United States v. Washington

19 F.Supp.3d 1317

UNITED STATES of America, et al., Plaintiffs

v.State of WASHINGTON, et al., Defendants.

Civil No. 9213.

United States District Court, W.D. Washington, at Seattle.

(January 1, 2000 through December 31, 2003)

COMPILATION OF MAJOR POST–TRIAL SUBSTANTIVE ORDERS (Through December 31, 2003)

STIPULATION AND ORDER RE: FRASER RIVER SOCKEYE SALMON

(February 11, 2000)

BARBARA JACOBS ROTHSTEIN, District Judge.

TABLE OF CONTENTS

ORDER	PAGE
Stipulation and Order re: Fraser River Sockeye Salmon (2/11/2000)	1323
Order Denying Private Land Owners' Motion for Reconsideration and Granting–in–Part and Denying–in–Part Private Land Owner's Motion for Amendment of the Court's Clarifying Order (2/25/2000)	1330
Consent Decree (8/18/2000)	1331
Memorandum of Understanding Re: Coastal Coho Management (8/31/2000)	See Appendix
Order Establishing Interim Halibut Fishery Management Plan (3/20/01)	1332
Order on Summary Judgment Motions (4/5/01), 143 F.S.2d 1218	See Appendix
Proposed Order re Amendment to Paragraph G of Order for Program to Implement Interim Plan (5/8/01)	1335
Order Granting United States' and Denying Washington's Motions for Judgment (9/6/01)	1336
Order Granting United States' Motion for Reconsideration and Motion to Dismiss State's Cross–Request for Determination (10/26/01)	1340
Minute Entry: In Chambers Proceedings (3/18/02)	1343
Stipulation and Order Amending Shellfish Implementation Plan (4/8/02)	1344
Order Denying the Samish Tribe's Motion to Reopen Judgment (12/19/02)	1369
Order Denying the Samish Tribe's Motion for Reconsideration (2/7/03)	1377
Order Denying Emergency Motion for Continued Maintenance of Status Quo and for 2003 Management Plan (2/26/03)	1379
Order Denying Motion to Strike (3/13/03)	1381
Order Denying the State of Washington's Motion for a Preliminary Injunction (4/2/03)	1382
Order on Motion for a Temporary Restraining Order (10/10/03)	1384
Order on Motion for Reconsideration (11/24/03)	1384

STIPULATION

The parties to this Stipulation agree to the arrangements herein set forth to facilitate adoption of a new Annex to the Pacific Salmon Treaty between the United States and Canada. This Stipulation and Order is entered into under the authority of Paragraph 14 of the court's March 22, 1974 permanent injunction in United States v. Washington, 384 F.Supp. 312, 416–17 (W.D.Wash.1974) (Dkt. # 508).

I. PARTIES AND DEFINITIONS

1. The parties to this Stipulation are:

The Jamestown S'Klallam Tribe

The Lower Elwha S'Klallam Tribe

The Lummi Nation

The Makah Indian Tribe

The Nooksack Indian Tribe

The Port Gamble S'Klallam Indian Tribe

The Suquamish Indian Tribe

The Swinomish Indian Tribal Community

The Tulalip Tribes

The United States of America

The State of Washington

2. A. As used herein, the term “1999 Annex” means the version of Annex IV to the Pacific Salmon Treaty that the parties to that Treaty adopted by exchange of diplomatic notes dated June 30, 1999.

B. As used herein, the term “Tribes” means those Tribes signing this Stipulation and Order.

II. AGREED STATEMENTS

1. Under equitable orders entered in United States v. Washington and in Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979), the treaty Tribes party to United States v. Washington and the State of Washington are entitled to an opportunity to take up to 50% of the salmon available for harvest within Washington and closely adjacent marine waters, from runs that pass through tribal usual and accustomed fishing grounds. These salmon include sockeye that spawn in the Fraser River system in Canada and many chinook, coho, and chum stocks that originate in Washington waters.

2. On January 28, 1985, the United States and Canada entered into the Pacific Salmon Treaty, T.I.A.S. No. 11091. The United States Senate ratified the treaty on March 7, 1985. The Pacific Salmon Treaty addresses the conservation and international allocation of salmon stocks that originate in one country and are subject to interception in the other. Stocks subject to the Pacific Salmon Treaty include sockeye and pink from the Fraser River and many chinook, coho, and chum stocks that originate in Washington. Article IV of the Pacific Salmon Treaty contemplates that the two countries will negotiate fishing regimes, which are attached to the Treaty as annexes and implemented through regulations adopted in the member countries Annex IV is concerned with fishing regimes adopted by the United States and Canada. Chapter 4 of Annex IV addresses Fraser River sockeye salmon.

