U.S. v. State of Wash.

• Citation: 645 F.2d 749
• Decision Date: 18 May 1981
• Docket Number: No. 77-1397,77-1397
• Parties: UNITED STATES of America et al., Appellees, v. STATE OF WASHINGTON et al., Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 749

645 F.2d 749

UNITED STATES of America et al., Appellees, v. STATE OF WASHINGTON et al., Appellants.

No. 77-1397.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 6, 1978.

Order of Submission Vacated Nov. 29, 1978.

Order Resubmitted July 2, 1979.

Decided May 18, 1981.

Dennis D. Reynolds, argued, James M. Johnson, on the brief, Olympia, Wash., for appellants.

Thomas P. Schlosser, Seattle, Wash., argued, Mason D. Morisset, Alan C. Stay and John Clinebell, Seattle, Wash., on the brief, Kathryn A. Oberly, Washington, D. C., Anne S. Almy, Dept. of Justice, Washington, D. C., on brief for U.S.

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

Before CHAMBERS and KENNEDY, Circuit Judges, and JAMESON, ^* district judge.

KENNEDY, Circuit Judge:

In the protracted litigation over Indian fishing rights in the Pacific Northwest, ¹ the principal decision was announced by Judge Boldt in United States v. Washington, 384 F.Supp. 312 (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). ² The rule of the case is that the Treaty of Medicine Creek ³ grants various Indian tribes a right to an actual share of certain valuable species of fish, ⁴ not merely a right to the opportunity to catch fish, and that state police power regulations ⁵ cannot be used unduly to impair this right. The court retained continuing jurisdiction to enforce its decree.

The case before us arises from one of the orders made in the course of those proceedings. The district court enjoined the State of Washington from enforcing a certain statutory program against Indians, on the ground that the program was inconsistent with the rights granted to the Indian tribes by the court's basic decree. The state appeals, and we now affirm the district court's holding. 459 F.Supp. 1020.

The state action at issue concerns the operation of the so-called Buy-Back Program (BBP). Under the BBP, the State of Washington purchases and resells commercial fishing vessels, and forbids the use of the vessels thus resold in any commercial fishing in Washington, by both Indians and non-Indians. To describe the purpose and operation of this program, we quote the trial court's own summary of its findings of fact:

"Washington limits entry into the commercial salmon fishery in order to reduce the amount of gear and the number of fishermen to equate better the commercial fishing effort with the available resource and thereby provide an economic benefit to the persons remaining in the fishery. State action to limit commercial fishing can take several forms, including mor(a)toria on issuance of new licenses, stratification of licenses on the basis of vessel size or duration of license, limitation of seasons, and efforts to reduce the fleet size. In 1974 the state adopted a moratorium on issuance of new commercial salmon fishing licenses. The state's Buy-Back Program was developed in 1975 as another aspect of the state's program to limit commercial fishing power. The program was developed in cooperation with representatives of various segments of the nontreaty commercial fishing interests. No representatives of treaty Indian tribes were included in the groups which were set up to develop or advise on the programs. In enacting the Buy-Back Program the legislature found that there was an overabundance of commercial fishing gear in use in the state. It did not find that there was an overabundance of gear in the Indian treaty fisheries and no evidence has been offered to refute this court's prior findings that treaty Indian capability is presently below treaty entitlement level.

"The Department of Fisheries has recognized three distinct categories of salmon fisheries commercial, recreational and Indian treaty-right fisheries. The different objectives of these distinct fisheries (have) dictated the application of separate management policies with respect to each of them.

"The Buy-Back statute and regulations expressly allow future use of vessels sold under the program in the state's recreational fishery, including use as charter vessels in that fishery. But as construed by state authorities, they prohibit use of such vessels in the treaty Indian fishery.

"Those who drew up and enacted the Buy-Back Program were aware of concern over the validity of the prohibition on use of the vessels in the treaty Indian fishery but they felt that such prohibition was necessary to retain the support of the non-Indian commercial fishing interests for the program. As enacted and implemented the program includes a prohibition against subsequent use in any commercial salmon fishery in the state or adjacent offshore waters, including the treaty Indian fishery, of vessels acquired and resold under the program. This prohibition is enforced by requiring all purchasers to sign an agreement which incorporates the restrictions against reuse, provides for injunctive relief and imposes a $200 per day liquidated damages for such use. The Director of Fisheries stated that commercial use of such a vessel by a treaty Indian in the treaty fishery may result in the user's arrest, seizure of the vessel and forfeiture of fish.

