United States v. State of Washington

Decision Date22 March 1974
Docket NumberCiv. No. 9213.
Citation384 F. Supp. 312
PartiesUNITED STATES of America, Plaintiff, Quinault Tribe of Indians on its own behalf and on behalf of the Queets Band of Indians, et al., Intervenor-Plaintiffs, v. STATE OF WASHINGTON, Defendant, Thor C. Tollefson, Director, Washington State Department of Fisheries, et al., Intervenor-Defendants.
CourtU.S. District Court — Western District of Washington
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Stan Pitkin, U. S. Atty., Stuart F. Pierson, Sp. Asst. U. S. Atty., Seattle, Wash., for the U. S.; George D. Dysart, Asst. Regional Sol., U. S. Dept. of the Interior, Portland, Or., of counsel.

David H. Getches, Native American Rights Fund, Boulder, Colo., and John H. Sennhauser, Legal Services Center, Seattle, Wash., for Muckleshoot Indian Tribe, Squaxin Island Tribe of Indians, Sauk-Suiattle Indian Tribe; Skokomish Indian Tribe, Stillaguamish Indian Tribe.

Alvin J. Ziontz, Ziontz, Pirtle, Morisset & Ernstoff, Seattle, Wash., for Makah Indian Tribe, Lummi Indian Tribe, Quileute Indian Tribe.

Michael Taylor, Taholah, Wash., for Quinault Tribe of Indians.

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

Lester Stritmatter, Stritmatter & Stritmatter, Hoquiam, Wash., for Hoh Tribe of Indians.

William A. Stiles, Jr., Sedro-Woolley, Wash., for Upper Skagit River Tribe.

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

Joseph Larry Coniff, Jr., Asst. Atty. Gen., Dept. of Game, Olympia, Wash., for Game Defendants & Carl Crouse.

Earl R. McGimpsey, Asst. Atty. Gen., Dept. of Fisheries, Olympia, Wash., for Thor Tollefson.

David E. Rhea, Amundson, Rhea & Atwood, Bellingham, Wash., for Wash. Reef Net Owners Ass'n.

Lawrence C. Smith, Smith, Smith & Smith, Spokane, Wash., for amicus curiae The Ass'n of Northwest Steelheaders, Inc.

William N. Moloney, Davis, Wright, Todd, Riese & Jones, Seattle, Wash., for amicus curiae Wash. State Sportsmen's Council, Inc.

T. J. Jones, III, Sp. Counsel, Jones & Jones, Boise, Idaho, for amicus curiae Idaho Fish and Game Dept.

                                           INDEX
                                                                      Page
                                                                 (Per typed text)
                     I.   STATEMENT OF THE CASE                         327
                     II.  ESTABLISHED BASIC FACTS AND
                           LAW                                          330
                     III. SUMMARY OF FINDINGS OF FACT
                           AND CONCLUSIONS OF LAW                       332
                      IV. STATE REGULATION OF OFF RESERVATION
                           TREATY RIGHT FISHING                         334
                     V.   RULINGS ON MAJOR ISSUES                       339
                     VI.  FINDINGS OF FACT:                             348
                           A. Treaty Status of Plaintiff Tribes         348
                           B. Pretreaty Fishing Among Northwest
                                Indians                                 350
                           C. Treaty Background                         353
                           D. Negotiation and Execution of the
                                Treaties                                355
                           E. Post Treaty Indian Fishing                357
                           F. Historic and Present Status of
                                Each Plaintiff Tribe:                   359
                              1.  Hoh Tribe                             359
                              2.  Lummi Tribe                           360
                              3.  Makah Tribe                           363
                              4.  Muckelshoot Tribe                     365
                              5.  Nisqually Tribe                       367
                              6.  Puyallup Tribe                        370
                              7.  Quileute Tribe                        371
                              8.  Quinault Tribe                        374
                
