Washington State Commercial Passenger Fishing Vessel Ass'n v. Tollefson

Citation89 Wn.2d 276,571 P.2d 1373
Decision Date23 November 1977
Docket NumberNo. 43642,43642
Parties, 8 Envtl. L. Rep. 20,111 WASHINGTON STATE COMMERCIAL PASSENGER FISHING VESSEL ASSOCIATION, Respondent, v. Thor TOLLEFSON, Director of Washington State Department of Fisheries, Washington State Department of Fisheries, and State of Washington, Appellants, WASHINGTON KELPERS ASSOCIATION, a Washington nonprofit Corporation, Respondent, v. Thor TOLLEFSON, Director of Washington State Department of Fisheries, Washington State Department of Fisheries, and State of Washington, Appellants.
CourtUnited States State Supreme Court of Washington

Slade Gorton, Atty. Gen., James M. Johnson, Dennis D. Reynolds, Asst. Attys. Gen., Olympia, for appellants.

Thom, Navoni, Hoff, Pierson & Ryder, Richard W. Pierson, Dale L. Kingman, Seattle, for respondent.

ROSELLINI, Associate Justice.

The majority of this court in Washington State Commercial Passenger Fishing Vessel Ass'n v. Tollefson, 87 Wash.2d 417, 553 P.2d 113 (1977), held that the case was moot, since the regulations involved, which were adopted in 1974, have been superseded and are now without force or effect. Upon rehearing, the majority has decided that we should address ourselves to the questions raised on appeal, because they are of a recurring nature and of public importance.

The Washington State Commercial Passenger Fishing Vessel Association (hereinafter referred to as respondent) obtained in the Superior Court a declaration that State fisheries regulations WAC 220-56-013 and -063, which reduced from three to two the daily limit of salmon which a sports fisherman was permitted to catch in ocean waters, were invalid. We sustain that judgment.

Sports fishing for salmon off the Washington and Oregon coast has been a major recreational pursuit for a number of years. Charter boats are taken for hire by sports fishermen in Washington coastal areas for the purpose of catching chinook and coho salmon. The 350 to 400 charter boats constitute a major industry in the area of Ilwaco and Westport on the southern coast of Washington and all of the Olympic Peninsula ports, including Neah Bay, Sekiu, LaPush, Agate Beach, Port Angeles, and others. There also exists a charter boat industry in Astoria and other Oregon fishing ports in the vicinity of the Columbia River which are directly in competition with Ilwaco and indirectly competing with the Westport charter fleet.

At the hearing in the Superior Court, the director was questioned with regard to the reason for the regulations, and stated that they were adopted in response to a decision by Federal District Judge George C. Boldt in United States v. Washington, 384 F.Supp. 312 (W.D.Wash.1974), aff'd 520 F.2d 676 (9th Cir. 1975), cert. denied 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976), holding that treaties between the treaty Indians and the United States gave the tribes the right to take a certain percentage of the fish in certain coastal streams. He was asked:

Q. Were there any other factors for the department and yourself with respect to the regulatory enactments that were adopted in complying with the Boldt Decision? . . . A. Were it not for the Boldt Decision, we would not have taken this action.

He further testified:

Q. What was the effect of the regulations designed with respect to the coastal areas? A. It was designed to put more fish into the coastal Indian streams.

He testified that the regulation, in conformity with Judge Boldt's ruling, was designed to significantly reduce non-Indian fishing in order to make more fish available to the Indians.

The court made the finding that the regulations were passed solely as a result of the Boldt decision and not in furtherance of the director's powers and duties under the Washington statutes which created his office. These relate to the conservation and preservation of the fishery of the State. The court found that the respondents were irreparably damaged; that there was a sharp decrease in the number of sports fishermen carried on the charter boats, which necessitated a 3- to 6-week recovery period, and that the respondents suffered economic loss. The Superior Court also took note of the fact that the United States District Court ordered the director to make a significant reduction in non-Indian fishing.

The issues raised by this appeal are: (1) Does the director of the Department of Fisheries have the statutory power to make an unequal allocation of fish among members of the same class of user? (2) Can a Federal District Court order a state official to act beyond the powers vested in the state official by the legislature? and (3) May Congress and the executive department, by treaty, or may a court of law, in interpreting a treaty, ignore and supersede provisions of the federal constitution?

The first two questions were answered in the negative in Puget Sound Gillnetters Ass'n v. Moos, 88 Wash.2d 677, 565 P.2d 1151 (1977). See also Purse Seine Vessel Owners Ass'n v. Moos, 88 Wash.2d 799, 567 P.2d 205 (1977).

The third, though involving fundamental concepts, has not been argued in this court before.

The Federal District Court in United States v. Washington, supra, allocated to the treaty Indians more than 50 percent of the harvestable catch, to-wit: the right to take 50 percent of the harvestable salmon and steelhead, plus all of the fish that the Indians can catch on the reservation, where they are not regulated by the State, 1 plus all that they can eat, and all they need for ceremonial purposes.

In addition, under the court's order, the share of salmon and steelhead allocated to the Indians is to be increased by

(a)n additional equitable adjustment, determined from time to time as circumstances may require, to compensate treaty tribes for the substantially disproportionate numbers of fish, many of which might otherwise be available to treaty right fishermen for harvest, caught by non-treaty fishermen in marine areas closely adjacent to but beyond the territorial waters of the State, or outside the jurisdiction of the State, although within Washington waters.

United States v. Washington, supra at 344.

The Federal District Court ruled that treaty Indians are to be entitled to fish at other than traditional fishing grounds and

(i)f a tribal member fishes in the all-citizen fishery at a location which is not a usual and accustomed ground or station of his tribe, that individual's catch will not count toward the tribal off-reservation share. 2

United States v. Washington, supra at 410.

