U.S.-Brazil

On March 14, 1975, the United States and Brazil signed a new agreement concerning shrimp (S. Ex. D, 94th Cong., 1st Sess.), to replace the 1972 agreement which expired on February 28, 1975. See the 1973 Digest, pp. 260-261. The Senate gave its advice and consent to the new agreement on October 28, 1975, and the President ratified it on December 22, 1975. Although the agreement had not entered into force by the end of 1975, the two Governments were complying with its provisions under an exchange of notes of March 14, 1975.

The renegotiated agreement continues to provide for the conservation of shrimp resources without prejudice to the legal position maintained by either Government with respect to the breadth of the territorial sea or fisheries jurisdiction under international law. The following are excerpts from the report of the Department of State to the President respecting the agreement:

The necessity for this Agreement arose when Brazil, in 1970, asserted a claim to a territorial sea extending 200 miles from its coast and subsequently promulgated regulations purporting to control fishing by foreign flag vessels within the claimed territorial sea. This jurisdictional claim, which was not recognized by the United States, encompassed important shrimp resources that had been exploited for several years by a large number of United States flag vessels in waters lying entirely beyond 12 nautical miles from the coast and therefore, in the view of the United States, not subject to the exclusive fishery jurisdiction of Brazil.

The major provisions of the Agreement are as follows: The United States agrees for conservation reasons to limit the number of its vessels participating in the exploitation of those resources to 325. Of these, not more than 200 United States vessels would be authorized to fish in any quarter of the first year of its term, and not more than 175 during any quarter of the second year. The area within which this limitation will apply is defined as delimited by the 30-meter isobath, the latitude of one degree north and the meridian of 47 degrees 30 minutes west longitude.

The United States will limit fishing for shrimp by its vessels within the area of the Agreement to the period from March 1 through November 30. In the most southern part of the area, southeast of a bearing of 240 degrees to the Ponta do Ceu radiobeacon, United States vessels will fish for shrimp during the period March 1 to July 1. Not more than 160 of the vessels

authorized by the United States to fish under the Agreement will operate within the area at any one time during the first year of the Agreement and not more than 120 at any one time during the second year. Vessels fishing under the Agreement will keep records of their operations, and the parties will exchange information concerning conditions in the fishery. The vessels to be authorized by the United States, and the fishing gear and methods which they will use, will be essentially the same as those commonly employed in the fishery hitherto. Under the Agreement, Brazilian shrimp fisheries will also be under certain specified limitations appropriate to the stage of development of the Brazilian shrimp industry in the area of agreement.

The Agreement assigns responsibility for enforcement of its terms to the Government of Brazil, for reasons of convenience and economy, and provides that the United States shall pay Brazil $361,000 annually for the expenses resulting from enforcement functions, as well as a specified fee for certain unusual expenses which Brazil might incur in carrying out these functions. United States vessels which may be apprehended by Brazilian authorities in violation of any provision of the Agreement are to be turned over promptly to United States authorities for investigation and for punishment if found guilty.

The Agreement will terminate on December 31, 1976.

See also S. Ex. Rept. No. 9412, 94th Cong., 1st Sess.

On July 24, 1975, the Offshore Shrimp Fisheries Act Amendments of 1975 (P.L. 94-58; 89 Stat. 266; 16 U.S.C. 1100b) to implement the agreement supra were approved by the President, with effect from the entry into force of the agreement.

See also H. Rept. No. 94–216 and S. Rept. No. 94-270, 94th Cong., 1st Sess.

U.S.-Canada

On July 19, 1975, the U.S. Government notified the International Pacific Salmon Fisheries Commission that it was withdrawing its approval given on April 11, 1975, to those parts of the regulations of the Commission which allocate open fishing times among the various types of gear within the U.S. Convention waters. In informing the Commission of this action, the United States made the following statement:

in taking this action the United States has no intention of undermining the Treaty or of undercutting the Commission's

basic regulatory program necessary to meet the objects and purposes of the Convention. We fully understand the regulatory hazards which could be created by later withdrawal of approval of regulations during the fishing season; we do not take this action lightly or view it as constituting a precedent regarding matters basic to an effective regulatory system or adequate joint planning. Our limited action is taken due to extraordinary circumstances in the United States, and on the basis of our belief that the change for this season will not adversely affect spawning escapement or the equal sharing of the harvestable catch under the Convention, is not of importance to the overall regulatory scheme of the Commission in effect for this season, and will not cause injury to the interests of Canada or Canadian fishermen. The Commission's regulatory program has not always included a gear allocation system; the system was developed at the request of fishermen to help eliminate respective domestic gear conflict problems. Our technical experts advise that such a gear allocation system is not necessary to ensure proper escapement of the stocks or equal allocation of catch between the parties. Moreover, it is our understanding that the State of Washington will continue to regulate the use of types of gear in a manner which will cause very little practical change from present fishing patterns.

