Opinion
As Modified Oct. 9, 1987.
Review Granted Dec. 23, 1987.
Previously published at 195 Cal.App.3d 431
Mark Hoffart, Dohn Henion, William Follett, Cresent City, for petitioners.
John K. Van De Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., R.H. Connett, Asst. Atty. Gen., Roderick E. Walston, Ronald D. Smetana, Bruce S. Flushman, Charles W. Getz, IV, Mary E. Hackenbracht, Deputy Attys. Gen., San Francisco, for real party in interest.
HANING, Associate Justice.
In this decision we hold that for purposes of protecting state hatched fish returning to state hatcheries and spawning grounds, and also to prevent the extinction of a valuable natural resource, the State of California may reasonably regulate commercial gill netting by members of the Yurok Indian tribe on the Klamath River.
Petitioners are members of the Yurok Tribe who commercially fish the Klamath River on Northern California's Hoopa Valley Indian Reservation. They are charged in the Superior Court of Del Norte County with violating and conspiring to violate criminal provisions of the California Fish & Game Code which prohibit the sale of fish taken from the Klamath River by means of a gill net. (Fish & G.Code, §§ 8434, 8685.6; Penal Code, § 182.) Petitioners seek a writ of prohibition to prevent further criminal proceedings, contending that California state law is preempted by the federal regulations governing fishing on the Hoopa Valley Reservation, which have been promulgated under the authority of the federal government to regulate Indian affairs. In response, the People assert a state interest in conservation of the Klamath River salmon population, which they contend is sufficient to counteract federal preemption and permit the exercise of concurrent state jurisdiction over Indian commercial fishing. We agree with the People and deny the peremptory writ.
I
This is but the latest chapter in the legal history of the Hoopa Valley Reservation and the fishing activities of the Yurok tribe. To present this case in its proper context, we preface our discussion with a brief review of the history and background of the Reservation and governmental attempts at regulating the salmon fishing of the Reservation tribes.
The Hoopa Valley Indian Reservation consists of a one-mile strip of land on either side of the Klamath River, beginning at the river's mouth at the Pacific Ocean and extending upstream to the River's confluence with the Trinity River. At this point of confluence the Reservation widens to a 12-mile square. (See People v. McCovey (1984) 36 Cal.3d 517, 521, 205 Cal.Rptr. 643, 685 P.2d 687, cert. denied (1985) 469 U.S. 1062, 105 S.Ct. 544, 83 L.Ed.2d 432; Mattz v. Arnett (1973) 412 U.S. 481, 93 S.Ct. 2245, 37 L.Ed.2d 92. [A map of the Reservation is attached as an appendix to both the Mattz and the McCovey decisions.] ) The The Klamath River serves as a passageway for several species of anadromous fish, including salmon and steelhead. "Anadromous species hatch in fresh water, grow to maturity in the ocean, and return to fresh-water streams to spawn." (United States v. Eberhardt, supra, 789 F.2d at p. 1357, fn. 4.) The Klamath River salmon and steelhead begin their lives in the freshwater spawning grounds at the headwaters of the River and its tributaries and in state-owned hatcheries, and swim out to the Pacific to mature. The relatively small number of fish which survive to reach the sea and grow to maturity return to the headwaters of their birth to spawn the next generation. The salmon then die. The returning salmon and steelhead travel upstream in large schools, or "runs," which become targets for commercial fishers who drape gillnets across the river, capturing substantial portions of the run before it can reach the upstream spawning grounds. Because a small portion of the Klamath River flows through the confines of the lower Hoopa Valley Reservation, virtually all of the commercial fishers are Yurok Indians who claim a tribal right to commercially fish the river.
