U.S. v. Olander

• Decision Date: 07 September 1978
• Docket Number: 78-1239,78-1311 and 78-1312,Nos. 77-3794,78-1240,77-3925,78-1310,s. 77-3794
• Citation: 584 F.2d 876
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wilber N. OLANDER, William Dolman, Denne M. Harrington, Gary D. Rondeau, Gerald L. Minnich, Arthur Schruder, and Roy D. Wilson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 876

584 F.2d 876

UNITED STATES of America, Plaintiff-Appellee, v. Wilber N. OLANDER, William Dolman, Denne M. Harrington, Gary D. Rondeau, Gerald L. Minnich, Arthur Schruder and Roy D. Wilson, Defendants-Appellants.

Nos. 77-3794, 77-3925, 78-1239, 78-1240, 78-1310, 78-1311

and 78-1312.

United States Court of Appeals Ninth Circuit.

Sept. 7, 1978.

Rehearing and Rehearing En Banc Denied Oct. 27, 1978.

Charles E. Yates (argued) of Moriarty, Long, Mikkelborg & Broz, John C. Merkel, U. S. Atty., Seattle, Wash., Robert M. Taylor, Asst. U. S. Atty. (argued), Dept. of Justice, Washington, D. C., Craig Hayes (argued) of McCush, Kingsbury, O'Connor, Ludwigson, Thompson & Hayes, Bellingham, Wash., for defendants-appellants.

James W. Moorman, Dept. of Justice, Washington, D. C., Kathryn A. Oberly (argued), Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before DUNIWAY and CHOY, Circuit Judges, and GRANT, ^* District Judge.

DUNIWAY, Circuit Judge:

These seven appeals have been consolidated and were all heard on the same day, although some were separately argued. We dispose of all of them in this opinion. In each case except that of Olander, we affirm. In Olander's case, we reverse.

I. BACKGROUND APPLICABLE TO ALL APPEALS.

All of these cases arise from the efforts of the United States District Court for the Western District of Washington to enforce its decree in United States v. Washington, W.D.Wash., 1974, 384 F.Supp. 312, Aff'd, 9 Cir. 1975, 520 F.2d 676, Cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97. The district court, finding its decree opposed and frustrated by the executive and judicial departments of the State of Washington, and by the organized and vocal defiance of the commercial fishermen in the State of Washington, felt compelled to implement its judgment by the issuance of an injunction. That injunction regulates fishing for salmon in Puget Sound and certain other areas by non-Indian ("non-treaty") commercial fishermen for the purpose of assuring to Indian ("treaty") fishermen the opportunity to catch their share of salmon as determined in the court's original judgment.

The court's injunction, issued September 27, 1977, provides in material part:

1. All Puget Sound and other marine waters easterly of Donilla Point-Tatoosh line and their watersheds, all Olympic Peninsula watersheds, and all Grays Harbor and its watersheds are hereby closed to all net salmon fishing except during such times and such specific waters as are opened by State or tribal regulations or regulations of the United States conforming to the orders of this Court in this case.

2. All reef net, gill net and purse seine fishermen licensed by the State of Washington, all other persons who attempt to net or assist in netting salmon in the waters described in paragraph 1, the Puget Sound Gillnetters Association, the Purse Seine Vessel Owners Association, the Grays Harbor Gillnetters Association and all persons in active concert or participation with them are hereby enjoined and prohibited from engaging in taking, possessing, or selling salmon of any species taken from such waters, unless such person has first ascertained from the Washington Department of Fisheries telephone "hot-line", 1-800-562-5672 or 1-800-562-5673, that the area to be fished is open for fishing by non-treaty fishermen at the time the individual intends to fish, Provided, that this provision shall not apply to persons exercising treaty fishing rights in accordance with the orders of this Court.

3. The defendant State of Washington is directed to maintain a continuous telephone hot-line service free of charge to any caller from within the State of Washington to provide information on areas within the waters described in paragraph 1 of this order that are open to net salmon fishing by non-treaty fishermen in conformity with the orders of this Court. The defendant shall furnish to this Court and to the United States Attorney a transcript of the daily hot-line messages.

In Puget Sound Gillnetters Association v. United States District Court, 9 Cir., 1978, 573 F.2d 1123, the Gillnetters Association, by petition for a writ of mandamus, and the State of Washington, by appeal, attacked this injunction. We upheld it against all of the attacks there presented to us.

