Washington State Commercial Passenger Fishing Vessel Ass'n v. Tollefson

571 P.2d 1373, 89 Wash. 2d 276, 8 Envtl. L. Rep. (Envtl. Law Inst.) 20111, 1977 Wash. LEXIS 992

Opinions

Rosellini, J.

The majority of this court in Washington State Commercial Passenger Fishing Vessel Ass'n v. Tollefson, 87 Wn.2d 417, 553 P.2d 113 (1977), held that the case was moot, since the regulations involved, which were adopted in 1974, have been superseded and are now without force or effect. Upon rehearing, the majority has decided that we should address ourselves to the questions raised on appeal, because they are of a recurring nature and of public importance.

The Washington State Commercial Passenger Fishing Vessel Association (hereinafter referred to as respondent) obtained in the Superior Court a declaration that State fisheries regulations WAC 220-56-013 and -063, which reduced from three to two the daily limit of salmon which a sports fisherman was permitted to catch in ocean waters, were invalid. We sustain that judgment.

Sports fishing for salmon off the Washington and Oregon coast has been a major recreational pursuit for a number of years. Charter boats are taken for hire by sports fishermen in Washington coastal areas for the purpose of catching chinook and coho salmon. The 350 to 400 charter boats constitute a major industry in the area of Ilwaco and Westport on the southern coast of Washington and all of the Olympic Peninsula ports, including Neah Bay, Sekiu, La Push, Agate Beach, Port Angeles, and others. There also exists a charter boat industry in Astoria and other Oregon fishing ports in the vicinity of the Columbia River which are directly in competition with Ilwaco and indirectly competing with the Westport charter fleet.

At the hearing in the Superior Court, the director was questioned with regard to the reason for the regulations, and stated that they were adopted in response to a decision by Federal District Judge George C. Boldt in United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), aff'd, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086, 47 L. Ed. 2d 97, 96 S. Ct. 877 (1976), holding that treaties between the treaty Indians and the United States gave the tribes the right to take a certain percentage of the fish in certain coastal streams. He was asked:

Q. Were there any other factors for the department and yourself with respect to the regulatory enactments that were adopted in complying with the Boldt Decision? . . . A. Were it not for the Boldt Decision, we would not have taken this action.

He further testified:

Q. What was the effect of the regulations designed with respect to the coastal areas? A. It was designed to put more fish into the coastal Indian streams.

He testified that the regulation, in conformity with Judge Boldt's ruling, was designed to significantly reduce non-Indian fishing in order to make more fish available to the Indians.

The court made the finding that the regulations were passed solely as a result of the Boldt decision and not in furtherance of the director's powers and duties under the Washington statutes which created his office. These relate to the conservation and preservation of the fishery of the State. The court found that the respondents were irreparably damaged; that there was a sharp decrease in the number of sports fishermen carried on the charter boats, which necessitated a 3- to 6-week recovery period, and that the respondents suffered economic loss. The Superior Court also took note of the fact that the United States District Court ordered the director to make a significant reduction in non-Indian fishing.

The issues raised by this appeal are: (1) Does the director of the Department of Fisheries have the statutory power to make an unequal allocation of fish among members of the same class of user? (2) Can a Federal District Court order a state official to act beyond the powers vested in the state official by the legislature? and (3) May Congress and the executive department, by treaty, or may a court of law, in interpreting a treaty, ignore and supersede provisions of the federal constitution?

The first two questions were answered in the negative in Puget Sound Gillnetters Ass'n v. Moos, 88 Wn.2d 677, 565 P.2d 1151 (1977). See also Purse Seine Vessel Owners Ass'n v. Moos, 88 Wn.2d 799, 567 P.2d 205 (1977).

The third, though involving fundamental concepts, has not been argued in this court before.

The Federal District Court in United States v. Washington, supra, allocated to the treaty Indians more than 50 percent of the harvestable catch, to wit: the right to take 50 percent of the harvestable salmon and steelhead, plus all of the fish that the Indians can catch on the reservation, where they are not regulated by the State,¹ plus all that they can eat, and all they need for ceremonial purposes.

In addition, under the court's order, the share of salmon and steelhead allocated to the Indians is to be increased by

[a]n additional equitable adjustment, determined from time to time as circumstances may require, to compensate treaty tribes for the substantially disproportionate numbers of fish, many of which might otherwise be available to treaty right fishermen for harvest, caught by non-treaty fishermen in marine areas closely adjacent to but beyond the territorial waters of the State, or outside the jurisdiction of the State, although within Washington waters.

