Full opinion text
TABLE OF CONTENTS ORDER PAGE Decision, Injunction and Order Re State Court Injunctions Preventing Enforcement of Certain Department of Fisheries Regulations (9/12/74) 1028 Order for Program to Implement Interim Plan (10/8/74, 11/21/74, 8/6/75 and 4/5/76) 1° Order Directing Prompt Notice to Fisheries Technical Adviser When Fishery Problems Arise (11/20/74) 1038 Decision re Quinault Fishery Outside the Case Area (11/22/74) 1038 Decisions Re Status of Additional Tribes. First and Second Supplemental Findings of Fact (12/31/74; 2/26/75) 1° First and Second Supplemental Conclusions of Law (12/31/74; 2/26/75) 1°1 Preliminary Injunction and Memorandum Decision re Green River Steelhead Fisheries (1/14 and 1/20/75) 1042 Memorandum Decision and Orders re Nisqually River Fisheries (2/14 and 2/26/75) 4047 Orders re Herring Fisheries and Determination of Usual and Accustomed Fishing Places of Additional Tribes (3/28 and 4/18/75) 1048 Decision and Decree Re 1975 Fraser River Sockeye and Pink Salmon Harvest (Fourth Supplemental Findings of Fact and Conclusions of Law) (7/16/75 modified and supplemented 8/6/75) 1050 Permanent Injunction re 1975 Fraser River Sockeye and Pink Salmon Harvest (7/16/75 as amended 7/30/75) 1055 Injunction Staying Proceedings re 1975 IPFSC Fisheries in Cause No. 52881 Before Superior Court for Thurston County, State of Washington; and Denial of Defendants’Motions (8/6/75) 1056 Preliminary Injunction Re Swinomish Indian Tribal Community Chi-nook Fishery in West Beach Area (8/8/75 as corrected 8/18/75) 1056 Order re Conditional Fishing Rights of Certain Plaintiff-Intervenor Tribes (8/14/75) 1°57 Order re Tulalip Tribes’ Usual and Accustomed Fishing Places (9/10/75 as amended 10/15 and 12/29/75) 1°58 Stipulation re Notice of Regulations (10/15/75) 1060 Decision re Certain On-reservation Fisheries of Puyallup and Nisqually Tribes (10/21/75) 1060 Orders Establishing Fisheries Advisory Board and Prescribing Procedures for State Emergency Regulations (10/28/75 as amended and supplemented 12/17/76) I064 Order for Interim Plan for Management of Herring Fisheries (2/13/76) 1°63 Order re Makah Tribe’s Request for Reconsideration of Lower Elwha Usual and Accustomed Fishing Places (3/10/76) 1066 Order re Tulalip Tribes’ Objection to Stillaguamish Fishing Regulations (3/10/76) 1°68 TABLE OF CONTENTS ORDER PAGE Order on Certain Questions re: Salmon Fisheries Management (4/13/76) 1069 Memorandum Decision and Order Granting Preliminary Injunction re Hatchery Propagated Fish (8/13/76) 1072 Order Granting Preliminary Injunction re Hatchery-Propagated Fish (8/13/76) 1085 Order on Certain Questions re Steelhead Management (9/14/76 as extended 1/10/78) 1085 Order re Compliance with State Permit Requirements for Fisheries Research or Release of Fish (9/15/76) 1089 Order Re: State “Buy-Back” Program (12/22/76) 1089 Memorandum Decision Denying Disqualification (5/2/77) 1093 Memorandum Order and Preliminary Injunction Re: Inclusion of Grays Harbor in the Case Area (8/31/77) 1097 Memorandum Order and Preliminary Injunction Re: Allocation of 1977 Salmon Runs and Other Matters (8/31/77 as supplemented 9/28/77) 1097 Preliminary Injunction Staying State Court Injunction and Order Implementing Preliminary Injunction (8/31/77) 1104 Memorandum Adopting Salmon Management Plan (8/31/77 as amended 10/11/78) 1107 Findings of Fact, Conclusions of Law and Preliminary Injunction Re: Enforcement of 1977 Fisheries Orders (9/27/77) 1113 Preliminary Injunction Staying Thurston County Superior Court (10/17/77) 1117 Order Adopting Steelhead Management Plan (1/31/78 as modified 4/21/78 and 10/11/78) 1118 Order Re: 1978 Sac Roe Herring Fishery (4/14/78 as supplemented 5/2/78) 1120 Order, Findings of Fact, Conclusions of Law and Preliminary Injunction Re: Enforcement of Limitations on Nontreaty Salmon Fisheries for 1978 and Subsequent Seasons (6/6/78 as amended 6/15/78) 1125 COMPILATION OF MAJOR POST-TRIAL SUBSTANTIVE ORDERS (Through June 30, 1978) BOLDT, District Judge. The initial decision of the court dated February 12, 1974, (hereinafter Final Decision # 1) and related rulings and decree of March 22, 1974, in this case are set forth at 384 F.Supp. 312 (aff’d 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97, rehearing denied 424 U.S. 978, 96 S.Ct. 1487, 47 L.Ed.2d 750 (1976)). Under the court’s retention of continuing jurisdiction, subsequent decisions and orders of a substantive nature rendered through June 30, 1978, are set forth or summarized below. All summarizations or editing herein of the provisions as entered, are by the court. Subsequent to Final Decision # 1 herein, the following parties were allowed to intervene as additional plaintiffs: Duwamish, Jamestown Band Clallam, Lower Elwha Band Clallam, Nooksack, Port Gamble Band Clallam, Samish, Snohomish, Snoqualmie, Steilacoom, Suquamish, Swinomish, Aboriginal Swinomish and Tulalip Tribes. The Nisqually and Puyallup Tribes.which had only been represented by the United States, were allowed to intervene on their own behalf. Applications to intervene as additional defendants by the Northwest Steel-headers’ Council of Trout Unlimited, Gary Ellis its president, Purse Seine Vessel Owners Association and Washington State Commercial Passenger Fishing Vessel Association were denied. By separate order the court appointed United States Magistrate Robert E. Cooper as Master and Dr. Richard R. Whitney as fisheries science and management advisor to assist the court. A Fisheries Advisory Board was established as set forth, infra. DECISION, INJUNCTION AND ORDER RE STATE COURT INJUNCTIONS PREVENTING ENFORCEMENT OF CERTAIN DEPARTMENT OF FISHERIES REGULATIONS (September 12, 1974) Paragraph 5 of the Interim Plan and Stay Order entered by this court on March 22, 1974 (384 F.Supp. at 420), obligates defendants State of Washington, Washington Department of Game and its Director and Washington Department of Fisheries and its Director, (hereinafter “defendants”) to make significant reductions in the non-Indian fishery as deemed necessary to achieve the objectives of the court’s definition of Indian treaty fishing rights. In carrying out this order the court anticipated that defendants would promulgate and enforce regulations reducing the non-Indian fishery. Defendants have promulgated certain regulations establishing reductions in the non-Indian fishery but have been unable to enforce them by reason of certain directives and orders of the Thurston County Superior Court in Washington State Commercial Passenger Fishing Vessel Association v. Tollefson, No. 50380, Washington Kelpers Association v. Tollefson, No. 50552 and Puget Sound Gillnetters Association v. Tollefson, No. 50757. No additional or alternative regulations have been proposed by defendants. Therefore, it now appears that in order to effectuate the prior orders of this court and to preserve this court’s jurisdiction over the subject matter, further orders of this court are necessary to clarify the scope of the court’s jurisdiction and of the duties imposed upon defendants under Final Decision # 1. The principal questions presented by plaintiffs’ request are whether this court is empowered to protect its earlier rulings from incursions such as have taken place in the three state court proceedings referred to above and, if such jurisdiction exists, whether this court in its discretion should exercise said authority, and if so, in what form. This court fully adopts the legal