United States v. Taylor

• Citation: 33 F.2d 608
• Decision Date: 28 June 1929
• Docket Number: No. 637.,637.
• Parties: UNITED STATES v. TAYLOR et al. (PORT OF PORT ANGELES et al. Interveners).
• Court: U.S. District Court — Western District of Washington

33 F.2d 608 (1929)

UNITED STATES v. TAYLOR et al. (PORT OF PORT ANGELES et al. Interveners).

No. 637.

District Court, W. D. Washington, N. D.

June 28, 1929.

Anthony Savage, U. S. Atty., and Tom De Wolfe, Asst. U. S. Atty., both of Seattle, Wash., for plaintiff.

Winter S. Martin and Arthur Collett, Jr., both of Seattle, Wash., for defendants Taylor, United Fishermen's Packing Co., and S. R. Doremus, and intervener Trolling Vessel Owners' Ass'n.

Lewis & Church, of Port Angeles, Wash., for defendant Taylor and intervener Port of Port Angeles.

This suit is one brought by the United States attorney, at the direction of the Attorney General, asking that it be decreed that the mouth of the Quillehute river, where the defendants are trading, is within the jurisdiction of the Quillehute Reservation, and asking a decree enjoining the defendants from trading on the Quillehute river within the confines of the Quillehute Reservation with the Indians residing on said reservation or with any other person whatsoever.

Defendants admit maintaining trading barges tied to dolphins in the mouth of the Quillehute river without license or bond, and admit that representatives of the plaintiff have, during the last five seasons, requested the defendants to cease such operations. They deny trading with the Indians upon the reservation.

The port of Port Angeles, a municipal corporation of the state of Washington (3 Remington's Compiled Statutes of Washington 1922, § 9688 et seq.), has intervened, alleging that its territorial limits are coextensive with the boundaries of the county of Clallam; that it has expended upwards of $16,000 in and about the lower Quillehute river; that these expenditures have been made in an effort to improve the navigability and render available the lower Quillehute river as a harbor.

The Trolling Vessel Owners' Association has intervened, alleging that it is a corporation under the laws of the state of Washington. It is alleged that the owners of 250 trolling vessels belong to this association; that such vessels will average, with gear and equipment, approximately $4,000 in value; that the average catch of fish each year for each vessel is $3,500; that nearly all of the vessels of the members of the association and a great many more trolling vessels which fish in the waters of the Pacific, whose owners are not members, resort to the mouth of the Quillehute river as a harbor of refuge and safety, and as a place where they may sell and deliver their fish, and buy and procure ice, food, supplies, oil, gasoline, etc.; that the mouth of the Quillehute river is the only place where vessels may enter from the sea and find a safe harbor of refuge between Grays Harbor on the south and Neah Bay, in the Straits of Juan De Fuca, on the north; that the member vessels of this intervener deal with the defendants, owners of the trading scows, the trading from which it is sought, by the bill of complaint, to enjoin. This intervener alleges that it is a matter of great advantage and profit to said intervener's members to be permitted to market their fish and buy and procure their supplies, ice, etc., from the defendant traders; that, assuming that the vessels would be permitted to enter the river and trade with the permittees of the government, the system of permits tends to establish a monopoly, with higher prices for merchandise and lower prices for the products offered, because free competition in trade does not prevail under said system.

