United States of America, Plaintiffs-Respondents v. State of Washington, Defendants-Petitioners

This interlocutory appeal arises from the district court’s continuing jurisdiction in the Northwest Indian fishing litigation, United States v. Washington (Boldt I), 384 F.Supp. 312, 408 (W.D.Wash.1974), 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). The lower court ruled, inter alia, that the defense of “foregone opportunity” may be raised in a proceeding for equitable adjustment of salmon catch between treaty and nontreaty fishers, and, that catch made by nonresidents of Washington within state-regulated waters is to be included within the nontreaty share of fish. For the reasons set forth below, we adopt the principle of foregone opportunity, but modify the district court’s formulation of that principle. We affirm the lower court’s ruling that nonresident catch within State waters is to be counted against the nontreaty share.

I. BACKGROUND

The fishing rights of the Indians and non-Indians originate in the Stevens Treaties, a series of treaties signed in 1854 and 1855, in which fourteen Northwest Tribes gave up certain lands in exchange for certain rights, including the right to fish “at all usual and accustomed grounds…