US v. State of Or.

• Decision Date: 07 October 1988
• Docket Number: Civ. No. 68-513-MA.
• Citation: 699 F. Supp. 1456
• Parties: UNITED STATES of America, Plaintiff, and The Confederated Tribes and Bands of the Yakima Indian Nation; the Confederated Tribes of the Warm Springs Reservation of Oregon; Confederated Tribes of the Umatilla Indian Reservation; and Nez Perce Tribe of Idaho, Intervenors, v. STATE OF OREGON, State of Washington, Defendants, and State of Idaho and Shoshone-Bannock Tribe, Intervenors.
• Court: U.S. District Court — District of Oregon

699 F. Supp. 1456

UNITED STATES of America, Plaintiff and The Confederated Tribes and Bands of the Yakima Indian Nation; the Confederated Tribes of the Warm Springs Reservation of Oregon; Confederated Tribes of the Umatilla Indian Reservation; and Nez Perce Tribe of Idaho, Intervenors, v. STATE OF OREGON, State of Washington, Defendants and State of Idaho and Shoshone-Bannock Tribe, Intervenors.

Civ. No. 68-513-MA.

United States District Court, D. Oregon.

October 7, 1988.

COPYRIGHT MATERIAL OMITTED

George D. Dysart, Sp. Asst. U.S. Atty., Portland, Or., for plaintiff.

Howard G. Arnett, Johnson, Marceau, Karnopp, Petersen & Nash, Bend, Or., for Warm Springs Tribe.

Timothy Weaver, Hovis, Cockrill, Weaver & Bjur, Yakima, Wash., for Yakima Tribe.

George K. Meier III, Stoel, Rives, Boley, Fraser & Wyse, Portland, Or., William S. Whelan, Stephen V. Goddard, Deputy Atty. Gen., Boise, Idaho, for State of Idaho.

Catherine E. Wilson, Confederated Tribes of the Umatilla Indian Reservation, Pendleton, Or., for Umatilla Tribe.

Cheryl F. Coodley, Asst. Atty. Gen., State of Or., Portland, Or., for State of Or.

Robert C. Strom, Strom, Longeteig & Johnson, Craigmont, Idaho, for Nez Perce Tribe.

Narda Pierce, Asst. Atty. Gen., State of Wash., Olympia, Wash., for State of Wash.

Howard Funke, Fort Hall, Idaho, for Shoshone-Bannock Tribes.

Thane W. Tienson, Mitchell, Lang & Smith, Portland, Or., for NW Gillnetters Assn.

Donald D. Stuart, c/o Washington Trollers Ass'n, Bellevue, Wash., for Washington State Trollers Ass'n.

Robert S. Banks, Jr., Banks & Newcomb, Portland, Or., Alvin J. Ziontz, Marc D. Slonim, Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, Wash., for Makah Indian Tribe.

AMENDED OPINION

(Plan)

MARSH, District Judge.

The State of Oregon, the State of Washington, the United States, the Confederated Tribes of Warm Springs Reservation of Oregon, the Confederated Tribes and Bands of the Yakima Indian Nation, the Confederated Tribes of the Umatilla Indian Reservation and the Nez Perce Tribe move for an order approving a Columbia River Fish Management Plan (hereinafter "1988 Plan" or "the Plan"). The State of Idaho and the Shoshone-Bannock Tribes object to its adoption. Amicus curiae briefs are submitted from the Northwest Gillnetters Association and Columbia River Fishermen's Protective Union and the Washington State Trollers. Further, a brief is submitted on behalf of the Makah Indian Tribe. For the reasons discussed below, I commend the parties on their efforts to derive the proposed 1988 Plan which, with a few restrictions, I adopt.

BACKGROUND

The pending case is the outgrowth of the consolidation of two cases filed in 1968. The first case was designated Sohappy v. Smith, Civil No. 68-409, while the second was designated by the heading in this case. Each suit was brought against the State of Oregon to define the Indians' treaty right to take fish "at all usual and accustomed places" on the Columbia River and its tributaries. Sohappy v. Smith, 302 F.Supp. 899 (D.Or.1969).¹ They sought determination of the extent to which the State of Oregon could regulate fishing after Puyallup Tribe v. Department of Game, 391 U.S. 392, 88 S.Ct. 1725, 20 L.Ed.2d 689 (1968). Four Indian Tribes, including the Yakima Indian Nation, the Confederated Tribes and Bands of the Warm Springs Reservation of Oregon, the Confederated Tribes of the Umatilla Indian Reservation and the Nez Perce Tribe of Idaho, intervened as plaintiffs in the suit brought by the United States. Sohappy, 302 F.Supp. at 899. The two actions were consolidated.

An initial opinion was entered on July 8, 1969 wherein the Hon. Robert C. Belloni construed the Indians' treaty fishing right and considered the manner and extent to which the State of Oregon could regulate Indian fishing. Sohappy, 302 F.Supp. at 911-12. He retained jurisdiction to grant further or amended relief. Id. Referring to the retention of jurisdiction, the Ninth Circuit quoted this court as permitting "any party at any time to apply to the court for a subsequent modification of any provision of this decree where the continued application of the decree has become inequitable or impracticable, but this right shall not affect the finality of the decree with respect to times prior to any such modification." United States v. Oregon, 529 F.2d 570, 572 (9th Cir.1976).

