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Purse Seine Vessel Owners Ass'n v. Moos

Citation: 8 ELR 20091
No. No. 43938, 88 Wash. 2d 799, (Wash., 07/21/1977)

The Washington Supreme Court upholds the trial court's issuance of an order barring implementation of certain fishing regulations by the state department of fisheries. The regulations had been formulated by a federal district court pursuant to its order in United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974) that the department's regulations provide that certain Indian tribes be assured an opportunity to take 50 percent of the harvestable run of game fish.In the instant case, the trial court was enjoined by the federal court from conducting any proceedings on the matter, but the trial court held that injunction to be ineffective and disregarded it. The Supreme Court affirms the invalidity of the federal injunction, ruling that the federal court failed to comply with FED. R. DIV. P. 65(a), which requires that notice of temporary injunctions be given to the adverse party, in this case the state court itself, and that the order violated the federal anti-injunction statute, 28 U.S.C. § 2283, which prohibits injunctions against state court proceedings in most cases. The court also upholds the trial court's suspension of the contested regulations. Under state law, the department is authorized only to adopt regulations promulgated by a United States-Canada commission on salmon fishing. The regulations mandated by the federal district court are inconsistent with those of the commission, and therefore the department lacks authority to adopt them.

In a strong dissent, four members of the court (1) dispute the majority's conclusion that the federal court's injunction is rendered ineffective by application of either 28 U.S.C. § 2283 or FED. R. DIV. P. 65(a); (2) would in any event postpone consideration of the case until those issues have been resolved by the Ninth Circuit in a pending appeal of the federal injunction; and (3) disagree with the majority's position that the department is without statutory authority to adopt the regulations.

Counsel for Appellants
Slade Gorton, Attorney General; James M. Johnson
Temple of Justice, Olympia WA 98504
(206) 753-2550

Counsel for Appellees
Joseph T. Mijich
2844 Bank of California Center, Seattle WA 98164

Jacob A. Mikkelborg, Charles E. Yates
Moriarty, Long, Mikkelborg & Broz
3300 1st Nat'l Bank Bldg., 1001 Fourth Ave., Seattle WA 98154
(206) 623-5890

Counsel for Amici Curiae United States
Stan Pitkin, U.S. Attorney
P.O. Box 1227, Seattle WA 98111
(206) 442-7970

Nooksack and Suquamish Tribes
Alan C. Stay
P.O. Box 578, Sumner WA 98390
(206) 593-2076

Brachtenbach, Hamilton, Armstrong, JJ. concur; Horowitz, J. dissents.