Fairfax Countywide Citizens Association v. Fairfax County, VA Brief for Plaintiff-Appellees and Cross-Appellants

    IN THE

SUPREME COURT
OF THE

UNITED STATES

OCTOBER TERM, 1978 
No______

State of W ashington, Department of Fisheries 
and Donald W. M oos, Its Director,

Petitioners,

United States of America,
Respondents,

M akah T ribe, Lower Elwha Band of Clallam 
T ribe, Port Gamble Band of Clallam T ribe, 
Suquamish T ribe, Lummi T ribe, N ooksack T ribe, 
and Swinomish Indian T ribal Community,

Intervenors-Respondents.

State of W ashington, Department of Fisheries,
Petitioners,

vs.
United States of America, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI
TO THE

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT

Slade Gorton,
Attorney General,

Edward B. M ackie,
Deputy Attorney General,

James M. Johnson,
Sr. Asst. Attorney General,

Counsel for Petitioners.
Office and Post Office Address: Temple of Justice 

Olympia, Washington 98504 (206) 753-6207

S T A T E  P R I N T I N G  P L A N T O L Y M P I A ,  W A S H I N G T O N



IN THE

SUPREME COURT
OF THE

UNITED STATES

OCTOBER TERM, 1978 
No. ____

State of W ashington, Department of Fisheries 
and Donald W. M oos, Its Director,

Petitioners,
vs.

United States of America,
Respondents,

M akah T ribe, Lower Elwha Band of Clallam 
T ribe, Port Gamble Band of Clallam T ribe, 
Suquamish T ribe, Lummi T ribe, N ooksack T ribe, 
and Swinomish Indian T ribal Community,

Intervenors-Respondents.

State of W ashington, Department of Fisheries,
Petitioners,

vs.
United States of America, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI
TO THE

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT

Slade Gorton,
Attorney General,

Edward B. M ackie,
Deputy Attorney General,

James M. Johnson,
Sr. Asst. Attorney General,

Counsel for Petitioners.
Office and Post Office Address: Temple of Justice 

Olympia, Washington 98504 (206) 753-6207





Ill

TABLE OF CONTENTS
Page

OPINIONS BELOW
A. United States v. Washington, 573 F.2d 1123 (9th Cir.

April 24, 1978)....................................................................  2
B. United States u. Washington, 573 F.2d 1118 (9th Cir.

April 24, 1978)..................................................................  3
QUESTIONS PRESENTED..................................................  4
CONSTITUTIONAL PROVISIONS, TREATIES, STAT­

UTES INVOLVED..............................................................  6
STATEMENT OF FAC TS....................................................  8
REASONS FOR GRANTING W R IT ................................. 12

A. Introduction..............  12
B. Conflict in treaty interpretation between the state

court and lower federal courts................................  20 -
C. The decisions of the United States District Court

and the United States Court of Appeals for the 
Ninth Circuit conflict with prior decisions of this 
Court interpreting the treaties in question............  23

D. Court of Appeals has sanctioned a departure from
the accepted and usual course of judicial 
proceedings ..................................................................  26

E. International Fisheries Case .................................  28
CONCLUSION................................... ....................................... 36
Index to Appendix..................................................................  39



IV

TABLE OF AUTHORITIES

Table of Cases
Page

Department of Game v. Puyallup Tribe, 414 U.S. 44 (1973) 
[Puyallup I I ] ............................. ............... 13,15, 20, 24, 26, 30

International Fishery Case — United States v. Washington,
573 F.2d 1118 (9th Cir.
April 24, 1978) ..............................................3, 4,18,19, 28, 34

Lone Wolf v. Hitchcock, 187 U.S. 553 (1903)..................  33
Monominee Tribe v. United States, 391 U.S. 404 

(1965)................................................................................... 20,33
Puget Sound Gillnetters Assn. v. Moos, 88 Wn.2d 677, 565 

P.2d 1151 (1977).......................................................... 21,22,23
Puyallup I — Puyallup Tribe v. Department of Game, 381 

U.S. 392 (1968)......................................................14, 20, 24, 25
Puyallun II — Department of Game v. Puyallup Tribe, 414 

U.S. 44 (1973)............................................ 13,14,15, 20, 26, 30
Puyallup III — Puyallup Tribe v. Department of Game, 433 

U.S. 165 (1977)......................................................14,20,24,26
Puyallup Tribe v. Department of Game, 391 U.S. 392 (1968) 

[Puyallup I ] ................................................................ 14, 20, 25
Puyallup Tribe v. Department of Game, 433 U.S. 165 (1977) 

[Puyallup III] ........................................................14, 20, 24, 26
Tulee v. Washington, 315 U.S. 681 (1942)........................ 8,24
United States v. Washington, 384 F.Supp. 312 (W.D. Wa. 

1974), 520 F.2d 676 (9th Cir. 1975), cert. den. 423 
U.S. 1086 (1976)..........................2, 4, 15,16,17, 25, 28, 29, 35

United States v. Washington, 573 F.2d 1118 (9th Cir. April 
24, 1978) [International Fishery Case] . . .  3, 4, 18,19, 28, 34

United States v. Washington, 573 F.2d 1123 (9th Cir. April 
24, 1978) [Washington Fishery C ase]............2,15, 16, 21, 25

United States v. Winans, 198 U.S. 371 (1905) ................  23
Washington Fishery Case — United States v. Washington,

573 F.2d 1123 (9th Cir. April 24,
1978) ................................................ 2, 15,16, 21, 25



TABLE OF AUTHORITIES (cont.)
Table of Cases

Page

Washington State Commercial Passenger Fishing Vessel
Assn. v. Tollefson, 87 Wn.2d 417, 553 P.2d 113 
(1977)......................................................................................  22

Z & F Assets Realization Corp. v. Hull, 311 U.S. 470 
(1941)......................................................................................  31

Constitutional Provisions 
United States Constitution

Article I I ................................................................................  6
Article VI ........................    6
Amendment V ......................................................................  6
Amendment X ......................................................................  6
Amendment XIV ................................................................  6'

Treaties
United States
10 Stat. 1132 (Treaty of Medicine C reek )........................  7
10 Stat. 927 (Treaty of Point E lliott)................................  7
12 Stat. 933 (Treaty of Point No Point)..........................7, 12
12 Stat. 939 (Treaty with the Makahs, Treaty of Neah 

Bay) .......................................................................................  7
12 Stat. 951 (Treaty with the Yakimas)............................... 7
12 Stat. 971 (Treaty with the Quinaeilts, Treaty of 

Olympia)................................................................................  7
50 Stat. 1355, supplemented by 8 T.I.A.S. 3687, 8 U.S.T. 

1057 (Convention with Canada)..........................3, 19, 28, 33

Statutes
16 USC 776-776 f (Sockeye Salmon or Pink Salmon Fishing 

Act of 1947)....................................................................7,19, 33
16 USC 1801-1882 (Fishery Conservation and Management 

Act of 1976)..........................................................................7, 11
Washington State

RCW 75.40.060......................................................................  7

Miscellaneous
25 CFR 256 (B) (Federal Register, Vol. 42, #122, Friday, 

June 23, 1978)...................................................................... 35



IN THE

SUPREME COURT
OF THE

UNITED STATES

OCTOBER TERM, 1978 
No. ____

State of W ashington, Department of Fisheries 
and Donald W. M oos, Its Director,

Petitioners,
vs.

United States of America,
Respondents,

M akah T ribe, Lower Elwha Band of Clallam 
T ribe, Port Gamble Band of Clallam T ribe, 
Suquamish T ribe, Lummi T ribe, N ooksack T ribe, 
and Swinomish Indian T ribal Community,

Interuenors-Respondents.

State of W ashington, Department of Fisheries,
Petitioners,

vs.
United States of America, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI
TO THE

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT

Petitioners Washington State, Washington 
State Department of Fisheries and the Director 
of that Department, hereinafter referred to as 
the “ State,” pray that a writ of certiorari issue 
to review judgments and opinions of the United



2

States Court of Appeals for the Ninth Circuit 
entered in these proceedings on April 24, 1978.

OPINIONS BELOW
The petitioner has, pursuant to Rule 23.5, 

joined two decisions by the Ninth Circuit which 
involve identical or closely related questions on 
the nature and extent of Indian treaty fishing 
rights.

A. United States v. Washington, 573 F. 2d 
1123 (9th Cir. April 24, 1978) (hereinafter refer­
red to as “Washington fishery case.” )

In 1977, the United States and numerous 
Indian tribes requested the District Court to 
order that specific numbers of fish be guaranteed 
to treaty Indians (approximately 50% by run, 
species and area). They also requested the Court 
to assume direct control by injunction of the 
fishing activities of non-Indian commercial 
net fishermen with enforcement by citation of 
violators for contempt of court. The District 
Court in the exercise of its continuing jurisdiction 
in United States v. Washington, 384 F.Supp. 
312 (W.D. Wa. 1974), 520 F.2d 676 (9th Cir. 1975), 
cert. den. 423 U.S. 1086 (1976), granted those 
requests in an unreported series of orders cul­
minating in a Salmon Management Plan (App. 
61-77), Findings of Fact and Conclusions of 
Law Re Enforcement of 1977 Fisheries Orders 
(App. 79-87) a Memorandum and Preliminary 
Injunction a Preliminary Injunction Re En­



3

forcement of 1977 Fisheries, (App. 35-60), a Pre­
liminary Injunction Order (App. 93-100), and a 
Preliminary Injunction Staying State Court 
(App. 101-104).

The petitioners’ appeals of those orders were 
consolidated by the Circuit Court of Appeals 
with mandamus actions brought by nonparty 
fishing organizations1 whose members’ activ­
ities were enjoined by orders of the United States 
District Court. The United States Court of Appeals 
on April 24, 1978, entered a decision affirming 
the District Court (573 F. 2d 1123 (1978)) (App. 
1-28).

B. United States v. Washington, 573 F. 2d 
1118 (9th Cir. April 24,1978) (hereinafter referred 
to as the “ International Fishery case.” )

The United States on behalf of certain In­
dian tribes, and some tribes as intervenors, re­
quested in mid-1975 that treaty Indians be 
granted special fishing seasons in waters under 
the regulation of the International Pacific 
Salmon Fisheries Commission. That Commis­
sion (hereinafter referred to as the “ IPSFC” or 
“ Commission” ) was established by a 1937 Con­
vention between United States and Canada, rati­
fied by the Senate and proclaimed August 4,1937' 
(50 Stat. 1355, supplemented by 8 T.I.A.S. 3867,

R espite requests, no non-Indian fishing group organizations have 
been permitted intervention by the United States District Court judge 
handling this litigation, although one group was granted intervention by 
another judge.



4

8 U.S.T. 1057). The plaintiffs and intervenors 
also sought a court order that treaty Indians are 
entitled to 50% of the American share of those 
runs. The United States District Court for West­
ern Washington, acting under its continuing 
jurisdiction in United States v. Washington, 
supra, conducted hearings and entered orders 
which culminated in Supplemental Findings of 
Fact and Conclusions of Law, Decree and In­
junction (App. 105-20). The District Court decided 
that treaty Indians do not have to comply with 
certain regulations of the IPSFC and that they 
are entitled to 50% of the American harvest of 
those fish runs.

Petitioners appealed the 1975 decision (No. 
75-2835). An amending order and one establish­
ing another special Indian fishery were also 
appealed later. (No. 76-1042). The two were con­
solidated. Notwithstanding the request to expe­
dite the appeals, these matters were not heard 
by the court of appeals until January of 1978. 
An opinion was rendered on April 24, 1978, dis­
missing both appeals as moot. (573 F.2d 1118 
(1978) (App. 29-34).

QUESTIONS PRESENTED

(1) Do the Indian treaties require an alloca­
tion of 50% of the harvestable fish to treaty In­
dian fishermen?

(2) Do the Indian treaties mandate an alio-



5

cation of harvestable fish between Indian and 
non-Indian fishermen when they both have an 
opportunity to participate in the fishery on a 
nondiscriminatory basis?

(3) Does the district court’s equitable power 
in conjunction with treaty provisions permit an 
allocation of the fishery resource between Indian 
and non-Indian fishermen when they both have 
an opportunity to participate in the fishery on a 
nondiscriminatory basis? If so, has the court 
exceeded those powers by its specific 50% alloca­
tion formula and implementing orders?

(4) Does an allocation of a specific number 
or percentage of fish to treaty Indians, who are 
citizens, and a reduction or prohibition on com­
mercial fishing by other citizens constitute a 
violation of the Constitutional doctrines of equal 
protection or the prohibition against granting 
special privileges and immunities.

(5) If the Indian treaties mandate an allo­
cation of the harvestable fish to Indians, does 
the United States/Canada Convention of 1937 
supersede that requirement for the fish harvest 
which is subject to the jurisdiction of the Inter­
national Pacific Salmon Fisheries Commission?

(6) Do the Indian treaties, or can the United 
States District Court, grant Indians an immun­
ity from the enforcement of IPSFC regulations?

(7) Can the United States District Court 
assume control of the management of the fishery 
resource within Washington state waters?



6

CONSTITUTIONAL PROVISIONS, TREATIES, 
STATUTES INVOLVED

Constitutional provisions, treaties and stat­
utes involved are as follows and are reproduced 
in Appendix A, infra, pp. A-128 to A-167.

Constitutional Provisions of the United States

Appendix
Page

(a) Article II, Section 2, Powers of
the P resident.............................................  A-128
(Section 2 Clause 2) (Presidential powers 
with the Advice and Consent of the Sen­
ate to make Treaties)

(b) Article VI, Debts, Supremacy
Oath, #2, Supremacy.................................. A-129

(c) Amendment V, Due Process . . . .  A-129
(d) Amendment X, Powers Reserved

to States or People ..................................  A-130
(e) Amendment XIV, Citizenship

rights not to be Abridged ........................ A-130

TREATIES

Six treaties were entered into by the United 
States with various Indian tribes and bands 
living in the State of Washington in 1854 and 
1855. Those six treaties each contain a similar 
fishing provisions and only those provisions are 
set forth in the appendix.



7

Appendix
Page

(a) Treaty of Medicine Creek, 10
Stat. 1132...................................................... A-131

(b) Treaty of Point Elliott, 12 Stat.
927.................................................................  A-131

(c) Treaty of Point No Point, 12 Stat.
933.................................................................  A-132

(d) Treaty with the Makahs (Treaty
of Neah Bay), 12 Stat. 939........................  A-132

(e) Treaty with the Quinaielts
(Treaty of Olympia), 12 Stat. 971..............A-133

(f) Treaty with the Yakimas, 12 Stat.
951.................................................................  A-133
Convention with Canada 1930 and 1956 

Supplement. 50 Stat. 1355, 8 TIAS
3867, 8 UST 1057.................................  A-135-

158
STATUTORY PROVISIONS

United States Code, Title 16:
Section 776 - 776f (Sockeye Salmon 

or Pink Salmon Fishing Act of 
1947) .................................................  A-159-61

Section 1801 - 1882 (Fishery Con­
servation and management Act 
of 1976) ............................................ A-162-67

Revised Code of Washington

RCW 75.40.060 Fraser River sockeye 
salm on fishery—Adoption, en­
forcement of convention author­
ized ...................................................  A-167



8

STATEMENT OF FACTS

In anticipation of an increased influx of 
settlers in the Pacific Northwest a series of 
treaties were executed in 1854 and 1855 with 
Indians in what are now the states of Washing­
ton, Oregon and Idaho. At that time the Indian 
settlements were widely dispersed and fish was 
a major source of food supply with the Indian 
fishery being primarily for subsistence. While 
the treaties contemplated the creation of reser­
vations, they also provided for the continuation 
of Indian fishing, each of the treaties adopting 
essentially similar language.

* * * the right of taking fish at usual and 
accustomed grounds and stations is further 
secured to said Indians in common with all 
citizens of the territory, it
Until the invention and perfection of the 

canning process in the late 19th Century, com­
mercial fishing enterprises in Washington were 
rudimentary and mostly unsuccessful. The ad­
vent of the canning process gave rise to the devel­
opment of large-scale commercial fisheries which 
have been and now are open to all citizens, both 
Indians and non-Indians. The Indians use es­
sentially the same fishing gear as non-Indians 
and have the same economic incentives to partici­
pate in the fishery. They are not, however, 
charged license fees nor do they pay landing 
taxes.

!t Tulee v. Washington, 315 U.S. 681 (1942).



9

The five species of salmon: chinook, Coho, 
Chum, Pink and Sockeye, spawn in fresh water 
and migrate to the ocean where they reach ma­
turity. Each salmon subsequently seeks to return 
to its river of origin to reproduce the next gener­
ation of its species. In Washington these fish 
are produced naturally in 15 major river systems 
and their tributaries, and 239 small independent 
streams. In addition, the state augments natural 
runs with hatchery produced fish and in some 
rivers and streams the state has created runs of 
fish which did not historically exist. In addition 
to the fish which are spawned in Washington 
rivers, a substantial Washington fishery occurs 
on Canadian Fraser River fish runs which are 
subject to the jurisdiction of the International 
Pacific Salmon Fisheries Commission.

For many years the State of Washington has 
regulated commercial and sports fishing to con­
serve the salmon species and provide for an 
orderly fishery. The IPSFC has similarly exer­
cised regulatory control over the harvest of 
Fraser River salmon in the waters of the State of 
Washington and the Province of British Colum­
bia since the ratification of the United States- 
Canada treaty in 1937.

The United States District Court in this 
proceeding originally decreed that the Indian 
treaties mandated an opportunity on the part 
of treaty Indians to harvest 50% of the fish runs. 
This 50% formula actually provides substantially



10

in excess of 50% of the fishery to treaty Indians. 
The court determined that the Indian harvest 
of fish for ceremonial or subsistence purposes, 
plus that within the boundaries of an Indian 
reservation, are first subtracted from the total 
fish available for harvest before dividing the 
remainder into equal shares. Finally, the court 
has declared that when Indians harvest fish out­
side of their usual and accustomed grounds, 
those harvests are included in the non-Indian 
share.

The District Court has subsequently con­
verted the “ opportunity” to a “guarantee,” 
having allocated specific numbers of fish by 
species in areas for the Indian fishery. Full de­
tails of such specific allocation by number and 
species are set forth in the Appendix, pp. 43 
to 53. In Bellingham Bay, for example, 
Chinook salmon allocation is: Indians - 47,200, 
non-Indians - 31,300 (the court assumed that 
10,600 Chinook were harvested in sports and 
ocean troll fishery). The division for Skagit Bay 
is: Indians - 6,600; non-Indians - 2,800 (the court 
assumed a non-Indian harvest of 1,800 in the 
sports and ocean troll fisheries). South Sound 
Coho: Indians - 231,000; non-Indians - 154,000 
(the court estimated 100,000 to have been har­
vested in the sports and ocean troll fishery).

In the foregoing allocation of a guaranteed 
fish harvest for Indians reference has been made 
to the ocean fisheries. In 1976 Congress enacted



11

the Fisheries Conservation and Management 
Act (PL 94-265; 90 Stat. 331, 16 USC 1801-82). 
Under that act the United States government 
has assumed preemptive jurisdiction to regulate 
all fisheries in the zone commencing 3 miles off 
shore to 200 miles. It is within that fishing zone 
in which the United States is exercising pre­
emptive jurisdiction that a substantial portion 
of the ocean fishery occurs.

The District Court in implementing what it 
believed to be the mandatory allocation of the 
fishery resource between Indians and non- In­
dians has essentially assumed responsibility for 
the management of the fishery resource in the 
case area. The court has authorized various 
tribes to enforce fishing regulations in areas 
outside of their reservations. It has also required 
that approval be obtained from Indian tribes for 
some state fish management decisions. The state 
courts have been enjoined from proceedidng 
with litigation which has been filed in those 
courts. The District Court has effectively re­
quired special Indian fishing seasons in IPFSC 
waters which are not authorized by that inter­
national commission. The court has also, in order 
to enforce its orders, invoked contempt powers 
against nonparties and has effectively forced 
the federal agencies to undertake actions which 
are beyond their normal duties and responsibili­
ties.



12

REASONS FOR GRANTING WRIT 

A. Introduction

Petitioners are currently caught between 
conflicting decisions of the highest appellate 
court of the state and the lower federal courts 
involving treaty Indian fishing. We have de­
scribed the conflict and have sought review of 
the state court decisions in No. 77-983. The in­
stant petition presents the opportunity to review 
jointly2 those conflicting state and federal court 
decisions which can only be resolved by this 
court.

The fundamental question in this litigation, 
which has had substantial social, economic and 
governmental repercussions, is the meaning of 
the treaty provision:

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, and of erecting 
temporary houses for the purpose of curing 
together with the privilege of hunting, 
gathering roots and berries, * * * on open 
and unclaimed lands. Provided however, 
that they shall not take shellfish from any 
beds staked or cultivated by citizens. (Article 
4, Treaty of Point-no-Point, 12 Stat. 933)

2If this petition and our petition in No. 77-983 are granted and consoli­
dated for hearing.



13

The Circuit Court has affirmed the District 
Court conclusion that that provision mandates 
50% plus3 of the harvestable fish be allocated to 
Indians. Virtually all of the other issues in this 
litigation essentially have involved the imple­
mentation of that allocation and its impact upon 
management of the fishery resource by the State 
of Washington and the International Pacific 
Salmon Fisheries Commission, and the substan­
tial impact upon non-Indian fishermen and 
others.

Not only is there a substantial conflict be­
tween the state and federal court decisions, but 
there are also conflicts between those federal 
court decisions and prior decisions by this 
court. While there have been a series of decisions 
by this Court defining treaty Indian fishing 
rights under the treaty language in question, 
none of those decisions have required an alloca­
tion of the resource between Indians and non- 
Indians when both groups have been permitted 
access to the fishery resource on a nondiscrimin- 
atory basis.

The Department o f Game v. Puyallup Tribe, 
414 U.S. 44 (1973) (hereinafter referred to as 
“Puyallup II” ) and Puyallup Tribe v. Depart-

3The court’s allocation provides that the Indians are entitled to (1) a 
reservation catch, (2) ceremonial harvest, and (3) a subsistence fishery, 
all three in an amount determined by the Indians. All three come off the 
top; that is, they are subtracted from the total before dividing into 50% 
shares. Furthermore, the court has decreed that fish caught by Indians 
outside their usual and accustomed grounds count as part of the non- 
Indian share.



14

merit of Game 433 U.S. 165 (1977) (hereinafter 
referred to as “Puyallup III” ) decisions made 
reference to an allocation. However, in those 
cases, this Court indicated that the state could 
not close an Indian fishery while permitting 
non-Indians to continue to fish unless there had 
been an allocation of the fishery resource. The 
allocation reference in Puyallup II, supra, ad­
dressed the question of whether a closure of In­
dian fishing while permitting the continuation 
of non-Indian fishing constituted a discrimina­
tory closure. See, Puyallup Tribe v. Department 
of Game, 391 U.S. 392 (1968), hereinafter re­
ferred to as “Puyallup I.” This is in distinct con­
trast to the present decree which requires that 
marine areas which are open and available on 
a nondiscriminatory basis for fishing by Indian 
and non-Indian groups to be closed to non- 
Indian commercial fishing so that the Indians 
will harvest 50% of the resource.

In the instant proceeding, the United States 
District Court ruled that a 50% allocation is re­
quired by the treaty as a matter of law. That 
court has consistently4 applied the 50% formula 
in disparate factual situations. The “Washing­
ton Fisheries case,” supra, involves the Indian 
fishery in Washington waters on primarily Wash­
ington origin stocks, both hatchery and natural.

4A  slight adjust for some areas and species was made in 1977, after 
an oral request by a United States Attorney communicating a Presiden­
tial Task Force’s concern that a lesser share for that year would be more 
equitable.



15

And the same 50% formula has been applied by 
the District Court to the Indian fishery in Wash­
ington waters under IPSFC jurisdiction on 
stocks bound for Canada’s Fraser River though 
only a few tribes have treaty rights in those 
waters. This is “ International Fishery case,” 
supra.5

The court of appeals affirmed the allocation 
and implementing management system6 7 in the 
“Washington Fisheries case,” supra, on the basis 
that it was an exercise of equitable discretion by 
the district court (App. 11) yet the District 
Court had adopted the 50% sharing as a matter 
of law, mandated by the treaty language.1

In contrast, this Court implicitly rejected 
the concept that the treaty mandated any spe­
cific allocation in Puyallup II, supra, stating:

What formula should be employed is not for
for us to propose. There are many variables—

5In each of those cases, prior to the court’s orders, the Indians had 
had the opportunity to participate along with non-Indians in the fishery- 
harvest, on a nondiscriminatory basis and would continue to have that 
opportunity even in the absence of such orders.

6In that case, the federal district court determined the numbers of 
fish produced by area of origin and set specific numbers of fish the In­
dian fishermen were to be provided, by area and species. (App. 43-53) Non- 
Indians were enjoined from net fishing in those areas unless authorized 
by a “Hotline” (recorded telephone message). (App. 97-98) The non-Indians 
were not authorized to fish where such fishing could result in treaty 
Indian fishery catching fewer than the numbers guaranteed the Indians 
by the court’s orders.

7 8The District Court stated,
“By dictionary definition and as intended and used in the Indian 

treaties and in this decision ‘in common with’ means sharing equally 
the opportunity to take fish as ‘usual and accustomed grounds and sta­
tions;’ * * * ” U.S. v. Washington, 384 Fed. Supp. 312, 343 1974).



16

the number of nets, the number of steelhead 
that can be caught with nets, the places 
where nets can be placed, the length of the 
net season, the frequency during the season 
when the nets may be used.

Supra, at 49.
Notwithstanding this specific statement by this
Court, the District Court,8 and the Circuit Court
in affirming, failed to consider those or any other
variables which this Court deemed relevant in
Puyallup II, supra. The Court of Appeals stated:

Comparison between the number of treaty 
and nontreaty fishers, or the quantity of fish 
each category has an opportunity to take, are 
simply irrelevant under the law. 
(“ Washington Fishery case” , supra, at 1128)
In the “Washington Fishery case,” supra, 

two of the three Court of Appeals Judges indi­
cated doubt that 50% is the proper formula.

It has not been clearly demonstrated that the 
rule of fifty percent apportionment is a neces­
sary and proper implementation of those 
treaty rights, (pp. 1135-1136) (Judge Kennedy 
concurring quoted with approval by Judge 
Wallace in his separate concurring opinion. 
App. 28 and 28)
The two concurring judges, despite believ­

ing that the allocation was not justified, felt 
they were bound by the earlier decision in United 
States v. Washington, supra. The instant proceed­

6The District Court stated,
“By dictionary definition and as intended and used in the Indian 

treaties and in this decision ‘in common with’ means sharing equally the 
opportunity to take fish as ‘usual and accustomed grounds and stations;’
* * * * (U.S. v. Washington, 384 Fed. Supp. 312, 343 1974).



17

ing is a continuation of that proceeding which this 
Court has not considered on the merits. It must 
be emphasized that the current decision in United 
States v. Washington, supra, here sought to be 
reviewed differs from the original judgment. This 
is dramatically evidenced by the characteriza­
tions of that decision made to this Court by the 
United States when review was sought of the 
original decree in United States v. Washington, 
supra.

The state anticipated that the District
Court’s original decree might be transformed
from an “ opportunity” to harvest up to 50% to
a “guarantee” of a specific number of harvested
fish. In opposing the petition for certiorari of the
State, the United States assured this Court that
the District Court was not guaranteeing any
particular harvest to the tribes:

It should be clear that the 50 percent guide­
line is not a guarantee of any harvest. It is 
simply a readible understandable measure 
of what portion of the harvest the tribes as 
a group may rightfully insist they should 
have a chance to take in varying circum­
stances. The share worked out for specific 
runs in particular years for specific tribes 
will vary from the guideline, in accordance 
with extent of Indian fishing capability, the 
size of the run, the degree of Indian and non- 
Indian interest in the run, and the give and 
take of cooperative operations.

Page 20, United States’ brief in opposition to
certiorari, Nos. 75-588, 592, 705 supra, emphasis
in original.



18

The District Court’s present implementation of 
its decision (at the request of the United States 
Government) does not comply with these assur­
ances. The district court’s implementation in the 
Washington Fishery case is a guarantee to the 
Indians of a specific number of fish from each 
run. See App. 43 to 53 and pp. 10 of this peti­
tion. Furthermore, despite the fact that many 
treaty Indians may choose not to fish a particu­
lar run (particularly true of the International 
fishery), the court has not made any meaning­
ful changes in its 50% formula.

Among the decisions included in this peti­
tion is the International Fisheries case, supra. 
That decision has extended the District Court’s 
50% formula to fisheries which are subject to the 
jurisdiction of the International Pacific Salmon 
Fisheries Commission. These actions by the 
court have provoked an objection from the Ca­
nadian government and the Commission.

The dollar amount of the fishery impacted 
by these orders is in the 10’s of millions of dol­
lars. Substantial numbers of non-Indian citizens 
are being restricted in their fishing activities
while neighbors who are descendants from mem­
bers of bands, tribes9 or groups party to the
treaties are granted special additional fishing 
times in addition to those they share with their 
non-Indian neighbors.

9The federal district court has extended these special treaty rights 
to members of groups which are not recognized as tribes by the United 
States Government and thus have no approved role. It requires a show­
ing of blood quanta for such rights.



19

It is thus ironic that the Court of Appeals, 
in dismissing the appeals in the International 
Fisheries case, supra, admitted:

It must be quite apparent that the case ten­
dered for our decision here would require us to 
address procedural questions that touch 
upon fundamental principles controlling the 
delicate balance of state and federal power. 
Beyond those questions we would further be 
required to interpret substantive rights of 
the parties under United States v. Washing­
ton that are of great significance to the fish­
ing industry in the Northwest.
This extension of the 50% formula to the

commission waters is in clear contrast to the
position asserted to this Court by the United
States in their reply to the state’s petition for
certiorari in 75-588, where, at page 33, it was
stated:

Both courts below specifically recognized the 
supremacy of IPSFC regulations. If any 
subsequent actions interfere with the regu­
lations of the Commission, they are not 
sanctioned by the decision.
The treaty with Canada requires both coun­

tries to enforce the com m ission regulations 
against “ every national and inhabitant.” (Art. 
IX of the Convention, App. 135-58) The implement­
ing federal enactment (16 U.S.C. § 776, Appendix 
160) makes it unlawful for any person to 
violate any regulation of the commission. There 
is no exemption for Indians in either the con­
vention or in the federal implementing act. There



20

is no legislation which can be read in pari 
materia to create an exemption as was present 
in Menominee Tribe v. United States, 391 U.S. 
404 (1965). Thus, there is no legal justification 
for special Indian entitlement to fish under the 
jurisdiction of the IPFSC. The fishery in the 
commission marine waters is available on an 
open, nondiscriminatory basis to both Indians 
and non-Indians. It is a violation of the treaty 
with Canada for the District Court to have inter- 
ferred in the operations of that fishery. Further, 
a district court does not have jurisdiction to inter­
fere with the conduct of international relations.

