U.S. v. Eberhardt

• Citation: 789 F.2d 1354
• Decision Date: 16 May 1986
• Docket Number: Nos. 85-1212,85-1213 and 85-1233,s. 85-1212
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Gig and Jeannette EBERHARDT, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellant, v. Tom WILSON and Sonny Erickson, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellant, v. Diane Sue MATTZ, Atone ("Tony") W. Folkins, and Randy Mattz, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1354

789 F.2d 1354

UNITED STATES of America, Plaintiff-Appellant, v. Gig and Jeannette EBERHARDT, Defendants-Appellees.

UNITED STATES of America, Plaintiff-Appellant, v. Tom WILSON and Sonny Erickson, Defendants-Appellees.

UNITED STATES of America, Plaintiff-Appellant, v. Diane Sue MATTZ, Atone ("Tony") W. Folkins, and Randy Mattz,

Defendants-Appellees.

Nos. 85-1212, 85-1213 and 85-1233.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 17, 1986.

Decided May 16, 1986.

Blake A. Watson, U.S. Dept. of Justice, Land & Natural Resources Div., Washington, D.C., for plaintiff-appellant.

Geoffrey Hansen, Asst. Federal Public Defender, Laurence J. Litcher, Serra, Perelson, Anton, & Lichter, San Francisco, Cal., Michael Pfeffer, California Indian Legal Services, Oakland, Cal., for defendants-appellees.

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

Before POOLE and BEEZER, Circuit Judges, and JAMESON, ^* District Judge

POOLE, Circuit Judge:

In these cases the United States appeals district court orders that dismissed criminal prosecutions charging appellees with unlawful sale of anadromous fish caught within the Hoopa Valley Indian Reservation. Appellees were accused of violating regulations promulgated by the Department of Interior (Interior) that prohibit commercial fishing by Indians on that part of the Klamath River flowing through the Reservation. The district courts held that the regulations are invalid as an unauthorized modification of the Indians' reserved tribal right to fish for commercial purposes. Because we find that the statutory provisions authorizing Interior to manage Indian affairs permit the regulation of fishing on the Hoopa Valley Reservation, we reverse and remand for further proceedings.

I.

Appellees are members of the Yurok Indian Tribe who, along with the Hoopa Indians, occupy the Hoopa Valley Reservation in California's Del Norte and Humboldt counties. ¹ Appellees were charged under section 3(a) of the Lacey Act Amendments of 1981, 16 U.S.C. Sec. 3372(a) (1982), which makes it unlawful to sell fish taken in violation of any law or regulation of the United States or the law of any state. ² The regulation at issue here is contained in 25 C.F.R. Sec. 250.8(d)-(f) (1985), and prohibits commercial fishing for anadromous fish on the Hoopa Valley Reservation, but permits fishing for subsistence and ceremonial purposes.

The State of California has prohibited commercial fishing on the Klamath River since 1933. Cal. Fish & Game Code Sec. 8434 (West 1984). Interior began regulating Indian fishing on the Hoopa Valley Reservation in 1977. Interior responded to the regulatory void created after the California Court of Appeal held that the State could not regulate the right of Indians to fish on the Klamath River within the Reservation. Arnett v. 5 Gill Nets, 48 Cal.App.3d 454, 121 Cal.Rptr. 906 (1975), cert. denied, 425 U.S. 907, 96 S.Ct. 1500, 47 L.Ed.2d 757 (1976). ³ The 1977 regulations expressly limited commercial fishing by Indians to five fish per day. 42 Fed.Reg. 40,904, 40,905 (1977). Interim regulations promulgated in 1978 established a limited season for commercial fishing. 43 Fed.Reg. 30,047, 30,052 (1978). However, in that same year, due to perceived conservation problems, Interior prohibited commercial fishing by an emergency in-season adjustment. 43 Fed.Reg. 39,086 (1978).

In 1979, Interior's revised regulations prohibited all commercial fishing and all sales of anadromous fish taken by Indians on the Hoopa Valley Reservation. 44 Fed.Reg. 17,144 (1979). The regulations allowed fishing for ceremonial and consumptive purposes, and, while recognizing the Indians' reserved right to fish commercially, nonetheless imposed a moratorium on commercial fishing. Interior justified the moratorium because the anadromous fish runs were not large enough to sustain commercial fishing as well as consumptive and escapement needs. ⁴ Interior indicated that commercial fishing rights could be resumed in the future when the fishery runs increased sufficiently to withstand the increased harvest. Id. at 17,146. The moratorium remained in effect in subsequent versions of the regulations and continues today. 25 C.F.R. Sec. 250.8(e) (1985).

