United States v. State of Washington, Civ. No. 9213—Phase I.
| Court | United States District Courts. 9th Circuit. United States District Court (Western District of Washington) |
| Writing for the Court | John Clinebell, Tacoma, Wash., William H. Rodgers, Jr., Washington, D. C., for Puyallup Tribe |
| Citation | 459 F. Supp. 1020 |
| Parties | UNITED STATES of America et al., Plaintiffs, v. STATE of WASHINGTON et al., Defendants. |
| Docket Number | Civ. No. 9213—Phase I. |
| Decision Date | 30 June 1978 |
459 F. Supp. 1020
UNITED STATES of America et al., Plaintiffs,
v.
STATE of WASHINGTON et al., Defendants.
Civ. No. 9213—Phase I.
United States District Court, W. D. Washington.
Through June 30, 1978.
Alvin J. Ziontz, Mason D. Morisset, Ziontz, Pirtle, Morisset, Ernstoff & Chestnut, Seattle, Wash., for Quileute, Makah and Lummi Tribes.
Alan C. Stay, Thomas P. Schlosser, John H. Sennhauser, Evergreen Legal Services, Seattle, Wash., for Sauk-Suiattle, Samish, Snohomish, Steilacoom, Stillaguamish, Nooksack, Suquamish, Nisqually, Muckleshoot, Squaxin Island, Skokomish, Lower Elwha, Snoqualmie and Upper Skagit Tribes.
Lewis A. Bell, Bell, Ingram & Rice, Everett, Wash., for Tulalip Tribes.
Michael Taylor, Tahola, Wash., for Quinault Tribe.
John Clinebell, Tacoma, Wash., William H. Rodgers, Jr., Washington, D. C., for Puyallup Tribe.
Harwood Bannister, Bannister, Bruhn & Cunningham, Mt. Vernon, Wash., for Swinomish Tribe.
Slade Gorton, Atty. Gen., James M. Johnson, Sr. Asst. Atty. Gen., Dennis Reynolds, Asst. Atty. Gen., Olympia, Wash., for defendant State of Washington.
COMPILATION OF MAJOR POST-TRIAL SUBSTANTIVE ORDERS (Through June 30, 1978).
459 F. Supp. 1026TABLE OF CONTENTS ORDER PAGE Decision, Injunction and Order Re State Court Injunctions Preventing Enforcement of Certain Department of Fisheries Regulations (9/12/74) 1028 Order for Program to Implement Interim Plan (10/8/74, 11/21/74 8/6/75 and 4/5/76) 1035 Order Directing Prompt Notice to Fisheries Technical Adviser When Fishery Problems Arise (11/20/74) 1038 Decision re Quinault Fishery Outside the Case Area (11/22/74) 1038 Decisions Re Status of Additional Tribes. First and Second Supplemental Findings of Fact (12/31/74; 2/26/75) 1039 First and Second Supplemental Conclusions of Law (12/31/74 2/26/75) 1041 Preliminary Injunction and Memorandum Decision re Green River Steelhead Fisheries (1/14 and 1/20/75) 1042 Memorandum Decision and Orders re Nisqually River Fisheries (2/14 and 2/26/75) 1047 Orders re Herring Fisheries and Determination of Usual and Accustomed Fishing Places of Additional Tribes (3/28 and 4/18/75) 1048 Decision and Decree Re 1975 Fraser River Sockeye and Pink Salmon Harvest (Fourth Supplemental Findings of Fact and Conclusions of Law) (7/16/75 modified and supplemented 8/6/75) 1050 Permanent Injunction re 1975 Fraser River Sockeye and Pink Salmon Harvest (7/16/75 as amended 7/30/75) 1055 Injunction Staying Proceedings re 1975 IPFSC Fisheries in Cause No 52881 Before Superior Court for Thurston County, State of Washington; and Denial of Defendants' Motions (8/6/75) 1056 Preliminary Injunction Re Swinomish Indian Tribal Community Chinook Fishery in West Beach Area (8/8/75 as corrected 8/18/75) 1056 Order re Conditional Fishing Rights of Certain Plaintiff-Intervenor Tribes (8/14/75) 1057 Order re Tulalip Tribes' Usual and Accustomed Fishing Places (9/10/75 as amended 10/15 and 12/29/75) 1058 Stipulation re Notice of Regulations (10/15/75) 1060 Decision re Certain On-reservation Fisheries of Puyallup and Nisqually Tribes (10/21/75) 1060 Orders Establishing Fisheries Advisory Board and Prescribing Procedures for State Emergency Regulations (10/28/75 as amended and supplemented 12/17/76) 1061 Order for Interim Plan for Management of Herring Fisheries (2/13/76) 1063 Order re Makah Tribe's Request for Reconsideration of Lower Elwha Usual and Accustomed Fishing Places (3/10/76) 1066 Order re Tulalip Tribes' Objection to Stillaguamish Fishing Regulations (3/10/76) 1068
