Full opinion text
TABLE OF CONTENTS ORDER PAGE Summary of Memorandum Order and Preliminary Injunction Re Salmon Allocation for 1978 and Subsequent Seasons (8/11/78, as corrected 8/16/78 and amended 9/27/78 and 10/27/78) 1416 Additional Findings of Fact and Conclusions of Law Re Makah v. Lower Elwha Dispute Re Hoko River (11/28/78) 1418 Order Re Coastal Salmon Fisheries Management Schedule (5/23/79) 1419 Amendatory Order Re Fisheries Advisory Board (1/11/80) 1421 Order Re Puyallup River Steelhead (2/6/80) 1422 Order Re Notification and Effective Date of Emergency Regulations (8/26/80) 1422 Order Re Conference of September 16, 1980 (9/25/80) 1425 Preliminary Injunction Re minimum Size Troll Fishing Regulations (3/5/81) 1425 Order Regarding Attorneys’ Fees (5/4/81) 1426 Order Re Allocation of Quinault River Steelhead (5/8/81) 1428 Final Decree and Order Re Treaty Status of Jamestown Clallam Tribe of Indians (5/8/81) 1432 Order Approving Magistrate’s Report Re Treaty Status of Jamestown Clallam Tribe of Indians (5/8/81) 1432 Order Re Set-Net Fishing in Mukkaw Bay (9/2/81) 1434 Findings of Fact and Conclusions of Law Re Determination of Additional Usual and Accustomed Fishing Places of Nisqually, Puyallup, and Squaxin Island Indian Tribes (8/22/81) 1441 Corrected Order Re Request for Determination of Port Gamble and Lower Elwha Usual and Accustomed Fishing Places (10/23/81, as amended 3/8/83 and 5/24/83) 1442 Phase II Attorney Fees Memorandum Opinion and Order (12/15/81) 1443 Phase II Attorney Fees Memorandum Opinion and Order (9/16/82) 1454 Ruling Re Puget Sound Chinook (2/3/82) 1458 Order Approving Plan for Puget Sound Chinook Salmon (4/12/82) 1462 Order Re Quillayute River Steelhead (4/21/82) 1465 Order Re South Puget Sound Treaty Fisheries (11/5/82) > 1466 Order Re Makah Tribe’s Ocean Fishing Grounds (12/9/82) 1466 Order Re Hood Canal Agreement (3/8/83) . 1468 Order Denying Makah Indian Tribe’s Motion to Dismiss (5/25/83) 1470 Orders Approving Settlement Agreements Between the Tulalip Tribes and Various Other Puget Sound Tribes Re Tulalip Fishing Area Claims (7/21/83, 10/13/83, and 5/8/85) 1471 Order Confirming Magistrate’s Order Re WDF Computer Model (12/15/83) [Not supplied for publication] Order Re Puget Sound Equitable Adjustment (Amended Final Order) (1/19/84) 1484 ORDER PAGE Order Re Jamestown Klallam Request for Determination of Usual and Accustomed Fishing Places (3/14/84, as amended 2/21/85) I486 Order Adopting the Special Master’s Report and Recommendation Re Skokomish Indian Tribe’s Request for Determination of Primary Right in Hood Canal Fishery (3/22/84) 1486 Order Denying Motion to Vacate Order Entered March 24, 1984 (4/25/84) 1491 Order on Chehalis River Contempt Petitions (5/10/84) 1492 Order Re Attorneys’ Fees Proceedings (6/22/84) 1503 Order Awarding Attorneys’ Fees and Costs (4/30/85) 1504 Management Plans Re Sac Roe Herring Fishery 1526 Order Adopting New Puget Sound Salmon Management Plan (10/15/85) 1527 Findings of Fact and Conclusions of Law — In Re Tulalip Tribes’ Request for Determination of Usual and Accustomed Fishing Places (12/31/85) 1527 COMPILATION OF MAJOR POST-TRIAL SUBSTANTIVE ORDERS (From July, 1978 through December 31, 1985) CRAIG, District Judge. The initial decision in this case and related rulings are reported at 384 F.Supp. 312 (W.D.Wash.1974), 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976), rehearing denied 424 U.S. 978, 96 S.Ct. 1487, 47 L.Ed.2d 750 (1976). Subsequent decisions and orders of a substantive nature rendered through June 30, 1978 are reported at 459 F.Supp. 1020 (W.D.Wash.1978). Various appeals were affirmed sub nom., Puget Sound Gillnetters’ Association v. United States District Court, 573 F.2d 1123 (9th Cir.1978), affd in part, vacated in part, and remanded sub nom., Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979), remanded to District Court for continuing jurisdiction, 605 F.2d 492 (9th Cir.1979). Further decisions and orders of a substantive nature issued through December 31,1985, except for those already published at 476 F.Supp. 1101 (1979) and 506 F.Supp. 187 (1980), are set forth or summarized below. Senior District Judge George H. Boldt presided over the case until late 1979. Thereafter, Senior District Judge Walter E. Craig of the District of Arizona has presided. The following compilation was prepared for publication under the direction of and approved by Judge Craig. SUMMARY OF MEMORANDUM ORDER AND PRELIMINARY INJUNCTION RE SALMON ALLOCATION FOR 1978 AND SUBSEQUENT SEASONS BOLDT, District Judge. (Order of August 11, 1978, as corrected August 16, 1978 and amended September 27, 1978 and October 27, 1978) (On July 11, 1978 the United States filed a motion for a 1978 summer-fall chinook allocation order. The matter was referred to Magistrate Robert E. Cooper as Special Master for hearing and determination. Magistrate Cooper held a hearing and issued a Report, Proposed Findings, Conclusions and Recommendations. Objections were filed, and the court held a hearing on August 10, 1978.) Based on all the evidence and the prior holdings and decrees in this case, the court FINDS, HOLDS and ORDERS as follows: 1. Paragraphs numbered 1, 2, 3, 4, 5 and 6 of this court’s Preliminary Injunction Re Allocation of 1977 Salmon Runs (459 F.Supp. at 1097) have continuing validity and are made a part of this Memorandum Order. (The court then made rules for allocating the 1978 harvest for chinook, coho and chum salmon returning to the various Puget Sound and Grays Harbor salmon management areas.) 2. Non-treaty commercial fishermen regularly take home fish from their catch for personal use and for gifts. Such catches are not currently reported and the state has no data on the number of fish involved. No reliable evidence on the extent of this practice has been submitted and the court therefore makes no findings at this time. However, any party, within 15 days of the commencement of the first non-treaty terminal net fishery on the run in question, may request a hearing to show the extent of such catch and the Magistrate is granted continuing jurisdiction to revise the allocation of harvestable shares accordingly. 3. This court finds that the Tribes have adequate fishing power to take the allocations decreed by this court in Final Decision # 1, 384 F.Supp. 312. 4. The court finds the determination whether proposed fisheries will harvest in violation of the allocations made by this court is a technical matter which may appropriately be assigned to the Fisheries Advisory Board. (The court then enjoined the State from exercising any form of jurisdiction over the portions of the fish runs allocated to tribal treaty fisheries without obtaining the express approval of the court. The court also required the defendants to adopt and enforce appropriate regulations to prevent non-treaty fishermen from taking more than their allocated shares of the runs or from taking fish needed for propagation to perpetuate the runs.) 5. Non-treaty commercial salmon fisheries in the waters of Puget Sound and other marine waters easterly of the Bonilla Point-Tatoosh Island line, their watersheds, all Olympic Peninsula watersheds, and all Grays Harbor and its watersheds, shall not be authorized, permitted or communicated by. the defendants, State of Washington, Director of Fisheries, State Game Commission and Director, their officers, agents, servants, employees, attorneys or any persons in active concert or participation with them, unless prior approval of the specific fisheries is obtained from this court or the Fisheries Advisory Board (F.A.B.). 