For detailed accounts of the history and geography of the Hoopa Valley Reservation, see Mattz v. Arnett, supra, 412 U.S. at pp. 485-503, 93 S.Ct. at pp. 2248-2257; People v. McCovey, supra, 36 Cal.3d at pp. 523-24, 205 Cal.Rptr. 643, 685 P.2d 687; and United States v. Wilson (D.C.Cal.1985) 611 F.Supp. 813, 815, revs'd and remd'd United States v. Eberhardt, (9th Cir.1986) 789 F.2d 1354. See also Arnett v. Five Gill Nets (1975) 48 Cal.App.3d 454, 456-58, 121 Cal.Rptr. 906, cert. den. (1976) 425 U.S. 907, 96 S.Ct. 1500, 47 L.Ed.2d 757; Elser v. Gill Net Number One (1966) 246 Cal.App.2d 30, 33-34, 54 Cal.Rptr. 568; and Donnelly v. United States (1913) 228 U.S. 243, 253-59, 33 S.Ct. 449, 451-454, 57 L.Ed. 820, for additional historical background.
"A gill net is a 'flat net suspended vertically in the water with meshes that allow the head of a fish to pass through or become entangled.' (25 C.F.R. § 250.4.) When a fish gets caught in the net, it helplessly struggles to free itself. In the process, the net takes a band of scales off the fish leaving markings referred to as 'gill net marks.' " (People v. McCovey, supra, 36 Cal.3d at p. 521, fn. 3, 205 Cal.Rptr. 643, 685 P.2d 687.)
To preserve the anadromous fish resource and achieve minimum desirable population levels in the next generation, a minimum "escapement level" must be ensured; i.e., a certain minimum number of fish must escape the gill nets and return to their spawning grounds. (See United States v. Eberhardt, supra, 789 F.2d at p. 1357, fn. 4; see also People v. McCovey, supra, 36 Cal.3d 517, 524, fn. 7, 205 Cal.Rptr. 643, 685 P.2d 687.) Largely to ensure an escapement level sufficient to preserve the salmon population, both the United States Government and the State of California regulate, or attempt to regulate, commercial fishing on the Klamath River.
State regulation of salmon fishing began in 1933 with the enactment of California Fish and Game Code section 8434, an outright prohibition of commercial fishing on the Klamath River. The state's regulatory role receded in the wake of the Court of Appeal's decision in Arnett v. Five Gill Nets (1975) 48 Cal.App.3d 454, 121 Cal.Rptr. 906, cert. denied (1976) 425 U.S. 907, 96 S.Ct. 1500, 47 L.Ed.2d 757, which held that federal law preempted the state's power to regulate fishing on the Klamath within the confines of the lower Hoopa Valley Reservation.
Arnett 's ban on state regulation, coupled with the lack of a tribal governing body to assume responsibility for regulating the Indian fishers, created a regulatory void which prompted the federal government to enter the arena in 1977. The federal government promulgated fishing regulations under its authority to regulate Indian affairs through the Department of the Interior (Interior). Interior enacted interim regulations governing Klamath River fishing by Hoopa Valley Indians. (42 Fed.Reg. 40904-40905 (Aug. 12, 1977).) The regulations expressly recognized the Indians had a federally reserved fishing right which included the right to fish commercially in the River; however, the regulations noted the right, like most, was not absolute: "[T]he Indians must be allowed to fish commercially as long as statistics show that there can be effective conservation, with By 1979, commercial fishing activity had depleted the Klamath River salmon population to the point of insufficient escapement levels, endangering the survival of the species. In response, Interior declared a moratorium on commercial fishing by Reservation Indians. (44 Fed.Reg. 17144-17151 (Mar. 20, 1979).) The moratorium was seen as "the only means by which [Interior] could ensure that a sufficient number of returning fish escaped to reach the spawning areas at the headwaters, thereby permitting conservation and perpetuation of the resource." (People v. McCovey, supra, 36 Cal.3d at p. 524, fn. 7, 205 Cal.Rptr. 643, 685 P.2d 687, citing 44 Fed.Reg. 17144, supra.) The 1979 moratorium was imposed subject to removal if salmon runs increased to safer levels (44 Fed.Reg. at p. 17146), but the moratorium "remains in effect, having been renewed in successive versions of the regulations." (People v. McCovey, supra at p. 524, 205 Cal.Rptr. 643, 685 P.2d 687; 25 C.F.R. § 250.8, subds. (d), (e).)