459 F. Supp. 1027TABLE OF CONTENTS ORDER PAGE Order on Certain Questions re: Salmon Fisheries Management (4/13/76) 1069 Memorandum Decision and Order Granting Preliminary Injunction re Hatchery Propagated Fish (8/13/76) 1072 Order Granting Preliminary Injunction re Hatchery-Propagated Fish (8/13/76) 1085 Order on Certain Questions re Steelhead Management (9/14/76 as extended 1/10/78) 1085 Order re Compliance with State Permit Requirements for Fisheries Research or Release of Fish (9/15/76) 1089 Order Re: State "Buy-Back" Program (12/22/76) 1089 Memorandum Decision Denying Disqualification (5/2/77) 1093 Memorandum Order and Preliminary Injunction Re: Inclusion of Grays Harbor in the Case Area (8/31/77) 1097 Memorandum Order and Preliminary Injunction Re: Allocation of 1977 Salmon Runs and Other Matters (8/31/77 as supplemented 9/28/77) 1097 Preliminary Injunction Staying State Court Injunction and Order Implementing Preliminary Injunction (8/31/77) 1104 Memorandum Adopting Salmon Management Plan (8/31/77 as amended 10/11/78) 1107 Findings of Fact, Conclusions of Law and Preliminary Injunction Re: Enforcement of 1977 Fisheries Orders (9/27/77) 1113 Preliminary Injunction Staying Thurston County Superior Court (10/17/77) 1117 Order Adopting Steelhead Management Plan (1/31/78 as modified 4/21/78 and 10/11/78) 1118 Order Re: 1978 Sac Roe Herring Fishery (4/14/78 as supplemented 5/2/78) 1120 Order, Findings of Fact, Conclusions of Law and Preliminary Injunction Re: Enforcement of Limitations on Nontreaty Salmon Fisheries for 1978 and Subsequent Seasons (6/6/78 as amended 6/15/78) 1125
COMPILATION OF MAJOR POST-TRIAL SUBSTANTIVE ORDERS
(Through June 30, 1978)
BOLDT, District Judge.
The initial decision of the court dated February 12, 1974, (hereinafter Final Decision # 1) and related rulings and decree of March 22, 1974, in this case are set forth at 384 F.Supp. 312 (aff'd 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97, rehearing denied 424 U.S. 978, 96 S.Ct. 1487, 47 L.Ed.2d 750 (1976)). Under the court's retention of continuing jurisdiction, subsequent decisions and orders of a substantive nature rendered through June 30, 1978, are set forth or summarized below. All summarizations or editing herein of the provisions as entered, are by the court.1
Subsequent to Final Decision # 1 herein, the following parties were allowed to intervene as additional plaintiffs: Duwamish, Jamestown Band Clallam, Lower Elwha Band Clallam, Nooksack, Port Gamble Band Clallam, Samish, Snohomish, Snoqualmie, Steilacoom, Suquamish, Swinomish, Aboriginal Swinomish and Tulalip Tribes. The Nisqually and Puyallup Tribes which had only been represented by the United States, were allowed to intervene on their own behalf. Applications to intervene as additional defendants by the Northwest Steelheaders' Council of Trout Unlimited, Gary Ellis its president, Purse Seine Vessel Owners Association and Washington State Commercial Passenger Fishing Vessel Association were denied.
By separate order the court appointed United States Magistrate Robert E. Cooper as Master and Dr. Richard R. Whitney2 as fisheries science and management advisor to assist the court. A Fisheries Advisory Board was established as set forth, infra.
DECISION, INJUNCTION AND ORDER RE STATE COURT INJUNCTIONS PREVENTING ENFORCEMENT OF CERTAIN DEPARTMENT OF FISHERIES REGULATIONS
(September 12, 1974)
Paragraph 5 of the Interim Plan and Stay Order entered by this court on March 22, 1974 (384 F.Supp. at 420), obligates defendants State of Washington, Washington Department of Game and its Director and Washington Department of Fisheries and its Director, (hereinafter "defendants") to make significant reductions in the non-Indian fishery as deemed necessary to achieve the objectives of the court's definition of Indian treaty fishing rights. In carrying out this order the court anticipated that defendants would promulgate and enforce regulations reducing the non-Indian fishery. Defendants have promulgated certain regulations establishing reductions in the non-Indian fishery but have been unable to enforce them by reason of certain directives and orders of the Thurston County Superior Court in Washington State Commercial Passenger Fishing Vessel Association v. Tollefson, No. 50380, Washington Kelpers Association v. Tollefson, No. 50552 and Puget Sound Gillnetters Association v. Tollefson, No. 50757.
