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July 29, 1994

PIETRO PARRAVANO, et al., Plaintiffs
BRUCE BABBITT, as Secretary of the UNITED STATES DEP'T OF THE INTERIOR, et al., Defendants.

The opinion of the court was delivered by: THELTON E. HENDERSON

 This matter came before the Court on April 25, 1994 on defendants' Motion to Strike or to File a Supplemental Opposition to Amicus Memoranda, plaintiffs' Motion for Partial Summary Judgment, plaintiffs' Motion to Strike Extraneous Matters, and defendants' Motion to Dismiss. After careful consideration of the parties' oral and written arguments and the record herein, the Court grants defendants' motions to file a supplemental opposition and to dismiss, and denies plaintiffs' motions to strike and for partial summary judgment.


 The focal point of this action is the popular Klamath River fall chinook salmon. These anadromous fish spawn in the Klamath River and its upper tributaries, migrate downstream to the ocean, and then return to their fresh water origins at age three or four to spawn and then die. An unfortunate combination of overfishing, prolonged drought, and habitat degradation have led to significantly depressed levels of Klamath chinook stock, to the detriment of commercial fishing interests, sport fishermen, and the Native American tribes who rely on these fish for subsistence and ceremonial needs. See, United States v. Eberhardt, 789 F.2d 1354, 1363 (9th Cir. 1986) (conc. opin.) (overfishing has depleted the stocks of Klamath River fish). The conflicts inherent in having a chinook population too small to satisfy the needs of all who have a stake in the Klamath salmon are what underlie this case.

 Plaintiffs are commercial fishermen and commercial fishing associations *fn1" who contend that the Secretary of Commerce ("Secretary Brown") improperly reduced the Klamath chinook ocean harvest rate for the 1993 fall fishing season. They contend that Secretary Brown's actions violate the Magnuson Fishery Conservation and Management Act ("Magnuson Act"), 16 U.S.C. § 1801 et seq., the Administrative Procedures Act ("APA"), 5 U.S.C. § 551 et seq., 42 U.S.C. § 1981 and the United States Constitution, the Freedom of Information Act ("FOIA"), 5 U.S.C. §§ 552b, the Klamath River Basin Act, PL 99-552, and the Trinity Basin Act, PL 98-541.

 In a motion filed on July 16, 1993, plaintiffs sought partial summary judgment on plaintiffs' claims that defendants had violated procedural and substantive requirements of the Magnuson Act (plaintiffs' first cause of action) and that defendants' actions in setting the 1993 season were also in violation of the APA (plaintiffs' second cause of action). Defendants cross-moved for a partial summary judgment affirming their actions in setting the 1993 season. In a preliminary order issued on August 12, 1993, and a detailed order issued on November 3, 1993, the Court granted summary judgment to defendants except with regard to defendants' decision to increase the spawning escapement floor for Klamath River salmon by 3,000 fish. *fn2" The Court also granted summary judgment to defendants on plaintiffs' second motion for partial summary judgment, concerning plaintiffs' FOIA claim (plaintiffs' fifth cause of action).

 Plaintiffs now seek a partial summary judgment on plaintiffs' remaining claims brought under the Magnuson Act. Plaintiffs seek a summary judgment that there is no federal law reserving fishing rights to the Hoopa Valley and Yurok Indians which must be considered applicable law by Secretary Brown in regulating ocean fisheries under the Magnuson Act, since ocean harvesting by plaintiffs may only be restricted to protect Indian fishing rights established by treaties. *fn3" Intervenor Sue Masten joined in defendants' opposition to plaintiffs' motion for partial summary judgment on this basis. Plaintiffs also submit in support of their motion for summary judgment the argument that Magnuson Act procedures and National Standards have been violated by defendants' "agreement" to "regulate all ocean seasons in accordance with the Interior Solicitor's opinion." On March 8 and March 14, 1994, respectively, the Humboldt Bay Harbor, Recreation and Conservation District of the State of California, and the State of California, filed briefs as amicus curiae in support of plaintiffs' motion for summary judgment. *fn4"

 Defendants cross-move to dismiss (1) plaintiffs' allegation that the Secretary of the Interior ("Secretary Babbitt") violated constitutional equal protection and due process guarantees as well as 42 U.S.C. § 1981 in setting the 1993 Indian harvest allocation because such allocation was racially based and discriminatory, and (2) plaintiffs' allegation that Secretary Babbitt violated certain acts relating to the restoration of the Klamath and Trinity Rivers. Plaintiffs move to strike several documents that defendants filed with their motion to dismiss. We first address plaintiffs' motion for summary judgment, below.