United States v. Washington, supra at 344.

The Federal District Court ruled that treaty Indians are to be entitled to fish at other than traditional fishing grounds and

[i]f a tribal member fishes in the all-citizen fishery at a location which is not a usual and accustomed ground or station of his tribe, that individual's catch will not count toward the tribal off-reservation share.

Footnotes

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[2]

United States v. Washington, supra at 410.

The Federal District Court found all the above rights from its interpretation of article 3 of the Treaty of Medicine Creek, 10 Stat. 1132, 1133 (1854), which states:

The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory . . .

(Italics ours.)

Does the treaty, as thus interpreted, deny to citizens of the state the equal protection of the laws guaranteed under U.S. Const. amend. 14? In exploring that question, it is necessary to take into consideration the following facts:

The number of treaty Indians living in the case area, as identified by the Federal District Court, in proportion to the number of other persons living in the area, is .028 percent. The number of treaty Indians living on the reservation is less than .007 percent of the total tribal membership. The Federal District Court found that only 794 treaty Indians engaged in commercial fishing. The entire population in the Federal District Court case area was 2,243,069. In Western Washington alone there are 6,600 commercial fishermen and 283,650 sports fishermen.

Thus, it is apparent that the court awarded over 50 percent of the state's natural resources to a group of its citizens comprising less than 1 percent of the population of the area involved in the decision. The decision was based upon a treaty made not with a foreign nation, but with inhabitants of this Nation who were ancestors of the Indian claimants in this action. The allocation was one which had no precedent in the interpretation of Indian treaties. It had the effect of injecting a new provision into the treaties.

We think that there can be no doubt that were the executive department to enter into a treaty with a foreign nation or were the Congress to pass a law which allocated a portion of a state's natural resources to a group of its citizens, based upon their race or ancestry, that provision would be struck down as a denial of equal protection of the laws. The United States Supreme Court has observed that the language of the treaty, "in common with all citizens of the Territory", invokes the principles of equal protection. Department of Game v. Puyallup Tribe, Inc., 414 U.S. 44, 38 L. Ed. 2d 254, 94 S. Ct. 330 (1973) (Puyallup II), was remanded with an admonition that the issue of equal protection is implicit in the term "in common with" as used in the treaty.

In Puyallup Tribe, Inc. v. Department of Game, 391 U.S. 392, 403, 20 L. Ed. 2d 689, 88 S. Ct. 1725 (1968) (Puyallup I), the court had also stated with respect to the term "in common with":

[W]e only add that any ultimate findings on the conservation issue must also cover the issue of equal protection implicit in the phrase "in common with."

Granted the equal protection clause of the Fourteenth Amendment does not mandate complete equality. But it cannot be seriously argued that an allocation of more than 50 percent of a natural resource of a state to a group of citizens comprising a little more than .028 percent of the population does not deny such protection.

The appellants agree that the result achieved by the Boldt interpretation, were it enacted as a law, would run afoul of constitutional prohibitions. They suggest, however, that the allocation is immune from constitutional restriction because treaties are the supreme law of the land and are binding within the territorial limits of the United States. While it is true that a treaty is the supreme law of the land under U.S. Const. art. 6, the constitution stands above the treaty in the order of supremacy.

U.S. Const. art. 6 reads, in part:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding.

(Italics ours.)

To test the notion that a treaty may supersede the constitution, let us examine a hypothetical case.

Suppose the executive branch of the government should enter into a treaty with the Vatican to the effect that all Catholic churches and schools are to be tax-supported in the United States. And suppose that the United States Senate should ratify the treaty and attempt to implement it by statutes. Would such a treaty or the implementing statutes be enforceable in the United States, in spite of the First Amendment's mandate that "Congress shall make no law respecting an establishment of religion . . ." ? Can it be seriously suggested that the courts would enforce such a treaty or laws?

If treaties are indeed supreme over the constitution, the executive and the Senate can, by exercising the treaty-making power, amend the basic document so as to grant rights not found in that instrument or deny rights otherwise mandated.

If this was the intent of the framers, then not only can the exercise of the treaty power effectively amend the constitution so as to preclude the assertion of rights guaranteed under that instrument, but it could just as easily effect a change in the structure and character of our government itself.

With respect to the supremacy of treaties over acts of Congress, the Supreme Court has said:

By the Constitution a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other. When the two relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; but if the two are inconsistent, the one last in date will control the other, provided always the stipulation of the treaty on the subject is self-executing.

