United States v. Washington

No. 81-3111 (9th Cir. December 17, 1984)

The court holds en banc that it lacks jurisdiction to review summary judgment rulings on two claims in an Indian fishing rights case, one because the district court did not properly certify it as a final judgment and the other because it was not in fact a final judgment. The trial court completely disposed of the first claim, but so long as other issues in the suit remain, the disposition may not be reviewed unless it qualifies as a final judgment under Federal Rule of Civil Procedure (FRCP) 54(a). To qualify, the district court must have expressly found that there is no just reason to delay judgment and must expressly direct judgment to be entered. The district court's mere statement that it's judgment "constitutes a final declaratory judgment and is reviewable at such" does not satisfy FRCP 54(b)'s requirements.

On the second claim, the district court gave only partial summary judgment, and despite its declaration the ruling constituted a final declaratory judgment, that is not enough to allow appeal. The court clearly contemplated further proceedings on relief under the claim, so the ruling cannot be reviewed as a final judgment. Neither does it qualify for review as an interlocutory order.

A concurring opinion cautions against establishing an overly restrictive standard for the entry of an appealable declaratory judgment. An extensive dissent argues that the rulings on both claims are reviewable as final declaratory judgments, that the majority employs the wrong analyses to decide whether the rulings are appealable, and that in so doing, the majority casts a cloud over the entire declaratory judgment process.

[The Ninth Circuit's previous rulings in the case appear at 13 ELR 20126 & 20441.]

Counsel for Appellants
Edward Mackie, Deputy Attorney General
Temple of Justice, Olympia WA 98504
(206) 753-2550

Counsel for Appellees
William A. White
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2639

Before BROWNING, SNEED, KENNEDY, ANDERSON, SKOPIL, SCHROEDER, ALARCON, POOLE, FERGUSON, NELSON, and NORRIS, Circuit Judges.

BROWNING, SKOPIL, SCHROEDER, FERGUSON and POOLE, Circuit Judges, concur.

[15 ELR 20266]

NELSON, Circuit Judge:

The State of Washington ("the State") appeals an Amended Judgment of the district court, granting partial summary judgment on one claim and summary judgment on another in this protracted litigation over Indian Treaty fishing rights in the Pacific Northwest.The district court characterized its opinion as "but the most recent link in a long chain of opinions construing the following 27 words" that appear in six treaties between several Pacific Northwest Indian tribes ("the Tribes") and the United States:

"The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory. . . ."

United States v. Washington, 506 F. Supp. 187, 189 (W.D.Wash.1980). The district court held that hatchery fish are included in the fish to be apportioned by the treaty. It also held that the right to take fish necessarily includes the right to have those fish protected from man-made despoliation. We conclude that we have no jurisdiction to review this appeal. The court's grant of summary judgment is not a final decision within the meaning of 28 U.S.C. § 1291, and does not meet the requirements of Federal Rule of Civil Procedure 54(b). The court's grant of partial summary judgment is not a final decision under 28 U.S.C. § 1291 and does not satisfy the requirements of 28 U.S.C. § 1292(b).

BACKGROUND

A century-old conflict over fishing rights between the Indians and the State prompted the United States in 1970 to begin litigation on its own behalf and as trustee of seven Indian tribes. In an earlier phase of this litigation, the Supreme Court addressed the question whether the treaties entitle the Tribes to a specific allocation of the salmon and steelhead trout in the treaty area, holding the "[b]oth sides have a right, secured by treaty, to take a fair share of the available fish. . . . [A]n equitable measure of the common right should initially divide the harvestable portion of each run that passes through a 'usual and accustomed' place into approximately equal treaty and nontreaty shares, and should then reduce the treaty share if tribal needs may be satisfied by a lesser amount." Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 684-85, 99 S. Ct. 3055, 3073-74, 61 L. Ed. 2d 823 (1979) ("Fishing Vessel").

Before the Supreme Court's decision in Fishing Vessel, the United States, and the Tribes as intervenors, filed amended and supplemental complaints. The complaints [15 ELR 20267] requested a declaration that artificially-propagated hatchery fish are included in the allocable fish population, a declaration that the right to take fish incorporates the right to have treaty fish protected from manmade despoliation, and such further relief as the court deemed necessary to safeguard the rights declared. On July 21, 1978, the plaintiffs filed a statement specifying the declaratory and injunctive relief sought. On November 1, 1978, the plaintiffs then moved for partial summary judgment on the environmental issue. This motion made no mention of declaratory relief. On January 21, 1979, the plaintiffs moved for summary judgment on the hatchery issue, again with no mention of declaratory relief. The next day the State moved for summary judgment in its favor on the hatchery issue. In its opinion dated September 26, 1980, ruling on the motions, the district court stated:

IT IS HEREBY ORDERED that plaintiff's motion for summary judgment on the hatchery issue is GRANTED, that the defendant's cross-motion for summary judgment on the hatchery issue is DENIED, and that the plaintiff's motion for partial summary judgment on the environmental issue is GRANTED. Plaintiffs shall prepare and lodge with the Court by October 15, 1980, an appropriate form of order approved by defendants in accordance with the findings of fact and conclusions of law set out in this opinion.

United States v. Washington, 506 F. Supp. at 208. Hence, this original opinion made no mention of declaratory relief. On January 16, 1981, the district court entered an Amended Judgment which repeated the September 26, 1980, order in that it again granted "the plaintiffs' motion for summary judgment on the hatchery issue," denied "defendants' cross-motion on the hatchery issue," and granted "the plaintiffs' motion for partial summary judgment on the environmental issue." The State appeals from these orders granting summary and partial summary judgment.

In the last paragraph of its Amended Judgment, however, the district court stated that "[t]his Amended Judgment constitutes a final declaratory judgment and is reviewable as such." The jurisdictional question we must resolve is whether the addition of this paragraph effectively transformed what are otherwise not appealable orders — a summary judgment on one issue and a partial summary judgment on another — into final appealable orders.

