ment had never considered a regulation to authorize Quileute Indians to maintain an off-reservation net fishery for steelhead, nor had the Game Department staff advised the Game Commission of the data or supporting facts regarding the Quileute Indian fishery. [Tr. 303, l. 14 to 304, l. 12; Ex. PL-37]

Quinault Tribe

119. The Quinault Tribe is the present day tribal entity which, with respect to the matters that are the subject of this litigation, is a political successor in interest of some of the Indian tribes or bands which were parties to the Treaty of Olympia. This tribe is recognized by the United States as a currently functioning Indian tribe maintaining a tribal government on the Quinault Reservation and is composed of the Quinault and Queets Band of Indians, and other fish-eating Indians of the Olympic Peninsula who were allotted on the Quinault Reservation. Its membership is determined in accordance with its Bylaws adopted by its tribal council on May 22, 1965, and recognized by the Bureau of Indian Affairs. It has a membership [**157] roll of 986 approved by a representative of the Secretary of the Interior on March 31, 1973. Additional applications for membership are pending. [FPTO § 3-18]

120. The usual and accustomed fishing places of the Quinault people within the case area at treaty time included the following rivers and streams: Clearwater, Queets, Salmon, Quinault (including Lake Quinault and the Upper Quinault tributaries), Raft, Moclips, Copalis, and Joe Creek. Ocean fisheries were utilized in the waters adjacent to their territory. [Ex. USA-53, p. 24 and App. 1; USA-31e, pp. 205-214, 233-235A]

121. The Quinault also have important fisheries which were shared with other tribes to the south and east of the [*375] boundaries of the case area, especially Grays Harbor and those streams which empty into Grays Harbor. [Ex. USA-53, p. 24 and App. 1 and 2; Tr. 2817, l. 3 to 2818, l. 19]

122. At treaty time fishing constituted the principal economic activity of the Quinault. Salmon and steelhead served as the principal food and as an important item of trade. [Ex. USA-53, p. 24] In the immediate post-treaty period (1860) the government Indian agent recommended that the Quinault Indians be [**158] encouraged to open a trade in their salmon as they could be more profitably employed in that way than in agricultural pursuits. [Ex. PL-41, p. 420; Ex. PL-42, p. 391]

123. The lower portions of the Quinault and Queets Rivers run through the Quinault Reservation. There are tribally managed commercial and sports steelhead fisheries within the reservation and a non-Indian-managed recreational fishery for steelhead outside and above the reservation on these rivers. The steelhead resource on these rivers has been maintained without Game Department stocking. The Game Department has not stocked the Quinault and Queets systems because of limitations in their hatchery program and because of opposition by sportsmen's groups, among other reasons. [FPTO § 3-474; Tr. 314, l. 20 to 316, l. 15; Tr. 3475, l. 5-21]

124. The Quinault Tribe has had regulations on its river fisheries since 1916 and tribal fish patrolmen since 1925. [Tr. 3438, l. 21 to 3440, l. 5] The tribe has on occasion closed its waters to all fishing and prohibited certain types of gear in order to conserve fish runs. [Tr. 3440, l. 25 to 3441, l. 14; Tr. 3445, l. 12 to 3446, l. 2] The [**159] Quinault Tribe has not had off-reservation fishing regulations because few of its members fish off-reservation in the case area. [Tr. 3475, l. 22 to 3476, l. 4] Presently only 30 to 40 per cent of the on-reservation fishing sites on the Quinault River are being used. [Tr. 3455, l. 22 to 3457, l. 17] Any apparent decline in the Quinault sockeye run is probably not due to overfishing by the Quinault Tribe. [Tr. 3530, l. 18 to 3532, l. 17; Tr. 3551, l. 25 to 3552, l. 21; Exs. QN-4, QN-5, QN-6 and QN-7]

125. The Quinault Tribe and the tribal technical staff of fisheries scientists and technicians are presently engaged in a comprehensive fisheries management and enhancement program on the reservation. The program includes the production of sockeye, chum, and steelhead from eggs taken by tribal employees, and the cleaning of streams damaged by logging to recover spawning grounds on the reservation. [Ex. QN-2 and Appendices thereto; Ex. QN-3, pp. 1-11]

126. No special off-reservation fishing season for Quinault Indians has ever been or presently is allowed by the State even though such a season was proposed to the State by tribal officials. [Tr. [**160] 3476, l. 20 to 3477, l. 22]

127. The Quinault Tribe successfully manages its river steelhead run such that both a net commercial and a hook and line sport fishery operate side by side and these uses are not incompatible under the tribal management. [Ex. QN-3, p. 8, l. 17 to p. 9, l. 14; Tr. 315, l. 6 to 316, l. 15]

128. The Quinault Tribe is, biologically speaking and from an enforcement standpoint, effectively managing its fisheries resources on the reservation, and is capable of doing so outside of the reservation. [Tr. 3488, l. 9 to 3490, l. 14; Tr. 3553, l. 25 to 3555, l. 5]

Sauk-Suiattle Tribe

129. The Sauk-Suiattle Tribe is composed primarily of the descendants of the Sakhumehu and other Indians who lived on the upper reaches of the Skagit River system in 1855. [FPTO § 3-85; Ex. USA-29, p. 12; Ex. USA-58; Ex. UPS-2] Those Indians were party to the Treaty of Point Elliott. [Ex. USA-29, p. 9; Ex. UPS-2, pp. 19-21] A Sakhumehu village was located at the confluence [*376] of the Sauk and Skagit Rivers. [Ex. USA-58] The Sakhumehu Indians are named in the preamble to the Treaty of Point Elliott; and one of the treaty [**161] signatories is identified as a Sakhumehu. At treaty time the Sauk River Indians, who were known variously as Sock-a-muke, Sakhumehu or Sock a bute, regarded themselves as a distinct and separate group and were so regarded by other Indians and by non-Indians. Their separate identity was consistently recognized in reports referring to them before, during and after the Treaty. Prior to and during treaty times these Indians intermarried to a considerable extent with the Upper Skagit and Stillaguamish Indians. After treaty times some of the Sauk River Indians continued to live along the Sauk and Suiattle Rivers where their descendants still reside. [FPTO § 3-85; Ex. USA-29]

130. No separate reservation was established for a Sauk-Suiattle Tribe in their area. They were permitted to move to reservations established in the general vicinity; and the majority who moved to a reservation moved to the Swinomish Reservation, but most remained in their aboriginal area. The Sauk-Suiattle Tribe is organized and incorporated under the State of Washington Nonprofit Corporation Act (RCW 24.03) and is not organized pursuant to any federal law. [FPTO § 3-19; Ex. PL-64] The Tribe is recognized by [**162] the federal government, but its membership roll has not been approved by the Secretary of the Interior or his representative. [Exs. USA-43, pp. 19, 41; USA-44, pp. 2, 36] The Tribe has approximately 250 members. [Ex. F-30, Sauk-Suiattle Tribe Answer to Interrogatory 44]

131. The usual and accustomed fishing places of the Sauk River Indians at the time of the treaty included Sauk River, Cascade River, Suiattle River and the following creeks which are tributary to the Suiattle River -- Big Creek, Tenas Creek, Buck Creek, Lime Creek, Sulphur Creek, Downey Creek, Straight Creek, and Milk Creek. Bedal Creek, tributary to the Sauk River, was also a Sauk fishing ground. [Ex. USA-29, p. 13; Ex. MS-10, p. 3, l. 1-6]