 Defendants' Motion to Dismiss

 Dismissal is appropriate under Rule 12(b)(6) when a plaintiff's complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). The Court must accept as true the factual allegations of the complaint and indulge all reasonable inferences to be drawn from them, construing the complaint in the light most favorable to the plaintiff. Dodd v. Spokane County, 393 F.2d 330, 334 (9th Cir. 1968); NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). Unless the Court converts the Rule 12(b)(6) motion into a summary judgment motion, the court may not consider material outside of the complaint. Powe v. Chicago, 664 F.2d 639, 642 (7th Cir. 1981). The Court must construe the complaint liberally, and dismissal should not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Wright and Miller, supra, § 1350; Intake Water Co. v. Yellowstone River Compact Com., 769 F.2d 568, 569 (9th Cir. 1985).

 Plaintiffs' Motion for Summary Judgment

 Summary judgment is appropriate when there is no genuine dispute as to material facts and the moving party is entitled to judgment as a matter of law. Jung v. FMC Corp., 755 F.2d 708, 710 (9th Cir. 1985); Fed. R. Civ. P. 56. Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The court may not weigh the evidence, and is required to view the evidence in the light most favorable to the nonmoving party. Id.


 I. Plaintiffs' Motion for Partial Summary Judgment

 1). Background

 The areas that are the Yurok and Hoopa Valley Reservations today were Originally set aside in the nineteenth century. The Act of March 3, 1853, authorized the President to "make . . . reservations . . . in the State of California . . . for Indian purposes." 10 Stat. 226, 238. In 1855, by executive order and under authority of the Act of March 3, 1853, President Pierce established the Klamath River Reservation along the lower 20 miles of the Klamath River. I.C. Kappler, Indian Affairs: Laws and Treaties 816 (1904) ("Kappler"). The lands were mostly occupied by Yurok Indians, and the reservation encompassed what is today the lower portion of the Yurok Reservation. According to the Supreme Court in Mattz v. Arnett, 412 U.S. 481, 486, 37 L. Ed. 2d 92, 93 S. Ct. 2245 (1973), the site was ideally selected for the Yuroks. They had lived in the area; the arable land, although limited, was "peculiarly adapted to the growth of vegetables," 1856 Report 238, and the river, which ran through a canyon its entire length, abounded in salmon and other fish. Kappler at 817.

 The original Hoopa Valley Reservation, a 12 mile square on either side of the Trinity River, was first located and proclaimed in 1864, by the Superintendent of Indian Affairs for California, pursuant to legislation enacted that year. The legislation authorized the President to set apart up to four tracts of land in California "for the purposes of Indian reservations, which shall be of suitable extent for the accommodation of the Indians of said state, and shall be located as remote from white settlements as may be found practicable, having due regard to their adaptation to the purposes for which they are intended." Act of April 8, 1864, § 2, 13 Stat. 39, 40 ("1864 Act"); see also Kappler at 815; Donnelly v. United States, 228 U.S. 243, 255-57, 57 L. Ed. 820, 33 S. Ct. 449, modified on other grounds and rehearing denied, 228 U.S. 708, 57 L. Ed. 1035, 33 S. Ct. 1024 (1913); Mattz v. Superior Court, 46 Cal. 3d 355, 250 Cal. Rptr. 278, 758 P.2d 606, 610 (1988). The reservation was mostly inhabited by Hoopa Indians. In 1876 President Grant formally set aside the reservation by Executive Order "for Indian purposes, as one of the Indian reservations authorized . . . by Act of Congress approved April 8, 1864." Kappler, at 815.