JURISDICTION OF THIS COURT

The order granting summary judgment on the hatchery fish issue completely disposed of the Tribes' hatchery fish claim. Because the State has been under an injunction since 1976 prohibiting it from excluding hatchery fish from the Tribes' allocation, see United States v. Washington, 459 F. Supp. 1020, 1072 (W.D. Wash.1974-1978), no further proceedings on this issue need occur. In the absence of any other claims in this lawsuit, therefore, the judgment would be appealable as a "final decision" within the meaning of 28 U.S.C. § 1291. 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2715 at 626 (2d ed. 1983). Here, however, because the environmental claim was not completely resolved below, summary judgment on the hatchery issue does not have the effect of terminating the entire lawsuit.When summary judgment is granted on fewer than all the claims in a lawsuit, the provisions of Rule 54(b) of the Federal Rules of Civil Procedure must be satisfied. That Rule provides that an order disposing of fewer than all the claims in an action may be appealed only if the district court makes both "an express determination that there is no just reason for delay" and "an express direction for the entry of judgment." Fed.R.Civ.P. 54(b). The district court here stated: "This Amended Judgment constitutes a final declaratory judgment and is reviewable as such." While this statement could reflect an implicit determination that delay was inappropriate and that judgment should be entered immediately, we do not find the district court's language sufficiently clear to comply with Rule 54(b).¹ We therefore have no jurisdiction to review this order.²

In contrast to the hatchery fish issue, the order granting partial summary judgment on the environmental issue is not final as to one entire claim. Although the district court labeled its order a "declaratory judgment," a brief examination of the order's procedural history shows that it is more properly analyzed as a partial summary judgment. The plaintiffs' motion of November 1, 1978, clearly requests only "partial summary judgment" on the environmental issue and not final declaratory relief. Similarly, plaintiff's 55-page supplemental memorandum in support of its motion asked that "the motion for partial summary judgment be granted," and made no reference to declaratory relief. The district court's original opinion made no pretense that a "final judgment" had been entered. The court's Amended Judgment of January 16, 1981, acknowledges that it grants "partial summary judgment" and that "[t]he issue of whether the State has violated the Tribes' right to have the fisheries not degraded" and "the issue of what remedies if any plaintiffs are entitled to" have not yet been resolved. Yet in an apparent contradiction, the district court concluded, "This Amended Judgment constitutes a final declaratory judgment and is reviewable as such."

However, the district court's labeling an order a declaratory judgment does not automatically make it so. This is true especially where the parties have not specifically requested a declaratory judgment in their motions leading to the order. Cf. Curlott v. Campbell, 598 F.2d 1175, 1180 (9th Cir.1979) (Sneed, J.) ("Piecemeal adjudication does not become appealable merely because cast in the form of a declaratory judgment.") (citing Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 742-44, 96 S. Ct. 1202, 1205-07, 47 L. Ed. 2d 435 (1976)).

The district court's opinion specifically contemplated that further relief proceedings would follow the issuance of a partial summary judgment. United States v. Washington, 506 F. Supp. at 205-06. Thus, the United States and the Tribes sought multiple remedies in connection with their environmental claim. A claim based on one legal right remains a single "claim" for appeals purposes despite the request for multiple remedies. See Liberty Mutual, 424 U.S. at 743 & n. 4, 96 S. Ct. at 1206 & n. 4. Here, the district court's order did not address the request for appropriate relief beyond the award of a partial summary judgment.

In a situation similar to this, the Court in Liberty Mutual found that even if a district court's order on the issue of liability were to be labeled a declaratory judgment on liability, it was non-appealable because of lack of finality. Writing for a unanimous Court, Justice Rehnquist said:

[15 ELR 20268]

Counsel for respondents when questioned during oral argument in this Court suggested that at least the District Court's order . . . amounted to a declaratory judgment on the issue of liability pursuant to the provisions of 28 U.S.C. § 2201. Had respondents sought only a declaratory judgment, and no other form of relief, we would of course have a different case. But even if we accept respondents' contention that the District Court's order was a declaratory judgment on the issue of liability, it nonetheless left unresolved respondents' request for an injunction, for compensatory and exemplary damages, and for attorneys' fees. It finally disposed of none of respondents' prayers for relief.

424 U.S. at 742, 96 S. Ct. at 1205-06 (emphasis in original). The plaintiffs here seek additional relief on the environmental issue. As in Liberty Mutual, the court's judgment leaves unresolved plaintiff's request for an injunction.

The partial summary judgment order, therefore, does not constitute a final judgment. It is an interlocutory order appealable, if at all, under 28 U.S.C. § 1292. Because the order does not fall within one of the four categories enunciated in section 1292(a), it must comply with the requirements of section 1292(b) to be appealable. Here, these requirements have not yet been satisfied. Therefore, the environmental issue is not properly before us. Neither the parties nor the district court have yet focused on why the order on the environmental issue "involves a controlling question of law as to which there is a substantial ground for difference of opinion," or how an interlocutory appeal on that issue "may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b). Nor has the district court yet decided how, if at all, the treaty has been violated. It has merely decided one legal issue, the treaty duty owed by the State.

Because we lack jurisdiction, the appeal is DISMISSED.

1. Lest our reading of the Rule 54(b) certification requirement appear unnecessarily strict, we emphasize that a proper certification informs a litigant not only that an immediate appeal may be taken, but also that an immediate appeal must be taken. Unlike an interlocutory order, which may be appealed either at the time of its entry or after final judgment, a judgment certified under Rule 54(b) is only appealable at the time of its entry. See Williams v. Boeing Co., 681 F.2d 615, 616 (9th Cir.1982). Thus, an explicit 54(b) certification alerts a litigant that waiting until the disposition of the entire case before seeking an appeal will cost him the right to have the certified claim reviewed. Absence of a certification assures a litigant that he may wait to appeal, thereby reducing the number of appeals filed prematurely. An ambiguous statement from the district court, however, throws the litigant into a state of "uncertainty" and "hazard." Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 512, 70 S. Ct. 322, 324, 94 L.Ed. 299 (1950). To enable litigants to protect themselves adequately, a district court must express its intent to certify clearly and unambiguously. See 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2660 at 122 (2d ed. 1983) ("both the court's direction and determination must be apparent and there should be no doubt as to the district court's intention to certify").