No additional or alternative regulations have been proposed by defendants. Therefore, it now appears that in order to effectuate the prior orders of this court and to preserve this court's jurisdiction over the subject matter, further orders of this court are necessary to clarify the scope of the court's jurisdiction and of the duties imposed upon defendants under Final Decision # 1.
The principal questions presented by plaintiffs' request are whether this court is empowered to protect its earlier rulings from incursions such as have taken place in the three state court proceedings referred to above and, if such jurisdiction exists, whether this court in its discretion should exercise said authority, and if so, in what form. This court fully adopts the legal arguments recited in Exhibit "A" attached to this order3 as though fully set forth herein and refers particularly to the following
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U.S. v. State of Wash., No. 96-35082
...non-anadromous fish) were co-extensive with those previously adjudicated for salmon (an anadromous fish). United States v. Washington, 459 F.Supp. 1020, 1049 (W.D.Wash.1978) (ruling that the tribes may take herring at all of its usual and accustomed fishing places to the same extent and sub......
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Resident Advisory Bd. v. Rizzo, Civ. A. No. 71-1575.
...3 L.Ed.2d 5 (1958); Brown v. Board of Education, 349 U.S. 294, 95 S.Ct. 753, 99 L.Ed. 1083 (1955); United States v. State of Washington, 459 F.Supp. 1020, 1115 (D.Wash.1978). An injunction seeks not only to eliminate past wrongdoing, but also to prevent its recurrence. United States v. W. T......
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Langley v. Ryder, Civ. A. No. 85-0030.
...355 U.S. 940, 78 S.Ct. 429, 2 L.Ed.2d 421 (1958); United States v. Dowden, 194 F. 475 (C.C.E.D.Okla.1911); United States v. Washington; 459 F.Supp. 1020 (W.D.Wash.1978), aff'd, 645 F.2d 749 (9th Cir.1981). That section 2283 does not bar a suit for injunctive relief by the United States or o......
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Parravano v. Babbitt, No. C 93-2003 TEH.
...to police ocean fishery by Washington citizens insofar as is necessary to assure compliance with the treaties); U.S. v. Washington, 459 F.Supp. 1020, 1070 (W.D.Wash.1978) (same); Sohappy v. Smith, 302 F.Supp. 899, 911 (D.C.Or.1969) (same). That the fishing rights in these cases arose throug......
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U.S. v. State of Wash., No. 96-35082
...non-anadromous fish) were co-extensive with those previously adjudicated for salmon (an anadromous fish). United States v. Washington, 459 F.Supp. 1020, 1049 (W.D.Wash.1978) (ruling that the tribes may take herring at all of its usual and accustomed fishing places to the same extent and sub......
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Resident Advisory Bd. v. Rizzo, Civ. A. No. 71-1575.
...3 L.Ed.2d 5 (1958); Brown v. Board of Education, 349 U.S. 294, 95 S.Ct. 753, 99 L.Ed. 1083 (1955); United States v. State of Washington, 459 F.Supp. 1020, 1115 (D.Wash.1978). An injunction seeks not only to eliminate past wrongdoing, but also to prevent its recurrence. United States v. W. T......
-
Langley v. Ryder, Civ. A. No. 85-0030.
...355 U.S. 940, 78 S.Ct. 429, 2 L.Ed.2d 421 (1958); United States v. Dowden, 194 F. 475 (C.C.E.D.Okla.1911); United States v. Washington; 459 F.Supp. 1020 (W.D.Wash.1978), aff'd, 645 F.2d 749 (9th Cir.1981). That section 2283 does not bar a suit for injunctive relief by the United States or o......
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Parravano v. Babbitt, No. C 93-2003 TEH.
...to police ocean fishery by Washington citizens insofar as is necessary to assure compliance with the treaties); U.S. v. Washington, 459 F.Supp. 1020, 1070 (W.D.Wash.1978) (same); Sohappy v. Smith, 302 F.Supp. 899, 911 (D.C.Or.1969) (same). That the fishing rights in these cases arose throug......