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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 preser 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.]
On July 18, 1975, the United States officially rejected a proposal from the International Commission for the Northwest Atlantic Fisheries (ICNAF) which would regulate the overall fishing off the United States coast from Maine to North Carolina in 1976. The United States and Canada had voted against the proposal at the ICNAF annual meeting, held in Edinburgh June 10 to 20, 1975.
Under the proposal, the total catch would be reduced to 650,000 metric tons in 1976 from the allowable catch of 850,000 metric tons in 1975, but squid would be excluded from the quota–which was not the case in previous years. Quotas on squid would allow a catch of 74,000 tons of that species in 1976, up from 71,000 tons in 1974.
According to a statement released by the Department of State on July 18, 1975, scientists estimated that, at the catch level of 650,000 tons plus the squid, a full decade would be required for stock recovery. In addition, it said, there was an associated probability of approximately 30 percent that recovery would not begin in 1976 at that catch level, and hence a longer period of recovery would be required.
The United States had proposed at the Commission meeting a quota of 550,000 tons, including squid, which would have meant a five-year recovery period with a 90 percent probability of recovery starting in 1976. That proposal, along with others ranging up to 800,000 tons (13-year recovery, 59 percent chance of success), was rejected by the Commission before the 650,000 level was agreed upon unanimously. A later proposal to exclude squid from the total was carried by a majority vote over U.S. objections.
In a memorandum of July 18, 1975, to the Depositary Government (United States) of the International Convention for the Northwest Atlantic Fisheries (TIAS 2089; 1 UST 477; entered into force for the United States July 3, 1950), Ambassador Thomas A. Clingan, Jr., Deputy Assistant Secretary of State for Oceans and Fisheries Affairs, stated that the U.S. objection was limited to part (b) of proposal (11), adopted by ICNAF on June 20, 1975. It did not apply to other quota entries in that proposal. Part (b) set forth the national quota allocation for 1976 of the whole group of stocks or species (collectively) in subarea 5 of the Convention Area and in adjacent waters to the west and south within Statistical Area 6 (excluding menhaden, tunas, bullfishes and sharks other than dogfish).
Under the provisions of Article VIII of the International Convention for the Northwest Atlantic Fisheries, as amended by the 1965 protocol (TIAS 6841; 21 UST 576; entered into force for the United States December 19, 1969), the U.S. objection would exclude the United States from applicability of that part of the proposal if it became effective for other members of ICNAF. Ambassador Clingan, in announcing the objection, stated:
The United States has been watching massive over-fishing off its coasts for some years now. This kind of situation cannot be allowed to continue. Nor can we any longer afford the luxury of a leisurely approach to fisheries problems. The resources have been too badly depleted, and the American fishermen have suffered too much, to avoid the hard decisions which are required now by all fishing nations.
The chief U.S. representative to ICNAF, David H. Wallace, Associate Administrator of the National Oceanic and Atmospheric Administration, Department of Commerce, said that an ICNAF decision to increase the U.S. quota from 211,600 tons in 1975 to 230,000 tons in 1976 had not persuaded the U.S. delegation to vote for the proposal, or the U.S. Government to accept it after it was adopted by majority vote.
Mr. Wallace stated:
We attach as much importance to the conservation and protection of the valuable natural resources as we do to the protection of the American fishermen. Starting to give the fishermen a real opportunity to produce an adequate supply of fish for the American market, as they were once able to do, is not enough. We must also restore the productivity of the stocks. Virtually every species off our Atlantic coast has been overfished, some very severely. The only way to correct the situation is by a drastic cut-back in catch and fishing effort, and this is what the United States is insisting upon.
Dept. of State Bulletin, Vol. LXXIII, No. 1885, Aug. 11, 1975, pp. 220_222. For the full text of proposal (11) and other proposals adopted by ICNAF on June 20, 1975, see Dept. of State circular note of July 16, 1975, Dept. of State File L/T.
At the opening session on September 22, 1975, of a special meeting of the International Commission for the Northwest Atlantic Fisheries (ICNAF) at Montreal, Under Secretary of State Carlyle E. Maw read a message from President Ford stressing the importance which the United States attached to establishing adequate conservation measures and enforcement procedures to rebuild the fishery stocks of the Northwest Atlantic. The President's message pledged "the full support of the United States to sound fisheries management and conservation practices, based on scientific evidence and implemented within the framework of internationally negotiated agreements.” At the conclusion of the meeting the United States issued a statement expressing satisfaction with the conservation action agreed upon.
Excerpts from the U.S. statement follow:
The Commission took positive action on U.S. proposals for a reduced 1976 overall catch quota for the entire fish biomass off the U.S. coast, a closure of most of the Georges Bank area to vessels capable of catching valuable and depleted groundfish species, a national system of vessel registration, and more restrictive and enforceable exemption provisions for trawl net fisheries conducted off the U.S. and Canadian coasts.