2. If the district court expressly certifies this order under Rule 54(b), and a new appeal is taken, then, upon motion or stipulation, the briefs and records in this case will be transferred to the new appeal, which will be submitted to this en banc panel.

[15 ELR 20268]

NORRIS, Circuit Judge, separately concurring.

I write separately because I agree with Judge Sneed that the dicta in Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 742, 96 S. Ct. 1202, 1205, 47 L. Ed. 2d 435 (1976), cited by the majority, should not be accepted as establishing an overly restrictive standard for entry of an appealable declaratory judgment. Judge Sneed is certainly correct in observing that a district court may entertain a claim for declaratory relief "whether of not further relief is or could be sought," 28 U.S.C. § 2201, and that a district court may grant "further necessary or proper relief," 28 U.S.C. § 2202, upon subsequent petition from a party granted declaratory relief. See, e.g., C. Wright, A. Miller, & M. Kane, Federal Practice & Procedure § 2771, at 765-67 (1983) (citing cases).

I agree with the majority, however, that § 2201 does not authorize a district court to grant a partial summary judgment, resolve some but not all of the claims for relief, and render its judgment appealable by labeling it a declaratory judgment. For example, in this case the plaintiffs requested that the Court "[d]eclare that the State of Washington has an affirmative obligation adequately to inspect, monitor and enforce any permit issued by the State to insure that those activities permitted do not have an actual or potential impact on the fishery." Tribal Statement of Declaratory and Injunctive Relief, at 2 (July 21, 1978). This claim has yet to be resolved by the district court. Accordingly, I agree with the majority that the Amended Judgment is not a final declaratory judgment appealable under § 2201.

I believe that Judge Sneed's concerns are based on an unnecessarily broad reading of the majority's opinion. Under the rule announced today, the district court could have granted the same declaratory relief on the environmental and hatchery issues that was provided in the Amended Judgment PP1-6, if it had also either granted or denied each and every other claim for declaratory or injunctive relief advanced by the parties but left unresolved by the Amended Judgment. Such an order would have had the requisite finality to be appealable under § 2201, even though the district court would have retained jurisdiction under § 2202 to grant "[f]urther necessary or proper relief" based upon the declaratory judgment. Today's decision only deprives the district court of the power to transform a partial summary judgment into final declaratory relief through the mere application of a label.

[15 ELR 20268]

SNEED, Circuit Judge, with whom Circuit Judges KENNEDY and ANDERSON join, and Circuit Judge ALARCON joins as to Parts I, II, III, IV, and V, dissenting:

The district court's judgment states, "This Amended Judgment constitutes a final declaratory judgment and is reviewable as such." Amended Judgment, January 12, 1981, Excerpt of Record (E.R.) 265, 267 P9. As a final declaratory judgment, the district court's disposition is properly before this court under 28 U.S.C. § 1291 and 28 U.S.C. § 2201. Therefore, I am compelled to dissent from the majority's order dismissing the suit for lack of appellate jurisdiction.

The majority justifies its action with respect to the hatchery issue on the ground that there is no proper compliance with Rule 54(b), Fed.R.Civ.P., and with respect to the environmental degradation issue on the ground that the district court did not afford all the relief the United States and the Tribes sought. These holdings ignore the language and intent of 28 U.S.C. § 2201 as well as longstanding practice thereunder. I write to support this assertion.

BACKGROUND

This litigation, extending over more than a decade, concerns Indian treaty fishing rights in the Pacific Northwest. The district court characterized its opinion as "but the most recent link in a long chain of opinions construing the following 27 words: 'The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory. . . .'" United States v. Washington, 506 F. Supp. 187, 189 (W.D.Wash.1980). This suit was commenced in 1970 by the United States on its own behalf and as trustee of seven Indian tribes. It was bifurcated into separate parts or "phases."

The Phase I (a term of convenience) declaratory judgment held that the fishing clause appearing in six treaties¹ negotiated by Governor Isaac Stevens between the United States and several Pacific Northwest Indian Tribes in 1854 and 1855 ("the treaty" or "the treaties") entitled the Indians to a specific allocation of the salmon and steelhead trout in the treaty area.² United States v. Washington, 384 F. Supp. 312 (W.D.Wash.1974) ("Final Decision I"), aff'd, 520 F.2d 676 (9th Cir.1975), cert. denied, 423 U.S. 1086, 96 S. Ct. 877, 47 L. Ed. 2d 97 (1976). The issues addressed by the declaratory judgment that the majority now refuses to review were expressly excluded from Phase I. 384 F. Supp. at 328. [15 ELR 20269] The district court, however, did require the inclusion of hatchery bred fish in calculating the treaty Indian share pending final determination of the legality of such inclusion. See Order Granting Preliminary Injunction, August 13, 1976, E.R. 190.

The district court implemented its Phase I declaratory judgment with several orders and memorandum decisions. United States v. Washington, 459 F. Supp. 1020 (W.D.Wash.1974-1978), various appeals dismissed, 573 F.2d 1117 (9th Cir.1978); 573 F.2d 1118 (9th Cir.1978); 573 F.2d 1121 (9th Cir.1978). In appeals of some of these implementing decisions and decisions of the Washington Supreme Court, the U.S. Supreme Court resolved the legal dispute on the allocation issue. Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 99 S. Ct. 3055, 61 L. Ed. 2d 823 (1979) ("Fishing Vessel").

The Supreme Court resolved the allocation issue by concluding that "[b]oth sides have a right, secured by treaty, to take a fair share of the available fish. . . . [A]n equitable measure of the common right should initially divide the harvestable portion of each run that passes through a 'usual and accustomed' place into approximately equal treaty and non-treaty shares, and should then reduce the treaty share if tribal needs may be satisfied by a lesser amount." Fishing Vessel, 443 U.S. at 684-85, 99 S. Ct. at 3074. This effectively terminated Phase I of this litigation.

Phase II (again, a term of convenience) commenced in 1976 when the plaintiffs-appellees filed amended and supplemental complaints seeking a declaratory judgment. They sought to have it determined whether artificially propagated hatchery fish are included in the allocable fish population, and whether the right of taking fish incorporates the right to have the treaty fish protected from environmental degradation.

