U.S. v. State of Wash., 84-3571

• Decision Date: 28 May 1985
• Docket Number: No. 84-3571,84-3571
• Citation: 761 F.2d 1404
• Parties: UNITED STATES of America, et al., Plaintiffs-Appellees, and Quinalt Indian Tribe, et al., Plaintiffs-Intervenors-Appellees, v. STATE OF WASHINGTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1404

761 F.2d 1404

UNITED STATES of America, et al., Plaintiffs-Appellees and Quinalt Indian Tribe, et al., Plaintiffs-Intervenors-Appellees, v. STATE OF WASHINGTON, Defendant-Appellant.

No. 84-3571.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 18, 1985.

Decided May 28, 1985.

Donald T. Hornstein, Dept. of Justice, Land & Nat'l Resource Div., Washington, D.C., Susan K. Hvalsoe, Cullen, Holm, Hoglund, & Foster, Olympia, Wash., for plaintiffs-appellees and plaintiffs-intervenors-appellees.

Dennis Reynolds, Asst. Atty. Gen., Olympia, Wash., for defendant-appellant.

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

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

EUGENE A. WRIGHT, Circuit Judge:

We must again resolve a dispute arising from the district court's continuing jurisdiction in the Northwest Indian Fisheries litigation. The district court's initial decision apportioning the opportunity to catch fish 50-50 between the Indian tribes and non-Indians is reported in United States v. Washington, 384 F.Supp. 312 (W.D.Wash.1974) (Boldt I ), 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).

FACTS

The issues presented on this appeal are tied to the question of salmon escapement on the Queets, Hoh, and Quillayute Rivers in northwestern Washington. In 1982 and 1983, the district court's Fishery Advisory Board (FAB) ¹ considered a dispute over the appropriate number of fall Chinook that should be allowed to escape the in-river fisheries and spawn. The Tribes argued that fewer spawners were necessary to produce a Maximum Sustained Yield (MSY) than the number of spawners insisted upon by the State.

In 1982, the FAB developed an interim, data-gathering or "probing plan" to aid in determining the escapement levels necessary to sustain optimum yield. FAB 82-21. Under the plan, a fixed catch-rate of 40% of the run was adopted. As fish density varies from year to year, the fixed exploitation rate was designed to produce a varying range of actual numbers of spawners. These data would then be used by resource managers to determine the escapement levels necessary to achieve MSY.

This fixed-rate exploitation plan was developed without State cooperation, and the State did not challenge the approach in district court. The allocation between Indian and non-Indian fisheries within the 40% exploitation rate was not, however, a factor in the 1982 plan.

In 1983, the court's technical advisor issued a series of separate recommendations for the fall Chinook season on the Queets, Hoh and Quillayute Rivers. FAB Nos. 83-31, 83-33, 83-35. The recommendations concluded that to effectively probe optimum yield, fish determined to be unharvestable by one party must be available for harvest by the other party in order to assure a fixed catch. The advisor noted that the State's claimed right to assign part of its allocation to non-harvest recreational uses would result in exploitation of less than 40% of the run, thereby undermining the FAB's probing plan.

This results from the nature and location of the fisheries. The State hook and line sports fishery is located upstream from the tribal commercial net fishery. Thus, harvestable fish not caught by the sports fishery necessarily result in greater escapement, undermining the fixed catch goal.

Subsequently, the State filed a request for review of the recommendation in the district court. The State's primary objection was that the interim plan would authorize a tribal catch exceeding its 50% allocation. The State argued that the plan would infringe its opportunity to catch 50% of the harvestable run since a greater tribal catch necessarily reduces the number of fish available to the sports fishery. The district court adopted the advisor's recommendation over these objections by order on December 19, 1983. This appeal followed.

ANALYSIS

I. Appealability

The district court adopted the FAB plan by order without certifying its order appealable under Fed.R.Civ.P. 54(b) or 28 U.S.C. Sec. 1292(b). The State challenges it as allegedly impairing the State's equal opportunity to catch available fish. The Tribes argue that the district court order is not final and appealable.

Section 1291 of Title 28 gives a right of appeal "from all final decisions" of the district courts. The Supreme Court has identified the policy behind the finality doctrine:

A "final decision" generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.... The foundation of this policy is not in merely technical conceptions of "finality." It is one against piecemeal litigation.