arguments recited in Exhibit “A” attached to this order as though fully set forth herein and refers particularly to the following cases cited therein: Atlantic Coast Line; Thomason; Shelton; Donelon; Leiter Minerals; Alonzo v. U. S.; U. S. v. Wood. Based upon the legal arguments and decisions referred to immediately above, this court is not only satisfied that it has jurisdiction to enjoin the state court proceedings referred to, within the express exceptions to the anti-injunction statute, 28 U.S.C. § 2283, but also believes it has an urgent duty to take such action to the extent shown necessary in order to effectuate its judgment and protect the federal treaty rights declared therein. It is clear beyond reasonable question that the three state court injunctions referred to above have to some extent prevented defendants from complying with this court’s order to make “significant reductions” in the non-Indian fishery in order to make available to treaty-right fishermen a sufficient portion of the harvestable resource to guarantee an opportunity for them to harvest 50% of said resource. Interference with the exercise of Indian treaty fishing rights indisputably is within the jurisdiction of this federal court, and state court proceedings instituted by nonparties to this lawsuit cannot be allowed to frustrate either final determinations based on exhaustive research and evidence or the jurisdiction of this federal court. Data submitted by the United States Fish and Wildlife Service, which includes Department of Fisheries statistics, indicate that through August 1974, with the exception of the Nisqually River chum harvest in January which, for management purposes would be considered part of the 1973 run, Indian fishermen in the case area in 1974 have caught less salmon of each species than they caught in 1973, both in terms of total numbers of fish caught and in terms of the percentages of Indian harvest as contrasted with total non-Indian commercial salmon, or 3.5% of the total as compared with 3,404,710 salmon harvested by non-Indian commercial interests; through August of 1974, Indians have harvested 89,-402 salmon or 2.4% of the total as compared with 3,628,513 salmon harvested by non-Indian commercial fishermen; when the sport catch through August of 1974 of 837,099 salmon is included, the Indian share of the total harvest is 2.0%. These figures illustrate in the most startling manner the gross inequities between Indian and non-Indian harvest, and the complete failure and inability of defendants to comply with this court’s orders to make significant reductions in non-Indian fishing and to afford to Indians an opportunity to catch approximately 50% of the harvestable resource at their usual and accustomed grounds and stations. Because by their nature substantial fish resources will be lost for 1974 to plaintiff tribes if not harvested during the currently ongoing seasons, the immediate threat of substantial economic harm and serious hardship to many treaty-right fishermen convinces this court that prompt action is required to protect federal treaty rights that this court has found are constitutionally guaranteed as the law of the land and to assure the viability of this court’s Final Decision # 1, unless and until it be modified or reversed. In all court litigation in which the United States has an interest, including cases involving the interpretation and application of treaties duly enacted as required by federal law and the national Constitution, the Attorney General of the United States, acting through the Justice Department and United States Attorneys, is the official authorized to speak and act for the people of the Nation in such matters. In this instance, the United States Attorney, presumptively in the national interest, has requested that this court enjoin enforcement of the injunctions issued in all three of the above-referred to state court proceedings. Plaintiff tribes, as descendants of signatories to treaties with the United States, have joined in that request. Rather than consider the state court proceedings in toto, upon the record now presented this court finds it necessary to consider the injunctions separately and therefore will discuss each of them in the order of issuance. It must be recognized, however, that each of the three state court proceedings was instituted by litigants none of whom was a party to this federal court action. Additionally, none of those state court proceedings joined the United States or the plaintiff tribes, the real parties in interest who could be, if not irreparably, at a minimum grievously, injured by state court injunctions preventing enforcement of the Department of Fisheries regulations promulgated for the express purpose of making more fish available to treaty-right fishermen. Finally, at none of the state court hearings were witnesses interrogated nor was any of the hearings a full scale evidentiary hearing; only affidavits of the litigants were presented, not subject to cross-examination, and the state court judges could only act upon the materials presented to them. Beyond question, the state court judges who issued the restraining orders involved herein performed their judicial functions in accordance with established law and practice in the state courts, and in an able and responsible manner beyond criticism in any particular whatever. However, it is clear from the cited authorities that the circumstances above recited can and should be considered by this court together with the full record before it, significant portions of which were not available to the state courts, in determining what action, if any, to take with regard to these state court proceedings. (1) In Commercial Passenger Fishing Vessel Assoc. v. Tollefson, supra, plaintiffs herein obtained a temporary injunction preventing enforcement of a Department of Fisheries regulation reducing the personal use salmon angling daily bag limit in Washington coastal waters and the Strait of Juan de Fuca from three salmon to two salmon. Upon the evidence before it, this court finds that plaintiffs herein have not sustained their burden of showing that enforcement of that regulation reducing the daily salmon sport bag limit would achieve the purpose of making a significant number of additional fish available for harvest by treaty-right fishermen. For these reasons, this court finds no reason to interfere with the state court temporary injunction currently in effect in Cause No. 50370. (2) In Washington Kelpers Association v. Tollefson, supra, plaintiffs therein succeeded in temporarily enjoining enforcement of a Department of Fisheries regulation which effectively closed commercial trolling for salmon within the three-mile limit under state jurisdiction. Evidence in the record before this court discloses that the total harvest by the Kelpers Association within the three-mile limit is not substantial and that the runs of fish involved would not significantly enhance the harvest opportunity of treaty-right fishermen because they pass through other non-Indian commercial fisheries before reaching tribal fishing grounds. This court finds that plaintiffs herein have not met their burden of showing that enforcement of the regulation in question, proposing to close commercial trolling for salmon within the three-mile limit, would achieve the purpose of making a significant number of additional fish available for harvest by treaty-right fishermen. For these