United States v. Washington

• Citation: 18 F.Supp.3d 1172
• Decision Date: 31 December 1993
• Docket Number: Case No. 9213.
• Parties: UNITED STATES of America, Plaintiff, v. State of WASHINGTON, Defendant.
• Court: U.S. District Court — Western District of Washington

18 F.Supp.3d 1172

UNITED STATES of America, Plaintiff

v.State of WASHINGTON, Defendant.

Case No. 9213.

United States District Court, W.D. Washington, at Seattle.

(January 1, 1991 through December 31, 1993)

COMPILATION OF MAJOR POST–TRIAL SUBSTANTIVE ORDERS (Through December 31, 1993)

Sub–Proceeding # 91–1

REPORT AND RECOMMENDATION ON HALIBUT ALLOCATION

(Mar. 22, 1991)

JOHN E. WEINBERG, United States Magistrate Judge.

INTRODUCTION

Twelve tribes are authorized to fish for halibut by regulations of the International Pacific Halibut Commission (IPHC). That agency has also set a commercial harvest limit of 102,500 lb. of halibut for 1991 for all twelve of the tribes, but has not prescribed any allocation of that amount among the specific tribes.

Four of those tribes move for a preliminary injunction, which would set a ceiling of 70,100 lb. on the 1991 commercial harvest of halibut by the Makah Tribe. This would leave 32,400 lb. for the “moving tribes” and the other seven tribes. The four moving tribes are the Jamestown Klallam, Lower Elwha, Port Gamble, and Skokomish.

Pending resolution of the motion for a preliminary injunction, the court has closed treaty fishing for halibut. At the time of the closure, the 1991 halibut catches by the respective tribes were:

Weight Percentage

Makah	56,241 lb.	72.6%
Quileute	19,652	25.4
Lower Elwha	1,253	1.6
Lummi	280	0.4
Jamestown Kl.	12	0.0
7 other tribes	0	0.0
TOTAL CATCH	77,438 lb.	100.0

Halibut are present in far greater numbers in the ocean than in “inside waters.” The Makahs and Quileutes, and certain other tribes, are entitled to fish for halibut in the ocean. All four of the moving tribes may fish only in the inside waters.

It is clear that unrestricted halibut fishing in the ocean by the tribes entitled to fish there will quickly exhaust the entire tribal quota, and prevent the inside tribes from catching any significant number. It has not been established that, in so doing, the ocean tribes would be intercepting any significant number of fish headed for the inside waters. The parties dispute whether halibut migrate in any significant numbers from the ocean to inside waters. It is at least as likely that the ability of the ocean tribes to take the vast majority of the tribal quota arises from the much greater abundance of halibut in their usual and accustomed fishing grounds. If this is the case, the “inside tribes” would be able to take a substantial quantity of halibut only if the court were to cut off fishing by the ocean tribes. The inside tribes could then, perhaps, catch a substantial number of halibut in their relatively barren waters if permitted to continue over a long enough period.

SUMMARY OF CONCLUSION

The court should deny the motion for a preliminary injunction, and vacate its “Order Closing Treaty Halibut Fishery.” The twelve tribes entitle to fish for halibut should be permitted to resume until their total catch reaches the limit set by the IPHC.

THRESHOLD ARGUMENTS BY MAKAHS

The Makahs present two threshold arguments in opposition to the motion. The court should find neither of them persuasive.

First, they challenge the jurisdiction of this court, asserting they have not waived their sovereign immunity as to regulation of their halibut harvest. The parties' lengthy briefs discuss this issue only sparsely; and they essentially ignored it in oral argument of the motion. The court should not resolve the motion on this basis.

Secondly, they urge that this dispute should be raised, if at all, in another case pending before this court and dealing with the treaty halibut allocation. That case is Makah v. Mosbacher, No. 85–1606M, pending before the Hon. Walter T. McGovern. Their argument in this respect is not persuasive. That case apparently involves the overall treaty quota for halibut, not the allocation of that quota among the various tribes. The issues are therefore very distinct. Furthermore, no other tribes are parties to that case. Indeed, there are no parties in that case who could frame the issue of the proper allocation among the tribes.

IDENTIFYING THE APPLICABLE STANDARDS

While the motion before the court is labelled a “Motion for Preliminary Injunction,” the unique nature of this case, and its special circumstances, require the court to apply standards which are somewhat different than those applied in ruling upon a conventional motion for a preliminary injunction. The court has recognized this fact, and has acted accordingly, on myriad other occasions during the long history of this case.