                                                                      Page
                                                                 (Per typed text)
                              9.  Sauk-Suiattle Tribe                   375
                             10.  Skokomish Tribe                       376
                             11.  Squaxin Island Tribe                  377
                             12.  Stillaguamish Tribe                   378
                             13.  Upper Skagit River Tribe              379
                             14.  Yakima Nation                         379
                           G. General Fisheries Conservation
                                and Management                          382
                           H. Department of Fisheries Policies
                                and Practices                           389
                           I. Department of Game Policies and
                                Practices                               393
                     VII.  CONCLUSIONS OF LAW                           399
                    VIII.  DECLARATORY JUDGMENT AND
                            DECREE                                      405
                      XI.  RULINGS ON FISHERIES' RECONSIDERATION
                            MOTION QUESTIONS                            408
                       X.  PROPOSED AMENDMENTS AND
                            RULINGS THEREON                             412
                      XI.  INJUNCTION                                   413
                     XII.  INTERIM PLAN AND STAY ORDER
                            PENDING FINAL DECISION ON
                            APPEAL                                      420
                     Note: FD - Final Decision #I
                           FF - Findings of Fact
                           CofL - Conclusions of Law
                           DCJ&D - Declaratory Judgment & Decree
                
STATEMENT OF THE CASE

BOLDT, Senior District Judge.

In September, 1970 the United States, on its own behalf and as trustee for several Western Washington Indian Tribes,1 later joined as intervenor plaintiffs by additional tribes,2 filed the complaint initiating this action against the State of Washington. Shortly later the State Department of Fisheries (Fisheries) and the State Game Commission (Game), their respective directors, and the Washington Reef Net Owners Association (Reef Net Owners) were included as defendants. By state statute Fisheries is charged with exercising regulatory authority over fishing for all anadromous food fish. Regulation of anadromous steelhead trout is vested in Game. Plaintiffs seek a declaratory judgment pursuant to 28 U.S.C. ?? 2201 and 2202 concerning off reservation treaty right fishing within the case area by plaintiff tribes, which long has been and now is in controversy, and for injunctive relief to provide enforcement of those fishing rights as they previously have been or herein may be judicially determined. The case area is that portion of the State of Washington west of the Cascade Mountains and north of the Columbia River drainage area, and includes the American portion of the Puget Sound watershed, the watersheds of the Olympic Peninsula north of the Grays Harbor watershed, and the offshore waters adjacent to those areas.

Plaintiffs also assert claims for relief concerning alleged destruction or impairment of treaty right fishing due to state authorization of, or failure to prevent, logging and other industrial pollution and obstruction of treaty right fishing streams. Separation of those claims for pretrial and trial after trial of the issues determined in this decision was stipulated and approved by the court.

Venue is properly laid in this court under 28 U.S.C. ? 1391(b). Jurisdiction is alleged as to all tribes under one or more of the following provisions: 28 U. S.C. ?? 1345, 1331, 1343(3) and (4) and 1362.3 All of these allegations were conceded by all defendants, subject to their contention that exclusive jurisdiction to hear and determine the issues in this case is in the Indian Claims Commission under 25 U.S.C. ?? 70-70v and Game's denial of jurisdiction as to the Puyallup Tribe. This court has previously held and hereby affirms that both of these contentions are without merit and denied. It is hereby found and held that jurisdiction and venue have been established in all particulars as detailed in Part One of the Final Pretrial Order.

Fisheries contends the Muckleshoot, Stillaguamish and Upper Skagit tribes do not hold a special treaty status to harvest anadromous fish. Game joins in this contention and makes the same contention regarding the Sauk-Suiattle Tribe. These contentions are considered and denied in the written Findings of Fact and Conclusions of Law.

Shortly after appearance in the action by all defendants the first of a considerable number of pretrial conferences was held. Among many preliminary matters considered at that time were the court's suggestions that so far as possible all tribes, agencies or organizations having or claiming direct or indirect justiciable interest in treaty fishing rights in this judicial district be brought into the case either as parties or as amicus curiae; and that every issue of substantial direct or indirect significance to the contentions of any party be raised and adjudicated in this case. Both suggestions were acceptable to all parties and to a great extent they have been put into effect. Thus every interested agency and organization not joined as a party has had an opportunity to present its views on any of the issues in the case.4

For more than three years, at the expenditure by many people of great time, effort and expense, plaintiffs and defendants have conducted exhaustive research in anthropology, biology, fishery management and other fields of expertise, and also have made extreme efforts to find and present by witnesses and exhibits as much information as possible that pertains directly or indirectly to each issue in the case. As a consequence of this extensive pretrial preparation, all parties joined in stipulating to a great many agreed facts which are stated in exhibits or included in the Final Pretrial Order. The Joint Biological Statement, Exhibit JX-2a, jointly proposed and admitted...

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