The Department recognized that the majority of Klamath salmon were taken by offshore commercial fishing vessels before they could re-enter the river. Interior, however, had no jurisdiction to regulate offshore (and generally non-Indian) commercial fishing, such jurisdiction resting with the Department of Commerce. Noting that Commerce and other involved agencies had not imposed effective limitations on offshore fishing (see 44 Fed.Reg. 17144, supra ), Interior nonetheless was forced to impose the moratorium as the only available method to save the salmon population. In his concurring opinion in Eberhardt, Judge Beezer of the Ninth Circuit suggests an improvement in Commerce's regulation of offshore salmon fishing. (United States v. Eberhardt, supra, 789 F.2d at p. 1363 [conc. opn. of Beezer, J.].)
The state continued to urge its right and power to regulate Klamath River fishing. In People v. McCovey, supra, the California Supreme Court held that the Interior regulations pre-empted state regulatory authority over the off-reservation sale of reservation catches, with which petitioners are charged, and would at first blush appear to entitle petitioners to a writ of prohibition restraining further prosecution on the state criminal charges. Upon further review we conclude McCovey does not bind us to issue the writ, and that the state's interest in conservation of a natural resource justifies concurrent state and federal regulatory jurisdiction over commercial Klamath River fishing.
II
We begin by reviewing the pertinent pronouncements of the United States Supreme Court in the field of federal preemption of state regulation of Indian affairs.
"[T]here is no rigid rule by which to resolve the question whether a particular state law may be applied to an Indian reservation or to tribal members." (White Mountain Apache Tribe v. Bracker (1980) 448 U.S. 136, 142, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665.) Such questions must be decided against the "backdrop" of the unique status of Indian tribes under federal law and the traditional notions of Indian self-government. (Id., at p. 143, 100 S.Ct. at p. 2583; Three Affil. Tribes of Ft. Berthold v. Wold Engine. (1986) 476 U.S. 877, 106 S.Ct. 2305, 2310, 90 L.Ed.2d 881.) "It must always be remembered that the various Indian tribes were once independent and sovereign nations, and that their claim to sovereignty long predates that of our own Government." (McClanahan v. Arizona State Tax Comm'n (1973) 411 U.S. 164, 172, 93 S.Ct. 1257, 1262, 36 L.Ed.2d 129.) Having been assimilated only partially into American culture, the tribes retain a unique status of semi-independence, as a separate people no longer enjoying the full attributes of sovereignty but empowered to govern their own internal and social relations. (White Mountain Apache Tribe v. Bracker, supra, 448 U.S. at p. 142, 100 S.Ct. at p. 2583.)
The tribes' semi-independence is subject to the broad power of Congress to regulate Indian affairs under the Commerce Clause. (White Mountain Apache Tribe v. Bracker, supra, 448 U.S. at p. 142-143, 100 S.Ct. at p. 2583. See New Mexico v. Mescalero Apache Tribe (1983) Federal preemption applies in a "special sense" to state regulation of Indian affairs. (New Mexico v. Mescalero Apache Tribe, supra, 462 U.S. at pp. 333-334, 103 S.Ct. at pp. 2385-2386.) The "unique historical origins of tribal sovereignty" has led the courts to eschew strict adherence to traditional preemption standards, and to focus instead on a "particularized inquiry into the nature of the state, federal and tribal interests at stake, ..." (White Mountain Apache Tribe v. Bracker, supra, 448 U.S. at pp. 143, 145, 100 S.Ct. at pp. 2583, 2584.) "State jurisdiction is pre-empted by the operation of federal law if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority." (New Mexico v. Mescalero Apache Tribe, supra, 462 U.S. at p. 334, 103 S.Ct. at p. 2386.)
The preemption cases look to the nature of the federal regulatory scheme. If the scheme is "all-inclusive" or "comprehensive", state laws will be preempted if they "disturb or disarrange" the federal schemata. (Warren Trading Post v. Tax Comm'n (1965) 380 U.S. 685, 690-691, 85 S.Ct. 1242, 1245-1246, 14 L.Ed.2d 165.) This is particularly true if the federal regulations are the means of furthering a strong federal policy toward the Indians, such as the fostering of tribal self-government or economic or educational self-sufficiency. (See Ramah Navajo School Bd. v. Bureau of Revenue, supra, 458 U.S. at pp. 839, 846-847, 102 S.Ct. at pp. 3399, 3402-3403; White Mountain Apache Tribe v. Bracker, supra, 448 U.S. at pp. 148-149, 100 S.Ct. at p. 2586.)
