United States v. Washington

dissenting:

I respectfully dissent.

With respect to timeliness, two aspects of this ease justify the prospective intervenors’ delay. First, they do not seek to relitigate what the court decided prior to the motions to intervene. Though they do not agree with the court’s decisions, their motions ask leave to intervene only with respect to the implementation plans to be prepared subsequently, and a subsequent appeal.

The majority opinion misconstrues the intervenors’ position as an attempt to relitigate what has already been decided. The parties seeking intervention do not agree that sea cucumbers etc. are fish covered by the treaty, but they say expressly in their motion to intervene that they do not propose to relitigate it in the district court:

Harvest Divers likewise limit their motion to intervene. Their motion says they “accept the record in this proceeding as it is made to date,” but they want to protect their right to appeal the sea urchin and sea cucumber ruling now that the Washington Attorney General has withdrawn from its previous opposition to it, and want to be allowed to participate in the negotiations regarding implementation of the district court’s…

Three commercial fishing associations appeal the district court’s order denying intervention in an action brought by the United States, as trustee for various Indian tribes, against the State of Washington. The United States and the tribes claimed fishing rights to shellfish. We affirm the district court’s ruling that the motions to intervene were untimely.

FACTS

In 1970, the United States, on its own behalf and as trustee for various Washington State (or “State”) Indian tribes, brought an *1502 action against the State to enforce fishing rights reserved by the tribes in a series of treaties signed in the 1850s and negotiated by Isaac Stevens, the first Governor and first Superintendent of Indian Affairs of the Washington Territory (the “Stevens treaties”). See Washington v. Washington State Comm’l Passenger Fishing Vessel Ass’n, 443 U.S. 658, 666-69, 674-679 , 99 S.Ct. 3055, 3064-66, 3068-71 , 61 L.Ed.2d 823 , modified, 444 U.S. 816 , 100 S.Ct. 34 , 62 L.Ed.2d 24 (1979) (“Passenger Fishing Vessel”). The district court eventually granted the tribes off-reservation fishing rights for salmon and steelhead, allowing state regulation of those rights for conservation purposes only.…