ELR Citation: ELR 20203
No(s). C 93-2003 TEH (N.D. Cal. Jul 29, 1994)

The court dismisses claims by commercial fishers and commercial fishing associations that in order to provide in-river harvest allocations for two Native American tribes, the Secretary of Commerce improperly reduced the Klamath Chinook ocean harvest rate for the 1993 fall fishing season in violation of the Magnuson Fishery Conservation and Management Act (Magnuson Act), the Administrative Procedure Act (APA), and the U.S. Constitution. The court first holds that the Hoopa Valley and Yurok Indians have a federally reserved fishing right. Although the tribes do not have any treaty-based fishing rights, courts have consistently recognized that the federal government reserved Native American fishing rights when it established what are today the Hoopa Valley and Yurok reservations. Further, the Hoopa-Yurok Settlement Act specifically vested fishing rights in the Hoopa Valley and Yurok Tribes in 1988, which include fishing for ceremonial, subsistence, and commercial purposes. The court next holds that the power to regulate fishing off-reservation is not limited to tribes with treaty rights. The federal power to reserve rights for Native Americans in conjunction with the creation of reservations may be exercised through treaties, statutes, or executive actions pursuant to statutory authority, and court decisions upholding or recognizing the reserved fishing rights at issue have uniformly rejected a treaty versus nontreaty distinction. The court next holds that the scope of the tribes' fishing rights is not limited to on-reservation rights. As anadromous fish, Klamath River Chinook do not live out their existence on the reservation. Only when they return to the reservation from the ocean are the fish of any value to the tribes. Thus, for the tribes' federally reserved fishing right to have any practical meaning, it must include regulation of activities occurring outside the reservation that negatively impact that right. Moreover, courts have upheld off-reservation regulation of fisheries pursuant to treaty-based fishing rights. That the fishing rights in those cases arose through treaty rather than through statutory and executive authority does not affect the scope of the fishing right. Furthermore, cases finding implied off-reservation water rights support the proposition that a reserved right can affect off-reservation rights in order to satisfy the tribal on-reservation right. The court finds it appropriate that the federal government's responsibility toward reservation Native Americans include the Department of Commerce's regulation of the salmon's ocean harvest in order to provide the appropriate measure of the tribes' fishing rights.

The court next holds that an alleged agreement between the Departments of Commerce and the Interior to regulate ocean seasons in accordance with an Interior Solicitor's opinion did not violate Magnuson Act procedures and national standards. The court notes that to the extent plaintiffs challenge the agencies' decision to allocate a 1993 harvest of 18,500 fall Chinook salmon for in-river fishing, the court in an earlier order specifically stated that it would not adjudicate the validity of any allocation on this motion. The court holds that the Secretary of Commerce's action in setting the 1993 allocation based on the Solicitor's opinion was not an improper delegation of its powers to the Department of the Interior. Under the Magnuson Act, the Secretary of Commerce must manage the ocean fishery in a manner consistent with any other applicable law. The Secretary of Commerce simply followed the Solicitor's opinion defining the applicable law. The court holds plaintiffs' procedural claims unreviewable, because the court already ruled on these claims in previous orders. The court next denies plaintiffs' motion to strike exhibits attached to defendant agencies' motion to dismiss, because the exhibits were not submitted to prove factual matters outside the complaint. Also, the exhibits constitute either applicable law or adjudicative facts subject to judicial notice.

Turning to the agencies' motion to dismiss the remainder of plaintiffs' claims, the court holds that the Secretary of Commerce's allocation to the tribes of an in-river harvest of 18,500 fall Chinook for the 1993 season did not violate the Equal Protection Clause of the U.S. Constitution or 42 U.S.C. §1981. Plaintiffs failed to raise any cognizable claim of racial discrimination to support their claim. The regulation in this case restricts on-reservation fall chinook tribal harvest based on the political status of the federally recognized tribes and their respective reservations, and not on any racial classification. The court next dismisses plaintiffs' due process claim that they were deprived of a right of access to federal ocean fisheries under the Magnuson Act without notice or a hearing before the agencies' issued the 1993 harvest regulations. The Magnuson Act does not confer on commercial fishermen any right or title in the fishery resources under the Department of Commerce's authority. Further, plaintiffs have no property right in the migratory fish themselves, no right to fish that implicates property interests, and no legitimate claim of entitlement.

The court next dismisses plaintiffs' claims that the Secretary of the Interior violated the Klamath River Basin and the Trinity Basin Acts, which provide for restoration of the Klamath and Trinity Rivers. The court holds that although plaintiffs properly allege standing to assert these claims, they do not allege a sufficient basis for judicial review. Plaintiffs' complaint refers to no specific action or inaction that violates the Acts, but only generally states that the Secretary of the Interior has failed to implement measures to improve Klamath River runs, including habitat improvement and fish planting measures. Moreover, plaintiffs have failed to support their claim that their allegation of general agency inaction is reviewable under APA §706(1), which authorizes a district court to compel agency action unlawfully withheld or unreasonably delayed. The court also holds that there is no implied private right-of-action under the Klamath River Basin or the Trinity Basin Acts. Neither the Acts' language nor legislative history indicate any congressional intent to create a private right-of-action. Finally, the court refuses to stay consideration of the agencies' motion to dismiss pending intervention of either the Hoopa Valley or Yurok Tribes and dismisses the action in its entirety because no causes of action remain.

[A prior decision in this litigation is published at 24 ELR 20604.]

Counsel for Plaintiffs
Mary L. Hudson
Gorman & Waltner
1736 Franklin St., 8th Fl., Oakland CA 94604
(510) 465-4494

Counsel for Defendants
James C. Kilbourne, Jean E. Williams
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000