reasons, this court finds no reason to interfere with the state court temporary injunction currently in effect in Cause No. 50552. (3) In Gill Netters Association v. Tollefson, supra, plaintiffs therein obtained a temporary injunction enjoining enforcement of a Department of Fisheries regulation proposing reductions in fishing time for gillnetters and purse seiners in the Puget Sound marine fishery. Unlike the evidence concerning the prior temporary injunctions, the record in this case is replete with factual data which establishes beyond reasonable question that very significant portions of the harvestable fish not taken by the non-Indian fishermen referred to would reach the usual and accustomed off-reservation fishing grounds of plaintiff tribes in substantial numbers. Plaintiffs herein have overwhelmingly met their burden of proof to show that enforcement of this proposed Department of Fisheries regulation calling for reduced fishing time for gillnetters and purse seiners in Puget Sound would achieve at least partial compliance with this court’s directives to make additional fish available for harvest by treaty-right fishermen, and that prohibition by the state court of enforcement of that regulation presents an immediate threat of substantial economic harm and serious hardship to plaintiff tribes. Upon the facts found as above stated and after most serious and meticulous consideration of written memoranda and oral arguments by all parties and written submissions by parties to the state court actions, this court finds and holds that injunctive relief in the form set forth below must issue to enjoin enforcement of the state court injunction in Cause No. 50757, as follows: Injunctions (1) For the reasons hereinabove stated, unless and until this court orders otherwise, it is now hereby ORDERED AS FOLLOWS: That the Superior Court of the State of Washington, County of Thurston, is hereby prohibited and enjoined from in any manner or to any extent enforcing the temporary injunction issued by said court on August 30, 1974, in Puget Sound Gillnetters Association v. Tollefson, No. 50757, and from issuing any other order in said cause which in effect will prevent the Department of Fisheries from fully enforcing the regulations in question adopted pursuant to Administrative Order No. 1143. This injunction shall in no manner whatever preclude said court from expeditiously proceeding with preparation and trial of the issues presented in said cause. (2) IT IS FURTHER ORDERED: That defendants State of Washington, Thor Tollefson, Carl Crouse, Departments of Fisheries and Game of the State of Washington, and their officers, agents, servants, employees and attorneys, and those persons in active concert or participation with any of them, shall not obey, carry out, enforce or otherwise treat as having any lawful force or effect the order of the Thurston County Superior Court for the State of Washington referred to in paragraph (1) above. Implementing Orders For reasons not clear to this court, the Department of Fisheries takes the anomalous position of opposing entry of the injunction issued above, while asserting the correctness and appropriateness of the regulations enjoined in the state court proceedings. This court’s injunction confirms the propriety of the Department of Fisheries regulations adopted pursuant to Administrative Order No. 1143. Moreover, this court has not and will not direct, limit or in any manner whatever interfere with full exercise of the prerogatives, duties and discretion vested by state law in the Directors of the Departments of Game and Fisheries, excepting to the extent necessary to enforce the judgment and decree entered pursuant to Final Decision # 1 and to restore or preserve the Indian treaty rights specified therein. Nothing in this decision or in the above injunction should be construed or applied to the contrary. However, due to the circumstances previously recited, and to aid in achieving an equal opportunity to both Indian and non-Indian fishermen to harvest fish in the case area and to compensate treaty-right fishermen for not having been able to harvest the fish resource to the extent determined by Final Decision # 1, this court finds it necessary in aid of its jurisdiction and to protect and effectuate its judgment, to provide as follows: IT IS HEREBY ORDERED THAT: (1) The defendants are required to make significant reductions in the non-Indian fishery, as are necessary to achieve the ultimate objectives of the court’s Final Decision # 1 without requiring mathematical precision, but in making such reductions shall do so consistent with the concept of permitting the full harvest of fish. (2) Reductions in the non-Indian fishery, once adopted by the defendants in accordance with the court’s prior rulings and this order, shall not thereafter be relaxed or rescinded without prior notice to this court and all parties to this action, unless consent of the affected plaintiff tribes has been obtained prior thereto. (3) To the extent reduction in the non-Indian fishery adopted in accordance with the court’s prior rulings already have been relaxed or rescinded prior to the entry of this order by reason of the temporary injunction of the Thurston County Superior Court in Puget Sound Gillnetters Association v. Tollefson, No. 50757, issued August 30, 1974, defendants shall cease immediately from carrying out directives, orders or policies in accordance with said temporary injunction and shall resume forthwith to implement the regulatory schemes and policies previously adopted to effect reduction in the non-Indian commercial net fishery for salmon on Puget Sound and related waters. If defendants are participants in any subsequent legal proceedings which, in their judgment, might possibly result in an order that could impair or otherwise affect adversely their ability to conform to the requirements of this court’s Final Decision # 1, or other orders in this case, defendants shall immediately so inform this court and shall serve upon all parties to this action copies of all papers filed in such legal proceedings. ORDER FOR PROGRAM TO IMPLEMENT INTERIM PLAN (By order dated October 8, 1974, as amended and supplemented November 21, 1974, and August 6, 1975, this court ordered the following program as an initial program called for by paragraph 20 of the injunction (384 F.Supp. at 417 — 418) to implement the Interim Plan set forth at 384 F.Supp. at 420. By order of April 5, 1976, this program was extended indefinitely until further order of the court). This program is subject to modification and further refinement as additional information and further experience become available. The parties will continue to develop such information and experience and will consult frequently with each other on general and specific problems or conditions in an effort to achieve more completely and as rapidly as possible full compliance with the spirit and objectives of the orders of March 22, 1974. Any modifications or refinements agreed to by the affected parties shall become effective upon filing with the court without further action or approval of the court unless such further action is specified therein. Any party may submit requests for other modifications or refinements for approval or other appropriate order by the court. Tribes having qualified for self-regulation are not bound by the particulars of this program, other than as directed by the terms of Final Decision # 1 and the injunction entered pursuant thereto. A. Guideline Principles for Regulating Fisheries. Guideline Principles for Regulating Fisheries pursuant to paragraph 2 of the Interim Plan and Stay Order shall be filed with the court. B. Exchange of Information Preliminary to Regulation. Data required to be furnished by the state agencies under paragraphs 17 and 18 of the injunction (384 F.Supp. at 413-419) and paragraph 7 of the Interim Plan and Stay Order (384 F.Supp. 420) and data required to be furnished by the tribes under paragraph 17 of the injunction and paragraph 7 of the Interim Plan and Stay Order shall be furnished at the earliest practical time after such data becomes available, but no later than the following schedule: 1. At least sixty (60) days prior to entry of a run into the first fishery subject to state control run-size predictions, numbers of harvestable fish set pursuant to paragraph 17 of the injunction and information concerning run size, timing and condition requested by the tribes pursuant to paragraph 18 of the injunction and paragraph 7 of the Interim Plan and Stay Order shall be furnished by the state agencies. Until such time as predictions of steel-head run size are possible, Game shall determine the harvestable portion of the run in the best manner practicable after consulting with the plaintiffs to receive their suggestions. Such predictions relating to harvestable numbers of fish shall be subject to review if the tribes believe there is better information from another source. If the parties cannot agree on the best source the court shall make a determination through the Master in consultation with its Fisheries Technical Advisor. All predictions of harvestable numbers shall be further subject to review during the fishing season as additional information is obtained. 2. At least fifty (50) days prior to the entry of a run into the first fishery subject to state control, the tribes shall furnish information concerning their anticipated fishing activity as requested by the state under paragraph 17 of the injunction. 3. At least forty-two (42) days before a proposed opening of fishing, the state agencies and tribes shall exchange proposed off-reservation fishing regulations affecting the particular fishery. 4. At least twenty-one (21) days before a proposed opening, regulations shall be adopted and filed pursuant to paragraph 1 of the Interim Plan and Stay Order; provided that emergency regulations are enforceable upon filing them with the court and service upon the other parties affected of a copy of such regulations and a statement of the facts and circumstances of the emergency on which the regulations are based. Any party may respond and seek immediate review. Requests for emergency consideration by the court will be given priority and determined rapidly. C. Limitation on Harvest. Whenever such closure or curtailment will (1) increase the opportunity of the other fishery (i. e., non-Indian or Indian, respectively) to take more of the harvestable portion of such run, and (2) not result in overescapement for such run, the Department of Fisheries will close or curtail the non-Indian fisheries on any run of salmon when the non-Indian catches reach or are expected to reach 50% of the harvestable portion of that run. That department may likewise close or curtail Indian off-reservation commercial fisheries on said run whenever those fisheries have taken 50% of the harvestable portion of said run. The Department of Game may close or curtail the Indian off-reservation steelhead commercial fisheries or the non-Indian sport fisheries, respectively, on any river system steelhead run whenever such fisheries have taken 50% of the harvestable portion of said run. For purposes of this paragraph the harvestable portion of the run shall be the number determined by the Department of Fisheries for salmon or the Department of Game for steelhead and supplied in accordance with paragraph B.l. above. D. Identification of Indian-Caught Steelhead. The defendants may apply and enforce the provisions of WAC 232-12 — 210, 232 — 12— 211, 232-12 — 212 and 232-12-360, as amended or adopted October 2, 1974, to treaty Indians outside of Indian reservations and allotments, and to steelhead caught in the exercise of treaty-secured fishing rights by members of the Intervenor-tribes herein, subject to the following exceptions or limitations: 1. The requirements of WAC 232-12-210 that acceptance or possession of steel-head taken by another person must be accompanied by a written statement as therein described shall not apply to acceptance or possession for noncommercial purposes by a treaty Indian or member of the immediate family (parent, spouse or child) of a treaty Indian of steelhead lawfully caught by a treaty Indian. 2. WAC 232-12-211 shall not be applied so as to prohibit acceptance or possession for noncommercial purposes by the members of the immediate family of a treaty Indian of steelhead lawfully caught by a treaty Indian. 3. The provisions of WAC 232 — 12—212 shall not be applicable to any tribally-owned enterprise or to any Indian who sells solely to a tribally-owned enterprise provided that said tribal enterprise has previously notified the Department of Game in writing of its name and the addresses of its receiving, processing and storage facilities and has agreed to furnish to that Department the data described in WAC 232-12-212(2), on forms to be provided by the state. E. Catch Data. 1. Commercial catch reports shall be made by nonstate-licensed Indian fish buyers on forms (fish tickets) provided by the state agencies, except for the Quinault Indian catch which may be on tribally issued fish tickets. Indian fish buyers will submit a copy of such fish tickets daily to the U.S. Fish and Wildlife Service which shall communicate to the applicable state agency by a copy of the fish ticket or otherwise data concerning the total catch by species, area of catch and tribe before the close of business of the day on which such reports are received. Copies of fish tickets reporting Indian catch purchased by state-licensed fish buyers shall be made available to the U. S. Fish and Wildlife Service by the state agencies within one day of the date that such reports are received. 2. For each run of fish the state agencies shall provide the U. S. Fish and Wildlife Service or the tribes summaries of the non-Indian commercial catch no less than weekly and sport catch biweekly. F. Determination of Tribal Treaty Status and Fishing Areas. 1. The defendants shall not, with respect to any Indian tribe or group which has not specifically been determined by this court to be entitled on an interim or permanent basis to be recognized as a treaty tribe, treat any off-reservation taking of fish from stocks of the case area by such tribe or group as treaty fishing in making any allocation of fish to treaty Indians or in restricting the fishing of tribes recognized by this court as treaty tribes pursuant to the decree and orders in this case, without first obtaining the concurrence of the tribes involved. 