Makah Indian Tribe v. Verity, 88-3976

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore BROWNING, BEEZER and RYMER; BEEZER
Citation910 F.2d 555
PartiesMAKAH INDIAN TRIBE, Plaintiff-Appellant, v. C. William VERITY, et al., Defendants-Appellees.
Docket NumberNo. 88-3976,88-3976
Decision Date31 July 1990

Page 555

910 F.2d 555
MAKAH INDIAN TRIBE, Plaintiff-Appellant,
C. William VERITY, et al., Defendants-Appellees.
No. 88-3976.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Jan. 10, 1990.
Decided July 31, 1990.

Page 556

Alvin J. Ziontz and Marc D. Slonim, Ziontz, Chestnut, Vernell, Berley & Slonim, Seattle, Wash., for plaintiff-appellant.

Narda Pierce, Sr. Asst. Atty. Gen., Olympia, Wash., Howard G. Arnett, Marceau, Karnopp, Petersen, Noteboom & Hubel, Bend, Or., and M. Alice Thurston, U.S. Dept. of Justice, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Western District of Washington.

Before BROWNING, BEEZER and RYMER, Circuit Judges.

BEEZER, Circuit Judge:

The Makah Indian Tribe brought this action to challenge federal regulations allocating the ocean harvest of migrating Columbia River salmon. The district court dismissed the action for failure to join indispensable parties. We affirm in part, reverse in part and remand.


The Makah Indian Tribe resides at the northwest corner of the Olympic Peninsula of the State of Washington. Their historic fishing grounds extend forty miles out to sea. The Makah are guaranteed the right to fish in these grounds by treaty. 1

To protect such Indian treaty rights, a complex judicial and administrative scheme has evolved that regulates the harvest of salmon that pass through these waters. The State of Washington regulates the fisheries within its jurisdiction, extending three miles out to sea, under the continuing jurisdiction of the Washington district court. See 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); United States v. Washington, 759 F.2d 1353, 1355 (9th Cir.1985) (en banc). 2 The Columbia River harvest is allocated under a similar arrangement overseen by the Oregon district court. See Sohappy v. Smith/United States v. Oregon, 302 F.Supp. 899 (D.Or.1969); 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). 3

Outside the three-mile limit, ocean fishing is regulated by the federal government under the Fishery Conservation and Management Act of 1976 (FCMA), Pub.L. 94-265, 90 Stat. 331 (codified at 16 U.S.C. Sec. 1801, et seq.). The FCMA establishes the Pacific Fishery Management Council (PFMC), which is composed of representatives of the States 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

Page 557

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), (b)(5); 50 C.F.R. Sec. 602.11(f)(3)(ii). In 1978, the PFMC adopted a "framework plan" which calls for consideration of proposals by Indian tribes. After public meetings, 16 U.S.C. Sec. 1852(i)(2), the PFMC recommends yearly harvest rates to the Secretary of Commerce, who promulgates regulations detailing ocean fishing allotments. 16 U.S.C. Sec. 1854. The Secretary's regulations are subject to judicial review under the standards of the Administrative Procedure Act. 16 U.S.C. Sec. 1855(d); 5 U.S.C. Sec. 706(2).

This action concerns ocean quotas that coordinate with the most recent Columbia River Fish Management Plan. The plan was negotiated by the parties to the Oregon suit and approved by the Oregon court in 1988. Although not a party to the Oregon suit, the federal government participated in the negotiations and signed the plan. The plan sets minimum "escapement" levels for all Columbia River runs with quotas low enough to protect the weakest runs. For 1987, it assigned most of the allowable catch of the weakest run 4 to river fishermen, anticipating low ocean quotas.

After the plan reached final form, but before court approval, the PFMC adopted ocean harvest quotas for the 1987 season that were consistent with the plan. The Makah and three other ocean treaty tribes proposed higher ocean quotas, but their requests were rejected. The Secretary accepted the PFMC's recommendation, and corresponding regulations were published in May 1987. After a nine-day comment period, the regulations became final. Shortly thereafter, the Makah filed this suit challenging the quotas and the regulatory process. The district court dismissed the suit for failure to join the twenty-three treaty tribes of Puget Sound, the Columbia River and the ocean fishery.

We have jurisdiction over this timely appeal under 28 U.S.C. Sec. 1291. We review a district court's dismissal for failure to join an indispensable party for abuse of discretion. Northern Alaska Envtl. Center v. Hodel, 803 F.2d 466, 468 (9th Cir.1986).


The Makah make two types of claims. First, they charge that the quotas adopted violate their treaty rights and are otherwise unfair. They request declaratory relief and an injunction setting a proposed higher quota. They also request a remand to the Secretary for an equitable adjustment for their 1987 losses.

Second, they charge that the Secretary's regulations violate the FCMA. They contend that the quotas were "the product of commitments made outside the administrative process." Specifically, they allege that the Secretary adopted quotas set in secret negotiations, violated notice and comment requirements of the APA, and ignored a quota proposed by the Makah. They also argue that the regulations violate the FCMA because they are arbitrary and capricious, have no basis in the record, and fail to describe Indian treaty rights. The Makah seek declaratory and injunctive relief requiring the Secretary to comply with the FCMA.

The district court determined that the Makah sought primarily reallocation of the harvest of Columbia River salmon. The court concluded it could not grant this relief without involving the twenty-three absent tribes. Because the other tribes are immune from suit unless they explicitly waive sovereign immunity, see McClendon v. United States, 885 F.2d 627, 629 (9th Cir.1989), the court found them to be indispensable parties under Fed.R.Civ.P. 19(b) and dismissed the suit.

The Makah challenge the court's order. They argue that there is no negative impact on the absent parties because they seek only enforcement of their own treaty rights and an increase in the overall harvest, not a reallocation among the treaty tribes. They also argue that their challenge is to the procedures followed by the Secretary, not just the resulting quotas.

Page 558


To determine whether a party is "indispensable" under Fed.R.Civ.P. 19, 5 a court must undertake a two-part analysis: it must first determine if an absent party is "necessary" to the suit; then if, as here, the party cannot be joined, the court must determine whether the party is "indispensible" so that in "equity and good conscience" the suit should be dismissed. The inquiry is a practical one and fact specific, see Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 118-19, 88 S.Ct. 733, 742-43, 19 L.Ed.2d 936 (1968), and is designed to avoid the harsh results of rigid application. Eldredge v. Carpenters 46 Northern California Joint Apprenticeship & Training Comm., 662 F.2d 534, 537 (9th Cir.1981), cert. denied, 459 U.S. 917, 103 S.Ct. 231, 74 L.Ed.2d 183 (1982). The moving party has the burden of persuasion in arguing for dismissal. Sierra Club v. Watt, 608 F.Supp. 305, 312 (E.D.Cal.1985).

A. Necessary Party

To determine if the absent party is necessary to the suit, the court must undertake another two-part analysis.

First, the court must decide if complete relief is possible among those already parties to the suit. This analysis is independent of the question whether relief is available to the absent party. Eldredge, 662 F.2d at 537.

Next, the court must determine whether the absent party has a legally protected interest in the suit. This interest must be more than a financial stake, Northern Alaska, 803 F.2d at 468, and more than speculation about a future event. McLaughlin v. International Ass'n of Machinists, 847 F.2d 620, 621 (9th Cir.1988). A fixed fund which a court is asked to allocate may create a protectable interest in beneficiaries of the fund. See Wichita and Affiliated Tribes of Oklahoma v. Hodel, 788 F.2d 765, 774 (D.C.Cir.1986). Generally, there is no legally...

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