Shoshone-Bannock Tribes v. Fish & Game Com'n, Idaho

• Decision Date: 16 December 1994
• Docket Number: No. 94-35280,SHOSHONE-BANNOCK,94-35280
• Citation: 42 F.3d 1278
• Parties: TRIBES, Plaintiff-Appellant, v. FISH & GAME COMMISSION, IDAHO, sued as: Idaho Fish & Game Commission; Jerry Conley, individually and in his official capacity as Director of Idaho Fish and Game; Richard Meiers; Norm Guth; Louis Racine; Wesley Rose, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1278

42 F.3d 1278

SHOSHONE-BANNOCK TRIBES, Plaintiff-Appellant, v. FISH & GAME COMMISSION, IDAHO, sued as: Idaho Fish & Game Commission; Jerry Conley, individually and in his official capacity as Director of Idaho Fish and Game; Richard Meiers; Norm Guth; Louis Racine; Wesley Rose, et al Defendants-Appellees.

No. 94-35280.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 3, 1994.

Decided Dec. 16, 1994.

Candy L. Jackson and Jeanette Wolfley, Shoshone-Bannock Tribes, Fort Hall, ID, for plaintiff-appellant.

Clive J. Strong, Deputy Atty. Gen., and Steven W. Strack, Deputy Atty. Gen., Boise, ID, for defendants-appellees.

Appeal from the United States District Court for the District of Idaho.

Before: BEEZER and FERNANDEZ, Circuit Judges, and ORRICK ^*, District Judge.

BEEZER, Circuit Judge:

The Shoshone-Bannock Tribes (Tribes) challenge an order of the Idaho Fish and Game Commission (Fish and Game) prohibiting all fishing for Spring Chinook Salmon during the summer of 1991 in an area of the Salmon River traditionally fished by the Tribes. The district court dismissed the action as moot and as barred by the Eleventh Amendment. We have jurisdiction, 28 U.S.C. Sec. 1291, and we reverse and remand in part and affirm in part.

I

The Tribes constitute a single federally recognized Indian tribe residing on the Fort Hall Indian Reservation in Idaho. Pursuant to Article 4 of the Fort Bridger Treaty of 1868 (15 Stat. 673), the Tribes retain the right to "hunt on the unoccupied lands of the United States." The parties agree that the term "hunt" encompasses the harvesting of salmon. See State v. Tinno, 94 Idaho 759, 497 P.2d 1386 (1972). In late June of 1991, the governing body of the Tribes, the Fort Hall Business Council, issued regulations permitting members of the Tribes to harvest a total of 25 salmon between July 3 and July 21, 1991 in the Middle Fork area of the Salmon River Basin. This area of unoccupied lands of the United States is located about one hundred miles from the Reservation.

In response, pursuant to its statutory authority to make necessary closure orders in "unexpected emergencies" (Idaho Code Sec. 36-104(b)(3)), Fish and Game ordered the closing of the Middle Fork area to all salmon fishing on or after July 3, 1991. The order specifically allowed members of the Tribes to harvest 25 salmon on the Yankee Fork of the Salmon River, a different area. The order expired in October of 1991.

The parties are in substantial agreement as to the plight of the Spring Chinook Salmon indigenous to the Middle Fork of the Salmon River. The fish hatch in remote tributaries of the river, migrate to the Pacific Ocean where they develop into mature fish, then return to the same tributaries where they were born to spawn. These "runs" of returning adult salmon occur annually in the late spring or summer. It is undisputed that the "runs" on the Middle Fork have been decreasing in quantity, and that, as of the spring of 1991, the 1991 run was projected to be critically small. Due to this situation, in June of 1991, the National Marine Fisheries Service recommended that the Salmon River Spring Chinook Salmon be listed as a "threatened" species under the Endangered Species Act. The Spring Chinook Salmon has since been listed as threatened.

Fish and Game's June 29, 1991 closure order states that "the harvest of even a few On July 1, 1991, the Tribes filed suit against Fish and Game requesting a temporary restraining order to prohibit Fish and Game from enforcing its closure order on the ground that the order violated the Tribes' rights under the Fort Bridger Treaty. The district court denied the temporary restraining order. The Tribes subsequently moved for summary judgment. The district court denied the motion. The court determined that Fish and Game has the power to regulate the Tribes' fishing rights if (1) the Tribes' self regulation is insufficient to insure the conservation of the salmon, and (2) Fish and Game can show that its "regulation is a reasonable and necessary conservation measure, and that its application to the Indians is necessary to the interest of conservation." The district court found that there were disputed issues of material fact as to whether Fish and Game's closure order met these standards.

spawning spring chinook could adversely impact the conservation and restoration of the spring chinook resource."

