United States v. Washington

No. 81-3111 (9th Cir. November 3, 1982, amended January 3, 1983)

In the majority opinion, 13 ELF 20126, the court ruled that the Northwest Indian treaties give seven tribes the right to a share of hatchery fish, but do not give the tribes an absolute right to a supply of fish nor an absolute right to have fish habitat protected from degradation. In this addition to the opinion, Judge Reinhardt concurs with the majority, but would interpret the treaties to grant the tribes practical assurance of an adequate supply of fish.

Counsel are listed at 13 ELR 20126.

[13 ELR 20441]

None

[13 ELR 20441]

REINHARDT, Circuit Judge, concurring.

I concur with the majority's holding that the State of Washington,¹ when considering projects that may have significant environmental impacts, must take reasonable steps to preserve and enhance the Indians' share [13 ELR 20442] of fish guaranteed by the treaty. To hold that the treaty always requires absolute protection to the complete exclusion of other vital social goals might under some circumstances lead to results that are neither sensible nor consistent with the spirit and purpose of the treaty. Nonetheless, the treaty does require that all reasonable measures be taken to preserve the share of fish to which the Indians are entitled. Thus, from a practical standpoint, I see little difference in the results that should flow from the majority's substitution of its holding for that of the district court's.

Although the majority's holding imposes appropriate duties upon the State, its opinion does not adequately explore the source or the exact nature of those duties. Nor am I in agreement with portions of its analysis or exposition.² The fact that the treaty does not contain absolute protections should not obscure the important obligations that the treaty does impose. At its most basic level, the treaty guarantees that the interests of the Indians are given appropriately serious consideration in the democratic process. Only through such a guarantee does the treaty's promise of fishing rights have any content whatsoever in a modern world of pollution and scarcity. As the Supreme Court noted when interpreting the treaty,

Governor Stevens and his associates were well aware of the "sense" in which the Indians were likely to view assurances regarding their fishing rights. During the negotiations, the vital importance of the fish to the Indians was repeatedly emphasized by both sides, and the Governor's promises that the treaties would protect that source of food and commerce were crucial in obtaining the Indians' assent. See supra, at 666-668. It is absolutely clear, as Governor Stevens himself said, that neither he nor the Indians intended that the later "should be excluded from their ancient fisheries," see n.9, supra, and it is accordingly inconceivable that either party deliberately agreed to authorize future settlers to crowd the Indians out of any meaningful use of their accustomed places to fish. That each individual Indian would share an "equal opportunity with thousands of newly arrived individual settlers is totally foreign to the spirit of the negotiations. Such a "right," along with the $207,500 paid the Indians, would hardly have been sufficient to compensate them for millions of acres they ceded to the Territory.

Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 676-77, 99 S. Ct. 3055, 3069-70, 61 L. Ed. 2d 823 (1979) (emphasis supplied). If it is inconceivable that the Indians would have agreed to be required to fish on the same terms as non-Indians, it is far more inconceivable that they would have allowed the State to permit the fishery to be destroyed altogether. Merely because the treaty does not provide absolute protections, then, does not mean that the rights of Indians to an equal share of fish can be subrogated to other state goals. On the contrary, the treaty guarantees that the Indians' supply of fish must be safeguarded against pollution by every reasonable means.

An examination of the State's permit process illustrates the broad outlines of the treaty's guarantee. As the majority correctly notes, the State's obligation to take reasonable steps to preserve and enhance the fishery applies to the granting of State permits as well as to the State's own projects. Majority Opinion slip op. at 5204 n. 15, at , 15. In determining whether a permit should be granted for a project that may have serious environmental consequences, the treaty requires the State to give due consideration to the Indians' rights throughout the entire decisionmaking process. Only by affording the Indians an opportunity to full participate in the process can the State begin to fulfill its obligations under the treaty. Once such participation has been assured, the State must first consider whether the private project is necessary in light of its probable adverse impact on the Indians' fish supply. As part of its deliberations, the State must also analyze the feasibility of alternative locations for the proposed project. Once a determination of necessity has been made, both as to the project and its location, the State is required to consider any reasonable mitigating actions that the permittee must take to avoid a reduction in the fish supply. For example, under some circumstances the establishment of replacement fishing grounds through artificial propagation may constitute an acceptable way to mitigate the impairment of historic fishing rights. See, e.g., Colville Confederated Tribes v. Walton, 647 F.2d 42, 48 (9th Cir. 1981). To the extent that the fish supply cannot be protected by any other reasonable means, the State may as a last resort require the permittee to pay compensation to the Indians if such compensation will minimize any adverse impacts.

As this brief description of the permit process illustrates,³ the reasonable steps obligation imposed by the treaty guarantees that the Indians' legitimate rights will not be trampled in the political rush to satisfy other State or private goals. In short, the treaty properly interpreted should provide practical assurance that the Indians' right to a supply of fish adequate to meet their moderate living needs will be protected in one manner or another. Given the availability of alternative sites, pollution control technology, other mitigating measures, and even compensation as a last resort, our holding, if applied in the spirit required by the treaty, assures that the Indians' supply of fish will be protected by the democratic process. The treaty demands no less.

1. As a consequence of the United States' obligation under the treaty, both the federal government and the State, on behalf of their citizens, are bound to obey the treaty's terms. Thus, each of these parties is obligated by the reasonable steps requirement imposed here. See generally Majority Opinion slip op. at 5197-5198 nn. 1, 2, at - nn. 1, 2; United States v. State of Washington, 520 F.2d 676, 685 (9th Cir.1975), cert. denied, 423 U.S. 1086, 96 S. Ct. 877, 47 L. Ed. 2d 97 (1976) (on behalf of itc citizens, the State may not permit the subject matter of the treaty to be destroyed).

2. I am reluctant to concur in those portions of the majority opinion that are not essential to our ultimate holding. For example, the majority's discussion of the need for an environmental right is both unnecessary and potentially inaccurate. To begin with, the basic rights guaranteed by the treaty exist even if there is no present need to exercise them. Even if we assume that current environmental protections are adequate, there is no reason to believe that the Indians' rights will always be satisfactorily protected. On the contrary, the passage of time and shifts in the political balance will inevitably alter social priorities. The fishing rights assured by the treaty must be protected against such fluctuations. In addition, the majority's view that existing environmental efforts are adequate involves complicated issues of fact and conflicting scientific opinions. There is simply not enough evidence in the record to substantiate such a holding. Because the question of whether there is a need for the treaty right to be exercised is a separate issue for the remedial phase of the litigation, Majority Opinion, slip op. at 1591 n. 4, at , n. 4, the majority should not have reached that question here.

Second, the issue of the Indians' reciprocal obligations under the treaty is not before us. We have only been asked to determine the extent of the State's duty to protect the fish supply from environmental degradation. Any discussion of the Indians' obligation must await a more detailed analysis in a case where the parties actually litigate the issue.

3. Because we are dealing here with only a limited aspect of the proceedings, the majority opinion is necessarily theoretical in its approach. Consequently, anything more than a brief outline of the way in which the State decision-making process should recognize the treaty obligations will have to await future litigation involving specific environmental issues.