6. When proposing any non-treaty commercial fishery, the defendants shall present to the Fisheries Advisory Board the most recent information regarding catches of the affected stocks, estimates of the expected harvest ability of the proposed fishery, and the method for determining that expected harvest. If there is disagreement within the Fisheries Advisory Board over whether the proposed regulations will interfere with achievement of the allocations made by this court, the court’s Technical Advisor shall make a recommendation to the court. Pending determination by this court, the recommendations of the court’s Technical Advisor shall be followed. 7. Notwithstanding the above, enforcement action by any party against identified treaty Indian fishermen shall not be taken except in strict compliance with the procedures and notice periods specified in this court’s Injunction of March 22, 1974, 384 F.Supp. at 413-419; the Stipulation Re: Notice of Regulations dated October 15, 1975, 459 F.Supp. at 1060; the Order Re: Rules of Procedure for Fisheries Advisory Board dated December 17, 1976, 459 F.Supp. at 1061; the Memorandum Order and Preliminary Injunction dated August 31, 1977, 459 F.Supp. at 1097; and the Preliminary Injunction Re: Enforcement of Limitations on Non-Treaty Salmon Fisheries dated June 6,1978, 459 F.Supp. at 1125. 8. Copies of all State regulations governing the non-treaty harvest in the case area and Grays Harbor area shall be filed with the court’s fisheries Technical Advis- or, each plaintiff tribe, the United States Fish and Wildlife Service, the Northwest Indian Fisheries Commission and their respective counsel. The State shall carefully monitor any non-treaty fishery and immediately advise the court and the Fisheries Advisory Board when any non-treaty catch meets the quota which is specified in this court’s allocation or hereafter determined by the Fisheries Advisory Board or this court, and also advise this court of any encroachment on spawning escapement goals and of the extent and effectiveness of State efforts to prevent such encroachment. 9. Nothing in this order shall diminish the immunity from State regulation or affect the jurisdiction of self-regulatory tribes as prescribed by prior orders of this court, except that such tribes shall be bound by the allocations made effective pursuant to provisions of this or subsequent orders. 10. The defendants shall not adopt, apply or enforce any regulations to regulate, limit or restrict any fishing by members of the treaty tribes that is authorized by regulations of the United States or any of its agencies without first obtaining the prior express approval of this court. ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW RE: MA-KAH v. LOWER ELWHA DISPUTE RE: HOKO RIVER (November 28, 1978) BOLDT, District Judge. The court has considered all the evidence submitted in connection with the Makah Tribe’s motion for reconsideration of its Order of March 10, 1976 (459 F.Supp. at 1066). The Makah Tribe’s request for an additional hearing is denied. None of the evidence offered changes the court’s prior conclusion that the Hoko River was an area of joint occupation between the Makah and Lower Elwha. Accordingly, the court’s pri- or ruling on this issue should not be modified. The court also has fully considered all proposed findings of fact and conclusions of law and adopts the following additional findings and conclusions. Every finding of fact that may be a conclusions of law is adopted as such. FINDINGS OF FACT 1. The Makah’s Motion for Reconsideration was granted to allow the Makah Tribe to present newly discovered archeological evidence relating to the question of control of fishing on the Hoko River. The issues as defined by the Makah Tribe did not include a consideration of rivers other than the Hoko River (Tr. Nov. 29, 1976, p. 81; Makah Memorandum in Support of Relief from Final Order, August 17, 1976, pp. 1-3), and the Lower Elwha Tribe duly preserved its objections to evidence relating to other rivers east of the Hoko River. (Tr. Nov. 29, 1976, pp. 2, 75). 2. Anthropological evidence was presented by Dr. Barbara Lane for the Lower Elwha Tribe and Mr. Dale Croes for the Makah Tribe. The testimony of each has been thoroughly studied and considered by the court. In considering the credibility of each, the court took into consideration the fact that Mr. Croes has limited experience as an ethnohistorian, and has spent the previous five years emersed in archeological field work at the Hoko and Ozette Rivers. (Tr. Nov. 29, 1976, p. 7). Dr. Lane has had extensive contact and experience with ethnohistorical research and archeology. (Tr. Nov. 29,1976, p. 126). The court finds that on the question at issue in this proceeding, namely control over treaty-time fishing on the Hoko River, the testimony of Dr. Lane is more credible and convincing than that of Mr. Croes. 3. The archeological evidence presented related to basket remnants excavated from an archeological wet site located on the Hoko River. (Ex. MK 13; Tr. Nov. 29, 1976, p. 10). Mr. Croes attempted to correlate various basket weave techniques and other artifacts found, with occupancy and control of the Hoko River. (Tr. Nov. 29, 1976, pp. 88, 90-91, 117, 119). 4. Basket remnants found in archeological digs are not conclusive of what people were responsible for making the baskets. (Tr. Nov. 29, 1976, pp. 26, 88). Even if one can establish that a particular basket technology can be considered predominately of one Indian type or another, that fact does not demonstrate that a particular group was in fact the dominant resident of a particular area. (Tr. Nov. 29, 1976, p. 91; “An Early ‘Wet’ Site on the Mouth of the Hoko River Site” (48CA213) p. 224). 5. There is not a uniform basketry technology with all Salish people. Basket technology varied from the Fraser River to Puget Sound. (Tr. Nov. 29, 1976, pp. 144-145). There have been no wet site excavations done within Clallam territory and therefore it is difficult to compare the baskets found at the Hoko River with the baskets generally made by Clallam people. It is not appropriate to compare such baskets with such general Salish basketry given the difference between the baskets involved. (Id.) 6. At treaty times the Clallam Indians had a village, which may have been a permanent village, at the Hoko River (Ex. USA 91 (Lane Report on Lower Elwha), pp. 4-7; Aug. 6, 1975, p. 155). In 1854, a year prior to the treaty, Gibbs listed the Hoko as the site of the Clallam village. (Ex. USA 91, supra pp. 5-7). Waterman, writing on the Clallams indicated that the Clallams had a fishing site at the Hoko River. The Hoko River is named in the Treaty of Point No Point as the location of a Clallam village. There is evidence that the Makah people also utilized the Hoko River as a seasonal fishing village. (Tr. Nov. 29, 1976, p. 87). 7. The archeological evidence did not establish whether the Makah fished with Lower Elwha permission on rivers east of the Hoko River. (Tr. Nov. 29, 1976, p. 83). Similarly, the archeological evidence did not establish or assist in the determination of whether the Makah controlled the Hoko River fishing. (Tr. Nov. 29, 1976, p. 100). The archeological evidence showed that the Makah “occupied” the Hoko River in prehistoric times, (Id.) but did not necessarily show occupancy at treaty times. (Tr. Nov. 29, 1976, p. 122). 