B. Conflict in treaty interpretation be­
tween the state court and lower fed­
eral courts.

There is a conflict between the District Court, 
the Ninth Circuit Court of Appeals and the Wash­
ington State Supreme court (the state’s highest 
court) justifying the issuance of a Writ of Certio­
rari.

The Washington Supreme Court has inter­
preted the treaty language in three decisions 
which have been reviewed by this Court (Puyal­
lup I, II, and III, supra.) The petitioners have 
sought review of two more recent decisions now 
pending in No. 77-983.

These recent two state court decisions are in 
direct conflict with the decisions of the circuit 
and district courts. The conflict was clearly rec­



21

ognized by the federal district court:
In Puget Sound Gillnetters Association y. 
Moos, the Washington Supreme Court said 
that the Director of Fisheries may not “allo­
cate fish among competing claimants for

gurposes other than conservation,” and that 
e may not “ allocate fish to treaty Indians 
or to non-Indians.” Those rulings prevent 

defendants from complying with earlier de­
crees of this Court * * *

Findings of Fact and Conclusions of Law Re: 
Enforcement of 1977 Fisheries Orders dated Sep­
tember 27, 1977, App. 81.

The holdings of the Washington Supreme 
Court are contrary to the affirmed decision 
and decree of this court on the federal ques­
tions of the nature and scope of the treaty 
fishing rights of Indian tribes and the obli­
gations of the State toward those rights, 
which decision and decree are binding upon 
the defendants in this case, * * *

Memorandum Order and Preliminary Injunc­
tion dated August 31, 1977, App. 38.

Similarly the circuit court stated:
The state and the non-Indian fish catchers 

argue that to treat Indian fish catchers dif­
ferently from non-Indians in allocating fish­
ing opportunities and determining fishing 
regulations is a patent violation of basic 
equal protection principles. The Washington 
state courts have accepted this argument. 
See Washington State Commercial Passen­
ger Fishing Vessel Association v. Tollefson, 
89 Wash.2d 276, 571 P.2d 1373 (1977).

and then proceeded to reject that construction of
the treaties. Washington Fisheries case, supra at
1127 and 1128 (App. 6).



22

The conflict has also been recognized by the 
Washington Supreme Court which also refused 
to accede to the view of the lower federal courts:

We are asked to accede to the federal dis­
trict court’s interpretation of the Medicine 
Creek and other Indian treaties, whereby it 
found that treaty Indians have the right to 
50 percent of the salmon runs, plus fish for 
ceremonial and subsistence purposes. It ap­
pears that, if this ruling is given effect, non- 
Indian fishermen will he required to refrain 
from fishing until the Indians have har­
vested 50 percent of the fish runs, plus an 
undetermined additional number of fish.

Being cited no authority for the proposi­
tion that federal district courts have exclu­
sive jurisdiction to construe Indian treaties 
—treaties which affect important interests 
of the state—we adhere to our own interpre­
tation of the treaty. (Puget Sound Gillnetters 
Assn. u. Moos, 88 Wn.2d 677, 691, 565 P.2d 
1151 (1977)).
While refusing to concur with the lower fed­

eral courts, the Washington Supreme Court rec­
ognized that:

The resolution of this question cannot come 
from this court or from the federal district 
court, if no definitive authority upon the 
subject exists. It must come from a higher 
court whose decisions are binding upon both 
of us. In short, this dilemma can be resolved 
only by the Supreme Court of the United 
States, * * *

Washington State Commercial Passenger Fish­
ing Vessel Assn. v. Tollefson, 87 Wn.2d 417, 421, 
553 P.2d 113 (1977).



23

In an opinion, two state supreme court jus­
tices, in referring to a hope that this issue will 
be resolved by this Court, stated:

Such an interpretation by the ultimate legal 
authority is the only way the current legal, 
economic and social conflict can be resolved. 
Most assuredly, this unresolved clash be­
tween federal and state judicial systems and 
between economic and social interests can­
not be permitted to continue. Too much is at 
stake in all areas.

Puget Sound Gillnetters Assn. v. Moos, supra, 
at 698.

C. The decisions of the United States 
District Court and the United States 
Court of Appeals for the Ninth Cir­
cuit conflict with prior decisions of 
this Court interpreting the treaties 
in question.

This Court has considered the same treaty 
language on several occasions. In United States 
u. Winans, 198 U.S. 371, a private landowner 
could not prohibit access by a treaty Indian to 
his usual and accustomed grounds and stations. 
The treaty lanuage, while guaranteeing access 
to the usual and accustomed fishing places, did 
not prohibit the state from nondiscriminatory 
regulation:

“Nor does it (the treaty) restrain the state 
unreasonably, if at all, in the regulation of 
the right. It only fixes in the land such ease­
ments as enables the right to be exercised.”



24

Winans, supra, at 384.
Subsequently in Tulee v. Washington, 315 

U.S. 681 (1942), while holding that a treaty In­
dian could not be compelled to pay a general rev­
enue license fee in order to exercise his treaty- 
protected right to fish, this court reasserted:

* * * the treaty leaves the state with 
power to impose on Indians equally with 
others such restrictions of a purely regula­
tory nature concerning the time and manner 
of fishing outside the reservation as are nec­
essary for the conservation of fish.

Tulee, supra, at 684.
Nondiscriminatory state regulation of fish­

ing activities, including those by treaty Indians, 
was again approved in Puyallup Tribe v. Depart­
ment of Game, 391 U.S. 392 (1968) (.Puyallup I):

“ The manner of fishing, the size of the take, 
the restriction of commercial fishing, and 
the like may be regulated by the State in the 
interest of conservation, provided the regu­
lation meets appropriate standards and does 
not discriminate against the Indians.”

Supra, at 398, and
* * * any ultimate findings on the conser­
vation issue must also cover the issue^of 
equal protection implicit in the phrase “ in 
common with” * * *

Supra, at 403.
In Puyallup III, supra (footnote 16), this 

Court recognized that all citizens of Washington, 
both Indian and non-Indian, have fishing rights. 
Since Indians and non-Indians have common



25

rights, it should follow that neither group may 
be discriminated against in regulating fishing.

The federal Court’s orders are inconsistent 
with the above decisions.10 The district court has 
mandated a pattern of regulation which dis­
criminates between Indian and non-Indian net 
fishermen, limiting or prohibiting fishing by the 
non-Indians while expressly permitting fishing 
by Indian fishermen.

As we have shown, this Court has consist­
ently upheld the applicability of the state’s non- 
discriminatory regulation to treaty Indian fish­
ing. Yet the “ Washington fishery case” orders 
remove the Indian fishery harvest from the 
state’s jurisdiction. (See Memorandum Order 
and Preliminary Injunction, pp. 17-18, entitled 
“ Removal of Treaty Allocation from State Exer­
cise of Jurisdiction,” (App. 54-57) and paragraph 
K prohibiting the application of conservation 
measures to Indians where the nontreaty share 
decreed by the District Court has been exceeded. 
(App. 59).

The United States District Court has also 
continued to include within the fish allocation 
those fish propagated by the hatchery systems 
of the State of Washington. Such inclusion is in 
conflict with the concurring opinion in Puyallup

10The district court made the following reference to the court’s de­
cision in Puyallup I, supra: “ If the seeming nonsequitur be the law, it 
certainly is deserving of more specific legal analysis and justifications 
than it has ever had in any United States Supreme Court decision.” 
United States v. Washington, 384 F.Supp. 312 at 337 (1974).



26

II, supra, wherein three justices of this Court 
clearly indicated that the treaty right does not 
extend to hatchery fish. 414 U.S. at 49. It is also 
in conflict with the implementation of Puyallup 
II in Puyallup III in which the allocation ex­
cluded hatchery fish.

D. The Court of Appeals has sanctioned 
a departure from the accepted and 
usual course of judicial proceedings.

Based upon the 50% ruling,11 the federal dis­
trict court has adopted extraordinary measures 
including:

1. Removing the state from its traditional 
role as manager and regulator of its fisheries.

2. Enjoining state courts from proceeding 
with any actions filed with them which might af­
fect the federal district court’s implementation of 
its treaty interpretation.

3. Enjoining all (nonparty) citizens of the 
state from commercial net fishing unless author­
ized by orders of the federal district court. This 
approval is granted only through a recorded tele­
phone message. Only treaty Indians are exempt.

4. Interferring in the regulatory system of 
an international Commission established by a 
treaty between this Nation and Canada (which 
treaty also gave the word of this nation to en­
force compliance with IPSFC regulations.)

11 Characterized by the circuit court as a discretionary determination.



27

5. Three years after the judgment in the orig­
inal action, the court amended its decree to ex­
pand the case area to apply the same special 
Indian allocations to areas which were neither 
within the pretrial pleadings nor the post-trial, 
but pre-judgment, relief requested.

The number of extraordinary rulings, modi­
fications, and even orders granted without hear­
ing, are too numerous to list. We will, in the in­
terest of brevity, only discuss one of the foregoing 
list: removal of the state as the traditional man­
ager of the fishery resource.

The district court adopted a Salmon Man­
agement Plan (App. 61-77) which was appealed 
to, but not discussed by, the circuit court of ap­
peals in the Washington fishery case, supra. That 
Plan included, but was not limited to (1) requir­
ing state agencies to obtain agreement from the 
tribes for fishery enhancement planning includ­
ing where facilities will be constructed and where 
fish would be planted from the hatchery pro­
ram. (App. 68); (2) requiring agreements with 
tribes as to escapement goals. This is, fish avail­
able for spawning; (3) providing that where the 
court’s allocation is not achieved it is to be made 
up in following years; and (4) a previously estab­
lished Fisheries Advisory Board composed of 
one representative of the state, one from the 
tribes, and the court’s “ fishery expert” shall re­
solve disputes on subjects addressed by the plan 
(which encompasses nearly all elements of sal­



28

mon management). The order provides “ No 
party may object to the jurisdiction of the board 
as to matters addressed by this plan.” (App. 
76).

Thus, the court has not only taken control 
and management of the salmon resources from 
the agency lawfully charged with that function 
but has established a nonjudicial body to which 
much of that authority has been delegated.

E. International Fisheries Case 
The IPSFC (International Fishery) case is 

so extraordinary, it deserves separate discus­
sion. The original decision of the district court 
and circuit court appeared to recognize that the 
IPSFC Convention (50 Stat. 1355), implement­
ing federal statutes (16 USC 776) and IPSFC- 
regulations all took precedence over any special 
rights the Indians might enjoy under the treaties 
in question. The district court observed:

* * * this court believes that treaty right 
tribes fishing in waters under the jurisdic­
tion of the International Pacific Salmon 
Fisheries Commission must comply with 
regulations of the Commission.

United States u. Washington, supra, 384 F.Supp.
at 411.
and the circuit court declared:

Congress sufficiently indicated its intent that 
all persons, including Indians, be subject to 
Commission regulation.

United States u. Washington, supra, 520 F.2d at 
690.



29

The state petitioners in United States u. 
Washington, supra, (#75-588) indicated to this 
Court concern that the federal court actions 
would interfere with IPSFC regulation.

In response, the United States assured this 
Court that there was no problem with the IPSFC 
fishery:

The decision below presents no issue re­
garding that Convention requiring further 
review. Both the district court (384 F.Supp. 
at 411) and the court of appeals (Pet. App. 
49-50) specifically held that all persons, in­
cluding treaty protected Indians, are subject. 
to the regulations of the IPSFC. Thus there 
is no question of the decree impinging upon 
the authority of the IPSFC.

* * * As we have demonstrated, both 
courts below specifically recognized the 
supremacy of IPSFC regulations. If any 
subsequent actions interfere with the regu­
lations of the commission they are not sanc­
tioned by the decision under review.

Brief of the United States in Opposition (to peti­
tion for writ of certiorari) in United States v. 
Washington, Nos. 75-588, pp. 21-22.

Notwithstanding those assurances, the 
United States and some of the tribes moved the 
district court for orders establishing special In­
dian fisheries in violation of the then existing 
IPSFC regulations and for orders specifically 
applying the 50% allocation to the United States’ 
share of the IPSFC harvest. The relief was 
granted, permitting fisheries by Indians on 
IPSFC stocks at times and in manners prohib­



30

ited by IPSFC regulations and Indian fisheries 
during periods closed by IPSFC regulations.12 
Specific findings and conclusions were entered 
that Indians are entitled to 50% of the United 
States’ share.13

The Stevens treaties between the United 
States and the various Indian tribes, as in­
terpreted by this Court and the Ninth Circuit 
Court of Appeals, preempted State control of 
fishing within Washington territorial waters 
in Puget Sound, including Fraser River sock- 
eye and pink salmon, and made it the su-

Ereme law of the land that the Indians must 
e allowed the opportunity to take up to fifty 
per cent of the fish that may be legally har­

vested in Washington territorial waters.
Conclusion of Law 63 from the Order proposed
by the United States and signed by the district
court.

This constitutes a reversal of position by the 
United States and the district court. It conflicts 
with the prior assurances made by the United 
States to this Court.

Not only has the district court changed its 
decision but in doing so has acted in excess of

12The Indians allowed to fish included those from at least one tribe 
without established usual and accustomed fishing areas in IPSFC waters.

13This allocation did not take into account the factors this court indi­
cated were relevant in Puyallup II, supra. The district court made a find­
ing that Indians would fish 108 vessels and non-Indians had fished 1,466 
vessels in IPSFC waters. If the Indians had taken 50% and the run had 
been as predicted, the average Indian boat catch would have been nearly 
18,000 salmon which would have a value of nearly $100,000. The runs, 
however, were smaller than predicted. The Indians did not catch the 
share alloted.



31

its jurisdiction in interferring with the affairs 
of the International Commission.14

The district court here was consciously inter­
fering in the decision-making process of the Com­
mission. The court included several stays in a 
series of orders to give time to persuade the 
IPSFC to change its regulations. The court di­
rected the petitioner, Director of Fisheries, in his 
capacity as an International Commissioner, to 
“promptly take action, whatever seems appro­
priate in the occasion, to press the matter before 
the Commission.” (Transcript of 11 July, quoting 
the judge.)

Similarly, the court, when ordering that one 
tribe be allowed to disregard Commission clos­
ures as implemented by state regulations, de­
layed the entry of the order so the state could ask 
the IPSFC to permit such a fishery (TR 6 August, 
pp. 130, 133-34). After the IPSFC refused, the 
court entered the order (App. 125-27).

The district court’s interference with the 
regulations of the IPSFC did have international

14See: Z & F  Assets Realization Corp. v. Hull, 311 U.S. 470 (1941) wherein 
this Court rejected an indirect attempt to interfere with an international 
commission created by treaty between the United States and Germany 
to rule upon war claims by United States citizens. Justice Black stated: 

And the fact that petitions sought to challenge the Commission’s 
power by proceedings against the Secretaries of State and the Treas­
ury, and not by direct suit against the Commission, is immaterial. If 
petitioners cannot directly attack the Commission in the courts, 
neither can they, in the absence of congressional consent, assail 
the propriety of its awards through the expedient of suits against 
others charged with responsibility for executing the final determi­
nation of the Commission.

Supra, at 491.



32

ramifications.
Two protests to the Secretary of State were 

filed by the International Commission (Joint 
Exhibit 10, Joint Exhibit 11). An objecting letter 
from the government of Canada to the govern­
ment of the United States was also sent. (It was 
agreed by the United States that this letter would 
be provided as an exhibit. Transcript of 6 August 
1975, p. 10-11. It was never provided.)

One state department official advised the 
court by affidavit that the State Department had 
declined to implement one portion of the court’s 
order:

No action was taken * * * with regard 
to the further provision pertaining to a five 
day fishery, since the Department of State 
concluded that provision was contrary to the 
United States obligation and policies under 
the Salmon Convention in that it was incon­
sistent with the basic regulatory scheme 
elaborated by the Commission.
The injunction was then amended to delete 

this five-day fishery. However, the conclusion is 
inescapable that the order of the district court 
was involving that court impermissibly in inter­
national relations and violating United States 
obligations.

Additionally Donald L. McKernan, who 
headed the United States’ delegation in bilateral 
negotiations with Canada as Chief Negotiator, 
testified as to possible disruption of the regula­
tory system of the IPSFC (Transcript of 11 July, 
1975, p. 136).



33

When asked whether such disruption of the 
IPSFC could cause problems in the international 
negotiations with Canada (which extended to 
all shared fisheries, not just those under the 
IPSFC), his answer was “yes.” (Transcript of 11 
July 1975, p. 137).

Even if the Indian treaties mandate a special 
allocation of fish, the IPSFC treaty and imple­
menting statutes have superseded the require­
ment of such an allocation on fisheries which 
are subject to the jurisdiction of the IPSFC.

There is no doubt Congress has that author­
ity. Menominee Tribe u. United States, 391 U.S. 
404, 412 (1965); Lone Wolf u. Hitchcock, 187 U.S. 
553, 565-67 (1903). The existence of the Indian 
treaties were known to Congress when the IPSFC 
treaties were approved and the implementing 
statutes passed.

The treaty with Canada obligates the United 
States to enforce “ Commission” regulations 
against “every national or inhabitant, vessel or 
boat * * * that engages in fishing.” (Con­
vention, Article IX, App. 145). No exception is 
provided for Indians. The implementing federal 
legislation makes it unlawful for “ any person to 
engage in fishing for sockeye salmon or pink 
salmon in convention waters in violation * * * 
of any regulation of the Commission.” (16 USC # 
776, App. 160). Again, there is no exemption for 
Indians.



34

The IPSFC treaty and implementing stat­
utes were passed nearly forty years before the 
federal district court’s determination that the 
Indian trety language mandated 50% of the 
fish runs.

The interpretation urged here, that treaty 
Indians are fully subject to IPSFC regulation 
and are not entitled to a special fishery but may 
participate pursuant to those nondiscrimina- 
tory IPSFC regulations, was the interpretation 
of all parties until the actions of the federal dis­
trict court in 1975.

It is necessary to answer the Court of Ap­
peals conclusion that the matters relating to the 
IPSFC concern only the 1975 season and there­
fore the appeals are moot:

The 1975 season has now passed and neither 
the order of the United States District Court 
nor that of the state court has current force.

(International Fisheries case, supra, at 1121.) 
(App. 29-33).

These questions are not moot. The important 
aspects of the district court’s orders as they re­
late to the IPSFC are still in effect. The decision 
that Indians are entitled to 50% of the United 
States’ share and the requirement petitioner 
Fisheries Director work toward implementation 
in his capacity as a United States IPSFC Com­
missioner continues effective. A letter of instruc­
tion was sent from United States State Depart­
ment to the United States Commissioners. That



35

letter of instructions is reprinted in the Appen­
dix 168-69. It notes United States regulatory rec­
ommendations:

* * * with the aim of accommodating the
United States u. Washington decision re­
garding Indian treaty rights * * * You
are instructed to support it at the next Com­
mission meeting and vote for its adoption 
into final regulations for 1977.
Further, the tribe allowed a special exemp­

tion from state regulations implementing IPSFC 
regulations still claims that exemption. (Other 
tribes have now asserted they enjoy the same 
exemption.)

The United States Department of Interior 
has adopted regulations providing for special 
treaty Indian fisheries in IPSFC waters. 25 CFR 
256 (B) found in Federal Register, Vol. 43, # 122, 
Friday, June 23, 1978.
The express purpose recited therein is to imple­
ment treaty fishing rights “affirmed in United 
States v. Washington ”

Clearly the International Fishery decision 
continues to be effective, though implementa­
tion has taken different forms from year to year.



36

CONCLUSION

The Petitioner State of Washington finds 
itself in the extraordinary position of being con­
fronted with conflicting decrees by the highest 
state appellate court and the lower federal courts 
with reference to fishing by treaty Indians. This 
conflict can only be resolved by this Court.

The lower federal court decisions have, some 
120 years after the execution of the treaties, con­
cluded for the first time that the fishery resource 
in the State of Washington is to be divided 
“equally” between treaty fishermen and non­
treaty fishermen. The implementation of this 
extraordinary ruling has been transformed by 
the district court to a guarantee of specific 
numbers of fish by species and areas for Indian 
fishermen.

The implementation of this decision has 
had an adverse impact upon the citizens of the 
state and the basic authority of the state to 
manage and conserve its fishery resources. 
The court’s unprecedented expansion of Indian 
jurisdiction involving such concepts as self­
regulating tribes beyond the boundaries of the 
reservations and the interference with the In­
ternational Fisheries Commission, even indi­
vidually, would justify the exercise of jurisdic­
tion by this Court. The collective impact of these 
decisions literally demands review by this Court.



37

We, therefore, respectfully submit that the 
application for Writ of Certiorari be granted. 

D a t e d  this 20th day of July, 1978.

Respectfully submitted,

S l a d e  G o r t o n ,
Attorney General

E d w a r d  B. M a c k i e ,
Deputy Attorney General

J a m e s  J o h n s o n ,
Senior Assistant Attorney General

Attorneys for Petitioner



40

Constitutional Provisions
Page

United States
Article I I ......................................................................  128
Article V I ...............................................................................129
Amendment V .......................................................................129
Amendment X .......................................................................130
Amendment X I V ...................................................................131

Treaties
United States

10 Stat. 1132 (Treaty of Medicine Creek) ........................ 131
12 Stat. 927 (Treaty of Point E lliott)..............................132
12 Stat. 933 (Treaty of Point No P o in t)........................132
12 Stat. 939 (Treaty with the Makahs (Treaty of Neah 

B ay)).................................................................................. 132
12 Stat. 951 (Treaty with the Yakimas) ........................ 133
12 Stat. 971 (Treaty with the Quinaielts (Treaty of 

Olympia))...........................................................................133
Convention with Canada 1930 and 1956 Protocol 

Amending
50 Stat. 1355, 8 T.I.A.S. 3687, 8 U.S.T. 1057.. 135 

Statutes
16 USC 776 —

(Sockeye Salmon or Pink Salmon Fish Act of 1947) 159
16 USC 1801, 1811, 1812 —

(Fishery Conservation and Management Act of
1976)................................................................................. 162

Washington State
RCW 75.40.060.....................................................................  167

Miscellaneous
Letter dated March 16, 1977, from Rozanne L. Ridgway 

(Department of State) to Donald Moos (Director of 
Washington Department of Fisheries)............................168



A — 1

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT

Puget Sound Gillnetters Association et al.,
Petitioners,

v.

United States District Court for the W estern 
District of W ashington,

Respondent,
United States of America et al., Real Parties in 

Interest,
Columbia River Fishermen’s Protective Union, 

Inc., et al.,
Petitioners-Appellants,

v.

United States District Court for the District of 
Oregon,

Respondent,
and

United States of America et al., Real Parties in 
Interest,

Appellees.
United States of America et al.,

Plaintiffs-Appellees,
v.

State of W ashington et al.,
Defendants-Appellants.

Nos. 77-3129, 77-3208, 77-3209, 77-3654 and
77-3655.



United States Court of Appeals 
Ninth Circuit.
April 24, 1978.

Before Goodwin, W allace, and K ennedy,
Circuit Judges.

Goodwin, Circuit Judge:
These consolidated appeals are the latest in a 

series of efforts by agencies of the State of 
Washington and various associations of non-Indian 
fish catchers to overturn decisions of the District 
Courts of Oregon and of the Western District of 
Washington apportioning between treaty Indians 
and others the right to take fish. See United States 
u. Washington, 384 F.Supp. 312 (W.D. Wash. 1974), 
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); 
Sohappy u. Smith, 302 F.Supp. 899 (D.Or.1969); 
United States v. Oregon, 529 F.2d 570 (9th Cir. 
1976). The geographic areas coverd by these appeals 
are Puget Sound, the Washington coast south to and 
including Gray’s Harbor, and the Columbia River.

I BACKGROUND
Litigants reached an agreement concerning the 

Columbia River, and that agreement was incorporat­
ed in a final decree of the District Court, Order of 
February 28, 1977, United States v. Oregon. That 
case retains minor problems of enforcement.



A—3

Agencies of the State of Washington and various 
of its constituencies continue to attack the judgment 
in United States v. Washington. Accordingly, we will 
again set forth the treaty basis of that decision and 
reaffirm its validity. The state’s extraordinary 
machinations in resisting the decree have forced the 
district court to take over a large share of the 
management of the state’s fishery in order to enforce 
its decrees. Except for some desegregation cases (see 
Morgan v. Kerrigan, 530 F.2d 401 (1st Cir.), cert, 
denied sub nom. McDonough u. Morgan, 426 U.S. 
935, 96 S.Ct. 2649, 49 L.Ed.2d 386 (1976); Morgan 
v. McDonough, 540 F.2d 527 (1st Cir. 1976), cert, 
denied, 429 U.S. 1042, 97 S.Ct. 743, 50 L.Ed.2d 755 
(1977)), the district court has faced the most 
concerted official and private efforts to frustrate a 
decree of a federal court witnessed in this century. 
The challenged orders in this appeal must be 
reviewed by this court in the context of events forced 
by litigants who offered the court no reasonable 
choice.

When Europeans first came to the Northwest, 
they found it occupied by many bands of Indians, 
who together exercised superficial control over the 
entire territory. The Indians knew nothing of English 
land tenure, by they were destined to learn.

For most tribes living along Puget Sound, the 
Pacific Coast, or a major stream, the yearly runs of 
anadromous fish were central to their economies and 
their cultures. As settlement from the East increased



A—4

during the 1840’s and 1850’s, the white settlers 
created political pressure to limit Indian occupation 
to designated lands so that more land would be 
available to the settlers for enclosure and exclusive 
possession. Under instructions from the federal 
government, Governor Isaac Stevens of Washington 
Territory negotiated a series of treaties in 1854-55 
to achieve settlement goals.

The treaties followed a pattern, the Treaty of 
Medicine Creek, 10 Stat. 1132 (1854) being typical. 
In article II the Indians reserved to themselves 
certain lands for reservations, and in article III the 
government further guaranteed them the right to 
continue taking fish at their usual and accustomed 
sites off the reservation, in common with all citizens 
of the Territory. This court has previously construed 
these clauses in earlier chapters of this litigation. We 
held that article II reserved an exclusive right to fish 
on the reservation and that article III established 
something analogous to a cotenancy, with the tribes 
as one cotenant and all citizens of the Territory (and 
later of the state) as the other. United States v. 
Washington, 520 F.2d at 685, 690. It is crucial to 
remember that these treaties did not grant the tribes 
anything; rather, the tribes granted the United States 
a vast expanse of land, reserving to themselves 
certain interests in it and in its profits a prendre.1

'This reservation included customary uses outside the area ceded. See 
Seufert Brothers Co. v. United States, 249 U.S. 194, 39 S.Ct. 203, 63 L.Ed. 
555 (1919).



A—5

The negotiations and treaties show that the right to 
take fish was to the Indians one of the most 
important rights reserved.

The Supreme Court has recently indicated that 
tribal sovereignty continues as a necessary part of 
Indian law. In McClanahan v. Arizona State Tax 
Commission, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 
129 (1973), it overturned a state tax on income 
earned by a reservation Indian from reservation 
-sources. In doing so it noted that tribal sovereignty 
provides a backdrop against which treaties and 
statutes must be read. The Indian claim to 
sovereignty long predates that of the United States 
or of any state. Indians on reservations remain a 
separate people, exempted from many laws of the 
state within whose borders they live. 411 U.S. at 
172-73, 93 S.Ct. 1257. In Morton v. Mancari, 417 U.S. 
535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974), the Court 
upheld a hiring preference for Indians in Bureau of 
Indian Affairs positions. It noted that the preference 
was political, not racial, 417 U.S. at 553 n.24, 94 S.Ct. 
2474 given to “members of quasi-sovereign tribal 
entities,” 417 U.S. at 554, 94 S.Ct. at 2484. In United 2

2It is questionable whether Anglo-American concepts of sovereignty existed 
in these Indian cultures, or whether the collections of villages Governor Stevens 
made for purposes of his negotiations were in fact tribes. The United States 
treated them as tribes, however. The villages were then exercising and the tribes 
have since exercised what we would consider sovereign powers over their 
members and territories. These concepts have become basic to the legal 
justification for preserving the tribes as legal and cultural entities, a goal which 
the treaties were intended to serve and which Congress has recently reaffirmed. 
Indian Self-Determination Act of 1975, Pub.L. 93-638, Title I, 88 Stat. 2203, 
2206. We will therefore use these concepts, recognizing that in doing so we 
may not be perfectly adapting Western legal concepts to Indian culture.



A—6

States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 
L.Ed.2d 706 (1975), the Court upheld the power of 
Congress to delegate to an Indian tribe the right to 
regulate the sale of liquor on non-Indian land within 
an Indian reservation. The Court specifically rejected 
the Tenth Circuit’s holding that Indian tribes are 
simply voluntary associations of private citizens, 
citing Worcester and McClanahan among other 
cases. 419 U.S. at 557, 95 S.Ct. 710.

Most recently, the Court held unanimously that 
a conviction by a tribal court does not bar federal 
prosecution for the same offense, because the tribal 
and federal courts are arms of different sovereigns. 
“ Indian tribes still possess those aspects of 
sovereignty not withdrawn by treaty or statute, or 
by implication as a necessary result of their 
dependent status.” United States u. Wheeler, —
U.S. __ , __ , 98 S.Ct. 1079, 1086, 54 L.Ed. __
(1978).