Plaintiff cites: Act Aug. 15, 1876 (19 Stat. 200, § 5 25 USCA § 261); section 2128, Revised Statutes; Act July 31, 1882 (22 Stat. 179 25 USCA § 264); Executive Order of February 19, 1889; Treaty of 1855-1856 with the Quinaielt and Quillehute Indians (12 Stat. 971; 2 Kappler, p. 720); The Daniel Ball, 10 Wall. 557, 19 L. Ed. 999; Act Feb. 22, 1889 (1 Remington and Ballinger's Annotated Codes and Statutes of Washington, p. 20); Donnelly v. United States, 228 U. S. 243, 264, 33 S. Ct. 449, 57 L. Ed. 820, Ann. Cas. 1913E, 710; Shively v. Bowlby, 152 U. S. 1, 14 S. Ct. 548, 38 L. Ed. 331; Mann v. Tacoma Land Co., 153 U. S. 273, 14 S. Ct. 820, 38 L. Ed. 714; Mason v. Sams (D. C.) 5 F.(2d) 255; The Montello Case, 20 Wall. 430, 22 L. Ed. 391; Leovy v. U. S., 177 U. S. 621, 20 S. Ct. 797, 44 L. Ed. 914; Harrison v. Fite (C. C. A.) 148 F. 781; Oklahoma v. Texas, 258 U. S. 574, 42 S. Ct. 406, 66 L. Ed. 771; Brewer-Elliott Oil & Gas Co. v. U. S., 260 U. S. 77, 43 S. Ct. 60, 67 L. Ed. 140; Winters v. U. S., 207 U. S. 564, 28 S. Ct. 207, 52 L. Ed. 340; Jones v. Callvert, 32 Wash. 610, 73 P. 701; Corrigan v. Brown (C. C.) 169 F. 477; United States v. Winans, 198 U. S. 371, 25 S. Ct. 662, 49 L. Ed. 1089; United States v. Parkins (D. C.) 18 F.(2d) 643; Brewer-Elliott Oil & Gas Co. v. United States, 260 U. S. 77, 43 S. Ct. 60, 67 L. Ed. 140; United States v. Romaine (C. C. A.) 255 F. 253; United States v. O'Brien (C. C.) 170 F. 508; United States v. Partello (C. C.) 48 F. 671; Alaska Pacific Fisheries v. Alaska, 249 U. S. 53, 39 S. Ct. 208, 63 L. Ed. 474; Alaska Pacific Fisheries v. U. S., 248 U. S. 78, 39 S. Ct. 40, 63 L. Ed. 138; Light v. United States, 220 U. S. 523, 31 S. Ct. 485, 55 L. Ed. 570; North Bloomfield Gravel Mining Co. v. United States (C. C. A.) 88 F. 664; Sewell v. Arundel Corporation (C. C. A.) 20 F.(2d) 503; Young & Vann Supply Co. v. Gulf Railway Co. (C. C. A.) 5 F.(2d) 421; Mountain Lumber Co. v. Davis (C. C. A.) 11 F. (2d) 219; Leaver v. Box & Lumber Co. (D. C.) 6 F.(2d) 666; Atlas Underwear Co. v. Cooper Underwear Co. (D. C.) 210 F. 347; Curran v. St. Charles Car Co. (C. C.) 32 F. 835; United States v. Four Bottles of Sour Mash (D. C.) 90 F. 720; United States v. Powers-Weightman-Rosengarten Company (D. C.) 211 F. 169; United States v. Tadish (D. C.) 211 F. 490; United States v. 25 Packages of Panama Hats (C. C. A.) 195 F. 438.

