Parravano v. Babbitt, No. C 93-2003 TEH.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Citation861 F. Supp. 914
Decision Date29 July 1994
Docket NumberNo. C 93-2003 TEH.
PartiesPietro PARRAVANO, Wayne Heikkila, Marguerite Dodgin, Earl Carpenter, David Bitts, Liz Henry, Norman L. de Vall, Pacific Coast Federation of Fishermens' Associations, Humboldt Fishermens' Marketing Association, Caito Fisheries, Inc., Golden Gate Fishermens' Association, and Salmon Trollers Marketing Association, Plaintiffs, v. Bruce BABBITT, as Secretary of the United States Department of the Interior, and in his individual capacity; Ron Brown, as Secretary of the United States Department of Commerce, and in his individual capacity, Defendants.

861 F. Supp. 914

Pietro PARRAVANO, Wayne Heikkila, Marguerite Dodgin, Earl Carpenter, David Bitts, Liz Henry, Norman L. de Vall, Pacific Coast Federation of Fishermens' Associations, Humboldt Fishermens' Marketing Association, Caito Fisheries, Inc., Golden Gate Fishermens' Association, and Salmon Trollers Marketing Association, Plaintiffs,
v.
Bruce BABBITT, as Secretary of the United States Department of the Interior, and in his individual capacity; Ron Brown, as Secretary of the United States Department of Commerce, and in his individual capacity, Defendants.

No. C 93-2003 TEH.

United States District Court, N.D. California.

July 29, 1994.


861 F. Supp. 915
COPYRIGHT MATERIAL OMITTED
861 F. Supp. 916
COPYRIGHT MATERIAL OMITTED
861 F. Supp. 917
James M. Johnson, Olympia, WA, Mary L. Hudson, Gorman & Waltner, Oakland, CA, for plaintiffs

James C. Kilbourne, Jean E. Williams, U.S. Dept. of Justice, Environment and Natural Resource Div., Washington, DC, for defendants.

Barbara E. Karshmer, George Forman, Patricia A. Prochaska, John R. Shordike, Alexander & Karshmer, Berkeley, CA, for intervenor.

ORDER

THELTON E. HENDERSON, Chief Judge.

This matter came before the Court on April 25, 1994 on defendants' Motion to Strike or to File a Supplemental Opposition to Amicus Memoranda, plaintiffs' Motion for Partial Summary Judgment, plaintiffs' Motion to Strike Extraneous Matters, and defendants' Motion to Dismiss. After careful consideration of the parties' oral and written arguments and the record herein, the Court grants defendants' motions to file a supplemental opposition and to dismiss, and denies plaintiffs' motions to strike and for partial summary judgment.

FACTUAL BACKGROUND:

The focal point of this action is the popular Klamath River fall chinook salmon. These anadromous fish spawn in the Klamath River and its upper tributaries, migrate downstream to the ocean, and then return to their fresh water origins at age three or four to spawn and then die. An unfortunate combination of overfishing, prolonged drought, and habitat degradation have led to significantly depressed levels of Klamath chinook stock, to the detriment of commercial fishing interests, sport fishermen, and the Native American tribes who rely on these fish for subsistence and ceremonial needs. See, United States v. Eberhardt, 789 F.2d 1354, 1363 (9th Cir.1986) (conc. opin.) (overfishing has depleted the stocks of Klamath River fish). The conflicts inherent in having a chinook population too small to satisfy the needs of all who have a stake in the Klamath salmon are what underlie this case.

Plaintiffs are commercial fishermen and commercial fishing associations1 who contend that the Secretary of Commerce ("Secretary Brown") improperly reduced the Klamath chinook ocean harvest rate for the 1993 fall fishing season. They contend that Secretary Brown's actions violate the Magnuson Fishery Conservation and Management Act ("Magnuson Act"), 16 U.S.C. § 1801 et seq., the Administrative Procedures Act ("APA"), 5 U.S.C. § 551 et seq., 42 U.S.C. § 1981 and the United States Constitution, the Freedom of Information Act ("FOIA"), 5 U.S.C. §§ 552b, the Klamath River Basin Act, PL 99-552, and the Trinity Basin Act, PL 98-541.