Catlin v. United States, 324 U.S. 229, 233-34, 65 S.Ct. 631, 634, 89 L.Ed. 911 (1945). It is sometimes appropriate to give the finality requirement a practical rather than a technical construction. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 375, 101 S.Ct. 669, 674, 66 L.Ed.2d 571 (1981). See In Re Coordinated Pretrial Proceedings, 747 F.2d 1303, 1305 (9th Cir.1984). "[F]inal ... does not necessarily mean the last order possible to be made in a case." Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 311, 13 L.Ed.2d 199 (1964).

This is particularly true when post-judgment orders are involved. The policy against and the probability of piecemeal review is not as decisive a consideration after judgment as before judgment since the underlying dispute is already settled. See, e.g., 15 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure, Sec. 3916 at 606 (1976); Joseph F. Hughes & Co. v. United Plumbing and Heating, Inc., 390 F.2d 629, 630 (6th Cir.1968) (per curiam); cf. Kittitas Reclamation District v. Sunnyside Valley Irrigation District, 626 F.2d 95 (9th Cir.1980), cert. denied, 449 U.S. 1079, 101 S.Ct. 861, 66 L.Ed.2d 802 (1981) (finality rule does not bar appellate review of orders issued pursuant to district court's continuing jurisdiction over consent decree in water rights case). Moreover, unless such orders are found final, there is often little prospect that further proceedings will occur to make them final. 15 C. Wright, A. Miller & E. Cooper, supra, at 607. See also SportMart, Inc. v. Wolverine World Wide, Inc., 601 F.2d 313, 316 (7th Cir.1979).

The Tribes first argue that the district court did not dispose of the allocation issues raised by the State in its request for review. By adopting an interim plan contrary to allocation principles urged by the State, the district court effectively rejected the State's primary contention. Although the court did not join the State in characterizing those proceedings as an allocation dispute, implicit in its decision is the determination that the State's entitlement does not limit the tribal catch to 50% of the available run.

The Tribes next contend that the five-year plan is of an interim nature only, and should not be considered final. This view, however, would eliminate any opportunity for review since by definition the plan will always be "interim." The potential that the State's treaty rights will be infringed by the plan over a five-year period weighs in favor of considering the order final and appealable.

We reject the Tribe's assertion that there are no factual or legal findings to be reviewed on appeal. First, the district court adopted the FAB reports in its order. These reports constitute the findings of the court under Federal Rule of Civil Procedure 52(a). In addition, the district court's order resolves the legal issues underlying the plan, leaving only factual determinations regarding yearly implementation to be determined.

The United States argues that because the factual record is rooted in 1983, this appeal is moot. The district court's decision, however, not only adopted the factual findings relevant to 1983, it implemented an interim plan which would allow the tribal catch to exceed 50% of the available fish if the non-treaty fishers were unable to harvest their full share. This aspect of the plan will apply throughout its five-year life, and does not depend on annual data. To decline review on this basis would create a situation guaranteed to repeat yet evade review. See United States v. Oregon, 718 F.2d 299, 302 (9th Cir.1983).

At oral argument, the United States emphasized the lack of accurate data on prior ocean interceptions. This, the government argued, precludes the State from asserting that the plan allows the tribal share to exceed 50% of the harvestable fish. ² However, the parties and the FAB have proceeded upon the assumption that the tribal catch would exceed 50% since the projected in-river sport catch was so low. See FAB 82-31 at 7. We believe it highly improbable that ocean interception data will alter the allocation substantially enough to reduce the tribal catch to less than 50%. We decline to deny review here in anticipation of further clarification of these figures at some indefinite future date.

We conclude that, because there is little danger of piecemeal review and because this is the only opportunity for meaningful review, we shall treat the district court's post-judgment order as an appealable final order.

II. Allocation

The district court adopted the FAB's interim plan designed to gather information necessary for determining optimum yield. Under the plan, the Tribes were allowed to exceed their 50% allocation to harvest fish determined to be unharvestable by the sports fishery. The State contends that experimenting with harvest rates by allowing a larger tribal catch violates the State's treaty-secured opportunity to take 50% of the available harvest.

A. Background

In 1854 and 1855, "Isaac Stevens, the first Governor and first Superintendent of Indian Affairs of the Washington Territory, and a small group of advisers," negotiated a series of treaties (Stevens Treaties) with Indian tribes then...