US v. State of Wash., CV 9213.

• Citation: 898 F. Supp. 1453
• Decision Date: 28 August 1995
• Docket Number: No. CV 9213.,CV 9213.
• Parties: UNITED STATES of America, et al., Plaintiffs, v. STATE OF WASHINGTON, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

898 F. Supp. 1453

UNITED STATES of America, et al., Plaintiffs, v. STATE OF WASHINGTON, et al., Defendants.

No. CV 9213.

United States District Court, W.D. Washington.

August 28, 1995.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Peter C. Monson, U.S. Department of Justice, Denver, Colorado, for U.S.

Allan E. Olson, LaConner, Washington, for plaintiff Swinomish Indian Tribal Community.

Mason D. Morisset, Seattle, Washington, for plaintiff Tulalip Tribe.

Richard Davies, Quileute Natural Resources, LaPush, Washington, for plaintiff Quileute.

Nettie Alvarez, Richard Ralson, Seattle, Washington, for plaintiff Hoh.

Richard Reich, Taholah, Washington, for plaintiff Quinault Indian Nation.

Annette Klapstein, Tacoma, Washington, for plaintiff Puyallup Tribe.

Daniel A. Raas, Bellingham, Washington, for plaintiff Lummi Indian Tribe.

Robert L. Otsea, Auburn, Washington, for plaintiff Muckleshoot Indian Tribe.

John Arum, Richard Berley, Seattle, Washington, for plaintiff Makah Indian Tribe.

John Sledd, Suquamish, Washington, for plaintiff Suquamish Indian Tribe.

Philip A. Katzen, Allen H. Sanders, Debora G. Juarez, Seattle, Washington, for ten plaintiff Indian Tribes.

Kathryn Nelson, Eisenhower-Carlson, Tacoma, Washington, for plaintiffs Jamestown, Lower Elwha, Port Gamble Bands of S'Klallams, Skokomish.

Jeffrey Jon Bode', Bellingham, Washington, for plaintiff Nooksack Tribe.

Bill Tobin, Vashon, Washington, for plaintiff Nisqually Tribe.

Kevin R. Lyon, Olympia, Washington, for plaintiff Squaxin Island Tribe.

Harold Chesnin, Sharon Shaw, Brown-Matthews, Seattle, Washington, for plaintiff Upper Skagit Tribe.

Robert C. Hargreaves, Joseph S. Montecucco, Jay D. Geck, Robert Costello, Attorney General's Office, Olympia, Washington, for defendant State of Wash.

Eric Richter, Seattle, Washington, Malcolm L. Edwards, Edward-Sieh, Seattle, Washington, for intervening defendants Carter and Adkins, et al.

Albert Gidari, James Rasband, Perkins Coie, Seattle, Washington, for defendant Puget Sound Shellfish Growers.

James J. Johnson, Olympia, Washington, for defendant UPOW.

Daniel W. Wyckoff, Olympia, Washington, for Inner Sound Crab Association.

ORDER RE: IMPLEMENTATION OF SHELLFISH PROVISO

RAFEEDIE, District Judge, Sitting by Assignment.

The Court conducted an evidentiary hearing to assist it in implementing its December 20, 1994, Memorandum Decision and Order¹ interpreting the Shellfish Proviso of the Stevens Treaties; having read and considered all of the papers filed in this matter and argument of counsel, the Court HEREBY FINDS AND ORDERS as follows:

I. Introduction

The purpose of this Order is to provide a framework for the implementation of the Tribes' fishing rights under the Shellfish Proviso. It is clear that, under the Treaties as interpreted in the Boldt decision,² the Tribes have the absolute right to take fifty percent of the shellfish from natural beds in the Tribes' usual and accustomed grounds and stations. Although enforcing this right necessitates changes in the status quo on all the affected property, effectuating the Treaty shellfishing right presents a particularly difficult problem with respect to property owned or leased by commercial Shellfish Growers and Private Property Owners, as compared to that owned by the State of Washington.

The Shellfish Growers and Private Property Owners are, effectively, innocent purchasers who had no notice of the Tribes' Treaty fishing right when they acquired their property. Indeed, many of these Growers and Owners purchased their land at or before the turn of the century, and they reasonably believed the land to be free of encumbrances and servitudes. Their belief was reinforced by the Tribes' failure to formally assert the Treaty right until over 100 years after the Stevens Treaties were signed.³ Consequently, it is incumbent upon this Court to use its equitable powers to effect a balance between the Tribes' Treaty shellfishing right and the Growers' and Owners' interest in the peaceful enjoyment and/or commercial development of their property.

