ELR Citation: ELR 20126
No(s). 81-3111 (9th Cir. Nov 3, 1982)

Affirming in part and reversing in part the district court's ruling, 11 ELR 20016, the Ninth Circuit rules that hatchery fish are included in Indian tribes' share of fish apportioned in treaties between the Indians and the state of Washington and that both have a duty to take reasonable steps to protect and enhance the fish habitat. The court affirms the district court's hatchery fish ruling but bases its conclusion on a different interpretation of the Supreme Court's ruling in Washington v. Washington State Commercial Passenger Fishing Vessel Association, 9 ELR 20517. It rules that hatchery fish must be included in the treaty allocation because (1) once the state releases hatchery fish into public waters, it has relinquished any ownership or legal interest in those fish, (2) the hatchery fish, through competition, contribute to the decline of natural fish and are not readily distinguished from natural fish, and (3) hatchery fish programs serve to mitigate degradation caused by non-Indian activity and therefore it is equitable to consider such replacements as part of the treaty allocation.

The Ninth Circuit rejects the district court's ruling that the Indians have a right to an adequate supply of fish and therefore a right to absolute environmental protection for the fish. It holds that the treaties only assure a right to a share of the available fish; there is no special environmental right to a minimum number of fish to meet the Indians' moderate living needs. Cases cited by the district court do not support an environmental servitude, but only prevent fishing in a way that destroys the fishery. Furthermore, the implied-reservation-of-water doctrine is inapplicable to the treaties.

The court also finds that an absolute environmental servitude is unnecessary. Not only do a number of federal and state statutes restrain the state's ability to disregard environmental considerations, but the state has a strong interest in protecting the fish for both treaty and non-treaty fishermen. In addition, it rules that both the state and the tribes must take reasonable steps to preserve and enhance the fishery, but does not place an absolute duty on the state to maintain or increase harvest levels. Finally, the court rules that the district court's interpretation of the treaty would create an unreasonably complex standard for assessing liability and would disproportionately disrupt the existing regulatory framework.

[Amended opinion at 13 ELR 20441 — Ed.]

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

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

Before SNEED, ANDERSON, and REINHARDT, Circuit Judges.

SNEED and ANDERSON, Circuit Judges, concur in this opinion.

REINHARDT, Circuit Judge, concurs in the result only and will file a separate concurring opinion at a later date.