8. Ethnohistorical evidence presented was the same as that presented at the July 30, and August 6, 1975, hearings. A reevaluation of this extant evidence was undertaken by the Makah. (Tr. Nov. 29, 1976, pp. 76-78, 83). Dr. Lane provided an extensive examination of all the information presented. (Tr. Nov. 29, 1976, pp. 126-127, 129, 130, 152-157). Fishing on the Hoko River was exercised jointly by the Lower Elwha and Makah tribes. (Tr. Nov. 29, 1976, pp. 131-132). On the rivers east of the Hoko River fishing was controlled by the Lower Elwha. (Tr. Nov. 29, 1976, p. 152). CONCLUSIONS OF LAW There having been no testimony or other evidence presented to this court which would support a modification of this court’s March 10, 1976, order, that order is affirmed in all respects and particulars. The court’s March 10,1976, findings of fact and conclusions of law are hereby incorporated by reference and made a part of this order. The Makah’s Motion for Relief from Judgment is denied. ORDER RE COASTAL SALMON FISHERIES MANAGEMENT SCHEDULE (May 23, 1979) McGOVERN, District Judge. The court, upon recommendation of its Fisheries Technical Advisor, finds that it is necessary and appropriate that a schedule be adopted for various activities for management of summer and fall coastal salmon fisheries which are not covered by the Salmon Management Plan previously approved for Puget Sound Fisheries (459 F.Supp. at 1107). After discussions among the Washington Department of Fisheries, the Makah, Quileute and Hoh Tribes, and the Fisheries Advisory Board, the attached schedule has been agreed to by all of those parties. (See Fisheries Advisory Board (FAB) Reports 79-4, 79-5, and 79-6). In addition, the Quinault Tribe and the Washington Department of Fisheries have each agreed that they will coordinate their respective management activities in accordance with the relevant provisions of such schedule with appropriate modifications to fit the Quinault area fisheries and in accordance with the self-regulatory status of the Quinault Tribe. Accordingly, it is ORDERED that the schedule attached as Attachment A is approved and adopted by the court subject to the understandings set out in Fisheries Advisory Board Reports Nos. 79-4, 79-5 and 79-6. This schedule shall be complied with by the State of Washington, the Makah Tribe, the Quileute Tribe and the Hoh Tribe except as may be otherwise agreed to from time to time by the Fisheries Advisory Board. This schedule shall continue in effect from year to year subject to the right of any affected party to request modification for subsequent seasons by written notification to the Fisheries Technical Advisor given on or before November 1 of any year for summer fisheries or March 1 for fall fisheries. If the Fisheries Advisory Board is unable to agree with respect to any such requested modification by December 1 or April 1, respectively, the requesting party may thereafter petition the court for relief from further compliance with such schedule. ATTACHMENT A to Order re Coastal Salmon Management Schedule Table of Scheduled Activities for Summer and Fall Fisheries __on Coastal Washington_ _Deadline_ Summer Fall Activity_fishery_fishery (1) State shall provide to all parties proposed December 15 May 1 escapement goals for natural and hatchery stocks. (These goals will not be annually modified without sound biological basis.) (2) Parties shall reach agreement regarding January 5 June 1 appropriate escapement goals for natural and hatchery stocks. (3) The State shall provide to all parties pro- January 15 June 10 posed draft reports prepared on a system, species by species basis. The reports will contain proposed pre-season run size forecasts and proposed methods for in-season run size adjustments. (4) Parties shall reach agreement on pre-sea- February 10 July 1 son forecasts and methods for in-season run size adjustments. (5) Tribes shall provide written estimates to February 21 July 10 the State of the number of units of each type of gear and possible fishing areas, along with written estimates of projected on-reservation, subsistence, and ceremonial catches. (6) The Tribes shall provide the State with March 3 July 20 draft regulations for any planned fisheries. ATTACHMENT A to Order re Coastal Salmon Management Schedule — Continued Table of Scheduled Activities for Summer and Fall Fisheries _on Coastal Washington__ _Deadline_ Summer Fall Activity_fishery_fishery (7) The State shall provide the Tribes with March 15 August 1 comments on the draft regulations. (8) Parties shall reach agreement regarding March 15 August 1 estimates of numbers of prior interceptions by troll and sport fisheries. (9) Tribes shall file with the court and all March 25 August 10 parties, final tribal fishing regulations. (10) Begin management of summer fisheries April 15 in all areas. (11) Begin management of fall season fishery August 15 on Grays Harbor chinook stocks. (12) Begin management of fall season fisher- September 1 ies in all other areas and stocks except for the Quillayute River fall run coho. (13) Begin management of Quillayute River September 20 fall run coho. AMENDATORY ORDER RE: FISHERIES ADVISORY BOARD (January 11, 1980) CRAIG, District Judge. The court has considered the recommendation of the Fisheries Advisory Board and the written and oral submissions and recommendations of the parties. IT IS ORDERED THAT, The Order of October 28,1975, as amended by the Order of December 17, 1976 (459 F.Supp. 1061) is hereby amended as follows: Section 1 is amended to read: “1. Establishment and Composition of Fisheries Advisory Board. “1.1 There is established a Fisheries Advisory Board composed as follows: “(a) One voting member representing the State of Washington and the defendant agencies. “(b) One voting member representing the Treaty Indian Tribes. “(c) The court’s Fisheries Technical Ad-visor as a nonvoting chairman. During any time that the Technical Advisor, or any alternate advisor previously designated by the court is not available, the Magistrate is hereby authorized to designate an alternate to serve as chairman and exercise any authority of the chairman or the Technical Advisor. “(d) The members and chairman shall serve at the pleasure of their appointing entity. All such appointments shall expire on February 28 of each even-numbered year after 1980. Any incumbent may be reappointed for succeeding terms. “(e) The voting members representing the state and the tribes with respect to any matter submitted to the Board shall be determined as hereinafter provided. “1.2 The chairman shall give notice of and convene meetings, act as moderator, and perform such other duties as are provided herein, or agreed to by all parties, or directed by the court. “1.3 The tribes, acting through their coordinating body, (the Northwest Indian Fisheries Commission), and the state, acting through the Director of Fisheries or Game, shall each appoint a primary representative and such alternate representatives as they from time to time deem necessary. They may designate specific alternates for specific types of matters. The primary representative for each side shall be responsible for keeping the chairman of the Board informed of the names, addresses and telephone numbers of themselves and all alternate representatives, together with the specific matters or types of matters for which a particular