132. During treaty times the Sauk River Indians took fish with spears, dip nets, traps and weirs. They procured salmon and steelhead in their up-river region and also traveled to the saltwater to procure marine life unavailable in their own territory. They ate salmon and steelhead in both fresh and cured forms. [FPTO § 3-88] In modern times the Sauk-Suiattle Indian fishermen, numbering only about thirty, have not fished commercially and are primarily interested in [**163] a personal use fishery. [Ex. F-42, p. 5, l. 4-11 and l. 21 to p. 6, l. 4, p. 8, l. 24 to p. 9, l. 2, p. 10, l. 12-17, p. 16, l. 20 to p. 17, l. 2]

Skokomish Tribe

133. The Skokomish Tribe is, with respect to the matters that are the subject of this litigation, a political successor in interest to some of the Indian tribes or bands which were parties to the Point No Point Treaty. It also includes descendants from some Indians to whom the Medicine Creek Treaty was applicable. It is recognized by the United States as a currently functioning Indian tribe maintaining a tribal government on the Skokomish Indian Reservation. This tribe is organized pursuant to section 16 of the Indian Reorganization Act of June 18, 1934, and is incorporated under section 17 of that Act. Its membership is determined in accordance with its Constitution and Bylaws approved by the Assistant Secretary of the Interior on May 3, 1938, as amended January 12, 1966. Its present membership roll was approved by a representative of the Secretary of the Interior on May 22, 1973. The tribe presently has approximately 416 members. [FPTO § 3-20; Ex. PL-62]

134. The Skokomish Tribe [**164] is composed primarily of descendants of the Skokomish and Too-an-ooch who at treaty times lived in the drainage area of Hood Canal. Those two groups were [*377] named in the preamble of the Treaty of Point No Point. At that time the two names were used to describe the communities of the upper and lower portions of Hood Canal respectively. These groups were different segments of the Too-an-ooch or Twana group. [FPTO § 3-89; Ex. USA-23, p. 21] After the treaty all Indians of the Hood Canal drainage system, except the Port Gamble Reservation of Clallam Indians, have been referred to by the United States Government as Skokomish. [Ex. USA-23, p. 21]

135. Fishing was the most important food acquisition technique of the Twana Indians during treaty times, and salmonid fish (king, silver, humpback and chum salmon and steelhead) were one of their important sources of food. These fish were eaten fresh, were dried and were smoked for winter use. [FPTO § 3-90] Prior to and during treaty times the Twana Indians accumulated food surpluses with which they supplied feasts for invited guests from as far away as Carr Inlet and Vashon Island to the east and Satsop country to the southwest. [**165] [FPTO § 3-91; Ex. USA-23, p. 20]

136. Prior to and during treaty times the Twana Indians located villages for easy access to fishing stations. They took salmon and steelhead in saltwater areas by trolling, spearing and netting, and in freshwater areas by single dam and double dam weirs and similar types of traps. They maintained at least three important weir sites on the Skokomish River during the 1850's. The principal signatory of the Treaty of Point No Point for the Skokomish was in charge of an important weir on the Skokomish River. During treaty times the Twana Indians periodically removed lattice sections of their weirs, thus permitting fish to escape upstream to spawn. [FPTO § 3-92; Ex. USA-23, p. 4]

137. The usual and accustomed fishing places of the Skokomish Indians before, during and after treaty times included all the waterways draining into Hood Canal and the Canal itself. Saltwater trolling and spearing were less important than river fisheries. [Exs. USA-20, p. 33; USA-23, pp. 18-22; Ex. PL-42, pp. 389-390; Ex. USA-31e, pp. 238-244]

138. The Skokomish Indians, despite the fact that they could increase fishing effort on their reservation by utilization of fishing [**166] sites not in use, have not in recent years cropped the entire available harvestable portion of the coho run even when asked by the Department of Fisheries to fish harder. [Tr. 2596, l. 4-19; Ex. F-28, p. 5, l. 8-10; Tr. 3872, l. 13-18; Ex. PL-77; Ex. PL-81] It is possible, and in the interest of full use of the resource consistently with conservation, to allow a greater Skokomish Indian fishery, off-reservation in the saltwater areas, on the Skokomish River coho runs than the State presently allows. [Tr. 3872, l. 13 to 3874, l. 12]

Squaxin Island Tribe

139. The Squaxin Island Tribe is the present day tribal entity which, with respect to the matters that are the subject of this litigation, is a political successor in interest to some of the Indian tribes or bands which were parties to the Medicine Creek Treaty. It is recognized by the United States as a currently functioning Indian tribe maintaining a tribal government on the Squaxin Island Reservation. This tribe is organized pursuant to section 16 of the Indian Reorganization Act of June 18, 1934. Its membership is determined in accordance with its Constitution and Bylaws approved by the Secretary of [**167] the Interior July 8, 1965. It has a membership roll approved by a representative of the Secretary of the Interior on April 24, 1971. Its current membership is approximately 175. [FPTO § 3-21; Ex. PL-63]

140. The Squaxin Island Tribe is composed primarily of descendants of the original inhabitants of all the inlets of upper Puget Sound from South Bay on Henderson Inlet around the head of the Sound to North Bay on Case Inlet. Included within this area are: Henderson, [*378] Budd, Eld, Totten (including Big and Little Skookum), Hammersley, and Case Inlets. The Indian inhabitants of these inlets were listed separately by local group name in the preamble to the Treaty of Medicine Creek as follows and were included in that treaty: Squawksin, Steh-chass, T'Peeksin, Squi-aitl, and Sa-heh-wamish. Pursuant to the Treaty these Indians were relocated on the Squaxin Island Reservation and thereafter were dealt with by the United States as a separate and collective entity under the name "Squaxin" (spelled variously). [FPTO § 3-95; Ex. USA-24, pp. 17-18]

141. During treaty times the Squaxin Island Indians fished for coho, chum, chinook, and sockeye salmon at their usual and accustomed [**168] fishing places in the shallow bays, estuaries, inlets and open Sound of Southern Puget Sound and in the freshwater streams and creeks draining into those inlets. Customary use patterns varied according to the types of water areas, with freshwater fisheries being controlled by the residents while the deeper saltwater areas were open to anyone who traveled thereon. Their fishing techniques included trolling, stream weirs, spearing and tidal traps. These Indians continued to fish these areas following their relocation on the Squaxin Island Reservation and to rely in part on fishing for subsistence and monetary income. Salmon fishing and the fishing areas used by their predecessor bands continue to be important to members of the Squaxin Tribe. [FPTO § 3-98]

142. Through agreement with the Department of Fisheries, the Squaxin Island Tribe has closed fishing on the small streams outside the Squaxin Island Reservation to protect the salmon spawning areas and the tribal fishermen have shifted their treaty fishing into Puget Sound marine areas under a special Fisheries Department season. [FPTO § 3-603; Ex. JX-2a, App. II, pp. 316-317] The tribe has adopted fishing regulations similar [**169] to the off-reservation regulations of the Department of Fisheries, and the tribe feels its own regulations are reasonable and necessary for conservation. [Ex. JX-2b, pp. 39-41; Tr. 1048, l. 17 to 1049, l. 7; Tr. 2488, l. 7-15]

143. The Squaxin Island Tribe, with the cooperation of the Department of Fisheries, maintains a rearing program for chinook and coho salmon. It has grown in three years from four floating pens, each twelve feet square, to ten floating pens, each sixty feet square, and from 250,000 to 750,000 fish. The fish, provided in large part by the Department of Fisheries, are raised by the tribe and sold commercially. Some are released into the Sound for the benefit of all fishermen. [Tr. 2485, l. 18 to 2486, l. 12; Tr. 2493, l. 6 to 2496, l. 11]

