U.S. v. State of Washington, C70-9213.
| Decision Date | 05 April 2001 |
| Docket Number | No. C70-9213.,C70-9213. |
| Citation | 143 F.Supp.2d 1218 |
| Court | U.S. District Court — Western District of Washington |
| Parties | UNITED STATES OF AMERICA, et al., Plaintiffs, v. STATE OF WASHINGTON, et al., Defendants. |
Robert Kirk Costello, Attorney General's Office, Fish & Wildlife, Olympia, WA, for defendants.
Barbara J. Gazeley, Attorney General's Office, Department of Justice, Salem, OR, Eric J. Bloch, Attorney General's Office, Department of Justice, Portland, OR, for State of Oregon.
Richard Mayer Berley, Mark Slonim, John B. Arum, Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, WA, for Makah Indian Tribe.
Harry L. Johnsen, III, Daniel Alan Raas, Brian Kenneth Valentine, Raas, Johnsen & Stuen, PS, Bellingham, WA, for Lummi Nation.
Ruth A. Kennedy, Garvey, Schubert & Barer, Seattle, WA, Leslie G. Barnhart, Katherine K. Krueger, Quileute Natural Resources, Lapush, WA, for Quileute Tribe.
Kathryn J. Nelson, Tracey A. Thompson, Clemencia Castro-Woolery, Eisenhower & Carlson, Tacoma, WA, Phillip Evan Katzen, Kanji & Katzen, PLLC, Seattle, WA, Allen H. Sanders, Seattle, WA, for Skokomish Indian Tribe, Port Gamble S'Klallam Tribe, Lower Elwha Klallam Tribe, Jamestown S'Klallam Tribe.
John Curtright Sledd, Suquamish Tribe, Suquamish, WA, Phillip Evan Katzen, Kanji & Katzen, PLLC, Seattle, WA, Allen H. Sanders, Seattle, WA, for Suquamish Indian Tribe.
Bill Tobin, Vashon, WA, Phillip Evan Katzen, Kanji & Katzen, PLLC, Seattle, WA, Allen H. Sanders, Seattle, WA, for Nisqually Indian Tribe.
Eileen Marie Cooney, US Department of Justice, Seattle, WA, William Anthony White, US Department of Justice, Environment & Natural Resources, Washington, DC, Peter C. Monson, US Department of Justice, Environment & Natural Resources, Denver CO, Samuel D. Rauch, III, US Department of Justice, ENRD, Wildlife & Marine, Washington, DC, Vernon Peterson, US Department of Interior, Office of Regional Solicitor, Portland, OR, for USA.
Mason D. Morisset, Morisset, Schlosser, Ayer & Jozwiak, Seattle, WA, for Tulalip Tribes of WA.
Phillip Evan Katzen, Kanji & Katzen, PLLC, Seattle, WA, Allen H. Sanders, Seattle, WA, for Nooksak Indian Tribe, Stillaguamish Tribe, Upper Skagit Tribe, Sauk-Suiattle Tribe.
Kevin R. Lyon, Lyon Corporation, PS, Olympia, WA, Ronald John Whitener, Northwest Justice Project, Seattle, WA, Kelly S. Croman, Squaxin Island Legal Dept., Olympia, WA, Phillip Evan Katzen, Kanji & Katzen, PLLC, Seattle, WA, Allen H. Sanders, Seattle, WA, for Squaxin Island Tribe.
John Howard Bell, Annette Klapstein, Debra S. O'Gara, Law Office of the Puyallup Indian Tribe, Tacoma, WA, for Puyallup Tribe.
Nettie Louise Alvarez, Richard S. Ralston, Ralston & Alvarez, Seattle, WA, for Hoh Indian Tribe.
Richard Reich, Office of Reservation Attorney, Taholah, WA, for Quinault Indian Nation.
Alix Foster, Allan E. Olson, Office of the Tribal Attorney, Swinomish Indian Tribal Community, LaConner, WA, for Swinomish Indian Tribal Community.
ORDER ON SUMMARY JUDGMENT MOTIONS
THIS MATTER comes before the court on motions by the Makah Tribe (hereinafter "Makah"), the United States Secretary of Commerce (hereinafter the "Secretary"), and the State of Oregon (hereinafter "Oregon"), each seeking summary judgment on the methodology to be used in allocating the United States' share of Pacific whiting fish between Indian and non-Indian fishers. The State of Washington (hereinafter "Washington") has filed a combined response to these motions. Having now reviewed the pleadings filed in support of and in opposition to the motions, together with the relevant portions of the record, and being fully advised, the court finds and rules as follows:
I. BACKGROUND
The following facts are not in dispute: The Pacific whiting is a unitary fish stock (meaning that there are no recognized subspecies or distinct geographical subgroups) that seasonally travels the Pacific coast, ranging between Baja California and central British Columbia. Being in relatively good condition, the stock is commercially exploited by treaty and non-treaty fishers in the coastal waters of British Columbia, Washington, Oregon and California. The stock annually passes through the Makah's usual and accustomed fishing grounds in the northwestern portion of Washington state, and Makah fishers are the primary, and at times only, participants in the treaty portion of the United States' whiting fishery.