II EQUAL PROTECTION
The state and the non-Indian fish catchers argue 

that to treat Indian fish catchers differently from 
non-Indians in allocating fishing opportunities and 
determining fishing regulations is a patent violation 
of basic equal protection principles. The Washington 
state courts have accepted this argument. See 
Washington State Commercial Passenger Fishing 
Vessel Association v. Tollefson, 89 Wash.2d 276, 571 
P.2d 1373 (1977). Yet the most obvious conclusion



A — 7

from this background is that “ equal protection” is 
an issue in this case only as it limits the state’s 
regulation of Indian fishing in those areas where the 
state has a right to regulate. Comparisons between 
the numbers of treaty and nontreaty fishers, or the 
quantity of fish each category has an opportunity to 
take, are simply irrelevant under the law. The treaty 
tribes reserved their preexisting rights to fish, and 
they continue, as quasi-sovereign entities, to hold 
those reserved rights.

As we pointed out in United States v. 
Washington, 520 F.2d at 685, the treaties established 
something analogous to a cotenancy in the 
off-reservation fishery.3 The treaty fishers derive 
their rights from one of the cotenants, the tribes. The 
nontreaty fishers derive their rights from the other, 
the state as the successor to the United States. The 
population-head-count disparity is the unremarkable 
result of normal principles of property law applied 
to changing numbers within cotenant classes.

3We refer to the cotenancy analogy only because it is helpful in explaining 
the rights of the parties, not because all the rights and incidents of a common 
law cotenancy necessarily follow. The shared interest is in a yearly run which 
is apportioned on a yearly basis between two parties, each having equal rights 
in it. It is this equality of right between two quasi-sovereigns which we 
expressed by analogy in the earlier case. Obviously, not all the rules of 
cotenancy in land can apply to an interest of the nature of a profit. Another 
analogy might have been drawn to the doctrine of equitable apportionment 
between states claiming the yearly flow of a common stream. The Supreme 
Court has often resolved the conflicting claims of quasi-sovereign states in this 
context. Nebraska u. Wyoming, 325 U.S. 589, 65 S.Ct. 1332, 89 L.Ed. 1815 
(1945); Wyoming v. Colorado, 259 U.S. 419, 42 S.Ct. 552, 66 L.Ed. 999 (1922). 
Similar principles might apply here with the addition, of course, of the equality 
of rights which the treaties guarantee. The primary point is that the state and 
the tribes stand in similar positions as holders of quasi-sovereign rights in the 
fishery, and that the federal courts are, when necessary, the arbiters of those 
rights.



A — 10

Fisheries issued to comply with the district court’s 
orders to be beyond the Department’s authority 
under state law.* 5 The Department thereupon 
withdrew its regulations and issued new ones which 
made no attempt to protect tribal rights in the 
fishery. This situation led the district court to cease 
its attempts to work through the state government 
and, instead, to undertake fishery management 
directly. The Court’s enforcement actions are the 
special focus of the present appeal.

The tribes have a right to the enforcement of 
the treaties. This court has previously upheld the 
district court’s construction of those treaties. The 
state was a party to that construction and remains 
a party now. The state is bound by the previous 
decisions.

The district court might have required the state 
to comply with its orders despite the conflicting state 
court rulings, but a direct confrontation would have 
raised serious questions of federalism. In an effort

sIn those cases, and in Washington State Commercial Passenger Fishing 
Vessel Association v. Tollefson, 89 Wash.2d 276, 571 P.2d 1373 (1977), the 
court construed the treaties as simply guaranteeing tribal Indians equal 
treatment with other citizens and stated that the district court’s actions had 
created a class based on an impermissible racial classification. We reject these 
positions for the reasons given above and in Justices Horowitz’ and Utter’s 
dissents. We assume that the Washington court has unwittingly misconstrued 
the basic concepts of Indian law and failed to understand a long line of Supreme 
Court decisions beginning with United States v. Winans, 198 U.S. 371, 25 S.Ct. 
662, 49 L.Ed. 1089 (1905).

This misconstruction of Indian law was one basis for the Washington 
court’s denial of state authority to allocate fish between treaty and nontreaty 
fishers. The state court thought that such an allocation would violate equal 
protection, something the state could not be required to do. We question 
whether the court would continue to deny state agencies the authority to 
allocate under a correct view of tribal status and rights.



A — 11

to minimize friction in a delicate state-federal 
situation without denying the tribes the rights they 
had reserved in the treaties and vindicated in court, 
the district court entered into the direct management 
of the fishery. Unless or until Congress acts to 
harmonize state and treaty interests in the fishery, 
the default of state government leaves the district 
court as the only instrument available to vindicate 
the treaty rights.

The pertinent questions, therefore, are not 
whether the court was right or wrong in 1974, but 
whether the court’s actions are reasonable now. A 
subsidiary question is whether the court may enforce 
its orders against “nonparty” fishers directly.

B
We held in United States v. Washington, 520

F.2d at 687-90, that the district court had discretion 
in its allocation of the fishery; we now extend that 
holding to recognize its broad discretion in managing 
the fishery. Further, none of the district court’s 
actions now before us constitutes an abuse of that 
discretion.

The district court’s orders set forth an allocation 
of fishing opportunity6 between the treaty and 
nontreaty fishers intended, for 1977 only, to provide

6The appellants argue that the district court attempted to transfer title 
in the fish to the tribes although fish in their wild state are incapable of being 
owned. This was not the district court’s order. Considered in light of the record 
as a whole, the orders allocate only the opportunity to take fish. That allocation 
can best be expressed and enforced, of course, by numbers of fish taken.



A — 12

nontreaty fishers with 55% of the total opportunity 
and treaty fishers with 45%. Because the district 
court included the amount taken in close-in ocean 
waters in the estimate of the total opportunity 
available to nontreaty fishers, the allocations 
generally pushed upward the opportunity in Puget 
Sound and the coastal streams for treaty fishers.7 
The difference in technology between white and 
Indian fishers is explained in United States v. 
Washington, and in the voluminous record here. The 
district court made its allocation orders upon the 
best technical advice available. It made its orders 
binding upon fishers’ associations and upon all 
persons fishing under the authority of the State of 
Washington.

We have noted that the appellants argue that 
the district court’s actions violate equal protection. 
The allocation is not an allocation among an 
indistinguishable mass of citizens but between two 
groups of persons each claiming undivided half­
interests in a quasi-cotenancy. Each of the co-owners, 
the state and the tribes, is a quasi-sovereign, and the 
distinction between their members is thus political 
rather than racial. Ethnic origin is relevant only to 
the degree it happens to define tribal, and therefore 
political, status. An ethnic Indian who is not a 
member of a tribe with reserved fishing rights is in 
the same position with respect to Washington fish

’There is a small tribal ocean fishery, and the parties do not agree whether 
it is included in the tribal share. If it is not now included, we presume the 
district court would include it on a proper showing.



A — 13

and game laws as any other citizen of the state.
We find no abuse of discretion in the district 

court’s orders allocating the opportunity to take fish. 
The circumstances compelled the court to intervene 
in fisheries management, and the state does not 
appear to quarrel seriously with the specific 
allocations.8 Indeed, we do not see how, given the 
state’s inability or unwillingness to act, the district 
court could have protected tribal rights without 
making orders allocating fish in some manner. The 
numbers question is one of degree, not one of 
principle. Fish reach the tribal fishery after passing 
through the areas of heaviest nontribal fishing. The 
technology of commercial salmon fishing favors the 
nontribal fisher. If the nontribal fishery were not 
limited, the tribal fishery would never have the 
opportunity to take its full share, particularly in light 
of the need to provide an escapement of fish 
sufficient to preserve the run. Preserving the tribal 
opportunity requires limiting the nontribal 
opportunity.9 In restating this obvious truth, we are

8The appellants do question the district court’s limitation only of 
commercial fishing. Such a limitation may be the most practical way to enforce 
the district court’s orders. The state can always propose limitations effective 
against both sport and commercial fishers if it can give reasonable assurances 
that such limitations would be enforceable. If the state were able and willing 
to regulate its fishery in a way consistent with the district court’s orders, of 
course, the sport/commercial fishery issue would be entirely a state concern 
so long as tribal fishers had an opportunity to take their treaty shares.

Appellants urge that the treaties are not self-executing but require 
Congressional action to be effective. The treaties specifically reserved rights 
to the tribes and gave federal guarantees of those rights; we do not know what 
more would be necessary to make the treaties effective and enforceable in 
federal court as the supreme law of the land. See United States v. Washington, 
520 F.2d at 684.



A — 14

not unmindful of the equities that lie on the side of 
the State of Washington. Its hatcheries help produce 
fish that will be caught by Indians as well as by 
non-Indians. But these equities call for state, federal, 
and tribal cooperation. They do not justify an 
attitude of total intransigence.

IV GRAY’S HARBOR
Because of uncertainty over whether the 

Quinault tribe would continue as a plaintiff in the 
earlier litigation, the original pretrial order defined 
the case area to include only coastal streams north 
of the Gray’s Harbor watershed. This area includes 
the Quinault reservation and several off-reservation 
streams which are usual and accustomed locations for 
Quinault fishers. There was evidence at the trial 
concerning Quinault fishing in Gray’s Harbor as well 
as within the case area. The court found that 
Quinault Indians had important fisheries, shared 
with other tribes, in Gray’s Harbor and its 
tributaries, although it did not specifically find them 
to be usual and accustomed fishing places. 384 
F.Supp. at 374-75. In 1974, in response to a motion 
by the state, the court held that the Quinault tribe 
had usual and accustomed fishing places in the 
Gray’s Harbor area and that nothing in its previous 
decisions prevented them from using those places. 
The state filed a notice of appeal from this ruling, 
but the appeal apparently lapsed for want of 
prosecution.



A — 15

Since the district court’s original decision the 
Quinault tribe has been actively developing its Gray’s 
Harbor fishery, both by increasing its fishing 
capacity and by managing the run to produce more 
fish. The state’s actions in response to the state court 
decisions threatened the continuance of this Indian 
fishery, and the district court’s order and injunction 
of August 10, 1977, as interpreted on August 12, 
excluded Gray’s Harbor fishing from its protection. 
In response to this situation, the Quinault tribe, with 
the support of the United States, asked the district 
court to extend the case area to cover Gray’s Harbor. 
The court agreed to the request. After a series of 
hearings the court allocated the opportunity to take 
fish between the treaty and nontreaty fishers in a 
fashion similar to its other allocations.

One question on appeal is whether the district 
court had the authority to expand the case area 
beyond that defined in the pretrial order and in its 
original decree; Gray’s Harbor was included in the 
original complaint. The United States argues that the 
district court simply extended its decree, without 
modification, to cover a new area. We cannot agree 
with this statement. In its conclusion of law number 
7, 384 F.Supp at 400, the court explicitly excluded 
Gray’s Harbor from the case area. To change the case 
area requires changing this conclusion of law. Since 
the decree depends on the conclusions of law, such 
a change would be a modification of the decree.

The state suggests that the tribe’s request may



A — 16

be a motion to modify the decree under Fed.R.Civ.P. 
60(b). Rule 60(b), however, deals with relief from 
judgments, not modification at the prevailing party’s 
request to extend the judgment’s scope.

The best interpretation of the district court’s 
order is that it is a supplemental decree based on 
a modification of the pretrial order to conform to the 
evidence presented at the trial. Under Fed.R.Civ.P. 
15(b), the pleadings may be amended, even after 
judgment, to conform to the evidence. The same 
standard should be applied to the modification of a 
pretrial order under Rule 16 in these circumstances. 
3 Moore’s Federal Practice U15.13[l]. We have 
previously upheld a district judge who applied Rule 
15(b) standards to amend a pretrial order to conform 
to the proof, Gsell v. Adams, 316 F.Supp. 394 
(D.Or.1969), aff’d, 431 F.2d 1204 (9th Cir. 1970), and 
one whose holding was based on a theory which had 
evidentiary support and was argued but which was 
not in the pleadings or the pretrial order, Dering u. 
Williams, 378 F.2d 417 (9th Cir. 1967).10 Here the 
parties tried the issue of Quinault off-reservation 
fishing without objection. The trial court found that 
Quinault Indians traditionally used Gray’s Harbor 
and its watershed for their fishing; its failure to use

'“Other circuits have reached similar conclusions. In Monod v. Futura, Inc., 
415 F.2d 1170 (10th Cir. 1969), the court in dictum stated that Rule 15(b) 
standards apply to a postjudgment amendment of a pretrial order if the issue 
has been tried without objection. The Sixth Circuit agrees, if the parties 
understood that the evidence was directed to the unpleaded issue. MBI Motor 
Company, Inc. v. Lotus/East, Inc., 506 F.2d 709 (6th Cir. 1974). The Fifth 
Circuit points out that in these circumstances allowing the amendment is 
mandatory. Wallin v. Fuller, 476 F.2d 1204 (5th Cir. 1973).



A — 17

the treaty words “ usual and accustomed fishing 
places” was the result of the exclusion of Gray’s 
Harbor from the case area of the original decree. 
When the state asked the court to limit Quinault 
fishing in Gray’s Harbor, the court specifically found 
that the Quinault tribe had usual and accustomed 
locations there; the state failed to pursue its appeal 
from this finding.11

In the light of these circumstances, we will treat 
the court’s order expanding the case area as a 
supplemental decree based on an implied modifica­
tion of the pretrial order to conform it to the 
evidence actually presented.12 (The court retained 
continuing jurisdiction to enter further decrees.) As 
a supplemental decree, the order is appropriate. 
Some action was necessary to protect Quinault treaty 
rights in Gray’s Harbor. The alternative to the 
supplemental decree would have been to bring a 
separate action, which the court would undoubtedly 
have consolidated with this action. The evidence and 
parties were such that the state would probably have 
been collaterally estopped to deny most of the 
necessary facts; the court could certainly have issued 
a temporary restraining order or preliminary

"The fact that Gray’s Harbor is outside the area ceded is irrelevant if 
Quinault Indians customarily fished there. Seufert Brothers Company v. 
United States, 249 U.S. 194, 39 S.Ct. 203, 63 L.Ed. 555 (1919).

I2No one suggests a need for the trial court to go back and amend the 
pretrial order if we can say on appeal that it would have been justified in doing 
so. Dering v. Williams, 378 F.2d 417 (9th Cir. 1967). An appellate court may 
uphold a judgment on any theory which finds support on the record even though 
the lower court relied upon a wrong ground or gave a wrong reason. Jurinko 
v. Edwin L. Wiegand Company, All F.2d 1038 (3d Cir.), vacated on other 
grounds, 414 U.S. 970, 94 S.Ct. 293, 38 L.Ed.2d 214 (1973).



A — 18

injunction with little extra delay. The court did hold 
factual hearings before making its allocations of 
fishing opportunity. The only result of requiring a 
separate action would have been to add further 
complexity to an already complex case.13

V BINDING NONPARTIES
Several of the district court’s orders were 

directed to individual fishers and to fishers’ 
associations, although these persons and associations 
were not parties to the litigation. The fishers argue 
that the court was therefore without jurisdiction over 
them. The United States suggests several theories 
which would support the district court’s actions. 
Without ruling on the other theories, we agree that 
the fishers are bound because they are in privity with 
the state, which is a party. Wild animals and fish 
belong to the people of a state as a whole in their 
sovereign capacity, and the state may regulate the 
manner of their taking or prohibit it entirely. Geer 
u. Connecticut, 161 U.S. 519, 527-30, 16 S.Ct. 600, 
40 L.Ed. 793 (1896).14

“The state’s only objection to the specific allocations seems to be based 
on the equal protection argument which we rejected above. We thus have no 
occasion to decide whether the allocations were within the district court’s 
discretion.

14Douglas v. Seacoast Products, Inc. 431 U.S. 265, 284-85, 97 S.Ct. 1740, 
52 L.Ed.2d 304 (1977), simply holds that a state does not have title to its fish 
to the extent that it can give its citizens rights superior to those of citizens 
of other states who hold a federal fishing license. This holding does not deny 
the state’s substantial interest in fish or that its claim to them, as a sovereign, 
represents the claim of all its citizens. See Justice Rehnquist’s opinion in 
Douglas, 431 U.S. at 287-88, 97 S.Ct. 1740.



Both Oregon and Washington hold that fish 
within their borders, so far as title can be asserted, 
belong to the state in its sovereign capacity in trust 
for its people. Anthony v. Veatch, 189 Or. 462, 
474-75, 486-87, 220 P.2d 493, 498-99, 503-04, 
rehearing denied, 189 Or. 504, 221 P.2d 575 (1950); 
Columbia River Fishermen’s Protective Union v. 
City of St. Helens, 160 Or. 654, 661, 87 P.2d 195, 
198 (1939); Monroe v. Withycombe, 84 Or. 328, 
334-35, 165 P. 227, 229 (1917); Washington Helpers 
Association v. State, 81 Wash.2d 410, 414-415, 502 
P.2d 1170, 1172-73 (1972), cert, denied, 411 U.S. 982, 
93 S.Ct. 2274, 36 L.Ed.2d 959 (1973); State ex rel. 
Bacich v. Huse, 187 Wash. 75, 79-80, 59 P.2d 1101, 
1103-04 (1936). The Washington Supreme Court has 
recently specifically held that fishers have no private 
property rights in taking salmon. “ In regulating the 
fisheries, the state is merely enacting legislation 
concerning its own property and prescribing the 
methods which may be used in acquiring it by private 
persons.” Washington Helpers Association v. State, 
81 Wash, at 415, 502 P.2d at 1173. While the quoted 
statement of state ownership may be too strong, it 
shows that under Washington law the citizen’s right 
to take fish is purely derivative of the state’s power 
to regulate rights in the fish. The fishers’ interest is 
therefore derivative of the state’s interest; the fishers 
are in privity with the state and are bound by actions 
affecting its sovereign interests to which it is a party. 
City of Tacoma v. Taxpayers of Tacoma, 357 U.S.



A — 20

320, 340-41, 78 S.Ct. 1209, 2 L.Ed.2d 1345 (1958); 
Wyoming v. Colorado, 286 U.S. 494, 506-09, 52 S.Ct. 
621, 76 L.Ed. 1245 (1932).15 This being the case, the 
district court had authority to act against the fishers 
directly when it appeared that the state was unable 
to do so. Since the fishers are bound by the district 
court’s actions, they may not collaterally attack them 
now, and they are subject to penalties for contempt 
if they have actual knowledge of the court’s orders 
and violate them.16 Any complaints the fishers may 
have concerning the state’s representation of their 
interests are matters between them and the state. 
Indeed, much of the difficulty in this case is the 
direct result of the pressure these same fishers have 
brought to bear upon the state government.

The district court’s injunction against state 
court action was both necessary and proper. The 
state trial court sought to require the Department 
of Fisheries to authorize a harvest of fish without

15The United States and the tribes cite Wyoming v. Colorado and several 
other water law cases in their brief. We agree with them that this is the most 
nearly analogous area of the law. States litigate their quasi-sovereign rights 
to water, and appropriators under the states’ laws are bound by those decisions 
without being parties. Nebraska v. Wyoming, 295 U.S. 40, 43, 55 S.Ct. 568, 
79 L.Ed. 1289 (1935). Washington’s fishers are its privies in litigation over the 
state’s quasi-sovereign right to its fish in the same way that Wyoming’s 
appropriators are its privies in litigation over the state’s quasi-sovereign right 
to water.

“The appellants make a number of technical attacks on the injunctions. 
We find them to be without merit. In the context of all the proceedings in 
this case, the state and the fishers knew what was being enjoined. The use 
of a telephone hot line for daily information on fisheries openings and closings 
was appropriate and may have been the only practical way to get the 
information to all the fishers affected by the court’s orders.



A — 21

regard to tribal rights or the district court’s orders. 
This action went beyond the Washington Supreme 
Court’s holding that the Department was without 
authority to obey the district court’s orders; instead, 
it required a direct violation of them. The normal 
requirements for injunctive relief were clearly 
present. Washington’s reliance on 28 U.S.C. § 2283, 
which limits injunctions of state court proceedings, 
is misplaced. Section 2283 does not apply when the 
United States requests the injunction. Leiter 
Minerals, Inc. v. United States, 352 U.S. 220, 224-26, 
77 S.Ct. 287, 1 L.Ed.2d 267 (1957). Nor should the 
district court have waited for the state system to 
resolve questions of state law; none were relevant. As 
a party to this action, the state was bound not to 
interfere with the district court’s enforcement of its 
decree, and any state law to the contrary would fall 
under the Supremacy Clause. U.S.Const, art. VI, cl. 
2.

VI COLUMBIA RIVER
A few issues concerning the Columbia River case 

deserve comment. The agreement reached by all the 
parties in early 1977 is a decree of the District Court 
of Oregon. No party has raised any questions in the 
district court concerning the State of Washington’s 
authority to enter into the agreement and consent 
to the decree; the state is therefore bound by it. 
Under the principles discussed above, the fishers



A — 22

from both sides of the river, Oregon and Washington, 
are bound by the decree binding the states, and the 
district court had authority to hold violators with 
actual knowledge in contempt.

The district court’s jurisdiction extends to the 
entire Columbia River, not simply to the Oregon side. 
Oregon Admission Act of February 14, 1859, § 1, 11 
Stat. 383; The Annie M. Smull, 1 Fed.Cas. 983 (No. 
423) (D.Or.1872). Nielsen v. Oregon, 212 U.S. 315, 
29 S.Ct. 383, 53 L.Ed. 528 (1909), simply holds that 
Oregon may not enforce its regulatory laws on the 
Washington side. It does not question the power of 
the district court to enforce federal law over the 
entire river.

VII CONCLUSION
We do not entertain the illusion that this is the 

last appeal we will see in this case. The issues 
involved are too volatile and raise too many emotions 
for a mere statement of the law to resolve them. On 
the other hand, neither this court nor the district 
court has any desire to be a permanent fish master 
in Washington waters. It is to be hoped that the 
parties can reach an agreement, as they did in the 
Oregon case, and that Washington law will be 
changed to allow the state to carry it out. Until the 
state decides to cooperate, the district court will have 
to continue protecting the tribes’ rights. The state 
and the fishers hold the key to lifting federal judicial



A — 23

interference with their fish-management pre­
rogatives.

In Nos. 77-3208 and 77-3129, the applications for 
writs of mandamus are dismissed.

In Nos. 77-3209, 77-3654, and 77-3655, the 
judgments are affirmed.

The cases are remanded so that the district court 
may retain continuing jurisdiction.

Kennedy, Circuit Judge, concurring:
The domensions of the state’s resistance to the 

decrees in these cases are, in my view, over-stated 
by the opinion for the court, but I fully agree that 
by its policy with respect to this litigation the state 
has unduly complicated the issues without advancing 
its own cause. I agree further that an apportionment 
of fishing rights half to the treaty Indians and half 
to all other fishermen is binding on this panel. 
United States u. Washington, 520 F.2d 676 (9th Cir. 
1975), cert, denied, 423 U.S. 1086, 96 S.Ct. 877, 47 
L.Ed.2d 97 (1976). However, the court undertakes to 
restate the rationale for the apportionment rule of 
our earlier decision, and I find it necessary to suggest 
that the explanation of this critical point remains 
somewhat obscure.

The prior decision of this court and the opinion 
for the court on this appeal rely on an analogy to 
a cotenancy or to a “quasi-cotenancy” to rationalize 
the rule of even apportionment. The principles of a 
cotenancy apply to the legal relation among parties 
who share a right of possession in real or personal



A — 24

property.1 But the parties to this dispute claim rights 
of access and exploitation in a wildlife resource of 
fluctuating and uncertain extent. These rights do not 
depend upon possession, or even upon ownership, of 
the wildlife itself. The cotenancy analogy would be 
of dubious relevance even in an era when the supply 
of fish exceeded the demands of the fishing 
population.2 Certainly it is inadequate to resolve the 
present conflict between treaty rights and asserted 
state authority to conserve and allocate a fishery that 
cannot sustain the full demands of all the parties to 
this litigation. A cotenant, absent acts of waste or 
ouster, has the right to possess and use the entire 
property.3 Accordingly, serious application of the

‘“For indeed tenancies in common differ in nothing from sole estates but 
merely in the blending and unity of possession.” 2 W. Blackstone, 
Commentaries * 180.

‘The term “tenants in common” was used in an early case to describe the 
rights of state citizens to the ownership of New Jersey oyster beds. Corfield 
v. Coryell, 6 Fed.Cas. 546, 552 (C.C.E.D.Pa.1823). The phrase, however, was 
used solely to explain the court’s holding that state citizens collectively held 
one hundred percent of the rights to the shellfish to the exclusion of noncitizens, 
rather than as a point of departure for explaining a method of division.

32 American Law of Property § 6.13, at 52-53 (A. J. Casner ed. 1952); R. 
Powell & P. Rohan, Powell on Real Property H 603 (1 vol. ed. 1968); H. Tiffany, 
The Law of Real Property § 199 (3d ed. 1970).

At common law, property rules pertaining to ouster and waste insured that 
cotenants shared finite resources fairly, but to apply those rules to effect an 
allocation of the parties’ rights here would stretch an already attenuated 
analogy to the breaking point. Moreover, there is substantial doubt that the 
apportionment theory of this case follows from those rules.

The standards which define waste for which a life tenant or tenant for 
years may recover are not necessarily applicable as between cotenants. The 
English rule is that, since a cotenant of a fee simple estate has the right to 
enjoy and use the common property in any reasonable way, the usual and 
ordinary use of the property by an owner in severalty is not waste. 2 American 
Law of Property, supra § 6.15, at 64; 2 W. Walsh, Commentaries on the Law 
of Real Property § 131, at 69 (1947). Thus, any cotenant may cut trees that 
are mature and Fit for cutting, Martyn v. Knowllys, 101 Eng.Rep. 1313 
(K.B.1799), and may develop and operate mining land, Job v. Potton, 20 Eq. 
84 (1875), without liability for waste. In the United States, while it is clear



A — 25

analogy might permit a fishing group to take all the 
fish it has the capacity to catch, a result contrary 
to the one we affirmed in the principal case.4
that acts which amount to destructive permanent damage to the common 
property are held to constitute waste, E. Hopkins, Handbook on the Law of 
Real Property § 214, at 342 (1896); 2 W. Walsh, supra § 131, at 72, some cases 
have followed the English rule allowing the cutting and sale of timber, Hihn 
v. Peck, 18 Cal. 641 (1861); Buchanan v. Jencks, 38 R.I. 443, 96 A. 307 (1916); 
Williams v. Bruton, 133 S.C. 395, 131 S.E. 18 (1925); McDodrill v. Pardee & 
Curtin Lumber Co., 40 W.Va. 564, 21 S.E. 878 (1895), and the operation of 
mines, quarries, and oil wells, Prairie Oil & Gas Co. v. Allen, 2 F.2d 566 (8th 
Cir. 1924); Cascaden u. Dunbar, 191 F. 471 (9th Cir. 1911); McCord v. Oakland 
Quicksilver Mining Co., 64 Cal. 134, 27 P. 863 (1883); Payne v. Callahan, 37 
Cal.App.2d 503, 99 P.2d 1050 (1940), while others have held that the cutting 
and sale of timber, Fitzhugh v. Norwood, 153 Ark. 412, 241 S.W. 8 (1922); 
Emmons v. Evans, 178 Ky. 180, 198 S.W. 900 (1917), or the development or 
operation of mines or oil wells, Clark v. Whitfield, 218 Ala. 593, 119 So. 631 
(1929); Abbey v. Wheeler, 170 N.Y. 122, 62 N.E. 1074 (1902); McNeely v. South 
Penn Oil Co. 58 W.Va. 438, 52 S.E. 480 (1905), constitues waste. In cases 
following the latter rule, courts have tended to call the action one for waste 
but to hold the defendant merely to a duty to account for the net proceeds 
from the operations rather than to impose the usual penalties, such as treble 
damages, for waste. See generally cases cited above and 2 American Law of 
Property, supra § 6.15; 2 W. Walsh, supra § 131.

Injunctive relief in an action for waste by one cotenant against another 
is granted only for waste which is “of a malicious character, or so unusual or 
unreasonable as to constitute a wanton destruction of the estate.” Mott v. 
Underwood, 148 N.Y. 463, 42 N.E. 1048, 1050 (1896); see McCord v. Oakland 
Quicksilver Mining Co., 64 Cal. 134, 27 P. 863 (1883); R. Powell & P. Rohan, 
supra 11 647, at 695.

With reference to ouster, a tenant who excludes his cotenants from the 
commonly held property by adverse possession is guilty of an ouster, and an 
action in ejectment may be brought by a dispossessed tenant. J. Cribbet, 
Principles of the Law of Property 104 (2d ed. 1975). “ [T]he ousting tenant’s 
possession must be exclusive, for mere possession and use of the entire property 
by one cotenant is not an ouster, nor is his possession adverse, so long as the 
other cotenants remain voluntarily out of possession, and are not kept out of 
possession by the acts of the possessor-tenant.” 2 American Law of Property, 
supra § 6.13, at 52-54 (footnotes omitted).

4While courts will not interfere by way of injunction with cotenants’ 
exercise of their rights to use and enjoyment of the cotenancy even when one 
cotenant has committed waste, see note 3 supra, an action for accounting for 
rents and profits between cotenants may be available when one cotenant has 
taken certain advantages from the property. Even when a cotenant’s use does 
not constitute waste or ouster, he is required to account to his cotenants for 
their proportionate share of the net amount received from the cutting and 
selling of timber or the operation of mines or oil wells. Prairie Oil & Gas Co. 
v. Allen, 2 F.2d 566 (8th Cir. 1924) (oil); Cascaden v. Dunbar, 191 F. 471 (9th 
Cir. 1911) (gold mining); Buchanan v. Jencks, 38 R.I. 443, 96 A. 307 (1916) 
(timber); see Martyn v. Knowllys, 101 Eng.Rep. 1313 (K.B.1799). However, a



A — 26

Most importantly, the concept of a cotenancy 
does not help the court determine what share of the 
disputed rights should be allocated to each of the 
parties. By relying so heavily upon the theory, the 
court seems to imply that an even apportionment 
follows from creation of a cotenancy; but, of course, 
it does not. Cotenancy is not synonymous with 
entitlement to equal shares.5 Nor does the right of
cotenant is not required to account for crops grown and harvested by him. 
2 American Law of Property, supra note 3, § 6.14, at 60; see, e.g., Black v. 
Black, 91 Cal.App.2d 328, 204 P.2d 950 (1949); Le Barron v. Babcock, 122 N.Y. 
153, 25 N.E. 253 (1890). The distinction seems to be that a cotenant need not 
account for profits from a use of the cotenancy which does not reduce the 
permanent value of the property. Cf. 3 B. Witkin, Summary of California Law 
§ 216, at 1948 (8th ed. 1973), suggesting that because of the possibility of 
exhausting the resources, the rule of accounting is a special rule applying only 
to oil and mineral rights. In Mott v. Underwood, 148 N.Y. 463, 42 N.E. 1048 
(1896), the court assumed that a cotenant who planted oysters in a commonly 
held oyster bed could prevent his cotenants from interfering with the crop, 
though no cotenant could maintain an action for trespass or conversion against 
his cotenant for taking natural oysters from the land held in common. That 
case suggests that oysters, at least, might be treated in a manner similar to 
crops for purposes of an accounting. To the extent that a run of anadromous 
fish is capable of self-perpetuation, that is, up to the point where fishing activity 
reduces the quantity of fish in future runs, perhaps each cotenant should be 
allowed to take free from a duty to account.

