U.S. v. State of Wash., 84-3769

• Decision Date: 29 October 1985
• Docket Number: No. 84-3769,84-3769
• Citation: 774 F.2d 1470
• Parties: UNITED STATES of America, et al., Plaintiffs-Respondents, Appellees, v. STATE OF WASHINGTON, et al., Defendants-Petitioners, Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1470

774 F.2d 1470

UNITED STATES of America, et al., Plaintiffs-Respondents, Appellees, v. STATE OF WASHINGTON, et al., Defendants-Petitioners, Appellants.

No. 84-3769.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 18, 1985.

Decided Oct. 29, 1985.

Phillip E. Katzen, Evergreen Legal Services, Seattle, Wash., Donald T. Hornstein, Atty., Maria Iizuka, Atty., U.S. Dept. of Justice, Washington, D.C., and Richard Reich, Reservation Atty., Quinault Indian Nation, Taholah, Wash., for plaintiffs-respondents, appellees.

Dennis D. Reynolds, Asst. Atty. Gen., Temple of Justice, Olympia, Wash., for defendants-petitioners, appellants.

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

Before WRIGHT and TANG, Circuit Judges, and HENDERSON, ^* District Judge.

TANG, Circuit Judge:

This interlocutory appeal arises from the district court's continuing jurisdiction in the Northwest Indian fishing litigation, United States v. Washington (Boldt I), 384 F.Supp. 312, 408 (W.D.Wash.1974), aff'd, 520 F.2d 676 (9th Cir.1975), cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976). The lower court ruled, inter alia, that the defense of "foregone opportunity" may be raised in a proceeding for equitable adjustment of salmon catch between treaty and nontreaty fishers, and, that catch made by nonresidents of Washington within state-regulated waters is to be included within the nontreaty share of fish. For the reasons set forth below, we adopt the principle of foregone opportunity, but modify the district court's formulation of that principle. We affirm the lower court's ruling that nonresident catch within State waters is to be counted against the nontreaty share.

I. BACKGROUND

The fishing rights of the Indians and non-Indians originate in the Stevens Treaties, a series of treaties signed in 1854 and 1855, in which fourteen Northwest Tribes gave up certain lands in exchange for certain rights, including the right to fish "at all usual and accustomed grounds ... in common with all citizens of the Territory" of Washington. ¹ The treaties have been interpreted so as to require an equal division of the harvestable portion of each run of salmon that passes through "usual and accustomed" fishing grounds. Washington v. Washington State Commercial Passenger Fishing Vessel Association (Fishing Vessel), 443 U.S. 658, 685, 99 S.Ct. 3055, 3074, 61 L.Ed.2d 823 (1979); Boldt I, 384 F.Supp. at 416-17. Guidelines for the management of the salmonid resource were adopted by the district court in an agreed-upon order, termed the Salmon Management Plan (SMP), in 1978. United States v. Washington, 459 F.Supp. 1020, 1107-13 (W.D.Wash.1978), aff'd, 645 F.2d 749 (9th Cir.1981).

Presently, the salmon harvest is managed to secure two equally-important objectives: conservation of the species and fair allocation of the harvest between the treaty and nontreaty sides. See SMP Secs. 1.1, 1.2, 459 F.Supp. at 1108. To assure the continued existence of the resource, a certain number of fish are allowed to "escape" to spawn. An "escapement goal" for each run of each species is therefore set by the parties before the beginning of each season. SMP Sec. 4.5, 459 F.Supp. at 1110. ²

Once escapement levels are established, fishers may catch the remaining "harvestable" portion. See SMP Sec. 6, 459 F.Supp. at 1111. Generally each side's fishers are entitled to the opportunity to catch 50% of the harvestable fish. SMP Sec. 1.2, 459 F.Supp. at 1108 (citing Boldt I, 384 F.Supp. 312). Allocation of salmon between treaty and nontreaty fishers is computed separately for each of the six species and seven regions of origin of the runs. SMP Sec. 7.1, 459 F.Supp. at 1111. ³ To further implement the harvest objective, the SMP provides for the development of pre-season forecasts of run size for each salmon species and region of origin, and for frequent in-season updating of these forecasts based upon actual catch data. SMP Secs. 5, 8, 459 F.Supp. at 1111, 1112. As a fishing season progresses, both sides are aware of the fish remaining to be taken by each party. ⁴ If estimates indicate an over-harvest in-season, the State may require a "conservation closure" to protect the species. SMP Sec. 9.2, 459 F.Supp. at 1112. After the fishing season is completed, a post-season analysis is made of run size, the actual harvest by each side, and the number of fish allowed to escape for spawning and hatchery purposes.

