Forsman v. Port of Seattle

• Court: District Court, W.D. Washington
• Decided: May 24, 2021
• Docket: 2:19-cv-02050
• Status: Unknown

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 RAYMOND A. FORSMAN, 9 Plaintiff, Case No. C19-2050RSL 10 v. ORDER OF DISMISSAL 11 PORT OF SEATTLE, 12 Defendant. 13 14 This matter comes before the Court on the Report and Recommendation of the Honorable 15 Michelle L. Peterson, United States Magistrate Judge. Plaintiff did not file objections or a 16 response to the recommendation of dismissal. Having reviewed the Report and Recommendation 17 and the remainder of the record, the Court finds and ORDERS: 18 Plaintiff alleges that the Port of Seattle, through its attorney and managers, deprived him 19 of the opportunity to obtain equipment and engage in fishing activities that are permitted under 20 state law, in violation of 25 C.F.R. § 249.7(a). The issue is whether there is a private right of 21 action to enforce the provisions of part 249. “Where a federal statute does not explicitly create a 22 private right of action, a plaintiff can maintain a suit only if Congress intended to provide the 23 plaintiff with an implied private right of action.” In re Digimarc Corp. Derivative Litig., 549 1 F.3d 1223, 1230 (9th Cir. 2008) (quoting First Pac. Bancorp, Inc. v. Helfer, 224 F.3d 1117, 1121 2 (9th Cir. 2000)) (alteration and internal quotation marks omitted). Accordingly, the Court’s task 3 is to interpret the statute Congress passed to determine whether it, either explicitly or by 4 implication, evinces an intent to create not only a private right, but also a private remedy. Logan 5 v. U.S. Bank Nat. Ass’n, 722 F.3d 1163, 1169 (9th Cir. 2013). In the absence of such intent,

6 courts may not create a private cause of action “no matter how desirable . . . as a policy matter, 7 or how compatible with the statute.” Alexander v. Sandoval, 532 U.S. 275, 286 (2001). 8 There is no indication that Congress intended to create a private cause of action in the 9 statutes underlying 25 U.S.C. § 249.7. To the contrary, those statutes simply authorize the 10 Commissioner of Indian Affairs to manage Indian relations and the Secretary of the Interior to 11 issue regulations. See 25 U.S.C. § 2; 5 U.S.C. § 301; 43 U.S.C. § 1451. Nor is there any language 12 in part 249 suggesting that the regulatory agency intended to create a private cause of action or 13 believed it had the power to do so.1 The only actions authorized by the part dealing with off- 14 reservation treaty fishing (part 249) involve tribal actions to punish violations by its members.

15 See 25 U.S.C. § 249.6. Section 249.7 is nothing more than a savings provision, preserving rights 16 granted elsewhere and making clear what 25 C.F.R. § 249.1, et seq., does not do. Plaintiff is 17 attempting to pursue a civil action based on the regulatory statement that part 249 does not 18 “[p]rohibit or restrict any persons from engaging in any fishing activity in any manner which is 19 permitted under state law.” The regulation does not create new rights, methods, or means of 20 fishing, however. Rather, it simply leaves untouched the rights created by the states. If, as 21 plaintiff alleges here, Port agents and employees interfered with a state-given right to possess 22 23 1 “Language in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not.” Alexander, 532 U.S. at 291. 1 fishing equipment or to engage in fishing activity, he may have a claim under state law, but he 2 has no remedy directly under 25 U.S.C. § 249.7. 3 4 For all of the foregoing reasons, this matter is DISMISSED with prejudice. In light of the 5 many opportunities plaintiff has already had to state a viable claim, the Court adopts the

6 recommendation that leave to amend be DENIED. 7 8 Dated this 24th day of May, 2021.

9 10 ROBERT S. LASNIK United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23