Stillaguamish Tribe

144. The Stillaguamish Tribe is composed of descendants of the 1855 Stoluch-wa-mish of the Stoluch-wa-mish River. The population in 1855 resided on the main branch of the river as well as the north and south forks. The Stillaguamish were believed to number about 200 people in 1855, but the actual number may have been over double that figure. The name Stillaguamish, under [**170] various spellings, has been used since about 1850 to refer to those Indians who lived along the Stillaguamish River and camped along its tributary creeks. [Ex. USA-28, pp. 1, 23] They were a party to the Treaty of Point Elliott and are referred to in the preamble of that treaty under the spelling "Stoluck-wha-mish". [Ex. USA-28, p. 15; Ex. PL-65; Ex. G-4, p. 179; Tr. 2415, l. 22 to 2416, l. 9] No signatory is identified as belonging to that group, but they were designated as subordinate to Patkanam who signed the treaty as head chief for the Snoqualmoo and associated tribes. [Ex. G-4, p. 179; Ex. USA-28, pp. 15, 23]

145. No separate reservation was established for the Stoluch-wha-mish Indians. They were allowed to move to reservations established in the general area [*379] near them and some moved to the Tulalip Reservation, but the majority remained in the aboriginal area along the Stillaguamish River. The membership of the Stillaguamish Tribe is determined in accordance with the tribal Constitution and Bylaws which have been approved by the tribe but have not been approved by a representative of the Secretary of the Interior. [FPTO § 3-22; Ex. USA-28, p. 23] [**171] The Stillaguamish Tribe is not recognized as an Indian governmental entity by the federal government. Its enrollment has not been approved by the Secretary of the Interior or his representative and the tribe does not have a reservation. [Exs. USA-43, pp. 21-2, 31; USA-44, pp. 2, 36] The Stillaguamish Tribe presently has about 94 members. [Ex. MS-7, p. 4, l. 1-2]

146. During treaty times and for many years following the Treaty of Point Elliott, fishing constituted a means of subsistence for the Indians inhabiting the area embracing the Stillaguamish River and its north and south forks, which river system constituted the usual and accustomed fishing places of the tribe. Salmon and steelhead were eaten in both fresh and cured form. These Indians had names for four or five species of salmon, steelhead and other indigenous fish. They took salmon and steelhead by spearing, harpooning, traps and weirs (with dip nets) at various places in those watercourses. The Stillaguamish Indians still consider fishing as a source of food today, and are interested primarily in a personal use fishery. [FPTO § 3-100; Exs. USA-20, p. 38; USA-28, p. 23; Ex. F-43, p. 7, l. 5-17; Tr. 2714, [**172] l. 2-17]

Upper Skagit Tribe

147. The Indian Claims Commission determined, in The Upper Skagit Tribe of Indians v. United States of America, Docket No. 92, 8 Ind. Cls. Comm. 475, 476-77, 491, that the Upper Skagit Tribe is the successor in interest to the rights of an identifiable group of American Indians identified as ten separate villages on the Upper Skagit and Sauk Rivers in treaty times and subsequently known as "the Upper Skagit Tribe". These antecedents of the Upper Skagit Tribe were signatory parties to the Treaty of Point Elliott. [Ex. G-17(l), p. 477; Ex. G-4, p. 180] No separate reservation was established for the Upper Skagit Indians in their area. They were permitted to move to reservations established in the general vicinity. Most of those who moved to a reservation moved to the Swinomish Reservation, but the majority remained in their aboriginal area. The membership of the Upper Skagit Tribe is determined in accordance with Articles of Association adopted in 1962. The tribe is not organized pursuant to any federal law. [FPTO § 3-23; Ex. UPS-2] No enrollment has been approved by the Secretary of the Interior or his representative. [FPTO § 3-23; Ex. UPS-2; [**173] Exs. USA-43, pp. 24, 31; USA-44, pp. 2, 36] The tribe has approximately 500 members. [Tr. 3254, l. 4-7]

148. At treaty time, the usual and accustomed fishing places of the Upper Skagit Tribe included numerous areas along the Skagit River, extending from about Mt. Vernon upstream to Gorge Dam. [Tr. 3272, l. 25 to 3276, l. 17] Today the tribe has about thirty fishermen, interested primarily in a subsistence fishery. [Tr. 3254, l. 8 to 3255, l. 1]

Yakima Nation

149. The historical background information concerning the Yakima Nation, as shown by the written testimony (Exhibits Y-13 and Y-26) and oral testimony of Yakima tribal members educated in Yakima history and customs by tribal elders, was not controverted in the evidence and is found by the court to be reasonable and credible factual data regarding relevant aspects of Yakima Indian life at and prior to treaty time, including the Yakima treaty council and the intentions and understandings of the Indian representatives there present.

[*380] 150. The Yakima Nation is a party to the Treaty with the Yakimas. [Ex. Y-6] It is recognized by the United States as a currently functioning Indian tribe [**174] composed of the tribes and bands consolidated into the Yakima Nation by that treaty and maintaining a tribal government on the Yakima Indian Reservation, located in South Central Washington. Its membership is determined in accordance with the provisions of the Act of August 9, 1946, 60 Stat. 968, 25 U.S.C. §§ 601-607 [Ex. Y-7] and its membership roll is kept current and is approved by a representative of the Secretary of the Interior. It presently has approximately 6,040 enrolled members. [FPTO § 3-24; Ex. Y-13, p. 2, l. 30 to p. 3, l. 12; Tr. 3292, l. 19 to 3294, l. 2]

151. In the main, at the time of the treaty, the Indians who were parties to the Yakima Treaty lived in a food gathering culture. They existed on game, fish, roots, berries and some cultivated vegetables. Of these foods fish was a major food and they landed salmon, steelhead, trout, mussels, eel, and other miscellaneous fish. Salmon, however, both fresh and cured, was a staple in the food supply of these Indians. It was annually consumed by these Indians in the neighborhood of 500 pounds per capita. Circumstances necessitated that large quantities of fish, fish oil, roots and berries be cured in [**175] adequate quantities to insure a sufficient and balanced diet for those periods of the year when the fresh supply of these commodities was not available. Quantities of fish in considerable numbers were preserved for future use through smoking and drying. The choice of the method depended on the climatic conditions and the availability of firewood. It was customary for these Indians to manufacture pemican. This was accomplished by pounding the dried strips of fish until quite fine and packing the resultant mass in containers lined with fish skin. In this process oil was used where available and the oil from male steelhead was used for this purpose. Because of the monotony of this fish diet, variety in the kind of salmon and other fish caught was a desired goal. [FPTO § 3-102]

152. With the exception of the spear, gaff and like gear which to a great extent depended on the skill and dexterity of the individual operator, methods used by the Yakima Indians to land salmon and steelhead were very efficient. These Indians used traps, weirs, nets, gill nets, baskets, and seines to land salmon and steelhead. They were proficient in the manufacture of strong twine from native materials. [FPTO [**176] § 3-103]

