Makah Tribe Entitled to Percentage of Pacific Whiting Harvest

Midwater Trawlers Co-operative v. Dep’t of Commerce, 393 F. 3d 994 (9th Cir. 2004).

Lance M. Young, 2L, Roger Williams School of Law

Several fishing industry groups, the state of Washington, and the state of Oregon have been engaged in a decades-long dispute with the National Marine Fisheries Service (NMFS) over regulations that accommodate the Makah Indian Tribe’s right to harvest Pacific whiting. Upon request of the Makah Tribe, NMFS adopted a “sliding scale method” for determining the proper percentage of whiting to be allocated. The sliding scale method, which takes into account migration patterns, replaced the “biomass method.” The change is favorable to the Indian tribe and consequently not favorable to others that fish Pacific whiting. Previously, the Ninth Circuit struck down the regulation change because NMFS failed to show that the sliding scale method was based on the best available scientific information. On further review, in December 2004, the Ninth Circuit upheld the change in allocation methodology.

Treaty of Neah Bay, 1855
The Makah Indian Tribe has guaranteed fishing rights, pursuant to the Treaty of Neah Bay, in both marine and fresh waters of Washington. In 1855, Makah leaders signed a peaceful agreement with Washington Territory Governor Isaac Stevens that relinquished most of their lands to the United States.1 Article 4 of the treaty specifically reserved the right to hunt, fish, seal, and whale in the Tribe’s “usual and accustomed grounds.” Usual and accustomed grounds have been defined in specificity by modern regulation.2 Article 4 has been the subject of national controversy in recent years because the Tribe invoked its reservation of whaling rights, which are contrary to other laws and public opinion.3

The United States and seven Indian tribes initiated litigation in 1970 to clarify fishing rights provided by the Neah Bay and other treaties. After nine years of litigation, the United States Supreme Court held that treaty and nontreaty fishers had equal rights to the fishery.4 As the Court explained, catching fish was central to social, religious, and commercial life of the Makah and other coastal tribes who had developed preservation techniques that enabled long distance trade.5 The right to fish was a vital treaty term and, according to the Court, Governor Stevens sought to protect the fisheries from monopolization by future settlers. The Court noted that the fishing right article “was not a grant of rights to the Indians, but a grant of rights from them.”6 The Court further supported the Washington Supreme Court’s proposition that Indians deserve special rights based on the well-recognized principle that the United States has an obligation to protect Indian rights for the purpose of promoting self-government of tribes.7 The fifty percent apportionment of the fishery is a maximum allotment. NMFS, or another applicable permitting agency, may allot less than fifty percent, so long as the allotment supports the tribe’s livelihood.

In 1995, the Makah Tribe invoked its fishing rights and petitioned NMFS to allocate 25,000 metric tons (one half of the harvestable surplus) of Pacific whiting from its “usual and accustomed fishing grounds.”8

Makah Fishing Rights & Allocation Methodology
NMFS regulates federal ocean waters, which extend 197 miles outward from Washington’s state jurisdictional waters.9 The Magnuson-Stevens Act, which authorizes NMFS to manage federal waters, requires consistency between regulations and other laws including Indian fishing rights.10 According to the Seattle Post – Intelligencer, the Pacific whiting is the most commercially valuable fish off the coast of Washington and prior to 1996, the Makah Tribe was not allocated any licenses for Pacific whiting,11 leading critics to claim that the large harvest amounts requested by the Makah would have significant effects on the existing whiting industry.

In 1996, NMFS established a framework for determining the harvestable surplus of whiting that would be allocated to the tribes in their usual and accustomed fishing areas. Oregon, Washington, and others filed suit to challenge this regulation in its entirety. Meanwhile, the tribe challenged the method used to calculate its allocation.

Initially, NMFS used “biomass methodology” for calculating harvest allocation between treaty fishers and non-treaty fishers. It took snapshots of geographic locations at different times to determine the total amount of harvestable fish at that location, and allocated harvest amounts accordingly. Scientific data, however, showed that the bulk of whiting migrate through the Makah Tribe’s fishing grounds. Biomass methodology does not take into account fish migration patterns, so, the Tribe argued, a sliding scale methodology should be used instead which takes into account migration by varying the tribe’s allocation based on a percentage of the “maximum sustainable yield from the fishery.”12 An appropriation based on optimum yield entitled the Makah Tribe to a higher percentage of the harvest surplus.