A principal U.S. objective at the Montreal meeting was to obtain a 1976 overall fishing quota for the area off the U.S. coast which would allow a rapid recovery of the depleted biomass. This “second tier quota" is allocated nationally to limit what each nation can harvest from the biomass as a whole. It is imposed as a ceiling figure over the individual species quota and is less than the sum of the individual species quotas in order to encourage the development of fishing methods which concentrate on the target species and reduce the bycatch of other species.
The second-tier system was first approved in 1973 for application in the 1974 fishing season in an effort to substantially reduce overall foreign catches off the U.S. coast. Second-tier-quota levels established for 1974 and 1975 were designed to stabilize the biomass, and the Commission had agreed that the 1976 level would be set at an amount which would allow recovery of the biomass to the maximum-sustainable-yield level.
The June annual meeting had agreed to what the United States regarded as an excessive level of 727,000 metric tons by excluding squids from the regulation. This had not been the case in either 1974 or 1975. Scientists estimated that at such a level at least a full decade would be required for stock recovery. The United States regarded this as unacceptable and filed a formal objection to the regulation under the rules of the Commission. As a result of this week's meeting, the Commission has agreed to set the 1976 level at 650,000 metric tons including squids. This level should provide a high probability of recovery within seven years, according to U.S. fisheries scientists.
No action had been taken at the June meeting on a U.S. proposal to limit bycatches of valuable and seriously depleted yellowtail flounder and haddock stocks on Georges Bank through closure of this area to vessels using gear capable of catching these groundfish. Arguments had been raised by others that such a regulation would seriously interfere with fisheries for species such as cod and the hakes. At the Montreal meeting, agreement was reached on a regulation closing a large area on Georges Bank to such vessels throughout the year. Though slightly smaller than the area originally proposed for closure by the United States, the area is sufficiently large to provide satisfactory protection for these important stocks.
Further progress in the critical area of improved international enforcement was also a principal U.S. objective at the special meeting. This was achieved to a significant extent with the approval of a U.S.-proposed system of national registration for vessels engaged in fishing or fish processing in the convention area. Such a system is designed to assist member governments and international enforcement personnel in monitoring fishing effort deployed throughout the area.
U.S. efforts at the annual meeting in June to secure approval of such a system had not been successful. Additional progress in this area as well as added control over bycatches of regulated species was achieved with the approval of a more restrictive and more easily enforceable exemption for trawl net fisheries conducted off both the U.S. and Canadian coasts,
Canada was successful in securing approval for a regulation designed to substantially reduce fishing effort on groundfish stocks in five portions of the convention area off the Canadian coast. The regulation provides for reduction in fishing days for various fishing vessel tonnage and gear categories ranging from 40 to 50 percent from that reported in the 1972 and 1973 periods.
The meeting concluded with an announcement by the observer from Cuba that action required for Cuba to become a member of the Commission would be immediately initiated by his Government. The Commission had approved adjustments in quota allocations for a number of stocks providing the specified catch allocations necessary for Cuba to fish within established conservation regulations throughout 1976.
For the full text of President Ford's message to the ICNAF meeting and the U.S. statement issued at its conclusion, see Dept. of State Bulletin, Vol. LXXIII, No. 1896, Oct. 27, 1975, pp. 629_631.
On August 5, 1975, the President approved the Atlantic Tunas Convention Act of 1975 (P.L. 94–70; 89 Stat. 385; 16 U.S.C. 971), to give effect to the International Convention for the Conservation of Atlantic Tunas (TIAS 6767; 20 UST 2887; entered into force for the United States March 21, 1969). Although the United States had ratified the Convention in 1967, it had not obtained statutory authority to carry out its provisions and consequently was unable to implement conservation measures recommended by the Commission established by the Convention. The 1975 legislation provided the necessary authority to promulgate and enforce regulations to ensure compliance by U.S. fishermen with those conservation measures and to cooperate in carrying out scientific programs of the Commission.
See also S. Rept. No. 94–269 and H. Rept. No. 94–295, 94th Cong., 1st Sess.
U.S. Fishing Fleet
On December 15, 1975, President Ford signed into law "An Act to authorize the employment of certain foreign citizens on the vessel Seafreeze Atlantic, Official Number 517242" (Public Law 94150, 89 Stat. 807; 46 U.S.C. 1402 note). The Act noted that the purposes and objectives of the United States Fishing Fleet Improvement Act, as amended (46 U.S.C. 1401–1413), were not being fulfilled in the case of the Seafreeze Atlantic, a vessel of advanced design built under the provisions of that Act, because of the unavailability of skilled U.S. citizens or skilled aliens domiciled in the United States who could be employed as fish processors and fishermen aboard the vessel. The Act provides that, for a four-year period, foreign citizens may be employed as crew members of the vessel as processors or fishermen, provided that the master and officers are U.S. citizens, that U.S. citizens or legally domiciled aliens comprise at least 40 percent of the crew, and that the vessel