153. Indians from the Yakima Nation and particularly those from the Yakima, Klickitat, Wenatchee, Columbia, Chelan, Entiat, and Kittitas aboriginal groups communicated continually with the tribes on Puget Sound by the use of the Snoqualmie, Naches and Stevens Passes as weather permitted. This continual communication created bilingualism, custom interchange, intermarriage, and utilization of the natural resources in the Puget Sound area. In the main this communication and intermarriage was with the tribes now considered Nisqually, Puyallup, Muckleshoot and Snoqualmie. [FPTO § 3-104] The Yakimas in the Puget Sound area were intermarried as far north as the Skokomish and controlled them to a certain extent. Gibbs in his treaty time census placed approximately 400 Yakimas in the case area. [Exs. Y-15a and Y-15b; Tr. 2132, l. 10 to 2133, l. 10]

154. At the time of the treaties the Indians of the Yakima Nation used fisheries located in the Puget Sound area for the purpose of obtaining salmon and steelhead primarily for their use. [Ex. F-35, p. 9, l. 10 to p. 10, l. 14; p. 11, l. 15-19; p. 13, l. 3-7] Some of these fish taken by Yakimas were consumed [**177] by them and some were traded to other Indians. [Ex. Y-13, p. 9, l. 7-9; Tr. 3299, l. 4-7] They took these fish there by the consent of the tribes in that region. Since there was more intermarriage and communication with those Indians now called Nisqually, Puyallup, Muckleshoot, and Snoqualmie, [*381] fisheries in their area of residence were more commonly used by members of the Yakima Indian Nation. These fisheries in the area of this case's inquiry included the waters of the Snoqualmie, Snohomish, Green, Puyallup, Nisqually, Stuck, Duwamish, White, Carbon, and Black Rivers and their tributaries. [FPTO § 3-105]

155. There had been little non-Indian contact with the Yakimas prior to the treaty negotiations. [Ex. Y-26, p. 7, l. 4 to p. 8, l. 24] The Indians who were subsumed into the Yakima Nation spoke three different languages, Sahaptin, Salish and Chinookan and had many dialects within the two principal language groups. [Ex. Y-26, p. 7, l. 9-13] The treaty negotiations were translated from English or one of these three groups or numerous dialects into Chinook jargon [Ex. Y-26, p. 9, l. 9-10; Ex. D-1, p. 24, l. 26-30] which has a limited [**178] vocabulary and contained none of the words "citizens", "territory", "state", "regulations", "commercial", and "usual and accustomed". [Ex. Y-21; Ex. G-29(a); Tr. 3393, l. 11 to 3394, l. 1] This jargon was used principally for trade purposes and was inadequate to convey the legal concepts involved. [FPTO § 3-37]

156. At the treaty council the United States negotiators promised, and the Indians understood, that the Yakimas would forever be able to continue the same off-reservation food gathering and fishing practices as to time, place, method, species and extent as they had or were exercising. [Ex. Y-13, p. 8, l. 6-15; Ex. Y-26, p. 8, l. 29 to p. 9, l. 8; Tr. 3295, l. 16 to 3297, l. 8] The Yakimas relied on these promises and they formed a material and basic part of the treaty and of the Indians' understanding of the meaning of the treaty. [Ex. Y-13, p. 8, l. 16-23]

157. After the treaty was concluded, the Yakima Indians continued to fish as they had. During territorial times officials of the United States and Washington Territory took the position that the off-reservation fisheries were those the Yakima Indians had exercised at treaty or pre-treaty [**179] times. These officials took the position that the words of the treaty reserved to the Yakima Indians "the right to enjoy all of these fisheries as they had heretofore." [Ex. Y-23, p. 10] The Supreme Court of Washington Territory not only sustained this interpretation of the treaty but took notice as a matter of common knowledge that the Yakima Indians were "tenacious" in adhering to these past customs and traditions. [Ex. Y-23, p. 10]

158. The Yakima Indians have continued to assert their off-reservation fishing rights, [Tr. 611, l. 21 to 612, l. 4 and l. 14 to 615, l. 15] including fisheries in the case area. [Tr. 3321, l. 10-18] The salmon and steelhead landed were consumed or sold commercially. [Ex. Y-13, p. 9, l. 13-16] Arrests of Yakima Indians in the case area since 1966 have caused Yakima fishermen to decrease their fishing effort in that area. The Yakima Nation has not encouraged its fishermen to fish in the case area as time and money limitations would not allow the tribe to protect its fishermen from conviction though the tribe's efforts had been successful as regarded other state arrests. [Ex. Y-13, p. 9, l. 15 to p. 10, l. 7] [**180]

159. The Yakima Nation has promulgated fishing regulations for its members in areas east of the Cascade Mountains but has no fishing regulations within the case area. [Ex. JX-2b, pp. 54-61; Tr. 3302, l. 22-24] The Yakima off-reservation fisheries in the Columbia River area are regulated. Prior to 1953, and thereafter in areas where the fishing was not intensive, regulation was by Indian leaders at the site. [Ex. Y-13, p. 10, l. 12 to p. 11, l. 1; Tr. 3307, l. 12 to 3308, l. 19] Since 1953 the Yakima Nation has regulated by written regulations. [Ex. Y-13, p. 11, l. 4-12] These regulations provide for annual review, emergency closures, off-reservation enforcement and identification cards. [Tr. 610, l. 6 to 611, l. 18; Tr. 3291, l. 15 to 3292, l. 22] Untended fishing gear is identified by tags issued by the Yakima Nation. [Tr. 3328, l. 25 [*382] to 3329, l. 6] The Yakima Nation, through its Tribal Council and its Fish, Wildlife, Law and Order Committee, which has an annual budget currently exceeding $400,000.00, gathers biological and other information with assistance from federal biologists, and holds meetings with its fishermen [**181] and others interested before setting seasons or passing other conservation regulations. [Ex. Y-13, p. 2, l. 5-24, p. 11, l. 13-16; Tr. 1618, l. 3 to 1619, l. 6; Tr. 3300, l. 8 to 3301, l. 10] The tribal regulations are enforced by a large law and order department. [Ex. Y-26, p. 2, l. 10-29]

160. The Yakima Nation expects its fishermen to respect the regulations of the tribes in the case area. [Ex. Y-13, p. 11, l. 19-24] Should further regulation be necessary the Yakima Nation has expressed its intent to confer with other tribes in the area for the purpose of joint regulation, but if the latter did not protect the fishery then the Yakima Nation's expressed intention is to enact conservation regulations of its own covering the case area. [Tr. 3303, l. 18 to 3305, l. 5] It is likewise the expressed policy of the Yakima Nation in its scheme of regulation to provide for commercial, subsistence and ceremonial landings of salmon and steelhead by net where the fishery will sustain the pressure. Where in the tribe's opinion the fishery will not sustain the pressure, it is the announced policy of the tribe to provide for the following priorities: [**182] 1) ceremonial landings; 2) subsistence landings; and 3) commercial landings. [Tr. 956, l. 1 to 957, l. 17] The Yakima Nation has had successful experiences in joint tribal regulation on the Columbia River [Tr. 3329, l. 7-23] and joint regulation with the state and federal government on the Klickitat River. [Ex. Y-13, p. 11, l. 25 to p. 12, l. 4]

161. Yakima landings for at least ceremonial and personal use in the case area can take place without jeopardizing the continued existence of the fish resource. [Tr. 957, l. 25 to 958, l. 12; Tr. 959, l. 13 to 960, l. 5] Yakima tribal regulation of Yakima fishermen at usual and accustomed places in the case area is a matter of genuine interest to the tribe. [Tr. 295, l. 1-9; Tr. 960, l. 6-23]