 In 1891, President Harrison issued an Executive Order extending the Hoopa Valley Reservation along the Klamath River from the mouth of the Trinity River to the Pacific Ocean, thereby encompassing and including the Hoopa Valley Reservation, the original Klamath River Reservation, and the connecting strip in between. See Mattz v. Arnett, 412 U.S. at 492-493.

 In 1988 Congress enacted the Hoopa-Yurok Settlement Act of 1988 ("HYSA"), 25 U.S.C. § 1300i-1300i11. The HYSA partitioned the extended Hoopa Valley Reservation into the present Hoopa Valley Reservation and the Yurok Reservation. The congressional partition "recognized and established" two distinct reservations for the Yurok and Hoopa Valley Tribes ("the Tribes"), and declared that "the unallotted trust land and assets" of each reservation would thereafter be held in trust by the United States for the benefit of the Hoopa Valley and Yurok Tribes, respectively. 25 U.S.C. § 1300i-1(b) & (c). The legislative history accompanying the HYSA indicates that tribal fishing rights constituted one such recognized asset:

The legislation will also establish and confirm the property interests of the Yurok Tribe in the Extension, including its interest in the fishery, enabling the Tribe to organize and assume governing authority in the Extension.

 See Partitioning Certain Reservation Lands Between the Hoopa Valley Tribe and the Yurok Indians, S. Rep. No. 564, 100th Cong., 2d Sess. 2-9 (1988) and Partitioning Certain Reservation Lands Between the Hoopa Valley Tribe and the Yurok Indians, H. Rep. No. 938, pt. 1, 100th Cong., 2d Sess. 8-15 (1988).

 The Tribes have historically been dependent on salmon fishery of the Klamath River. One estimate is that prior to settlement along the coast by non-Indians, the Indians in the Klamath River drainage "consumed in excess of 2 million pounds . . . of salmon annually from runs estimated to have exceeded 500,000 fish." U.S. Department of the Interior, Environmental Impact Statement - Indian Fishing Regulations 2 (Hoopa Valley Reservation, California (April 1985). As the Court noted in Blake v. Arnett, 663 F.2d 906, 909 (9th Cir. 1981), the fishery was "not much less necessary to the existence of the Indians than the atmosphere they breathed." See also Mattz v. Arnett, 412 U.S. at 487.

 At the time the Hoopa Valley and Klamath River Reservations were created, the United States was well aware of the Indians' dependence upon the fishery. A specific, primary purpose for establishing the reservations was to secure to the Indians the access and right to fish without interference from others. See Mattz v. Arnett, 412 U.S. at 487-88 (Klamath River Reservation ideal for the Indians because of the river's abundance of salmon and other fish); Donnelly v. United States, 228 U.S. at 259; United States v. Eberhardt, 789 F.2d at 1360 (citing People v. McCovey, 36 Cal. 3d 517, 534, 205 Cal. Rptr. 643, 653, 685 P.2d 687, 697 (1984), cert. denied California v. McCovey, 469 U.S. 1062, 83 L. Ed. 2d 432, 105 S. Ct. 544 (1984)); United States v. Wilson, 611 F. Supp. 813, 817-818 and n.5 (N.D. Cal. 1985) (Hoopa Valley Reservation Indian fishing rights were granted by Congress when it authorized President to create reservations for Indian purposes). Mattz v. Superior Court, 46 Cal. 3d 355, 758 P.2d 606, 618, 250 Cal. Rptr. 278 (river and Indian fishing played a primary role in the 1891 extension of the Hoopa Valley Reservation to include the old Klamath Reservation and connecting strip).

 The power of the United States to reserve fishing rights for Indians and Indian tribes is derived from its plenary power over Indian affairs, grounded in the Indian Commerce Clause and the Interstate Commerce Clause. U.S. Const. Art. I Sec. 8; see Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 764, 85 L. Ed. 2d 753, 105 S. Ct. 2399 (1985) ("Constitution vests the Federal Government with exclusive authority over relations with Indian tribes.").