Applying these principles, the United States Supreme Court has consistently preempted state attempts to regulate Indian economic affairs. In Warren Trading Post, the Court cited the comprehensiveness of federal regulation of Indian trading on reservations and held a state could not tax gross income on sales made to Indians by an on-reservation trading post. In Ramah Navajo School Bd., the Court held the comprehensive nature of the federal regulations, plus the policy of furthering educational self-sufficiency, prevented the state from taxing a non-Indian construction company's gross receipts from the construction of an Indian school. The court emphasized that "[f]ederal regulation of the construction and financing of Indian educational institutions is both comprehensive and pervasive." (458 U.S. 832, 839, 102 S.Ct. 3394, 3399.) Imposition of the state tax on gross receipts was precluded by "the comprehensive federal regulatory scheme" and "the express federal policy of encouraging tribal self-sufficiency in the area of education." (Id. at p. 846-847, 102 S.Ct. at p. 3403.)
Similarly, in White Mountain Apache Tribe v. Bracker, supra, the court held that a state could not impose motor carrier license and use fuel taxes on a non-Indian logging company for its on-reservation logging activities. The rationale for preempting state regulation of reservation logging mirrored that embraced in Ramah Navajo School Board: the federal regulatory scheme governing the harvesting and selling of Indian timber was pervasive, and These decisions involve general questions of economic regulation and tribal self-sufficiency: not conservation of a precious and finite environmental resource and the state's significant interest in its regulations in furtherance of resource preservation. The first Indian preemption case to approach application of preemption principles in the environmental context was New Mexico v. Mescalero Apache Tribe, supra, and that case involved questions of general wildlife management rather than urgent questions of conserving a fixed resource of fragile survival potential.
In Mescalero, the state sought concurrent jurisdiction over tribal wildlife management. New Mexico wished to apply its extensive regulations of hunting and fishing, including licensing requirements, season definitions and bag limits, to hunting and fishing conducted on reservation land. Imposition of these state regulations severely impacted upon, and directly conflicted with, the Apache tribe's efforts to manage and develop its fish and wildlife resources in "a sustained, cooperative effort by the Tribe and the Federal Government." (462 U.S. at pp. 327-328, 103 S.Ct. at p. 2383.)
The Supreme Court held the state regulations were preempted for two major reasons. First, the imposition of state regulations would "disturb and disarrange" the federal/Indian joint resource management program. The tribal regulations "reflect[ed] the specific needs of the reservation by establishing the optimal level of hunting and fishing that should occur", based on a continuous series of fine-tuned, expert wildlife management decisions made by federal and Indian experts. (462 U.S. at p. 339, 103 S.Ct. at p. 2389; see id. at pp. 327-329, 103 S.Ct. at pp. 2382-2383.) State hunting and fishing laws would be "based on considerations not necessarily relevant to, and possibly hostile to, the needs of the reservation", a circumstance which "could severely hinder the ability of the Tribe to conduct a sound management program." (Id. at p. 339, 103 S.Ct. at p. 2389.) Examples cited by the court underscore that general wildlife management, not species-specific conservation, is the touchstone of the holding: for instance, the court observed the tribal regulation permitting a hunter to kill a buck and a doe "was designed to curb excessive growth of the deer population on the reservation," while the state regulation banning the killing of does would frustrate that resource management objective. (462 U.S. at p. 339, 103 S.Ct. at p. 2389.) In a similar vein, the tribe's determination of hunting seasons, bag limits and permit availability governed the "duration and intensity of hunting" based on numerous factors, including "the game capacity of the terrain, the range utilization of the range animals, and the availability of tribal personnel to monitor the hunts." (Ibid.)