162. The Yakimas continue as a religious rite not only the first salmon ceremony but the basic, undying salmon culture existing in this northwest area, and this religious concept of the interdependence and relatedness of all living things is a dominant feature of their life-style. [Ex. Y-13, p. 7, l. 1-23; Tr. 3297, l. 9-15; Tr. 3352, l. 17 to 3353, l. 2; Tr. 3402, l. 7-10] [**183]

163. The Yakima Indians have been and continue to be very dependent on anadromous fish to sustain their way of life. [Ex. Y-13, p. 13, l. 25 to p. 14, l. 2; Ex. Y-10, pp. 31-36; Ex. Y-12, pp. 12-16] They live close to the poverty level and have not reached economic or social parity with non-Indian citizens of the State of Washington. [Ex. Y-13, p. 4, l. 13 to p. 5, l. 20; Ex. Y-10, pp. 16-26; Ex. Y-9, pp. 2-8; Ex. Y-8, pp. 1-4] Anadromous fish are vital to the Indians' diet with approximately 2,000 of the enrolled members fishing for personal consumption. Approximately four hundred tribal members fish commercially for the most part in the Columbia River area, with only about five Yakima commercial fishermen in the case area. [Tr. 3340, l. 5-11]

GENERAL FISHERIES CONSERVATION AND MANAGEMENT

164. A great many of the biological, fisheries management, and fisheries harvest facts relevant to the issues in this case are set out in Exhibits JX-2a and JX-2b, which are an extensive Joint Statement Regarding the Biology, Status, Management, and Harvest of the Salmon and Steelhead Resources of the Puget Sound and Olympic Peninsular Drainage Areas of Western Washington [**184] dated May 14, 1973, prepared for this case by staff biologists of the Washington Department of Fisheries, the United States Fish and Wildlife Service, and the Washington Department of Game. The contents of said report are hereby [*383] incorporated by reference as Findings of Fact herein. [FPTO § 3-400]

165. On June 16, 1973, the United States exercised its right to terminate the recognition given to Canadian fishermen to fish in the contiguous zone (established by 16 U.S.C. §§ 1091-1094) off the coast of Washington south of Carroll Island located at approximately 48 degree north latitude. (Cf. Ex. JX-2a, § 2.12, pp. 100-101) [FPTO § 3-401]

166. The principal river systems, marine waters and Indian reservations in the case area are depicted on the base map (Exhibits JX-1a and 1b and JX-2a, p. ii). There are numerous lesser streams that are important producers of salmon and steelhead. Many of these are depicted on Exhibit F-71. [FPTO § 3-400; Ex. JX-2a, § 1.2, pp. 9-12; Tr. 749, l. 24 to 774, l. 18; Tr. 3592, l. 11 to 3593, l. 8]

167. Under Washington State law the protection and management of those fish which the State has classified as food fish [**185] is under the jurisdiction of the Department of Fisheries headed by a director who is appointed by and serves at the pleasure of the Governor. Salmon are classified as food fish under current Washington law. The Defendant Thor C. Tollefson is the Director of the Fisheries Department, and as such is vested with the authority to exercise all of the powers and duties of that department, including the authority to issue regulations pursuant to state laws and to enforce said laws and regulations. [FPTO § 3-25; Ex. JX-2a, § 2.5, p. 67]

168. Under Washington law, the protection and management of those species of fish which the state has classified as game fish is under the jurisdiction of the Department of Game which consists of the State Game Commission and the Director of Game. [FPTO § 3-26; Ex. USA-39, p. 1; RCW 77.04.020] The Game Commission is the entity which has the authority to adopt rules and regulations governing the time, place and manner of taking game fish. [Ex. USA-39, p. 8; RCW 77.12.040] The Game Commission consists of six part-time commissioners having the qualifications prescribed by RCW 77.04.040 appointed for staggered six-year terms by the Governor. Three commissioners [**186] must come from west of the Cascade Mountain summit and three from the east of that summit. The director is appointed by and serves at the pleasure of the Commission. Defendant Carl Crouse is the Director of the Department of Game. Steelhead are classified as game fish under current Washington law. [FPTO § 3-26] In 1925 the state legislature declared steelhead a game fish when taken in fresh water. Previously state fisheries legislation had defined "salmon" as including steelhead. After 1925 the State imposed progressively greater restrictions on the commercial dealings in steelhead and in 1933 steelhead came under the full protection of the State Game fish regulations. [Ex. JX-2a §§ 2.3.1 and 2.3.2, pp. 60-63; Ex. PL-2, pp. 164, 168; Ex. G-15, p. 3, l. 25-32]

169. Fisheries management takes into consideration both the resource itself and the objectives and needs of the societies which control and seek to utilize it. The commercial, sport and Indian fisheries are managed for different use objectives and user interests. Accordingly, the objectives of fisheries management vary in accordance with the purposes and constituency for which the particular fishery is being managed. [**187] Commercial fisheries are managed to achieve a maximum sustained yield in terms of food and economic profit, whereas sport fisheries are managed to obtain a maximum sustained recreational experience and a high yield of personal use food and "trophy" product. The Indian tribes have as their primary use objectives the fostering of Indian economic well-being, the preservation of Indian cultural heritage and way of life, and the provision of a significant element of Indian diet. [Ex. JX-2a, § 2.1.0, pp. 47-48]

170. Although the need for management of the fisheries resource, and the [*384] methods used, depend upon biological analyses, the actual techniques, like the ultimate objectives, involve political and economic considerations. [Ex. JX-2a, § 2.2.5.3, p. 58] Similarly, economic and political considerations are also used to determine who will harvest varying portions of the resource. The Department of Fisheries recognizes that Indians are a user group with legitimate interests in the fisheries. [Tr. 799, l. 2 to 801, l. 6; Ex. PL-89] One method, which is favored by some fisheries biologists, of providing an acceptable measure of balance between resource users is [**188] to limit entry into the commercial salmon fisheries. However, the Washington legislature has not authorized this. [Ex. PL-89]

171. The anadromous fishery resource is both perishable and renewable. Thus, while an over-harvest would impair its renewability, an under-harvest during a limited time it is available would result in an irreplaceable waste of the resource. [Ex. JX-2a, § 2.1.0, p. 47] In addition to being wasteful, over-escapement of fish on the spawning ground can impair the renewability of the resource by causing a condition called "superdeposition" where the last fish that comes in and spawns either spawns directly over the first brood of eggs that were in the redds, or digs them up. Superdeposition can destroy eggs outright and also increase the susceptibility to disease of the eggs remaining. [Tr. 859, l. 21 to 860, l. 15] Salmon and steelhead frequently spawn in the same areas of the various river systems. [FPTO § 3-453]

172. Managing the commercial fishery for maximum sustained profit requires, among other things, that the harvest occurs near the time when the available "crop" has obtained maximum bulk and quality. These do not necessarily coincide [**189] in time and place. Thus the proper time for commercial harvest corresponds most nearly to the relatively brief period of time when the fish are full grown and returning to or entering their natal stream to spawn. Net fishery seasons permit the efficient taking of mature or nearly mature fish for commercial purposes during this time period only. [Ex. JX-2a, § 2.1.1, p. 48]

173. Managing sport fisheries for maximum sustained recreation requires providing ample opportunities for fishing. Long seasons, economically and geographically accessible waters, and high catches per individual effort all increase recreational yield. Feeding and growing salmon in the ocean and Puget Sound are of greatest recreational value because they are vulnerable to sport gear over long periods. On the spawning migration route from their saltwater feeding areas, full-grown salmon are available to anglers for only a short period of time. Feeding activity of these latter fish diminishes or ceases as they complete their saltwater migration period. The efficiency of angling gear is then measurably decreased. In some Puget Sound areas where salmon are in or approaching their natal estuary, the catch rate is commonly [**190] one-tenth that of the ocean fishery. In contrast to salmon, steelhead actively feed throughout their entire migration route and are readily available to sport gear in freshwater areas. They are not generally taken by sport gear in saltwater. [Ex. JX-2a, § 2.1.2, pp. 48-49]