2. In order to be entitled to exercise .its off-reservation treaty fishing rights, any tribe allowed to intervene in this case to assert its claim of treaty fishing rights shall, prior to any attempt to exercise such rights, present prima facie evidence and arguments supporting its claim to treaty status and tribal organizations upon which the court may make a preliminary determination as to whether such tribe is to be dealt with as a treaty tribe entitled to fish at specified locations pursuant to the Interim Plan and Stay Order pending final determination of'said tribe’s status after a full hearing; provided, however, that nothing in this paragraph shall preclude members of such tribes from fishing off-reservation in conformity with state regulations applicable to anadromous fish, to the same extent as nontreaty-right fishermen. Any party disputing a tribe’s claim of treaty entitlement or the recognition of specific usual and accustomed places shall cooperate in allowing the matter of final determination of such matters to be made promptly and as rapidly as the court calendar and the interests of justice permit. G. Nonanadromous Fish and Shellfish. 1. In order to be entitled to exercise off-reservation treaty fishing rights to nonanadromous fish and shellfish, any tribe party to this case shall, prior to any attempt to exercise such rights, present prima facie evidence and arguments supporting its claim to treaty entitlements to such nonanadromous fish and shellfish upon which the court may make a preliminary determination as to the tribe’s entitlement to such species, pending final determination of tribal treaty-right entitlement to nonanadromous fish and shellfish; provided however, that nothing in this paragraph shall preclude members of such tribes from fishing off-reservation in conformity with state regulations applicable to nonanadromous fish and shellfish, to the same extent as nontreaty-right fishermen. Following such preliminary determination, off-reservation fishing areas shall be opened only to the extent that tribes which are determined to have such entitlement adopt and file with the court and defendants tribal regulations for the nonanadromous fishing activities of their members specifying the areas to be opened to such fishing. Any party disputing a tribe’s claim of treaty entitlement or the recognition of specific usual and accustomed places shall cooperate in allowing the matter of final determination of such matters to be made promptly and as rapidly as the court calendar and the interests of justice permit. 2. The biologists for the defendants and biologists for the tribe shall meet to formulate general principles to be utilized as guidelines to be flexibly applied in the adoption of specific fishing regulations applicable to particular species of nonanadromous fish and shellfish. 3. Any of the parties may invoke the continuing jurisdiction of this court in order to determine: a. The procedure and/or method for adopting management principles with respect to any particular species of nonanadromous fish or shellfish; b. The species taken at treaty times, where (usual and accustomed grounds), and by what tribes (who are entitled to exercise treaty entitlement); c. Questions of allocation between plaintiff tribes and non-Indian fishermen of the harvestable portion of the specific species on nonanadromous fish or shellfish; d. A timetable for the taking of evidence regarding any particular nonanadromous species or shellfish; and e. Such other matters as the court may deem appropriate. ORDER DIRECTING PROMPT NOTICE TO FISHERIES TECHNICAL AD-VISOR WHEN FISHERY PROBLEMS ARISE (November 20,1974) There appears to be some lack of prompt and meaningful communication on problem matters between the counsel for the parties. Whether due to oversight, inadvertence or otherwise the result hampers and sometimes precludes bona fide efforts to promptly reach solutions acceptable to all concerned. As the Fisheries Science and Management Expert appointed by the court, Dr. Richard R. Whitney is now well known to all counsel and most parties in the case and in all matters within his competence he should be able to improve the timeliness and extent of genuine discussion on most fishing problems that may arise. Therefore, the court has requested and Dr. Whitney has agreed that he will act for the court in bringing about, by informal or informal means, earlier and better discussion between interested parties and counsel on fishery problems soon after they arise. Accordingly, whenever a fishery problem arises that might lead to emergency closure or opening, or to the filing of a motion or petition either with the court or the Master before any action is taken with respect to such matters the interested party or parties, acting through their counsel, are hereby directed to report the matter informally to Dr. Whitney as soon as the matter comes to their attention. A failure to do so will preclude hearing of the matter by either the Master or the court, unless a clear showing is made of exceptional circumstances preventing Dr. Whitney from promptly discussing the problem with interested parties and their counsel, or if the emergency is so urgent as to require immediate action. DECISION RE QUINAULT FISHERY OUTSIDE THE CASE AREA (November 22, 1974) 1. Grays Harbor and its watershed, including the Humptulips River, are outside the case area of this litigation. (See Final Decision # 1, p. 1 and C.L. # 7; 384 F.Supp. at 328 and 400). 2. The Quinault Tribe has usual and accustomed fishing places in Grays Harbor and its watershed, including the Humptulips River. (See F.F. # 121, 384 F.Supp. at 374-375). 3. The decision, decree and orders of this court heretofore entered do not prohibit members of the Quinault Tribe from exercising treaty fishing rights at usual and accustomed grounds and stations outside the case area. DECISIONS RE STATUS OF ADDITIONAL TRIBES First and Second Supplemental Findings of Fact (December 31, 1974; February 26, 1975) 254. The intervenor Swinomish Indian Tribal Community is the present-day tribal entity which, with respect to the matters that are the subject of this litigation, is a political successor in interest to certain tribes and bands and groups of Indians which were parties to the Treaty of Point Elliott, 12 Stat. 927. It is recognized by the United States as a currently functioning Indian tribe maintaining a tribal government on the Swinomish Indian Reservation in Skagit County, Washington. The reservation was established pursuant to said treaty by Executive Order of January 9, 1873. The Swinomish Indian Tribal Community is organized pursuant to section 16 of the Indian Reorganization Act of June 18, 1934, 48 Stat. 987, 25 U.S.C. § 476. Its membership is determined in accordance with its Constitution and Bylaws approved by the Acting Secretary of the Interior on January 27, 1936. It does not have a current federally approved tribal membership roll but it has a current membership of approximately 313 persons. 255. The intervenor Tulalip Tribes of Washington is the present-day tribal entity which, with respect to the matters that are the subject of this litigation, is a political successor in interest to certain tribes, bands or groups of Indians which were parties to the Treaty of Point Elliott. This tribe is recognized by the United States as a currently functioning Indian tribe maintaining a tribal government on the Tulalip Indian Reservation in Snohomish County, Washington. The Tulalip Reservation was established, pursuant to said treaty, by Executive Order of December 23, 1873. The tribe is organized pursuant to section 16 of the Indian Reorganization Act of June 18,1934, 48 Stat. 987, 25 U.S.C. § 476. Its membership is determined in accordance with its Constitution and Bylaws approved by the Acting Secretary of the Interior on January 24,1936. It has a base roll as of January 1, 1935, approved by a representative of the Secretary of the Interior on February 1, 1965, which has been maintained and kept current by the tribe since that date. The tribe presently has approximately 1077 enrolled members. 