alternate will be the voting member. Any question concerning the designation of the appropriate voting representative will be decided by that side’s primary representative, or in the case of the tribes, if the primary representative fails to act, by the Northwest Indian Fisheries Commission. Upon any further failure of such person or body to make a timely designation the chairman shall do so. The chairman shall give timely notice of each meeting of the Board to the primary representative, the appropriate alternate for each side, and as provided in section 3.1 of the Order of December 17, 1976. ORDER RE: PUYALLUP RIVER STEELHEAD (February 6, 1980) CRAIG, District Judge. This matter comes before the Court on the Puyallup Tribe of Indians’ Request for Determination, dated January 31, 1980, that the Court exercise jurisdiction in this case over matters concerning Puyallup River steelhead. The Court finds that it would be in the interests of justice and more consistent resolution of fisheries disputes for this Court to exercise jurisdiction over ongoing issues raised concerning Puyallup River steelhead. Both the United States Supreme Court and the Washington state courts have indicated their belief that this Court should handle any ongoing issues concerning treaty fishing rights. IT IS THEREFORE ORDERED That this Court shall henceforth exercise jurisdiction over matters related to Puyallup River steelhead in the same manner as it does for all other rivers and for all other runs of salmon on the Puyallup River. The parties are directed to follow the procedures prescribed in orders of this Court for consideration of any ongoing issues related to fishing rights in Puyallup River steel-head. ORDER RE: NOTIFICATION AND EFFECTIVE DATE OF EMERGENCY REGULATIONS (August 26, 1980) CRAIG, District Judge. Prior orders of this court, including section 19 of the Injunction of March 22, 1974 (384 F.Supp. at 417), section 1 of the Order of March 22, 1974, for an Interim Plan (384 F.Supp. at 420), section B.4. of the Order of October 8, 1974, to Implement the Interim Plan (459 F.Supp. at 1035), the Order of October 15, 1975, approving a Stipulation re Notice of Regulations (459 F.Supp. at 1060), Order of March 1, 1976, re Service of Documents, Order of December 11, 1976, Establishing Procedures for State Emergency Regulations (459 F.Supp. at 1061) (hereinafter the FAB Order), section 9.3 of the Memorandum of August 31, 1977, Adopting Salmon Management Plan (459 F.Supp. at 1107), and Order of January 31, 1978, as modified, Adopting Steelhead Management Plan (459 F.Supp. at 1118), have established requirements for filing, notification, and effective dates of emergency salmon and steelhead regulations. The FAB Order provides that the rules specified therein shall apply until further order of the court or until modified by agreement of all parties. The parties agree that some of the existing requirements for filing, notification, and implementation of regulations are unnecessary and inappropriate under presently available means for faster and more economical notification. These means include the establishment of the Western Union TWX System among most of the parties. That system provides a quick method of transmitting regulations without mailing or filing with the court, while preserving a permanent record of the transmittal. Because both the National Marine Fisheries Service and the United States Coast Guard have direct access to this system, it also provides a method for prompt notification to those agencies of regulations relevant to any enforcement responsibilities they may have in case area waters. It is thus appropriate and proper to implement the agreement of the parties to use the Western Union TWX System. Therefore, it is ORDERED as follows: 1. This Order is concerned solely with the requirements for filing emergency regulations with the court and serving or otherwise giving notice to other parties or individual fishermen prior to such regulations becoming effective or enforceable. As to those matters, the provisions of this Order supersede all inconsistent provisions of prior orders of this court with respect to the emergency regulations of any entity to which this Order applies. 2. This Order shall apply to emergency regulations affecting the management of salmon, steelhead, and such other species as are agreed to in writing by the affected parties. 3. This Order shall apply to the Washington Department of Fisheries, the Washington Department of Game and all tribes (except the Quinault, Quileute, Hoh, and Yakima Tribes, who may subject themselves to the provisions of this Order by filing with the court and serving on all parties a statement indicating the effective date of their participation). Withdrawal from participation in the TWX system shall require approval of the court. 4. Service of all state and tribal emergency fishing regulations, and of other information as required by this Order, shall be by TWX transmission through the central Western Union Infomaster computer. Regulations and other information required by this Order to be served by TWX transmission shall be transmitted on normal business days only, from Monday through Thursday between the hours of 9:00 a.m. and 2:30 p.m., or on Fridays between the hours of 9:00 a.m. and 2:00 p.m. Regulations of participating entities need not be filed with the court, or mailed to any party pursuant to procedures heretofore required by this court’s Order Re: Service of Documents dated March 1, 1976. 5. Whenever the TWX cannot be used to notify any party covered by the TWX procedures of regulations or other appropriate information, due to mechanical breakdowns, power failures, or for any other reason, all such regulations and information shall be served by telegram, mail or personal service, such notification to be effective from the time of receipt as if received by TWX transmission. 6. Service of all state and tribal emergency fishing regulations, and of other information as required by this Order, shall be made upon all affected tribes and defendant state agencies and, where their enforcement duties are affected, upon the National Marine Fisheries Service and the United States Coast Guard. Service also shall be made upon the Northwest Indian Fisheries Commission, the Chairman of the Fisheries Advisory Board, and all attorneys of record who request such service, by TWX transmission if possible, otherwise by mail. 7. A written record of all information and regulations transmitted pursuant to sections 4 or 5 of this Order shall be maintained by the transmitting party for at least 12 months from the date of transmittal. 8. As to any tribe not utilizing a Western Union TWX System as set out in this Order, regulations shall continue to be served and filed in accordance with the existing procedures of previous orders of this court; provided, that certification of service may be accomplished by including on each regulation the following statement: I certify that copies of this document were mailed prepaid on (date) , to all persons required by the Order Re: Notification and Effective Date of Emergency Regulations. Signed_ Title_ No separate list of the persons served need be attached. 9. All tribes participating in the TWX System pursuant to this Order shall be deemed to have met the requirements of section 4.4.1 of the FAB Order. 