174. Management for Indian objectives is closer to commercial management than to sport inasmuch as pursuit of an economic livelihood and the efficient procurement of a food supply are major purposes. In addition, salmon and steelhead have special significance in the religious and cultural mores of the Indian people. Because of traditions, treaty provisions, and location of Indian communities, the Indian fisheries are largely place-oriented. Management for Indian fishery objectives must consider this factor. [Ex. JX-2a, § 2.1.3, pp. 49-50]

175. The Department of Fisheries has not regarded the salmon sport fishery in Puget Sound and on the ocean as a major regulatory concern, because, as compared with the commercial net fisheries, [*385] the sport fisheries do not need to be managed on a day-to-day basis. [FPTO § 3-581]

176. Among the plaintiff Indian tribes only a few today are active in marine fisheries. [**191] The Makahs and Quileutes have troll fisheries off the coast. The Makahs also pursue both troll and gill net fishing in the Strait of Juan de Fuca. The Lummi Indians use gill nets in Puget Sound. The Squaxin Island Indians conduct gill net fisheries in the saltwater inlets of the mainland near their reservation. [Ex. JX-2a, § 3.3.6, p. 128] Indian river fisheries are currently exercised at the mouths and varying distances upstream from the mouths of coastal and Puget Sound rivers. Among the rivers so utilized are the following: Nooksack, Skagit, Stillaguamish, Green, Puyallup, White, Nisqually, Skokomish, Sekiu, Hoko, Sooes, Waatch, Ozette, Quillayute, Hoh, Queets and Quinault Rivers. [Ex. JX-2a, § 3.3.7, p. 129] Indian river fisheries take place in confined areas where there are concentrated passages of fish which may require careful regulation to protect the run. [Ex. F-28, p. 8, l. 10-15] Where escapement requirements thought necessary by the Department of Fisheries have been achieved, it has been by stringent control of harvest near or in the parent streams. [Ex. JX-2a, § 2.6.2.0, p. 73]

177. From a broad biological and managerial standpoint, conservation of fish [**192] resources means to protect and improve the habitat that produces the resource, to manipulate stocks of fish to achieve necessary spawning escapement so as to maintain, perpetuate and enhance the resource, and to put the harvestable portion of the resource to beneficial use. [Tr. 1049, l. 12-19; Tr. 1472, l. 1-9] This concept of conservation must be considered in the light of the entire regulatory pattern because all harvesting regulations that restrict time, place and manner of taking fish are interrelated in their application to competing user groups. [Tr. 1055, l. 4 to 1056, l. 8; Tr. 1480, l. 6-12; Ex. F-27, p. 4, l. 30 to p. 5, l. 1; Tr. 1476, l. 9-16]

178. Assuring proper spawning escapement is the basic element of conservation involved in restricting the harvest of salmon and steelhead. Once that has been achieved, the regulations on time and manner of fishing are designed to facilitate the harvest of the excess and distribute it among users in a manner consistent with meeting use objectives of the people who are going to harvest. [Tr. 1160, l. 17 to 1165, l. 3; Ex. F-28, p. 35, l. 30 to p. 36, l. 8]

179. Under the present [**193] complex harvest scheme used by the State to manage the fish resource, regulation has three main purposes: 1) to preserve the fish stocks; 2) to attain the maximum sustained yield; and 3) to provide an orderly fishery. To accomplish these purposes, all the runs and races of fish that spawn in the various streams of the Puget Sound and coastal areas should be recognized. In order to regulate effectively, the State finds it desirable to have: 1) accurate catch and escapement statistics on all races; 2) a forecast of run size; 3) estimates of the number of spawners that can be accommodated in the streams used for spawning; and, 4) information on the number of units of gear, their efficiency, and the fishing time needed to make the catch. [Ex. JX-2a, § 2.2.5.0, pp. 54-55]

180. Regulations designed to preserve fish stocks by limiting the harvest to ensure run survival can be grouped into two major categories: 1) those designed to protect selected portions of a stock of fish, and 2) those designed to limit the size of the take. Net restrictions, closed areas, closed seasons and size and weight limits are examples of regulations designed to protect selected portions of a fish stock. Limitation [**194] by quota in a very few special situations, limitation of the number of fishing units, and limitation of gear efficiency are examples of regulations designed to limit the size of catch. [Ex. JX-2a, §§ 2.2.5.0, 2.2.5.1, 2.2.5.2, pp. 55-57]

[*386] 181. It is necessary for the fishing activity of Indians and non-Indians to be regulated in order to assure that conservation of the fishery resource is achieved. [Ex. F-28, p. 4, l. 14-23; Ex. F-35, p. 24, l. 12-26; Tr. 3465, l. 22 to 3466, l. 9] Observance of fishery regulations is important to the achievement of conservation of the resource. A regulation is more likely to be observed if it is simple to understand, reduces conflicts between interest groups, appears fair to, and wins the confidence of, the fishermen. For this reason, regulations which have as their purpose the attainment of an orderly fishery can be helpful in achieving conservation. [Tr. 1092, l. 17 to 1093, l. 15]

182. Salmon run sizes fluctuate from year to year, and it is generally necessary for the conservation of a particular salmon run that the regulation of the harvest on that run take into account the run's size. Catch fluctuations [**195] generally correspond with run size fluctuations. [Ex. F-28, p. 17, l. 3 to p. 18, l. 2; Tr. 1067, l. 10-19; Tr. 1373, l. 13 to 1374, l. 2; Tr. 3583, l. 6 to 3585, l. 6] In order to take run size into account, regulations will be more effective if they are based on estimates of predicted run size, adopted annually, and provide for emergency clauses so that as the runs return the regulations can be made to reflect their actual condition. [Tr. 1374, l. 10-16] Conversely, spawning escapement should be a fixed number of fish and should not fluctuate with varying run sizes. [Tr. 1070, l. 5-23; Tr. 1419, l. 25 to 1420, l. 6; Tr. 1446, l. 19-25]

183. The State does not limit the number of sport fishermen, either resident or nonresident, who may fish for either salmon or steelhead or the number of commercial fishermen who may fish for salmon in waters under its jurisdiction. [Ex. JX-2a, § 2.2.5.2, p. 57; Tr. 172, l. 14-19] In 1971 nearly four times as many persons obtained Washington punch cards to sport fish for salmon as obtained them to sport fish for steelhead. [Ex. JX-2a, § 3.2.7, p. 125, § 3.5.4, p. 137]

184. The State [**196] of Washington, by statute and regulation, has set aside the steelhead for the use and benefit of a special interest category of persons. Its limitations on the means by which, the purpose for which, and the numbers which any person can take of this species are designed to promote the use of this fish solely as a recreational attraction for residents of the state and nonresident tourists. [FPTO §§ 3-428, 3-436, 3-469; Tr. 112, l. 11-23; Tr. 1652, l. 3-13]

