Court allows tribes some access to commercial beds
Story-Date: 05:28 p.m. PST Wednesday, January 28, 1998

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Court allows tribes some access to commercial beds


By Bob Egelko
Associated Press Writer


SAN FRANCISCO (AP) -- Indian tribes in Washington state are
entitled to share in shellfish harvests on private as well as public
property, a federal appeals court ruled Wednesday.

The 9th U.S. Circuit Court of Appeals upheld the tribes' treaty rights to
half the shellfish caught in deep water and in natural shellfish beds
around Puget Sound. The ruling gives the tribes some access, though well
short of a 50 percent share, to clams grown in commercial beds on the
sound.

On those beds, tribes can take up to half the shellfish that would exist
without improvements made by commercial growers, who are entitled to keep
all the harvest produced by their labor, the court said.

The court also entitled tribes to half the shellfish from artificial beds
on state property, and ordered a judge to reconsider a standard for natural
beds that barred many tribal claims. On another issue, the court upheld
restrictions on tribes' ability to cross private uplands to reach
shellfishing areas.

The 3-0 ruling was written by Judge Stephen Trott.

"It sounds like we got part of the loaf, something but not everything we
asked for," said Phillip Katzen of Columbia Legal Services, lawyer for 10
tribes in the case. He said the standard for access to commercial clam
beds, a major issue in the case, may be difficult to implement and could
prompt the parties to renew efforts at a settlement.

The court also urged the parties to seek a settlement.

"We recognize the enormous impact our decision will have on the thousands
of homeowners, tribal members and commercial fishermen in the Puget Sound
region," Trott wrote.

Michael Himes, lawyer for the Puget Sound Shellfish Growers, and Assistant
Attorney General Jay Geck, who opposed some of the tribes' claims on behalf
of the state, declined comment on the ruling, saying they had not seen it.

The dispute involved treaties between the government and Indian tribes in
1854-55 in which the tribes granted land to the United States for
settlement in exchange for various rights, including the right to take fish
"at all usual and accustomed grounds" on an equal basis with non-Indians.
The treaties specified that the tribes could not take shellfish from "any
beds staked or cultivated by citizens."

In 1994, visiting U.S. District Judge Edward Rafeedie of Los
Angeles ruled that shellfish were to be treated the same as other fish
under the treaties, entitling the tribes to half the catch except for
shellfish in artificial beds. In a later ruling, Rafeedie denied the tribes
access to most of the property of commercial shellfish growers.

The appeals court upheld Rafeedie's ruling in favor of the tribes,
rejecting the state's arguments that the tribes were not entitled to
harvest geoduck, sea urchin, sea cucumber and deep-water crab and shrimp,
which they had not caught before the treaties. The treaty language was
broad, did not distinguish between species and entitled the tribes to half
the catch in their "usual and accustomed fishing grounds," Trott said.

The court also rejected landowners' arguments that the treaties did not
grant the tribes any access to private tidelands.

On the question of commercial shellfish beds, the court said Rafeedie had
gone too far -- effectively rewriting the treaties -- by excluding tribes
from all beds created by growers. But Trott said the tribes were not
entitled to 50 percent of the harvest from those beds, only to a "fair
share."

Referring to beds that were developed by enhancing natural conditions, the
court said growers could exclude tribes from any portion of the harvest
that was due to the growers' efforts; tribes would be entitled to half the
harvest that would have existed under natural conditions.

Matzen, the tribes' lawyer, said the ruling would entitle them to a share
of the harvest in commercial clam beds. Oyster beds, which are larger, are
almost entirely artificial rather than natural and will not be affected
much by the ruling, he said.

Rafeedie had also ruled that artificial beds created by the state of
Washington on public property were exempt from tribal harvest under the
same standards as private shellfish beds. The appeals court said the ruling
was unjustified under the treaties, which entitled the tribes to a 50
percent share.

The case is United States vs. State of Washington, 96-35014.



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