State v. Sattacum

Rosellini, J.

(concurring in the result) — The conservation of the natural resources of this state is a matter of vital importance to all of its inhabitants. The right of the state to enforce its conservation measures is a matter that I do not think should be determined by reference to an opinion of a court of another state when that state chose to ignore language of the United States supreme court that reads:

“The treaty leaves the state with power to impose on Indians, equally with others, such restrictions of a purely regulatory nature concerning the time and manner of fishing outside the reservation as are necessary for the conservation of fish.” Tulee v. Washington, 315 U. S. 681, 86 L. Ed. 115, 62 S. Ct. 862.

We have used language of similar import to this in every case in which the question of interpretation of Indian treaty rights has been considered. See State v. Towessnute, 89 Wash. 478, 154 Pac. 805; State v. Alexis, 89 Wash. 492, 154 Pac. 810, 155 Pac. 1041; State v. Meninock, 115 Wash. 528, 197 Pac. 641; State v. Wallahee, 143 Wash. 117, 255 Pac. 94; State v. Tulee, 7 Wn. (2d) 124, 109 P. (2d) 280.

Moreover, I do not think that this court is justified in assuming that, because the supreme court denied certiorari in State v. Arthur, 74 Idaho 251, 261 P. (2d) 135, it approved the holding of that case. That court clearly stated that such an assumption is never warranted. Atlantic Coast Line R. Co. v. Powe, 283 U. S. 401, 75 L. Ed. 1142, 51 S. Ct. 498; United States v. Carver, 260 U. S. 482, 67 L. Ed. 361, 43 S. Ct. 181; House v. Mayo, 324 U. S. 42, 89 L. Ed. 739, 65 S. Ct. 517; Sunal v. Large, 332 U. S. 174, 91 L. Ed 1982, 67 S. Ct. 1588.

Contrary to the Idaho holding are the cases of Makah Indian Tribe v. Schoettler, 192 F. (2d) 224 (C.A. 9th) and McCauley v. Makah Indian Tribe, 128 F. (2d) 867 (C.A. 9th), both of which recognize: (a) the power of the state *531to subject Indians to restrictions for the purpose of conservation; and (b) that their right to fish, granted by the treaty, is not an unlimited right. The majority, however, chose to ignore these decisions rendered by the Federal circuit court in this state, and to adopt an interpretation of the treaty which deprives the state of all right to protect its fish for the benefit of all of its citizens.

The importance of the conservation measures adopted by the state of Washington may be better understood if some of the factors and problems involved are examined. This information, unfortunately, was not presented in evidence in the trial of this cause, but was gleaned from my own research. While these facts cannot control our decision, I do think that they emphasize the importance of the case and, therefore, should be considered before we decide that the state has no right at all to interfere with the fishing practices of Indians.

This case involves the trapping of salmon and steelhead by means of nets in the Puyallup river. There are five or six species of Pacific salmon; and there are two species of steelhead, those that migrate in the winter and those that migrate in the summer. These anadromous fish are hatched in fresh water and descend to salt water where most of their growth is attained. They have a well-developed homing instinct and return to spawn either in the streams of their birth or the streams where they are planted as finger lings.

The Pacific salmon spawn only once and always die after spawning; the steelhead may spawn more than once. The salmon and steelhead after remaining in the ocean from three to six years, depending upon their species, return as mature fish to the river of their origin to spawn. They spawn in the upper reaches of the rivers and bury their eggs in the gravel beds. The mature fish usually travel close to the river banks during their spawning migration.

The problems of properly managing and preventing the extinction of this vast fishery resource are of real concern to the state. The Washington department of fisheries, in *532its. 1953 report, placed the capitalized value of fish and shell fish resources in this state at $679,150,000. To this value must be added the contribution of salmon as a recreational asset. In recent years, from 150,000 to 200,000 fishermen have participated in saltwater sport angling on Puget Sound, in waters along the coast of Washington, in the Columbia river as far upstream as. Wenatchee, and in other salmon-producing rivers. They spend $8,500,000 annually on fishing trips. There are 160 boathouses and resorts with an investment value of $12,000,000.

The state regulations to conserve and preserve fishery are vital activities in the over-all scheme of administering this resource in such a way that it can provide a constant source of food, wealth, and recreation.

The International Halibut Commission and the International Sockeye Salmon Commission have effectively demonstrated how two nearly extinct species (halibut and sockeye) have been restored by the promulgation and enforcement of conservation laws and regulations.

The methods commonly used to conserve the fish have been to regulate the season’s catch and the gear used, to the end that sufficient fish escape to propagate and reproduce themselves. The fish hatchery is essential in combating the depletion of fish runs. Without artificial propagation, the maintenance and rehabilitation of this resource would be impossible. The Washington game department’s record of planting and catching steelhead in the Puyallup river is persuasive of the need for this artificial propagation.