10. Section 4.5 and both of its subsections of the FAB Order are hereby vacated and replaced with the following: Section 4.5. The state shall notify all affected tribes of possible impending emergency regulations, along with a brief statement of the basis for the alleged emergency and supporting data that would justify the proposed emergency regulation, at least 24 hours before (and within 7 days before) the adopted emergency regulation is transmitted to the tribes. Such notice, statement of basis, and supporting data shall be served by TWX transmission, but the supporting data may be made immediately available by telephone if the state believes that method would be more effective and expeditious under the circumstances. The brief statement of the basis for an alleged emergency shall include, but not be limited to, identification of the stock or stocks needing protection and the area or gear restrictions proposed to afford the needed protection. All relevant supporting data justifying proposed or adopted emergency regulations shall be made available to the affected tribes. Section 4.5.1. If notice is given and data furnished in conformity with section 4.5, the state emergency regulation may become fully effective as to all treaty Indian fishing 24 hours after the adopted regulation is received by the tribes. If notice or data are not given in conformity with that section, the state emergency regulation may become fully effective as to all treaty Indian fishing 48 hours after the adopted regulation, with the statement and supporting data, is received by the tribes; provided, that during the first 60 hours following state receipt of notice of a tribal regulation authorizing a fishery, a state emergency closure necessary for conservation may be adopted and transmitted to the tribes without the prior notice required by 4.5 above; and provided further that if the emergency requires an earlier effective time than those specified above, enforcement action may be taken if and only if the tribe has been given notice of the adopted regulation by TWX or by physical delivery during tribal office business hours and the tribal fisherman has been given personal notice of the regulation and an opportunity to desist from further noncompliance after such notice. 11. No tribal emergency fishing regulation authorizing a fishery shall become effective until 24 hours from the time it is received or such later time as is specified in the regulation, provided that this provision shall not limit the authority of tribes to promulgate emergency regulations, in accordance with prior orders of this court, for fisheries managed by or in conjunction with the International Pacific Salmon Fisheries Commission. 12. This Order does not apply to self-regulating tribes except where made applicable to them by Final Decision No. I and previous orders of this court; provided that it may apply by the agreement of a self-regulating tribe and the state. 13. In the event that any tribe or tribes authorize any inter-tribal entity to adopt regulations applicable to their treaty fishing, the terms “tribe” or “tribal regulations” where used in this Order shall include such entity and its regulations. 14. Whenever this Order specifies communication by TWX, a different system may be substituted by written agreement of all of the parties. ORDER RE: CONFERENCE OF SEPTEMBER 16, 1980 (September 25, 1980) CRAIG, District Judge. This court’s Order, Findings of Fact, Conclusions of Law, and Preliminary Injunction Re: Enforcement of Limitations on Non-treaty Salmon Fisheries for 1978 and Subsequent Seasons, dated June 6, 1978, as amended June 15,1978, was vacated by the United States Supreme Court. All other orders of this court in Phase I of this case remain in effect in accordance with their terms, except for those terms which were expressly modified by holdings of the Court of Appeals or the Supreme Court, unless and until vacated or modified by this court. PRELIMINARY INJUNCTION RE: MINIMUM SIZE TROLL FISHING REGULATIONS (March 5, 1981) CRAIG, District Judge. The Makah Indian Tribe moved for an injunction regarding State enforcement of Washington Department of Fisheries Emergency Order No. 7929 (WAC 220-28-04000A) which imposes a 28 inch minimum size troll catch limitation. The matter was referred to a magistrate for hearing, after which the Magistrate issued a report and proposed temporary restraining order. The Makah Tribe moved for confirmation of the Magistrate’s report and issuance of a preliminary injunction. After full review and careful consideration of the Magistrate’s report and defendants’ opposition, the Court FINDS, CONCLUDES, AND ORDERS That the State of Washington and the Washington State Department of Fisheries and all officials and employees thereof are enjoined from enforcing Washington Department of Fisheries Emergency Order No. 79-29 (WAC 220-28-04000A) and all other subsequent orders which impose a 28" minimum size troll catch limitation upon members of the Makah Indian Tribe when fishing at usual and accustomed places in Washington coastal waters and Washington salmon catch reporting area 4B. This Order is based upon the following findings of fact and conclusions of law. FINDINGS OF FACT 1. On April 30, 1979, the Washington Department of Fisheries enacted Emergency Order No. 79-29 (WAC 220-28-04000A). This regulation imposed a 28" minimum size limitation on troll fishing in Washington coastal waters and catch reporting area 4B. The justification for this minimum size limit was purportedly to “implement state regulations consistent with regulations adopted by the United States Department of Commerce” in the ocean and to assure the “wise use aspect” of resource conservation. At the same time, non-treaty sports fishing was proceeding (and continues) in the same places under a 24" minimum size limit. [WAC 220-56-013(5) and WAC 220-56-063(4)] 2. During the fishing period of June through September, 1979, five-year averages indicate that an estimated catch of 5,000 chinook salmon in the Neah Bay area sports fishery between 24" and 28" long would occur.. At the same time, if allowed to fish during that period, Makah fishermen would catch approximately 1,450 fish in the same size range. Thus, non-treaty fishermen would catch about 77.5% and treaty fishermen would catch about 22.5% of the fish in that size range. Although actual numbers of fish caught will vary depending on run size and other factors, the percentage would remain about the same. (Testimony of Makah Biologist, A1 Hartt; Makah Exhibit No. 2 attached to the Makah Indian Tribe’s Memorandum in Support of Motion for Temporary Restraining Order, incorporated herein by reference.) 3. There is no conservation necessity for limiting Makah commercial fishermen to the minimum 28" limitation. (Testimony of Makah Biologist, A1 Hartt; Report of the Court’s Advisor, Dr. Richard Whitney.) 4. The estimated dollar loss to Makah trailers in 1979 from the prohibition on under-28" fish is approximately $20,000.00. (Testimony of Makah Biologist, A1 Hartt, Makah Exhibit No. 2, supra, at ¶ 3.) 