Second, the Court stressed the tribe's economic dependence on its wildlife management scheme. "The assertion of concurrent jurisdiction by New Mexico ... would threaten Congress' overriding objective of encouraging tribal self-government and economic development. The tribe has engaged in a concerted and sustained undertaking to develop and manage the reservation's wildlife and land resources specifically for the benefit of its members. The project generates funds for essential tribal services and provides employment for members who reside on the reservation.... The disruptive effect that would result from the assertion of concurrent jurisdiction ... would plainly ' "stan[d] as an obstacle to the accomplishment of the full purposes and objectives of Congress." ' " (462 U.S. at p. 341, 103 S.Ct. at p. 2390, quoting Ramah Navajo School Bd. v. Bureau of Revenue, supra, 458 U.S. at p. 845, 102 S.Ct. at p. 3402.)
In summary, the tribal interests in Mescalero centered around the ongoing, complex Indian enterprise of managing all reservation fish and wildlife resources--resources renewing themselves by the processes The Mescalero court acknowledged that a state could regulate the off-reservation impacts of reservation activity to preserve a "scarce, common supply" of a natural resource. The court concluded that New Mexico had failed to show any such effects, especially since "[s]ome species of game never leave tribal lands and the State points to no specific interest concerning those that occasionally do." (Id. 462 U.S. at p. 342, 103 S.Ct. at p. 2391.) Moreover, New Mexico in that case had conceded that the Indians' resource management "has 'not had an adverse impact on fish and wildlife outside the Reservation.' " (Ibid.)
In this case, the State of California does not make such a concession and contends that unregulated gill netting endangers the resource. In addition, most of the fish do (and in fact, must) leave the reservation and are not solely within the confines of reservation autonomy. It is important to recognize that the limited portion of the Klamath River system which flows through the lower Hoopa Valley reservation and into the sea is merely a gateway through which all anadromous fish must pass on their way to their birthplace and spawning grounds. The Trinity, Salmon, Scott and Shasta Rivers, all with their own tributaries, empty into the Klamath River along with numerous upriver creeks containing spawning beds. Those are areas well outside the Del Norte County area in question here, and are protected and regulated by state law. Most significantly, many fish returning upstream are enroute to state hatcheries. Thus, if unregulated or uncontrolled gill netting is allowed to exist, not only will fish which have spawned downstream on waters and feeder streams flowing through the reservation be taken, but also those fish which have been reared and released into the river by state fish hatcheries and spawning beds on other state lands, and the species may soon become extinct in those streams.
Therefore, state regulation in this case would not be inconsistent with Mescalero because of the need to preserve an at-risk resource over which the Indians do not have exclusive dominion. "In a nonpreemption context, the [United States Supreme] [C]ourt has held that a state may, in the interest of conservation, regulate Indian fishing rights which were created by treaty." (People v. McCovey, supra, 36 Cal.3d at p. 532, 205 Cal.Rptr. 643, 685 P.2d 687.) The most famous of these holdings are the "Puyallup trilogy": Puyallup Tribe v. Dept. of Game (1968) 391 U.S. 392, 88 S.Ct. 1725, 20 L.Ed.2d 689 ["Puyallup I "]; Washington Game Dept. v. Puyallup Tribe (1973) 414 U.S. 44, 94 S.Ct. 330, 38 L.Ed.2d 254 ["Puyallup II "]; and Puyallup Tribe v. Washington Game Dept. (1977) 433 U.S. 165, 97 S.Ct. 2616, 53 L.Ed.2d 667 ["Puyallup III "]. In the Puyallup cases no comprehensive federal regulatory scheme was in place. The Indians simply enjoyed treaty rights to fish in common with other citizens of the state. (Puyallup I, supra, 391 U.S. at p. 398, 88 S.Ct. at p. 1728; Puyallup II, supra, 414 U.S. at p. 45, 94 S.Ct. at p. 332.) Like the fishing rights of nonIndians, the Indians' rights could be regulated under the auspicies of the state's police power to preserve an endangered resource or to otherwise further conservation. (Puyallup I, supra, 391 When the resource at issue is an anodramous fish with a necessary escapement level essential to survival, conservation measures are especially significant. As the late Justice Douglas eloquently observed in Puyallup II: "We do not imply that [the Indians'] fishing rights persist down to the very last steelhead in the river. Rights can be controlled by the need to conserve a species; and the time may come when the life of a steelhead is so precarious in a particular stream that all fishing should be banned until the species regains assurance of survival. The police power of the State is adequate to prevent the steelhead from following the fate of the passenger pigeon; and the Treaty does not give the Indians a federal right to pursue the last living steelhead until it enters their nets." (414 U.S. at p. 49, 94 S.Ct. at pp. 333-334.)
