Puget Sound Gillnetters Ass'n v. Moos

Decision Date30 November 1979
Docket NumberNos. 43642,44401,s. 43642
Citation603 P.2d 819,92 Wn.2d 939
PartiesPUGET SOUND GILLNETTERS ASSOCIATION, a Nonprofit Washington Corporation, Philip Sutherland, Petitioners, v. Donald MOOS, Director, Washington State Department of Fisheries; State of Washington, Department of Fisheries, Respondents. WASHINGTON STATE COMMERCIAL PASSENGER FISHING VESSEL ASSOCIATION, Respondent, v. Thor TOLLEFSON, Director of Washington State Department of Fisheries; Washington State Department of Fisheries; and State of Washington, Appellants. WASHINGTON KELPERS ASSOCIATION, a Washington Nonprofit Corporation, Respondent, v. Thor TOLLEFSON, Director of Washington State Department of Fisheries; Washington State Department of Fisheries: and State of Washington, Appellants.
CourtWashington Supreme Court

Slade Gorton, Atty. Gen., James M. Johnson, Dennis D. Reynolds, Asst. Attys. Gen., Olympia, for appellants.

Moriarty, Long, Mikkelborg & Broz, Charles E. Yates, Henry Haugen, Jacob A. Mikkelborg, Douglas M. Fryer, Seattle, Alan C. Stay, Sumner, John Clinebell, Tacoma, for petitioners.

Joseph T. Mijich, Ziontz, Pirtle, Morisset, Ernstoff & Chestnut, Seattle, for amicus curiae.

Thom, Mussehl, Navoni, Hoff, Pierson & Ryder, Richard W. Pierson, Seattle, for respondents.

HOROWITZ, Justice.

The cases of Puget Sound Gillnetters Ass'n v. Moos, 88 Wash.2d 677, 565 P.2d 1151 (1977) (Gillnetters ), and Washington State Commercial Passenger Fishing Vessel Ass'n v. Tollefson, 89 Wash.2d 276, 571 P.2d 1373 (1977), (Commercial Passenger ) return to this court through vacation of the judgments rendered by this court in those causes and remand by the Supreme Court of the United States. The mandate from that court directs us to proceed in a manner "not inconsistent with the opinion" of the United States Supreme Court in Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, --- U.S. ----, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979) (Fishing Vessel ). In conjunction with our reconsideration on remand, the defendants in these cases, the State and the Director of the Department of Fisheries, have made a motion for modification of our earlier decisions, requesting an order affirming that the State "has the authority in managing the anadromous fish resource to do so in a manner which recognizes and gives full force and effect to the Indian treaty fishing rights as defined by the United States Supreme Court and subsequent allocation orders to be entered by the United States District Court for Western Washington pursuant to the remand instructions of the United States Supreme Court." The Puget Sound Gillnetters Association opposes the motion of the State and Director of Fisheries for modification.

We comply with the United States Supreme Court's mandate and issue the order sought by the State in our opinion today. This removes obstacles to reassumption by the State of management of anadromous fish resources. In order to understand the nature and significance of the mandate and motion, a review of the facts leading up to this opinion is appropriate.

I.

In 1854 and 1855 the United States and several Indian tribes in the western portion of what was to become the state of Washington entered into treaties that guaranteed to the Indian tribes the "right of taking fish, at all usual and accustomed grounds and stations . . . in common with all citizens of the Territory." 1 The treaties and the Indians' rights to anadromous fish under the treaties lay largely unexamined for over a century. See State ex rel. Campbell v. Case, 182 Wash. 334, 340-41, 47 P.2d 24 (1935).

Beginning in the late 1960's, the treaties and the rights guaranteed by them were the subject of litigation in both state and federal courts. Inconsistent interpretations of the treaty provisions developed in the two court systems, necessitating the United States Supreme Court's review of the subject area in Fishing Vessel. A brief review of the federal and state cases affected by the Supreme Court's decision will define the nature of this court's function on remand of that case. 2

The District Court for the Western District of Washington, in a case brought against the State of Washington by the United States, independently and as trustee for several Indian tribes, first ruled that the treaty tribes were entitled to up to 50 percent of the harvestable fish passing through their "usual and accustomed" off-reservation fishing sites, exclusive of fish caught on reservation lands and fish taken for ceremonial and sustenance purposes. United States v. Washington, 384 F.Supp. 312, 343 (W.D.Wash.1974). 3 The court ordered the State Departments of Fisheries and Game to adopt and enforce regulations consistent with its interpretation of the treaties. United States v. Washington, supra at 420. The Court of Appeals affirmed that decision, with minor revisions; 520 F.2d 676, 693 (9th Cir. 1975); the Supreme Court denied certiorari, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976).

