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United States v. Washington

Citation: 11 ELR 20016
No. No. 9213, 506 F. Supp. 187/(W.D. Wash., 09/26/1980) Phase II

The court holds that all hatchery fish must be included in the computation of Pacific Northwest Indian tribes' treaty share of fish and that the tribes have an implied right to environmental protection of the fish habitat. The Supreme Court had previously held, 9 ELR 20517, that the fishing rights clause in six treaties negotiated between the United States and the tribes entitled the Indians to take up to 50 percent of the harvestable fish passing through the tribes' usual and accustomed fishing grounds. The court now establishes that artificially-reared fish must be included in this allocation in order to meet the tribes' moderate living needs. Since hatchery fish are increasing in proportion to the total fish population in the treaty area, the tribes' share would steadily decrease if hatchery fish were not included. This result is contrary to the intent of the parties and the holding of the Supreme Court. The court also rules that the Indians' rights to take fish in perpetuity gives rise to an implied treaty right to have the fishery habitat protected from degradation by the federal government as well as the State of Washington. This holding is consistent with the implied-reservation-of-water doctrine in which water rights are implied where necessary to fulfill the purposes of expressly reserved treaty rights. The court concludes that an environmental right must be implied in order to fulfill the purposes of the fishing clause. However, the environmental right merely imposes a negative duty on the state not to impair the tribes' ability to satisfy their moderate living needs.

Counsel for Plaintiff
George Dysart
Land and Natural Resources Division
U.S. Department of Justice, P.O. Box 150, Portland OR 97207
(503) 221-3660

Alan Stay
Evergreen Legal Services
520 Smith Tower, Seattle WA 98104
(206) 464-5888

Mason D. Morisset
Ziontz, Pirtle, Morisset, Ernstoff & Chestnut
Pioneer Bldg., 600 1st Ave., Seattle WA 98104
(206) 623-1255

Counsel for Defendants
Edward Mackie, Deputy Attorney General
Temple of Justice, Olympia WA 98504
(206) 753-2550

James Johnson, Ass't Attorney General
Department of Game
600 N. Capitol Way, Olympia WA 98504
(206) 753-2498

Charles E. Yates
Moriarty, Mikkelborg, Broz, Wells & Fryer
3300 Seattle First Nat'l Bank Bldg., Seattle WA 98104
(206) 623-5890