In October 1992, more than a year after the 1991 salmon season ended, Fish and Game moved to dismiss the case on the grounds that the Tribes' claims were moot and were barred by the Eleventh Amendment. The Tribes subsequently amended their complaint to add the director and commissioners of Fish and Game as defendants. The parties dispute whether the additional defendants are sued in their individual and official capacities, or only in their official capacities.

The district court referred Fish and Game's motion to a magistrate judge who recommended that the motion be granted. The magistrate judge found that the Tribes' claims for declaratory and injunctive relief were moot, that the claims for damages against Fish and Game and the state officials in their official capacities were barred by the Eleventh Amendment, and that the amended complaint did not state a cause of action against the officials in their individual capacities. The district court adopted the magistrate's report and recommendation with only a minor change. Judgment of dismissal was entered and the Tribes filed a timely notice of appeal.

II

We review de novo all issues raised by the Tribes on appeal. Friends of the Payette v. Horseshoe Bend Hydroelectric Co., 988 F.2d 989, 996 (9th Cir.1993) (mootness); Price v. Hawaii, 939 F.2d 702, 706 (9th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1479, 117 L.Ed.2d 622 (1992) (determinations of motion to dismiss, jurisdictional bar under Eleventh Amendment and qualified immunity).

III

The Tribes agree that their claims for injunctive relief relating to the 1991 salmon fishing season are moot. See Friends of the Earth, Inc. v. Bergland, 576 F.2d 1377, 1379 (9th Cir.1978). However, they contend that there is still a live case or controversy with respect to their claims for declaratory relief. The district court expressly, and correctly, found that any claims the Tribes had asserted for damages were not moot.

A

A claim becomes moot when "the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982). The parties retain a legally cognizable interest in a declaratory relief action "only when 'the challenged government activity ... is not contingent, has not evaporated or disappeared, and, by its continuing and brooding presence, casts what may well be a substantial adverse effect on the interests of the petitioning part[y].' " Headwaters, Inc. v. Bureau of Land Management, 893 F.2d 1012, 1015 (9th Cir.1989) (quoting Super Tire Eng'g Co. v. McCorkle, 416 U.S. 115, 122, 94 S.Ct. 1694, 1698, 40 L.Ed.2d 1 (1974)). In that circumstance, a declaration of the legal rights of the parties will provide effective relief and the claim is not moot. See id.

The Tribes' claim for declaratory relief is moot. In their opening brief, the Tribes argue that "the State of Idaho and the This case is distinguishable from the other salmon fishing cases cited by the Tribes, United States v. Oregon, 657 F.2d 1009 (9th Cir.1981), United States v. Oregon, 718 F.2d 299 (9th Cir.1983), United States v. Washington, 761 F.2d 1404 (9th Cir.1985), cert. denied, 474 U.S. 1100, 106 S.Ct. 879, 88 L.Ed.2d 916 (1986) and Northwest Environmental Defense Center v. Gordon, 849 F.2d 1241 (9th Cir.1988). In each of those cases, the district court either had assumed continuing jurisdiction over a river management plan to review and approve allocations of fishing rights, or there was a present remedy, such as raising or lowering future allocations, which could rectify the damage resulting from the expired orders. Neither of these factors is present here.

                Defendants have continually harassed the members of the Shoshone-Bannock Tribes who are engaged in off-Reservation treaty activity ...," and that such harassment is continuing.  However, as was the case in Headwaters, the actual claims pleaded by the Tribes in their complaint are narrowly focused on a single past event, the 1991 closure order.  See 893 F.2d at 1014-15.   Nowhere in their complaint do the Tribes mention a single incident of harassment or attempt by defendants to curtail the Tribes' treaty rights other than by reason of the adoption of the 1991 order.  The Tribes' narrow claims requesting a declaration of the invalidity of the 1991 closure order are therefore moot.  Id. at 1016
                

B

The Tribes argue that, even if their claim is technically moot, it falls within the mootness exception for conflicts which are capable of repetition yet evading review. This exception will apply if (1) Fish and Game's action challenged by the Tribes was of too short duration to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the Tribes will be subjected to the same action again. Murphy, 455 U.S. at 482, 102 S.Ct. at 1183.

The first element is satisfied. The Tribes' 1991 salmon fishing season was only three weeks long, and the 1991 order expired after less than four months. It is likely that similar future conflicts would run their course in the same amount of time. However, as the district court determined, it is unlikely that a sufficiently similar action will occur in the future to satisfy the second element of the exception.

This court faced a very similar situation in Alaska Fish and Wildlife Federation and Outdoor Council, Inc. v. Dunkle, 829 F.2d 933 (9th Cir.1987), cert. denied, 485 U.S. 988, 108 S.Ct. 1290, 99 L.Ed.2d 501 (1988). In that case, the plaintiff sued...