In its declaratory judgment, the district court responded by holding that hatchery fish are to be included in the fish to be apportioned by the treaty and that the right of taking fish incorporates the right to have treaty fish protected from environmental degradation. United States v. Washington, 506 F. Supp. 187 (W.D.Wash.1980). The judgment imposed upon the State of Washington a duty to refrain from degrading or authorizing the degradation of the fish habitat to an extent that would deprive the treaty Indians ("the Tribes") of their moderate living needs.

The State of Washington appealed the district court's declaratory judgment. The panel opinion affirmed the declaratory judgment on the hatchery fish issue, but modified it on the environmental degradation issue. United States v. Washington, 694 F.2d 1374 (9th Cir.1983). The panel held that "the State and the Tribes must each take reasonable steps commensurate with the resources and abilities of each to preserve and enhance the fishery when their projects threaten then-existing harvest levels." Id. at 1389. A vote of the active judges of this court placed the suit before this en banc panel.

II.

PROPER ANALYSIS OF DECLARATORY JUDGMENTS ON APPEAL

Under the Declaratory Judgent Act:

[A]ny court of the United States . . . may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.

28 U.S.C. § 2201.

Experience under the federal Declaratory Judgment Act has established a straightforward analysis for appellate courts reviewing declaratory judgments issued by district courts. The reviewing court must first determine whether the dispute between the parties is an actual controversy. If the court determines that the suit was properly before the district court because an actual controversy existed, it must determine whether the district court properly exercised its discretion by issuing a declaratory judgment. A declaratory judgment is appropriate if it clarifies disputed legal relations and terminates the uncertainty and insecurity giving rise to the dispute.

If the declaratory judgment was appropriate under the circumstances of the case, it is final and appealable. See, e.g., United States v. Adair, 723 F.2d 1394, 1397 (9th Cir.1984), cert. denied, U.S. , 104 S. Ct. 3536, 82 L. Ed. 2d 841 (1984); Laguna Hermosa Corp. v. Martin, 643 F.2d 1376, 1378 (9th Cir.1981); Peerless Insurance Co. v. Travelers Insurance Co., 393 F.2d 636, 636 (9th Cir.1968); 28 U.S.C. § 2201. Thus, should the majority feel that the case is not properly before this court, it should consider whether a controversy exists and whether a declaratory judgment was appropriate under the circumstances of this case. The majority fails to address these issues. It mistakenly concludes there is no judgment possessing the finality required to permit appellate jurisdiction. I am convinced that a controversy exists and that the declaratory judgment was proper.

III.

ACTUAL CONTROVERSY REQUIREMENT

Under the Declaratory Judgment Act, a federal court may declare the rights of parties to a "case of actual controversy." 28 U.S.C. § 2201. This requirement is not unique to declaratory judgment actions, of course. The Declaratory Judgment Act's "actual controversy" requirement is identical to the "case or controversy" requirement of Article III of the U.S. Constitution. Societe de Conditionnement en Aluminium v. Hunter Engineering Co., 655 F.2d 938, 942 (9th Cir.1981).

The Supreme Court has outlined the test for determining whether a suit seeking a declaratory judgment is an actual controversy:

The difference between an abstract question and a "controversy" contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.

Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S. Ct. 510, 512, 85 L.Ed. 826 (1941); see also Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 240-41, 57 S. Ct. 461, 463-64, 81 L.Ed. 617 (1937).

Only those, like Rip Van Winkle, recently awakened from a twenty year sleep, could contend that this case presents no substantial controversy. The issues, whether hatchery fish are to be included in the fish to be allocated between treaty and nontreaty fishermen and whether the treaty fishermen have a right to be protected from environmental degradation that reduces the size of the fishery, have been in dispute throughout this litigation. Their resolution will have far-ranging consequences. They are not abstract questions fashioned by curious persons to provide work for this court. They spring from sharply conflicting contentions, each nourished by the text of the treaty, history of the case area, and civic and personal aspirations. While the treaty fishermen desire to have their share of the catch increased by including hatchery fish and by thwarting environmental degradation, the State desires to produce hatchery fish without having to include [15 ELR 20270] them in the allocable fishery and to be free from legal responsibility for environmental degradation. The dispute unmistakably is immediate and real. Every year, the fishery is allocated between treaty and non-treaty fishermen. The parties need to know whether hatchery fish are to be included in this allocation. Furthermore, the development of the Pacific Northwest threatens the fishery. The State needs to know how to respond to this threat as well as its obligations to all its citizens with respect to development. The treaty fishermen need to know the extent of their rights in order to plan their futures as fishermen.

To repeat, this suit is a dispute between the treaty fishermen, who assert that they have the right to have hatchery fish included in the allocable fish population and to have the fishery protected from environmental degradation, and the State, which asserts that the treaty fishermen do not have these rights. This case precisely matches Professor Borchard's defintion of a justiciable actual controversy. That definition states: "The term 'actual controversy' . . . . covers cases of 'antagonistic assertion and denial of right' in which the court merely declares whether the plaintiff's claim is justified or not." E. Borchard, Declaratory Judgments 42 (2d ed. 1941).

IV.

PROPERTY OF THE DISTRICT COURT'S DECLARATORY JUDGMENT

As already indicated, the existence of an actual controversy does not alone assure that the granting of a declaratory judgment was appropriate. Whether to grant or to deny a declaratory judgment is within the discretion of the district court. See, e.g., McGraw-Edison Co. v. Preformed Line Products Co., 362 F.2d 339, 342 (9th Cir.), cert. denied, 385 U.S. 919, 87 S. Ct. 229, 17 L. Ed. 2d 143 (1966). Thus, an appellate court called upon to review a district court's granting or denial of a declaratory judgment must determine whether the district court's disposition was a proper exercise of its discretion.

Appellate courts called upon to make this determination generally apply Professor Borchard's two-part test to determine the appropriateness of declaratory relief. See, e.g., McGraw-Edison, 362 F.2d at 342; Delno v. Market Street Railway Co., 124 F.2d 965, 968 (9th Cir.1942). It is that declaratory judgments are appropriate "(1) when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversygiving rise to the proceeding." E. Borchard, supra, at 299. Perhaps the majority in its disposition has masked its belief that this test was not met in this case. If so, I respectfully dissent.