The Fisheries' regulations promulgated pursuant to the federal courts' decision were the subject of cases brought in state courts against the state by non-treaty fishermen. This court heard two of those cases especially pertinent here. In Gillnetters this court ruled that the Department of Fisheries authority to regulate commercial salmon fishing extended only to regulations for conservation purposes, and that allocation as contemplated by the district court's order would constitute a violation of equal protection and provide Indian fishermen with unconstitutional special privileges and immunities. Puget Sound Gillnetters Ass'n v. Moos, supra, 88 Wash.2d at 684, 692, 565 P.2d 1151. See also Purse Seine Vessel Owners Ass'n v. Moos, 88 Wash.2d 799, 567 P.2d 205 (1977). This court further held that the federal district court did not have the power to order the state agency to act in excess of its statutory authority. Gillnetters, supra, 88 Wash.2d at 689, 565 P.2d 1151.

This court's decision in Commercial Passenger further explained the court's position that interpretation of the treaties to guarantee the Indian tribes a share of the anadromous fish runs would violate equal protection and that the district court could not order a state agency to allocate in an unconstitutional manner. Commercial Passenger, supra, 89 Wash.2d at 285, 571 P.2d 1373. This court had earlier interpreted the Medicine Creek treaty to provide individual Indians, not the tribes themselves, with only an equal opportunity to fish at "usual and accustomed" sites. Department of Game v. Puyallup Tribe, Inc., 86 Wash.2d 664, 548 P.2d 1058 (1976) (Puyallup III ).

With state agency regulation precluded by this court's interpretation of the extent of the agency power and the nature of the allocation required by the federal courts' decision, the district court, through a series of orders, undertook direct supervision of the relevant fisheries. E. g. Memorandum Order and Preliminary Injunction (Aug. 10, 1977); Memorandum Order and Preliminary Injunction (Aug. 31, 1977); Temporary Restraining Order (Oct. 8, 1977); Preliminary Injunction (Oct. 17, 1977). The Court of Appeals affirmed these actions in Puget Sound Gillnetters Ass'n v. District Court, 573 F.2d 1123 (9th Cir. 1978).

Gillnetters, Commercial Passenger, and two Court of Appeals decisions considering United States v. Washington, supra, were reviewed by the Supreme Court of the United States on writ of certiorari in Fishing Vessel. 4 The United States Supreme Court in that opinion ruled that the treaty tribes have a right to harvest up to 50 percent of an anadromous fish runs passing through their "usual and accustomed" fishing sites, inclusive of on-reservation, subsistence, and ceremonial Indian catches, that such a treaty right does not violate equal protection principles, and that the State Departments of Fisheries and Game can be ordered by the federal courts to adopt and enforce regulations insuring these treaty rights even if prohibited that power by state law. Partial federal management of the fishery continues until December 1, 1979, through a partial stay of the United States Supreme Court's judgment. Order, Fishing Vessel (July 3, 1979) (Supreme Court per Stevens, J.).

It is hoped that the United States Supreme Court's decision provides a juristic solution to a problem that has divided the citizens of this state since the inception of these suits. It is further hoped that our response to the United States Supreme Court's mandate will allow the state to reassume direct management of the State's fisheries in a manner which acknowledges and provides for Indian treaty fishing rights, in accordance with the State's request.

II.

This court has consistently held that the State Departments of Fisheries and Game can regulate for "conservation only." Gillnetters, supra,88 Wash.2d at 681, 565 P.2d 1151 (Department of Fisheries); Hartman v. State Game Comm'n, 85 Wash.2d 176, 532 P.2d 614 (1975) (Department of Game). However, the power to manage a fishery for conservation purposes only is not a restrictive one; it enables the agency to collect data regarding the size, placement, and harvest of runs, to regulate the type of gear and times at which it can be employed in fishing specific varieties and runs of fish, to discriminate among classes of users by gear and purpose, to artificially enhance the fishery through hatchery programs, and even to force the owners of existing dams to improve fish passage facilities. See Department of Fisheries v. Chelan County PUD 1, 91 Wash.2d 378, 588 P.2d 1146 (1979); Washington Kelpers Ass'n v. State, 81 Wash.2d 410, 502 P.2d 1170 (1972); Frach v. Schoettler, 46 Wash.2d 281, 280 P.2d 1038 (1955); McMillan v. Sims, 132 Wash. 265, 231 P. 943 (1925); Vail v. Seaborg, 120 Wash. 126, 207 P. 15 (1922). It has in the past included the power to exclude from state regulation Indians fishing "under federal regulation." State ex rel. Campbell v. Case...

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