NMFS sought public comment on the two competing methodologies and ultimately conceded to the Makah’s proposed allocation for the 1999 season. Oregon and Midwater Trawlers Co-operative challenged the change as a product of political compromise rather than fisheries science.

The Ninth Circuit upheld the initial regulation but concluded that the 1999 allocation was not in compliance with the Magnuson-Stevens Act because NMFS did not explain the basis of its methodology change.13 The Act requires that the allocation methodology be based on the best scientific information available.14 However, relying on Supreme Court precedent, the court confirmed that the Makah Tribe is entitled to one half of whiting that passes through its usual and accustomed fishing grounds.15 In subsequent years, NMFS has continued to support the sliding scale method and it has been vigorously challenged by the fishing industry and affected states.

Ninth Circuit Analysis
A court can reverse NMFS regulations and agency actions only if they are found to be arbitrary, capricious, or an abuse of discretion. The 1999 allocation was not judicially reviewable because NMFS did not explain the reason for its agency decision.16 The 2003 allocation used the same methodology, but this time NMFS explained how the biomass methodology failed to take into account migration of fish and provided data that supported the sliding scale methodology. Scientific data showed that whiting migrate north through Makah fishing grounds. In fact, the court noted “this migration pattern is significant because it means that all migrating coastal Pacific whiting are potentially exploitable by the Makah.”17

The court agreed with opponents that the original adoption of this method may have been a political compromise. Since then, however, NMFS has provided scientific data that support its conclusion that the sliding scale method is more appropriate than the biomass method. Because the sliding scale is based on receiving a percentage of optimum yield of the fishery and scientific data suggests that a bulk of the Pacific fishery migrates through Makah waters, NMFS is justified in changing its methodology. Thus, the court deferred to the agency’s discretion. The court also acknowledged that scientific understanding of the sliding scale method is incomplete; however, a finding that scientific information is incomplete does not exclude NMFS from concluding that the information is the best available.

Conclusion
The Ninth Circuit held that sliding scale methodology provides the best scientific information available for allocating whiting between the Makah Tribe and other non-treaty fishers. Since 1995, the Makah Tribe has never requested the one half allocation of fish that the Ninth Circuit held it is entitled to; in fact, using a sliding scale methodology, the Tribe will be entitled to harvest between fourteen and seventeen percent of allotted Pacific whiting in their usual and accustomed fishing grounds.

Endnotes
1. Treaty of Neah Bay, Jan. 31, 1855, art.1, 12 Stat. 939. See also, Kit Oldham, Makah leaders and Territorial Gov. Stevens sign treaty at Neah Bay on January 31, 1855, History Link. (2005), available at http://www.historylink.org/index.cfm?DisplayPage=output.cfm&File_Id=5364.
2. 50 C.F.R. § 660.324(c)(1). “Makah — That portion of the FMA north of 48 [degrees] 02’15” N. lat. (Norwegian Memorial) and east of 125 [degrees] 44’00” W. long.”.
3. 50 C.F.R. § 660.324(c)(1). “Makah — That portion of the FMA north of 48 [degrees] 02’15” N. lat. (Norwegian Memorial) and east of 125 [degrees] 44’00” W. long.”
4. Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 689 (1979).
5. Id. at 666.
6. Id. at 681.3 at *43.
7. Id. at 673. See also, Morton v. Mancari, 417 U.S. 535, 555 (1974).
8. See Washington v. Daley, 173 F.3d 1158, 1162 (9th Cir. 1999).
9. States have ownership of navigable waters that extend three miles from their coastlines. Submerged Lands Act of 1953, 43 U.S.C. § 1301.
10. Wash. State Charterboat Ass’n v. Baldridge, 702 F.2d 820, 823 (9th Cir. 1983).
11. AP, 15,000 Tons of Whiting for Makah Tribe Entitled to Harvest Groundfish, Agency Says, Seattle Post – Intelligencer, June 6, 1996, at B5.
12. See 16 U.S.C. § 1802(28)(B).
13. Midwater Trawlers Co-operative v. Dep’t of Commerce, 282 F.3d 710, 719 (9th Cir. 2002).
14. 16 U.S.C. § 1851(a)(2).
15. Midwater Trawlers, 282 F.3d at 719; see also, Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 687 (1979).
16. Midwater Trawlers Co-operative v. Dep’t of Commerce, 393 F.3d 994, 1004 (9th Cir. 2004).
17. Id.