State v. Jim

• Decision Date: 10 September 1986
• Citation: 725 P.2d 365,81 Or.App. 177
• Parties: STATE of Oregon, Respondent, v. Warner JIM, Appellant. CR 82-315; CA A33716.
• Court: Oregon Court of Appeals

Page 365

725 P.2d 365

81 Or.App. 177

STATE of Oregon, Respondent, v. Warner JIM, Appellant.

CR 82-315; CA A33716.

Court of Appeals of Oregon.

Argued and Submitted Jan. 27, 1986.

Decided Sept. 10, 1986.

Jack L. Schwartz, Portland, argued the cause and filed the brief for appellant.

Linda DeVries Grimms, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

BUTTLER, Presiding Judge.

Defendant was convicted of the sale of food fish during a closed commercial season, in violation of ORS 509.011, which makes it "unlawful to: [b]uy, receive, possess or sell food fish unlawfully caught during a closed season." ORS 509.011(2)(a). Defendant, a member of the Yakima Indian Nation, admits that, on April 28, 1982, he caught salmon from the Columbia River, which he later sold at Celilo Indian Village to an undercover special agent for the National Marine Fisheries Service, and that, on that date, the commercial fishing season was closed.

The fish were caught pursuant to a ceremonial fishing permit issued by the Warm Springs tribe, ¹ which authorized sale of fish only to the tribe. Any sale to others violated Warm Springs tribal law. If the fish were caught for ceremonial purposes only, they were lawfully caught; if, however, they were caught for commercial purposes, they were unlawfully caught within the meaning of ORS 509.011. Defendant assigns no error to the sufficiency of the evidence to establish that the fish were unlawfully caught. He concedes that he caught the salmon when the season was closed to commercial fishing and that he sold them to undercover agents, which was in violation of state law. ²

His principal contention, and the only one on which we write, ³ is that the state may not assert jurisdiction over him to enforce violation of state fishing regulations, because he was exercising his rights under the 1855 treaty with the Yakima tribes. The state contends that, because the fish were unlawfully sold, it may assert its jurisdiction for either of two reasons: (1) defendant was not acting in compliance with Warm Springs tribal laws and was not, as a consequence, protected by the Yakima treaty fishing rights; and (2) the state may regulate treaty fishing when the regulation is reasonable and necessary for conservation purposes and is nondiscriminatory, and those requirements are met here.

In 1855, the United States entered into a treaty with the Yakima tribes, under which the tribes ceded to the United States their right and title to a substantial portion of their lands in exchange for the present reservation lands and some nominal consideration, reserved hunting and fishing rights on the reservation and also reserved "the right of taking fish at all usual and accustomed places, in common with citizens of the Territory * * *." Treaty with the Yakima Nation of Indians, Art III, 12 Stat. 951 (signed June 9, 1855; ratified by the Senate March 8, 1859; proclaimed by the President April 18, 1859). The "right of taking fish" includes the right to sell fish commercially. See Sohappy v. Smith, 302 F.Supp. 899 (D.Or.1969).

Celilo Indian Village, where defendant sold the fish, is a "usual and accustomed place" where Columbia River treaty Indians, including Yakimas, may exercise their treaty rights. ⁴ Because the fishing rights at those sites are held "in common with" other citizens, states may regulate Indian fishing there, but only when the regulation is necessary for conservation, "provided the regulation meets appropriate standards and does not discriminate against the Indians." Puyallup Tribe v. Dept. of Game, 391 U.S. 392, 398, 88 S.Ct. 1725, 1728, 20 L.Ed.2d 689 (1968) (Puyallup I). To meet the appropriate standards, "the State must demonstrate that its regulation is a reasonable and necessary conservation measure, and that its application to the Indians is necessary in the interest of conservation." Antoine v. Washington, 420 U.S. 194, 207, 95 S.Ct. 944, 952-53, 43 L.Ed.2d 129 (1975). (Citations omitted; emphasis in original.) Therefore, the three requirements which the state must prove before it may assert jurisdiction over Indian treaty fishers at usual and accustomed sites are that (1) the regulation is a reasonable and necessary conservation measure; (2) the application of the specific regulation to treaty fishers is necessary in the interest of conservation, and (3) the regulation does not discriminate against treaty fishers. ⁵

