Memorandum on WA v. Fishing Vessel Association

Memorandum on Wa vs. Fishing Vessel Association (aka. The Puget Sound Gillnet Association – PSGA)

Law offices

Moriarty, Mikkelborg, Broz, Wells & Fryer

3300 Seattle-first National Bank Building
(206) 623 5890

Charles P. Moriarty Jr.             Charles E. Yates
Jacos A. Mikkeleborg             Douglas. Duncan
Richard F. Broz             Pamela A. Okano
Robert 0. Wells. Jr.             Alexander Wirt
Douglas M. Fryer             ——————
R. Thomas Olson             Alec W. Brindle
Robert J. Walerius             Partner On Leave


TO: Puget Sound Gillnetters Association
FROM: Charles E. Yates
DATE: July 11, 1979

RE: U.S. Supreme Court Decision

This memorandum is an attempt to summarize the decision of the Supreme Court and to suggest the direction which litigation will take in the future in this matter.

The Court utilized 25 of a 37 page opinion to uphold the decision of Judge Boldt that the Indians obtained a "class right to a share of fish, rather than a personal right to attempt to land fish." The bottom line of this language is that the tribes are entitled to a portion of the harvestable fish that would normally pass through their usual and accustomed fishing grounds. But the Court concluded its analysis of this entitlement with the following interesting language:

"Nor may treaty fishermen rely on their exclusive right of access to the reservation to destroy the rights of other ‘citizens of the territory.’ Both sides have a right secured by treaty to take a fair share of the available fish. That, we think, is what the parties to the treaty intended when they secured to the Indians the right of taking fish in common with other citizens."

This language clearly establishes that the nontreaty fishermen obtained through the treaty a "right."

In analyzing the share that the tribes are entitled to, the Court indicated that:

"An 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 be satisfied by a lesser amount."

The Court went on to say:

"it bares repeating, however, that the 50% figure imposes a maximum but not a minimum allocation … The central principal here must be that Indian treaty rights to a natural resource that once was thoroughly and exclusively exploited by the Indians secures so much as, but no more than, is necessary to provide the Indians with a livelihood – that is to say, a moderate living."

The Court required that salmon taken by tribes either on reservation, at locations other than usual and accustomed sites, or for ceremonial and subsistence purposes, must be counted as a part of the tribal share.

The Court interestingly seems to have established a privileged class of "citizens of the territory." It describes these citizens as "the beneficiaries of the Indian’s reciprocal grant of lands in the treaty as well as the persons expressly named in the treaties and sharing fishing rights with the Indians. Accordingly, they may justifiably be treated differently from nontreaty fishermen who are not citizens of Washington."

The court concludes its discussion about the procedure to be followed in allocating fish with the following:

"Accordingly, any fish (1) taken in Washington waters or in United States waters off the coast of Washington and (2) taken from runs of fish that pass through the Indians’ usual and accustomed fishing grounds and (3) taken by either members of the Indian tribes that are parties to this litigation, on the one hand, or by nonIndian citizens of Washington, on the other hand, shall count against that party’s respective share of the fish."

Summarizing the Court’s criteria for the allocation of fish we see the following scheme:

From the total of salmon passing through tribal usual and accustomed fishing grounds there is subtracted:

  1. A. Escapement needs;
  2. B. Harvest by nontreaty fishermen who are not citizens of Washington.

The remaining fish are to be equally divided between treaty fishermen and Washington citizens.

  1. The court shall determine the number of fish required by each tribe to provide a moderate living. The tribal fishermen shall be entitled to the lesser of the Indian totals contained in 1 and 2 above.

The Court did not directly rule on the authority of the District Court to move against the Association and their members but in a footnote did express the view that the Association and their members are "probably subject to injunction." The Court further stated:

"But in any case, these individuals and groups are citizens of the State of Washington, which was a party to the relevant proceedings, and ‘they, in their public right as citizens of the State were represented by the State in those proceedings, and like it, were bound by the judgment.’"

This language is more ambiguous than it appears on its face because it suggests that citizenship of the state of Washington is an element required to be established before showing that a Court order is binding on an individual. And the fact that the Court placed it in a footnote as opposed to the body of the decision suggests that it is something less than an official proclamation by the Court.