 The Indians' reliance on fishing continues to this day. As the court noted in United States v. Wilson,

To modern Indians of the Hoopa Valley Reservation, fishing remains a way of life, not only consistent with traditional Indian customs, but also as an eminently practical means of survival in an area which lacks the broad industrial or commercial base which is required to provide its population, Indian or otherwise, with predictable, full-time employment and income adequate to provide sufficient quantities and qualities of the necessities of life.

 611 F. Supp. at 818 n. 5 (citations omitted).

 On October 4, 1993, the Solicitor of the Department of the Interior issued an Opinion concluding that the fishing rights reserved when the reservations were created entitle the Tribes to a share of fishery resources sufficient to support their moderate living needs, but no more than 50% of the harvestable share, unless varied by agreement of the parties. Subsequently, on December 23, 1993, the Secretary of Commerce published an interpretative rule, which states that the Secretary recognizes that the Federally reserved fishing rights of the Yurok and Hoopa Valley Tribes, as construed in the Solicitor's Opinion, are applicable law for the purposes of the Magnuson Act. 58 Fed. Reg. 68063 (December 23, 1993). The Federal Register notice states that all future fishery management measures for the ocean salmon fisheries off Washington, Oregon and California must provide for harvest allocations as provided for in the Solicitor's Opinion:

The [fishery management plan (FMP)] specifies that, to the maximum extent possible, optimum yield will be set at a level that fulfills the requirements of the Indian fishery for salmon on the Klamath River and that the Council must take the effects of in-river harvest on spawner escapement into account while setting ocean harvest levels . . . . The Solicitor's Opinion now provides a clear legal framework for allocating the salmon harvest between the Tribes and various other in-river and ocean commercial and recreational fishermen . . . . The Secretary will only approve ocean salmon management measures recommended by the Council that provide for tribal harvest opportunity consistent with the rights recognized in the Solicitor's Opinion and meet the spawning escapement goal for Klamath River fall chinook salmon.

 58 Fed. Reg. 68063.

 The rule amends the Appendix to 50 CFR Part 661, which is the framework amendment for annual management measures by including therein direction to consider as applicable law the construction of the rights provided in the Solicitor's Opinion. This amendment applied to the 1994 management measures developed by the Pacific Fishery Management Council. On January 3, 1994, the Assistant Secretary, Indian Affairs, formally instructed the Sacramento Area Director, Bureau of Indian Affairs, to implement the Solicitor's Opinion in regulating the on-reservation tribal fishery beginning in 1994.

 2). Applicable Law

 Standard of Review

 Plaintiffs challenge Commerce's action in applying, as "applicable law" under the Magnuson Act, the construction of law set forth in the Solicitor's Opinion. Enacted in 1976, the Magnuson Act was intended to respond to overfishing and inadequate conservation measures which were threatening future commercial and recreational fishing, as well as the very survival of species. 16 U.S.C. § 1801(a); Lovgren v. Byrne, 787 F.2d 857, 861 (3rd. Cir. 1986) (Magnuson Act "was enacted at a time when overfishing of coastal waters was commonplace, threatening the existence of a number of species of fish"); Pacific Coast Federation, 494 F. Supp. at 635, n. 7 ("over-fishing of species was a primary impetus to passage of the Act").

 The Act provides for the establishment of regional Councils which are charged with developing, after public comment, a recommended fishery management plan ("FMP") for regulating fishing in the EEZ. 16 U.S.C. § 1852. The Councils also recommend seasonal adjustments and amendments to the FMP. Id. The Council's recommendations are submitted to the Secretary of Commerce who reviews them for consistency with seven "National Standards" set forth in the Act and "other applicable law." Based on this review, the Secretary may either approve or disapprove the Council's recommendations. 16 U.S.C. § 1854; Eberhardt, 789 F.2d 1354 at 1363 (Councils "recommend" ocean fishing regulations to the Department of Commerce).

 An action taken by the Secretary of Commerce under the Magnuson Act is subject to limited judicial review, 16 U.S.C. § 1855(b), and may only be invalidated if the challenged action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) (1982). We review legal questions under a de novo standard. We also note that the Department of the Interior has been given authority under 25 U.S.C. §§ 2 and 9 to manage and conserve Indian resources, and we must assume that the Department has been given reasonable power to effectively discharge its broad responsibilities for ...

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