United States of America, and Quinalt Indian Tribe, Plaintiffs-Intervenors-Appellees v. State of Washington

We must again resolve a dispute arising from the district court’s continuing jurisdiction in the Northwest Indian Fisheries litigation. The district court’s initial decision apportioning the opportunity to catch fish 50-50 between the Indian tribes and non-Indians is reported in United States v. Washington, 384 F.Supp. 312 (W.D.Wash.1974) (Boldt I), aff'd, 520 F.2d 676 (9th Cir.1975), cert. denied, 423 U.S. 1086 , 96 S.Ct. 877 , 47 L.Ed.2d 97 (1976).

FACTS

The issues presented on this appeal are tied to the question of salmon escapement on the Queets, Hoh, and Quillayute Rivers in northwestern Washington. In 1982 and 1983, the district court’s Fishery Advisory Board (FAB) considered a dispute over the appropriate number of fall Chinook that should be allowed to escape the in-river fisheries and spawn. The Tribes argued that fewer spawners were necessary to produce a Maximum Sustained Yield (MSY) than the number of spawners insisted upon by the State.

In 1982, the FAB developed an interim, data-gathering or “probing plan” to aid in determining the escapement levels necessary to sustain optimum yield. FAB 82-21. Under the plan, a fixed catch-rate of 40% of the fun was adopted. As…