Here, the record contains no evidence in support of its jurisdiction over treaty fishers. The state was somewhat ambivalent as to whether proof of a conservation purpose was necessary. ⁶ However it did offer to produce a document entitled "A Plan for Managing Fisheries on Stocks Originating from the Columbia River and its Tributaries above Bonneville Dam" (The Plan), ⁷ which had been drawn up and consented to by Oregon and Washington and by the tribes and had been approved by the federal court, which had retained jurisdiction over Indian treaty fishing rights in that area. United States v. Oregon, Civil No. 68-513, supra n. 7. That document was not received in evidence, because, apparently, the trial court stated that it could take judicial notice of it, if necessary. The record does not disclose whether the trial court did so.

However, since the trial of this case, United States v. Sohappy, supra n. 4, was decided, affirming a conviction entered before this trial. That case involved a prosecution under the Lacey Act for fishing during the same closed commercial season under Oregon law as is involved here. The court held that the closure of Columbia River commercial fishing during the spring of 1982 was reasonable and necessary for conservation, and was valid as applied to treaty fishers through Lacey Act federal prosecutions. The court, after discussing The Plan, stated:

"The states set the 1982 commercial fishing season via the Columbia River Compact, an interstate agency controlling commercial fishing on the Columbia River. The Compact received recommendations from the Washington and Oregon fisheries departments that explained that the seriously depressed upriver spring chinook run required that there be no spring 1982 commercial fishing season.

"It is especially significant that the Columbia River Inter-tribal Fish Commission, representing the treaty tribes, agreed with that recommendation stating that it 'recognizes that the 1982 upriver spring chinook run will be a record or near-record low. [Thus,] no commercial harvest of these fish can be justified.' The Yakima and Warm Springs tribes concurred. The Columbia River Compact accepted the recommendations and closed the fishery for the spring of 1982 saying that the closure was 'reasonable and necessary for conservation' and that there was no 'less restrictive alternative.' We conclude that the government has adequately established the validity of the 1982 spring season ban adopted by the Compact." 770 F.2d at 824.

Here, the trial court recognized that it was necessary that it be established that the regulation sought to be enforced met the requisite conservation purpose standards. However, it stated that, once the United States District Court in Oregon approved a particular regulation of fishing on the Columbia pursuant to The Plan, see n. 7, supra, that court's determination controlled, relieving the state of its burden to make that showing. Although the trial court's discussion evidenced a thorough familiarity with the history of the problem and of the documents involved in solving it, the court did not, in so many words, state that it was taking judicial notice of them.

It is apparent from United States v. Sohappy, supra n. 4, that the regulation here involved had been approved by the United States District Court in Oregon and had been held by the trial court in that case to meet the requisite conservation standards before the trial of this case. Because such matters are the subject of judicial notice, OEC 201, and because the question of the state's authority to prosecute defendant is a question of law, there is no reason to remand to permit the trial court to take judicial notice. This court may do so and is bound by the court's determination in United States v. Sohappy, supra n. 4.

Affirmed.

ROSSMAN, Judge, specially concurring.

I agree that defendant's conviction should be affirmed. I do not, however, agree with significant portions of the majority's reasoning and therefore write separately. Defendant caught fish during a closed season ¹ under a Warm Springs tribal permit which allowed him to catch fish only for ceremonial purposes and to sell them only to the tribes. He violated the terms of the permit by selling the fish commercially. He thereby violated ORS 509.011, unless some tribal right protects him from state prosecution. ² Because his actions were beyond the authority which the tribal permit granted, he has no tribal immunity. He is therefore subject to state law. That is where this case should end. The existence of a conservation necessity, which is the focus of the majority opinion, is simply irrelevant. State v. Gowdy, 1 Or.App. 424, 462 P.2d 461 (1969).

The majority, relying in part on United States v. Sohappy, 770 F.2d 816 (9th Cir 1985), assumes that the state must show a conservation necessity for the closure of the season in order to justify its prosecution of defendant. It then strains to find proof of such a necessity in the record of this case. In doing so, it compounds the Ninth Circuit's apparent misunderstanding of the relevant Supreme Court cases. Those cases do not protect from state prosecution tribal members who hunt or fish in violation of tribal regulations.

Many Indian tribes have reserved hunting and fishing rights which are protected in treaties and other federal agreements or enactments. The tribes and...