Parravano v. Babbitt, 94-16727

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: PREGERSON
• Citation: 70 F.3d 539
• Parties: 26 Envtl. L. Rep. 20,232, 95 Cal. Daily Op. Serv. 8761, 95 Daily Journal D.A.R. 15,182 Pietro PARRAVANO; Wayne Heikkila; Marguerite Dodgin; Earl Carpenter; David Bitts; Liz Henry; Norman L. De Vall; Pacific Coast Federation of Fishermen's Associations, Inc.; Humboldt Fishermens' Marketing Association; Caito Fisheries, Inc.; Golden Gate Fisherman's Association; Salmon Trollers Marketing Association, Plaintiffs-Appellants, v. Bruce BABBITT, Secretary of the United States Department of Interior; Ron Brown, Secretary, United States Department of Commerce, Defendants-Appellees, and Sue MASTEN, Intervenor-Appellee.
• Docket Number: No. 94-16727,94-16727
• Decision Date: 16 November 1995

Page 539

70 F.3d 539 26 Envtl. L. Rep. 20,232, 95 Cal. Daily Op.
Serv. 8761,
95 Daily Journal D.A.R. 15,182 Pietro PARRAVANO; Wayne Heikkila; Marguerite Dodgin; Earl
Carpenter; David Bitts; Liz Henry; Norman L. De Vall;
Pacific Coast Federation of Fishermen's Associations, Inc.;
Humboldt Fishermens' Marketing Association; Caito
Fisheries, Inc.; Golden Gate Fisherman's Association;
Salmon Trollers Marketing Association, Plaintiffs-Appellants,
v.
Bruce BABBITT, Secretary of the United States Department of
Interior; Ron Brown, Secretary, United States
Department of Commerce, Defendants-Appellees,
and
Sue MASTEN, Intervenor-Appellee. No. 94-16727. United States Court of Appeals,
Ninth Circuit. Argued and Submitted Oct. 17, 1995.
Decided Nov. 16, 1995.

Page 541

James M. Johnson, Olympia, Washington, for plaintiffs-appellants.

Jacques B. Gelin, United States Department of Justice, Washington, DC, for defendants-appellees.

George Forman, Alexander & Karshmer, Berkeley, California, for intervenor-appellee.

Thomas F. Gede, Special Assistant Attorney General, Sacramento, California, for amicus States of California, Idaho, Nevada, North Dakota, Oklahoma, South Dakota and Vermont.

Thomas P. Schlosser, Morisset, Schlosser, Ayer & Jozwiak, Seattle, Washington, for amicus Hoopa Valley Tribe.

Appeal from the United States District Court for the Northern District of California.

Before: SKOPIL, PREGERSON, and FERNANDEZ, Circuit Judges.

PREGERSON, Circuit Judge:

Pietro Parravano, other commercial fishermen, and commercial fishing associations (collectively "Parravano") appeal the district court's order granting partial summary judgment in favor of defendants Interior Secretary Babbitt and Commerce Secretary Brown and dismissing the remainder of Parravano's claims.

In United States District Court, Parravano alleged that Secretary Brown violated the Magnuson Fishery Conservation and Management Act ("Magnuson Act"), 16 U.S.C. Sec. 1801 et seq., when he issued an emergency regulation that reduced the ocean harvest rate of Klamath River chinook for the fall 1993 season. The district court determined that executive orders issued in 1876 and 1891 and the 1988 Hoopa-Yurok Settlement Act, 25 U.S.C. Sec. 1300i et seq., vested the Hoopa Valley and Yurok Tribes (the "Tribes") with federally reserved fishing rights. The district court found that these fishing rights constituted "any other applicable law," 16 U.S.C. Sec. 1854(a)(1)(B), which the Secretary of Commerce could take into consideration when reviewing fishery management policies under the Magnuson Act. For this reason, the district court concluded that Secretary Brown did not violate the Magnuson Act when he issued emergency regulations for the fall 1993 ocean harvest.

Parravano also charged that Secretary Babbitt failed to comply with the Klamath River Basin Fishery Resources Restoration Act ("Klamath Act"), 16 U.S.C. Sec. 460ss, and the Trinity Basin Act ("Trinity Act"), Pub.L. No. 98-541, by failing to enforce limitations on Indian fishing in the Klamath River. The district court dismissed the claims against Secretary Babbitt, concluding that there was no basis for judicial review under the Administrative Procedure Act, 5 U.S.C. Sec. 551 et seq., and that Parravano did not have standing because there was neither an explicit nor an implicit private right of action under the Klamath and Trinity Acts. ¹ Parravano now appeals.

We have jurisdiction under 28 U.S.C. Sec. 1291. We affirm for the same reasons stated by the district court in its orders published at 837 F.Supp. 1034 (N.D.Cal.1993)

Page 542

and 861 F.Supp. 914 (N.D.Cal.1994). Accordingly, we adopt those portions of the district court orders relating to the issues raised by Parravano on appeal. We write only to emphasize that Indian fishing rights, whether they arise from treaty, statute, or executive order, are to be treated the same under the Magnuson Act. BACKGROUND

We incorporate by reference the factual background to this case as set forth by the district court at 837 F.Supp. at 1038-39 and 861 F.Supp. at 917. We discuss only those facts relevant to the issues raised on appeal.