First, the classic function of a preliminary injunction is to preserve the status quo, pending a final determination of the merits by the court. But this is not a meaningful or practical objective in this case. As a practical matter, the court's ruling on this motion Will determine, once and for all, how the 1991 treaty halibut quota is to be allocated among the competing tribes. It is not possible to preserve the 1991 halibut harvest until the day in the hazy future when the court determines the general principles which are to govern allocation among tribes of the treaty share. The court's ruling on the motion will be a final determination, at least as to the 1991 harvest.

Next, a crucial standard the courts apply in ruling upon a motion for a preliminary injunction is whether the moving party has shown a likelihood of ultimate success on the merits. In the context of this dispute, that standard must be read to require the moving tribes to demonstrate a congruence between the relief they seek for 1991, and the long-term relief the court is likely to award on allocation generally. In other words, to succeed on this motion, plaintiffs must show what general allocation principles the court is eventually likely to decree; and then show that if those general principles were in place and enforced today, they would produce roughly the specific allocation they propose for 1991.

Finally, in ruling upon motions for preliminary injunctions, courts consider the “balance of hardships” between the parties, and any other equitable considerations that arise in the given case. These standards can be meaningfully applied in this case.

LIKELIHOOD OF SUCCESS ON MERITS

What general principles of allocation among competing tribes will the court eventually decree? On the present record, it is impossible to draw any firm conclusions, beyond pure speculation. In their briefing and argument on the pending motion, the parties have advanced many different standards. These include:

The relative quantities of the fish in question taken by the respective tribes at treaty time.

The relative abundance of the fish in each tribe's usual and accustomed fishing area.

The number of members of each tribe who fish for a particular species.

The dollar investment of each tribe in gear designed to catch a particular type of fish.

The number of tribal members economically dependent upon the harvest of a given type of fish.

The catch history of the respective tribes in recent fisheries.

The relative efforts by each tribe in lobbying regulatory agencies, and in pursuing litigation, to increase the total treaty share.

There are no doubt many more such standards. Depending upon which standard or combination of standards is selected, the resulting allocation among tribes will be markedly different.

The court has not as yet placed its imprimatur upon any of the proposed standards. It will be appropriate to do so after a full litigation of sub-proceeding # 86–5. It would be neither fair nor appropriate for the court to adjudicate those standards on a rush basis to rule on a motion in this case. This is especially true because the court has only a limited group of tribes before it. Many others are vitally interested in the determination of the general principles governing allocation of the treaty share.

Without general allocation principles, it is impossible for the court to determine if the proposed limitation of the Makahs to 70% of the tribal share is high, low, or just about right. The moving parties have therefore not shown, and the court cannot determine, whether they are “likely to succeed on the merits,” in the sense that their requested allocation for 1991 conforms to the general allocation principles the court is likely to determine.

BALANCE OF HARDSHIPS

The Makahs have demonstrated that they are able, and likely, to catch more than the 70,100 lb. of halibut which the preliminary injunction would allocate to them. They have thus demonstrated they would suffer an economic detriment if the motion were granted.

The four moving tribes, by contrast, have not demonstrated that they would, or even could, catch the 32,400 lb. the injunction would reserve—or any significant portion of that amount. The Makahs point to the very low catch of halibut by the moving tribes in prior years. In fairness, it is probably true that those low catches were in large part attributable to the very large catches by the Makahs and, to some extent, by other tribes. But even disregarding prior years' statistics, the moving tribes have not shown they have the necessary fishermen or gear ready to go; nor have they demonstrated in any other way their capability and intention to take a significant amount of halibut if the injunction is granted.

The moving tribes have therefore failed to show that the balance of hardships tips in their favor.

OTHER EQUITABLE CONSIDERATIONS

Despite all of the foregoing, the moving tribes make a generalized argument that it is “clearly” inequitable to permit one tribe, the Makahs, to take more than 70% of the allocation to be shared among twelve tribes. While this argument might have a surface appeal, the facts of the 1991 halibut fishery demonstrate that the requested relief would do little, if anything, to improve the lot of the moving tribes.

What has surprised everyone this year is the success of the Quileutes, who are not a moving tribe and whose catch would not be limited by the requested injunction. The catch statistics for 1991 to date are set forth...