The cases now at bar arise from the attempts of the United States to enforce the injunction by means of criminal contempt proceedings. In each case, the appellant, a commercial fisherman, was found fishing for salmon by the use of a gill net, in an area which, at the time, had been declared to be closed on the "hot-line" mentioned in the injunction. Each appellant had been previously found in an area similarly declared to be closed and had then been personally served with a copy of the injunction and told that he must comply with paragraph 2. Each was charged, in an order to show cause procured by the United States attorney and signed by the judge, with violating 18 U.S.C. § 401(3), found guilty in a trial to the court, and sentenced to 60 days in jail. Each is free on personal recognizance.

With the foregoing as background, we proceed to consider the appeals that are before us. We consider the appeals in the chronological order in which the convictions occurred.

II. DOLMAN-No. 77-3925.

Dolman was found fishing with a gill net in a closed area on September 30, 1977, three days after the injunction was issued. A National Marine Fisheries officer served a copy of the injunction on him, read paragraph 2 to him, was told by Dolman that he understood it, and warned Dolman that if he again fished in a closed area as ascertained from the hot-line, he could be cited for contempt of court. On October 4, Dolman was again found fishing with a gill net in such a closed area and was served with a citation. Thereafter, an order was issued requiring him to show cause why he should not be punished for criminal contempt. After a full hearing, he was found guilty and sentenced to serve 60 days in jail, on November 22, 1977. We consider his six claims of error.

A. Claims governed by prior decisions of this court.

1. That the treaties with the Indians are not self executing and cannot be enforced by the District Court.

This notion was rejected by us in United States v. Washington, supra, 520 F.2d at 684-85, 687, which we reaffirmed in our Puget Sound Gillnetters case, Supra, 573 F.2d at 1126-27, 1130 n. 9.

2. That the injunction cannot be enforced against Dolman because he was not a party to United States v. Washington.

This argument was rejected by us in our Puget Sound Gillnetters Case, Supra, 573 F.2d at 1132-33.

B. The claim that due process was denied in that there was non-compliance with Rule 65, F.R.Civ.P. and the injunction is not specific enough.

The applicable portion of Rule 65 is 65(d):

(d) Form and Scope of Injunction or Restraining Order. Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; . . .

Dolman argues that the injunction, the operative portions of which are quoted at page 879, Supra, incorporates by reference other documents, namely, Washington Department of Fisheries Regulations, Tribal Regulations, U.S. Regulations, Department of Fisheries Hotline, and a court order issued in United States v. Washington. We find no such incorporation, and counsel does not tell us where he finds it.

All that the injunction requires a fisherman to do is to call the hot-line before going fishing, and then to refrain from fishing in any area which the hot-line tells him is closed. We find paragraph 2 clear, concise, and comprehensible. That is the only paragraph that Dolman was required to obey. We find nothing in paragraph 1 that conflicts with paragraph 2. Paragraph 1 does not purport to authorize fishing in waters declared open by state or tribal or United States regulations. It merely declares that all relevant waters are closed except those opened by such regulations. But it does not do what counsel says it does, that is, require fishermen to know those regulations and follow them. Instead, all it requires is, in paragraph 2, that the fisherman comply with what the hot-line tells him about open or closed waters. If the hot-line tells him that an area is closed, he is not to fish there; if it tells him that an area is open, he may fish there.

The injunction is as specific as the nature of the subject matter regulation of fishing in Puget Sound permits. See Puget Sound Gillnetters, supra, 573 F.2d at 1133, n. 16; McComb v. Jacksonville Paper Co., 1949, 336 U.S. 187, 191-92, 69 S.Ct. 497, 93 L.Ed. 599; Gulf King Shrimp Co. v. Wirtz, 5 Cir., 1969, 407 F.2d 508, 517; Seagram-Distillers Corp. v. New Cut Rate Liquors, Inc., 7 Cir., 1955, 221 F.2d 815, 820-21.

The notion that non-Indian commercial fishermen derive their fishing rights from the treaties, and so are all within the proviso of paragraph 2 is, to say the least, far-fetched. As we pointed out in Puget Sound Gillnetters, supra, 573 F.2d at 1128: "The treaty fishers (i. e., the Indians) derive their rights from one of the cotenants, the tribes. The nontreaty fishers derive their rights from the other, the state as the successor to the United States." Again, at page 1132, we said: "(U)nder Washington law the citizen's right to take fish is purely derivative of the state's power to regulate rights in the fish." And we made it clear that the state's power is subject to the Indians' treaty rights.

The suggestion that a non-Indian fisherman who violates paragraph 2 may think that he is exercising treaty rights, "in accordance with the orders of this court," under the proviso at the end of paragraph 2, is too far-fetched to warrant...