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Puget Sound Gillnetters Ass'n v. Moos

Citation: 7 ELR 20535
No. No. 44401, 565 P.2d 1151/88 Wash. 2d 677, (Wash., 06/09/1977)

The court refuses to issue a writ of mandamus, but it affirms the authority of the Washington Department of Fisheries to regulate salmon fishing among Indian and non-Indian fishermen. Relying on statutory construction, the court finds that the Department has authority to regulate fishing for conservation purposes but not for the purpose of allocating fish among competing claimants. Regulation of the latter sort would run afoul of the constitutional prohibitions against unreasonable discrimination. Thus, distinctions may be made between commercial and non-commercial fishermen, but within those classes, no distinction may be made between treaty Indians, non-treaty Indians, and non-Indians. The court then finds that a federal court cannot direct a state agency to act beyond its statutory authority. Thus, a federal district court decision giving treaty-protected Indians a special advantage is inapplicable because it would compel the Department of Fisheries to regulate salmon fishing for purposes other than conservation. Furthermore, prior to the district court's decision, a long development of case law, including opinions by the United States Supreme Court, recognized a legitimate state interest in the conservation of its natural resources but did not find a treaty right favoring allocations for Indians. Implementing the federal district court's decision would exacerbate social and economic problems as well as threaten survival of the fish.

A dissent argues that if the Department refuses to obey the federal district court's decision, the Department will be in contempt and liable for sanctions which the state court is powerless to prevent.

Counsel for Petitioners
Douglas M. Fryer, Jacob A. Mikkelborg, Charles E. Yates, Henry Haugen
Moriarity, Long, Mikkelborg & Broz
3300 Seattle 1st Nat'l Bank Bldg., 1001 Fourth Ave., Seattle WA 98154
(206) 623-5890

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

Counsel for Intervenors Purse Seine Vessel Owners Association
Joseph T. Mijich, John P. World
2844 Bank of California Center, Seattle WA 98164
(206) 624-6993

Counsel for Amicus Curiae United States
Peter R. Taft, Ass't Attorney General; Edmund B. Clark
Department of Justice, Washington DC 20530
(202) 739-2748

Counsel for Amici Curiae Lummi, Makah, Quileute, Puyallup, Muckleshoot, and Skokomish Indian Tribes
Alan C. Stay
P.O. Box 578, Sumner WA 98390

John Clinebell
2232 E. 28th St., Tacoma WA 98404
(206) 383-1917 (H)

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

Rosellini, J. joined by Wright, C.J., Hamilton, Brachtenbach, JJ., and Armstrong, J.P.T.; Horowitz, Stafford, and Utter, JJ., concur in part and dissent in part.

We concur.