Another factor in the equitable equation is that the State of Washington 
operates salmon hatcheries. In an action for an accounting, a cotenant who 
makes improvements on the property generally may not claim a credit for such 
expenditures. 2 American Law of Property, supra note 3, § 6.18, at 81. In an 
action for partition, however, a cotenant who has made an improvement is 
awarded any additional amount which the property might bring as a result 
of the improvement. Id. at 83; IV S. Symons, Pomeroy’s Equity Jurisprudence 
§ 1389, at 1018 (5th ed. 1941). Apparently neither the district court nor this 
court has considered whether the state’s operation of hatcheries should have 
an effect on apportionment of the fish. Cf. Department of Game v. Puyallup 
Tribe, 414 U.S. 44, 94 S.Ct. 330, 38 L.Ed.2d 254 (1973) (Puyallup ID (reserving 
the question of whether the catch of steelhead that was developed from the 
state hatchery program could be taken into consideration in allocating the 
yearly catch between treaty Indians and sport fishermen).

Again, the cotenancy analogy, if taken seriously with reference to the rule 
of even apportionment, creates more problems than it solves.

sEach tenant in common may have a share greater or smaller than the 
shares of the others. 2 American Law of Property, supra note 3, § 6.5, at 19. 
If the shares are not fixed in the instrument creating the cotenancy it may 
be presumed that the cotenants take in equal shares, but an intent that they 
hold different fractional shares may be established by the circumstances. Id. 
at 19-20; E. Hopkins, supra note 3, § 209, at 336.



A — 27

a cotenant to partition provide guidance for an 
equitable division of the fish. Effective use of that 
remedy presupposes a method of determining the 
percentage interests of the parties, but that is 
precisely the question to be answered in the case.

By using the cotenancy theory to explain the 
critical ruling on apportionment, the court tends to 
mask the most difficult problems of this litigation: 
definition of the rights recognized by the treaties, 
reconciliation of those rights with the state’s 
legitimate interest in conservation,6 and declaration 
of the parameters of the state’s authority to protect 
its interest by appropriate regulation. These are the 
issues that must be resolved if the district court is 
ever to return the task of supervising the fishery to 
the state.

Indian treaties are not second-class agreements, 
and rights declared by them may not be whittled 
down year by year as the state asserts a need to 
exercise its regulatory authority. The state and, 
absent its cooperation, the federal courts, must 
protect the fishing resource in a manner that respects 
the rights of the treaty parties. The boundaries of 
the state’s authority and any rule of apportionment 
must therefore be drawn with precise reference to the 
treaty understandings. The district court undertook 
to explain those understandings in its original 
decision, and proper review of its ruling requires a

6See Puyallup Tribe v. Department of Game, 391 U.S. 392, 398, 88 S.Ct. 
1725, 20 L.Ed.2d 689 (1968) (Puyallup /).



A — 28

like analysis. No doubt it would be correct to 
determine that the Indian tribes retained by treaty 
the right to fish for subsistence and ceremonial 
purposes and the right to a fair opportunity to 
compete in the recreational and commercial fisheries. 
But it has not been clearly demonstrated that the 
rule of fifty percent apportionment is a necessary and 
proper implementation of those treaty rights.

I recognize that the opinion of the court does 
not advocate strict adherence to the technical rules 
of common law cotenancy as a means of resolving this 
case. The defects of the analogy, however, should be 
noted specifically, since alternative justifications for 
the apportionment rule have not yet been fully 
discussed. This panel is bound by United States v. 
Washington, supra, and thus I concur in today’s 
judgment. However, I would not attempt to restate 
or explain that decision by means of an inappropriate 
analogy. We do not sustain the dignity of the treaties 
in question by deriving an apportionment rule from 
a hesitant reference to property concepts that are 
unrelated to the rights asserted by the parties.

W allace, Circuit Judge, concurring:
While I sympathetically agree with Judge 

Kennedy’s statement that “ it has not been clearly 
demonstrated that the rule of fifty percent 
apportionment is a necessary and proper implemen­
tation of [the Indians’] treaty rights,” I am compelled 
to join with Judge Goodwin based upon our prior 
decision in United States v. Washington, 520 F.2d 
676 (9th Cir. 1975), cert, denied, 423 U.S. 1086, 96 
S.Ct. 877, 47 L.Ed.2d 97 (1976).



A — 29

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT

United States of America,
Plaintiff-Appellee,

Makah T ribe, Lower Elwha Band of Clallam 
T ribe, Port Gamble Band of Clallam T ribe, 
Suquamish T ribe, Lummi T ribe, N ooksack T ribe 
and Swinomish Indian T ribal Community,

Intervenors-Appellees,
v.

State of W ashington, Department of Fisheries 
and Donald W. M oos, its Director,

Defendants-Appellants.
Nos. 75-2835 and 76-1042.

United States Court of Appeals,
Ninth Circuit.
April 24, 1978.

Before Chambers and Kennedy, Circuit Judges, 
and Jameson,* District Judge.

Kennedy, Circuit Judge:
In the continuing litigation to implement and 

enforce the decrees we affirmed in United States u. 
Washington 520 F.2d 676 (9th Cir. 1975), cert, 
denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d

♦Honorable William J. Jameson, Senior United States District Judge for 
the District of Montana, sitting by designation.



(1976), the district court issued certain injunctions 
against the State of Washington to enforce an 
allocation of fishing rights between treaty Indians 
and other fishermen during the 1975 salmon fishing 
season. The State of Washington challenges the 
injunctions on this appeal. We have determined the 
appeal should be dismissed as moot.

The first injunctive order in question directed 
the State of Washington and its Department of 
Fisheries to adopt certain regulations to implement 
and enforce directives of the 1975 International 
Pacific Salmon Fisheries Commission (“ IPSFC” or 
“Commission”) pertaining to sockeye and pink 
salmon fishing in United States waters.1 Since the 
Commission promulgates fishing regulations on a 
yearly basis, the 1975 Commission directives are now 
fully superseded by other Commission orders. If 
there were a likelihood that the district court would 
require the state to implement Commission 
regulations for subsequent seasons, the legal 
questions presented here might be ones “ capable of 
repetition, yet evading review,” and thus amenable 
to adjudication notwithstanding their moot character 
in this case. Southern Pacific Terminal Co. v. 
Interstate Commerce Commission, 219 U.S. 498, 515,

'The IPSFC was created by the 1937 Convention between Canada and the 
United States to coordinate management of sockeye and pink salmon in the 
Fraser River system. 50 Stat. 1355 (1937). The Commission, composed of three 
American and three Canadian members, is authorized to issue regulations for 
supervising the fishery. These regulations, if approved by the respective 
countries, are ordinarily enforced in the United States through the cooperative 
efforts of federal and state agencies. 16 U.S.C. § 776d(a)-(b).



A— 31

31 S.Ct. 279, 55 L.Ed. 310 (1911); see Roe v. Wade, 
410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 
(1973). That, however, is not the position here.

After the 1975 season, it became unnecessary to 
utilize state regulations to accommodate the 
Commission directives and the court decree. The 
United States has taken steps to remove treaty 
Indians from the jurisdiction of the Commission and 
regulates treaty Indian fishing solely through the 
Bureau of Indian Affairs. The Commission regula­
tions are enforced against nontreaty fishermen by the 
National Oceanic and Atmospheric Administration 
through its subagency the National Marine Fisheries 
Service and by the United States Coast Guard. The 
1975 injunction which required the state to adopt 
regulations is not, therefore, likely to be reissued for 
later years.

Appellant argues that, even if repetition of this 
injunction is unlikely, two of the legal premises relied 
on by the district court are of continuing importance 
in this litigation and should be addressed here. These 
questions are whether or not the Washington 
Department of Fisheries is required to adopt and 
enforce fishing regulations in a manner designed to 
give treaty Indians the opportunity to catch fifty 
percent of the available fish, and whether this court s 
holding in United States u. Washington, supra, 
dictates that any fifty percent allocation must apply 
to waters under the jurisdiction of the IPSFC. 
Questions regarding the nature and extent of the



A — 32

rights of treaty Indians to an allocation of the pink 
and sockeye salmon in IPSFC waters should not be 
discussed in a hypothetical context. Furthermore, the 
question of a percentage allocation is presented in 
United States v. Washington, 573 F.2d 1123 (9th Cir. 
1978) (Nos. 77-3654 & 77-3655, filed April 24, 1978). 
These are not issues that threaten to elude review. 
Therefore we follow the rule that “ federal courts are 
without power to decide questions that cannot affect 
the rights of litigants in the case before them.” North 
Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 
30 L.Ed.2d 413 (1971); see DeFunis u. Odegaard, 416 
U.S. 312, 316, 94 S.Ct. 1704, 40 L.Ed.2d 164 
(1964).

The district court issued a second injunction 
directed to the Superior Court of the State of 
Washington in and for the County of Thurston. The 
federal injunction ordered a stay of state court orders 
requiring the Washington Department of Fisheries to 
suspend fishing regulations then in effect for the 
1975 season. The 1975 season has now passed and 
neither the order of the United States district court 
nor that of the state court has current force. 
Moreover, the situation that gave rise to the federal 
injunction is unlikely to recur since, as noted above, 
state agencies are no longer relied upon to allocate 
fishing rights in the fisheries controlled by the IPSFC 
as between treaty Indians and others. The issues 
presented by the order enjoining the state 
proceedings are now moot.



Thirdly, the district court issued a preliminary 
injunction to prevent the state from enforcing state 
regulations which restricted certain types of net 
fishing by the Swinomish tribe. The purpose of the 
state regulation was to give effect to IPSFC 
directives. This injunction has no practical con­
sequence for the parties now. It is not likely to be 
reissued. The responsibility for enforcement of 
IPSFC regulations has now been assumed solely by 
federal authorities, and we think the appeal from this 
order is also moot.

It must be quite apparent that the case tendered 
for our decision here would require us to address 
procedural questions that touch upon fundamental 
principles controlling the delicate balance of state 
and federal power. Beyond those questions we would 
further be required to interpret substantive rights of 
the parties under United States v. Washington that 
are of great significance to the fishing industry in the 
Northwest. We would not serve the vital interests of 
the parties by addressing such questions in a 
hypothetical case while other pending cases present 
the issues in an active context.

We dismiss this appeal as moot.



A—34



A—35

UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF WASHINGTON 

AT TACOMA

United States of America, et al.,

vs.
State of W ashington, et al.,

Plaintiffs,

Defendants.
XIVIL NO. 9213

MEMORANDUM ORDER AND PRELIMINARY
INJUNCTION

The court has fully reviewed and carefully 
considered the motions of plaintiff, United States of 
America, and the plaintiff intervenor Tribes, the 
supporting and opposing memoranda, affidavits and 
attachments thereto, the documentary and testimon­
ial evidence offered in open court at hearings held 
August 8 and August 25, 1977, as well as evidence 
offered at a hearing held on July 21, 1977 on aspects 
relevant to the present motions, and the oral 
argument of counsel. The Memorandum Order and 
Preliminary Injunction signed and entered by this 
court on August 10, 1977 and the clarifying minute 
order entered on August 12, 1977 are hereby vacated 
and superseded in their entirety by this Memoran­
dum Order and Preliminary Injunction.

Based on all of the evidence, the prior holdings 
and decrees in this case, and certain decisions of the



A — 36

Supreme Court of the State of Washington, this court 
FINDS, HOLDS and ORDERS as follows:

1. The defendant, State of Washington, and its 
courts, legislature and fisheries management and 
regulatory agencies and officers have failed and 
refused to manage and regulate the harvest of the 
fishery resources that are subject to the reserved 
treaty fishing rights of plaintiff tribes in a manner 
that will comport with the prior decrees of this court 
in this case declaring and enforcing those reserved 
fishing rights which were secured by the treaties of 
the United States referred to in Final Decision #1 
in this case.

2. The defendant, State of Washington, through 
its attorneys herein, and the defendant Director of 
Fisheries, have stated that they are unwilling or 
unable to so manage and regulate such fishery 
resources and harvest and have stated that such 
inability is based, at least in part, on State law as 
recently pronounced by the Washington State 
Supreme Court and on the refusal of the State 
legislature to enact legislation authorizing the 
Department of Fisheries to regulate the harvest of 
the resource in conformity with the requirements of 
this court’s prior decrees. (Tr. 8/8/77, pages 139-140, 
160-162).

3. The inability or unwillingness to so manage 
and regulate such fishery resources and harvest 
imminently threatens to deprive the plaintiff tribes 
of their treaty rights as previously decreed by this



A — 37

court unless this court provides for the allocation, 
under its direction and control, of the amount of fish 
from each run that must be reserved from State 
harvest control, and the amount that must be 
reserved for spawning escapement, in order to insure 
the plaintiff’s tribes their right to take fish, both now 
and in the future, to the extent provided by this 
court’s decrees.

4. The Supreme Court of the State of 
Washington held in the case of Puget Sound 
Gillnetters Association, et al. v. Donald Moos, et al., 
No. 44401, decided June 9, 1977 (565 P.2d 1151), that 
the Department of Fisheries has a “statutory duty” 
under State law “to authorize the harvesting of 
salmon not required for * * * spawning” and
that it “may restrict the harvesting of salmon by the 
commercial fishermen only to the extent that no 
surplus exists and that the restriction is necessary 
to prevent the impairment of the supply of salmon” 
and further that in carrying out this duty to 
authorize commercial harvest, the Director of 
Fisheries may not “allocate fish among competing 
claimants for purposes other than conservation,” and 
specifically that he may not “allocate fish to treaty 
Indians or to non-Indians,” and that “ every 
fisherman in a class must be treated equally, 
and * * * given an equal opportunity to fish
* * * .” In this regard the Supreme Court of the
State of Washington held that treaty Indians are not 
a separate class, but that each Indian is a citizen of



A — 38

the United States who may not be “granted special 
privileges and immunities. * * * Distinctions
between fishermen based upon their race or ethnic 
background are not proper.” It reaffirmed this 
holding on July 21, 1977 in Purse Seine Vessel 
Owners Association v. Moos, No. 43938.

5. The Director of the Department of Fisheries 
has stated publicly that as a State officer he feels 
bound to comply with the State Supreme Court 
holding in case No. 44401 even though the State 
court did not issue a writ of mandamus to order him 
to comply. (Tr. 8/8/77, page 137, 160-162). In 
declining to issue the writ the State court said, “We 
have full confidence that the Director will abide by 
our decision.” (565 P.2d at 1152).

6. The holdings of the Washington Supreme 
Court are contrary to the affirmed decision and 
decree of this court on the federal questions of the 
nature and scope of the treaty fishing rights of Indian 
tribes and the obligations of the State toward those 
rights, which decision and decree are binding upon 
the defendants in this case, including the State of 
Washington and its Director of Fisheries. Specifical­
ly, this court has decreed that the treaty tribes hold 
the reserved treaty right to harvest anadromous fish. 
This reserved right is distinct from rights or 
privileges of others, does not depend upon State law, 
and may not be qualified by any action of the State. 
This court has also decreed that the tribes reserved 
the right to share equally with the non-treaty citizens



A — 39

of the United States the opportunity to take fish at 
their usual and accustomed places and that the 
treaty fishermen as a group and non-treaty fishermen 
as a separate group are each to have the opportunity 
to take up to fifty percent (50%) of the harvestable 
number of fish that would reach such fishing places; 
that the Department of Fisheries’ harvesting plan 
must provide for an opportunity for treaty Indians 
to take this share; and that State laws or regulations 
which affect the volume of anadromous fish available 
for harvest by a treaty tribe must be designed so as 
to carry out the purpose of the treaty provision. 
Neither the treaty Indians nor the non-treaty 
fishermen may fish in a manner so as to destroy the 
resource or to preempt it totally. This court has also 
decreed that the defendants must make “significant 
reductions in the non-Indian fishery, as are necessary 
to achieve the ultimate objective of the court’s 
decision * * * .” (384 F.Supp. at 343, 345, 346,
401, 403, 406, 407, 408 and 420).

7. The defendant, Director of Fisheries, and 
defendant, Director of Game, have each on occasion 
applied RCW 75.12.060 and RCW 77.16.060 to 
restrict the exercise of the fishing rights of certain 
plaintiff tribes contrary to the holding and decree of 
this court. (Ex. PL 109, PL 110, PL 111; Tr. 8/8/77, 
(Sandison), pages 143-146).

8. On July 27, 1977, the Director of Fisheries, 
without prior notice to the plaintiffs or this court, 
adopted an emergency order closing certain areas,



A — 40

including State Management Area 6A, to all treaty 
Indian salmon fishing except when opened by 
regulations of the International Pacific Salmon 
Fisheries Commission. (Ex. PL 103). The United 
States had previously taken official action to reject 
IPSFC control over the treaty Indian sockeye and 
pink salmon fisheries and to regulate such fisheries 
in IPSFC waters by regulations of the Department 
of the Interior. (42 Fed. Reg. 31450-31453; Tr. 8/8/77, 
147-148).

9. On or about June 1, 1977, the Director of 
Fisheries adopted and filed with this court an 
emergency regulation closing Indian Treaty Puget 
Sound Salmon Management and Catch Reporting 
Areas 10B, 10C and 10D to commercial salmon 
fishing by treaty Indians for the reason that the 
existing forecast indicated that the 1977 Lake 
Washington sockeye run would be below spawning 
escapement needs and needed “ complete protec­
tion.” The Director adivsed the tribes and this court 
that if later data indicated a run in excess of 
escapement needs, the sport and net fishery could 
be authorized. (Ex. USA 141; USA 142).

10. On July 14, 1977 the Director of Fisheries 
adopted an emergency regulation opening areas 10C 
and 10D (Lake Washington) to sport fishing for 
sockeye commencing July 16, 1977 giving as his 
reason that the run size was then forecast to be 
44,000 fish more than are needed for escapement and 
that an emergency opening was necessary to harvest



A — 41

those excess fish. (Ex. USA 143). The Director 
refused tribal requests to rescind his conservation 
closure of the treaty Indian fishery on these same 
fish for the reason that RCW 75.12.010 prohibited 
a treaty net fishery in those areas. (Ex. USA 144; 
Tr. 8/8/77, page 151).

11. Although no conservation justification for a 
prohibition of the treaty fishery in Lake Washington 
or in management area 10B existed subsequent to 
July 14, 1977 the Director did not rescind the closure 
of the treaty fishery until July 21, 1977 after the 
plaintiffs had obtained that date for hearing in this 
court on a motion for injunctive relief against the 
continuance of the closure. (Ex. F 111). By that time, 
the Department of Fisheries had established that the 
harvestable surplus in the run was 61,000. (Tr. 
7/21/77, page 151).

12. Under the protection of a Temporary 
Restraining Order of this court, the Muckleshoot and 
Suquamish Tribes authorized tribal fisheries to take 
up to 30,500 fish. The State and the tribes monitored 
this fishery. This fishery was closed by the 
Muckleshoot and Suquamish Tribes after tribal 
members had taken their allotted number of fish.

13. On July 22, 1977 the Director of Fisheries 
adopted regulations for the 1977 commercial harvest 
of Puget Sound chinook, coho and chum salmon runs. 
(Ex. PL 102). Neither the regulations nor the 
accompanying statement of “ 1977 Regulatory 
Considerations” makes any reference to treaty rights



A — 4 2

of any Indians, nor do they contemplate compliance 
by the State through its Department of Fisheries 
with decrees and orders of this court in this case. The 
regulations are intended to apply to treaty Indians 
and non-treaty fishermen alike. (Ex. PL 121; Tr. 
8/8/77 (Sandison), pages 139, 171-172). The
regulations fail to provide the plaintiff tribes with 
the opportunity to harvest their share of such salmon 
as decreed by this court and are in violation of the 
decreees and orders of this court.

14. RCW 75.12.010 is broader than necessary for 
the preservation of the fishery resource and does not 
meet the standards previously declared by this court 
for State measures which may lawfully be applied to 
restrict members of treaty tribes from exercising 
their tribe’s treaty fishing rights or which may be 
applied to authorize non-treaty fishing within 
limitations prescribed by the decrees of this 
court.

15. The Fisheries Advisory Board appointed a 
Technical Committee consisting of five biologists 
representing treaty tribes and four biologists from 
the Department of Fisheries to develop a joint report 
on the run sizes, escapement goals, harvest numbers, 
troll and sport interception rates and ceremonial and 
subsistence numbers for 1977 runs of chum and coho 
salmon returning to the various Puget Sound salmon 
management areas. That committee’s unanimous 
report was approved by the Fisheries Advisory Board 
on August 24, 1977 and filed with the court on



A — 43

August 25, 1977. On the basis of that report the court 
finds that harvest allocations for such runs shall be 
based upon the following data, subject to in-season 
updates of pre-season estimates of run sizes and 
harvest numbers to be determined as provided in this 
Order:

COHO

Management
Escape­

ment
Total

Harvestable •Prior
Regions Run Size Goal Number Interceptions

Straits 59,000 11,000 48,000 12,000
Nooksack-

Samish 122,000 4,000 118,000 24,000
Skagit 66,000 35,000 31,000 13,000
Snohomish-

Stillaguamish 198,000 66,000 132,000 39,000
South Sound 513,000 45,000 468,000 100,000
Hood Canal 98,000 22,000 76,000 19,000

*Excludes 5,000 coho interceptions by treaty Indians

Straits
Nooksack-

Samish

CHUM
No harvestable runs expected 

12,300 6,000 6,300 0
Skagit 42,500 56,200 0 0
Snohomish-

Stillaguamish 18,000 22,600 0 0
South Sound 250,500 113,000 137,500 0
Hood Canal 204,000 142,000 62,000 0

16. The following figures represent subsistence 
and ceremonial and on-reservation estimates of 
treaty catch as previously filed by plaintiff tribes 
with this Court:



A — 44

Subsistence and Ceremonial
(The below listed number should be added to the run size and harvestable 
numbers above listed)

COHO CHUM
Straits
Nooksack-

2,000 300

Samish 4,000 5,000
Skagit
Snohomish-

1,600 1,200

Stillaguamish 2,200 5,500
South Sound 17,000 11,300
Hood Canal 3,600

On-Reservation

3,500

COHO CHUM

Straits
Nooksack-

12,000 —

Samish No estimates available
Skagit
Snohomish-

3,400 —

Stillaguamish 7,800 —
South Sound 28,000 14,000
Hood Canal 12,000 14,000

The percentage allocations ordered herein for 
coho and chum salmon are solely limited to the 1977 
Puget Sound salmon runs and are based on the facts, 
circumstances and equities peculiar to this year’s 
salmon runs. These allocations of coho and chum 
salmon shall not be interpreted in any way as an 
express or implied modification by this court of Final 
Decision #1.

17. Coho Salmon Allocation
For 1977 the allocations of Puget Sound area 

coho salmon to the treaty Indian fisheries, including 
fish taken for subsistence and ceremonial purposes 
and those taken on the reservations, shall be 45% 
of the total harvestable numbers shown in paragraph



A — 45

15 above and the allocations to the non-treaty 
commercial fisheries shall be 55% of such 
harvestable numbers.

Because North Sound treaty tribes have 
benefitted from fishing on unusually abundant 
sockeye and pink salmon runs, while the South 
Sound tribes have not, the court orders, in the 
interest of equity, that the 45% allocation to the 
treaty fishery be divided so that the share in South 
Sound is closer to 50%, while that in North Sound 
is somewhat further from 50%, as shown below:

Approximate Percentage of Total Harvestable Coho

Area
Non-Treaty
Fishermen

Treaty
Fishermen

Strait of Juan de Fuca 55 45
Bellingham Bay-Samish Bay 

(Nooksack-Samish Rivers) 60 40
Skagit River 63 37
Snohomish-Stillaguamish R. 58 42
South Sound 52 48
Hood Canal 55 45

Purposes of the above division of catch are to 
give a 55%-45% overall allocation, and to give a 
sharing formula of the salmon runs inside Puget 
Sound which will approximate 60% to the treaty 
fishery and 40% to the non-treaty fishery in all 
regions except Bellingham Bay, which is approxi­
mately 50% to the treaty fishery and 50% to the 
non-treaty fishery. The allocation percentages inside 
Puget Sound are intended to provide an allocation 
that can be attainable in practice without complex



A — 46

manipulations in management of the treaty and 
non-treaty fisheries.

These percentages shall continue to apply to any 
revision in those harvestable numbers that may be 
found to be required because of revised estimates of 
run sizes.

(a) Strait of Juan de Fuca Tributaries
Based upon the agreed total numbers of coho 

shown in the table, the court is satisfied that the 
allocation ordered by the court can be achieved by 
an allocation of 60% of the allowable catch in Puget 
Sound of the salmon originating in the Strait of Juan 
de Fuca tributaries to treaty Indian fishermen and 
40% to non-treaty fishermen. On the basis of the run 
size estimates now available, the allocation would be 
22,500 coho to treaty Indian fishermen and 15,500 
to non-treaty fishermen. The non-treaty fishermen 
will have taken an estimated 12,000 coho in the troll 
and sport fishery prior to their return. This number, 
when added to the 15,500 coho allocated to 
non-treaty fishermen, will approximate 55% of the 
harvestable number of coho.

(b) Bellingham Bay-Samish Bay 
(Nooksack-Samish Rivers)

Based upon the agreed total numbers of coho 
shown in the table, the court is satisfied that the 
allocation ordered by the court can be achieved by 
an allocation of 50% of the allowable catch of the 
Bellingham Bay-Samish Bay (Nooksack-Samish



A — 47

Rivers) salmon in Puget Sound to treaty Indian 
fishermen and 50% to non-treaty fishermen. On the 
basis of the run size estimates now available, the 
allocation would be 49,000 coho to treaty Indian 
fishermen and 49,000 to non-treaty fishermen. The 
non-treaty fishermen will have taken an estimated
24.000 coho in the troll and sport fishery prior to 
their return. This number, when added to the 49,000 
coho allocated to non-treaty fishermen, will 
approximate 60% of the total harvestable number of 
coho.

(c) Skagit River
Based upon the agreed total numbers of coho 

shown in the table, the court is satisfied that the 
allocation ordered by the court can be achieved by 
an allocation of 60% of the allowable catch of the 
Skagit River salmon in Puget Sound to treaty Indian 
fishermen and 40% to non-treaty fishermen. On the 
basis of the run size estimates now available, the 
allocation would be 12,000 coho to treaty Indian 
fishermen and 7,600 to non-treaty fishermen. The 
non-treaty fishermen will have taken an estimated
13.000 coho in the troll and sport fishery prior to 
their return. This number, when added to the 7,600 
coho allocated to non-treaty fishermen, will 
approximate 63% of the total harvestable number of 
coho.

(d) Snohomish-Stillaguamish Rivers
Based upon the agreed total numbers of coho 

shown in the table, the court is satisfied that the



A — 50

is a one-step process. Accordingly, for chum salmon 
originating in the Bellingham Bay-Samish Bay 
(Nooksack-Samish Rivers) the allocation is 5,650 
chum salmon to the treaty fishery and 5,650 chum 
salmon to non-treaty fisheries.

For the chum salmon originating in South Sound 
the allocation is 74,400 chum salmon to the treaty 
fishery and 74,400 chum salmon to non-treaty 
fisheries.

For the chum salmon originating in Hood Canal 
the allocation is 32,750 chum salmon to the treaty 
fishery and 32,750 chum salmon to the non-treaty 
fisheries.

19. Chinook Salmon Allocation
Chinook salmon are hereby allocated to treaty 

Indian and non-treaty fishermen on the basis of a 
percentage of the Washington Department of 
Fisheries’ present run size predictions.

(a) Bellingham Bay Chinook Salmon:
The Court is satisfied, based on the advice of 

its technical advisor, Dr. Richard Whitney, that the 
proper allocation to treaty Indian fishermen will be 
achieved by an allocation of 60% (which includes 
on-reservation, ceremonial and subsistence catches) 
of the allowable catch in Puget Sound to treaty 
Indians and 40% to non-treaty fishermen.

On the basis of the present Washington 
Department of Fisheries run size predictions, there 
would be 47,200 salmon for treaty Indians and 31,500 
salmon for non-treaty fishermen. Preliminary



A—51

estimates disclose that the non-treaty troll and sport 
fishery will take an estimated 10,600 chinook salmon 
prior to their return to Bellingham Bay. This 
number, when added to the 31,500 chinook salmon 
allocated to non-treaty fishermen, will approximate 
50% of the harvestable number of chinook salmon 
after deducting the on-reservation, ceremonial and 
subsistence catches.

The report of the Fisheries Advisory Board of 
August 23, 1977 on the subject of the Bellingham Bay 
chinook fishery informed the court that the 
non-treaty share of chinook salmon in Bellingham 
Bay had been reached and therefore the non-treaty 
fishery was scheduled to close August 24, 1977.

(b) Skagit Bay Chinook Salmon:
The Court is satisfied, based on the advice of 

its technical advisor, Dr. Richard Whitney, that the 
proper allocation to treaty Indian fishermen will be 
achieved by an allocation of 70% (which includes 
on-reservation, ceremonial and subsistence catches) 
of the allowable catch in Puget Sound to treaty 
Indians and 30% to non-treaty fishermen.