In the cases of United States v. Eberhardt, No. 85-1212, and United States v. Wilson, No. 85-1213, two informations were filed against the four appellees in June 1984. Wilson was charged in Count One of the first information with selling salmon on September 10, 1982 in violation of the regulations. Counts Two through Five jointly charged Wilson and Erickson with selling salmon, steelhead, and sturgeon on four occasions between September 17, 1982 and June 17, 1983. Three counts of a superceding information charged Jeannette Eberhardt with selling salmon and sturgeon in violation of the regulations on three occasions between June 26, 1982 and September 6, 1982. Gig Eberhardt was charged with two counts of selling salmon and sturgeon in violation of California Fish and Game Code Sec. 8685.6 (West 1984), which prohibits the use of gill nets. ⁵

These appellees consented to have their cases heard by a magistrate and the proceedings were consolidated. The parties agreed that the Indians have federally reserved commercial fishing rights based on the statutes authorizing creation of the reservation. The government claimed, however, that those rights are not absolute and that the ban on commercial fishing was justified as a temporary conservation measure. Tom Wilson and Jeannette Eberhardt moved to have the informations dismissed. They did not challenge the facts alleged in the informations, but argued that the regulations prohibiting commercial fishing on the reservation were invalid as an unauthorized modification or abrogation of their right to take Klamath River fish.

On March 5, 1985, the magistrate granted the motions to dismiss. The magistrate held that Interior was without authority to promulgate regulations that abrogated federally reserved tribal fishing rights. The magistrate also held that even if Interior were authorized to regulate fishing, the regulations as written were arbitrary, not necessary to achieve a conservation purpose, and discriminatory.

On the government's appeal, District Judge Eugene Lynch reviewed the magistrate's decision de novo and affirmed the dismissal of the informations in a published memorandum opinion. United States v. Wilson, 611 F.Supp. 813 (N.D.Cal.1985). The district court held the regulations to be invalid because they impermissibly modified or abrogated the Indians reserved right to fish commercially. The court found in the general trust statutes relied upon by Interior no reflection of the congressional intent necessary to abrogate reserved tribal rights as required by United States v. Fryberg, 622 F.2d 1010 (9th Cir.), cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980). While recognizing that Indian rights can be controlled to preserve a species, the district court rejected Interior's argument that the ban on commercial fishing was a valid conservation measure because no evidence had been presented showing that the Reservation's fish resources would otherwise face imminent extinction. As the court found the regulations unauthorized, it did not reach the issues whether the regulations were arbitrary and capricious or whether they discriminated against the Indians in view of the allowance of relatively unrestricted commercial fishing offshore.

In the separate case of United States v. Mattz, No. 85-1233, an eight-count indictment was filed against the three appellees in February 1985. Diane Mattz and Folkins were charged with selling between 700 and 940 pounds of salmon and steelhead in violation of the federal regulations on five occasions between September 22, 1983 and February 19, 1985. ⁶ Diane Mattz and Randy Mattz were charged with selling 500 pounds of steelhead on December 20, 1984. All three appellees were also charged with conspiracy to violate the federal regulations, and with conspiracy to defraud the United States by obstructing Interior's efforts to protect the fishery resources of the Klamath River.

On March 19, 1985, appellees filed a joint motion to dismiss before District Judge Thelton Henderson, arguing that the regulations were invalid because the ban on commercial fishing was not necessary for a conservation purpose and discriminated against Indians. Relying on Judge Lynch's earlier decision in Wilson, Judge Henderson granted the motion to dismiss the indictment on July 1, 1985.

The government appealed the district court orders dismissing these criminal prosecutions and these cases were argued together before this panel. Because Judge Henderson relied exclusively on Judge Lynch's decision, references to "the district court" in the remainder of this opinion relate to the analyses set forth in United States v. Wilson, 611 F.Supp. 813 (N.D.Cal.1985).

II.

The district court had jurisdiction over these Lacey Act prosecutions. 16 U.S.C. Sec. 3375(c) (1982); United States v. Sohappy, 770 F.2d 816, 818-22 (9th Cir.1985). Appellate jurisdiction over government appeals in criminal cases is generally authorized by 18 U.S.C. Sec. 3731 (1982). United States v. Schwartz, 785 F.2d 673, 677 (9th Cir.1986). The district court's determination that the regulations are invalid as an unauthorized abrogation of tribal rights constitutes a finding of law subject to de novo review. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

III.

The issue before us is whether the informations and indictment were subject to dismissal because Interior lacks authority to impose a moratorium on commercial fishing on the Klamath River by Indians of the Hoopa Valley Reservation. The validity of the moratorium depends on whether Congress has given Interior express or implied...