Mattz v. Superior Court (People)

• Decision Date: 07 October 1987
• Citation: 195 Cal.App.3d 431,240 Cal.Rptr. 723
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 195 Cal.App.3d 431 195 Cal.App.3d 431 Diane Sue MATTZ, Antone Folkins and Kenneth Mattz, Petitioners, v. SUPERIOR COURT of the State of California For the County of Del Norte, Respondent, PEOPLE of the State of California, Real Party in Interest. A024108.

Page 723

240 Cal.Rptr. 723

Previously published at 195 Cal.App.3d 431

195 Cal.App.3d 431

Diane Sue MATTZ, Antone Folkins and Kenneth Mattz, Petitioners, v. SUPERIOR COURT of the State of California For the County of Del Norte, Respondent, PEOPLE of the State of California, Real Party in Interest.

A024108.

Court of Appeal, First District, Division 5, California.

Oct. 7, 1987.

As Modified Oct. 9, 1987.

Review Granted Dec. 23, 1987.

Mark Hoffart, Dohn Henion, William Follett, Cresent City, for petitioners.

John K. Van De Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., R.H. Connett, Asst. Atty. Gen., Roderick E. Walston, Ronald D. Smetana, Bruce S. Flushman, Charles W. Getz, IV, Mary E. Hackenbracht, Deputy Attys. Gen., San Francisco, for real party in interest.

HANING, Associate Justice.

In this decision we hold that for purposes of protecting state hatched fish returning to state hatcheries and spawning grounds, and also to prevent the extinction of a valuable natural resource, the State of California may reasonably regulate commercial gill netting by members of the Yurok Indian tribe on the Klamath River.

Petitioners are members of the Yurok Tribe who commercially fish the Klamath River on Northern California's Hoopa Valley Indian Reservation. They are charged in the Superior Court of Del Norte County with violating and conspiring to violate criminal provisions of the California Fish & Game Code which prohibit the sale of fish taken from the Klamath River by means of a gill net. (Fish & G.Code, §§ 8434, 8685.6; Penal Code, § 182.) Petitioners seek a writ of prohibition to prevent further criminal proceedings, contending that California state law is preempted by the federal regulations governing fishing on the Hoopa Valley Reservation, which have been promulgated under the authority of the federal government to regulate Indian affairs. In response, the People assert a state interest in conservation of the Klamath River salmon population, which they contend is sufficient to counteract federal preemption and permit the exercise of concurrent state jurisdiction over Indian commercial fishing. We agree with the People and deny the peremptory writ.

I

This is but the latest chapter in the legal history of the Hoopa Valley Reservation and the fishing activities of the Yurok tribe. To present this case in its proper context, we preface our discussion with a brief review of the history and background of the Reservation and governmental attempts at regulating the salmon fishing of the Reservation tribes.

The Hoopa Valley Indian Reservation consists of a one-mile strip of land on either side of the Klamath River, beginning at the river's mouth at the Pacific Ocean and extending upstream to the River's confluence with the Trinity River. At this point of confluence the Reservation widens to a 12-mile square. (See People v. McCovey (1984) 36 Cal.3d 517, 521, 205 Cal.Rptr. 643, 685 P.2d 687, cert. denied (1985) 469 U.S. 1062, 105 S.Ct. 544, 83 L.Ed.2d 432; Mattz v. Arnett (1973) 412 U.S. 481, 93 S.Ct. 2245, 37 L.Ed.2d 92. [A map of the Reservation is attached as an appendix to both the Mattz and the McCovey decisions.] ) ¹ The Yurok tribe, whose name means "down the river," inhabits the downriver portion of the Reservation which encompasses the lower Klamath River. (Mattz v. Arnett, supra, 412 U.S. at pp. 485-86, 93 S.Ct. at p. 2248, citing A. Kroeber, Handbook of the Indians of California, published as Bulletin 78, Bureau of American Ethnology 1-97 (1925); and S. Powers, Tribes of California, published as 3 Contributions to North American Ethnology 44-64 (1877).)

The Klamath River serves as a passageway for several species of anadromous fish, including salmon and steelhead. "Anadromous species hatch in fresh water, grow to maturity in the ocean, and return to fresh-water streams to spawn." (United States v. Eberhardt, supra, 789 F.2d at p. 1357, fn. 4.) The Klamath River salmon and steelhead begin their lives in the freshwater spawning grounds at the headwaters of the River and its tributaries and in state-owned hatcheries, and swim out to the Pacific to mature. The relatively small number of fish which survive to reach the sea and grow to maturity return to the headwaters of their birth to spawn the next generation. The salmon then die. The returning salmon and steelhead travel upstream in large schools, or "runs," which become targets for commercial fishers who drape gillnets across the river, capturing substantial portions of the run before it can reach the upstream spawning grounds. ² Because a small portion of the Klamath River flows through the confines of the lower Hoopa Valley Reservation, virtually all of the commercial fishers are Yurok Indians who claim a tribal right to commercially fish the river.

