United States v. State of Wash.

• Decision Date: 26 September 1980
• Docket Number: Civ. No. 9213—Phase II.
• Citation: 506 F. Supp. 187
• Parties: UNITED STATES of America et al., Plaintiffs, v. STATE OF WASHINGTON et al., Defendants.
• Court: U.S. District Court — Western District of Washington

506 F. Supp. 187

UNITED STATES of America et al., Plaintiffs, v. STATE OF WASHINGTON et al., Defendants.

Civ. No. 9213—Phase II.

United States District Court, W. D. Washington.

September 26, 1980.

COPYRIGHT MATERIAL OMITTED

William A. White, Atty., Indian Resources Section, Land & Natural Resources Div., Dept. of Justice, Washington, D. C., George D. Dysart, Atty., Dept. of Justice, Land & Natural Resources Div., Portland, Or., for the U. S.

Alan C. Stay, Phillip E. Katzen, Evergreen Legal Services, Seattle, Wash., for Jamestown Band-Clallam, Lower Elwha, Muckleshoot, Nisqually, Nooksack, Port Gamble Band-Clallam, Samish, Sauk-Suiattle, Skokomish, Snohomish, Snoqualmie, Squaxin Island, Steilacoom, Stillaguamish, Suquamish and Upper Skagit Tribes.

Mason D. Morisset, Steven S. Anderson, Ziontz, Pirtle, Morisset, Ernstoff & Chestnut, Seattle, Wash., for Lummi, Makah, Quileute and Tulalip Tribes.

John Clinebell, Tacoma, Wash., William H. Rodgers, Jr., Seattle, Wash., for Puyallup Tribe.

Peter J. Wilke, Bellevue, Wash., for Swinomish Indian Tribal Community.

Joanne Eileen Foster, Taholah, Wash., for Quinault Tribe.

Alan C. Alhadeff, Alhadeff, Leavitt & Wesley, Seattle, Wash., for Dwámish Tribe.

James B. Hovis, Hovis, Cockrill & Roy, Yakima, Wash., for Yakima Indian Nation.

Daniel A. Raas, Bellingham, Wash., for Lummi Tribe.

Susan Kay Hvalsoe, Cullen, Holm, Hoglund & Foster, Olympia, Wash., for Hoh Indian Tribe.

Slade Gorton, Atty. Gen., Edward B. Mackie, Deputy Atty. Gen., State of Wash., Olympia, Wash., for State of Wash.

James M. Johnson, Sr. Asst. Atty. Gen., Dennis Reynolds, Asst. Atty. Gen., Dept. of Game, State of Wash., Olympia, Wash., for Departments of Fisheries and Game.

Charles E. Yates, Moriarty, Long, Mikkelborg & Broz, Seattle, Wash., for Reefnet Owners Assn.

Joseph T. Mijich, John P. World, Seattle, Wash., for Purse Seine Vessel Owners Ass'n, amicus curiae.

OPINION

ORRICK, District Judge.

This opinion constitutes but the most recent link in a long chain of opinions construing the following 27 words:

"The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory, * * *."¹

The quoted clause appears in six treaties negotiated between the United States and several Pacific Northwest Indian tribes in 1854 and 1855.² The Indians traded their interest in the land west of the Cascade Mountains and north of the Columbia River for the exclusive use of small land parcels (reservations), cash payments, and various guarantees, including, of prime importance in 1854-1855 as well as today, the right to continue fishing. In each of the seven cases where the Supreme Court has directly addressed the scope of the fishing clause in these treaties, it has "placed a relatively broad gloss on the Indians' fishing rights." Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 679, 99 S.Ct. 3055, 3071, 61 L.Ed.2d 823 (1979).³

This complex case, which was commenced in 1970 by the United States on its own behalf and as trustee of seven Indian tribes,⁴ involves three key issues: (1) whether the treaties' fishing clause entitles the Indians to a specific allocation of the salmon and steelhead trout⁵ in the "case area";⁶ (2) if such allocation is required, whether hatchery-bred and artifically-propagated fish are included in the allocable fish population; and (3) whether the right of taking fish incorporates the right to have treaty fish protected from environmental degradation.