On the basis of the present Washington 
Department of Fisheries run size predictions, there 
would be 6,600 salmon for treaty Indians and 2,800 
salmon for non-treaty fishermen. Preliminary 
estimates disclose that the non-treaty troll and sport 
fishery will take an estimated 1,800 chinook salmon 
prior to their return to Skagit Bay. This number 
when added to the 2,800 chinook salmon allocated



A — 52

to non-treaty fishermen will approximate 50 % of the 
harvestable number of chinook salmon after 
deducting the on-reservation, ceremonial and 
subsistence catches.

The report of the Fisheries Advisory Board of 
August 23, 1977 on the subject of the steps taken 
by the Washington Department of Fisheries to 
comply with the Memorandum Order and Prelimi­
nary Injunction signed by this court on August 10, 
1977 informed the court that Skagit Bay was closed 
to non-treaty fishermen August 18, 1977 because the 
non-treaty allocation was reached.

(c) Hood Canal Chinook Salmon:
The Court is satisfied, based on the advice of 

its technical advisor, Dr. Richard Whitney, that the 
proper allocation to treaty Indian fishermen will be 
achieved by an allocation of 75% (which includes 
on-reservation, ceremonial and subsistence catches) 
of the allowable catch in Puget Sound to treaty 
Indians and 25% to non-treaty fishermen.

On the basis of the present Washington 
Department of Fisheries run size predictions, there 
would be 12,500 salmon for treaty Indians and 4,100 
salmon for non-treaty fishermen. Preliminary 
estimates disclose that the non-treaty troll and sport 
fishery will take an estimated 4,700 chinook salmon 
prior to their return to Hood Canal. This number 
when added to the 4,100 chinook salmon allocation 
to non-treaty fishermen will approximate 50% of the 
harvestable number of chinook salmon after



A — 53

deducting the on-reservation, ceremonial and 
subsistence catches.

The court is informed by the court’s technical 
advisor, Dr. Richard Whitney, that the treaty 
allocation of chinook salmon in Hood Canal has been 
reached and the treaty fishery has therefore been 
closed.

(d) Closures.
Non-treaty fishermen shall not fish commercial­

ly for chinook salmon in any Puget Sound area 
(including Strait of Juan de Fuca), other than Hood 
Canal, as above specified, unless prior approval of 
the regulations authorizing such fishing is obtained 
from the court’s Fisheries Advisory Board or the 
court.

Treaty fishermen shall not fish in Hood Canal, 
as above specified, unless prior approval of the 
regulations authorizing such fishing is obtained from 
the court’s Fisheries Advisory Board or the court.

20. Gordon Sandison is the duly appointed 
Director of Fisheries of the State of Washington. 
Ralph W. Larson is the duly appointed Director of 
Game of the State of Washington.

21. The issuance of a preliminary injunction is 
necessary to prevent irreparable injury to the 
plaintiff tribes and their members.

22. The United States of America and the 
plaintiff tribes have no adequate remedy at law.

23. It is necessary in aid of this court’s 
jurisdiction and to protect and effectuate its



A — 54

judgments that a Preliminary Injunction be issued 
as hereinafter set out.

REMOVAL OF TREATY ALLOCATION 
FROM STATE EXERCISE OF 

JURISDICTION

The Supreme Court of the United States has 
held that while the states have jurisdiction under 
their police power to regulate the off-reservation 
exercise of the treaty Indians’ reserved fishing right 
to the extent necessary to preserve the resource, they 
do not have the authority to qualify that right, even 
though the Indians are now citizens of the United 
States. Puyallup Tribe v. Department of Game, 391 
U.S. 392, 398 (1968). That Court has not hesitated 
to prohibit the application to treaty Indians of state 
laws that went beyond this limited power of 
regulation. Antoine v. Washington, 420 U.S. 194 
(1975); Washington Department of Game v. 
Puyallup Tribe, 414 U.S. 44 (1973); Tulee v. 
Washington, 315 U.S. 681 (1942). The Court of 
Appeals for this Circuit has done likewise. United 
States v. Washington, 520 F.2d 676 (1975) (this 
case); Holcomb u. Confederated Tribes, 382 F.2d 
1013 (1967); Maison v. Confederated Tribes, 314 
F.2d 169 (1963); Makah v. Schoettler, 192 F.2d 224 
(1951).

On the basis of the above findings of State 
refusal to manage the fishery resources that are 
subject to the reserved and federally-secured rights



A — 55

of the plaintiff tribes and to regulate the harvest 
thereof in a manner that conforms to this Court’s 
prior holdings and decrees that have now become 
final and binding as a result of completion of 
appellate review, this Court reluctantly, but 
necessarily, finds that it is necessary for this Court 
to make the allocations required to effectuate those 
decrees, including approval of allocations of fish 
necessary for propagation escapement to perpetuate 
the fish runs, and to enjoin the State from exercising 
any form of jurisdiction over the fish so allocated 
without obtaining the express approval of this Court 
in a manner herein provided for.

It is further necessary that this court require the 
defendants to adopt and enforce appropriate 
regulations to prevent non-treaty fishermen from 
taking more than their allocated shares of the runs 
or from taking fish needed for propagation to 
perpetuate the runs.

Accordingly, it is Hereby Ordered that:
A. The 1977 allocations of Puget Sound salmon 

shall be those adopted in this Memorandum Order 
and Preliminary Injunction unless modified by this 
court.

B. The Washington Department of Fisheries 
shall be responsible for developing updated estimates 
of run sizes for coho and chinook salmon as each 
particular fishery develops and advise the court, the 
court’s Technical Advisor, and the Northwest Indian 
Fisheries Commission who shall in turn be



A — 58

G. Nothing in this Order shall diminish the 
immunity from state regulation or affect the 
jurisdiction of self-regulatory tribes as prescribed by 
prior Orders of this court, except that such tribes 
shall be bound by the allocations made effective 
pursuant to the provisions of this Order.

H. The United States, through its appropriate 
agencies and officers, is hereby directed to monitor 
fishing activities in the waters of the case area for 
and on behalf of the court and to report to the court 
on a daily basis, with copies to all affected parties, 
regarding the extent of compliance with State, tribal 
and court determined regulations and to immediately 
report any substantial violations thereof to the court 
for further action as the court deems appropriate.

MISCELLANEOUS PROVISIONS

I. The defendants shall not apply or enforce 
RCW 75.12.010 or the regulations of the Director of 
Fisheries concerning certain Puget Sound salmon 
fisheries adopted July 22, 1977, to regulate, limit or 
restrict the exercise of the fishing rights of a treaty 
tribe or to authorize a non-treaty harvest in excess 
of the amounts allocated for that purpose pursuant 
to this Order.

J. The defendants shall not adopt, apply or 
enforce any regulations — including Director of 
Fisheries Order No. 77-60 — to regulate, limit or 
restrict any fishing by members of a treaty tribe that 
is authorized by regulations of the United States or



A — 59

any of its agencies without first obtaining the prior 
express approval of this court.

K. The defendants shall not apply or enforce 
any emergency regulations adopted under the 
permission of paragraph 19 of this court’s Injunction 
of March 22, 1974, as modified by the Order of 
December 27, 1976, Order Re: Rules of Procedures 
for Fisheries Advisory Board, to limit or restrict the 
exercise of the fishing rights of a treaty tribe beyond 
the period for which the facts and circumstances of 
the emergency recited in the statement filed with this 
court continue to exist or beyond thirty days after 
the adoption of such emergency regulations, 
whichever is shorter, provided that for regulations 
heretofore adopted, said thirty-day period shall 
commence on the date of this Order. The foregoing 
durational limitation on emergency orders shall not 
preclude the defendants from adopting, in accord­
ance with the approved procedural and other 
provisions of this court’s orders, continuing 
regulations or renewing emergency regulations to 
deal with conditions that extend beyond thirty days. 
The defendants shall not, without the prior approval 
of this court, adopt, apply or enforce any emergency 
closure or limitation of treaty fishing if the 
non-treaty fishermen have taken more than the 
number of fish allocated pursuant to this order for 
the non-treaty harvest from any run affected by such 
regulation.

L. The portions of this court’s order of March



A — 62

that a salmon management plan be adopted by this 
court forthwith.

Accordingly, the court adopts the following plan, 
effective immediately, which in the opinion of the 
court will best accommodate the interests of all 
parties. However, the court recognizes that this plan 
is not an end, in and of itself. Therefore, the court 
instructs the parties to continue to work together 
with the court’s technical advisor, and through the 
Fisheries Advisory Board, to refine issues that may 
still require clarification, modification, or develop­
ment, such as the three points raised by Dr. Whitney 
in his memorandum to the court dated August 30, 
1977, and to present to the court for approval any 
proposed clarifications to which all parties agree.

The following plan shall continue in effect until 
May 30, 1982. However, on or before May 1 of each 
succeeding year, beginning with 1978, the parties are 
instructed to confer with each other and the court’s 
technical advisor with respect to any recommended 
clarifications and/or modifications of any provisions 
contained in the salmon management plan then in 
effect. If no modifications are proposed to the court 
prior to May 15 of any year, the then existing salmon 
management plan will automatically continue in
effect for another year.
1. Preamble
1.1 The purpose of this plan is to establish
guidelines for management of salmonid resources 
originating in or passing through Washington waters



from the mouth of the Strait of Juan de Fuca 
eastward (Puget Sound). The parties, hereto, all 
Puget Sound Treaty Tribes, and the State of 
Washington, agree to a philosophy of cooperation in 
implementing management programs to maintain, 
perpetuate and enhance the salmonid resources.
1.2 This plan is intended to insure that treaty 
fishermen and non-treaty fishermen subject to their 
respective regulatory authorities shall be accorded 
the opportunity to harvest their shares as determined 
in United States v. Washington, 384 F. Supp. 312, 
aff’d 520 F.2d 676, cert, denied 423 U.S. 1086 
(1976).
1.3 The parties agree to enact and recommend for 
enactment by the Pacific Fishery Management 
Council, appropriate regulations for the ocean 
salmon fishery that will provide for adequate 
escapement of salmon into Puget Sound waters to 
achieve the goals and purposes of this plan.
1.4 The parties shall advocate and recommend to 
the appropriate governmental and regulatory 
entities, international agreements to reduce foreign 
interceptions, particularly Canadian, of salmonids 
originating from Puget Sound.
1.5 The duration of this plan shall be for five (5) 
years from the date of acceptance by the court, 
subject to annual review, renewal, and modification, 
except that the provision (Sec 7.2) for the annual 
adjustment of shares shall be modified only upon 
terms that are equitable.



A — 64

1.6 Where action of the parties is required in this 
plan, failure to act or to reach agreement shall be 
resolved as provided in section 11.
1.7 This order supplements and where inconsist­
ent modifies the order on certain questions re: 
Fisheries Management, dated April 13, 1976, United 
States v. Washington, Civil No. 9213 WD Wash, 
which is hereby extended and shall remain in effect 
until further order of the court. This order also 
supplements and, where inconsistent, modifies the 
Order for Program to Implement Interim Plan, dated 
October 8, 1974 as extended by the Minute Order 
dated April 5, 1976 and the Order Re: Rules of 
Procedure for Fisheries Advisory Board and 
Resolution of Disputes, dated December 17, 1976.

This order, for example, removes from the court 
much of the burden of making equitable adjustments 
through an automatic adjustment mechanism 
(Section 7.2).
2. Definitions — Except where the context 
clearly requires otherwise, the following terms used 
in this plan have the following meanings:
2.1 Prior net interceptions. Harvest by net 
fisheries of a run outside of its region of origin. 
Computed separately for treaty and non-treaty 
fishermen.
2.2 Region of origin. A geographic area which 
can be used to separate runs of the same species. The 
following geographic areas are recognized regions of 
origin for Puget Sound: 1) Strait of Juan de Fuca



A — 65

(Tributaries) 2) Bellingham-Samish Bays-Nook- 
sack-Samish Rivers 3) Skagit 4) Stillaguamish- 
Snohomish 5) South Puget Sound, South of 
Snohomish System 6) Hood Canal 7) Canada.
2.3 Run. A stock, or group of stocks identified 
for fishery management purposes which return to the 
same region of origin at similar times.
2.4 Run management period. A time interval 
during which a specific run is a target of a fishery 
in a particular harvest management area.
2.5 Run size. The total number of fish in a 
run.
2.6 Salmonid. Refers only to the following 
species:

Chinook—Oncorhynchus tshawytscha (also 
called spring, king, tyee, or 
blackmouth)

Coho—Oncorhynchus kisutch (also called 
silver, silverside, or hooknose)

Pink—Oncorhynchus gorbuscha (also called 
humpback or humpy)

Chum—Oncorhynchus keta (also called dog 
or keta)

Sockeye—Oncorhynchus nerka (also called 
red or blueback)

Steelhead—Salmo gairdneri
2.7 Stock. A population of one species migrating
to a particular lake or stream (or portion thereof) 
within a region of origin, at a particular season.
2.8 Twelve Questions. Order on Certain 
Questions re: Fisheries Management, dated April 13, 
1976, United States v. Washington, W.D. Wash. No. 
9213.



A — 66

2.9 Viable natural stock. A stock for which a 
spawning escapement goal is established with the 
intent that the fishery will be managed to meet this 
goal.
3. Steelhead stocks. The parties shall 
manage from the premise that steelhead and salmon 
fisheries are intimately related.

The parties have made substantial progress in 
developing cooperative plans for scientific man­
agement of steelhead in their respective river 
systems, and it is important that these efforts result 
in firm management agreements prior to the 1977-78 
steelhead season.

Therefore, prior to October 1, 1977, the affected 
parties shall reach agreement regarding the 
management of steelhead fisheries system by system 
and stock by stock.
4. Escapement. Meetings of technical repre­
sentatives regarding escapement goals during 
development of joint management principles for 1977 
have proven especially productive. Therefore, the 
concepts of the “ Initial Understandings on Technical 
Issues” , of April 12, 1977, are essentially incorporated 
herein. This section, also, addresses the special 
problems which have arisen in past seasons from 
unilateral changes in escapement goals for hatchery 
stock requirements. Sections 4.2.1.1 and 4.3.1 will 
resolve such questions prior to the season in the 
future. Basic premises used are that harvest and 
enhancement policies and programs must be



tempered with the understanding that certain 
natural stocks of salmonids native to particular river 
systems should be preserved and protected 
sufficiently to insure their perpetual existence and 
production.
4.1 Escapement goals shall be developed sepa­
rately for natural stocks and hatchery stock 
requirements.
4.2 Escapement goals for natural stock requir­
ements apply to those stocks where egg deposition 
and fertilization occur naturally.

4.2.1 Escapement goals for natural stock 
requirements shall be established only for viable 
natural stocks.
4.2.1.1 The affected parties shall reach 
agreement as to which natural stocks shall be 
considered viable natural stocks.
The following natural runs have been deter­

mined by WDF not to be viable for harvest 
management purposes and in terms of achieving full
natural spawning escapement goals WDF has
conducted artificial 
accordingly:

production programs

Bellingham Bay 1977, 78, 79, 80 
1977, 78

Chinook
Coho

Skokomish River 1977, 78, 79, 80 
1978

Chinook
Coho

Carr Inlet 1977, 78 Coho
Puyallup River 1977, 78 Coho
Duwamish- 
Green River 1977, 78 Coho



A — 68

Dungeness River 1977, 78 Coho
Elwha River 1977, 78 Coho

From the date of the adoption of this plan, parties 
shall agree on the enhancement planning that 
determines which natural stocks are considered 
viable and, therefore, determines future harvest 
management policies. This must, however, be in the 
manner and time frame described below:

a) for new facilities this shall first be considered 
during the site selection and facility planning 
stages.

b) for all facilities this shall be considered prior 
to annual hatchery programming, on or about 
August 1 of each year.

In reaching an agreement, the parties shall consider 
the following factors:
Impact upon existing hatchery stock harvest
in the mixed stock fishery and the terminal fishery 
due to harvest rates necessary to provide for the 
natural escapement goal.
Harvestable numbers presently produced by a 
natural stock, or which may be projected based upon 
potentially available spawning ground and/or rearing 
environment.
Unique characteristics of the natural stock with 
respect to behavior, physiology or morphology, which 
indicate value for future natural or hatchery stock 
development.
4.2.2 Except as otherwise agreed between all 
affected parties, a viable natural stock as determined



A — 69

in section 4.2.1.1 shall remain a viable natural stock 
from year to year.
4.2.3 Annually, prior to each fishing season, the 
affected parties shall reach agreement as to 
escapement goals for natural stocks, according to the 
following schedule:

fall chinook stocks — April 1 
coho stocks — May 1 
chum stocks — June 1
all other stocks — at least forty (40) days prior 
to the entry of the stock into Puget Sound.

4.2.4 Escapement goals for natural stocks shall be 
the number of spawners which would, in an average 
year, maximize the biomass of juvenile outmigrants 
subsequent to incubation and freshwater rearing, 
under average environmental conditions. These goals 
shall be consistent with the population limiting 
factors for each species, e.g., spawning area and/or 
rearing area. In cases where the total run size of a 
stock entering Puget Sound is less than the 
escapement goal, it is understood that the 
escapement goal will not be fully attainable.
4.2.5 Except as otherwise agreed by all affected 
parties, escapement goals under this section 4.2 shall 
not be changed during the fishing season.
4.3 Escapement goals for hatchery stock require­
ments apply to those stocks from which eggs are 
collected and fertilized artificially.

4.3.1 The escapement goal for hatchery 
requirements is that number of spawners needed 
from a stock to meet an artificial production



A — 70

plan that is agreed upon by all affected 
parties.
4.4 Prior to the fishing season the affected 
parties shall reach agreement as to the methods 
for estimating actual escapement to the 
spawning grounds according to the following 
schedule:

fall chinook stocks — April 1
coho stocks — May 1
chum stocks — June 1
all other stocks — at least forty (40) days
prior to the entry of the stock into Puget
Sound.

4.5 Annually, prior to the fishing season, the 
Washington Department of Fisheries shall 
provide to all parties proposed draft reports on 
the following schedule:

fall chinook stocks — March 1
coho stocks — April 1
chum stocks — May 1
all other stocks — at least seventy (70) days
prior to the entry of the stock into Puget
Sound.

These reports shall be prepared on a system by 
system, species by species basis and shall contain 
proposed escapement goals for natural stock and 
hatchery stock requirements, and proposed 
methods and data for estimating escapement. 
These reports shall serve as a basis for 
discussions and to promote mutual understand­
ing between the parties in reaching agreements 
as to these matters.

5. Run Size Estimation. The “ Initial Under­
standings on Technical Issues,” of April 12, 1977, 
demonstrate the clear agreement of all parties that 
some pre-season forecasts are inadequate and that 
in-season run strength estimation, together with



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pre-season forecasts, must be utilized for harvest 
management, both for providing escapement and 
allocation of the harvest.
5.1 Qualitative and quantitative pre-season 
forecasts shall be distributed by the Washington 
Department of Fisheries to all parties for each 
salmon species and region of origin. These reports 
shall include detailed data on brood year spawning 
escapements and artificial production releases, and 
other data and methods used to derive the pre-season 
forecasts.
5.2 Prior to June 1, 1978, the affected parties 
shall reach agreement as to the methods and 
estimates to be used for pre-season and in-season run 
strength estimation in each region of origin.
6. Harvest Rates. The following rules shall 
govern harvest management in all salmon fisheries, 
except as otherwise agreed by all affected parties.
6.1 Harvests of salmon in mixed stock areas shall 
insure that the weakest viable stock is protected.
6.2 The maximum harvest rate for a stock or set 
of stocks shall be defined as follows:

H = S -  E 
S

where,
H = the maximum harvest rate 
S = the numerical abundance of a defined 

stock or set of stocks based on the best 
available estimate of run size (see Section 
5).

E = the sum of escapement goals applicable to 
the stock or set of stocks.



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6.3 The maximum harvest rates in each fishing 
area shall be determined separately for hatchery and 
viable natural stocks. Of the harvest rates computed 
in each fishing area, the lowest rate shall prevail in 
the management of the area during the course of the 
run, provided, however, that all affected parties may 
agree to a lower harvest rate.
6.4 Harvest rates in each fishing area shall be 
agreed upon between the State and all affected 
Tribes on the basis of escapement goals agreed upon 
between the parties.
7. Allocation of Harvest
7.1 Shares shall be computed separately for each 
species and region of origin, unless otherwise agreed 
between all affected parties.
7.2 Both the State and the Tribes recognize that 
fisheries management is not sufficiently precise to 
provide a prescribed harvest allocation between 
Treaty (fishermen) and non-Treaty (fishermen) on 
every run each year. Therefore, if Treaty or 
non-Treaty fishermen are not provided the 
opportunity to harvest their share of any given run 
as provided (by the orders of this court), deficiencies 
in numbers of fish shall be made up during the next 
succeeding run of the same species whenever 
practicable. If necessary, the deficiency for each 
given year shall be distributed and made up over a 
series of years, not exceeding five years. Annually, 
prior to June 1, the parties shall agree upon 
recommendations regarding implementation of this



A — 73

Section. This does not apply to Fraser River sockeye 
and pink salmon.
7.3 Catches made in Puget Sound marine waters 
having a mixture of stocks from two or more of the 
regions of origin in Puget Sound will be apportioned 
on the basis of comparative run size estimates for 
the stocks involved.
7.4 Prior catch projections by troll, and sport 
fisheries shall be agreed upon annually by the parties 
according to the following schedule:

spring chinook stocks — March 1 
summer-fall chinook stocks — June 1 
coho stocks — June 1

8. Catch Recording System. Reliable “soft” 
and “hard” data systems are needed for in-season 
fisheries management needs and for the finalizing 
catch and effort statistics, respectively. The “ soft” 
data system shall provide updated current catch and 
effort information as frequently as is necessary for 
in-season management purposes.
8.1 To the extent feasible, the “ hard” data shall 
include catch of salmon and steelhead for ceremonial 
and subsistence use for all fisheries of the 
parties.
8.2 Processing of Treaty Indian fish tickets, 
correction of errors in such tickets, and collection of 
such data shall be carried out under an agreed upon 
joint catch monitoring system which recognizes the 
need and responsibility of each Treaty Tribe to 
correct its own fish ticket information. Primary



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emphasis will be on achieving completeness and 
accuracy in the initial preparation of the fish 
ticket.
9. Timing and Contents of Tribal 
Regulations
9.1 The parties shall cooperate to develop a 
system for filing, compiling, transmitting, and 
cross-indexing both pre-season and in-season tribal 
and state regulations affecting Puget Sound harvests 
(e.g., common files accessed by computer terminals). 
In cases of conflicts, the system must identify the 
applicable regulations.
9.2 At least twenty-one (21) days prior to a run 
management period, tribes shall file, either 
separately or in common with other affected tribes, 
written regulations specifying at least the areas to 
be managed, the beginning and duration of the run 
management period, any appropriate gear restric­
tions and estimates of the amount of each gear type 
to be used under the regulation.
9.3 At least twenty-four (24) hours prior to 
effectiveness, tribes may supplement the pre-season 
regulations by filing either separately or in-common 
with other affected tribes, written regulation 
modifications reflecting updated estimates of run 
strength specifying at least the duration and location 
of fishing to be conducted by each commercial gear 
type. This provision shall not limit the ability of 
tribes to promulgate emergency regulations, in 
accordance with prior orders of this court, for



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fisheries managed by the International Pacific 
Salmon Fisheries Commission.

Subject to the provisions of other applicable 
orders of this court, the “Order Re: Rules of 
Procedure of Fisheries Advisory Board and 
Resolutions of Disputes,” dated December 17, 1976, 
shall be and hereby is modified to permit the State 
of Washington to enact emergency closures of treaty 
right fishing for conservation purposes within 
twenty-four (24) hours, in cases where the tribal 
parties have not provided the state at least sixty (60) 
hours notice of the tribal emergency opening 
required by this order.
10. Submission of Regional Management
Plans — Prior to June 1, 1978, all treaty tribes shall, 
separately or in common with other affected tribes, 
submit comprehensive management plans for the 
portions of Puget Sound waters in which their tribal 
fisheries are conducted. The goal of these plans shall 
be to achieve coordination between all affected tribes 
and to eliminate potential conflicts in management 
strategy. These regional plans of the tribes shall 
specifically address the provisions of this plan as to 
viable stocks, escapement goals for both natural and 
hatchery production, methods of in-season run size 
estimation, harvest rates and intertribal sharing, and 
other matters as required by this Order.
11. Resolution of Disputes
11.1 Disputes regarding failure to reach 
agreeements, or to take, or to refrain from taking,



A — 76

any action required under this agreement shall be 
resolved as provided in the Order Re: Rules of 
Procedure for Fisheries Advisory Board and 
Resolution of Disputes, dated December 17, 1976, 
United States v. Washington, (W.D. Wash. No. 
9213), except that no party may object to the 
jurisdiction of the Board as to matters addressed by 
this Plan. In addition, the parties shall choose a 
technical advisory committee or committees, which 
shall develop and analyze data pertinent to this 
agreement, including but not limited to the following: 
calculated run size for all species of fish, ocean 
catches, escapement goals, catches and adjustments, 
habitat restoration, and hatchery rearing programs. 
Such a committee shall make recommendations to 
the fishery management entities to assure that the 
commitments in this agreement are realized. 
Members shall be qualified fishery scientists familiar 
with technical management problems in Puget 
Sound. The committee shall be comprised of an equal 
number of representatives named by the State of 
Washington and the Indian Tribes, respectively.
11.2 This Plan shall in no way affect or be 
considered by any person, party, or court to affect 
the continuing jurisdiction of the United States 
District Court for the Western District of Washing­
ton over all issues and matters within the jurisdiction 
of that Court pursuant to the ruling in United States 
v. Washington, No. 9213.
11.2.1 This Plan shall in no way be considered to



A — 77

change Final Decision #1 of the United States 
District Court for the Western District of Washing­
ton in United States v. Washington, No. 9213, with 
regard to sharing principles, usual and accustomed 
fishing places, treaty rights, the self-regulating status 
of Indian Tribes, the off-reservation jurisdiction of 
Indian tribal governments, the obligations of the 
State of Washington, the special status of 
on-reservation fisheries, or any other matter.

The foregoing plan is hereby adopted by the 
court this 31st day of August, 1977.

/s/.
George H. Boldt
Senior, United States District Judge



A—78



A — 79

UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF WASHINGTON 

AT TACOMA

United States of A merica, et al.,
Plaintiffs,

vs.
State of W ashington, et al.,

Defendants.
CIVIL NO. 9213

FINDINGS OF FACT AND CONCLUSIONS OF 
LAW RE: ENFORCEMENT OF 1977 

FISHERIES ORDERS

On September 27, 1977, the Court entered an 
Order Granting Preliminary Injunction Re: Enforce­
ment of 1977 Fisheries. Based upon the pleadings, 
memoranda and affidavits submitted by the parties, 
the testimonial and documentary evidence admitted 
at a hearing held before the Magistrate on September 
22, 1977, and at a hearing held before the Court on 
September 27, 1977, and on the oral arguments of 
counsel, the Court made and hereby enters the 
following findings of fact and conclusions of law in 
support of that Order.

FINDINGS OF FACT
1. In Final Decision #1 herein, this Court 

recognized and affirmed the responsibility of all 
citizens to see that the terms of the treaties involved



A — 80

in this litigation are carried out. (384 F.Supp. 406 
(Declaratory Judgment and Decree, 1112).)

2. In Final Decision #1, this Court ordered the 
defendants to make significant reductions in the 
non-Indian fishery in order to assure that the treaty 
fishermen will have their rightful opportunity to 
harvest fish. (384 F.Supp. 420 (Interim Plan and Stay 
Order, 115).)

3. On August 31, 1977, this Court removed from 
the State of Washington all authority over the treaty 
harvest opportunity (except such authority as is 
needed to insure conservation), and further made an 
allocation of the 1977-1978 fish runs in Puget Sound 
between the treaty and non-treaty harvest opportun­
ities. (Memorandum Order and Preliminary Injunc­
tion, August 31, 1977.)

4. Since Final Decision #1, certain non-treaty 
fishermen have engaged in a substantial number of 
violations of those state fishing regulations which 
were issued to comply with allocation orders of this 
Court and protect treaty fishing rights. (Ex. PL 
130-134; Tr. 9/22/77 (Miller) pp. 47-48, 50-51, 
58.)

5. A substantial number of the violations 
referred to Finding #4 above, did not result in 
criminal citations from the State of Washington or 
any other sanction. (Ex. PL 130; Tr. 9/22/77 (Miller) 
pp. 52, 61.)

6. A substantial number of the citations which 
were issued in response to the violations described



A— 81

in Finding #4 above did not result in criminal 
prosecution by the State of Washington or any other 
type of enforcement action. (Ex. PL 130; Tr. 9/22/77 
(Miller) p. 52.)

7. A substantial number of the state court 
criminal prosecutions which did take place as a result 
of violations referred to in Finding #4 above resulted 
in dismissals on the ground that the Department of 
Fisheries has no authority to issue regulations 
designed to comply with orders of this Court and to 
protect treaty fishing rights. (Ex. PL 130, 144.)

8. Decisions by the Washington Supreme Court 
in Puget Sound Gillnetters Association v. Moos, 565 
p.2d 1151 (1977), and Purse Seine Vessel Owners 
Association v. Moos, No. 43938, July 1977, have 
apparently given approval to the state court practice 
of dismissing prosecutions against non-treaty 
fishermen. In Puget Sound Gillnetters Association 
v. Moos, the Washington Supreme Court said that 
the Director of Fisheries may not “allocate fish 
among competing claimants for purposes other than 
conservation,” and that he may not “allocate fish to 
treaty Indians or to non-Indians.” Those rulings 
prevent defendants from complying with earlier 
decrees of this Court in the particulars specified in 
Finding of Fact #6 in this Court’s Memorandum 
Order and Preliminary Injunction of August 31, 1977, 
which finding is adopted herein by reference. They 
also prevent defendants from complying with the law 
as set forth in repeated holdings of the United States



A — 82

Supreme Court on which this Court’s decision is 
based.