5. The issuance of this injunction is necessary to prevent irreparable injury to the plaintiff Makah Indian Tribe and its fishermen. CONCLUSIONS OF LAW 1. Limiting Makah fishermen to a minimum 28" size for troll caught salmon is not necessary for conservation as that term was defined in Final Decision No. 1, for the following reasons: (a) such limitations are not “required to prevent demonstrable harm to the actual conservation of fish, i.e., ... essential to the perpetuation of a particular run or species of fish.” (U.S. v. Washington, 384 F.Supp. 312 at 415.) (b) the state has not shown nor attempted to show that “existing tribal regulation or enforcement is inadequate to prevent demonstrable harm to the actual conservation of fish.” Id. 2. The actions of the State of Washington herein constitute illegal discrimination in that the State’s regulations grant in effect the entire run of salmon in the 24" to 28" range to sports fishermen. 3. State limitations on minimum size troll caught fish on the basis that such limitation will “assure the wise use aspect” of resource conservation are illegal under Final Decision No. 1 because State power to regulate fishing “does not include the power to determine for the Indian tribes what is the wisest and best use of their share of the common resource.” (U.S. v. Washington, supra, at 401.) 4. Irreparable injury, loss, and damage will occur to the Makah Indian Tribe and fishing members thereof if the State is allowed to continue to limit Makah fishing to 28" minimum size troll caught salmon. THEREFORE, IT IS ORDERED that the State of Washington and the Washington State Department of Fisheries and all officials and employees thereof are enjoined from enforcing WDF Emergency Order No. 79-29 and all other regulations which seek to impose a 28" minimum size troll catch limitation upon members of the Makah Indian Tribe when fishing at usual and accustomed places in Washington coastal waters and Washington salmon catch reporting area 4B. This injunction shall remain in effect until further order of this Court. ORDER REGARDING ATTORNEY’S FEES (May 4, 1981) CRAIG, District Judge. This Court enters the following order with respect to the Tribes’ Renewed Motion for Award of Attorney’s Fees: 1. Judge Boldt in his pre-trial order and in Final Decision No. 1 found jurisdiction in Phase I of United States v. Washington under 28 U.S.C. § 1343(3) and (4). Pretrial Order paragraph 1(c); United States v. Washington, 384 F.Supp. 312, 399 (W.D. Wash.1974), Conclusion of Law lc. Section 1343(3) and (4) provides for district court jurisdiction over (1) actions brought to redress any deprivation, under color of state law, of any right, privilege or immunity secured by the Constitution, and (2) actions brought under any Act of Congress providing for protection df civil rights. In United States v. Washington the Tribes alleged, and ultimately prevailed upon, a cause of action under 42 U.S.C. § 1983, one of the civil rights statutes referred to, in that they alleged and proved deprivations, under color of state law, of “rights, privileges and immunities secured by the Constitution and laws” within the meaning of § 1983. See United States v. Washington, •Conclusions of Law 38, 39, 40, 41, 42, 43, 44 and 47, 384 F.Supp. at 403-04. Specific citation of 42 U.S.C. § 1983 in the complaint or pre-trial order is not necessary in order to bring the action under the Civil Rights Acts. Paynes v. Lee, 377 F.2d 61, 63 (5th Cir.1967); Holladay v. Roberts, 425 F.Supp. 61, 64 (N.D.Miss.1977). 2. Since claims under 42 U.S.C. § 1983 are specifically covered by The Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, the Civil Rights Attorney’s Fees Awards Act authorizes attorney fees in these proceedings. United States v. Washington was pending at the time that The Civil Rights Attorney’s Fees Awards Act of 1976 was enacted and the plaintiff intervenor Tribes are entitled to an award of attorneys’ fees for services rendered in United States v. Washington. 3. The application of the plaintiff intervenor Indian Tribes for attorneys’ fees in Phase I was filed in a timely manner, and remains pending for decision. 4. The 11th Amendment is not a bar to a prevailing party plaintiff recovering attorneys’ fees from a state under The Civil Rights Attorney’s Fees Awards Act. Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978). 5. As this Court reads Judge Boldt’s original decision on the Tribes’ motion for attorneys’ fees, Judge Boldt rejected the applicability of the “bad faith” rationale for awards of attorneys’ fees in 1974. 66 F.R.D. 477 (W.D.Wash.1974). This Court does not disturb Judge Boldt’s ruling in that regard. 6. The plaintiff intervenor Tribes are the prevailing parties in United States v. Washington within the meaning of The Civil Rights Attorney’s Fees Awards Act. Plaintiff intervenor Indian Tribes are not entitled to an award of attorneys’ fees for participation in cases outside the framework of United States v. Washington, but are entitled to an attorney fee award for the services reasonably necessary to prepare for, try, prosecute and implement the United States v. Washington decision, including the related appeals to the Ninth Circuit Court of Appeals and the United States Supreme Court. 7. The entitlement of the plaintiff Tribes to attorneys’ fees for services rendered in United States v. Washington includes all proceedings within the framework of that case, including appeals, through the remand to the District Court by the Ninth Circuit Court of Appeals pursuant to the United States Supreme Court’s mandate in 1979. This Court finds that, prior to this proceeding, there have been no “prevailing parties” within the meaning of The Civil Rights Attorney’s Fees Awards Act since the remand to the District Court in 1979. 8. This court finds it appropriate to appoint a special master pursuant to Federal Rule of Civil Procedure 53 to determine the specific attorney’s fee to be awarded to the plaintiff intervenor Tribes under The Civil Rights Attorney’s Fees Awards Act of 1976. Accordingly, Magistrate Weinberg, the full-time magistrate for the Western District of Washington at Seattle, is hereby appointed special master. This court, having determined that plaintiff intervenor Tribes are entitled to an award of a reasonable attorney’s fees pursuant to 42 U.S.C. § 1988, therefore refers the matter of determining the specific fee to be awarded to Magistrate Weinberg. Magistrate Weinberg shall make a recommendation to this Court resolving all issues necessary for the determination of the appropriate award. The special master shall determine the total number of compensable hours reasonably spent by tribal attorneys in the preparation, trial, prosecution and implementation of the United States v. Washington decision and related appeals. The special master shall determine the proceedings for which the Tribes are entitled to recover fees. The special master is given specific instructions to consider the 12 factors adopted by the Ninth Circuit Court of Appeals in Kerr v. Screen Extras Guild, 526 F.2d 67, 70 (1975), and to consider the other appropriate variables utilized by the courts in setting awards under 42 U.S.C. § 1988. The special master is further directed to prepare a report recommending to this Court the specific attorney’s fees to be awarded the Tribes. After Magistrate Weinberg’s report is submitted, this Court will set a time for hearing so that all parties will have an opportunity to discuss the validity or invalidity of the Magistrate’s recommendation. ORDER RE: ALLOCATION OF QUINAULT RIVER STEELHEAD (May 8, 1981) CRAIG, District Judge. The Report and Recommendations of Magistrate John L. Weinberg filed April 7, 1981, doc. #7464, are approved and adopted with modifications. The pertinent portion of the Report and Recommendations, as modified by the court, is as follows: FACTUAL SETTING There appears to be no genuine dispute as to the basic facts relating to the State of Washington’s motion for a temporary restraining order or preliminary injunction concerning steelhead trout that enter the Quinault River from the Pacific Ocean. The real dispute turns upon the proper application of the case law to this factual setting. 