The Federal District Court found all the above rights from its interpretation of article 3 of the Treaty of Medicine Creek, 10 Stat. 1132 (1854), which states:

The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians in common with all citizens of the Territory.

(Italics ours.)

Does the treaty, as thus interpreted, deny to citizens of the state the equal protection of the laws guaranteed under U.S.Const. amend. 14? In exploring that question, it is necessary to take into consideration the following facts:

The number of treaty Indians living in the case area, as identified by the Federal District Court, in proportion to the number of other persons living in the area, is .028 percent. The number of treaty Indians living on the reservation is less than .007 percent of the total tribal membership. The Federal District Court found that only 794 treaty Indians engaged in commercial fishing. The entire population in the Federal District Court case area was 2,243,069. In Western Washington alone there are 6,600 commercial fishermen and 283,650 sports fishermen.

Thus, it is apparent that the court awarded over 50 percent of the state's natural resources to a group of its citizens comprising less than 1 percent of the population of the area involved in the decision. The decision was based upon a treaty made not with a foreign nation, but with inhabitants of this Nation who were ancestors of the Indian claimants in this action. The allocation was one which had no precedent in the interpretation of Indian treaties. It had the effect of injecting a new provision into the treaties.

We think that there can be no doubt that were the executive department to enter into a treaty with a foreign nation or were the Congress to pass a law which allocated a portion of a state's natural resources to a group of its citizens, based upon their race or ancestry, that provision would be struck down as a denial of equal protection of the laws. The United States Supreme Court has observed that the language of the treaty, "in common with all citizens of the territory", invokes the principles of equal protection. Department of Game v. Puyallup Tribe, Inc., 414 U.S. 44, 94 S.Ct. 330, 38 L.Ed.2d 254 (1973) (Puyallup No. 2 ), was remanded with an admonition that the issue of equal protection is implicit in the term "in common with" as used in the treaty.

In Puyallup Tribe, Inc. v. Department of Game, 391 U.S. 392, 403, 88 S.Ct. 1725, 1731, 20 L.Ed.2d 689 (1968) (Puyallup No. 1 ), the court had also stated with respect to the the term "in common with":

(We) only add that any ultimate findings on the conservation issue must also cover the issue of equal protection implicit in the phrase "in common with."

Granted the equal protection clause of the Fourteenth Amendment does not mandate complete equality. But it cannot be seriously argued that an allocation of more than 50 percent of a natural resource of a state to a group of citizens comprising a little more than .028 percent of the population does not deny such protection.

The appellants agree that the result achieved by the Boldt interpretation, were it enacted as a law, would run afoul of constitutional prohibitions. They suggest, however, that the allocation is immune from constitutional restriction because treaties are the supreme law of the land and are binding within the territorial limits of the United States. While it is true that a...

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8 cases
  • Puget Sound Gillnetters Ass'n v. U.S. Dist. Court for Western Dist. of Wash.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 24, 1978
    ......WASHINGTON, Respondent, . United States of America et al., ...v. . STATE OF WASHINGTON et al., Defendants-Appellants. . ... from non-Indians in allocating fishing opportunities and determining fishing regulations ... See Washington State Commercial Passenger Fishing Vessel Association v. ...Tollefson, 89 Wash.2d 276, 571 P.2d 1373 (1977), the court ......
  • United States v. State of Wash.
    • United States
    • U.S. District Court — Western District of Washington
    • September 26, 1980
    ......v. . STATE OF WASHINGTON et al., Defendants. . Civ. No. 9213—Phase II. ... & Broz, Seattle, Wash., for Reefnet Owners Assn. .         Joseph T. Mijich, John P. ld, Seattle, Wash., for Purse Seine Vessel Owners Ass'n, amicus curiae. .          ... as well as today, the right to continue fishing. In each of the seven cases where the Supreme ...Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, ...Tollefson, 89 Wash.2d 276, 571 P.2d 1373 (1977); Purse ......
  • Washington v. Washington State Commercial Passenger Fishing Vessel Association Washington v. United States Puget Sound Gillnetters Association v. United States District Court For Western District of Washington
    • United States
    • United States Supreme Court
    • July 2, 1979
    ......77-983, ultimately held that Fisheries could not comply with the federal injunction. Puget Sound Gillnetters Assn. v. Moos , 88 Wash.2d 677, 565 P. 1151 (1977); Fishing Vessel Assn. v. Tollefson , 89 Wash.2d 276, 571 P.2d 1373 (1977). .           As ......
  • Puget Sound Gillnetters Ass'n v. Moos
    • United States
    • United States State Supreme Court of Washington
    • November 30, 1979
    ...... GILLNETTERS ASSOCIATION, a Nonprofit Washington . Corporation, Philip Sutherland, Petitioners, . v. . Donald MOOS, Director, Washington State Department of . Fisheries; State of Washington, .... WASHINGTON STATE COMMERCIAL PASSENGER FISHING VESSEL . ASSOCIATION, t, . v. . Thor TOLLEFSON, Director of Washington State Department of . ......
  • Request a trial to view additional results
1 books & journal articles
  • The spirit of the salmon: how the tribal restoration plan could restore Columbia basin salmon.
    • United States
    • Environmental Law Vol. 30 No. 4, September 2000
    • September 22, 2000
    ...contradicted State statutes and the United States Constitution. Washington State Commercial Passenger Fishing Vessel Ass'n v. Tollefson, 571 P.2d 1373 (Wash. 1977), vacated, Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979); Puget Sound Gillnetter......

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