In a motion filed on July 16, 1993, plaintiffs sought partial summary judgment on plaintiffs' claims that defendants had violated procedural and substantive requirements of the Magnuson Act (plaintiffs' first cause of action) and that defendants' actions in setting the 1993 season were also in violation of the APA (plaintiffs' second cause of action). Defendants cross-moved for a partial summary judgment affirming their actions in setting

861 F. Supp. 918
the 1993 season. In a preliminary order issued on August 12, 1993, and a detailed order issued on November 3, 1993, 837 F.Supp. 1034, the Court granted summary judgment to defendants except with regard to defendants' decision to increase the spawning escapement floor for Klamath River salmon by 3,000 fish.2 The Court also granted summary judgment to defendants on plaintiffs' second motion for partial summary judgment, concerning plaintiffs' FOIA claim (plaintiffs' fifth cause of action)

Plaintiffs now seek a partial summary judgment on plaintiffs' remaining claims brought under the Magnuson Act. Plaintiffs seek a summary judgment that there is no federal law reserving fishing rights to the Hoopa Valley and Yurok Indians which must be considered applicable law by Secretary Brown in regulating ocean fisheries under the Magnuson Act, since ocean harvesting by plaintiffs may only be restricted to protect Indian fishing rights established by treaties.3 Intervenor Sue Masten joined in defendants' opposition to plaintiffs' motion for partial summary judgment on this basis. Plaintiffs also submit in support of their motion for summary judgment the argument that Magnuson Act procedures and National Standards have been violated by defendants' "agreement" to "regulate all ocean seasons in accordance with the Interior Solicitor's opinion." On March 8 and March 14, 1994, respectively, the Humboldt Bay Harbor, Recreation and Conservation District of the State of California, and the State of California, filed briefs as amicus curiae in support of plaintiffs' motion for summary judgment.4

Defendants cross-move to dismiss (1) plaintiffs' allegation that the Secretary of the Interior ("Secretary Babbitt") violated constitutional equal protection and due process guarantees as well as 42 U.S.C. § 1981 in setting the 1993 Indian harvest allocation because such allocation was racially based and discriminatory, and (2) plaintiffs' allegation that Secretary Babbitt violated certain acts relating to the restoration of the Klamath and Trinity Rivers. Plaintiffs move to strike several documents that defendants filed with their motion to dismiss. We first address plaintiffs' motion for summary judgment, below.

LEGAL STANDARD:

Defendants' Motion to Dismiss

Dismissal is appropriate under Rule 12(b)(6) when a plaintiff's complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). The Court must accept as true the factual allegations of the complaint and indulge all reasonable inferences to be drawn from them, construing the complaint in the light most favorable to the plaintiff. Dodd v. Spokane County, 393 F.2d 330, 334 (9th Cir.1968); NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). Unless the Court converts the Rule 12(b)(6) motion into a summary judgment motion, the court may not consider material outside of the complaint. Powe v. Chicago, 664 F.2d 639, 642 (7th Cir.1981). The Court must construe the complaint liberally, and dismissal should not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Wright

861 F. Supp. 919
and Miller, supra, § 1350; Intake Water Co. v. Yellowstone River Compact Com., 769 F.2d 568, 569 (9th Cir.1985)

Plaintiffs' Motion for Summary Judgment

Summary judgment is appropriate when there is no genuine dispute as to material facts and the moving party is entitled to judgment as a matter of law. Jung v. FMC Corp., 755 F.2d 708, 710 (9th Cir.1985); Fed. R.Civ.P. 56. Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The court may not weigh the evidence, and is required to view the evidence in the light most favorable to the nonmoving party. Id.

DISCUSSION:

I. PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT

1). Background.

The areas that are the Yurok and Hoopa Valley Reservations today were originally set aside in the nineteenth century. The Act of March 3, 1853, authorized the President to "make ... reservations ... in the State of California ... for Indian purposes." 10 Stat. 226, 238. In 1855, by executive order and under authority of the Act of March 3, 1853, President Pierce established the Klamath River Reservation along the lower 20 miles of the Klamath River. I.C. Kappler, Indian Affairs: Laws and Treaties 816 (1904) ("Kappler"). The lands were mostly occupied by Yurok Indians, and the reservation encompassed what is today the lower portion of the Yurok Reservation. According to the Supreme Court in Mattz v. Arnett, 412 U.S. 481, 486, 93 S.Ct. 2245, 2248, 37 L.Ed.2d 92 (1973), the site was ideally selected for the Yuroks. They had lived in the area; the arable land, although limited, was "peculiarly adapted to the growth of vegetables," 1856 Report 238, and the river, which ran through a canyon its entire length, abounded in salmon and other fish. Kappler at 817.