1. Geography. The Quinault Reservation comprises about 190,000 acres or almost 300 sq. miles. It is shaped roughly in the form of a triangle, with one edge consisting of about 24 miles of Pacific coastline. The reservation tapers to Lake Quinault about 21 miles inland, which is contained within the reservation and represents its easternmost portion. The mouth of the Quinault River is on the reservation, as is the entire portion of the river between the Pacific Coast and Lake Quinault. The river originates upstream of Lake Quinault, however, in lands entirely outside the reservation. 2. Steelhead Run. Returning steel-head enter the mouth of the Quinault and head upstream every year, between about mid-November and the end of April. Like salmon, steelhead generally return to their spawning grounds. They are not quite as dependable as salmon in this respect, however, and there is somewhat more “straying.” Two hatcheries and a penned rearing facility on the reservation release a substantial number of steelhead. There are also wild steelhead, some of which originate in and below Lake Quinault (i.e. on the reservation), and others above the lake (off the reservation). As a result, if no returning steelhead at all were taken from any portion of the Quinault River system, some would never leave the reservation, where their spawning grounds are located. These steelhead will be designated “reservation fish.” Others, however, would migrate up the river, through Lake Quinault, and then further upstream to areas off the reservation. These steelhead will be designated “through fish.” The Tribe and the United States estimate that, in 1980-1981, 85% of the fish entering the Quinault River are reservation fish. While the State disputes the precise accuracy of this number, there seems to be little dispute that, even if there were no fishing, only a small minority of the steelhead entering the Quinault River would ever pass through Lake Quinault and leave the reservation. The parties advise that the Fisheries Advisory Board can, if directed, make a reliable determination for a given year of the proportions of reservation and through fish. 3. Fishing. Based upon run predictions and various biological factors, a total harvestable number of steelhead can be set each year for the entire Quinault River run. For 1980-1981, that number will be approximately 15,000 fish. The parties agree that, for conservation reasons, the total harvest must in no event exceed that amount and, if possible, should not be substantially less. The Tribe and its members have the exclusive right to take steelhead on the reservation, subject to two minor exceptions discussed below. They do so, pursuant to Tribal fishing regulations, by net fishing, which is relatively efficient. Non-treaty fishermen take steelhead by “sport fishing” techniques — i.e. by hook and line. Even in a good year, this technique is not particularly “efficient,” compared to net fishing. This year, weather conditions have caused so much turbidity of the river that the fish cannot see the lures. The harvest by sport fishermen is therefore of de minimis proportions. While non-treaty fishermen on the Quinault River do most of their steelhead fishing above Lake Quinault, off the reservation, some hire Indian guides, and are therefore permitted to fish on the reservation. As of January 19, 1981, the Quinault Tribal catch on the Quinault River from November 1, 1980 was 9,462 steelhead. This represents approximately 63% of the projected maximum 1980-1981 harvest for all fishermen for all portions of the river. CONTENTIONS OF THE PARTIES Reduced to simplest terms, the contentions of the parties are as follows: The State asserts that treaty and non-treaty fishermen are each entitled to half of the harvestable steelhead that enter the Quinault River system, regardless of where the fish are destined or are taken. The United States, together with the Tribe and other intervenor tribes, claim that treaty fishermen are entitled to the sum of: (a) 100% of the harvestable steel-head that are reservation fish; and (b) 50% of the harvestable steelhead that are through fish. They contend that the non-treaty fishermen are entitled only to the other 50% of the through fish. While the issue is now essentially moot for the 1980-1981 steelhead run, all parties agree that the legal issue of the share to which each group is entitled is an important one for allocations of runs in future years. LEGAL PRINCIPLES ESTABLISHED IN PRIOR CASES From the welter of decisions on the fishing rights of the treaty Indians in the State of Washington, several relevant basic principles emerge. 1. Apportionment. The Stevens Treaties require apportionment, between treaty Indians and non-treaty fishermen, of the harvestable portion of each run that passes through a “usual and accustomed” fishing ground for treaty Indians. Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 685, 99 S.Ct. 3055, 3074, 61 L.Ed.2d 823 (1979) (“Passenger Fishing Vessel ”). 2. Size of Shares. As to those runs that are subject to allocation at all, the maximum share of the treaty Indians is 50% of the harvestable portion of the run which passes through its customary fishing grounds. The treaty Indians are entitled only to a smaller portion, if such a portion is sufficient to provide the treaty Indians a moderate living. Passenger Fishing Vessel, 443 U.S. at 686-687, 99 S.Ct. at 3074-3075. The burden is on the State to show that some share less than 50% would be sufficient to provide the Indians a moderate living. United States v. State of Washington (Phase II), 506 F.Supp. 187, 208 (W.D.Wash.1980), en banc appeal pending (No. 81-3111 9th Cir.). [Appeal decided April 29, 1985, 759 F.2d 1353] 3. No Share If No Access. The allocation rules apply only to those runs of fish which, in the course of their migration, are subject to harvest both by treaty and non-treaty fishermen. In other words, treaty fishermen have no right to any portion of a run which at no point enters or passes through a usual and accustomed fishing ground. 4. Fish Counting Rules. Once a fish run has been identified as subject to allocation between treaty and non-treaty fishermen, the courts have developed a number of rules governing how fish catches are counted and applied against those allocations. Those rules include the following: (a) On a run that passes through a reservation, then goes upstream to an area where non-treaty fishermen have access, fish caught by treaty fishermen on the reservation count toward the overall share of treaty fishermen. Passenger Fishing Vessel, 443 U.S. at 687 [99 S.Ct. at 3075]. (b) Hatchery-bred fish are to be treated in the same manner as “natural” or “wild” fish, for purposes of allocations and counting against shares. See United States v. State of Washington (Phase II), supra. 5. Interference With Upstream Catch. Where a fish run passes through an area in which either treaty or non-treaty fishermen have exclusive access, that group cannot take so many fish as to impair the rights of upstream fishermen to take their fair share. Puyallup Tribe v. Washington Department of Game, 433 U.S. 165, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977) (“Puyallup III”)', and U.S. v. Win-ans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089 (1905). 