The case has been litigated in two phases. In Phase I, which focused on the allocation issue, a series of trial and appellate court decisions culminated in a 1979 Supreme Court, opinion which conclusively established the tribes' treaty-based right to take the lesser of 50 percent of the "harvestable" case area fish or a sufficient quantity of fish to provide them with a moderate standard of living. United States v. State of Washington, 384 F.Supp. 312 (W.D.Wash. 1974) ("Final Decision 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); United States v. State of Washington, 459 F.Supp. 1020 (W.D.Wash.1974-1978) ("Post-Trial Decisions"), various appeals dismissed, 573 F.2d 1117 (9th Cir. 1978), 573 F.2d 1118 (9th Cir. 1978), 573 F.2d 1121 (9th Cir. 1978), decisions at 459 F.Supp. 1020, 1097-1118 (W.D.Wash.1977-1978), aff'd sub nom. Puget Sound Gillnetters Ass'n v. United States District Court for the Western District of Washington, 573 F.2d 1123 (9th Cir. 1978), aff'd in part, vacated in part, and remanded sub nom. Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 685-687, 99 S.Ct. 3055, 3074-3075, 61 L.Ed.2d 823 (1979) ("Washington — Phase I"). While retaining jurisdiction to ensure the implementation of the Phase I-decreed allocation, the Court here considers the hatchery and environmental issues which were raised in Phase I but reserved for decision in Phase II.⁷ Currently pending are the parties' cross-motions for partial summary judgment on the hatchery issue and plaintiffs' motion for partial summary judgment on the environmental issue. Bound and informed by the numerous decisions heretofore rendered in this case, particularly the recent Supreme Court opinion, having found no genuine issue as to any material fact, and for the additional reasons set forth below, the Court concludes that plaintiffs are entitled to judgment as a matter of law on the hatchery issue and on that aspect of the environmental issue thus far presented for adjudication.

I

The treaties in question were negotiated between Isaac Stevens, the first Governor and first Superintendent of Indian Affairs of the Washington Territory, and tribal representatives. Few contemporaneous documents explicate the parties' intentions regarding the scope of and limitations on the tribes' fishing right. For the simple reason that fish were plentiful in 1854-1855 but have since become relatively scarce, the allocation, hatchery and environmental issues which all arise from the fact of scarcity were not addressed.⁸ However, the extensive record developed in connection with this litigation and recounted in the many opinions issued to date provides considerable insight into the treaty negotiations. Preceding opinions have spelled out in impressive detail the parties' intentions and the surrounding circumstances, as well as relevant subsequent events; only a capsule summary is necessary here.⁹

When the treaties were negotiated, fish were the mainstay of the Indians' economy and the focal point of their culture. "All of the otherwise-diverse tribes shared a vital and unifying dependence on anadromous fish." Washington — Phase I, supra, 443 U.S. at 664, 99 S.Ct. at 3064. See also id. at 665-666, 99 S.Ct. at 3064-3065 and other Phase I opinions cited therein.¹⁰

An essential element of consideration for which the Indians bargained was the right to continue fishing as they had always done. "It is perfectly clear * * * that they were invited by the white negotiators to rely and in fact did rely heavily on the good faith of the United States to protect that right." Id. at 667, 99 S.Ct. at 3065.¹¹

In 1854-1855, Indians constituted approximately 75 percent of the 10,000-person case area population and accounted for most of the fishing activity.¹² In 1974, Indians represented approximately 10.8 percent of case area's commercial fishermen¹³ and they netted 2.4 percent of the commercial catch.¹⁴ The dramatic decline in the Indians' case-area fishing activity is attributable to such factors as the settlement of the West by predominantly non-Indians and the industrialization of fishing and related activities,¹⁵ acculturation of Indians into non-Indian forms of employment,¹⁶ belated access of Indian fishermen to the salmon runs by virtue of the location of Indians' fishing sites,¹⁷ and the discriminatory manner in which state officials have applied fishing laws and regulations to Indian fishermen.¹⁸

The most salient effect of Phase I was to reverse this trend and place Indian fishermen on an equal footing with non-Indians. In February, 1974, following a month-long trial and several months of post-trial briefing and argument, Judge Boldt held that the treaty language securing to the Indians "the right of taking fish * * * in common with all citizens" entitles them to up to 50 percent of the harvestable fish passing through the tribes' usual and accustomed fishing grounds. Final Decision I, supra, 384 F.Supp. at 343-344. The quantity of harvestable fish subject to the 50/50 allocation between Indians and non-Indians was to be computed by subtracting the following categories of fish from all those within the case area: (1) fish taken on, rather than off of, Indian reservations; (2) fish taken at off-reservation sites other than the tribes' usual and accustomed fishing grounds; (3) fish taken by the tribes for ceremonial and subsistence needs; and (4) fish not to be taken at all but to "escape" for spawning or conservation purposes. In addition, Judge Boldt called for an equitable adjustment augmenting the tribes' share because non-Indians take a "substantially disproportionate" number of the fish caught offshore that would otherwise have passed through the tribes' fishing grounds. Id. at 344. Finally, Judge Boldt abstained from deciding whether hatchery-bred fish should be excluded from the allocable fish population. Id. at 344-345.¹⁹ The Ninth Circuit affirmed Judge Boldt's allocation in all significant respects, modifying only the formula for computing the equitable adjustment. United States v. State of Washington, supra, 520 F.2d 676.²⁰ Initially, the Supreme Court denied certiorari. 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97. However, the Court later reviewed Judge Boldt's rulings when a conflict arose between the Washington state courts, which enjoined the State's ...