A declaratory judgment resolving the hatchery fish and environmental degradation issues would accomplish these goals. It would resolve two intertwined aspects of the treaty rights that have been lumped together and hotly disputed over the many years of this litigation. It would terminate the uncertainty and insecurity on these issues that the parties have been forced to endure since Fishing Vessel. A binding declaratory judgment would enable the parties to know whether hatchery fish are included in the allocable fishery. Similarly, it would enable the parties to know whether, and the extent to which, the fishery must be protected from environmental degradation. The State needs to know whether this right exists in order to make intelligent decisions about future development in the case area. The same is true with respect to the United States which, because of its role as plaintiff trustee in this case, has not been able to represent that interest. If the right does exist to some extent, the State and the United States must take it into account in their development decisions. In the absence of a resolution of this issue, framed with that degree of precision that enables prople of the law to provide reliable guidance to those they advise and that makes possible the existence of reasonable predictable issues for those who litigate, neither the State nor the United States knows what it does when it makes a development decision. Likewise, the treaty fishermen need to know where they stand. They are entitled to an answer concerning the treaty their forebears accepted. A declaratory judgment either in the form employed by the district court, or that by the three judge panel of this court, would advance the interests of all the parties in this case.

Of course, a declaratory judgment on these issues very likely would not resolve all of the questions concerning the scope of the treaty rights. That could be approached only if the judgment held that the treaty fishermen possess neither the right to have hatchery fish included in the allocable fishery nor any right to protect the fishery from environmental degradation. A judgment more responsive to the needs of the treaty fishermen would mean that future litigation is highly probable. The treaty fishermen, for example, might argue in a future case that the State had failed to give them their share of the hatchery fish or that the environment was degraded in violation of the treaty.

The inability of a declaratory judgment to foreclose all future dispute is sometimes thought to make it an inappropriate remedy. This is not so. As long as a declaratory judgment resolves a significant issue that is in dispute, it need not resolve all of the issues in controversy. Harris v. United States Fidelity & Guaranty Co., 569 F.2d 850, 852 (5th Cir.1978); E. Borchard, supra, at 298; J. Moore, 6A Moore's Federal Practice P57.08[4], at 57-46 to 57-47 (1983). The Declaratory Judgment Act explicitly recognizes this possibility when it authorizes the use of a declaratory judgment "whether or not further relief is or could be sought." 28 U.S.C. § 2201. Indeed, in most declaratory judgment actions, as in the instant case, the declaratory judgment would terminate, or sharply reduce, the possibility of future litigation only if it were decided in favor of one party, but would leave issues unresolved were the opposite result reached. For example, the two seminal Supreme Court cases both involved disputes over whether an insurance policy covered the client or the incident in question. See Maryland Casualty Co. (auto insurer seeking declaration that an accident was not covered by the policy because the vehicle involved was not owned by the insured); Aetna Life Insurance Co. (Life and disability insurer seeking declaration that insured was not permanently disabled and therefore was no longer covered by policy because lapse in premium payments was not excused by disability). In these cases, a declaratory judgment in favor of the insurance company would terminate the entire dispute between the parties, while one in favor of the claimant would not. Unresolved issues might include whether an accident or death had actually taken place, the extent of the coverage under the policy, whether the claimant was a beneficiary or holder of the policy, the extent of the injuries suffered, etc.

Finally, declaratory judgments that decide only whether certain rights the plaintiffs claim exist (e.g., the right to have hatchery fish included in the allocable total and the right to protect the fishery from environmental degradation) are not inappropriate. Such declaratory judgents have been recognized by this court both long ago and recently. See, e.g., United States v. Adair (dispute over water rights in Oregon's Klamath Marsh Area); United States v. Montana, 604 F.2d 1162 (9th Cir.1979) (dispute over ownership of bed of river and over whether a tribe and a state have the right to regulate hunting and fishing within the boundaries of a reservation), rev'd on merits, 450 U.S. 544, 101 S. Ct. 1245, 67 L. Ed. 2d 493 (1981); Kimball v. Callahan, 493 F.2d 564 (9th Cir.) (dispute over whether Klamath Indians who withdrew from the tribe have the right to [15 ELR 20271] hunt, trap, and fish on ancestral reservation without state regulation), cert, denied, 419 U.S. 1019, 95 S. Ct. 491, 42 L. Ed. 2d 292 (1974); Crain v. First National Bank, 324 F.2d 532 (9th Cir.1963) (dispute over whether plaintiff Indians should be free from the restrictions of the Klamath Termination Act's provate trust provisions because they are unconstitutional); Maison v. Confederated Tribes, 314 F.2d 169 (9th Cir.) (dispute over whether Indians were entitled to fish without state regulation under the treaties involved in the instant dispute), cert. denied. 375 U.S. 829, 84 S. Ct. 73, 11 L. Ed. 2d 60 (1963); Pan American Petroleum Co. v. Chase National Bank, 83 F.2d 447 (9th Cir.1936) (dispute over whether a statute required an appraisal before a court-ordered public sale of an asset). They are final, 28 U.S.C. § 2201, and appellate jurisdiction to review rests on 28 U.S.C. § 1291. See Adair, 723 F.2d at 1397 ("Our jurisdiction [over the appeal of a declaratory judgment] rests on 28 U.S.C. § 1291 (1976).")

Because of these principles, the majority's dismissal of the appeal, its statement that the declaratory judgment did not dispose of all claims in the litigation, and its application of Rule54(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 1292(b) are misguided.