9. As a result of the decisions of the Washington 
Supreme Court referred to in Finding #8, above, 
there have been widespread, open and intentional 
violations of this Court’s orders (and of state 
regulations enacted to comply with those orders) by 
certain non-treaty fishermen during the current 
fishing season. (Ex. PL 140, 144, 146-152; Tr. 9/22/77 
(Lewis) pp. 15-20; Tr. 9/22/75 (Miller) p. 58.)

10. Although the Washington Department of 
Fisheries has indicated that it intends to enact 
regulations which comply with this Court’s allocation 
orders, it feels that such regulations will be 
ineffectual because of the refusal of certain county 
prosecutors to prosecute citations issued for violation 
of those regulations and the refusal of certain state 
courts to convict individuals who commit those 
violations. (Ex. PL 138, 139, 144; Tr. 9/22/77 (Miller) 
pp. 52, 62; Temporary Restraining Order Re: 
Enforcement of 1977 Fisheries, August 31, 1977, 
herein.)

11. Despite the violations referred to in Finding 
#9, above, the Department of Fisheries has not issued 
a single citation for violation of those state 
regulations. (Tr. 9/22/77 (Miller) p. 61.)

12. The State of Washington and its Depart­
ment of Fisheries is, and will be, unable to enforce 
regulations it adopts to comply with orders of this



A — 83

Court. (Ex. PL 138, 144; Tr. 9/22/77 (Miller) pp. 
61-63; Tr. 9/22/77 (Lewis) pp. 22-23.)

13. This litigation has adjudicated the right of 
the State of Washington to authorize the harvest of 
anadromous fish and the rights of all its citizens to 
harvest those fish.

14. Because of the public nature of this 
litigation, implementation of the judgment depends 
in part on cooperation by the State of Washington 
and its citizens, and is vulnerable to disruption by 
any of a large number of individuals, whose 
identitites cannot practicably be specified in 
advance.

15. During 1975, 1976 and 1977, certain
non-treaty fishermen have engaged in regular, 
intentional, admitted violations of this Court s 
orders. They have caused widespread disregard of the 
orderly process of law and adjudication of rights. 
They have frustrated the exercise of plaintiffs’ 
federally protected treaty rights and implementation 
of this Court’s orders designed to protect those 
rights, and have interfered with defendants ability 
to comply with those orders.

16. Those circumstances interfere with this 
Court’s jurisdiction over the property involved in this 
litigation, and specifically with its jurisdiction over 
the harvest opportunity reserved to the tribes by the 
treaties, and further interfere with this Court’s 
ability to protect and effectuate its prior decrees.

17. The conditions described in Findings #15



A — 84

and 16 above have continued and become much more 
severe during the current coho salmon fishing season. 
(Ex. PL 140, 146-152; Tr. 9/22/77 (Lewis) pp. 16-20; 
Tr. 9/22/77 (Miller) p. 58.)

18. Other methods used by this Court to seek 
compliance with its orders in this case in previous 
years (e.g., Preliminary Inuunction, 1975 Chum 
Fishing, October 27, 1975; Order Re 1976 Coho 
Fishery, September 6, 1976) have not succeeded in 
deterring violations of those orders.

19. The only reasonable method available to 
achieve compliance with this Court’s orders and 
protection of plaintiffs’ treaty rights is enforcement 
of those orders by this Court, by means of an 
injunction directed toward violators of those orders 
enforced by federal law enforcement officers.

20. This Court has always given, and continues 
to give, all individuals and groups who desire to be 
heard in this case an opportunity to present their 
positions and arguments. Attorneys for the groups 
which represent non-treaty fishermen were served 
with the pleadings and with notice of the hearings 
which culminated in entry of these findings, 
conclusions and orders.

21. The interests of non-treaty fishermen 
continue to be adequately, ably and vigorously 
advocated by the State of Washington, its 
Department of Fisheries and its attorneys.

22. Injunctive relief is necessary to prevent 
irreparable injury to the plaintiff tribes and their 
members.



23. Injunctive relief is necessary in aid of this 
Court’s jurisdiction and to protect and effectuate this 
Court’s prior judgments.

24. Plaintiffs have no adequate remedy at
law.

CONCLUSIONS OF LAW
1. An allocation of the fishing opportunity 

between treaty and non-treaty fishermen, and 
enforcement of that allocation, is an appropriate 
exercise of this Court’s discretion. Department of 
Game v. Puyallup Indian Tribe, 414 U.S. 44 (1973); 
Puyallup Indian Tribe v. Department of Game, 97
S.Ct. 2616 (1977); United States v. Washington, 520
F.2d 696 (9th Cir., 1975).

2. This Court has the authority and the duty to 
protect and effectuate its prior judgments. Brown v. 
Board of Education, 394 U.S. 294 (1955); Cooper v. 
Aaron, 358 U.S. 1 (1958); Bullock v. United States, 
265 F.2d 683 (6th Cir.) cert, den., 360 U.S. 909 
(1959).

3. This Court has broad discretion to fashion 
remedies which will protect and effectuate its earlier 
rulings, the more so when the public interest and the 
rights of a large group of people are involved. 
Virginia Railroad Co. v. System Federation, 300 U.S. 
515 (1937); Golden State Bottling Co. v. N.L.R.B., 
414 U.S. 168 (1973); Bullock v. United States,
supra.

4. This Court is empowered to issue all writs 
necessary or appropriate in aid of its jurisdiction



A — 86

which are agreeable to the usages and principles of 
law. 28 U.S.C. §1651.

5. This Court is empowered to punish dis­
obedience or resistance of its lawful orders and 
decrees. 18 U.S.C. §401.

6. In limited and extraordinary circumstances, 
this Court may enjoin individuals who are not parties 
to this action where they have notice of this Court’s 
orders, they intentionally violate those orders, where 
they are members of a class who cannot realistically 
be specified in advance of such violations, and their 
actions violate the rights of a large class of plaintiffs, 
interfere with the obligations and ability of 
defendants to comply with this Court’s orders, create 
conditions of lawlessness and chaos in the 
community and interfere with this Court’s ability to 
adjudicate the rights and responsibilities of the 
parties before it. Kasper v. Brittain, 245 F.2d 92 (6th 
Cir.), cert. den. 355 U.S. 834 (1957); Bullock v. 
United States, supra; United States v. Hall, 472 
F.2d 261 (5th Cir. 1972).

7. This Court may enjoin individuals who are 
not parties to the lawsuit when they are in privity 
with one of the parties; that is, when the party is 
representing the interests and advocating the 
position of the non-party. City of Tacoma v. 
Taxpayers of Tacoma, 357 U.S. 320, 340-1 (1957); 
New Jersey v. New York, 345 U.S. 369 (1953).

8. The orders of this Court directed toward the 
State of Washington are binding on its citizens. City



A — 87

of Tacoma v. Taxpayers of Tacoma, 357 U.S. 321 
(1957); Wyoming u. Colorado, 286 U.S. 494 ( );
New Jersey v. New York, 345 U.S. 369 (1953); 
Kentucky v. Indiana, 281 U.S. 163 (1930).

9. This Court may enjoin interference with 
property which is under the control of this Court, 
and punish violations of such injunctions. United 
States v. Dean Rubber Manufacturing Co., 71 
F.Supp. 96 (W.D. Mo. 1946); In re Lustron Corp., 
184 F.2d 789, 798 (7th Cir. 1950), cert, den., 340 U.S. 
946 (1951); 7 Moore’s Federal Practice 1165.13, n.l 
(1976).

Dated this 27th day of September, 1977.

/s/.
George H. Boldt
Senior, United States District Judge



A—88



A — 89

UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF WASHINGTON 

AT TACOMA

United States of  America, et al.,
Plaintiffs,

v.

State of W ashington, et al.,
Defendants.

CIVIL NO. 9213
PRELIMINARY INJUNCTION RE: 

ENFORCEMENT OF 1977 FISHERIES

Upon the motion of the United States, the 
affidavits in the record, the testimony of witnesses, 
together with the records and files of this case, the 
Court finds that the State of Washington remains 
unwilling or unable to control the non-treaty 
fishermen so as to be in compliance with the orders 
of this Court by providing treaty Indians with the 
opportunity to catch their share of the returning 
salmon.

The Court further finds that this situation, if 
permitted to continue, will lead to a breakdown of 
law and order in the case area, the substantial denial 
of federally guaranteed treaty fishing rights and will 
endanger the preservation of the fishery resource.

Therefore, it is hereby Ordered that:
1. All Puget Sound and other marine waters



easterly of Bonilla Point-Tatoosh line and their 
watersheds, all Olympic Peninsula watersheds, and 
all Grays Harbor and its watersheds are hereby 
closed to all net salmon fishing except during such 
times and such specific waters as are opened by State 
or tribal regulations or regulations of the United 
States conforming to the orders of this Court in this 
case.

2. All reef net, gill net and purse seine fishermen 
licensed by the State of Washington, all other 
persons who attempt to net or assist in netting 
salmon in the waters described in paragraph 1, the 
Puget Sound Gillnetters Association, the Purse Seine 
Vessel Owners Association, the Grays Harbor 
Gillnetters Association and all persons in active 
concert or participation with them are hereby 
enjoined and prohibited from engaging in taking, 
possessing, or selling salmon of any species taken 
from such waters, unless such person has first 
ascertained from the Washington Department of 
Fisheries telephone “hot-line” , 1-800-562-5672 or 
1-800-562-5673, that the area to be fished is open for 
fishing by non-treaty fishermen at the time the 
individual intends to fish, provided, that this 
provision shall not apply to persons exercising treaty 
fishing rights in accordance with the orders of this 
Court.

3. The defendant State of Washington is 
directed to maintain a continuous telephone hot-line 
service free of charge to any caller from within the



A—91

State of Washington to provide information on areas 
within the waters described in paragraph 1 of this 
order that are open to net salmon fishing by 
non-treaty fishermen in conformity with the orders 
of this Court. The defendant shall furnish to this 
Court and to the United States Attorney a transcript 
of the daily hot-line messages.

4. The defendant State of Washington is 
ordered and enjoined to commence immediately to 
serve by certified mail return receipt requested or 
otherwise copies of this preliminary injunction on all 
state-licensed commercial salmon net fishermen, and 
any other person found to be engaged in net fishing 
for salmon or assisting in such fishing, and to furnish 
the Court with proof of service or written statement 
of the reason for the inability to serve any particular 
licensee. The United States, through the Coast 
Guard, the National Marine Fisheries Service, the 
United States Marshal’s Service, and such other 
agencies as may be appropriate, may serve copies of 
the preliminary injunction on all such persons.

5. Defendant State of Washington is ordered 
and the United States is directed to cite any 
fishermen who, having received notice of this order, 
thereafter engages in fishing or assisting with fishing 
in violation of the provisions of this order to appear 
before the United States District Court to be ordered 
to show cause why he should not be held in 
contempt.

6. The issuance of a Preliminary Injunction is



A — 92

necessary to prevent irreparable injury to the 
plaintiff tribes and their members and to the salmon 
resource.

7. The issuance of a Preliminary Injunction is 
necessary in aid of this Court’s jurisdiction and to 
protect and effectuate this Court’s prior 
judgments.

This Preliminary Injunction shall remain in 
effect until further order of this Court.

It Is Hereby So Ordered this 27th day of 
September, 1977.

/s/.
George H. Boldt
Senior United States District Judge



A — 93

UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF WASHINGTON

AT TACOMA
United States of America, et al.,

Plaintiffs,
vs.

State of W ashington, et al,
Defendants.

CIVIL NO. 9213
PRELIMINARY INJUNCTION ORDER

This matter having come on before the Court on 
the motion of the United States, and certain plaintiff 
intervenor tribes for a preliminary injunction notice 
of this hearing having been given by the Court on 
October 8, 1977, and the Court having carefully 
considered the records and files of this case, and 
especially the record of the proceedings of August 31, 
1977, September 27, 1977, and September 28, 1977, 
together with the arguments of counsel, the Court 
finds and concluded as follows:

1. On August 31, 1977, this Court entered an 
Order removing the treaty allocation of salmon from 
the jurisdiction of the State of Washington and 
enjoining the State to issue regulations which would 
not permit non-treaty fishermen in the case area 
from catching in excess of fifty-five percent of the 
coho salmon and fifty percent of the chum salmon 
during 1977. The Court by and through its August 
31, 1977, Order specifically allocated the salmon



A — 94

between treaty and non-treaty fishermen as above set 
out.

2. In order to insure proper enforcement of this 
Court’s orders allocating fish between treaty and 
non-treaty fishermen, the Court entered an 
additional order on September 27, 1977, which held 
in part as follows:

The defendant State of Washington is directed 
to maintain a continuous telephone hotline 
service free of charge to any caller from within 
the State of Washington to provide information 
on areas within the waters described in 
paragraph 1 of this order that are open to net 
salmon fishing by non-treaty fishermen in 
conformity with the orders of this Court. The 
defendant shall furnish to this Court and to the 
United States Attorney a transcript of the daily 
hotline messages.
3. On September 28, 1977, this Court allocated 

the available salmon harvest in Grays Harbor so as 
to provide treaty Indians with 45% of the chinook 
and coho and 50% of the chum which returned 
during 1977, and further ordered that the State 
promulgate regulations which would be consistent 
with the Court’s designated allocation.

4. This Court in entering its orders of August 
31, September 27, and September 38, [sic] was 
attempting to provide for the implementation of this 
Court’s decision of February 12, 1974, recognizing, 
but not necessarily condoning the contrary interpre­
tations of the law issued by various State Courts. 
This Court attempted throughout the proceedings to 
frame the orders in such a way as to preserve as much



A — 95

management discretion and authority with the State 
of Washington as was possible and still provide for 
the protection of the federal treaty right, which is 
the supreme law of the land.

5. Each of the orders above came in response to 
specific state action, which if left uncorrected would 
make it impossible for treaty Indians to harvest the 
allocation decreed by this Court. The Court has 
found that treaty Indians would suffer irreparable 
harm if they were not provided with additional and 
exclusive fishing opportunity so that they can have 
the opportunity to catch their determined share of 
the salmon run. Nothing has been presented to the 
Court today which would in any way modify this 
Court’s opinion that the Plaintiff intervenor tribes, 
and their respective treaty Indian fishermen would 
continue to suffer irreparable harm unless this Court 
acts to further implement its prior orders.

5. The State of Washington has attempted to 
promulgate regulations consistent with this Court’s 
orders of August 31, September 27, September 28, 
1977, subsequent to the issuance of those orders. 
However, on two occasions pursuant to suits brought 
by the non-treaty commercial fishermen and their 
associations the Superior Court of Thurston County 
has issued orders to the State ordering them not to 
comply with this Court’s orders. This Court has been 
forced to enjoin the orders of the Superior Court of 
Thurston County which have frustrated the State’s 
efforts to comply with this Court’s orders.



A — 96

6. On October 6, 1977, Chief Justice Charles T. 
Wright, of the Supreme Court of the State of 
Washington on motion by the Grays Harbor 
Gillnetters Association issued an extraordinary writ 
against the Washington State Department of 
Fisheries. The Washington Department of Fisheries 
has incorrectly interpreted that order as requiring it 
to violate this Courts’ orders of August 31, 
September 27, and September 28. The Washington 
Department of Fisheries promulgated regulations 
which were inconsistent with these prior rulings. 
Additionally the Washington Department of Fisher­
ies removed from the State telephone hotline 
information required by this Court’s order of 
September 27, 1977, thus making it impossible for 
the federal enforcement agencies to enforce this 
Court’s orders.

7. This Court has examined Judge Wright’s 
order of October 6, 1977, and finds that it is 
consistent with this Court’s previous orders. The 
order does not in any way dictate that the 
Washington Department of Fisheries need or must 
deviate from complete compliance with this Court’s 
orders.

8. The State notwithstanding its legal ability to 
comply with both Judge Wright’s order and this 
Court’s orders, has exhibited the intention to 
continue to approve non-treaty fisheries that will 
deprive treaty fishermen of their opportunity to 
harvest their allocation. This Court hereby deter­



A — 97

mines that the only alternative remaining to this 
Court to insure complete compliance with this 
Court’s previous orders, and with Final Decision #1, 
is to remove from the State of Washington the power 
to issue certain regulations. This step is taken 
reluctantly and only after repeated showings on the 
part of the State of Washington that they are unable, 
or unwilling to adopt regulations in a consistent 
manner which would comply with this Court’s prior 
orders. Therefore, this Court must enter the 
following relief:

It Is Hereby Ordered, Adjudged and 
Decreed:

1. The Washington Department of Fisheries, its 
officers, agents, attorneys, and servants, are enjoined 
from announcing or publishing via the telephone 
hotline, telephone numbers 1-800-5672 [sic] or 
1-800-562-5673 or any other means, any non-treaty 
net fishery for salmon in the area defined as that 
portion of the State of Washington west of the 
Cascade Mountains and north of the Columbia River 
and Willapa Harbor drainage areas, and including 
the United States portion of the Puget Sound 
watershed, the watersheds of the Olympic Peninsula 
including the Grays Harbor watershed, and the 
off-shore waters adjacent to those areas. Provided, 
the Washington Department of Fisheries may 
continue to announce a non-treaty net commercial 
fishery in areas 7B, and 7C for coho salmon. The 
Washington Department of Fisheries is further



A — 98

enjoined not to announce any additional non-treaty 
net commercial fisheries except in compliance with 
the provision of this order. The Washington 
Department of Fisheries shall cause to be placed 
upon the telephone hotline information that 
non-treaty fishermen fishing in State of Washington 
management areas, within said area as above defined, 
that are not declared open on the hotline shall be 
subject to the contempt powers of the United States 
District Court. The Washington Department of 
Fisheries shall not allow any other information to be 
placed on the hotline which would say or suggest that 
non-treaty fishing may proceed in any other areas. 
Specifically, in the telephone hotline information, the 
Department of Fisheries shall make no distinction 
between closures instituted by order of this court or 
closures instituted by the Department of Fisheries 
or those instituted for conservation, or to meet 
allocation needs, nor shall the State of Washington 
make any distinctions between regulations or 
closures that would be enforced by the State of 
Washington and those which may be enforced by 
others.

2. The Washington Department of Fisheries its 
officers, agents, attorneys, and servants are enjoined 
not to adopt or promulgate any regulation that would 
open a non-treaty net commercial salmon fishery in 
waters of the area as above defined. Provided, that 
the Washington Department of Fisheries may close 
any fishery when necessary for the actual preserva­



tion of a particular salmon run, consistent with 
previous orders of this Court. The Washington 
Department of Fisheries may propose to this Court 
through the Fisheries Advisory Board appropriate 
gear and season openings for non-treaty fishermen, 
consistent with this Courts’ previous orders. Upon 
recommendation to the court by the Fisheries 
Advisory Board or the Court’s Technical Advisor 
that such non-treaty fishery would be appropriate, 
such opening may be placed on the telephone 
hotline.

3. The Washington Department of Fisheries, its 
officers, agents and servants, are further enjoined to 
serve copies of this Court’s Preliminary Injunction 
of September 27, 1977, upon all persons found to be 
engaged in net fishing for salmon and any person 
assisting in such fishing, and file with this Court 
proof of such service; provided, that this order shall 
not be served upon treaty fishermen.

4. The Washington Department of Fisheries its 
officers, agents and servants, are further enjoined to 
cite any non-treaty fisherman who, having received 
notice of this Court’s order of September 27, 1977, 
thereafter engaged in any fishing or assisting with 
fishing in violation of the provisions of the 
September 27, 1977, Order and shall direct such 
persons to appear before the United States District 
Court to be ordered to show cause why he or she 
should not be held in contempt.



A — 100

Dated this 17th day of October, 1977.

Honorable George H. Boldt 
Sr. U.S. District Court Judge



A — 101

UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF WASHINGTON 

AT TACOMA

United States of America, et al.,

v.

Plaintiffs,

State of W ashington, et al.,
Defendants.

CIVIL NO. 9213
PRELIMINARY INJUNCTION STAYING 

THURSTON COUNTY SUPERIOR COURT

Upon the application of the United States and 
the Quinault Indian Tribe, notice having been given 
to the State of Washington, the Honorable Frank 
Baker, Superior Court, Thurston County, and the 
Thurston County Prosecuting Attorney, and the 
Court having carefully considered the records and 
files of this case, together with the arguments of 
counsel, finds that:

1. On September 28, 1977, this Court ordered 
the defendants State of Washington and Gordon 
Sandison, Director of the Department of Fisheries, 
to regulate the salmon harvest in Grays Harbor so 
as to not interfere with the opportunity of the treaty 
Indians to catch 45% of the chinook and coho and 
50% of the chum which will return during 1977. That 
order was issued after the Court considered 
testimony presented before United States Magistrate 
John L. Weinberg on September 16, 1977, and before



A — 102

this Court on September 28, 1977, together with 
arguments of counsel. The Court found, and 
continues to find, that irreparable harm would be 
suffered by the plaintiff treaty Indians if the 
allocation which has been ordered is not implement­
ed. In that event, the plaintiff treaty Indians would 
be unable to catch their treaty entitlement of fish 
in 1977.

2. On October 4, 1977, the Superior Court for 
Thurston County, in Grays Harbor Gillnetters 
Association v. Sandison, Cause No. 58462, ordered 
the defendants to promulgate emergency regulations 
which would not restrict commercial salmon fishing 
in Grays Harbor except for conservation and to 
disseminate those regulations over the Washington 
State Department of Fisheries “hotline.” Such action 
by the State would have been directly contrary to 
this Court’s orders to the defendants of August 31, 
1977 (Preliminary Injunction Staying State Court 
Injunction and Order Implementing Preliminary 
Injunction), September 28, 1977 (Order Allocating 
Salmon Catch in Grays Harbor), and October 8, 
1977.

3. The State of Washington has previously 
promulgated regulations which are consistent with 
this Court’s orders allocating the salmon catch in 
Grays Harbor. If the State enacts and publicizes new 
regulations which do not allow treaty Indians to 
catch their full share of salmon, the plaintiff treaty 
Indians will suffer irreparable harm and non-treaty



A — 103

fishermen who are prohibited from fishing contrary 
to State allocation regulations which permit treaty 
Indians to harvest their full share of the salmon could 
be allowed to resume fishing contrary to that 
allocation thus enforcement of the Court’s prelimin­
ary injunction of September 27, 1977, which is 
directed at the fishermen might be frustrated. 
Additionally, the State has been enjoined from 
adopting any salmon fishing regulations, other than 
closures for conservation, by this Court’s order of 
October 8, 1977.

T herefore, It Is Hereby Ordered that the 
Superior Court of the State of Washington, County 
of Thurston, is hereby enjoined and prohibited from 
in any manner or to any extent enforcing the 
temporary injunction issued by said Court (per the 
Honorable Frank Baker) on October 4, 1977, in 
Cause No. 58462, and from issuing any other order 
in said cause, or in any other cause, which will have 
the effect of preventing the State of Washington, the 
Washington State Department of Fisheries, or their 
officers and agents, from fully complying with the 
orders of this Court.

The defendants State of Washington, Gordon 
Sandison, the Department of Fisheries and Game of 
the State of Washington, and their officers, agents, 
servants, employees and attorneys, and those persons 
in active concert or participation with any of them, 
are hereby relieved from any obligation to comply 
with the orders of the Thurston County Superior



A — 104

Court for the State of Washington in Cause No. 
58462 and are ordered not to obey, carry out, enforce 
or otherwise treat as having any lawful effect on the 
orders of that Court which are contrary to the orders 
of this Court.

This order shall remain in effect until a trial 
shall be held on the merits or until further order of 
this Court.

Dated this 17th day of October, 1977.

George H. Boldt
Senior United States District Judge



A — 105

UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF WASHINGTON 

AT TACOMA
United States of America, et al.,

Plaintiffs,
v.

State of W ashington, et al.,
Defendants.

CIVIL NO. 9213
FOURTH SUPPLEMENTAL FINDINGS OF 
FACT AND CONCLUSIONS OF LAW AND 

DECREE RE 1975 FRASER RIVER SOCKEYE 
AND PINK SALMON HARVEST

This matter having come on regularly before the 
Court on Plaintiff United States’ Motion for 
Preliminary and Permanent Injunctions, and the 
Court having considered the testimony and other 
evidence admitted and the memoranda and oral 
arguments of counsel, makes the following Findings 
of Fact and Conclusions of Law in addition to those 
heretofore entered in this case, particularly Findings 
of Fact Nos. 214, 215 and 216 entered February 12, 
1974 (384 F.Supp. at 392-393) and to the Ruling on 
Department of Fisheries Question #18 (384 F.Supp. 
at 411) and on the basis thereof renders the following 
Decree:

DEFINITIONS

As used herein the terms—
“ Convention” means the Convention for the



A — 106

Protection, Preservation and Extension of the 
Sockeye Salmon Fisheries of the Fraser River 
System, entered into by the United States and 
Canada and signed at Washington on the 26th day 
of May, 1930 (50 Stat. 1355; TS 918) as amended 
by the Pink Salmon Protocol signed at Ottawa on 
the 28th day of December, 1956 (8 UST 1057; TIAS 
3867) (Ex. USA-79; USA-80).

“Commission” means the International Pacific 
Salmon Fisheries Commission (IPSFC) established 
pursuant to the Convention.

“ Convention Waters” means those waters 
described in sections 1, 2 and 3 of Article I of the 
Convention of May 26, 1930.

“U.S. Convention Waters” means those Conven­
tion Waters located in or under the fisheries 
regulatory control of the United States.

“Period of Commission control” means, with 
respect to any portion of U.S. Convention Waters, 
the 1975 period that such portion is under the 
regulatory control of the Commission. As of the date 
of this Order said period is from June 26, 1975, to 
September 20, 1975, inclusive, for U.S. Convention 
Waters between the Bonilla-Tatoosh line and the 
Angeles Point-William Head line and from June 26, 
1975, to September 27, 1975, for certain of those 
waters east of the latter line plus the period 
September 28, 1975, to October 11, 1975, inclusive, 
for an area near Point Roberts as described in the 
Commission’s recommendation regulations. (Ex. 
USA-77.)



A — 107

FINDINGS OF FACT
271. The International Pacific Salmon Fisheries 

Commission has adopted recommendations and the 
United States Government has approved those 
recommendations for restrictions on the commercial 
taking of sockeye and pink salmon in certain 
Convention Waters including those comprising 
Washington Department of Fisheries, Puget Sound 
Salmon Fishing Areas 1, 2, western portion of 3, and 
western portion of 8, as defined in WAC 220-47-201, 
WAC 220-47-202, WAC 220-47-203 and WAC 
220-47-209, during the 1975 period of Commission 
control. (Ex. JX-2a, Fig. 18, p. 254; Ex. USA-77.) The 
Washington Director of Fisheries, after a public 
hearing, adopted regulations implementing the 
Commission’s recommendations. (Ex. USA-78.) 
Neither the Commission’s recommended regulations 
nor the Director of Fisheries’ regulations make any 
specific reference to or distinctive provisions for 
fishing by treaty Indians at their usual and 
accustomed fishing places.

272. In transmitting the Commission’s 1975
recommendations to the Washington Director of
Fisheries for implementation the United States
Department of State, on behalf of the U.S.
Government, advised the Director as follows:

“ In light of the decision in U.S. v. Washington, 
regulation in conformity with Indian Treaty 
rights, as set forth in that decision, is now 
required. It is understood, in view of this 
decision, that the State will regulate in a manner 
consistent with Indian Treaty rights.”



A — 108

“ In this regard, the United States has reached 
an understanding with the Government of 
Canada which we believe will ensure sufficient 
flexibility in the Commission to accommodate 
domestic implementation of that decision. 
Specifically, should action to implement the 
decision, through means such as restrictions of 
fishing on certain U.S. fishing days to Indian 
fishermen, create a situation in which effort by 
the Indians is insufficient to permit the U.S. 
fishery to reach the catch goals set by the 
Commission, then the Commission could take 
action to remedy this imbalance by providing 
extra time to assure that the targets are reached. 
Thus, regulation by the State of Washington in 
conformity with the Boldt decision can be 
undertaken in a manner consistent with the 
overall obligations of the U.S. under the 
Convention.” (Ex. USA-77.)

273. The Commission takes the position 
that while it is aware that changes in units of 
gear and in fishing effort have occurred in 
different segments of the industry and that these 
changes sometimes affect individual catches, the 
Commission does not directly concern itself with 
these matters. The Commission fulfills its 
responsibilities to assure proper spawning 
escapement and to divide the allowable catch in 
Convention Waters by considering the catches 
that are made, and not by setting the number 
of days of fishing in the abstract. The number 
of days allowed for fishing need not be, and often 
is not, the same for each country. The 
Commission has no jurisdiction over the 
numbers or types of gear that may be operated



A — 109

in Convention Waters. Jurisdiction over these 
matters rests with the respective national or 
state or provincial governments as matters of 
domestic law. (Ex. USA-89.)

274. The best available estimates of the 
number of treaty Indian gear that are likely to 
be use in U.S. Convention waters during the 
1975 period of Commission control, as compiled 
by the Northwest Indian Fisheries Commission 
from treaty tribes having treaty-right usual and 
accustomed fishing places within those waters, 
are 65 large gill net boats, 39 gill net skiffs and 
4 purse seine vessels. (Ex. USA-84.)

275. In 1974 the number of units of United 
States gear landing sockeye during the period of 
Commission control was 272 purse seines, 1140 
gill nets and 54 reef nets. (Ex. USA-85.)

276. The 1974 Fraser River sockeye run 
totalled 8.5 million fish and the Convention 
Waters catch was 5 million fish, of which U.S. 
fishermen caught 2,476,053 (Ex. USA-86) and 
Canadian fishermen caught 2,500,019. The 
Indian portion of the United States catch was 
34,277 (Ex. USA-86). Pink salmon runs occur 
only in odd numbered years. (Ex. USA-86.)

277. The Commission presently forecasts a 
1975 convention waters run of 5.5 million Fraser 
River sockeye.

278. A regulation by the State of Washing­
ton or its Director of Fisheries limiting fishing



in U.S. Convention Waters to treaty Indians for 
at least one day per calendar week of the days 
on which fishing in such waters is authorized by 
the Commission during 1975 would not adversely 
affect the conservation of any species or run of 
fish under normal fishing patterns, deny 
non-Indians an opportunity to take up to 50% 
of the harvestable fish available at the Indian 
treaty usual and accustomed fishing places, or 
adversely affect any obligation of the United 
States under the Convention with Canada. Such 
a regulation is appropriate “ to approach more 
nearly an equal allocation of the opportunity to 
harvest fish at usual and accustomed grounds 
and stations” as required by Final Decision #1 
in this case, 384 F.Supp. at 344.