Defendants cite: Port of Seattle v. Oregon & Washington R. Co., 255 U. S. 56, 41 S. Ct. 237, 65 L. Ed. 500, 506; Mumford v. Wardwell, 6 Wall. 423-439, 18 L. Ed. 756, 761; Weber v. State Harbor Commissioners, 85 U. S. (18 Wall.) 57, 21 L. Ed. 798; Shively v. Bowlby, 152 U. S. 1, 14 S. Ct. 548, 38 L. Ed. 331; Bilger v. State, 63 Wash. 457, 116 P. 19; Eisenbach v. Hatfield, 2 Wash. 236, 26 P. 539, 12 L. R. A. 632; Brace & Hergert Mill Co. v. State, 49 Wash. 326, 95 P. 278; Grays Harbor Boom Co. v. Lownsdale, 54 Wash. 83, 102 P. 1041, 104 P. 267; Lownsdale v. Grays Harbor Boom Co., 54 Wash. 542, 103 P. 833; State v. Sturtevant, 76 Wash. 158, 135 P. 1035, 138 P. 650; article 17 Constitution of the State of Washington; Executive Order of February 19, 1889; Act Feb. 22, 1889 (Washington Enabling Act); Treaty of 1855-1856 with the Quinaielt and Quillehute Indians; Public Survey Act of 1796 (1 Stat. 494); Revised Statutes, § 2476 (43 USCA § 931); United States v. Ashton (C. C.) 170 F. 509; United States v. Romaine et al. (C. C. A.) 255 F. 253; Gulf & Interstate Ry. v. Davis (D. C.) 26 F.(2d) 930, 1928 A. M. C. 1183; 27 R. C. L. 1315, §§ 223, 225 and 226; 27 R. C. L. 1321, § 228; E. G. Sewell Co. et al v. Arundel Corp., (C. C. A.) 20 F.(2d) 503; Houck on Rivers, § 148; Farnham, Waters and Water Rights, §§ 27 to 32, inclusive; Navigable Waters, p. 12, vol. 9, F. S. A., and notes; Forty-Three Gallons Cognac Brandy (C. C.) 11 F. 47; U. S. v. Martin (D. C.) 14 F. 817; 14 Op. Attys. Gen. 290; United States v. Leathers, 26 Fed. Cas. 897, No. 15,581; United States v. Certain Property (1871) 1 Ariz. 31, 25 P. 517; Act June 2, 1924, c. 233 (43 Stat. 253); 1 Farnham on Waters, p. 117; Donnelly v. United States, 228 U. S. 243, 33 S. Ct. 449, 57 L. Ed. 820, Ann. Cas. 1913E, 710; Jones v. Callvert, 32 Wash. 610, 73 P. 701; State v. Towessnute, 89 Wash. 478, 154 P. 805.

CUSHMAN, District Judge (after stating the facts as above).

Section 2128 et seq. of the Revised Statutes made provision for the licensing of Indian Traders. These statutes have been changed by later laws in certain particulars (19 Stat. 200, § 5 25 USCA § 261; 31 Stat. 1066; 32 Stat. 1009, § 10; Compiled Statutes, § 4127 et seq., 25 USCA § 261 et seq.), yet no contention is made that plaintiff is not entitled to such relief as that prayed to prevent trading without the permission of the Commissioner of Indian Affairs upon the Quillehute Indian Reservation. Light v. United States, 220 U. S. 523, 31 S. Ct. 485, 55 L. Ed. 570.

The question is whether the Quillehute river, at the place in question, is itself within or without the Quillehute Reservation (articles 2 and 6 of the Treaty with the Quinaielt and Quillehute Indians, 12 Stat. 971; 2 Kappler, 719; Executive Order of February 19, 1889, creating the Quillehute Indian Reservation; 1 Kappler, 923). It will not be necessary herein to review all of the matters which have been discussed by counsel.

A defense common to all of the defendants is that the Quillehute river is a navigable meandered stream, and not within the reservation. Unless the latter contention, that the portion of the river where these trading barges are maintained is not within the reservation, has been established, plaintiff is entitled to prevail.

The Quillehute Reservation contains less than 2 square miles and is at the mouth of the Quillehute river, which flows directly into the Pacific Ocean about 35 miles south of Cape Flattery. The river is about 5 miles in length. The distance from its mouth to the head of the tide is 2½ miles. It is not made entirely clear by the evidence how far the river is navigable. Beyond question it is navigable to the mouth of the Dickey river, where a wharf is maintained. The Dickey river, which in the field notes of the survey of 1881-82 is called the Dickedoch'tedar river, enters the Quillehute about a mile above its mouth. The point at which the barges of the defendants are maintained is less than one-half mile from the present river mouth, which is south of the barges.

The reservation was created in 1889, just prior to the admission of...