It is true that there is a functional similarity between the use of the declaratory judgment and the certification process envisioned by 28 U.S.C. § 1292(b). Each permits some things to be definitively settled before others are considered. This does not require, however, that one must replace the other. Section 1292(b), for example, affords the trial court more latitude than does the declaratory judgment because requests for the latter originate in the parties while the former involves a procedure that frequently originates with, and is fashioned by, the trial court. Also section 1292(b) certification can emerge from pretrial proceedings and summary judgment considerations. The fact that conventional rules of finality, which obviously have shaped the majority's response to this appeal, are controlling in the section 1292(b) setting does not mean that the explicit bestowal of finality on declaratory judgments by section 2201 has been repealed. Modern procedure is flexible. The fact that interrogatories, discovery orders, and depositions each advance the litigant's interest in learning the strengths and weakenesses of his opponent's case does not mean that all are one or that one absorbs the others. So it is here. Declaratory judgments must be administered as their structure dictates; the same is true of the section 1292(b) structure. Whether a declaratory judgment is proper turns on those matters previously discussed; whether section 1292(b) certification should be made by the district court and permitted by the court of appeals turns on different considerations. Despite their functional similarity they are structurally different. The majority has overlooked this.

The majority's reference to Rule 54(b) of the Federal Rules of Civil Procedure is also misguided. Rule 54(b) states that a final judgment on one or more, but not all, of the claims for relief in a suit is appealable only if the district court expressly states that there is no just reason for delaying the appeal. The Rule is applicable to declaratory judgments.For example, had the declaratory judgment of the trial court addressed only the hatchery issue and reserved judgment on the environmental issue, compliance with Rule 54(b) should have been required.

The situation in this case is different, however. Both issues were resolved by a final declaratory judgment. No other relief has been urged in Phase II of this litigation. It is true that the State is required to include hatchery fish in the treaty share pending final determination of the hatchery issue and that the pleading request all such further relief as may be appropriate. It is also true, as already indicated, that should we affirm the district court, or accept the view of the three judge panel, further litigation between the parties reasonably can be anticipated. It is also true, however, that presently we cannot perceive the precise outlines of that litigation. Its shadowy shape, sometimes denominated Phase, III, broodingly lurks ahead; but it lacks the clear focus that makes invocation of Rule 54(b) necessary. Perhaps, contrary to my expectations, no future litigation procedurally linked to this case will occur. It is possible for there to be no Phase III. See 506 F. Supp. at 202 n. 57 (because the State has pledged to abide by any adverse ruling in a declaratory judgment, further litigation may not be necessary). In any event, Rule 54(b) is inapplicable to this appeal.

At first blush our decision in Curlott v. Campbell, 598 F.2d 1175 (9th Cir.1979), might appear inconsistent with the position taken by this dissent. That is not the case. The difference is that in Curlott, as in Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 96 S. Ct. 1202, 47 L. Ed. 2d 435 (1976), the plaintiff obtained only a partial summary judgment but not a declaratory judgment. Here the issue is whether a declaratory judgment, which disposed of the only two issues presently framed by the parties and before the district court, is final and appealable. Much of the confusion that characterizes the majority's opinion arises from the fact that the district court employed the summary judgment process in rendering its declaratory judgment. That the district court did so, however, is of no consequence.³ In Curlott six different grounds to overturn an agency's action were asserted while the disposition, the finality of which was in question, responded to only two in a partial manner. 598 F.2d at 1177 & n.2. Here such specific relief as might be involved, were we to accept jurisdiction, other than the duty to include the hatchery fish in making the treaty allocation, has neither been formulated nor requested other than in general terms. The only relief so formulated and requested is embodied in the declaratory judgment from which this appeal has been taken.

Once more it must be acknowledged that it is not possible to say that acceptance and disposition of this appeal would terminate this litigation. Very likely it will not. However, that litigation cannot be organized and planned prior to the resolution of the hatchery and environmental degradation issues. That was not the case in either Curlott or Liberty Mutual Insurance Co. In both the plaintiffs without difficulty could fashion the relief requested prior to a determination of liability. Under the circumstances, viewing the district court's order in either case as a valid declaratory judgment was inappropriate. No ligitimate purpose would have been served in either case by permitting appeal from a partial summary judgment.

To read Liberty Mutual Insurance Co. as foreclosing resort to declaratory judgment when relief in addition to such judgment is requested is to ignore the express language of 28 U.S.C. § 2201. It explicitly states that a declaratory judgment "may," not "shall," be obtained "whether or not further relief is or could be sought." It must be repeated that in Liberty Mutual Insurance Co. no declaratory judgment was entered by the district court, only a partial summary judgment which, when questioned concerning appellate jurisdiction, counsel belatedly suggested should be considered a declaratory judgment. The Supreme Court quite properly rejected this [15 ELR 20272] suggestion and said, "Had respondents sought only a declaratory judgment, and no other form of relief, we would of course have a different case." 424 U.S. at 742, 96 S. Ct. at 1206 (emphasis in original). And it would have been a different case indeed. To turn this quite understandable dictum into a command contrary to the explicit language of the statute accords a power to such utterances of the Supreme Court that it makes no claim to possess.

Moreover, the Court does not regard itself as controlled by such dictum. For example, in Fishing Vessel the Court did not condition its review of certain implementing decision pertaining to United States v. Washington, 459 F. Supp. 1020 (W.D.Wash.1974-1978), on the absence of requests for additional relief with respect to the allocation issue. Had it been inclined to do so it would have insisted that both the hatchery and environmental degradation issues be resolved and appropriate relief afforded prior to its appellate review because both issues pertain to the means by which the mandated sharing of fish could be protected and made secure. That is, both issues concern remedies, identified, but not resolved, by the district court prior to the Supreme Court's review in Fishing Vessel.

The accompaniment of a request for a declaratory judgment with a request for injunctive relief also does not affect the normal applicable of 28 U.S.C. § 2201. The issue remains whether the district court abused its discretion in entering a final declaratory judgment. For example, in Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S. Ct. 1917, 48 L. Ed. 2d 450 (1976), the plaintiffs sought a declaratory judgment that the extension of certain tax benefits to hospitals that refused to treat indigents was unlawful and an injunction prohibiting that extension. The district court entered the requested declaratory judgment but its opinion did not address specifically the requested injunctive relief. 370 F. Supp. 325 (D.D.C.1973). The circuit court reversed, 506 F.2d 1278 (D.C.Cir.1974), and the Supreme Court, in effect, affirmed the circuit court's result on the ground that plaintiffs lacked standing.The Court did not rely on Liberty Mutual Insurance Co. either to inquire about the status of the requested injunctive relief or to establish the absence of an appealable order.