256. The intervenor Port Gamble Band of Clallam Indians is the present-day tribal entity which, with respect to the matters that are the subject of this litigation, is a political successor in interest to certain tribes, bands or groups of Indians which were parties to the Treaty of Point No Point, 12 Stat. 933. This tribe is recognized by the United States as a currently functioning Indian tribe maintaining a tribal government on the Port Gamble Indian Reservation in Kitsap County, Washington, under its official name Port Gamble Indian Community. It is organized pursuant to section 16 of the Indian Reorganization Act of June 18, 1934, 48 Stat. 986, 25 U.S.C. § 476. Land upon which the reservation is located was purchased by the United States in the 1930’s under authority of said Indian Reorganization Act and was proclaimed as an Indian Reservation pursuant to section 7 of that act, 25 U.S.C. § 467, by the Secretary of the Interior on June 16, 1938. Membership of the tribe is determined in accordance with its Constitution and Bylaws approved by an Assistant Secretary of the Interior on September 7, 1939. The intervenor Port Gamble Indian Community has a current federally-approved membership roll, approved August 22, 1974, and supplemental rolls approved September 3, 1974, and October 15, 1974, and presently has approximately 388 members. 257. The intervenor Lower Elwha Band of Clallam Indians is the present-day tribal entity which, with respect to the matters that are the subject of this litigation, is a political successor in interest to certain tribes, bands or groups of Indians which were parties to the Treaty of Point No Point. This tribe is recognized by the United States as a currently functioning Indian tribe maintaining a tribal government on the Lower Elwha Indian Reservation in Clallam County, Washington under its official name Lower Elwha Tribal Community. The tribe is organized pursuant to section 16 of the Indian Reorganization Act of June 18, 1934, 48 Stat. 987, 25 U.S.C. § 476. Land for the reservation was purchased by the United States in the 1930’s under authority of said Indian Reorganization Act, and proclaimed as an Indian reservation pursuant to section 7 of said Act by the Secretary of the Interior on January 19, 1968. The tribe’s membership is determined in accordance with its Constitution and Bylaws approved by an Assistant Secretary of the Interior on April 29, 1968. Its present membership roll was approved by a representative of the Secretary of the Interior on July 9, 1973. The tribe presently has approximately 311 enrolled members. 258. By Act of March 3, 1925, 43 Stat. 1102, Congress authorized $400,000 to be paid per capita to Clallam Indians upon an individual’s relinquishment of “all claims of any nature against the United States under any treaty, agreement, or Act of Congress” and his acceptance of such payment “in full satisfaction of any and all claims whatsoever against the United States.” Substantial numbers of Clallam Indians executed such written releases on behalf of themselves, their assigns, heirs and representatives and received such payments. Such claims settlement was made after the Clallam Indians had filed claims against the United States for nonfulfillment of promises said to have been made in connection with the Treaty of Point No Point, 12 Stat. 933 — principally an alleged promise to establish a reservation for the Clallams in their home country. The written claim did not include denial of fishing rights by the United States. 259. The United States Department of the Interior has not construed or interpreted the said Act of March 3, 1925, or the releases executed pursuant thereto as repealing, modifying or restricting in any way the fishing rights of the Clallam Indians secured by the Treaty of Point No Point. 260. The intervenor Suquamish Indian Tribe was a party to the Treaty of Point Elliott. It is recognized by the United States as a currently functioning Indian tribe maintaining a tribal government on the Port Madison Indian Reservation in Kit-sap County, Washington. The reservation was provided for the Suquamish Indians in Article II of the treaty and was enlarged by Secretary of the Interior Order of October 21,1864. The Suquamish Tribe is organized under section 16 of the Indian Reorganization Act of June 18, 1934, 48 Stat. 987, 25 U.S.C. § 476. Its membership is determined in accordance with its Constitution and Bylaws approved by the Under Secretary of the Interior on July 2, 1965. It does not have a current federally approved membership roll, but it has a membership of 275 estimated as of July 1, 1972. 261. In negotiating the Treaty of Point Elliott, Governor Stevens designated four head chiefs and a larger number of sub-chiefs to represent and to give assent to and sign the treaty on behalf of all the Indians with whom he was treating. It was the treaty commission’s intent to include the Nooksack Indians in the Point Elliott Treaty Council. Each of the four head chiefs was intended to represent the Indians of one of the major drainages of the area ceded by the Indians. 262. On January 16, 1855, six days before the Treaty of Point Elliott was signed, George Gibbs, a member and secretary of the treaty commission, recorded that a census of Indians at the treaty camp that date included 256 Nooksack. There was no evidence submitted that the Nooksack withdrew from the Council or refused to participate in the treaty. 263. No signator of the Treaty of Point Elliott is specifically identified thereon as having been a Nooksack Indian. 264. A Lummi Indian named Chow-its-hoot was designated as one of the four head chiefs and signed the treaty for “The Lummi and other tribes.” On the basis of the evidence offered the court finds that the reference to “other tribes” includes the Nooksack Tribe. 265. The statements of each of the three U.S. treaty commissioners whose post-treaty views on the question are recorded disclose that after the treaty was concluded and prior to its ratification each of them asserted that the Nooksack Indians were included in the Treaty of Point Elliott and this assertion was directly made by Governor Stevens in his official reports to his superiors in Washington, D. C. 266. The Nooksack Indians of 1855 were included in the Treaty of Point Elliott and the United States considered them bound to the treaty by Chow-its-hoot’s signature on the treaty, and the provisions of Article V of the treaty were applicable to them. 267. The intervenor Nooksack Indian Tribe of Washington is the present day tribal entity which, with respect to the matters that are subject of this litigation, is a political successor in interest to the Nook-sack Indians of 1855. 