6. Proper Harvest to Be Assured. Allocations of fish should never be done in a manner which would result either in over-harvest or under-harvest. If a group of fishermen — be it the treaty fishermen or non-treaty fishermen — is not in a position to catch all the fish to which it would otherwise be entitled, the remainder should be re-allocated to the other group. APPLICATION TO THIS CASE If all of the steelhead which enter the mouth of the Quinault River swam upstream only to points within the reservation (i.e., all were reservation fish), this case would pose no problem. The treaty Indians would be entitled to all of the harvestable steelhead. Likewise, if all of the steelhead swam through the reservation and into the portion of the Quinault River above Lake Quinault (i.e., all were through fish), there would likewise be little problem. The case would therefore be identical in most respects to Puyallup III. The treaty and non-treaty fishermen would each be entitled to 50% of the harvestable run. Fish caught by the Indians on the reservation would count toward their allocation, by virtue of Passenger Fishing vessel. Hatchery fish would likewise count, by virtue of the Phase II decision. If non-treaty fishermen were able to show that the treaty Indians had taken, or were threatening to take on the reservation, more than their 50% share of the entire run, the non-treaty fishermen would be entitled to relief from this court, as they were in Puyallup III. Passenger Fishing Vessel and Puyallup III both involved through fish. In this case, by contrast, only one-seventh of the steelhead are through fish. The other six-sevenths are reservation fish, which never reach a joint use area. Allocating 50% of all of the steelhead entering the Quinault River respectively to treaty and non-treaty fishermen would work manifestly unfair results. The vast majority of the fish are reservation fish. Why should the fact that a few of them would swim beyond the reservation and therefore become accessible to non-treaty fishermen, entitle non-treaty fishermen to 50% of the entire number of fish entering the Quinault River? Indeed, even if allocated a 50% share, non-treaty fishermen could not begin to harvest these fish. Even if they were the only fishermen in the stream above Lake Quinault (and they are not), and even if they could catch every steelhead which swam above Lake Quinault (and they have difficulty catching any this year), the most they could take would be one-seventh of total number of fish entering the Quinault River. Furthermore, this does not allow for escapement of any of the fish that swim above Lake Quinault. The allocation of 50% of all of the steelhead to the non-treaty fishermen therefore could not possibly be justified. By the same token, however, the treaty fishermen cannot be permitted to harvest steelhead at will, and without limitation, on the reservation. The portion of the river above Lake Quinault is a joint use area. Although the number of steelhead which would reach that area is relatively small, nevertheless the non-treaty fishermen are entitled to at least their share of the harvestable portion of those fish. The United States conceded as much in its memoranda before this court. If the treaty fishermen are permitted to harvest as many fish as they see fit on the reservation, a possible result is that no harvestable fish would be available to the non-treaty fishermen above the lake. It is therefore my recommendation that the court regard the steelhead which enter the Quinault River as comprising two separate runs: those which have been designated reservation fish herein, and those which have been designated through fish. The court should find that treaty fishermen are entitled to take the entire harvestable number of reservation fish. The two groups are each entitled to 50%, however, of the through fish. Steelhead taken by treaty fishermen would count toward their allocation, whether taken within or outside the reservation. Passenger Fishing Vessel. Hatchery bred fish would count toward their allocation in the same manner as other fish. United States v. State of Washington (Phase II). Likewise, steelhead caught by non-treaty fishermen would count toward their allocation, whether taken above Lake Quinault or within the reservation (e.g., as part of the Indian guide fishery, or by owners of land within the reservation). Counsel advised that, when a fish is taken on the reservation, it is not possible to identify whether it is a reservation fish or a through fish. This will not be necessary, however, in giving effect to the foregoing allocation. As discussed above, it apparently is possible to predict the total number of steelhead which will enter the Quinault River in a given year, the proportions of those fish which are reservation fish and through fish, and the appropriate level for harvest. Using the legal conclusions recommended above, the Fisheries Advisory Board can then use this data to determine the share for each group for a given year. Steelhead can then be credited against those shares, wherever harvested. It is respectfully submitted that the foregoing procedure would be fair to both groups, and fully consistent with prior court determinations in this area. In addition, the foregoing would parallel one which has already been made for the Lower Columbia River. The United States and the Tribe assert that the Lower Columbia presents a highly analogous situation, with the positions of the parties reversed. They assert that non-treaty fishermen have exclusive fishing access to the Lower Columbia River. There are adjudicated treaty fishery rights, however, on the Columbia above Bonneville Dam. Some, but not all, of the fish available in the Lower Columbia River are destined for the area above Bonneville Dam. According to these parties, the State has contended, and the federal courts have agreed, that the non-treaty fishermen are entitled to harvest all of those fish in the Lower Columbia which are not destined to travel above Bonneville Dam. The treaty fishermen are entitled, however, to a 50% share of those fish headed to or through the joint use areas. Thus, they contend, the courts have already applied a “combined run” principle in another situation where fish enter an exclusive access area, and only some of the fish continue to a joint use area. If the court accepts the conclusions recommended above, the motion for injunctive relief must be denied. The State has shown that the treaty fishermen have taken more than 50% of all of the harvestable steelhead. But it has not shown that the treaty fishermen have taken so many as to impinge upon the proper share of the non-treaty fishermen: 50% of the through fish. The State has also failed to show that the non-treaty fishermen would be in a position to take appreciably more steelhead if the Indian fishery were enjoined. The court’s strong policy of assuring a full harvest would require such a showing before injunctive relief could be granted. CONCLUSION The Conclusions recommended by the Magistrate are modified and adopted as follows: 1. Defendant’s Motion for a Temporary Restraining Order or Preliminary Injunction is DENIED. 2. Of the steelhead trout which enter the Quinault Ri