Nor did the Court refrain from reviewing the district court's declaratory judgment in Zurcher v. Stanford Daily, 436 U.S. 547, 98 S. Ct. 1970, 56 L. Ed. 2d 525 (1978), even though the district court had declined to act definitively with respect to a plea for injunctive relief. See 353 F. Supp. 124, 136 (N.D.Cal.1972). The failure either to grant or deny definitively was based, as was the district court's failure to grant injunctive relief with respect to the environmental degradation issue in this case, 506 F. Supp. at 202 n. 57, on the belief that declaratory judgment alone would induce the proper behavior. The district court in each case, however, retained the discretion to provide injunctive relief in the future. Liberty Mutual Insurance Co. did not preclude appellate review in Zurcher nor should it be interpreted to do so in this case.⁴

Any such interpretation of Liberty Mutual Insurance Co. would lead to anomolous results. To illustrate, a request for a declaratory judgment that A has X rights against B which is rejected by the district court is reviewable even when an injunction was requested. The denial of the right eliminated the need for the injunction. It matters not whether the district court explicitly denied the injunction. Had the declaratory judgment accorded A the X rights against B and issued an injunction securing those rights no question of finality would exist.To deprive such a declaratory judgment of finality merely because the injunction has not been issued, perhaps for reasons consistent with the purpose of the declaratory judgment, is to insulate this type of result from appellate review while other possible results are so subject. There is no logic to such an approach. It is contrary to 28 U.S.C. § 2201 and, as an unintended consequence, would place in the hands of the district courts a means of insulating controversial declaratory judgments from appellate review.

Any doubts concerning the appealability of the declaratory judgment in this suit within this circuit should have been resolved by United States v. Adair. The Adair plaintiffs, like those in the instant suit, were the United States and an Indian tribe. The plaintiffs sought a declaratory judgment outlining the water rights of several groups of landowners in the Klamath Marsh area of south-central Oregon. The prayers for relief in the complaint contained prayers for declaratory judgment relief and "catch all" prayers for further relief.⁵ The district court issued a declaratory judgment that established the water rights of various groups of landowners in the case area. See United States v. Adair, 478 F. Supp. 336 (D.Or.1979). The district court retained jurisdiction over the suit to ensure that its declaratory judgment was followed, id. at 350, as did the district court in the instant suit.⁶ Quite properly, we [15 ELR 20273] took jurisdiction over the case under 28 U.S.C. § 1291. 723 F.2d at 1397. Had the doubts that have prevailed in this case been raised there, the proper answer would have been what this dissent has asserted.

MISCHIEF CAUSED BY THE MAJORITY'S DISPOSITION

The majority's rejection of jurisdiction over this appeal is particularly troubling in the context of this protracted litigation over fishing rights in the case area. The majority attempts to recast the district court's order to square the case with the actual holdings in Liberty Mutual and Curlott, noting that "labeling an order a declaratory judgment does not automatically make it so" and that "[t]he district court's opinion specifically contemplated that further relief proceedings would follow the issuance of a partial summary judgment." Majority Op., slip op. at 5401, at . In doing so, however, the majority ignores Judge Boldt's decision in Final Decision I. In granting declaratory relief, Judge Boldt specifically contemplated that further proceedings would follow to resolve the hatchery fish and environmental degradation issues. That decision is no different from the decision of the district court at the present stage of the litigation.

Throughout its fourteen year history, this litigation has followed a basic pattern. The district court would isolate a fundamental legal issue, the issue would be resolved by declaratory judgment, the district court's resolution would be appealed, a final decision would be reached, and the district court would implement that decision.⁷ To illustrate and to repeat, the district court first segregated the legal issue of whether the treaty guaranteed the Indian fisherman a specific share of the fishery. It then held that the treaty did guarantee the Indian fishermen a defined share of the resource. Final Decision 1. An appeal followed and this court affirmed. 520 F.2d 676 (9th Cir.1975), cert. denied, 423 U.S. 1086, 96 S. Ct. 877, 47 L. Ed. 2d 97 (1976). Thereafter, the Supreme Court essentially affirmed our decision in Fishing Vessel. The district court implemented the legal decision with various orders on issues that arose from the resolution of the legal issue. See, e.g., United States v. Washington (Compilation of Major Post-Trial Substantive Orders), 459 F. Supp. 1020 (W.D.Wash.1974-1978).

When the district court segregated the allocation issue for resolution it reversed the hatchery fish and environmental degradation issues for later resolution. Following the previous pattern, the district court by a declaratory judgment resolved both issues in favor of the treaty fishermen and the State appealed. The panel that originally heard the appeal accepted jurisdiction and affirmed the district court's resolution in part. The case, not merely the jurisdictional issue, was brought before this en banc panel of the court.

At this late date, the majority concludes that the pattern that has controlled this litigation from the outset is improper. It does not address the validity of the earlier use of the same pattern. Does it mean that the resolution of the allocation issue by the district court lacked finality? If so, what are the consequences? Does it remain unappealable? Must the last salmon be caught before finality is achieved? Put differently, can lack of finality join forces with mootness to bar forever appellate review of the district court's judgment in this litigation? Or can this be avoided by having all previous declaratory judgments subjected to the Rule 54(b) and section 1292(b) treatment the majority requires in this instance? I know not the answers to these questions. I am reluctant, of course, to believe that the majority intends nothing more than to delay the resolution of the issues of this case.

Finally, the majority's decision casts a serious cloud over the entire declaratory judgment process. Must all conceivable issues be resolved by a declaratory judgment before it is appealable? Under what circumstances can any imagined lack of finality be cured by invocation of Rule 54(b)? Or by section 1292(b)? Are the curative powers of each different? To ask these questions reveals the depth of the confusion into which we have been plunged by the majority. In my opinion, the district court was quite correct in characterizing the judgment as an appealable one. Instead of creating the confusion implied by the majority opinion, we should hold that where, as here, the district judge labels a declaratory judgment as final and appealable and where the proceedings have not yet focused on damages or remedies, the judgment is appealable under sections 2201 and 1291.

VI.