There is ample authority for this Court to invoke its equitable powers in implementing a plan under which the Tribes may exercise their Treaty right. For example, in Yankton Sioux Tribe of Indians v. United States, although not explicitly acknowledging that it sought an equitable result, the United States Supreme Court approved the payment of money damages to the Yankton Sioux Indians in lieu of restoring a 648-acre tract to the tribe. 272 U.S. 351, 357, 47 S.Ct. 142, 143, 71 L.Ed. 294 (1926). The tract, which the Court held belonged to the Indians in fee, had been "opened to settlement and large portions of it were then in the possession of innumerable innocent purchasers." Id. As a result, the Court concluded, it would have been "impossible to ... restore the Indians to their former rights." Id. Clearly, however, it would have been literally possible to eject the settlers, although obviously the Court viewed that option as neither practical nor desirable, under the circumstances. Consequently, it appears that the Court engaged in a sub rosa balancing of hardships. More recently, in South Carolina v. Catawba Indian Tribe, Inc., Justice Blackmun acknowledged that equitable considerations might have limited the remedies available had the plaintiff Tribe prevailed on its claim to 144,000 acres of land. 476 U.S. 498, 519 n. 5, 106 S.Ct. 2039, 2050 n. 5, 90 L.Ed.2d 490 (1986) (Blackmun, J., dissenting) (citing Yankton).⁴

Similarly, the Ninth Circuit has approved weighing equitable considerations in devising a remedy in an action to quiet title to a parcel of land in the daughters of a Nez Perce Indian. See Brooks v. Nez Perce County, Idaho, 670 F.2d 835 (9th Cir.1982). Noting that such considerations would not bar the claim to the land entirely, the Brooks court nonetheless concluded that "lack of diligence by the government in exercising its role as trustee may be weighed by the district court in calculating damages" for several decades' loss of use of the land. Id. at 837.

In United States v. Imperial Irrigation District, 799 F.Supp. 1052 (S.D.Cal.1992), Chief Judge Keep relied on Brooks to award monetary damages to the plaintiff Indians, rather than restoring tribal land to them. The Indians had a fee interest in land that was flooded, by the United States, for the agricultural development of thousands of acres of land in Riverside and Imperial Counties. Judge Keep utilized equitable factors suggested by the Restatement of Torts to balance the hardships among the parties and concluded that a damage award was more appropriate than injunctive relief because "an injunction would render useless thousands of acres of cultivated farmland to the detriment of innocent farmers who are blameless in this lawsuit and who have worked hard to cultivate desert lands." Id. at 1069.

Further support for the application of equitable principles in drafting an implementation order in this case is found in the Ninth Circuit's opinion affirming the Court's order in connection with the Tribes' anadromous fishing rights: "A cotenant dissatisfied with his partner's exploitation of their common property may seek a partition of the property in order to protect his interest in it. By analogy, the Indians are entitled to an equitable apportionment of the opportunity to fish in order to safeguard their federal treaty rights."⁵ United States v. Washington, 520 F.2d 676, 687 (9th Cir.1975), cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976) (emphasis added). It is the Court's view, therefore, that in the instant controversy, the Court has not only the authority, but the duty, to fashion an implementation plan in accordance with principles of equity.

II. Equitable Considerations

The Court is persuaded by Judge Keep's analogy to the tort of trespass, in Imperial Irrigation District, supra, and likewise applies in this case the factors suggested by the Restatement of Torts:⁶

First, the relevant interest to be protected is the Tribes' Treaty shellfishing right, which is similar to a profit à prendre or a license — not a fee interest in land. Hence, the powerful historical legal protection of land ownership is not implicated in this case. Nonetheless, because it derives from the Treaties, the Tribes' right is entitled to significant protection.⁷

Second, although from a purely economic standpoint, monetary relief might be virtually interchangeable with injunctive relief, the evidence clearly indicates that the Tribes' shellfishing rights are not purely economic. Rather, the Tribes have historically fished for religious and ceremonial — as well as subsistence — purposes; thus, their right is not adequately vindicated by monetary relief. Moreover, the Tribes argued persuasively that intangible benefits will inure to their members from exercising the right to fish, such as the cultural value of participating in a traditional activity and the self-esteem of being gainfully employed. These benefits would be lost were the Court to substitute monetary relief for the right to fish.

Third, as previously noted, the Tribes waited over a century to institute formal action to enforce their Treaty right. Of course, the United States, as Trustee for the Tribes, also bears responsibility for the delay; however, as against innocent third parties — particularly the Shellfish Growers and Private Property Owners — the delay weighs against absolute injunctive relief.

As to the fourth factor — related misconduct by the plaintiff — there is no evidence of misconduct on the Tribes' part. Fault for creating this controversy lies squarely with the State of Washington and the United States, for selling the tidelands and not objecting to the sale, respectively.

Factors five and six — the relative hardships of the parties and the interests of the public and third parties — are in this case somewhat related. As to the Tribes, denying the...