"The Buy-Back Program is entirely funded by a grant from the Economic Development Administration of the federal government. The restrictions on future use of vessels by treaty Indians (were) not a term or condition of the grant nor was such restriction considered by the federal officials in approving the grant although they were aware of the state's restriction on subsequent use and assumed it applied to all persons, including treaty Indians. EDA's concern was with the general goal of the program; the details were decided by the state.

"Those who drew up the program anticipated that it would result in increasing the market value (price) of fishing vessels not purchased under the program. However, they did not conduct any studies on the effect of such increase or reduced open market availability of such vessels on the Indians' future efforts to acquire vessels and gear necessary to increase their ability to exercise their treaty right as decreed by this court.

"A major short-term effect of the program is to enable vessel owners to obtain a substantially higher price for their vessels from the state than they could obtain on the present private market. Because the present demand for construction of new gillnet fishing boats exceeds the supply, it was not possible to obtain a new boat during the 1976 fishing season.

"After purchase by the state the vessels are stripped of their gear and offered for resale through public auction. The resale prices are for the most part considerably less than the price at which they were purchased by the state. This is due in large measure to the restrictions against relicensing and reuse. Where the vessels are purchased by out-of-state buyers for out-of-state commercial fishing use, the high quality ones have brought from 80% to 110% of the state's purchase cost.

"When purchasing vessels under the Buy-Back Program the state must also purchase and permanently retire all current Washington commercial fishing licenses and delivery permits issued to the vessel or its owner. The boat may not be relicensed for commercial fishing or delivery and under the state's license moratorium laws the repurchaser from the state cannot obtain a new license.

"Commercial use of these vessels by treaty Indians in their treaty fisheries would not defeat the purposes of the Buy-Back Program but would increase the economic opportunity of treaty fishermen. There is no conservation purpose, as previously defined by this court, for imposing a restriction on subsequent use of the vessel in the treaty Indian fishery.

"A survey undertaken by the Northwest Indian Fisheries Commission disclosed that at least 87 treaty fishermen from 11 treaty Indian tribes will seek to purchase used fishing boats from the state's Buy-Back auctions if there are no waivers of, or restrictions on, use of the boats for treaty-right fishing and that at least 71 treaty Indian fishermen have sufficient funds to purchase a used commercial fishing boat but will not have sufficient funds to purchase a new boat.

"At least two identified treaty Indians have purchased vessels at the first two state auctions for intended commercial use in their treaty fishery."

United States v. Washington, 459 F.Supp. 1020 (W.D.Wash.1978) (Phase I Compilation of Major Post-Trial Substantive Orders (Through June 30, 1978)); id. at 1090-91 (Order Re: State "Buy-Back" Program (Dec. 22, 1976)). See also Record at 339-65 (detailed Findings of Fact and Conclusions of Law).

The trial court held that the controversy was within its continuing jurisdiction, and that the BBP violated the Indians' Treaty rights. The latter conclusion was based on the following predicates: the BBP failed to recognize the special status of treaty rights; it discriminated against the Indians by allowing BBP vessels to be used in the sport fishery but not the Indian commercial fishery; and the BBP was not so closely tailored to permissible conservation purposes as to justify its application to Indians who were exercising their treaty rights. By way of remedy, the court declared the contractual restrictions on use of the BBP vessels void as applied to Indian purchasers, and held the various statutory enforcement mechanisms, which authorized forfeiture and penal sanctions, inapplicable to Indians.

I. Prior Proceedings and Issues on Appeal

Both the United States and the State of Washington moved for summary judgment; each side submitted proposed findings of fact and conclusions of law, and each side responded to the submission of the other. Our review of this point in the proceedings is made easier, perhaps deceptively easy, by the State's position at trial and on appeal. The State responded to appellee's proposed findings and conclusions only in a...