PROPER RESOLUTION OF THE MERITS

As the previous sections of this dissent indicate, I would reach the merits in this case. I would reinstate the panel's opinion, which holds that hatchery fish are to be included in the fishery to be allocated between treaty and nontreaty fishermen and that the State and the Tribes must act reasonably to preserve and enhance the fishery when their projects threaten it. 694 F.2d at 1389. By failing to resolve the important legal issues in this suit, the majority, at most, has impaired substantially the utility of the declaratory judgment and, at least, has delayed the resolution of the issues before us for months and possibly years.

1. See 506 F. Supp. at 189 & n. 2. These treaties bind the State of Washington under the Supremacy Clause, U.S. Const. art. VI, cl. 2, which imposes upon the states the obligation to observe and carry out the provisions of treaties of the United States. 506 F. Supp. at 206; United States v. Washington, 384 F. Supp. 312, 401 (W.D.Wash.1974).

n2The geographical region affected by the treaties comprises the State of Washington west of the Cascade Mountains and north of the Columbia River drainage area, including the American portion of the Puget Sound watershed, the watersheds of the Olympic Peninsula north of the Grays Harbor watershed, and the offshore waters adjacent to those areas ("the case area"). 506 F. Supp. at 190 n. 6.

3. A summary judgment can be issued in a declaratory judgment action. Rule 56, Fed.R.Civ.P.; J. Moore & J. Wicker, 6 Moore's Federal Practice P56.17[19] at 56-841 (1982) ("[T]here is no doubt as to the applicability of a summary judgment procedure to a proceeding for declaratory relief."); C. Wright, A. Miller & M. Kane, 10A Federal Practice and Procedure § 2678 at 753-54 (1983) ("Summary judgment is as available in [declaratory judgment] actions as in any others."); see, e.g., California v. United States, 438 U.S. 645, 98 S. Ct. 2985, 57 L. Ed. 2d 1018 (1978); Rhodes v. Republic Nat'l Life Ins. Co., 501 F.2d 1213 (9th Cir.1974), cert. denied, 420 U.S. 928, 95 S. Ct. 1126, 43 L. Ed. 2d 398 (1975); McCarthy v. Preferred Risk Mut. Ins. Co., 454 F.2d 393 (9th Cir.1972).

4. The Supreme Court has indicated in other cases that a district court's failure to grant or definitively deny a request for injunctive relief does not affect the appealability of a declaratory judgment. In Carey v. Wynn, 439 U.S. 8, 99 S. Ct. 49, 58 L. Ed. 2d 7 (1978), the Court held that a declaratory judgment accompanied by a denial of injunctive relief "at this time," 449 F. Supp. 1302, 1331 (N.D.Ill.1978), was appealable to a court of appeals, but was not directly appealable to the Supreme Court under 28 U.S.C. § 1253. In Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476, 103 S. Ct. 2517, 76 L. Ed. 2d 733 (1983), the Court accepted an appeal from the court of appeals when the district court issued a declaratory judgment and stated that "no injunctive order will issue at this time," 483 F. Supp. 679, 701 (W.D.Mo.1980).

5. Assuming that non-declaratory judgment relief was requested in the instant suit, see Tribal Statement of Declaratory and Injunctive Relief, E.R. 207, the prayers for relief in the Adair case also asked for relief other than a declaratory judgment. In the instant case, the United States' catch all prayer for relief requested:

That this Court shape relief to safeguard the rights thus secured by prescribing remedies to ensure protection of the affected Plaintiff Treaty Tribes' fishing rights in all activities of the Defendant State of Washington and its agencies which have a significant adverse impact upon the fish populations and habitats to which their treaty rights apply.

(United States') Supplemental Complaint for Declaratory Judgment (United States v. Washington) at 7, E.R. 179. The Tribes' catch all prayer for relief in the instant case requested:

That this Court shape relief to safeguard the rights thus declared by providing remedies and mechanisms to insure protection of treaty fishing rights in all activities of the Defendant State of Washington and its agencies which have a significant impact upon fish populations and habitats supplying Indian treaty rights.

(Tribes') Amended and Supplemental Complaint for Declaratory Judgment (United States v. Washington) at 7, E.R. 172.

In Adair, the United States prayers for non-declaratory judgment relief requested:

6. That this Court enjoin the use of water by the defendants in connection with any such lands except in accordance with the rights and priorities declared herein.

7. That this Court appoint a Special Master to receive evidence in this case and make findings of fact and recommendations as to the law.

8. That, upon final determination of the rights to the use of water of the United States and the rights to the use of water appurtenant to the lands described above the presently owned by defendants, this Court appoint a water master to administer the Upper Williamson River system in accordance with the orders and directives of this Court.

9. That this Court afford the plaintiff such other and further relief as may be proper.

(United States') Complaint (United States v. Adair) at 9-10. The Tribe's prayer for non-declaratory judgment relief in Adair requested:

3. That the defendants are enjoined and restrained from diverting, appropriating, or otherwise using the waver in question so as to impair the Tribe's interest.

4. That upon a final determination of the rights to the use of the water by the parties to this suit, this Court appoint a water master to administer the Upper Williamson River system in accordance with the orders and directives of this Court.

5. That this Court retain jurisdiction over this matter to ensure the fair and equitable enforcement of this decree.

6. That this Court afford the Klamath Tribe costs of suit and such other and further relief as this Court may deem proper.

(Klamath Indian Tribe's) First Amended Complaint in Intervention (United States v. Adair) at 6-7.

6. Similarly, in Maison v. Confederated Tribes, which interpreted the treaties in dispute in the instant case, the district court granted a declaratory judgment and retained jurisdiction to issue injunctive relief if necessary. 314 F.2d at 171. This court took jurisdiction of the suit under 28 U.S.C. § 1291. 314 F.2d at 170.

7. This pattern is not unique to this lawsuit. In the numerous Indian treaty interpretation disputes that have reached this court, we have sanctioned the district court's implementation of the declaratory judgment device and have accepted appellate jurisdiction. See Adair; Montana, 604 F.2d 1162; Kimball; Maison. The Supreme Court has acquiesced in this practice. See Fishing Vessel; Montana, 450 U.S. 544, 101 S. Ct. 1245, 67 L. Ed. 2d 493. The majority's disposition ignores this well-established pattern.