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Puget Sound Gillnetters Ass'n v. U.S. Dist. Court

Citation: 8 ELR 20487
No. Nos. 88-3129 et al., 573 F.2d 1123/(9th Cir., 04/24/1978)

On consolidated appeals from orders of the United States District Court for the Western District of Washington issued to enforce its decision in United States v. Washington, 5 ELR 20552, the Ninth Circuit reaffirms the validity of the legal bases of that decision and upholds the district court's subsequent enforcement orders. Threaties entered into between the United States and Pacific northwest Indian tribes in the 1850s guaranteed to the tribal signatories the perpetual right to take fish "in common with" all other citizens of the territory. The rights thus created are roughly analogous to the rights of cotenants in real property. Plaintiffs' argument that the resulting disparity between the right of treaty and non-treaty fishermen to take violates equal protection guarantees fails to appreciate that these fishing rights are the product of formal agreements between essentially sovereign nations, Cherokee Nation v. Georgia, 30 U.S. 1 (1831) and as such are not subject to invalidation on constitutional grounds.

In light of the complex factual setting of the controversy, the expansive judicial discretion necessary to reconcile these rights was not exceeded by the district court's decision apportioning 45 percent of the harvestable fish run to tribal fishermen. Judicial discretion in enforcing this decision must be similarly broad, particularly because of the need to counter the unprecedented intransigence of the state courts, agencies, and citizens in resisting the result reached by the district court. The court finds the district court's subsequent extension of its compliance orders to fishing within Gray's Harbor and to encompass fishing by individuals not party to the original litigation was necessary and proper to effectuate its judgment. Because the right of all citizens to take fish is derivative of the state's interest in regulating the resource, they are in privity with the state and are equally subject to the orders.

In a separate opinion, Justice Kennedy concurs with the results reached by the majority but finds its analogy to real property rules of cotenancy to be inappropriate to the facts and legal issues at bar.

For a factual background and analysis of the issues underlying the fishing rights dispute, see Comment, Federal-State Frictions Building Over Indian Fishing Rights in Washington, 8 ELR 10028 (Feb. 1978).

The full text of this opinion is available from ELR (14 pp. $2.10, ELR Order No. C-1157).

Counsel for Appellants
Douglas M. Fryer
3300 First Nat'l Bank Bldg., Seattle WA 98154
(206) 623-5890

Counsel for Appellees
Katherine A. Oberly
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 739-2756

Goodwin, J.