ELR Citation: ELR 20813
No(s). 81-3111 (9th Cir. Apr 29, 1985)

The court rules that Pacific Northwest Indian treaties grant Indians the right to harvest a share of hatchery fish, but the court declines to grant declaratory judgment on whether the treaties create environmental rights or obligations concerning protection of fish habitat. The court first holds that the district court's ruling in the case was a reviewable final judgment. It reviews de novo the decision to grant declaratory judgment, and finds that the grant of judgment on the environmental issue was not prudent. Issued apart from a base of concrete facts, the ruling is too imprecise and uncertain. The hatchery issue, in contrast, is sufficiently well-developed for a court to rule upon. A recent Supreme Court case construing the treaties, which affirmed the tribes' rights to up to one-half the harvestable fish in the case area to fulfill the treaties' promises of "an adequate supply of fish," supports the Indians' claim. The court holds that equity to supports the Indians. Four factors are in their favor. First, the state has no ownership rights in the fish once they are released. The court rejects the state's analogy to the developed waters doctrine, which gives developers of water supplies superior rights to the water. Second, the tribes will not be unjustly enriched by the hatchery fish, since they helped pay for them. In any case, the state should not be able to uniaterally "buy out" the treaty rights by paying to replace treaty fish with unprotected fish. Third, hatchery fish are virtually indistinguishable from natural fish, and the state claimed no special legal status for hatchery fish prior to 1973. Fourth, the purpose of raising hatchery fish is to replace natural fish lost to non-Indian degradation of the habitat and commercialization of the fishing industry.

Judges Sneed and Anderson concur, though they endorse the position taken by the panel that originally heard the case. Judges Ferguson and Schroeder concur, but would further hold that the environmental issue does not present a live case or controversy. Judges Nelson and Skopil, dissenting in part, would have reviewed the decisions to grant declaratory judgment under an abuse of discretion standard and would have affirmed the trial court's ruling that the treaties create rights and obligations concerning protection of fish habitat. Judge Norris agrees with Judges Nelson and Skopil on the proper standard of review, but declines to express an opinion on the merits. Judge Poole, dissenting, believes that the court of appeals has no jurisdiction to hear the case because the orders of the district court were not final judgments.

[This opinion vacates the opinion published at 15 ELR 20266. Other rulings in the case appear at 13 ELR 20126 and 20441.]

Counsel are listed at 15 ELR 20266.

Before BROWNING, SNEED, KENNEDY, ANDERSON, SKOPIL, SCHROEDER, ALARCON, POOLE, FERGUSON, NELSON, and NORRIS, Circuit Judges.