United States v. Wilson

• Decision Date: 19 June 1985
• Docket Number: No. CR-84-0396 EFL,CR-84-0395 EFL.,CR-84-0396 EFL
• Citation: 611 F. Supp. 813
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Tom WILSON and Sonny Erickson, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellant, v. Gig and Jeanette EBERHARDT, Defendants-Appellees.
• Court: U.S. District Court — Northern District of California

611 F. Supp. 813

UNITED STATES of America, Plaintiff-Appellant, v. Tom WILSON and Sonny Erickson, Defendants-Appellees.

UNITED STATES of America, Plaintiff-Appellant, v. Gig and Jeanette EBERHARDT, Defendants-Appellees.

Nos. CR-84-0396 EFL, CR-84-0395 EFL.

United States District Court, N.D. California.

June 19, 1985.

COPYRIGHT MATERIAL OMITTED

William Farmer, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellant.

Geoffrey A. Hansen, Asst. Fed. Public Defender, Lawrence Lichter, Serra, Perelson & Metcalf, San Francisco, Cal., for defendants-appellees.

MEMORANDUM OPINION

LYNCH, District Judge.

Tom Wilson and Jeanette Eberhardt were charged by information with the unlawful sale of anadromous fish caught within the Hoopa Valley Indian Reservation.¹ Both defendants were charged under 16 U.S.C. § 3372(a)(1), the Lacey Act, which makes it unlawful for any person to sell any fish taken in violation of any regulation of the United States. Specifically, the defendants were accused of violating 25 C.F.R. §§ 258.8(d), (e) prohibiting commercial fishing by Indians on that part of the Klamath River that flows through the Hoopa Valley Reservation.²

Both defendants agreed to have their cases heard by a magistrate. Magistrate Steele F. Langford, recognizing that these cases involved common questions of law and fact, agreed to consolidate the proceedings. On September 14, 1984, defendants Wilson and Eberhardt moved to have the informations filed against them dismissed. The defendants argued that the regulations prohibiting commercial fishing on the Hoopa Valley Reservation, which underlie their prosecutions under the Lacey Act, were invalid. Defendants' motions were heard on November 9, 1984. On March 5, 1985, Magistrate Langford granted Wilson's and Eberhardt's motions to dismiss. The next day, the Government filed a notice of appeal to this Court.

I. Background Facts

Both Wilson and Eberhardt are members of the Yurok Indian Tribe. Along with the Hoopa Indians, the Yuroks occupy the Hoopa Valley Reservation in California's Del Norte and Humboldt counties. Geographically, the reservation consists of three parcels: (1) the Old Klamath River Reservation, one mile in width on each side of the Klamath River, extending from the river's mouth on the Pacific Ocean up the river for 20 miles; (2) the original Hoopa Valley Reservation, a 12-mile square, centered at the confluence of the Klamath and Trinity rivers; and (3) a 30-mile strip along the Klamath River connecting the Hoopa and Klamath parcels. See Mattz v. Arnett, 412 U.S. 481, 493, 93 S.Ct. 2245, 2252, 37 L.Ed.2d 92 (1973); Arnett v. 5 Gill Nets, 48 Cal.App.3d 454, 458, 121 Cal.Rptr. 906 (1975), cert. denied, 425 U.S. 907, 96 S.Ct. 1500, 47 L.Ed.2d 757 (1976).

The Department of Interior ("Interior") has promulgated regulations regarding the commercial taking of anadromous fish by Indians on the Hoopa Valley Reservation. People v. McCovey, 36 Cal.3d 517, 529-31, 205 Cal.Rptr. 643, 685 P.2d 687 (1984). In 1977, Interior expressly limited commercial fishing by Indians to five fish per day. 42 Fed.Reg. 40,904-40,905 (August 12, 1977). In 1978, Interior imposed interim regulations that allowed eligible fishermen to fish commercially on the Klamath River only during limited seasons. 43 Fed.Reg. 30,048 (July 13, 1978). Interior then superceded these rules by another set of regulations in 1979. 44 Fed.Reg. 17,144-17,151 (March 20, 1979) (codified in 25 C.F.R. 258).³

It was in 1979 that Interior prohibited all commercial fishing and sale of anadromous fish caught on the Hoopa Valley Reservation. 25 C.F.R. § 258.8(c), (d). These regulations define commercial fishing as the taking of fish or fish parts with the intent to sell or trade them or profit economically from them. 25 C.F.R. § 258.4(b). The 1979 prohibition has remained in effect for over six years, having been renewed in successive versions of the regulations. McCovey, 36 Cal.3d at 529, 205 Cal.Rptr. 643, 685 P.2d 687.