Whitney v. Robertson, 124 U.S. 190, 194, 31 L. Ed. 386, 8 S. Ct. 456 (1888).

Any notion that a treaty may violate any section of the constitution was laid to rest in Reid v. Covert, 354 U.S. 1, 16-17, 1 L. Ed. 2d 1148, 77 S. Ct. 1222 (1957). The court stated:

There is nothing in this language [the supremacy clause] which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. ... It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights—let alone alien to our entire constitutional history and tradition—to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V.

(Footnote omitted.)

The Supreme Court has further stated:

The treaty is ... a law made by the proper authority, and the courts of justice have no right to annul or disregard any of its provisions, unless they violate the Constitution of the United States.

Doe v. Braden, 57 U.S. (16 How.) 635, 656, 14 L. Ed. 1090 (1853). See Geofroy v. Riggs, 133 U.S. 258, 267, 33 L. Ed. 642, 10 S. Ct. 295 (1890); United States v. Wong Kim Ark, 169 U.S. 649, 700, 42 L. Ed. 890, 18 S. Ct. 456 (1898); Asakura v. Seattle, 265 U.S. 332, 341, 68 L. Ed. 1041, 44 S. Ct. 515 (1924).

If a treaty itself may not contravene constitutional provisions, it must follow that an interpretation of a treaty which leaves it open to constitutional objections, is likewise forbidden (Reid v. Covert, supra); and certainly laws or regulations which violate a constitutional provision, though they be made pursuant to the terms of a treaty, must fail.

While generally the State has no jurisdiction over persons living on Indian reservations,³ except as ceded by Congress, its off-reservation jurisdiction has been fully recognized by the Supreme Court in Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49, 36 L. Ed. 2d 114, 93 S. Ct. 1267 (1973), where it said:

But tribal activities conducted outside the reservation present different considerations. . . . Absent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State.

And see Organized Village of Kake v. Egan, 369 U.S. 60, 75, 7 L. Ed. 2d 573, 82 S. Ct. 562 (1962), which states:

Even where reserved by federal treaties, off-reservation hunting and fishing rights have been held subject to state regulation . . .

Both the State's Enabling Act⁴ and the treaties them selves (providing for the right to fish "in common") are consistent with the State's jurisdiction over its lands and waters outside the reservation, the only place we are concerned with here. This being the case, the Fourteenth Amendment has full application.

The equal protection clause of the Fourteenth Amendment states that "[n]o state shall make or enforce any law which shall . . . deny to any person within its jurisdiction the' equal protection of the laws."

Congress may not authorize the States to violate the Equal Protection Clause. . . . Congress is without power to enlist state cooperation in a joint federal-state program by legislation which authorizes the States to violate the Equal Protection Clause.

Shapiro v. Thompson, 394 U.S. 618, 641, 22 L. Ed. 2d 600, 89 S. Ct. 1322 (1969). See also Katzenbach v. Morgan, 384 U.S. 641, 651, 16 L. Ed. 2d 828, 86 S. Ct. 1717 (1966).

Whenever the federal law requires the State to act, the State must act in conformity with the Fourteenth Amendment. This rule must also apply to all courts; otherwise, the effect is to give to the judicial branch the power to amend the constitution. This cannot be done. Reid v. Covert, supra.

We hold that the director of the Department of Fisheries of the State of Washington does not have authority to apportion fish to conform to the Federal District Court decision, that the Federal District Court cannot compel a state officer to act beyond his statutory authority, and that the granting of more than 50 percent of the harvestable fish to .028 percent of the population (treaty Indians) and less than 50 percent to 2,243,069 non-Indian population, violates the equal protection clause of the fourteenth amendment to the United States Constitution.

We affirm the trial court.

Hamilton, Brachtenbach, and Hicks, JJ., and Wiehl, J. Pro Tern., concur.

1

Except as provided in Puyallup Tribe, Inc. v. Department of Game, 433 U.S. 165, 53 L. Ed. 2d 667, 97 S. Ct. 2616 (1977).

2To enforce the federal decision, the Federal District Court proposed to use state resources and the state's power to regulate the taking of fish. Under its orders, the state regulations were not to be confined to or limited to conservation and preservation purposes, or to balancing the interest in on- and off-reservation fishing with conservation measures. The State was required to regulate the taking of fish in offshore waters, which were not a part of the treaty Indians' usual and accustomed fishing grounds, to increase the supply of fish at those places.