Jump to Navigation
Jump to Content

United States v. Washington

Citation: 28 ELR 20619
No. 96-35014 et al., 157 F.3d 630/(9th Cir., 01/28/1998, 09/25/1998)

The court holds that except as expressly limited by the Stevens Treaties' shellfish proviso, the treaties grant several Native American tribes the right to take shellfish found anywhere within the tribes' usual and accustomed fishing areas. Several tribes sought a declaration of their rights to shellfish as negotiated in 1855 under the Stevens Treaties. The treaties contained a shellfish proviso that prohibited the tribes from taking shellfish from any beds staked or cultivated by citizens. The district court concluded that the tribes have a right to take one-half of the harvestable shellfish of every species found within their usual and accustomed fishing areas, except as expressly limited by the shellfish proviso. The district court interpreted the proviso only to exclude the tribes from artificial or planted shellfish beds. Private tideland property owners, commercial shellfish growers, and the state of Washington appealed the district court's judgment.

The court first holds that the district court properly concluded that the Stevens Treaties grant the tribes a right to take shellfish found any-where within the tribes' usual and accustomed fishing areas, except as expressly limited by the shellfish proviso. The tribes' shellfish rights are not limited by species, as this conclusion would be plainly inconsistent with the language of the treaties, the law of the case, and the intent and understanding of the signatory parties. In addition, the tribes' usual and accustomed grounds and stations do not vary by species of fish. Courts considering fishing disputes under the treaties have never required specific findings. Further, the equal footing doctrine does not preclude tribal harvesting on tidelands. The treaties must be construed as a reservation of rights by the tribes, not a granting of rights by the United States. The language of the treaties, the law of this case, and the U.S. Supreme Court's prior applications of the doctrine also preclude its application here. And the tribes are entitled to harvest shellfish on privately owned tidelands. The Supreme Court consistently has rejected arguments to the effect that Native American treaties reserve to Native Americans no more fishing rights than those enjoyed by non-Native American citizens. Regardless of whether shellfish were a private or public resource at treaty time, or today, the Stevens Treaties represent the supreme law of the land and secure the tribes' right to fish at their usual and accustomed grounds without regard to the public or private nature of their ownership.

The court next holds that the district court properly interpreted the meaning of the shellfish proviso as only excluding the tribes from artificial or planted shellfish beds. The court adopts the district court's analysis as its own. The court further notes that the commercial growers', the private owners', and Washington's interpretations of the proviso are not based on the common understanding of the phrase "beds staked or cultivated" within the context of the shell fishing industry at treaty time, are totally inconsistent with the U.S. avowed intention to preserve for the Native Americans their ancient fisheries, and cast aside black-letter canons of statutory construction and treaty interpretation. The court then holds that the district court correctly rejected the commercial growers' affirmative defenses, because laches or estoppel is not available to defeat Native American treaty rights.

Next, the court holds that the district court impermissibly employed equitable powers to rewrite the treaties' terms. The district court improperly limited the tribes' right to take shellfish from the growers' shellfish beds by applying notions of equity to redefine the term "cultivate." The district court should have used its equitable powers only to limit the take of the tribe, not the location, so as to avoid any unjust enrichment. In addition, the district court improperly allocated to the tribes a 50-percent share of shellfish from the commercial growers' beds. The district court should have used equitable principles to limit the tribes' shellfish harvest from the growers' beds to a fair share. It would contravene notions of fairness if the tribes were permitted to take 50 percent of the grower's enhanced harvest. Many of the growers have spent decades developing and enhancing production on their shellfish beds. The court therefore holds that only those growers' beds that exist solely by virtue of the natural propagation of the species are subject to the full 50-percent harvest allocation. Growers have the burden of proving preenhancement harvest versus postenhancement harvest.

The court next holds that the district court erroneously concluded that the term "citizen" in the shellfish proviso includes the state of Washington. The district court improperly invoked equitable principles in its interpretation of the treaties, and there is no support in law for this conclusion. The court also holds that the district court committed clear error in finding that 0.5 pounds of mature clams per square foot is the minimum density necessary to establish a natural bed. There is insufficient evidence in the record to support this finding. The court then holds that the district court did not abuse its discretion by requiring the tribes to prove the unavailability of other forms of access to shellfishing areas before allowing them to cross private uplands. Rather than completely eliminating the tribe's rights to cross private lands, the district court engaged in a careful balancing of hardships in fashioning its remedy. The court next holds that the district court did not abuse its discretion in imposing time, place, and manner restrictions on the tribes' ability to harvest shellfish when the right is exercised on the commercial growers' or private owners' property. The restrictions safeguard the tribes' right-of-access to the ancient fisheries while protecting the interests of the growers and private owners. The court then holds that the district court's procedures of randomly selecting a special master to hear each dispute from a panel of four denies due process, because three of the four special masters are adverse to the tribes. The court also holds that the district court did not err in authorizing a special master to award damages against individual tribal members, but vacates a provision allowing damages against the tribes. Last, the court holds that the district court did not err in denying the tribes' attorneys fees, as the request is foreclosed by case law.

Counsel for Plaintiff
Evelyn S. Ying
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Jay D. Geck, Ass't Attorney General
Attorney General's Office
905 Plum St., Bldg. 3, Olympia WA 98504
(360) 753-6200

Before Lay* and Beezer, JJ.