The original Hoopa Valley Reservation, a 12 mile square on either side of the Trinity River, was first located and proclaimed in 1864, by the Superintendent of Indian Affairs for California, pursuant to legislation enacted that year. The legislation authorized the President to set apart up to four tracts of land in California "for the purposes of Indian reservations, which shall be of suitable extent for the accommodation of the Indians of said state, and shall be located as remote from white settlements as may be found practicable, having due regard to their adaptation to the purposes for which they are intended." Act of April 8, 1864, § 2, 13 Stat. 39, 40 ("1864 Act"); see also Kappler at 815; Donnelly v. United States, 228 U.S. 243, 255-57, 33 S.Ct. 449, 452-53, 57 L.Ed. 820, modified on other grounds and rehearing denied, 228 U.S. 708, 33 S.Ct. 1024, 57 L.Ed. 1035 (1913); Mattz v. Superior Court, 46 Cal.3d 355, 250 Cal.Rptr. 278, 282, 758 P.2d 606, 610 (1988). The reservation was mostly inhabited by Hoopa Indians. In 1876 President Grant formally set aside the reservation by Executive Order "for...

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7 practice notes
  • American Pelagic Fishing Co., L.P. v. U.S., No. 03-5101.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • August 16, 2004
    ...588 ("[T]he language of the Magnuson Act does not confer any claim of entitlement or property rights."); see also Parravano v. Babbitt, 861 F.Supp. 914, 928 (N.D.Cal.1994) ("Thus, the Magnuson Act confers on the Secretary of Commerce authority to manage the fishery resources in the EEZ for ......
  • Parravano v. Babbitt, No. 94-16727
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 16, 1995
    ...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 writ......
  • Coastal Conservation Ass'n v. Locke, Case No. 2:09-cv-641-FtM-29SPC
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • August 16, 2011
    ...of participation in the federal fisheries does not arise to the level of a "legitimate claim of entitlement." Parravano v. Babbitt, 861 F. Supp. 914, 928 (N.D. Cal. 1994), aff'd 70 F. 3d 539 (9th Cir. 1995); See Vickers v. Egbert, 359 F. Supp. 2d 1358, 1362 (S.D. Fla. 2005) ("[f]ishing, whe......
  • Foss v. National Marine Fisheries Service, No. 97-36097
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 25, 1998
    ...process"). The district court erred in holding that Foss had no property interest in his IFQ permit, citing Parravano v. Babbitt, 861 F.Supp. 914 (N.D.Cal.1994), aff'd on other grounds, 70 F.3d 539 (9th Cir.1995), and two unpublished district court opinions. Parravano dealt with a claim of ......
  • Request a trial to view additional results
7 cases
  • American Pelagic Fishing Co., L.P. v. U.S., No. 03-5101.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • August 16, 2004
    ...588 ("[T]he language of the Magnuson Act does not confer any claim of entitlement or property rights."); see also Parravano v. Babbitt, 861 F.Supp. 914, 928 (N.D.Cal.1994) ("Thus, the Magnuson Act confers on the Secretary of Commerce authority to manage the fishery resources in the EEZ for ......
  • Parravano v. Babbitt, No. 94-16727
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 16, 1995
    ...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 writ......
  • Coastal Conservation Ass'n v. Locke, Case No. 2:09-cv-641-FtM-29SPC
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • August 16, 2011
    ...of participation in the federal fisheries does not arise to the level of a "legitimate claim of entitlement." Parravano v. Babbitt, 861 F. Supp. 914, 928 (N.D. Cal. 1994), aff'd 70 F. 3d 539 (9th Cir. 1995); See Vickers v. Egbert, 359 F. Supp. 2d 1358, 1362 (S.D. Fla. 2005) ("[f]ishing, whe......
  • Foss v. National Marine Fisheries Service, No. 97-36097
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 25, 1998
    ...process"). The district court erred in holding that Foss had no property interest in his IFQ permit, citing Parravano v. Babbitt, 861 F.Supp. 914 (N.D.Cal.1994), aff'd on other grounds, 70 F.3d 539 (9th Cir.1995), and two unpublished district court opinions. Parravano dealt with a claim of ......
  • Request a trial to view additional results

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