in order to give the District Court jurisdiction of this suit. In Williams v. Fanning, 332 U.S. 490, 68 S.Ct. 188, 92...

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