185. At the present time, the Department of Fisheries cannot completely control the ocean harvest of chinook and coho salmon because most of these fish are caught in waters beyond the state's jurisdictional three-mile limit. [Tr. 1144, l. 18-25; Tr. 3208, l. 11-13; Tr. 3505, l. 11 to 3506, l. 5; Tr. 3941, l. 21 to 3942, l. 2; Ex. F-32, p. 20, l. 9-13] A restriction on the ocean troll fishery in Washington waters probably would not greatly increase the number of chinook salmon returning to Puget Sound, because Puget Sound chinook salmon migrate north out of the Strait of Juan de Fuca. [Ex. JX-2a, Fig. 7, p. 241] Canadian fishermen, fishing outside Washington territorial waters, are harvesting [**197] an estimated 65 per cent of Puget Sound-origin chinook and over 50 per cent of Puget Sound-origin coho salmon. [Ex. F-28, p. 13, l. 7-15; Ex. F-32, p. 11, l. 4 to p. 12, l. 1; Tr. 3603, l. 1 to 3604, l. 2] Seventy-five per cent of the ocean catch of Olympic Peninsula-origin chinook salmon occurs off the coast of British Columbia and southeastern Alaska. [Ex. JX-2a, § 1.6.2, p. 29] Ninety per cent of the ocean catch of Puget Sound-origin chinook salmon occurs off the coast of British Columbia and southeastern Alaska. [Ex. JX-2a, § 1.6.3, p. 29-30] Fifty per cent of the ocean catch of Olympic Peninsula-origin coho salmon occurs off the coast of British Columbia. [Ex. JX-2a, § 1.6.7, p. 33]

[*387] 186. Exhibits F-7 through F-17 show the average annual distribution of catch in all waters of salmon from rivers on which there are Indian fisheries in the case area, excepting the Quinault and Queets Rivers, for all species in the period 1965-1970 and for pink salmon in the odd years from 1959 to 1969. [Exs. F-7 through F-17; Ex. F-28, p. 32, l. 3 to p. 33, l. 9; Tr. 1180, l. 20-23] On an average the following percentages of harvest from the [**198] respective stocks in these rivers during this period occurred in waters outside the territorial jurisdiction of the State of Washington: chinook, 58.9%; coho, 55.3%; pink, 29.4%; chum, 2.6%. [Ex. F-7] Other than control over fish landings in the State, there are no fish management regulations or practices which the State of Washington can unilaterally employ to effectively control fishing beyond its territorial waters. [Exs. F-32, p. 20, l. 9-13; F-28, p. 12, l. 19 to p. 13, l. 6]

187. Gill net fishing of the type and operation utilized by the Plaintiff tribes is not an inherently destructive means of harvesting salmonids (including steelhead), and it may be regulated and controlled sufficiently to prevent over-harvesting. [FPTO § 3-472; Ex. USA-36, p. 5, l. 18 to p. 6, l. 13] The amount of fish taken in nets may be regulated by regulation of net length, the type of the net, mesh size, the place of fishing and periods for taking. Net fisheries and hook-and-line fisheries can be regulated, from total prohibition to total permission, with all degrees of restrictions in between. [FPTO § 3-438]

188. From a biological standpoint one of the standards for determining [**199] the amount of fishing time to allow an Indian tribe is the anticipated impact of the tribe's fishery on the run. This is influenced by the number of fishermen and amount of gear that will participate. [Tr. 3840, l. 15 to 3841, l. 10] It is estimated by the Department of Fisheries that the following numbers of fishermen fish in the Indian, sport and commercial fisheries in the case area: Indian 794; sport 283,650; commercial 6,600. [Tr. 3645, l. 2 to 3649, l. 17]

189. Because Indian tribes sometimes sell their fish directly to out-of-state buyers, state catch records of Indian catch obtained from fish buyers in the State of Washington will not necessarily show the entire commercial catch taken by Indian fishermen. [Tr. 3478, l. 17 to 3479, l. 5; Tr. 3502, l. 19 to 3504, l. 2]

190. Historically, limitations on the Indians' catch were controlled by: 1) the needs of the relatively small human population; 2) the efficiency of the Indians' fishery as affected by natural phenomena; and, 3) tribal custom and religious commandments. More recently, individual Indian tribes have established written regulations controlling the taking of fish by their members. [**200] Others have practiced limitations without formal written regulations. [Ex. JX-2a, § 2.10.4, p. 97] From time to time each of the Plaintiff reservation tribes has enacted written fishing regulations. These regulations deal with the times, places and manner of fishing. Examples of current tribal regulations are included in Exhibit JX-2b. [FPTO § 3-651] Other examples are contained in Exhibits L-9 and QN-1. [Ex. JX-2a, § 2.10.4, p. 97; Tr. 2997, l. 2-15; Tr. 3487, l. 18-22]

191. Since 1967 the United States Bureau of Indian Affairs has issued identification cards, or approved the issuance of tribal identification cards, co-signed by an authorized Bureau official and tribal chairman, to persons who establish to the satisfaction of both the Bureau official and the tribe that they are members of a BIA-recognized Indian tribe which the Bureau recognizes as having off-reservation fishing rights pursuant to any of the treaties listed in Paragraph 1 above. [FPTO § 3-650; Exs. USA-46c, 46d, 46e, 46f, 46g, 47 and 48; Exs. PL-5 and 48; Ex. USA-54, p. 4, l. 18 to p. 9, l. 23] Regulations issued by the Secretary of the Interior and published in the Code of Federal Regulations [**201] [*388] (at 25 CFR Part 256) require that such cards be carried, and be shown on demand to state, federal or tribal enforcement officers, by any Indian exercising treaty fishing rights outside of Indian reservations. The regulations provide that such cards will be prima-facie evidence that the authorized holder is entitled to exercise the treaty fishing rights specified thereon. In 1967 the Bureau of Indian Affairs notified state authorities, including the Department of Fisheries and the Department of Game, of the procedures concerning the issuance of such cards and has furnished them facsimiles of the BIA cards. The Bureau of Indian Affairs maintains lists of all persons to whom such BIA cards have been issued. Upon specific request from state authorities concerning the Indian status or tribal membership of specific individuals, the Bureau has advised state authorities of the information it has on such status. [Exs. USA-46c, 47, 48 and 54, p. 4, l. 18 to p. 9, l. 23; Tr. 1585, l. 20 to 1586, l. 15; Tr. 1588, l. 1-14; Tr. 1601, l. 2-9]

192. Tribal fishing regulations are not technically reviewed for their content in terms of conservation goals prior to [**202] the time of or as a condition for their approval by the Bureau of Indian Affairs. However, the Bureau has asked the federal Bureau of Sport Fisheries and Wildlife to work with Bureau of Indian Affairs' staff and with the tribes in the review of tribal regulations before they become effective, so that there is some biological input. [Tr. 1607, l. 3 to 1611, l. 2]

193. Enforcement of state fishing laws and regulations against treaty Indians fishing at their usual and accustomed fishing places has been in part responsible for prevention of the full exercise of Indian treaty fishing rights, loss of income to the Indians, inhibition of cultural practices, confiscation and damage to fishing equipment, and arrest and criminal prosecution of Indians. [Tr. 2623, l. 6 to 2633, l. 22; Tr. 2694, l. 12-23; Tr. 2854, l. 24 to 2865, l. 6; Tr. 2876, l. 21 to 2878, l. 4; Tr. 3004, l. 25 to 3012, l. 8; Tr. 3014, l. 4-13; Tr. 3017, l. 9 to 3022, l. 3]

194. In dealing with fishing by members of the Plaintiff tribes in a manner different from that expressly provided in their respective regulations, both the Game Department and Department of [**203] Fisheries have seized nets and other property of those members and have released, confiscated and attempted to prevent the sale and transportation of anadromous fish which are under their respective regulatory jurisdictions and which have been caught by those members. [FPTO §§ 3-5, 3-7]