I

The Klamath River fall chinook salmon is an anadromous fish that takes its name from the Klamath River where it spawns. By their very nature, anadromous fish live transient lives. They hatch in the upper tributaries of rivers such as the Klamath and migrate down to the Pacific Ocean where they spend much of their adulthood. At the age of three or four years, they instinctively return to the tributaries of their natal river where they spawn and then die. For generations, the Hoopa Valley and Yurok Indian tribes have depended on the Klamath chinook salmon for their nourishment and economic livelihood. See Arnett v. 5 Gill Nets, 48 Cal.App.3d 454, 121 Cal.Rptr. 906, 907-909 (1975); cert. denied, 425 U.S. 907, 96 S.Ct. 1500, 47 L.Ed.2d 757 (1976); Memorandum from John D. Leshy, Solicitor of the Department of the Interior to the Secretary of the Interior 8 (Oct. 4, 1993) ("Interior Solicitor's Opinion"). In the past, we have observed that the Tribes' salmon fishery was "not much less necessary to [their existence] than the atmosphere they breathed." Blake v. Arnett, 663 F.2d 906, 909 (9th Cir.1981) (internal quotations omitted).

In 1876, President Grant issued an executive order formally establishing a reservation for the Tribes "to be set apart for Indian purposes, as one of the Indian reservations authorized to be set apart, in California, by Act of Congress approved April 8, 1864." I.C. Kappler, Indian Affairs: Laws and Treaties 815 (1904). In the years following the 1876 executive order, non-Indians encroached upon the Indian fisheries along the Klamath River, challenging the Indians' fishing rights. Interior Solicitor's Opinion, at 6. To resolve this problem, in 1891 President Harrison issued another executive order under the authority of the 1864 Act. See Donnelly v. United States, 228 U.S. 243, 258-59, 33 S.Ct. 449, 453-54, 57 L.Ed. 820 (1913), modified on other grounds, 228 U.S. 708, 33 S.Ct. 1024, 57 L.Ed. 1035 (1913). The 1891 order extended the Hoopa Valley Reservation to include the old Klamath Reservation and the strip of land connecting the two reservations. See Mattz v. Arnett, 412 U.S. 481, 493-94, 93 S.Ct. 2245, 2252-53, 37 L.Ed.2d 92 & app. (1973). Together, the 1876 and 1891 executive orders created the extended Hoopa Valley Reservation, which ran along both sides of the Klamath River, from the mouth of the Trinity River down to the Pacific Ocean. See id.

In 1988, Congress enacted the Hoopa-Yurok Settlement Act to divide the extended Hoopa Valley Reservation into the Yurok Reservation and Hoopa Valley Reservation. 25 U.S.C. Sec. 1300i. One of the concerns of Congress at the time of the 1988 partitioning was to protect the Tribes' fisheries. See Partitioning Certain Reservation Lands Between the Hoopa Valley Tribe and the Yurok Indians, to Clarify the Use of Tribal Timber Proceeds, and For Other Purposes, S.Rep. No. 564, at 14-15; H.R.Rep. No. 938, Pt. 1, at 20.

II

Congress enacted the Magnuson Act, 16 U.S.C. Sec. 1801, to conserve ocean fishing resources and to protect these resources from foreign fishing. The Magnuson Act delegated to the Secretary of Commerce the authority to set harvest levels in ocean fisheries located between three and two hundred nautical miles offshore, 16 U.S.C. Sec. 1851. The Magnuson Act also established regional Fishery Management Councils, which are charged with recommending to the Secretary of Commerce ocean harvest limits and salmon

Page 543

"escapement" levels. ² 16 U.S.C. Sec. 1852. The Secretary of Commerce reviews the regional councils' recommendations for consistency with the national standards set forth in the Magnuson Act and "any other applicable law." 16 U.S.C. Sec. 1854(a)(1)(B). ³ The Magnuson Act, however, does not require the Secretary to follow a regional council's recommendations; he may reject them and, when necessary, promulgate ninety-day emergency regulations in their stead. 16 U.S.C. Secs. 1854, 1855(b).

The regional council charged with formulating recommendations for the Klamath River chinook harvest is the Pacific Fishery Management Council ("Pacific Council"). Through the fall of 1993, Pacific Council had consistently failed to set harvest regulations sufficient to meet conservation requirements, forcing the Interior Department to severely curtail Indian salmon harvesting in the Klamath River. According to the Interior Department, this failure was adversely affecting the Tribes' reservation fisheries. See Letter from Eddie F. Brown, Assistant Secretary for Indian Affairs, Department of the Interior, to Barbara Hackman Franklin, Secretary of Commerce, 1-3 (May 19, 1992) ("Brown Letter"). Seeking a more equitable distribution of the Klamath chinook resource, Secretary Babbitt met with Secretary Brown to coordinate regulation of the fall 1993 harvest. Secretary Babbitt informed Secretary Brown that the Interior Department believed that the Tribes were entitled to a fifty-percent share of the total Klamath chinook harvest and that ocean harvesting of this salmon would have to be curtailed so that a sufficient number of the fish could reach the Klamath River for tribal harvests as well as for spawning. See Interior Solicitor's Opinion, at 27.

On April 14, 1993, Pacific Council recommended harvest levels for the fall season. Although Secretary Brown had announced his desire to issue regulations consistent with providing the Tribes with a fifty-percent allocation of the salmon, Pacific Council authorized a 22% ocean harvest rate, with a spawning escapement floor of 35,000 fish. These ocean harvest levels exceeded the levels necessary to reserve fifty percent of the harvest for the Tribes' Klamath River fisheries. Faced with the possibility that Pacific Council's recommended ocean harvest levels would either fail to meet Magnuson Act goals or would...