The Canadian Government in an aide-memoire dated at Washington August 7, 1975, expressed concern at the U.S. action and stated that, in its view, such action was not provided for in, and was not consistent with, the terms of the Convention between the United States and Canada for the protection, preservation, and extension of the sockeye salmon fisheries in the Fraser River system (TS 918; 50 Stat. 1355; entered into force July 28, 1937; amended by TIAS 3867; 8 UST 1057; entered into force July 3, 1957). It noted "the domestic problem raised in the United States by judgments and orders issued by Judge George H. Boldt of the U.S. District Court with respect to fishing rights in the State of Washington" and offered to explore other avenues to a satisfactory solution.

The U.S. Government responded in an aide-memoire dated at Washington August 26, 1975, that it believed the Convention to be susceptible to an interpretation compatible with its withdrawal of approval. The note added:

Due to the extraordinary circumstances prevailing in the United States, the Government of the United States regrets

that it does not find it possible at this point to reinstate the regulations of the Commission which it adopted on April 11, as requested by the Government of Canada.

The United States does not consider this action as being of sufficient scope, now or in the future, to bring into play the considerations raised by the Government of Canada, which the United States fully shares, regarding frustration of the Commission's role and objectives. However, the United States takes this opportunity to assure the Government of Canada that it is the desire of the United States that the two Governments will continue discussions directly and with the Commission to establish a long term solution which will enable the United States to implement Indian fishing rights and at the same time maintain an unquestioned program of the Commission to allow proper escapement and an equal division of the catch of salmon. In this connection, the United States wishes to convey to the Government of Canada the United States Government's concern that the underlying principle applied in practice as well over many years that the Commission be a primary means for coordinating and implementing policies of the two Governments pursuant to the Convention not be jeopardized by initiatives taken outside of intergovernmental agreement to remake the Commission into an independent judge of these policies.

In a further note, dated November 26, 1975, the Department of State proposed to the Canadian Embassy that the 1976 regulations of the International Pacific Salmon Fisheries Commission be written without specific reference to individual fishing gears; they would simply note that the subject of gear use would be treated in domestic regulations, while also indicating the desirability of gear regulations for proper management and conservation by the implementing agencies. The Department's note suggested that this procedure, if agreeable to the Commission and Canada, would allow for the satisfaction of domestic needs, such as those arising from the United States v. State of Washington decision, infra, while providing for the accomplishment of the aims of the Convention regarding escapement and allocation between the contracting parties.

Dept. of State File Nos. P75 0139-1658, P75 0136-1093, and P75 0175-2208.

The effect on Indians of the fishing rights Convention between the United States and Canada for the protection, preservation and extension of the sockeye salmon fisheries in the Fraser River system and its implementing legislation was at issue in United

States v. State of Washington, 520 F.2d 676 (1975). On June 4, 1975, the U.S. Court of Appeals for the Ninth Circuit upheld a decision by Judge George H. Boldt of the U.S. District Court for the Western District of Washington interpreting Federal treaties with Indian tribes concerning salmon fishing in Northwest Washington as guaranteeing tribal Indians fishing at their traditional grounds and stations off the reservations, and giving them an opportunity to catch up to 50 percent of the harvestable fish without regard to the number of fish caught on the reservations, or for ceremonial and subsistence purposes.

The Court of Appeals held that a State could regulate fishing rights guaranteed to the Indians only to the extent necessary to preserve a particular species in a particular run; that the trial court did not abuse its discretion in apportioning the opportunity to catch fish between whites and Indians on a 50-50 basis; that the trial court properly excluded Indians' catch on their reservations from apportionment; that reef net fishing rights were guaranteed by the treaty with the Indians no less than commercial fishing rights; and that the Interior Department's nonrecognition of a tribe had no impact on vested treaty rights. Concerning the U.S.Canada Convention and its implementing legislation, the Court stated:

Insofar as the 1937 Convention between the United States and Canada for the protection of the Fraser River fish runs, 50 Stat. 1355, the Sockeye Salmon or Pink Salmon Fishing Act of 1947, enacted pursuant to the Convention, 16 U.S.C. 776-776f, and regulations issued thereunder displace the regulatory powers of the State within the State's territorial waters, fishing within those waters should be treated no differently from fishing beyond the State's territorial jurisdiction. The Court therefore may adjust equitably the treaty Indians' share to compensate them for fish taken by other Washington citizens under regulations issued by the International Pacific Salmon Fisheries Commission which otherwise would be available for harvest at their traditional treaty areas.

We reject the State's contention that the Convention and Act have "preempted" Indian treaty rights to harvest Fraser River salmon. The Supreme Court has indicated its extreme reluctance to find congressional abrogation of Indian treaty rights in the absence of explicit statutory language so directing. L.Ed.2d 697 (1968). Congress sufficiently indicated its intent that all persons, including Indians, be subject to Commission regulations, but, in the absence of an explicit expression of intent to terminate treaty rights, losses to other citizens sustained through compliance with those regulations should be redressed... by adding to the treaty Indians' permitted catch in areas under State jurisdiction. [at p. 689.]