The defendants argued before the Magistrate that Interior's prohibition on commercial fishing constituted a "modification or abrogation" of their treaty right to take Klamath River fish. The defendants contended that absent express Congressional authority this right could not be abridged by an executive agency. United States v. Fryberg, 622 F.2d 1010, 1013 (9th Cir.), cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980). Since the fishing regulations at issue in the Wilson and Eberhardt prosecutions were not expressly authorized by Congress, the defendants concluded, they were invalid. Alternatively, the defendants argued that, even if authorized, Interior's moratorium on Klamath River fishing was impermissible because it discriminated against Indians by placing the greatest burden of resource conservation upon tribal fishermen.

In his March 5, 1985 order, Magistrate Langford granted the defendants' motions to dismiss. First, contrary to the position advocated in the amicus brief submitted by the Court of Indian Offenses, the Magistrate ruled that the district court had concurrent jurisdiction to hear and determine the defendants' motions. Second, the Magistrate held that Interior was without authority to promulgate regulations that abrogated the tribe's federally reserved right to take fish from the Klamath River. Third, the Magistrate held that even if Interior were authorized to promulgate these fishing regulations, as written they were arbitrary, not necessary to achieve a conservation purpose and impermissibly discriminatory. Concluding that the regulations underlying the Lacey Act prosecution were invalid, the Magistrate dismissed the informations against the defendants.

The Government appeals this decision. As the Magistrate's conclusions constitute findings of law, they are subject to this Court's de novo review on appeal. U.S. v. Nance, 666 F.2d 353, 356 (9th Cir.1982). There are, therefore, three distinct issues before this Court: proper jurisdiction, abrogation, and discrimination.

II. Jurisdiction

Appellee Eberhardt argues on appeal that Congress did not intend the Lacey Act to be used to prosecute Indians in federal court. Instead, she contends, the Court of Indian Offenses of the Hoopa Valley Reservation has the exclusive jurisdiction to try eligible Indians accused of violating Interior's regulations. The Magistrate rejected this jurisdictional argument. He ruled instead that the Lacey Act conferred concurrent jurisdiction on federal and tribal courts to prosecute Indian fishing offenses. The Court agrees.

The Lacey Act provides no independent basis for criminal prosecution but rather makes a violation of an underlying law or regulation a trigger to federal liability.⁴ Section 3372(a) makes it unlawful for any person:

(1) to import, export, transport, sell, receive, acquire, or purchase any fish or wildlife or plant taken or possessed in violation of any law, treaty, or regulation of the United States or in violation of any Indian tribal law;

(2) to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce—

(A) any fish or wildlife taken, possessed, transported, or sold in violation of any law or regulation of any State or in violation of any foreign law, ...

16 U.S.C. § 3372(a).

As expressly stated in the Lacey Act, federal courts have jurisdiction over any actions arising under it. 16 U.S.C. § 3375(c). Section 258.14 of the underlying Interior regulations also expressly grants the Court of Indian Offenses jurisdiction to try Indians accused of violating the rules. Thus federal jurisdiction is concurrent, but it is not extinguished by the separate jurisdictional grant afforded by the underlying regulations.

III. Abrogation of Tribal Rights

The central issue presented on appeal is whether the Government, acting in its role as trustee, improperly deprived Hoopa Valley Reservation Indians of their federally protected tribal right to take fish from the Klamath River. As held by the Ninth Circuit in United States v. Fryberg, 622 F.2d 1010, 1013 (9th Cir.), cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980), the Government may not abrogate or modify Indian tribal rights without clear Congressional authorization. The question before this Court, therefore, is two fold: (1) whether the Interior regulations under which the appellees were prosecuted "modify or abrogate" Hoopa Valley Reservation tribal rights, and (2) whether such an "abrogation," if found, was clearly authorized by Congress.

A. Scope of Reserved Rights

In order to assess whether the Klamath River regulations modified or abrogated Hoopa Valley Reservation tribal rights, it is first necessary to determine the scope of these rights and whether the appellees' actions were within those rights. See United States v. Dion, 752 F.2d 1261, 1263 (8th Cir.1985). It is only when the scope of the rights is known that it can be determined whether or not governmental actions have modified or abrogated them.

The rights of the Yurok Indians to exploit resources on the Hoopa Valley Reservation were reserved by statute, not treaty. Blake v. Arnett, 663 F.2d 906, 909 (9th Cir.1981). The Hoopa Valley Reservation, as outlined by the Supreme Court in Mattz v. Arnett, 412 U.S. 481, 93 S.Ct. 2245, 37 L.Ed.2d 92 (1973), has had a complex history. By its Act of March 3, 1853, Congress authorized the President to make five military reservations from the public domain in California for Indian purposes. President Pierce, consistent with this authority, specified the Old Klamath River Reservation in his order of November 16, 1855. Mattz, 412 U.S. at 487, 93 S.Ct. at 2249. In 1876 a 12-mile square, known as the original Hoopa Valley Reservation, was formally set aside by another executive order. In 1891 President Harrison extended the reservation to encompass the Old Klamath River Reservation and added to the reservation a 30-mile strip connecting these two areas. Mattz,...