Makah Indian Tribe v. Verity

910 F.2d 555 (9th Cir. 1990)

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Nature of the Case

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Facts

P and 23 other Indian tribes are guaranteed fishing rights by federal treaty. To protect such Indian treaty rights, a complex judicial and administrative scheme has evolved that regulates the harvest of salmon that pass through these waters. Outside the three-mile limit, ocean fishing is regulated by the federal government under the Fishery Conservation and Management Act of 1976 (FCMA). The FCMA established the Pacific Fishery Management Council (PFMC), which is composed of representatives of the States of Washington, Oregon, California and Idaho, one representative of the Indian tribes, and the federal government. PFMC develops a regional fishery management. After public meetings, the PFMC recommends yearly harvest rates to the Secretary of Commerce, who promulgates regulations detailing ocean fishing allotments. This action concerns ocean quotas that coordinate with the most recent Columbia River Fish Management Plan. The plan sets minimum 'escapement' levels for all Columbia River runs with quotas low enough to protect the weakest runs. After the plan reached final form, but before court approval, the PFMC adopted ocean harvest quotas for the 1987 season that were consistent with the plan. P and three other ocean treaty tribes proposed higher ocean quotas, but their requests were rejected. The Secretary accepted the PFMC's recommendation. P filed this suit challenging the quotas and the regulatory process. The district court determined that P sought primarily reallocation of the harvest of Columbia River salmon. The court concluded it could not grant this relief without involving the twenty-three absent tribes. The district court dismissed the suit for failure to join the twenty-three treaty tribes of Puget Sound, the Columbia River, and the ocean fishery. P appealed.