3. Since the Pacific Salmon Treaty was executed, a number of chinook, chum, and coho stocks that originate in or migrate through Washington and that are subject to the Pacific Salmon Treaty have been listed as threatened or endangered under the Endangered Species Act. These include Puget Sound Chinook—threatened (64 Fed.Reg. 14308, 14319 (March 24, 1999) ), Lower Columbia River Chinook—threatened (Id. at 14321 ), Upper Columbia River Spring Chinook—endangered (Id. at 14324 ), Upper Willamette River Chinook—threatened (Id. at 14323), Snake River Spring and Summer Chinook—threatened (57 Fed.Reg. 14653, 14661 (April 22, 1992) ), Snake River Fall Chinook—threatened (Id. at 14661 ), Hood Canal Summer Run Chum—threatened (64 Fed.Reg. 14508, 14513 (March 25, 1999) ), Oregon Coastal Coho—threatened (63 Fed.Reg. 42587 (Aug. 10, 1998) ), and Ozette Lake sockeye—threatened (64 Fed.Reg. 14528, 14533 (March 25, 1999) ). Puget Sound Coho and Lower Columbia River Coho salmon, which are also subject to the Pacific Salmon Treaty, are candidates for listing under the Endangered Species Act. 60 Fed.Reg. 38011, 38022, 38024 (July 25, 1995). All residents of Washington State have an interest in the conservation and recovery of these fish.

4. During the first four years of the Pacific Salmon Treaty, the United States' share of the Fraser River sockeye harvest opportunity was approximately 26%, the Canadian share 74%. Canada has sought to increase the Canadian share of the harvest. Disagreement over the international sharing of Fraser River sockeye has been one obstacle to the negotiation of new Annexes to the Pacific Salmon Treaty.

5. In 1999, representatives of the United States and Canada have reached agreement on a multi-year Annex to the Pacific Salmon Treaty. Chapter 4 of the 1999 Annex addresses Fraser River salmon and is intended to remain in effect for twelve years. In the 1999 Annex, the United States has agreed to reduce its harvest of Fraser River sockeye salmon. Canada has agreed to conservation-based management regimes for harvest of salmon that originate in Washington, including salmon that have been listed or are candidates for listing under the Endangered Species Act. These arrangements are an integral part of the overall package of agreements in the 1999 Annex.

6. The State of Washington recognizes that the treaty Tribes in United States v. Washington may engage in treaty fishing only at usual and accustomed grounds and stations. Fraser River sockeye pass through the usual and accustomed grounds and stations of only some of the Tribes party to United States v. Washington, Because of that, some Tribes depend on Fraser River sockeye, while other Tribes do not. The Tribes that would suffer a reduction in sockeye opportunity are not necessarily the Tribes that might eventually benefit from increased abundance of other salmon species as contemplated in the 1999 Annex.

III. ACTIONS TO BE TAKEN BY THE PARTIES

1. Under Article VI of the Pacific Salmon Treaty, the Fraser River Panel develops regulations for the harvest of sockeye and pink salmon within the Fraser Panel Area described in Annex II of the Treaty. The Fraser Panel Area generally includes U.S. and Canadian waters within the Strait of Juan de Fuca, northern Puget Sound, and the southern Strait of Georgia. Each year, the Fraser River Panel determines a Total Allowable Catch (TAC) of sockeye salmon. The 1999 Annex defines the TAC as the remaining portion of the annual aggregate Fraser River sockeye runs after deduction of spawning escapements, the Fraser River Aboriginal Exemption, and catches in test fisheries authorized by the Fraser River Panel.

2. In 1999, the overall U.S. catch in the Fraser Panel Area shall not exceed 22.4% of the TAC, of which 50% shall be made available for harvest by the Tribes, and 50% shall be made available for harvest by the State of Washington.

3. In 2000, the Washington non-treaty fisheries shall be reduced so that the U.S. catch in the Fraser Panel Area shall not exceed 20.4% of the TAC, of which 54.9% shall be made available for harvest by the Tribes, and 45.1% shall be made available for harvest by the State of Washington.

4. In 2001, the Washington non-treaty fisheries shall be further reduced so that the U.S catch in the Fraser Panel Area shall not exceed 18.4% of the TAC, of which 61% shall be made available for harvest by the Tribes, and 39% shall be made available for harvest by the State of Washington.

5. In 2002, the Washington non-treaty fisheries shall be further reduced so that the U.S. catch in the Fraser Panel Area shall not exceed 16.5% of the TAC, of which 67.7% shall be made available for harvest by the Tribes, and 32.3% shall be made available for harvest by the State of Washington.

6. Each year from 2003 through 2010, the U.S. catch in the Fraser Panel Area shall not exceed 16.5% of the TAC, of which 67.7% shall be made available for harvest by the Tribes, and 32.3% shall be made available for harvest by the State of Washington.

7. The parties recognize that the unequal distribution of harvest reductions between treaty and non-treaty fisheries may cause hardship to the non-treaty fleet. The negotiators of the 1999 Annex have proposed that the United States Congress and the Washington State Legislature appropriate at least 30 million dollars (Congress 25–30 million and the Legislature up to 5 million) over several years to purchase and retire Washington non-treaty...