195. Both the Fisheries and Game Departments have, on several occasions, disposed of or retained for unreasonably long periods of time (often extending over longer periods than one year) boats, nets, whether attended or unattended, or other property of members of the Plaintiff tribes and fish taken from the nets of such members. The tribal members have not been notified of the institution of any proceedings for, or acquisition of, judicial confiscations or forfeitures of said items by the State. [Tr. 604, l. 14 to 605, l. 18; Tr. 625, l. 4 to 627, l. 5; Tr. 2623, l. 6 to 2633, l. 22; Tr. 2657, l. 14 to 2659, l. 10; Tr. 2687, l. 12 to 2688, l. 16; Tr. 2876, l. 21 to 2878, l. 4; Tr. 3195, l. 17 to 3198, l. 16; Tr. 3204, l. 9 to 3205, l. 19]

196. (This Finding of Fact also may be, in part, a Conclusion of Law.) As applied to Plaintiff [**204] tribes and their members, the restrictions imposed by each of the following state statutes and regulations are broader than are necessary for the preservation of the fishery resource: RCW 75.08.260, RCW 75.12.060, RCW 75.12.070, RCW 75.12.160, RCW 77.08.020, RCW 77.12.100, RCW 77.12.130, RCW 77.16.020, RCW 77.16.030, RCW 77.16.040, RCW 77.16.060, WAC 220-20-010, WAC 220-20-015(2), and WAC 220-47-020.

197. The court has fully considered defendant Department of Fisheries' proposed Findings of Fact 111-115, 118-122, 125, 126, 129, 133 and 137, joined in [*389] by defendant Department of Game. These proposed Findings of Fact, which to some extent connote Conclusions of Law, generally reflect opinions, conclusions and judgments of Fisheries' officials regarding the requirements and procedures of an efficient management program for anadromous fish. While most of these proposals appear to be reasonable, general policies or goals, in many instances their factual or legal validity cannot be determined in vacuo, but must await specific factual situations for application. On the present record, this court is not satisfied that these proposed Findings of Fact either are or are not established. [**205] Therefore, subject to the continuing jurisdiction retained in this case, the court reserves ruling on the above-specified proposed Findings of Fact at this time.

DEPARTMENT OF FISHERIES POLICIES AND PRACTICES

198. The Fisheries Department has broadly summarized its objectives as follows:


"1. To conserve and, where possible, expand the primary fishery resources;

"2. To promote optimum use of the fisheries resource by fishermen (commercial, sport, and Indian), the fishing industry, and general public;

"3. To encourage harvesting of the sustainable yield of fish in a manner that provides the greatest return to the economy;

"4. To develop public understanding of the fishery resource, its environment, and the philosophy governing exploitation of the resource, and to maintain public respect for the law."


The Department manages and regulates the harvest of the salmon resource for each of the three distinctive fisheries which it recognizes, i.e., commercial, sport and Indian. The differences in use objectives of these three fisheries dictate that separate management policies be applied to each. [Ex. JX-2a, § 2.5 pp. 67-68] Typically, the special treaty [**206] Indian fisheries are the last of the user groups to take from the run. [FPTO § 3-601]

199. In regulating the various salmon fisheries, the Department of Fisheries compiles and examines daily catch reports, and compares those reports with reports in previous years. If the comparison and other indicia of run size should indicate that the particular run is larger than the Department's predicted run size, the Department generally extends its seasons; if the comparison shows a smaller run, the department takes emergency action to restrict the length of its seasons. [FPTO § 3-580]

200. The Department of Fisheries begins planning its commercial salmon regulations in December preceding the season which opens the following summer. Regulation proposals are prepared in January and it is at that time that it is desirable to have information on the Indian fishery to be undertaken in the forthcoming season. [Tr. 1079, l. 7 to 1082, l. 18; Tr. 1088, l. 19 to 1089, l. 2; Ex. F-5]

201. A principal method of limiting the commercial take from the salmon runs is limitation on the number of days when fishing is permitted. The Department attempts to provide that the number of [**207] days permitted is at the same point in a run, relative to its peaks and low points, such that, if the commercial fishermen in the North Sound are given their days during the time when the run is at its peak in those areas, the Indian fishermen in the rivers are being given their days during the run's peak in the rivers. [FPTO § 3-585] The Department of Fisheries feels it can regulate both commercial and sport fisheries to increase returns to Indian river fisheries to some extent. [Tr. 894, l. 24 to 895, l. 25] For example, the Department of Fisheries has closed East Pass at Vashon Island to commercial fishing. The result of this action has been to increase the salmon run available to treaty Indians [*390] in the Puyallup River by further restricting commercial fishing in the Sound. [FPTO §§ 3-583; 3-599]

202. It is the policy of the Department of Fisheries where there are mixed stocks of fish, one stock of which is in abundance, that it is sometimes in the interest of proper utilization of the total fishery resource to allow a harvest on the mixed stocks in order to prevent waste or overescapement of the abundant stock, even though this harvest may take some fish [**208] from a stock which has no harvestable surplus. In such case a value judgment must be made as to the proper regulatory balance to be stricken. [Tr. 863, l. 16 to 865, l. 16] Puget Sound, and the Columbia River to the extent fish are bound for different tributaries, both have fisheries on mixed stocks. [Tr. 846, l. 23 to 847, l. 7]

203. Wastage of fish and potential harm to other species and to the spawning stock of the same species may occur as a result of overescapement of salmon at spawning grounds. The Department of Fisheries believes that it is not properly managing the salmon resource if fish in excess of the number needed for spawning escape to the spawning grounds. The Department has some capability to utilize the treaty Indian River net fisheries so as to harvest fish which would be surplus to spawning needs. It has utilized this capability in conjunction with the Muckleshoot, Nisqually and Skokomish Tribes. Weather and the physical conditions of the stream limit this capability. [FPTO § 3-605]

204. The Department of Fisheries has authority to impose limitations on the time, place and manner of sport and commercial fishing for salmon in the offshore [**209] areas within the three-mile limit, the Strait of Juan de Fuca and Puget Sound which will effectively increase the size of salmon runs through the usual and accustomed fishing places of the Plaintiff tribes. [FPTO § 3-615]

205. The Department of Fisheries recently has been given power to authorize the moving of fishing gear to places where the Department wants to harvest surplus fish in the rivers and to limit the entry into the fishery so authorized. [FPTO § 3-611]

206. Within the last few years the Washington Department of Fisheries has authorized special limited gill net fisheries for chinook salmon and limited entry purse seine fisheries for coho salmon in marine waters of Carr Inlet, including the milling area off the mouth of Minter Creek, to crop surplus chinook and coho salmon returning to the Department's Minter Creek Hatchery. The extent of the surplus is influenced by limitations imposed on prior marine fisheries to assure adequate escapement to other south Sound streams and is evaluated when it appears at the Minter Creek mouth area. The authorized fishery is then monitored daily to determine its proper duration. Participation in the Minter Creek purse seine fishery [**210] is determined by a drawing open to any licensed purse seiner who applies. The Department of Fisheries has neither requested any of the Plaintiff tribes to join in that fishery nor considered the question of whether unlicensed treaty Indians should be allowed to participate in the fishery. At least one of the Plaintiff tribes has members who operate in a marine fishery closer to Minter Creek than many of the non-Indian applicants for the drawing. [Tr