12 Stat. 927. It is recognized by the United States as a currently functioning Indian tribe maintaining a tribal government on the Nooksack Reservation in Whatcom County, Washington. The reservation was established pursuant to section 7 of the Indian Reorganization Act of June 18, 1934 (48 Stat. 986, 25 U.S.C. § 467) by proclamation of the Acting Secretary of the Interior dated March 22, 1973. The Nooksack Indian Tribe of Washington is organized pursuant to section 16 of said Indian Reorganization Act, 48 Stat. 987, 25 U.S.C. § 476. Its membership is determined in accordance with its Constitution and Bylaws approved by a representative of the Secretary of the Interior on September 24, 1973. It does not have a current federally-approved membership roll. Its present membership is about 371 persons. Based on the foregoing findings of fact, the court makes the following: First and Second Supplemental Conclusions of Law 49. The intervenors Swinomish Indian Tribal Community, Tulalip Tribes of Washington, Port Gamble Band of Clallam Indians, Lower Elwha Band of Clallam Indians and Suquamish Indian Tribe each hold a right under one or more of the treaties cited in paragraph 1 of the findings of fact of Final Decision # 1 to fish at usual and accustomed places outside of reservation boundaries. 50. Neither the Act of March 3, 1925, 43 Stat. 1102, nor the acceptance of any payment by individual Indians pursuant thereto constituted any repeal, relinquishment, modification or diminishment of fishing rights secured to the Clallam Indians by Article IV of the Treaty of Point No Point, 12 Stat. 933. 51. The Intervenor Nooksack Indian Tribe of Washington holds a right under the Treaty of Point Elliott to fish at usual and accustomed places outside of reservation boundaries. 52. Neither the Act of February 12, 1925, 43 Stat. 886, 887, nor the acceptance of any payment by individual Indians pursuant thereto, nor the decision of the Court of Claims in Dwamish, et a 1. v. United States, 79 Ct.Cl. 530 (1934), nor the decision of the Indian Claims Commission in Nooksack Tribe v. United States, 3 Ind.Cl.Comm. 479 (1955), constituted any repeal, relinquishment, modification or diminishment of fishing rights secured to the Nooksack Indian Tribe by Article V of the Treaty of Point Elliott, 12 Stat. 927. At the conclusion of oral argument February 13, 1975, on the state’s Objections to the Master’s Report, the court indicated that it would briefly state in writing the reasons for overruling of the state’s objections. The primary thrust of the state’s position is that the decisions in Dwamish et al. v. United States, supra, and Nooksack Tribe of Indians v. United States, supra, are binding precedents denying treaty status to the Nooksack Tribe and collaterally estopping the Nooksack Tribe from asserting treaty fishing rights in the above-entitled cause. A landmark case concerning the doctrine of collateral estoppel is Bernhard v. Bank of America Nat’l. Trust & Sav. Ass’n., 19 Cal.2d 807, 813, 122 P.2d 892, 895 (1942), in which Justice Traynor, in abandoning the requirement of mutuality of parties, set forth three questions to be considered in application of the doctrine: (1) Was the issue decided in the prior adjudication identical with the one presented in the action in question? (2) Was there a final judgment on the merits? (3) Was the party against whom the plea is asserted a party or in privity with a party in the prior adjudication? In dicta, the Washington State Supreme Court has recognized the trend toward elimination of the requirement of mutuality of parties in Henderson v. Bardahl Int’l. Corp., 72 Wash.2d 109, 115, 431 P.2d 961, 967-8 (1967), which added a fourth question with respect to collateral estoppel which must also be answered in the affirmative: (4) Will the application of the doctrine not work an injustice on the party against whom the doctrine is to be applied? Proceedings before the Court of Claims in Dwamish, and the Indian Claims Commission in Nooksack, dealt with compensation claims for tribal lands taken by the United States, and in no way dealt with asserted Indian treaty fishing rights. Certain historical and anthropological evidence presented for consideration of the Master in this case, which evidence was not rebutted by the defendant State of Washington, was not available to the Indian Claims Commission or to the Court of Claims in the earlier proceedings cited. For these reasons, there is serious doubt whether the first criterion set forth above, that of identity of issues, is satisfied with respect to the current proceeding. Furthermore, with respect to the fourth criterion listed above, the court is satisfied that in these circumstances application of the doctrine of collateral estoppel may indeed work an injustice on the party against whom the doctrine is to be applied. Because the findings of the Master are not clearly erroneous, and are based upon substantial evidence clearly sufficient to establish a prima facie showing of treaty entitlement in the Nooksack Tribe, the court has approved the findings and conclusions proposed by the Master as set forth above and as supplemented by Conclusion of Law No. 52 above. The absence of a determination that a specific fishing area is a usual and accustomed fishing place of a particular tribe shall not preclude the tribe or its members from exercising treaty fishing rights at such location if opened under a tribal regulation filed pursuant to paragraph 1 of the Interim Plan, subject to the state’s authority to contest the location consistent with the prior judgment and orders of this court. PRELIMINARY INJUNCTION AND MEMORANDUM DECISION RE GREEN RIVER STEELHEAD FISHERIES (January 14 and 20, 1975) The United States and the Muckleshoot Tribe filed motions for a preliminary injunction against the State of Washington, its Directors of Fisheries and Game and other officers and agents to prohibit them from basing their determination of numbers of “harvestable fish” for the purpose of complying with this court’s decree and orders in this case on anything other than the total estimated run of free-swimming fish, including those resulting from wild runs as well as those resulting from hatchery or artificially propagated runs without first seeking and obtaining from this court a determination of their right to do so in accordance with the prior orders of this court. They asked for an injunction against enforcement of a purported “closure” of certain steelhead fisheries issued by the Game Department’s attorney and against any interference with steelhead fishing by the Muckleshoot Tribe pursuant to its own tribal regulations. The Muckleshoot Tribe also sought an order requiring the Department of Game to return to the tribe or its members any nets or other equipment or fish taken from them pursuant to such purported “closure.” The court, following a hearing and after considering the application and supporting affidavits of the plaintiffs and the written and oral presentations of the parties, issued the following preliminary injunction: The court hereby finds that: 1. Defendant Department of Game, its Director and officers, employees and agents, have attempted to interfere with, prevent and impede the fishing activities of the Muckleshoot Indian Tribe and its members at their usual and accustomed fishing places, and have seized and damaged property of said members, all in violation of the decree and orders of this court previously entered in this case. 2. Said defendant has not adopted or filed with this court any emergency or other regulation prohibiting or restricting such fishing by members of the Muckleshoot Tribe or any statement or finding of conservation need for such restriction. 