To preserve the anadromous fish resource and achieve minimum desirable population levels in the next generation, a minimum "escapement level" must be ensured; i.e., a certain minimum number of fish must escape the gill nets and return to their spawning grounds. (See United States v. Eberhardt, supra, 789 F.2d at p. 1357, fn. 4; see also People v. McCovey, supra, 36 Cal.3d 517, 524, fn. 7, 205 Cal.Rptr. 643, 685 P.2d 687.) Largely to ensure an escapement level sufficient to preserve the salmon population, both the United States Government and the State of California regulate, or attempt to regulate, commercial fishing on the Klamath River.

State regulation of salmon fishing began in 1933 with the enactment of California Fish and Game Code section 8434, an outright prohibition of commercial fishing on the Klamath River. The state's regulatory role receded in the wake of the Court of Appeal's decision in Arnett v. Five Gill Nets (1975) 48 Cal.App.3d 454, 121 Cal.Rptr. 906, cert. denied (1976) 425 U.S. 907, 96 S.Ct. 1500, 47 L.Ed.2d 757, which held that federal law preempted the state's power to regulate fishing on the Klamath within the confines of the lower Hoopa Valley Reservation.

Arnett 's ban on state regulation, coupled with the lack of a tribal governing body to assume responsibility for regulating the Indian fishers, created a regulatory void which prompted the federal government to enter the arena in 1977. The federal government promulgated fishing regulations under its authority to regulate Indian affairs through the Department of the Interior (Interior). Interior enacted interim regulations governing Klamath River fishing by Hoopa Valley Indians. (42 Fed.Reg. 40904-40905 (Aug. 12, 1977).) The regulations expressly recognized the Indians had a federally reserved fishing right which included the right to fish commercially in the River; however, the regulations noted the right, like most, was not absolute: "[T]he Indians must be allowed to fish commercially as long as statistics show that there can be effective conservation, with simultaneous regulation of other forms of fishing by all persons." (43 Fed.Reg. 30048 (July 13, 1978), emphasis added.)

By 1979, commercial fishing activity had depleted the Klamath River salmon population to the point of insufficient escapement levels, endangering the survival of the species. In response, Interior declared a moratorium on commercial fishing by Reservation Indians. (44 Fed.Reg. 17144-17151 (Mar. 20, 1979).) The moratorium was seen as "the only means by which [Interior] could ensure that a sufficient number of returning fish escaped to reach the spawning areas at the headwaters, thereby permitting conservation and perpetuation of the resource." (People v. McCovey, supra, 36 Cal.3d at p. 524, fn. 7, 205 Cal.Rptr. 643, 685 P.2d 687, citing 44 Fed.Reg. 17144, supra.) ³ The 1979 moratorium was imposed subject to removal if salmon runs increased to safer levels (44 Fed.Reg. at p. 17146), but the moratorium "remains in effect, having been renewed in successive versions of the regulations." (People v. McCovey, supra at p. 524, 205 Cal.Rptr. 643, 685 P.2d 687; 25 C.F.R. § 250.8, subds. (d), (e).)

The state continued to urge its right and power to regulate Klamath River fishing. In People v. McCovey, supra, the California Supreme Court held that the Interior regulations pre-empted state regulatory authority over the off-reservation sale of reservation catches, with which petitioners are charged, and would at first blush appear to entitle petitioners to a writ of prohibition restraining further prosecution on the state criminal charges. Upon further review we conclude McCovey does not bind us to issue the writ, and that the state's interest in conservation of a natural resource justifies concurrent state and federal regulatory jurisdiction over commercial Klamath River fishing.

II

We begin by reviewing the pertinent pronouncements of the United States Supreme Court in the field of federal preemption of state regulation of Indian affairs.

"[T]here is no rigid rule by which to resolve the question whether a particular state law may be applied to an Indian reservation or to tribal members." (White Mountain Apache Tribe v. Bracker (1980) 448 U.S. 136, 142, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665.) Such questions must be decided against the "backdrop" of the unique status of Indian tribes under federal law and the traditional notions of Indian self-government. (Id., at p. 143, 100 S.Ct. at p. 2583; Three Affil. Tribes of Ft. Berthold v. Wold Engine. (1986) 476 U.S. 877, 106 S.Ct. 2305, 2310, 90 L.Ed.2d 881.) "It must always be remembered that the various Indian tribes were once independent and sovereign nations, and that their claim to sovereignty long predates that of our own Government." (McClanahan v. Arizona State Tax Comm'n (1973) 411 U.S. 164, 172, 93 S.Ct. 1257, 1262, 36 L.Ed.2d 129.) Having been assimilated only partially into American culture, the tribes retain a unique status of semi-independence, as a separate people no longer enjoying the full attributes of sovereignty but empowered to govern their own internal and social relations. (White Mountain...