Between 1969 and 1976 the parties appeared before this court several times with Judge Belloni urging the parties to adopt a comprehensive plan for allocation and management of Columbia River anadromous fish. In 1974, the State of Washington was allowed to intervene.

In 1977, the parties presented a five year plan to the court entitled "A Plan for Managing Fisheries on Stocks Originating from the Columbia River and its Tributaries above Bonneville Dam" (hereinafter "original Plan"). The original Plan set conservation goals for each fish species, established fishing regulations and provided for the establishment of future management techniques.

However, the original Plan did not establish fishing locations, times or quotas. United States v. Oregon, 718 F.2d 299, 302 (9th Cir.1983). These details are regulated through the Columbia River Compact (hereinafter the "Compact"), an interstate agency created by Oregon and Washington and ratified by Congress. Id.; Act of April 8, 1918, Pub.L. No. 64-123, 40 Stat. 515 (1918). Under the Compact, the Columbia River is divided into six commercial fishery zones and annually it estimates the size of the runs and determines the length of fishing seasons that the runs can support.

In 1976, Congress passed legislation providing for exclusive fishery management over all fish in a zone extending 200 miles seaward from a state's boundary. Fishery Conservation and Management Act of 1976, 16 U.S.C. § 1801 et seq., (Supp. V 1985) (also known as "the Magnuson Act"). The Pacific Fishery Management Council (hereinafter "PFMC") was created by the Magnuson Act for the areas seaward of the boundaries of Washington, Oregon and California. 16 U.S.C. § 1852(a)(6); 16 U.S. C. § 1853(a)-(c). The PFMC is composed of representatives from Washington, Oregon, California, Idaho, eight members appointed by the Secretary of Commerce and the regional director of the National Marine Fisheries Service. Id.

In 1982 two of the tribes gave notice of their intent to withdraw from the original Plan or to renegotiate it. United States v. Oregon, 745 F.2d 550, 552 (9th Cir.1984). On August 24, 1983 and again on September 6, 1983 this court found that changed circumstances of law and fact made the original Plan subject to revision or modification and ordered the parties to attempt to agree upon a revised or modified agreement. United States v. Oregon, Civ. 68-513 (August 24, 1983; September 6, 1983). If the parties were unable to reach agreement, the parties were to independently submit proposed orders for allocation and management of Columbia River anadromous fish. Id.

In 1983, the Ninth Circuit reversed this court and allowed the State of Idaho to intervene by right. United States v. Oregon, 745 F.2d at 553. And, in 1986 this court allowed the Shoshone-Bannock Tribes to intervene.

Pursuant to the August, 1983 order, the parties have continued negotiations to reach a comprehensive plan. Since the expiration of the original Plan in 1982 and the subsequent negotiations, the parties have entered into several one year management plans in order to maintain responsible management of Columbia River anadromous fish.

Despite the years of negotiations, the 1988 Plan submitted for my consideration does not have the unanimous approval of the parties to the case. On the other hand, all but two parties have agreed and no other proposed plan has been submitted. Thus, first it is important to examine the 1988 Plan in the light of the existing law. Second, it must be determined if it is fair to the parties thus justifying its adoption until some further interim or final disposition is made in the case. To do this, I will consider separately the objections of Idaho and the Shoshone-Bannock. The comments of the amicus curiae and the Makah Indian Tribe are considered for background and general overall effect of the 1988 Plan.

SYNOPSIS OF 1988 PLAN

The first step in the process requires a thorough review and understanding of the 1988 Plan itself. Even though Idaho is not a signator to the Plan, it is considered a party by its terms. On the other hand, the Shoshone-Bannock Tribes "although not a party.... are accorded the right to participate in certain aspects of the plan." Part I, Section G. Both the Shoshone-Bannock Tribes and the signatory parties acknowledge that the Shoshone-Bannock's rights and the signatory parties' defenses are reserved irrespective of the Shoshone-Bannock's limited participation in the Plan.

Part I of the 1988 Plan includes other administrative provisions including its purpose, considerations of the controlling law and treaties, judicial review, internal resolution of disputes, term of the Plan, withdrawal, modification, review of success or failure of its anticipated results and definitions.

In Part II, the 1988 Plan addresses harvest management wherein the Indian fisheries are identified and the separate fishing seasons defined for both Indian and non-Indian fisheries. In addition, management goals are established with corresponding provisions for harvest sharing and stock rebuilding. The provisions relate individually to each species covered by the Plan with particular consideration to the time, harvest rate(s), size of run, and timing of fisheries in relation to each species as well as the effect the planning for one species may have upon the planning for another species.² Provisions for imbalance and further review and adjustment in management are also included.

Part III of the 1988 Plan concerns artificial and natural production and management of the conservation, rebuilding and enhancement of the...