III
We conclude that the State's concurrent jurisdiction over tribal salmon fishing in the Klamath River is not preempted by the federal regulations. We are of the view that McCovey does not directly apply to the case before us, for two reasons.
First, in the context of the conservation of a finite, threatened natural resource the state's regulatory ability is not static. The conservation of such a natural resource is sufficiently compelling to enable the state to assert a more powerful need for conservation. The People have presented clear indications that after McCovey was decided the Klamath River population continued to decline. The Bureau of Indian Affairs found that the salmon population was in greater jeopardy in 1985 than in 1979 when the moratorium was first imposed. In fact, the Bureau concluded--after McCovey was decided--that the spawning run was "in danger of being eliminated." McCovey, as well as controlling precedent of the United States Supreme Court, does not preclude concurrent state jurisdiction over a precarious state resource. As the Ninth Circuit has recently ruled, a state may regulate Indian fishing if its regulation is reasonable and necessary for conservation. "Unlike Congress, states may not qualify Indian fishing rights. Puyallup Tribe v. Department of Game (Puyallup I), 391 U.S. 392, 398 [88 S.Ct. 1725, 1728, 20 L.Ed.2d 689] (1968); [United States v.] Sohappy, 770 F.2d 823 [ (9th Cir.1985) ]; [United States v.] Fryberg, 622 F.2d [1010], 1014-15 [ (9th Cir.1980) ]. However, states may regulate Indian rights in the interest of conservation by an appropriate exercise of their police power. State regulation for conservation purposes is based on the state's interest in protecting fish and wildlife resources for the benefit of its citizens. See Puyallup Tribe v. Department of Game (Puyallup III), 433 U.S. 165, 175-76 [97 S.Ct. 2616, 2622-2623, 53 L.Ed.2d 667] (1977); see also United States v. Michigan, 653 F.2d 277, 279 (6th Cir.), cert. denied, 454 U.S. 1124 [102 S.Ct. 971, 71 L.Ed.2d 110] (1981). The violation of state conservation laws is a federal offense. 16 U.S.C. § 3372(a)(2) (1982); see Sohappy, 770 F.2d at 834-24. [p] A state must show that any regulation of Indian fishing rights is both reasonable and necessary for conservation purposes. Antoine v. Washington, 420 U.S. 194, 207 [95 S.Ct. 944, 952, 43 L.Ed.2d 129] (1975); Sohappy, 770 F.2d at 823. State regulations meeting these standards may extend to the manner of fishing, the size of the take, and the restriction of commercial fishing. Puyallup I, 391 U.S. at 398 [88 S.Ct. at 1728]. In the context of state regulation of Indian fishing rights, we have rejected the endangered species approach to conservation, finding that fishing limitations may be proper even though extinction is not imminent. United States v. Oregon, 718 F.2d 299, 305 (9th Cir.1983)." (United States v. Eberhardt, supra, 789 F.2d at p. 1361-1362.) In light of the post-McCovey diminution of the salmon run to the point of imminent demise, we can easily distinguish the situation which now faces us from that before the California Supreme Court when it rendered its 1984 decision.
Second, and perhaps of greater significance, McCovey, as well as Arnett, assumed McCovey did not hold that California's salmon and steelhead stock, added to the upstream Klamath waters through state fish hatcheries or other nonreservation spawning grounds, is to be governed by the same considerations as an exclusive Reservation resource such as the deer resource discussed in Mescalero. Neither McCovey nor Arnett held that the State could not protect its own fish from extinction. We therefore conclude that the anadromous fish traversing the Klamath River passage are not under the total dominion of the Yurok tribe, and petitioners' gill netting may be regulated by the State of California in the interests of conservation, and the protection of its own fish.
Accordingly, the petition for writ of prohibition is denied.
Because of our disposition of this matter, we need not reach the People's remaining contentions. We reject as without merit the arguments of individual petitioners that the pending criminal charges are not supported by probable cause.
LOW, P.J., and KING, J., concur.