To remedy over-harvests by either side, the SMP provides for "equitable adjustment," whereby catch imbalances are made up in future seasons. SMP Sec. 7.2, 459 F.Supp. at 1111. Disputes arising under the SMP are submitted in the first instance to the Fisheries Advisory Board (FAB), a dispute resolution mechanism established by the district court. SMP Sec. 11.1, 459 F.Supp. at 1113.

In 1981 and 1982, the last in-season updates indicated that the run size of certain species was greater than earlier calculations had predicted. ⁵ By this time, the anadromous fish had already reached freshwater and terminal areas ⁶ where the Tribes fished, as they traditionally have done. Nontreaty commercial fishers, on the other hand, harvested in marine areas. ⁷ According to the State, it chose to permit commercial fishing in the marine areas only because the quality of the catch deteriorates as the fish near spawning in the terminal areas and because such fisheries allow earlier run size estimates which facilitate management of the resource. ⁸ The Director of the Washington Department of Fisheries (WDF) does, however, have the authority to designate special fisheries inland. Wash.Rev.Code Ann. Sec. 75.12.010(5) (1985 Supp.). The Tribes notified the State that they would harvest the excess fish. ⁹ The State did not raise any objection through the FAB, as it could have, see SMP Sec. 11, 459 F.Supp. at 1113, and opened only one fishery in an attempt to harvest its share of the excess from the runs. ¹⁰ The Tribes proceeded to harvest the excess salmon.

The State contends that the nontreaty fishers are owed fish from ten runs. In five of these runs, the Indians harvested more fish than the non-Indians, but less than 50% of harvestable fish. ¹¹ As for the other five runs, the Tribes caught over 50% of the harvestable salmon. These calculations are based upon post-season data. ¹² The Indian fishers contend that the State had the opportunity to harvest its share of the excess salmon, but instead "chose" not to harvest. They contend that the State, therefore, forewent its opportunity to harvest, and any equitable adjustment would unfairly penalize the treaty fishers.

In 1982, the State began to exclude the catch of nonresidents of Washington harvested within state-regulated waters from the nontreaty share. The Tribes challenge this practice.

The parties were first heard by a federal magistrate who issued a Report and Recommendation. The district court then issued an order from which this appeal is taken. The district court adopted the principle of foregone opportunity and determined that claims for equitable adjustment should be resolved as follows:

First, the decision-maker must determine the actual catch by each party from the run in question by using the best available post-season data.

Second, the share to which each side is entitled must be determined. This will generally be 50% of the total number of harvestable fish for that run as determined from the best post-season data. The share can be different than this 50% projection if the share is affected by equitable adjustments from previous years. No equitable adjustment would be made unless one party exceeded its share of 50% of the harvestable number of fish. If a party, however, is prevented from harvesting its share due to a conservation closure said party is entitled to an equitable adjustment.

Third, the decision-maker must determine if fish caught by one party (in excess of its share) would have significantly increased the other party's catch if the more successful party had stopped fishing before making the excess catch. The decision-maker must also consider whether the fish not caught would have been surplus to the escapement goal for the relevant run. If the catch would not have contributed significantly to the other party's catch, but would have been surplus to escapement needs, no equitable adjustment would be appropriate.

The district court also concluded that the nontreaty share of salmon is to include the catch of nonresidents of Washington which is harvested within state-regulated waters.

The State requested permission to appeal those two rulings under 28 U.S.C. Sec. 1292(b)(1982). The district court certified the issues for appeal. This interlocutory appeal is properly before us.

II. DISCUSSION

A. Standard of Review

The issues raised are questions of law, and are reviewable de novo by this court. 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).

B. Foregone Opportunity Doctrine

The State puts forth two major arguments why the defense of "foregone opportunity" may not be raised in equitable adjustment proceedings.

The State first points to Fishing Vessel, in which the Supreme Court interpreted the Stevens Treaties to require an equal division of the salmonid resource between the treaty and nontreaty fishers. 443 U.S. at 685, 99 S.Ct. at 3074. In Fishing Vessel the Court stated that, "while the maximum possible allocation to the Indians is fixed at 50%, the minimum is not; the latter will, upon proper submissions to the District Court, be modified in response to changing circumstances." 443 U.S. at 686-87, 99 S.Ct. at 3075 (footnote omitted). The State argues this 50% share represents a maximum, which may not be exceeded by the Indian side. ¹³

We have recently rejected the argument posed by the State. In United States v. Washington, 761 F.2d 1404, 1408 (9th Cir.198...