By agreement between the two nations, the United States and Canada coordinate in an attempt to assess stock abundance and set yearly limits on the allowable whiting catch. The countries attempt to allocate that allowable catch between them, and then regulate their own fisheries pursuant to those provisions. They do not always agree on an allocation, and combined harvest has, at times, exceeded the overall allowable catch agreed upon.
The United States' portion of the allowable whiting catch is managed by the Secretary pursuant to his obligation and authority to regulate fishery resources, through the National Oceanic and Atmospheric Administration (hereinafter "NOAA") and the National Marine Fisheries Service (hereinafter "NMFS"). These fisheries are subject to the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. § 1801 et seq. (hereinafter the "Magnuson Act"). The Magnuson Act empowers the Pacific Coast Fishery Management Council (hereinafter "PFMC") to study, design and recommend to the Secretary a fishery management plan (hereinafter "FMP") for each of the fisheries along the United States' western territorial waters. The whiting is subject to PFMC's Pacific Coast Groundfish Fishery Management Plan, which covers a range wide range of groundfish species. See 50 C.F.R. §§ 660.301-660.350. All FMPs must comply with the Magnuson Act's explicit National Standards, see 16 U.S.C. § 1851, as well as with all "other applicable law." See 16 U.S.C. § 1853(a). "Other applicable law" for purposes of the Magnuson Act includes treaties with Indian tribes. Parravano v. Babbitt, 70 F.3d 539, 544 (9th Cir.1995); Washington State Charterboat Ass'n v. Baldridge, 702 F.2d 820, 823 (9th Cir.1983).
Makah possesses an undisturbed right to take fish at its usual and accustomed fishing grounds pursuant to the Stevens Treaties, which have been interpreted to reserve for Indian tribes the right to up to half of the harvestable surplus whiting, while reserving the other half for non-treaty fishers, accounting for fairness concerns.1 The harvestable surplus of whiting is defined as the total number of fish that may be taken while observing all conservation needs that prevent demonstrable harm to the stock, and treaty harvest is limited only by this conservation principle.
In years past, Makah and NMFS disagreed over the methodology for calculating the tribe's treaty share of the whiting fishery because of limitations on reliable scientific data, and because of disagreement over how the overall harvestable surplus would be defined. In 1995, NMFS proposed a whiting allocation that Makah believed violated its treaty rights, and Makah initiated this subproceeding by filing a Request For Determination in 1996 seeking, inter alia, to have NMFS' proposal declared invalid. Oregon and Washington joined the subproceeding to dispute the existence of Makah's treaty right to harvest whiting, and to argue that Makah's attempt to exercise any purported right was procedurally flawed. In November of 1996, these arguments were rejected by this court in a partial summary judgment ruling in Makah's favor, but questions over the proper allocation methodology remained unresolved.
Between 1996 and 1998, the dispute over the proper methodology for calculating Makah's treaty whiting share was resolved by Makah's agreement with NMFS on a compromise harvest allocation. In spite of these yearly compromises, NMFS and Makah were still pursuing a long-term management solution. Then, in 1999, Makah proposed a long-term management plan that defined the tribal allocation of whiting according to a variable percentage of the overall U.S. harvest in metric tons. The proposal laid out an allocation table, wherein the harvest percentage reserved for tribal fishers was to decrease as the coastwide harvest guideline increased, and would never exceed 17.5%. Recognizing that the conservation necessity principle was the only permissible limitation on tribal allocation, and that the proposed 1999 allocation would not raise conservation concerns, NMFS accepted the allocation method specified in Makah's proposed framework agreement.2 NMFS did so again in year 2000. Finally, for the 2001 whiting fishery, NMFS agreed to a tribal allocation of 27,500 metric tons (down from previous years because the United States' allowable whiting catch was reduced to account for stock abundance), as specified in Makah's proposed allocation table.
NMFS and Makah are now in agreement that the allocation table proposed in 1999 is an acceptable and satisfactory long-term answer to the tribal allocation issue. They agree that the allocation will always be governed by the conservation necessity principle, and may in the future be adjusted accordingly. The Secretary and Makah therefore move the court for a summary judgment ruling approving the proposed 1999 allocation framework as a long-term management plan that falls within the tribes' treaty right and complies with applicable law. As further relief, Makah also asks the court to declare that the methodology originally proposed by NMFS in 1995 is unlawful.3 Oregon opposes the motions of each, and has separately moved for summary judgment declaring the proper methodology for whiting allocation to be one of two variations on NMFS's 1995 biomass distribution proposal. All parties have had an opportunity to respond to the issues raised in these three motions.4
The parties agree that the court retains jurisdiction to hear disputes regarding Indian treaty fishing issues pursuant to ...
To continue reading
Request your trial
-
Midwater Trawlers v. Department of Commerce
...in violation of its treaty rights, the Makah Tribe initiated a subproceeding seeking to have the proposal declared invalid.8 Washington II, 143 F.Supp.2d at 1221. In its subproceeding, the Makah Tribe disagreed with the Fisheries Service over the method to be used for calculating the tribe'......