279. The International Pacific Salmon 
Fisheries Commission controls the convention 
water harvest of sockeye and pink salmon by 
adopting recommended regulations several 
months in advance of the season which are 
submitted for approval by the respective 
national governments and thereafter, as a matter 
of practice, for Washington waters, for adoption 
by the Washington Department of Fisheries. 
Thereafter that Commission staff closely 
monitors the actual runs and catches throughout 
the season and the Commission meets or confers 
sometimes by telephone, frequently throughout 
the season to adopt such changes to the



A — 111

pre-season regulations as necessary. These 
become effective without the necessity for 
further approval by the national governments 
and, for Washington waters, are customarily 
placed in effect through their promulgation by 
the Director of Fisheries as emergency regula­
tions. In 1973 the Commission met over thirty 
times during the 113 day period of Commission 
control.

280. The Canadian Government has in­
dicated that it will not consider it contrary to 
United States’ obligations under the Convention 
if the State of Washington or its Director of 
Fisheries authorizes, during periods of Commis­
sion control in 1975, a fishery in U.S. Convention 
Waters that is less extensive than the fishery 
authorized by the Commission, so long as such 
action has not been shown either to prevent the 
Commission from assuring a proper escapement 
to the spawning grounds of Fraser River sockeye 
and pink salmon, or to preclude an equal 
division of the harvestable catch as between 
Canada and the United States or to unduly 
burden the Government of Canada in fullfilling 
its obligations or realizing the benefits due its 
citizens under the convention.

281. On or about July 10,1975, the Director, 
Washington Department of Fisheries, contacted 
the United States Department of State, 
outlining four alternative proposals for action by



A — 112

the State of Washington, with respect to its 
fisheries under the jurisdiction of the Commis­
sion. The Director therein requested guidance as 
to whether any or all of these alternatives would 
be consistent with the obligations of the United 
States under the convention. The State 
Department, by William L. Sullivan, Jr., after 
consultations with the Canadian Government, 
responded to the Director by cable on July 11, 
1975, to the effect that the first alternative 
(extra days for treaty Indian fishermen) would 
be objectionable to the State Department; that 
the second alternative (restricting non-Indian 
fishing more than the Commission’s regulations 
would otherwise require), would be acceptable 
thereto; that the third alternative (allowing all 
treaty Indians to fish with any gear whenever the 
Commission allowed fishing by any United 
States fishermen), was not objectionable in 
principle, although some technical changes in 
the Commission’s regulations might be neces­
sary; and that the State Department had no legal 
objection to the fourth alternative (closing down 
the United States’ non-Indian fishery) although 
it might seem to violate the spirit of the 
convention. (Ex. USA-90.) Further, the State 
Department sent a subsequent telegram to the 
Director, State of Washington Department of 
Fisheries, stating that, at the present time, the 
State Department is opposed to the third



A — 113

alternative given existing Commission regula­
tions, but not indicating that the State 
Department’s lack of objection in principle 
thereto had been changed.

282. In light of the need to provide for 
Indian treaty fishing rights, and with regard to 
the management scheme of the commission, of 
all of the alternatives presented to the Court and 
practically available to this Court at this time 
for meeting that need, the one which would 
cause the least disruption to the Commission’s 
management scheme and to the non-Indian 
fishery would be one allowing treaty Indians to 
fish with any gear whenever the Commission’s 
regulations would allow fishing by any United 
States fishermen in all Convention Waters 
except State Area 2 and a regulation allowing 
fishing in State Area 2 at least five days a 
week.

283. It has not been clearly established that 
a violation of the responsibilities of the United 
States under the convention would occur if the 
fishery management authorities of the treaty 
Indian tribes were to allow treaty Indian 
fishermen to fish with any gear whenever the 
Commission’s regulations would allow fishing by 
any United States fishermen.

[Conclusions of law omitted.]
Dated ---------



A — 114

CONCLUSIONS OF LAW
55. The Sockeye Convention of May 26, 1930, 

between the United States and Canada, as amended 
by Pink Salmon Protocol of December 28, 1956, does 
not require the State of Washington to open its 
fisheries in U.S. Convention Waters, or any portion 
thereof, to all Washington fishermen or any specific 
group or category of Washington fishermen during 
all or any portion of the times when the 
Commission-prescribed regulations authorize fishing 
in such waters. A Washington regulation prohibiting 
fishing by persons who are not treaty Indians during 
certain portions of the fishing time allowed by the 
Commission or in portions of the U.S. Convention 
Waters within which fishing is not prohibited by the 
Commission would not necessarily be in conflict with 
the Convention or the United States’ obligations 
under the Convention.

56. The Convention does not confer any rights 
on Washington non-Indian fishermen to a greater 
share of fish taken in Washington waters than they 
would have under the earlier treaties of the United 
States with the Indians.

57. The State of Washington and its Director of 
Fisheries may, consistent with the United States’ 
obligations under the Convention and the 1975 
regulatory recommendations of the Commission 
approved by the United States, allow fishing only to 
treaty Indians during certain times or in certain areas 
authorized to be open to fishing by such approved



A — 115

regulatory recommendations so long as such action 
has not been shown either to prevent the Commission 
from assuring a proper escapement to the spawning 
grounds of Fraser River sockeye and pink salmon, 
or to preclude an equal division of the harvestable 
catch as between Canada and the United States or 
to unduly burden the Government of Canada in 
fulfilling its obligations or realizing the benefits due 
its citizens under the convention.

58. The management authorities of the various 
Indian treaty fishing tribes may allow any of their 
fishermen to fish, in Convention Waters except State 
Area 2, with any gear whenever the Commission’s 
regulations would allow fishing by any United States 
fishermen; and in State Area 2 for five days per 
week.

59. The Director of Fisheries may so allocate the 
fishing times authorized by the International Pacific 
Salmon Fisheries Commission for waters of the State 
of Washington that are under Commission control as 
to come as close as possible toward meeting the twin 
objectives prescribed by this Court’s Orders of 
February 12, 1974, and March 22, 1974, affording to 
Indian treaty fishermen an opportunity to take up 
to 50% of the U.S. share of the harvestable fish and 
to still permit a full U.S. harvest of said harvestable 
quota.

DECREE
Now therefore it is Hereby Decreed, Adjudged 

and Ordered as follows:



A — 116

1. It is necessary for proper enforcement of state 
and tribal regulations that may be promulgated to 
carry out the Orders of this Court that the number 
and identity of boats and gear used in the treaty 
Indian fishery be known to state, tribal and federal 
enforcement authorities. Accordingly, no boat or 
fishing gear shall be used in the exercise of Indian 
treaty rights with respect to any fishery or in any 
area over which the IPSFC is exercising control until 
such boat or gear has been specifically registered with 
and its use in such fishery or area authorized by the 
tribal authorities of the user’s tribe and notice of 
such registration and authorization has been given 
by the tribal authorities to the Washington 
Department of Fisheries and the Regional Director 
of the National Marine Fisheries Service. Such 
offices shall also be immediately notified of the 
cancellation or suspension of any such registration 
or authorization. The registration and notice shall 
contain at least the following information: name and 
address of the owner and operator; type and name, 
if any, of the vessel; tribal identification number; 
type of gear to be used; and area or areas for which 
registered. No boat or unattended gear shall be used 
in the exercise of Indian treaty rights with respect 
to any fishery or in any area over which the 
Commission is exercising control unless there is 
affixed to it an identification tag, the style and type 
of which and the location at which affixed shall have 
been previously agreed to by the Director,



A— 117

Washington Department of Fisheries. Use of any 
vessel or gear in violation of this paragraph may be 
subject to the provisions of state law or regulation 
applicable to nontreaty fishermen.

2. The Defendants State of Washington, 
Washington Department of Fisheries, and Donald W. 
Moos, its Director, are Hereby Enjoined from 
allowing any fishing, authorized by the 1975 
regulations of the International Pacific Salmon 
Fisheries Commission by persons not entitled to 
exercise Indian treaty rights pursuant to the Decrees 
of this Court, until the Department of Fisheries 
adopts and files with this Court regulations within 
the limitations required by the regulations of said 
Commission as they may from time to time be 
modified, and which conform with this Court’s 
Orders that defendants must, to the extent 
consistent with permitting the full permissible total 
harvest, afford treaty Indians an opportunity to take 
an equal share of the total number of harvestable fish 
which, absent the fishing activities of other citizens, 
would be available for harvest at their usual and 
accustomed fishing grounds within Washington 
waters, or must otherwise equitably adjust the treaty 
Indians’ share of other species or in other areas to 
compensate them for disproportionate numbers of 
fish taken by other Washington citizens under 
regulations issued by said Commission.

3. Said Defendants are directed to file with this 
Court and serve on the following participating tribes



A — 118

— to wit, the Makah Tribe, Lower Elwha Band 
Clallam Tribe, Port Gamble Band Clallam Tribe, 
Suquamish Tribe, Lummi Tribe, Nooksack Tribe, 
the Swinomish Indian Tribal Community and 
Tulalip Tribe — the United States, and the United 
States Commissioners of the International Pacific 
Salmon Fisheries Commission, copies of such 
regulations by July 1, 1975, and to thereafter 
similarly file and serve within 24 hours after adoption 
any changes or supplementary regulations that may 
be adopted as a result of any modification to the 
Commission’s regulations.

4. The treaty Indians’ opportunity to take fish 
up to the share specified in Final Decision #1 and 
the related Orders of this Court shall be taken into 
consideration in making any equitable adjustments 
or with respect to other fisheries subject to state 
regulatory control.

5. Regulatory restrictions prescribed by the 
Commission limit somewhat the latitude of means 
that will be available to the state and the tribes for 
achieving the allocation of fish in accordance with 
the Stevens treaties. This makes it particularly 
necessary that the tribes and the state regulatory 
agency retain and promptly exercise, when appro­
priate, the authority and capability to enact on an 
emergency basis, and place into immediate effect, 
subject to limitations prescribed by this Court, 
additional openings or closures or other modifica­
tions to their respective regulations that in



A— 119

conjunction with the permissible regulations of the 
other parties and the applicable provisions of the 
Commission requirements will reasonably assure 
protection, proper harvest, and the allocation of, or 
compensatory adjustments from, the fishery resource 
within the state’s total regulatory authority required 
by this and prior Orders of this Court in this case. 
Accordingly, this Court retains continuing daily 
jurisdiction over the implementation of this Order 
and Decree. Any party hereto or any other person 
aggrieved by any action or failure to act on the part 
of another party pursuant to this Decree shall bring 
the matter to this Court for an appropriate Order 
to implement the requirements of this Decree. 
Consideration of such matters will be given on a 
highly expedited basis by the Court, particularly if 
it develops that the Commission or the Canadian 
Government raises serious objection hereto, or if the 
effective implementation of the Commission’s 
management responsibilities is hindered hereby. The 
Master is hereby authorized and directed, subject to 
the provisions of Rule 53, Federal Rules of Civil 
Procedure, to act upon any request for relief at any 
time that the undersigned Judge is unavailable to 
give timely consideration to the request.

6. The Court retains the authority to modify or 
terminate the provisions of these Findings, 
Conclusion and Decree, and the Order signed this 
day implementing such, either on its own initiative 
or on motion of any party, whenever it appears to



A — 120

the Court that such change is necessary or 
appropriate to conform to the holding of Final 
Decision #1 or comply with the obligations of the 
United States under the International Sockeye 
Convention and Pink Salmon Protocol.

Dated this 16th day of July, 1975.

/ g/  George H, Boldt____________
United States District Judge



A — 121

UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF WASHINGTON 

AT TACOMA

United States of America, et al.,
Plaintiffs,

v.

State of W ashington, et al.,
Defendants

CIVIL NO. 9213
MODIFICATIONS AND ADDITIONS TO 

FOURTH SUPPLEMENTAL FINDINGS OF 
FACT AND CONCLUSIONS OF LAW AND 

DECREE AND INJUCTION RE 1975 FRASER 
RIVER SOCKEYE AND PINK SALMON

HARVEST

T his M atter having come on regularly before 
the Court on plaintiff United States’ Motion for 
Modification of Injunction, and the Court having 
considered the memoranda and oral arguments of 
counsel, amends the Findings of Fact and 
Conclusions of Law and Decree entered in this case 
on July 16, 1975, as follows:

FINDINGS OF FACT
1. Finding of Fact No. 282 is amended to read 

as follows:
282. In light of the need to provide for 

Indian treaty fishing rights, and with regard to



the management scheme of the Commission, of 
all of the alternatives presented to the Court and 
practically available to this Court at this time 
for meeting that need, the one which would 
cause the least disruption to the Commission’s 
managment scheme and to the non-Indian 
fishery and which would not violate the 
responsibilities of the United States under the 
Convention would be one allowing treaty Indians 
to fish with any gear whenever the Commission’s 
regulations would allow fishing by any United 
States fishermen in Convention Waters.
2. A new Finding of Fact is made as follows:

284. On July 11, 1975, representatives of the 
governments of the United States and Canada 
met in Bellingham, Washington, to attempt to 
reach some agreement which would allow 
implementation of this Court’s Injunction of 
July 16, 1975. However, the Canadian govern­
ment would not agree to proposals put forward 
by the United States. Subsequent thereto, the 
United States temporarily withdrew its approval 
under the Convention of those parts of the 
Commission’s regulations which seek to allocate 
the open fishing periods among various types of 
gear.

CONCLUSIONS OF LAW
1. Conclusion of Law No. 58 is amended to read 

follows:
58. The management authorities of the 

various Indian treaty fishing tribes or the State 
of Washington may allow treaty Indian 
fishermen to fish, in Convention Waters, with 
any gear whenever the Commission’s regulations 
would allow fishing by any United States 
fishermen.



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2. New Conclusions of Law are added as 
follows:

60. The temporary withdrawal by the 
United States of its approval under the 
Convention of those parts of the Commission’s 
regulations which seek to allocate the open 
fishing periods among various types of gear is 
a valid exercise of its rights and responsibilities 
under the Convention.

61. The Commission may prohibit all 
fishing within Convention waters but Commis­
sion regulations do not preclude the State from 
allocating the time allowed United States 
fishermen among various user groups.

62. The Commission regulations, as ap­
proved by the United States, allow fishing time 
without regard to gear limitations.

63. The Stevens treaties between the 
United States and the various Indian tribes, as 
interpreted by the Court and the Ninth Circuit 
Court of Appeals, preempted State control of 
fishing within Washington territorial waters in 
Puget Sound, including Fraser River sockeye 
and pink salmon, and made it the supreme law 
of the land that the Indians must be allowed the 
opportunity to take up to fifty per cent of the 
fish that may be legally harvested in Washington 
territorial waters.

64. Through federal preemption of State 
regulation of Indian fishing at treaty fishing 
grounds, this Court has jurisdiction to suspend, 
modify, or substitute State regulations.

65. The Washington Director of Fisheries 
has authority under State law to adopt 
regulations of the Commission and, under order 
of this Court, to allocate the United States’ share



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of Fraser River sockeye and pink salmon among 
user groups.

66. The adoption of regulations as required 
by this Court’s order of July 16, 1975, modified 
July 30, 1975, is a valid exercise of the authority 
delegated to the Director by the State 
Legislature as limited by this Court.
Dated this 6th day of August, 1975.

/s/___________________________
George H. Boldt
United States District Judge



UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF WASHINGTON 

AT TACOMA

United States of AMERICA, et al.,
Plaintiff,

Swinomish Indian T ribal Community,
Plaintiff-Intervenor,

vs.

State of W ashington, et al,

CIVIL NO. 9213
Defandants.

PRELIMINARY INJUNCTION RE 
SWINOMISH INDIAN TRIBAL COMMUNITY 
CHINOOK FISHERY IN AREA DESIGNATED

WEST BEACH

This matter having come on for hearing before 
this Court on the motion of the Swinomish Indian 
Tribal Community for Preliminary and Permanent 
injunction on July 30th, 1975 and continued for 
further hearing on August 6, 1975, and evidence 
having been introduced and the Court finding that 
the Swinomish Indian Tribal Community fishermen 
have been and desire to continue fishing for chinook 
salmon in the area designated as West Beach, which 
is in convention waters over which the International 
Pacific Salmon Commission has jurisdiction insofar 
as sockeye and pink salmon are concerned and that



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the State of Washington has issued a citation for 
fishing for chinook salmon to a member of the 
Swinomish Indian Tribal Community fishing in this 
area and the Court from the evidence further finding 
that fishing with a large mesh net results in an 
incidental catch only of sockeye or pink salmon 
which is so small in number as not to interfere with 
the management of the sockeye and pink salmon 
resource and

The Court conluding that the Treaty between 
the United States and Canada governing the fishing 
relates to the regulation of fishing for sockeye and 
pink salmon, and that the Swinomish Indian Tribal 
Community fishermen should be allowed to fish for 
chinook under regulation safeguarding the sockeye 
and pink salmon escapement now therefore

It Is Hereby Ordered and Adjudged that the 
State of Washington be and it is hereby enjoined 
from prohibiting the fishing by Swinomish Indian 
Tribal Community fishermen for chinook salmon in 
the area know and designated as West Beach defined 
as that area lying easterly of a line from Deception 
Island to Lawson Reef to Partridge Point and 
easterly of Whidbey Island provided that such 
fishing shall be done by the use of nets with a 
minimum eight and one-quarter inch stretch mesh, 
using a ten pound weight on a wet net, unless said 
fishing results in a more than incidental catch of 
sockeye or pink salmon, or closure is necessary for 
conservation of the chinook salmon, and it is 
further



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Ordered that Mr. Ronald Costello, fish biologist 
for the Swinomish Indian Tribal Community 
constantly monitor the fishery and if the catch of 
sockeye or pink salmon exceed 5% of the catch to 
require closure of the fishery or report to the Court 
and it is further Ordered that the permanent 
injunction application be heard at 9:30 a.m., October 
20, 1975, and it is further

Ordered that bond is set in the sum of 
$250.00.

Ordered this 8th day of August, 1975.

/s/.
George H. Boldt
Senior United States District Judge



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UNITED STATES CONSTITUTION
ARTICLE II

§ 2 POWERS OF THE PRESIDENT. The
president shall be commander in chief of the army 
and navy of the United States, and of the militia of 
the several states, when called into the actual service 
of the United States; he may require the opinion, in 
writing, of the principal officer in each of the 
executive departments, upon any subject relating to 
the duties of their respective offices, and he shall 
have power to grant reprieves and pardons for 
offences against the United States, except in cases 
of impeachment.

He shall have the power, by and with the advice 
and consent of the senate, to make treaties, provided 
two-thirds of the senators present concur; and he 
shall nominate, and by and with the advice and 
consent of the senate, shall appoint ambassadors, 
other public ministers and consuls, judges of the 
supreme court, and all other officers of the United 
States, whose appointments are not herein otherwise 
provided for, and which shall be established by law: 
but the congress may by law vest the appointment 
of such inferior officers, as they think proper in the 
president alone, in the courts of law, or in the heads 
of departments.

The president shall have power to fill up all 
vacancies that may happen during the recess of the 
senate, by granting commissions which shall expire 
at the end of their next session.



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ARTICLE VI

Debts, supremacy, oath. All debts contracted 
and engagements entered into, before the adoption 
of this Constitution, shall be as valid against the 
United States under this Constitution, as under the 
confederation.

This Constitution, and the laws of the United 
States which shall be made in pursuance thereof; and 
all treaties made, or which shall be made, under the 
authority of the United States, shall be the supreme 
law of the land; and the judges in every state shall 
be bound thereby, any thing in the Constitution or 
laws of any state to the contrary notwithstanding.

The senators and representatives before men­
tioned, and the members of the several state 
legislatures, and all executive and judicial officers, 
both of the United States and of the several states, 
shall be bound by oath or affirmation, to support this 
Constitution; but no religious test shall ever be 
required as a qualification to any office or public 
trust under the United States.

AMENDMENT V

RIGHTS OF ACCUSED IN CRIMINAL 
PROCEEDINGS. No person shall be held to answer 
for a capital, or otherwise infamous crime, unless on 
a presentment or indictment of a grand jury, except 
in cases arising in the land or naval forces, or in the 
militia, when in actual service in time of war or



public danger; nor shall any person be subject for the 
same offense to be twice put in jeopardy of life or 
limb, nor shall be compelled in any criminal case to 
be a witness against himself, nor be deprived of life, 
liberty, or property, without due process of law; nor 
shall private property be taken for public use, 
without just compensation.

AMENDMENT X

POWERS RESERVED TO STATES OR 
PEOPLE. The powers not delegated to the United 
States by the Constitution, nor prohibited by it to 
the states, are reserved to the states respectively, or 
to the people.

AMENDMENT XIV

§ 1 CITIZENSHIP RIGHTS NOT TO BE 
ABRIDGED BY STATES. All persons born or 
naturalized in the United States, and subject to the 
jurisdiction thereof, are citizens of the United States 
and of the state wherein they reside. No state shall 
make or enforce any law which shall abridge the 
privileges or immunities of citizens of the United 
States; nor shall any state deprive any person of life, 
liberty, or property, without due process of law; nor 
deny to any person within its jurisdiction the equal 
protection of the laws.



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TREATIES

TREATY OF MEDICINE CREEK 
December 26, 1854 

10 Stat. 1132
Article III. 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, and of erecting temporary houses 
for the purpose of curing, together with the privilege 
of hunting, gathering roots and berries, and pasturing 
their horses on open and unclaimed lands: Provided, 
however, That they shall not take shell fish from any 
beds staked or cultivated by citizens, and that they 
shall alter all stallions not intended for breeding 
horses, and shall keep up and confine the latter.

TREATY OF POINT ELLIOTT
January 22, 1855 

12 Stat. 927
Article V. The right of taking fish at usual and 

accustomed grounds and stations is further secured 
to said Indians, in common with all citizens of the 
Territory and of erecting temporary houses for the 
purpose of curing, together with the privilege of 
hunting and gathering roots and berries on open and 
unclaimed lands. Provided, however, that they shall 
not take shell-fish from any beds staked or cultivated 
by citizens.



TREATY OF POINT NO POINT
January 26, 1855 

12 Stat. 933
Article 4. The right of taking fish at usual and 

accustomed grounds and stations is further secured 
to said Indians, in common with all citizens of the 
United States and of erecting temporary houses for 
the purpose of curing; together with the privilege of 
hunting and gathering roots and berries on open and 
unclaimed lands. Provided, however, That they shall 
not take shell-fish from any beds staked or cultivated 
by citizens.

TREATY WITH THE MAKAH (TREATY OF
NEAH BAY)

January 31, 1855 
12 Stat. 939

Article IV. The right of taking fish and of 
whaling or sealing at usual and accustomed grounds 
and stations is further secured to said Indians in 
common with all citizens of the United States, and 
of erecting temporary houses for the purpose of 
curing, together with the privilege of hunting and 
gathering roots and berries on open and unclaimed 
lands: Provided, however, That they shall not take 
shell-fish from any beds staked or cultivated by 
citizens.



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TREATY WITH THE YAKIMAS
June 9, 1855 
12 Stat. 951

Article III. And provided, That, if necessary for 
the public convenience, roads may be run through 
the said reservation; and on the other hand, the right 
of way, with free access from the same to the nearest 
public highway, is secured to them; as also the right, 
in common with citizens of the United States, to 
travel upon all public highways.

The exclusive right of taking fish in all the 
streams, where running through or bordering said 
reservation, is further secured to said confederated 
tribes and bands of Indians, as also the right of 
taking fish at all usual and accustomed places, in 
common with citizens of the Territory, and of 
erecting temporary buildings for curing them; 
together with the privilege of hunting, gathering 
roots and berries, and pasturing their horses and 
cattle upon open and unclaimed land.

TREATY WITH THE QUINAIELTS
July 1, 1855 
12 Stat. 971

Article III. The right of taking fish at all usual 
and accustomed grounds and stations is secured to 
said Indians in common with all citizens of the



A — 134

Territory, and of erecting temporary houses for the 
purpose of curing the same; together with the 
privilege of hunting, gathering roots and berries, and 
pasturing their horses on all open and unclaimed 
lands. Provided, however, That they shall not take 
shell-fish from any beds staked or cultivated by 
citizens; and provided, also, that they shall alter all 
stallions not intended for breeding, and shall keep 
up and confine the stallions themselves.



A — 135

Convention for the Protection, Preservation, 
and Extension of the Sockeye Salmon 
Fishery of the Fraser River System, May 
26, 1930

Signed at Washington May 26, 1930; Ratification 
advised by the Senate subject to understandings 
June 16, 1936; Ratified by the President, subject 
to the said understandings, July 23, 1937; Ratified 
by His Majesty in respect of Canada June 26, 
1937; Ratifications exchanged at Washington July 
28, 1937; Proclaimed by the President August 4, 
1937.

B y the President of the United States of

America

A PROCLAMATION
W hereas a Convention between the United 

States of America and Canada for the protection, 
preservation and extension of the sockeye salmon 
fishery of the Fraser River system was concluded and 
signed by their respective Plenipotentiaries at 
Washington, on the twenty-sixth day of May, one 
thousand nine hundred and thirty, the original of 
which Convention is word for word as follows:

The President of the United States of America 
and His Majesty the King of Great Britain, Ireland 
and the British dominions beyond the Seas, Emperor 
of India, in respect of the Dominion of Canada, 
recognizing that the protection, preservation and



A — 136

extension of the sockeye salmon fisheries in the 
Fraser River system are of common concern to the 
United States of America and the Dominion of 
Canada; that the supply of this fish in recent years 
has been greatly depleted and that it is of importance 
in the mutual interest of both countries that this 
source of wealth should be restored and maintained, 
have resolved to conclude a Convention and to 
that end have named as thier respective plenipo­
tentiaries;

The President of the United States of America: 
Mr. Henry L. Stimson, Secretary of State of the 
United States of America; and

His Majesty, for the Dominion of Canada: The 
Honorable Vincent Massey, a member of His 
Majesty’s Privy Council for Canada and His Envoy 
Extraordinary and Minister Plenipotentiary for 
Canada at Washington;

Who, after having communicated to each other 
their full powers, found in good and due form, have 
agreed upon the following Articles:

Article I
The provisions of this Convention and the orders 

and regulations issued under the authority thereof 
shall apply, in the manner and to the extent 
hereinafter provided in this Convention, to the 
following waters:

1. The territorial waters and the high seas 
westward from the western coast of the United States



A — 137

of America and the Dominion of Canada and from 
a direct line drawn from Bonilla Point, Vancouver 
Island, to the lighthouse on Tatoosh Island, 
Washington, — which line marks the entrance to 
Juan de Fuca Strait, — and embraced between 48 
and 49 degrees north latitude, excepting therefrom, 
however, all the waters of Barklay Sound, eastward 
of a straight line drawn from Amphitrite Point to 
Cape Beale and all the waters of Nitinat Lake and 
the entrance thereto.

2. The waters included within the following 
boundaries:

Beginning at Bonilla Point, Vancouver Island, 
thence along the aforesaid direct line drawn from 
Bonilla Point to Tatoosh Lighthouse, Washington, 
described in paragraph numbered 1 of this Article, 
thence to the nearest point of Cape Flattery, thence 
following the southerly shore of Juan de Fuca Strait 
to Point Wilson, on Quimper Peninsula, thence in 
a straight line to Point Partridge on Whidbey Island, 
thence following the western shore of the said 
Whidbey Island, to the entrance to Deception Pass, 
thence across said entrance to the southern side of 
Reservation Bay, on Fidalgo Island, thence following 
the western and northern shore line of the said 
Fidalgo Island to Swinomish Slough, crossing the 
said Swinomish Slough, in line with the track of the 
Great Northern Railway, thence northerly following 
the shore line of the mainland to Atkinson Point at 
the northerly entrance to Burrard Inlet, British



A — 138

Columbia, thence in a straight line to the southern 
end of Bowen Island, thence westerly following the 
southern shore of Bowen Island to Cape Roger 
Curtis, thence in a straight line to Gower Point, 
thence westerly following the shore line to Welcome 
Point on Seechelt Peninsula, thence in a straight line 
to Point Young on Lasqueti Island, thence in a 
straight line to Dorcas Point on Vancouver Island, 
thence following the eastern and southern shores of 
the said Vancouver Island to the starting point at 
Bonilla Point, as shown on the United States Coast 
and Geodetic Survey Chart Number 6300, as 
corrected to March 14, 1930, and on the British 
Admiralty Chart Number 579, copies of which are 
annexed to this Convention and made a part 
thereof.

3. The Fraser River and the streams and lakes 
tributary thereto.

The High Contracting Parties engage to have 
prepared as soon as practicable charts of the waters 
described in this Article, with the above described 
boundaries thereof and the international boundary 
indicated thereon. Such charts, when approved by 
the appropriate authorities of the Governments of 
the United States of America and the Dominion of 
Canada, shall be considered to have been substituted 
for the charts annexed to this Convention and shall 
be authentic for the purposes of the Convention.

The High Contracting Parties further agree to 
establish within the territory of the United States of



A — 139

America and the territory of the Dominion of Canada 
such buoys and marks for the purposes of this 
Convention as may be recommended by the 
Commission hereinafter authorized to be established, 
and to refer such recommendations as the 
Commission may make as relate to the establishment 
of buoys or marks at points on the international 
boundary to the International Boundary Commis­
sion, United States-Alaska and Canada, for action 
pursuant to the provisions of the Treaty between the 
United States of America and His Majesty, in respect 
of Canada, respecting the boundary between the 
United States of America and the Dominion of 
Canada, signed February 24, 1925.

Article II
The High Contracting Parties agree to establish 

and maintain a Commission to be known as the 
International Pacific Salmon Fisheries Commission, 
hereinafter called the Commission, consisting of six 
members, three on the part of the United States of 
America and three on the part of the Dominion of 
Canada.

The Commissioners on the part of the United 
States of America shall be appointed by the 
President of the United States of America. The 
Commissioners on the part of the Dominion of 
Canada shall be appointed by His Majesty on the 
recommendation of the Governor General in 
Council.