3. Said defendant has announced and notified plaintiff tribes and this court of its intention to restrict Indian treaty-right harvest of fish by all plaintiff tribes fishing in accordance with the decision and orders of this court in this case, by excluding from the numbers of fish from which such harvest can be taken all artificially propagated steelhead, without first seeking or obtaining either the concurrence of the affected tribes of the approval of this court for such exclusion as required by the prior orders of this court. 4. Unless the defendant is enjoined from continuing to impose and enforce such restrictions in violation of the provisions of the prior orders or this court, the plaintiff tribes and their members will suffer irreparable injury. Now, Therefore, IT IS HEREBY ORDERED that, except as necessary to comply with the judgment or orders of the state courts with reference to fishing by or under the authority of the Puyallup Tribe and its members that may be issued in the case of Department of Game v. Puyallup Tribe, Inc., No. 158069, Superior Court of the State of Washington in and for Pierce County, the defendant Department of Game, its Director and officers, agents, and those acting under its direction or control, are hereby restrained and enjoined from basing the determination of numbers of “harvestable fish” for the purposes of complying with the decree and orders of this court in this case on anything other than the total estimated runs of free-swimming fish, including those resulting from wild spawning and rearing and those resulting from hatchery or other artificial propagation or transplanting programs, without first seeking and obtaining from this court a determination of the right to do so in accordance with the prior orders of this court. Said defendant and persons are further enjoined from enforcing the purported closure of the Green River commercial steel-head fishery as set out in a notice filed with this court dated December 31, 1974, signed by Assistant Attorney General James M. Johnson. Said defendant may close an Indian fishery pursuant to paragraph C of the Order for Program to Implement an Interim Plan only by the promulgation of an appropriate department regulation pursuant to previous orders of this court. The Department of Game, its officers, agents and those acting under its direction or control, are hereby further ordered to return and make any restitution for loss or damage to any nets or other equipment or fish taken from Muckleshoot Indians subsequent to December 31, 1974, pursuant to said “closure” notice or any other closure that was not filed with this court in accordance with the prior orders of this court. This injunction shall remain in effect until further order of this court made in connection with any request for determination filed pursuant to the prior orders of this court with respect to the exclusion or separate consideration of artificially propagated fish in determining the harvestable portion of fish to which treaty-right fishermen are entitled under the decree and orders of this court. Memorandum Decision This memorandum decision further explains the court’s reasons for issuing the foregoing preliminary injunction of January 14, 1975. The state’s action in this matter is based upon applying the Pierce County Superior Court Memorandum Decision in Department of Game v. Puyallup Tribe, Inc., No. 158069, dated December 23, 1974 (hereinafter Puyallup III) to litigants in this case. That decision is not yet final even in the superior court. However, even if it has become final as far as the superior court is concerned, that order is still subject to appeal to the state appellate courts. The adverse parties will undoubtedly appeal it. To reiterate what this court has said previously (see Final Decision # 1, 384 F.Supp. at 344-345), this court has jurisdiction of the limited issue involved but has abstained from exercising it until the courts of this state, up to and including the final decision on appellate review by the Supreme Court or the highest court that acts on it, have had an opportunity to pass on it. Until then this court wants to allow the state judges to review the state trial court’s decision. When the final decision that may be rendered in the state courts at the highest level is of record, this court will review it to see whether or not at that point it should exercise such jurisdiction as it has of the matter. But the state trial court decision in Puyallup III is not in effect as far as this case, United States v. Washington, is concerned, nor may the parties in this case act on the theory that it in any way supersedes the decision and judgment in this case until such time as the matter is finally determined in the state courts and this court has had an opportunity to consider whether to then exercise whatever jurisdiction it may have. This court has heretofore abstained solely because the Puyallup case was one which was a state court case from its inception and was remanded by the Supreme Court of the United States back to the supreme court of the state, which court remanded it to the Pierce County Superior Court to hear and to determine the allocation of wild and propagated steelhead. That case is applicable only to the Puyallup Tribe and the Puyallup River and the places where the Puyallups fish and does not directly pertain to anything but steelhead. The matter now before this court on this motion concerns fishing in an entirely different stream by different fishermen, and the Puyallup III decision does not have any effect whatever upon, or permit violation of, the rulings this court has made on this subject. The present controversy involves the Department of Game’s premature attempt to exclude all hatchery-propagated steelhead from the harvestable shares available to all treaty-right fishermen. Although this court has deferred trial of environmental issues in this case to a later time, and has abstained from ruling on the precise issue before the state court in Puyallup III, the prior decision, judgment, decree and other orders entered by this court have never recognized a distinction between natural and artificially propagated anadromous fish resources in determining the scope of treaty fishing rights. The following language from pages 2 and 3 of the declaratory judgment and decree, entered February 12, 1974, is pertinent: “In addition and specifically for the purposes of interpreting all provisions of this decree, the following definitions shall be controlling: “1. Anadromous fish: Any fish which spawns or is artificially reproduced in freshwater, reaches mature size while rearing in saltwater and returns to freshwater to reproduce, and which spends any portion of its life cycle in waters within the Western District of Washington. “2. Adequate production escapement: In an approximate number of anadromous fish, that level of escapement from each fishery which will produce viable offspring in numbers to fully utilize all natural spawning grounds and propagation facilities reasonable and necessary for conservation of the resource, as defined in the Decision of the court. “3. Harvestable stock: The approximate number of anadromous fish which is surplus beyond adequate production escapement and Indian needs as defined in the Decision; that is, the number remaining when the adequate production escapement and Indian needs are subtracted from the run size.” (Emphasis added) 384 F.Supp. at 405). Following issuance of the Pierce County Superior Court’s memorandum decision, which held that Indians of the Puyallup Tribe fishing at their usual and accustomed places in the P