Finally the Court undertook the most important step of all when it stated:

"The judgments of the Court of Appeals for the Ninth Circuit, the District Court for the Western District of Washington, and the Supreme Court of the State of Washington are vacated and the respective causes are remanded to those courts for further proceedings not inconsistent with this opinion…

This language vacates all of the orders that were at issue before the U.S. Supreme Court including the underlying decision of Judge Boldt, his five year plan, and his injunction for the 1978 and subsequent season.

The United States and the Tribes must now make a decision about how they wish to proceed for this Fall season. if they rely upon the State of Washington to allocate the fish, then fishing which is contrary to the State’s allocative orders will be subject to review in the State courts and subject to scrutiny under the decision of PSGA v. Moos.

If the United States chooses to seek a federal determination and enforcement of the treaty shares, then a hearing must be conducted which examines the criteria established by the court.

In summary, the Supreme Court flatly rejected our contention that the tribes are not entitled to any specific share of the fish. The Court, albeit circuitously, did accept our alternative argument that a 50% allocation as a matter of law is erroneous. The Court required the determination of allocations in the future to be based upon equitable principals and placed a limit upon tribal fishing.

In the future the tribes are going to have to make the determination as a tribe whether they intend to fish under their tribal rights or their rights as citizens. If they fish as citizens, they forfeit their tribal rights and thereby increase the nontreaty share. This is critical for two reasons. First, a court is going to determine the extent to which the tribes require the total of the 50% maximum they are entitled to. Secondly, the hatchery fish issue is open, and should it be decided in favor of nontreaty fishermen, the Indians’ share will be reduced to less than what they harvested preBoldt.

I am enclosing a copy of the decision for your information. Also enclosed is a letter from Philip Lacovara which is self explanatory.


PIF Note:

However, as things turned out, the hatchery fish issue was NOT decided in favor of non-treaty commercial fishermen. Rather, in the final count, the tribal hatchery share was deducted from the non-treaty share AFTER the run began to return to terminal area in front of the hatcheries and a guesstimate could be made on the actual run size.

The effect on the was to not only reduce further their share, but to reduce the value of the salmon they were permitted to catch. This was particularly true of the fall Chum salmon harvests, once a financial mainstay of the fleet. Prior to the Boldt Decision, nontreaty commercial fishermen never ventured into terminal areas unless the run size was far greater than forecast.

Chum salmon, like other species of salmon, begin to ‘turn’ as the approach their river or hatchery of origin. With each major coloring change, the value decreases, until they become essentially worthless.

High value silver-bright chums look like this:

From this beautiful coloring, they begin to develop longitudinal dark stripes – eventually turning nearly black; grow long fang-like teeth – thus the nickname ‘dog’ salmon; the females’ eggs sacks loosen until the eggs spill out when handled; their flesh becomes pale-white and soft and; in some areas, at some times, their flesh develops spots which are soft with the consistency of dough and unfit for human consumption – neither cooked nor smoked.

The once bright salmon which fetched a price for the nontreaty commercial fishermen at the buyer in the neighborhood of $1 to $1.50 a pound, became $.50 to $.25 a pound. Many years the buyers refused to even buy these ‘dark chums’, leaving the nontreaty commercial fishermens’ share to return to the hatcheries and be caught by the Tribes, who stripped the valuable eggs and left the worthless carcasses to rot on the beach or on river banks. Nontreaty commercial fishermen were forbidden by law from that practice, and, in any case, it was impractical and labor intensive in large volumes (many hundreds of fish) on small boats.

Non-treaty commercial fishermen saw their revenues rapidly decline in the fall fisheries (after suffering an irreversible loss of their sockeye fishery on the Frazer River stocks), eventhough they had a theoretical equal share. After a three decades of these and other reductions, non-treaty commercial fishermen lost what was once a profit generating profession, which became a “hobby”, and then lost even that. Nontreaty commercial fishermen were forced to find other work, often non-existant in their rural areas, fled to cities selling their homes, boats and businesses for whatever they could get, and too frequently losing wives and families to divorce.

The irony is that the Tribes, once hoping to become wealthy and after all these legal victories, largely turned away from fish to casinos.

In a further irony, the Trollers – who laughed at the PSGA and the gillnet fleet for losing to the Tribes, claiming they were a historic fleet and so immune to these decisions, and the Seiners – who joined in the laughter, claiming the Tribes could not catch their allocated share – soon learned otherwise and fled the fishery, some for Alaska, some for the unemployment lines. Still later, as the War on Natural Resource Harvesters continued, the non-treaty commercial fishermen where also joined by Timber Workers and Farmers.

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