A — 140

The Commissioners appointed by each of the 
High Contracting Parties shall hold office during the 
pleasure of the High Contracting Party by which 
they were appointed.

The Commission shall continue in existence so 
long as this Convention shall continue in force, and 
each High Contracting Party shall have power to fill 
and shall fill from time to time vacancies which may 
occur in its representation on the Commission in the 
same manner as the original appointments are made. 
Each High Contracting Party shall pay the salaries 
and expenses of its own Commissioners, and joint 
expenses incurred by the Commission shall be paid 
by the two High Contracting Parties in equal 
moieties.

Article III
The Commission shall make a thorough 

investigation into the natural history of the Fraser 
River sockeye salmon, into hatchery methods, 
spawning ground conditions and other related 
matters. It shall conduct the sockeye salmon fish 
cultural operations in the waters described in 
paragraphs numbered 2 and 3 of Article I of this 
Convention, and to that end it shall have power to 
improve spawning grounds, construct, and maintain 
hatcheries, rearing ponds and other such facilities as 
it may determine to be necessary for the propagation 
of sockeye salmon in any of the waters covered by 
this Convention, and to stock any such waters with



sockeye salmon by such methods as it may determine 
to be most advisable. The Commission shall also have 
authority to recommend to the Governments of the 
High Contracting Parties removing or otherwise 
overcoming obstructions to the ascent of sockeye 
salmon, that may now exist or may from time to time 
occur, in any of the waters covered by this 
Convention, where investigation may show such 
removal of or other action to overcome obstruction 
to be desirable. The Commission shall make an 
annual report to the two Governments as to the 
investigations which it has made and other action 
which it has taken in execution of the provisions of 
this Article, or of other Articles of this 
Convention.

The cost of all work done pursuant to the 
provisions of this Article, or of other Articles of this 
Convention, including removing or otherwise 
overcoming obstructions that may be approved, shall 
be borne equally by the two Governments, and the 
said Governments agree to appropriate annually such 
money as each may deem desirable for such work in 
the light of the reports of the Commission.

Article IV
The Commission is hereby empowered to limit 

or prohibit taking sockeye salmon in respect of all 
or any of the waters described in Article I of this 
Convention, provided that when any order is adopted 
by the Commission limiting or prohibiting taking



A — 142

sockeye salmon in any of the territorial waters or on 
the High Seas described in paragraph numbered 1 
of Article I, such order shall extend to all such 
territorial waters and High Seas, and, similarly, when 
in any of the waters of the United States of America 
embraced in paragraph numbered 2 of Article I, such 
order shall extend to all such waters of the United 
States of America, and when in any of the Canadian 
waters embraced in paragraphs numbered 2 and 3 
of Article I, such order shall extend to all such 
Canadian waters, and provided further, that no order 
limiting or prohibiting taking sockeye salmon 
adopted by the Commission shall be construed to 
suspend or otherwise affect the requirements of the 
laws of the State of Washington or of the Dominion 
of Canada as to the procuring of a license to fish in 
the waters on their respective sides of the boundary, 
or in their respective territorial waters embraced in 
paragraph numbered 1 of Article I of this 
Convention, and provided further that any order 
adopted by the Commission limiting or prohibiting 
taking sockeye salmon on the High Seas embraced 
in a paragraph numbered 1 of Article I of this 
Convention shall apply only to nationals and 
inhabitants and vessels and boats of the United 
States of America and the Dominion of Canada.

Any order adopted by the Commission limiting 
or prohibiting taking sockeye salmon in the waters 
covered by this Convention, or any part thereof, shall 
remain in full force and effect unless and until the



A — 143

same be modified or set aside by the Commission. 
Taking sockeye salmon in said waters in violation of 
an order of the Commission shall be prohibited.

Article V
In order to secure a proper escapement of 

sockeye salmon during the spring or chinook salmon 
fishing season, the Commission may prescribe the 
size of the meshes in all fishing gear and appliances 
that may be operated during said season in the 
waters of the United States of America and/or the 
Canadian waters described in Article I of this 
Convention. At all seasons of the year the 
Commission may prescribe the size of the meshes in 
all salmon fishing gear and appliances that may be 
operated on the High Seas embraced in paragraph 
numbered 1 of Article I of this Convention, provided, 
however, that in so far as concerns the High Seas, 
requirements prescribed by the Commission under 
the authority of this paragraph shall apply only to 
nationals and inhabitants and vessels and boats of 
the United States of America and the Dominion of 
Canada.

Whenever, at any other time than the spring or 
chinook salmon fishing season, the taking of sockeye 
salmon in waters of the United States of America or 
in Canadian waters is not prohibited under an order 
adopted by the Commission, any fishing gear or 
appliance authorized by the State of Washington 
may be used in waters of the United States of



A — 144

America by any person thereunto authorized by the 
State of Washington, and any fishing gear or 
appliance authorized by the laws of the Dominion of 
Canada may be used in Canadian waters by any 
person thereunto duly authorized. Whenever the 
taking of sockeye salmon on the High Seas embraced 
in paragraph numbered 1 of Article I of this 
Convention is not prohibited, under an order 
adopted by the Commission, to the nationals or 
inhabitants or vessels or boats of the United States 
of America or the Dominion of Canada, only such 
salmon fishing gear and appliances as may have been 
approved by the Commission may be used on such 
High Seas by said nationals, inhabitants, vessels or 
boats.

Article VI
No action taken by the Commission under the 

authority of this Convention shall be effective unless 
it is affirmatively voted for by at least two of the 
Commissioners of each High Contracting Party.

Article VII
Inasmuch as the purpose of this Convention is 

to establish for the High Contracting Parties by their 
joint effort and expense, a fishery that is now largely 
nonexistent, it is agreed by the High Contracting 
Parties that they should share equally in the fishery. 
The Commission shall, consequently, regulate the



fishery with a view to allowing, as nearly as may be 
practicable, an equal portion of the fish that may be 
caught each year to be taken by the fishermen of each 
High Contracting Party.

Article VIII
Each High Contracting Party shall be responsi­

ble for the enforcement of the orders and regulations 
adopted by the Commission under the authority of 
this Convention, in the portion of its waters covered 
by the Convention.

Except as hereinafter provided in Article IX of 
this Convention, each High Contracting Party shall 
be responsible, in respect of its own nationals and 
inhabitants and vessels and boats, for the 
enforcement of the orders and regulations adopted 
by the Commission, under the authority of this 
Convention, on the High Seas embraced in paragraph 
numbered 1 of Article I of the Convention.

Each High Contracting Party shall acquire and 
place at the disposition of the Commission any land 
within its territory required for the construction and 
maintenance of hatcheries, rearing ponds, and other 
such facilities as set forth in Article III.

Article IX
Every national or inhabitant, vessel or boat of 

the United States of America or of the Dominion of 
Canada, that engages in sockeye salmon fishing on



the High Seas embraced in paragraph numbered 1 
of Article I of this Convention, in violation of an 
order or regulation adopted by the Commission, 
under the authority of this Convention, may be 
seized and detained by the duly authorized officers 
of either High Contracting Party, and when so seized 
and detained shall be delivered by the said officers, 
as soon as practicable, to an authorized official of the 
country to which such person, vessel or boat belongs, 
at the nearest point to the place of seizure, or 
elsewhere, as may be agreed upon with the competent 
authorities. The authorities of the country to which 
a person, vessel or boat belongs alone shall have 
jurisdiction to conduct prosecutions for the violation 
of any order or regulation, adopted by the 
Commission in respect of fishing for sockeye salmon 
on the High Seas embraced in paragraph numbered 
1 of Article I of this Convention, or of any law or 
regulation which either High Contracting Party may 
have made to carry such order or regulation of the 
Commission into effect, and to impose penalties for 
such violations; and the witnesses and proofs 
necessary for such prosecutions, so far as such 
witnesses or proofs are under the control of the other 
High Contracting Party shall be furnished with all 
reasonable promptitude to the authorities having 
jurisdiction to conduct the prosecutions.

Article X
The High Contracting Parties agree to enact and



A — 147

enforce such legislation as may be necessary to make 
effective the provisions of this Convention and the 
orders and regulations adopted by the Commission 
under the authority thereof, with appropriate 
penalties for violations.

Article XI
The present Convention shall be ratified by the 

President of the United States of America, by and 
with the advice and consent of the Senate thereof, 
and by His Majesty in accordance with constitutional 
practice, and it shall become effective upon the date 
of the exchange of ratifications which shall take place 
at Washington as soon as possible and shall continue 
in force for a period of sixteen years, and thereafter 
until one year from the day on which either of the 
High Contracting Parties shall give notice to the 
other of its desire to terminate it.

In witness whereof, the respective plenipoten­
tiaries have signed the present Convention, and have 
affixed their seals thereto.

Done in duplicate at Washington on the 
twenty-sixth day of May, one thousand nine hundred 
and thirty.

[SEAL] Henry L. Stimson

[seal] V incent M assey

And whereas the said Convention has been duly 
ratified on both parts, and the ratifications of the 
two Governments were exchanged in the city of



A — 148

Washington on the twenty-eighth day of July, one 
thousand nine hundred and thirty-seven;

And whereas the said Convention was ratified 
by the United States of America subject to three 
understandings, made a part of the ratification, as 
follows:

(1) That the International Pacific Salmon 
Fisheries Commission shall have no power to 
authorize any type of fishing gear contrary to the 
laws of the State of Washington or the Dominion 
of Canada;

(2) That the Commission shall not promul­
gate or enforce regulations until the scientific 
investigations provided for in the convention 
have been made, covering two cycles of Sockeye 
Salmon runs, or eight years; and

(3) That the Commission shall set up an 
Advisory Committee composed of five persons 
from each country who shall be representatives 
of the various branches of the industry (purse 
seine, gill net, troll, sport fishing, and one other), 
which Advisory Committee shall be invited to all 
non-executive meetings of the Commission and 
shall be given full opportunity to examine and 
to be heard on all proposed orders, regulations 
or recommendations.
And whereas the aforesaid three understandings 

have been accepted by the Government of Canada, 
as is recorded in the Protocol of Exchange of 
ratifications of the said Convention;



A — 149

Now, therefore, be it known that I, Franklin 
D. Roosevelt, President of the United States of 
America, have caused the said Convention to be 
made public, to the end that the same and every 
article and clause thereof may be observed and 
fulfilled with good faith by the United States of 
America and the citizens thereof, subject to the three 
understandings herein recited.

In testimony whereof, I have hereunto set my 
hand and caused the Seal of the United States of 
America to be affixed.

Done at the city of Washington this fourth day 
of August in the year of our Lord one 
thousand nine hundred and thirty-seven, 
and of the Independence of the United 

[seal] States of America the one hundred and 
sixty-second.

FRANKLIN D. ROOSEVELT
By the President:

Cordell Hull

Secretary of State.



PROTOCOL OF EXCHANGE

The undersigned the Secretary of State of the 
United States of America and the Canadian Minister 
at Washington met this day for the purpose of 
exchanging ratifications of the convention between 
the United States of America and Canada for the 
protection, preservation and extension of the sockeye 
salmon fisheries of the Fraser River System, signed 
at Washington on May 26, 1930.

The Secretary of State of the United States of 
America stated that the convention is ratified on the 
part of the United States of America subject to the 
three understandings contained in the resolution of 
the Senate of the United States of America advising 
and consenting to ratification, a copy of which 
resolution was communicated to the Secretary of 
State for External Affairs of Canada by the Minister 
of the United States of America at Ottawa in his note 
of July 7, 1936. These three understandings are as 
follows:

(1) That the International Pacific Salmon 
Fisheries Commission shall have no power to 
authorize any type of fishing gear contrary to the 
laws of the State of Washington or the Dominion 
of Canada;

(2) That the Commission shall not 
promulgate or enforce regulations until the 
scientific investigations provided for in the 
convention that have been made, covering two 
cycles of Sockeye Salmon runs, or eight years;



A — 151

and
(3) That the Commission shall set up an 

Advisory Committee composed of five persons 
from each country who shall be representatives 
of the various branches of the industry (purse 
seine, gill net, troll, sport fishing, and one other), 
which Advisory Committee shall be invited to all 
non-executive meetings of the Commission and 
shall be given full opportunity to examine and 
to be heard on all proposed orders, regulations 
or recommendations.
The Canadian Minister stated that he was 

authorized by his Government to state that it 
accepted the foregoing understandings.

The exchange then took place in the usual 
manner.

In witness whereof they have signed the 
present protocol and have affixed their seals 
hereto.

Done at Washington this twenty-eighth day of 
July, 1937.

[seal] Cordell Hull,
Secretary of State of the 

United States of America 
[seal] Herbert M. Marler,

Canadian Minister.



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PROTOCOL AMENDING THE CONVEN­
TION, TO INCLUDE PINK SALMON IN 
THE FRASER RIVER SYSTEM, 
DECEMBER 28, 1956

Signed at Ottawa December 28, 1956; Ratification 
advised by the Senate June 6, 1957; Ratified by 
the President June 18, 1957; Ratified by Canada 
April 19, 1957; Ratifications exchanged at Ottawa 
July 3, 1957; Proclaimed by the President July 24, 
1957; Entered into force July 3, 1957.

By the President of the United States of

America

A PROCLAMATION
W hereas a protocol between the Government of 

the United States of America and the Government 
of Canada to the Convention for the Protection, 
Preservation, and Extension of the Sockeye Salmon 
Fisheries in the Fraser River System signed at 
Washington on the 26th day of May 1930 was signed 
at Ottawa on December 28, 1956, the original of 
which protocol is word for word as follows:
PROTOCOL BETWEEN THE GOVERN­

MENT OF THE UNITED STATES OF 
AMERICA AND THE GOVERNMENT OF 
CANADA TO THE CONVENTION FOR 
THE PROTECTION, PRESERVATION, 
AND EXTENSION OF THE SOCKEYE



A — 153

SALMON FISHERIES IN THE FRASER 
RIVER SYSTEM, SIGNED AT WASHING­
TON ON THE 26TH DAY OF MAY, 
1930.

The Government of the United States of 
America and the Government of Canada, desiring to 
coordinate the programs for the conservation of the 
sockeye and pink salmon stocks of common concern 
by amendment of the Convention between the 
United States of America and Canada for the 
Protection, Preservation and Extension of the 
Sockeye Salmon Fisheries in the Fraser River 
System, signed at Washington on the 26th day of 
May, 1930, hereinafter referred to as the 
Convention,

Have agreed as follows:

Article I
The Convention as amended by the present 

Protocol shall apply to pink salmon with the 
following exception:

The understanding stipulated in the Protocol of 
Exchange of Ratification signed at Washington on 
the 28th day of July, 1937, which provides that “ the 
Commission shall not promulgate or enforce 
regulations until the scientific investigations 
provided for in the Convention have been made, 
covering two cycles of sockeye salmon runs, or eight 
years;” shall not apply to pink salmon.



A rticle  II

The following words shall be deleted from the 
first sentence of Article IV of the Convention:

“ * * * that when any order is adopted by
the Commission limiting or prohibiting taking 
sockeye salmon in any of the territorial waters 
or on the High Seas described in paragraph 
numbered 1 of Article I, such order shall extend 
to all such territorial waters and High Seas, and, 
similarly, when in any of the waters of the 
United States of America embraced in paragraph 
numbered 2 of Article I, such order shall extend 
to all such waters of the United States of 
America, and and when in any of the Canadian 
waters embraced in paragraphs numbered 2 and 
3 of Article I, such order shall extend to all such
Canadian waters, and provided further
*  *

Article III
The following paragraph shall be added to

Article VI of the Convention:
“All regulations made by the Commission 

shall be subject to approval of the two 
Governments with the exception of orders for 
the adjustment of closing or opening of fishing 
periods and areas in any fishing season and of 
emergency orders required to carry out the 
provisions of the Convention.”

Article IV
Article VII of the Convention shall be replaced

by the following Article:
“The Commission shall regulate the fisher­

ies for sockeye and for pink salmon with a view 
to allowing, as nearly as practicable, an equal



A — 155

portion of such sockeye salmon as may be caught 
each year and an equal portion of such pink 
salmon as may be caught each year to be taken 
by the fisherman of each Party.”

Article V
Paragraph (3) of the understandings stipulated 

in the Protocol of Exchange of Ratifications signed 
at Washington on the 28th day of July 1937, shall 
be amended to read as follows:

“That the Commission shall set up an 
Advisory Committee composed of six persons 
from each country who shall be representatives 
of the various branches of the industry 
including, but not limited to, purse seine, gill 
net, troll, sport fishing and processing, which 
Advisory Committee shall be invited to all 
non-executive meetings of the Commission and 
shall be given full opportunity to examine and 
to be heard on all proposed orders, regulations 
or recommendations.”

Article VI
1. The Parties shall conduct a coordinated 

investigation of pink salmon stocks which enter the 
waters described in Article I of the Convention for 
the purpose of determining the migratory movements 
of such stocks. That part of the investigation to be 
carried out in the waters described in Article I of the 
Convention shall be carried out by the 
Commission.

2. Except with regard to that part of the 
investigation to be carried out by the Commission, 
the provisions of Article III of the Convention with



A — 156

respect to the sharing of cost shall not apply to the 
investigation referred to in this Article.

3. The Parties shall meet in the seventh year 
after the entry into force of this Protocol to examine 
the results of the investigation referred to in this 
Article and to determine what further arrangements 
for the conservation of pink salmon stocks of 
common concern may be desirable.

Article VII
Nothing in the Convention or this Protocol shall 

preclude the Commission from recording such 
information on stocks of salmon other than sockeye 
or pink salmon as it may acquire incidental to its 
activities with respect to sockeye and pink 
salmon.

Article VIII
The present Protocol shall be ratified and the 

exchange of the instruments of ratification shall take 
place in Ottawa as soon as possible. It shall come 
into force on the day of the exchange of the 
instruments of ratification.

In witness whereof the undersigned, duly 
authorized by their respective Governments, have 
signed this Protocol and have affixed thereto their 
seals.

Done in duplicate at Ottawa this 28th day of 
December, 1956.

For the Government of the United States of 
America:



A — 157

Livingston T. Merchant 
[seal] W m. C. Herrington

For the Government of Canada:
[seal] James Sinclair

W hereas the Senate of the United States of 
America by their resolution of June 6, 1957, 
two-thirds of the Senators present concurring 
therein, did advise and consent to the ratification of 
the said protocol;

W hereas the said protocol was duly ratified by 
the President of the United States of America on 
June 18, 1957, in pursuance of the aforesaid advice 
and consent of the Senate, and was duly ratified on 
the part of Canada;

W hereas the respective instruments of ratifica­
tion of the said protocol were duly exchanged at 
Ottawa on July 3, 1957;

And whereas it is provided in Article VIII of 
the said protocol that the protocol shall come into 
force on the day of the exchange of the instruments 
of ratification;

Now, therefore, be it known that I, Dwight D. 
Eisenhower, President of the United States of 
America, do hereby proclaim and make public the 
said protocol to the end that the same and each and 
every article and clause thereof may be observed and 
fulfilled with good faith, on and after July 3, 1957, 
by the United States of America and by the citizens 
of the United States of America and all other persons 
subject to the jurisdiction thereof.



A —158

In testimony whereof, I have hereunto set my 
hand and caused the Seal of the United States of 
America to be affixed.

Done at the city of Washington this twenty- 
fourth day of July in the year of our 
Lord one thousand nine hundred 
fifty-seven and of the Independence of 

[seal] the United States of America the one 
hundred eighty-second.

DWIGHT D. EISENHOWER 
By the President:

Christian A. Herter

Acting Secretary of State



A —159

16 USC § 776. Definitions
When used in this chapter—

(a) Convention: The word “convention” means 
the convention between the United States of America 
and the Dominion of Canada for the protection, 
preservation, and extension of the sockeye salmon 
fisheries of the Fraser River system, signed at 
Washington on the 26th day of May 1930, as 
amended by the protocol to the convention, signed 
at Ottawa on the 28th day of December 1956.

(b) Commission: The word “ Commission”
means the International Pacific Salmon Fisheries 
Commission provided for by article II of the 
convention.

(c) Person: The word “ person” includes in­
dividuals, partnerships, associations, and 
corporations.

(d) Convention waters: The term “convention 
waters” means those waters described in article I of 
the convention.

(e) Sockeye salmon and pink salmon: The term 
“sockeye salmon” means that species of salmon 
known by the sicentific name Oncorhynchus nerka, 
and the term “pink salmon” means that species of 
salmon known by the scientific name Oncorhynchus 
gorbuscha.

(f) Vessel: The word “vessel” includes every 
type or description of water craft or other 
contrivance used, or capable of being used, as a 
means of transportation in water.



A —160

(g) Fishing: The word “ fishing” means the 
fishing for, catching, or taking, or the attempted 
fishing for, catching, or taking, of any sockeye salmon 
or pink salmon in convention waters.

(h) Fishing gear: The term “ fishing gear” means 
any net, trap, hook, or other device, appurtenance 
or equipment, of whatever kind or description, used 
or capable of being used, for the purpose of capturing 
fish or as an aid in capturing fish.

16 USC § 776a. Unlawful acts
(a) It shall be unlawful for any person to engage

in fishing for sockeye salmon or pink salmon in 
convention waters in violation of the convention or 
of this chapter or of any regulation of the
Commission.

(b) It shall be unlawful for any person to ship,
transport, purchase, sell, offer for sale, import, 
export, or have in possession any sockeye salmon or 
pink salmon taken in violation of the convention or 
of this chapter or of any regulation of the
Commission.

(c) It shall be unlawful for any person or vessel 
to use any port or harbor or other place subject to 
the jurisdiction of the United States for any purpose 
connected in any way with fishing in violation of the 
convention or of this chapter or of any regulation 
made by the Commission.

(d) It shall be unlawful for any person or vessel 
to engage in fishing for sockeye salmon or pink



A —161

salmon in convention waters without first having 
obtained such license or licenses as may be used by 
or required by the Commission, or to fail to produce 
such license, upon demand, for inspection by an 
authorized enforcement officer.

(e) It shall be unlawful for any person to fail to 
make, keep, submit, or furnish any record or report 
required of him by the Commission or to refuse to 
permit any officer authorized to enforce the 
convention, this chapter, and the regulations of the 
Commission, or any authorized representative of the 
Commission, to inspect any such record or report at 
any reasonable time.

(f) It shall be unlawful for any person to molest, 
interfere with, tamper with, damage, or destroy any 
boat, net, equipment, stores, provisions, fish-cultural 
stations, rearing pond, weir, fishway, or any other 
structure, installation, experiment, property, or 
facility acquired, constructed, or maintained by the 
Commission.

(g) It shall be unlawful for any person or vessel 
to do any act prohibited or to fail to do any act 
required by the convention or by this chapter or by 
any regulation of the Commission.



FISHERY CONSERVATION 
AND

MANAGEMENT

16 USC § 1801. Findings, purposes and policy
(a) Findings.—The Congress finds and declares 
the following:

(1) The fish off the coasts of the United States, 
the highly migratory species of the high seas, the 
species which dwell on or in the Continental Shelf 
appertaining to the United States, and the 
anadromous species which spawn in United States 
rivers or estuaries, constitute valuable and renewable 
natural resources. These fishery resources contribute 
to the food supply, economy, and health of the 
Nation and provide recreational opportunities.

(2) As a consequence of increased fishing 
pressure and because of the inadequacy of fishery 
conservation and management practices and controls
(A) certain stocks of such fish have been overfished 
to the point where their survival is threatened, and
(B) other such stocks have been so substantially 
reduced in number that they could become similarly 
threatened.

(3) Commercial and recreational fishing consti­
tutes a major source of employment and contributes 
significantly to the economy of the Nation. Many 
coastal areas are dependent upon fishing and related 
activities, and their economies have been badly 
damaged by the overfishing of fishery resources at



A —163

an ever-increasing rate over the past decade. The 
activities of massive foreign fishing fleets in waters 
adjacent to such coastal areas have contributed to 
such damage, interfered with domestic fishing 
efforts, and caused destruction of the fishing gear of 
United States fishermen.

(4) International fishery agreements have not 
been effective in preventing or terminating the 
overfishing of these valuable fishery resources. There 
is danger that irreversible effects from overfishing 
will take place before an effective international 
agreement on fishery management jurisdiction can be 
negotiated, signed, ratified, and implemented.

(5) Fishery resources are finite but renewable. 
If placed under sound management before overfish­
ing has caused irreversible effects, the fisheries can 
be conserved and maintained so as to provide 
optimum yields on a continuing basis.

(6) A national program for the conservation and 
management of the fishery resources of the United 
States is necessary to prevent overfishing, to rebuild 
overfished stocks, to insure conservation, and to 
realize the full potential of the Nation’s fishery 
resources.

(7) A national program for the development of 
fisheries which are underutilized or not utilized by 
United States fishermen, including bottom fish off 
Alaska, is necessary to assure that our citizens 
benefit from the employment, food supply, and 
revenue which could be generated thereby.



(b) Purposes.—It is therefore declared to be 
the purposes of the Congress in this chapter—

(1) to take immediate action to conserve and 
manage the fishery resources found off the coasts of 
the United States, and the anadromous species and 
Continental Shelf fishery resources of the United 
States, by establishing (A) a fishery conservation 
zone within which the United States will assume 
exclusive fishery management authority over all fish, 
except highly migratory species, and (B) exclusive 
fishery management authority beyond such zone over 
such anadromous species and Continental Shelf 
fishery resources;

(2) to support and encourage the implementa­
tion and enforcement of international fishery 
agreements for the conservation and management of 
highly migratory species, and to encourage the 
negotiation and implementation of additional such 
agreements as necessary;

(3) to promote domestic commercial and 
recreational fishing under sound conservation and 
management principles;

(4) to provide for the preparation and im­
plementation, in accordance with national standards, 
of fishery management plans which will achieve and 
maintain, on a continuing basis, the optimum yield 
from each fishery;

(5) to establish Regional Fishery Management 
Councils to prepare, monitor, and revise such plans 
under circumstances (A) which will enable the States,



A —165

the fishing industry, consumer and environmental 
organizations, and other interested persons to 
participate in, and advise on, the establishment and 
administration of such plans, and (B) which take into 
account the social and economic needs of the States; 
and

(6) to encourage the development of fisheries 
which are currently underutilized or not utilized by 
United States fishermen, including bottom fish off 
Alaska.

(c) Policy.—It is further declared to be the 
policy of the Congress in this chapter—

(1) to maintain without change the existing 
territorial or other ocean jurisdiction of the United 
States for all purposes other than the conservation 
and management of fishery resources, as provided for 
in this chapter;

(2) to authorize no impediment to, or interfer­
ence with, recognized legitimate uses of the high seas, 
except as necessary for the conservation and 
management of fishery resources, as provided for in 
this chapter;

(3) to assure that the national fishery conserva­
tion and management program utilizes, and is based 
upon, the best scientific information available, 
involves, and is responsive to the needs of interested 
and affected States and citizens; promotes efficiency; 
draws upon Federal, State, and academic capabilities 
in carrying out research, administration, man­
agement, and enforcement; and is workable and 
effective;



(4) to permit foreign fishing consistent with the 
provisions of this chapter; and

(5) to support and encourage continued active 
United States efforts to obtain an internationally 
acceptable treaty, at the Third United Nations 
Conference on the Law of the Sea, which provides 
for effective conservation and management of fishery 
resources.

16 USC § 1811. Fishery conservation zone
There is established a zone contiguous to the 

territorial sea of the United States to be known as 
the fishery conservation zone. The inner boundary 
of the fishery conservation zone is a line coterminous 
with the seaward boundary of each of the coastal 
States, and the outer boundary of such zone is a line 
drawn in such a manner that each point on it is 200 
nautical miles from the baseline from which the 
territorial sea is measured.
16 USC § 1812. Exclusive fishery manage­
ment authority

The United States shall exercise exclusive 
fishery management authority, in the manner 
provided for in this chapter, over the following:

(1) All fish within the fishery conservation 
zone.

(2) All anadromous species throughout the 
migratory range of each such species beyond the 
fishery conservation zone; except that such 
management authority shall not extend to such 
species during the time they are found within 
any foreign nation’s territorial sea or fishery



conservation zone (or the equivalent), to the 
wxtent that such sea or zone is recognized by 
the United States.

(3) All Continental Shelf fishery resources 
beyond the fishery conservation zone.

RCW 75.40.060 Fraser River sockeye
salmon fishery----- Adoption, enforcement
of convention authorized. The director and 
his duly authorized agents are hereby author­
ized to adopt and to enforce the provisions of 
the convention between the United States and 
the Dominion of Canada for the protection, 
perservation and extension of the sockeye sal­
mon fishery of the Fraser River system, signed 
at Washington, District of Columbia, on the 
twenty-sixth day of May, 1930, and the regula­
tions of the commission promulgated under au­
thority of said convention.



A —168

DEPARTMENT OF STATE
Washington, O.C. 20520

BUREAU OF OCEANS AND 
INTERNATIONAL

ENVIRONMENTAL AND SCIENTIFIC
AFFAIRS

March 16, 1977

The Honorable Donald Moos 
Commissioner
International Pacific Salmon 

Fisheries Commission 
National Marine Fisheries Service 
Room 115
General Administration Building 
Olympia, Washington 98501
Dear Don:

As you know, the U.S. authorities presented to 
the Canadian authorities some proposed modifica­
tions to the IPSFC’s tentative regulatory recommen­
dations for U.S. Convention waters for 1977 with the 
aim of accommodating the U.S. u. Washington 
decision regarding Indian treaty rights. After a 
meeting of officials of the two governments in 
Vancouver, B.C. on March 2-3, 1977, when the 
Commission’s staff advised that these measure would 
not adversely affect escapement and an equal 
division of catch in Convention waters, the Canadian



A - 169

authorities informed’ us they are prepared to accept 
our proposals with a few drafting changes.

I am enclosing a final copy of the proposal, which 
incorporates the Canadian modifications, as well as 
the reef net changes discussed at the Vancouver 
meeting. You are instructed to support it at the next 
Commission meeting and vote for its adoption into 
final regulations for 1977.

Sincerely,

/s/_________________________
Rozanne L. Ridgway 
Deputy Assistant Secretary 
For Oceans and Fisheries 
Affairs

Enclosure: 
As stated



A—170