ELR Citation: ELR 20232
No(s). 94-16727 (9th Cir. Nov 16, 1995)

The court affirms a district court decision upholding U.S. Department of Commerce (DOC) emergency regulations that reduced the fall 1993 ocean harvesting rate for Klamath River Chinook salmon. Faced with the possibility that the Pacific Fishery Management Council's recommended ocean harvest levels would either fail to meet the Magnuson Fishery Management and Conservation Act's goals or compromise the instream harvesting rights of the Hoopa Valley and Yurok Tribes, DOC suspended the Council's regulations and issued the emergency regulations. The Magnuson Act authorizes DOC to issue emergency regulations to achieve consistency with the Act's national standards and "any other applicable law." The court first rejects appellant fishers and fishing associations' argument that because the tribes' reservations were created by executive order rather than treaty, their fishing rights do not constitute "other applicable law" within the meaning of the Act. A treaty/executive order distinction has no historical or legal significance with respect to these tribes and contradicts the doctrine that the grant of hunting and fishing rights is implicit in the setting aside of a reservation "for Indian purposes." Furthermore, a treaty/executive order distinction is inconsistent with the well-established federal trust obligation owed to the tribes.

The court holds that DOC did not act arbitrarily or capriciously when it reformulated the Council's fishing recommendations. DOC fulfilled its federal trust obligations by responding to ocean overharvesting of Klamath Chinook that threatened the tribes' ability to harvest their share of salmon. Successful preservation of the tribes' on-reservation fishing rights must include regulation of ocean fishing of the same resource. Given the Council's past reluctance to set ocean harvest levels that would guarantee adequate upstream spawning for conservation of the Klamath chinook, as well as the imminent harm that would befall the tribes if ocean overharvesting were allowed to continue, DOC had ample justification for an emergency departure from the Council's recommendations. The court concludes that the 1988 Hoopa-Yurok Settlement Act and the executive orders that created the Hoopa Valley Reservation vested the tribes with federally reserved fishing rights that constitute "other applicable law" within the meaning of the Magnuson Act.

[Prior decisions in this litigation are published at 24 ELR 20604 and 25 ELR 20203. Briefs in this litigation are digested at ELR BRIEFS & PLEADS. 66422.]

Counsel for Plaintiffs
James M. Johnson
1110 S. Capitol Way, Olympia WA 98501
(360) 357-3104

Counsel for Defendants
Jacques B. Gelin
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Skopil, Pregerson, and Fernandez, JJ.