PUYALLUP RIVER

Year Steelhead Plants Year Steelhead Returns

1945 ............ 37,694............

1946 ............ 65,877............

1947 ............177,596............1947-48.......... 1,771

1948 ............ 53,467............1948-49.......... 3,921

1949 ............298,300............1949-50.......... * 4,821

1950 ............283,914............1950-51.......... 4,808

1951 ............ 66,462............1951-52..........**14,592

1952 ............174,682............1952-53.......... 14,190

1953 ............ 81,124............1953-54.......... 16,886

1954 ............ 53,935............1954-55.......... 13,351

*533.. 18,496 1955 ............ 70,270 1955- 56.

(Data not yet available) 1956 ............ 56,876. 1956- 57.

* (1950 first true downstream migrants planted)

* * (First return of hatchery fish)

The defendants herein had two set nylon nets in the Puyallup river. The shorter one was 80 feet in length and 20 feet in width or depth, with 6% inch diamond-shaped webbing. The longer net was the same, except that it was 140 feet in length. The shorter net was anchored at one end to the bank by means of a rock; and the longer net was upstream from the shorter one and anchored to the bank by means of piling. The opposite ends of each net were anchored with pilings in the stream, each net running at right angles to the bank of the river.

When fish attempt to migrate upstream, they are caught and become enmeshed by their gills in the webbing of set nets. Nylon nets are a new device; they are practically invisible in the water. Such nets are so constructed that they take practically every fish that attempts to go upstream.

Any obstruction that prevents the anadromous fish from escaping to its spawning ground will destroy that particular fish run. The regulations in question were enacted to prevent such obstructions and other interference with the fish during the spawning season. I do not think it can be seriously questioned that such laws and regulations for conservation, as generally applied, are reasonable.

The majority chose to enlarge the ruling of Tulee v. State, supra, that the state has no right to exact a license fee from the Indians for a privilege guaranteed to them by the treaty with the United States. It enlarged this ruling to a holding that state regulations designed to conserve the fish may not be enforced against the Indians. The majority opinion does this in spite of the fact that it recognizes the right of the state to impose such restrictions outside the reservation, and in spite of the fact that the treaty provides that the right is to be “enjoyed in common with all the citizens of the Territory.”

*534The treaty with the Indians should be construed in the light of the conditions and circumstances existing at the time it was executed. It was never anticipated nor imagined at that time that the present technological advances in the method of taking fish would be developed. Nylon net was unknown. The Indians did not possess the technical knowledge nor materials to manufacture nets in lengths sufficient to span an entire stream. The outboard motor was nonexistent.

To interpret the treaty in a manner that would permit the Indians to use the best and most advanced techniques and equipment to the extent that the fish are destroyed would, in my opinion, go far beyond what was intended either by the citizens of the Territory or the Indians. Inherent in the treaty is the implied provision that neither of the contracting parties would destroy the very right and bounty which each sought to share. .

The argument is made that if the state may forbid .fishing during certain seasons, it may forbid it altogether,- but .the unreasonableness of such a law should be manifest. .

As a practical matter, it has been determined that unless these conservation .measures are enforced,. the fish, will become extinct and the Indians’ rights will become worthless. If the Indians will accept the benefit of the state’s activities directed to the preservation and replenishing of the supply of fish, they should accept also.-the -burden incident to these measures. Surely, it was never contemplated that the right given to the Indian should be used to destroy the means of his enjoying that right — a destruction that would affect not only the Indians but also the other citizens entitled to fish the waters of the state.

The trial court decided this case against the state on the ground that the state had failed to sustain the burden of proving that the regulation was reasonable and necessary or rather, that the enforcement of the regulation against the defendants was reasonable and necessary for the preservation of fish. In doing .so, the court adopted the holding of Makah v. Schoettler, supra. It is the general rule that *535such a regulation is presumed to be valid and the burden of proving its invalidity is upon the party challenging the regulation. The court, however, felt that in such a case as this — where the enforcement of the regulation, if not reasonable and necessary, would infringe a treaty right of the Indian — the burden should be upon the state to show that the violation of the regulation by the Indian threatens the conservation program. I would uphold the trial court in its disposition of the cause, for it is true that the state made no attempt to show that the conservation program was seriously affected by the fishing activities of the defendants or of the Indians generally. But I would not go further, as the majority has, to say that the treaty intended that the state may never interfere with fishing by Indians in their usual and accustomed places, no matter how wasteful and destructive their fishing may be. Such a holding is unnecessary to a decision of the case. Furthermore, I think it is unwarranted under the facts and the law.

For these reasons, I would affirm the trial court’s judgment.

Hill, C. J., Finley, and Mallery, JJ., concur with Rosel-LINI, J.