Appellate Judges Wade Into Shellfish Quandary They’ll Try To Resolve What Years Of Litigation And Conversation Could Not

Three federal appellate judges were asked Monday to resolve what years of talks and litigation could not: Do Washington Indian tribes have the right to harvest shellfish on private property?

Judges Stephen Trott and Robert Beezer of the 9th U.S. Circuit Court of Appeals and 8th Circuit Judge Donald Lay heard 3-1/2 hours of arguments in the case.

A standing-room-only crowd of more than 150 people - most of them tribal members, private land owners and shellfish growers - packed the federal courtroom.

Trott, the presiding judge, gave no timetable for a ruling. But he said he recognized the sensitivity, complexities and ramifications of the case.

“I can only hope whatever decision we come down with will not erode whatever goodwill exists between the two sides in this case,” he said.

The case pits the U.S. government and Indian tribes against the state of Washington, property owners and shellfish growers.

Both sides are appealing portions of a 1994 ruling by visiting U.S. District Judge Edward Rafeedie of Los Angeles. Rafeedie found that treaties the tribes signed with the federal government in the mid-1800s gave them the right to half the clams, oysters and other shellfish on Puget Sound beaches in their traditional harvesting areas, regardless of current ownership. The treaties predated all property sales in Washington, Rafeedie said, and the tribes still retain the rights guaranteed in them.

The ruling paralleled the landmark 1974 Boldt decision, which found that tribes were entitled to half the salmon harvest.

Much of Monday’s arguments were over the interpretation of Indians’ rights to take fish “at all usual and accustomed grounds” except for shellfish in beds “staked and cultivated by citizens.”

Attorneys Michael Himes, representing the Puget Sound Shellfish Growers, and Howard Goodfriend, representing a group of private landowners, argued that Indians have no right to shellfish beds “staked” early on by white settlers and later by property owners.

Tribes did not protest more than a century ago, and have no right to do so now, Goodfriend said.

Himes added that property owners have spent years of labor and often their savings to improve the productivity of tidelands. For Indians to come in now and claim half the resource without having invested “an ounce of sweat or a cent of money” is unjust, he said.

Assistant Attorney General Jay Geck, representing the state, told the appellate judges the treaties did not give Indians the right to deep-water shellfish, since this was not a “usual and accustomed” tribal fishery.

“If they were fishing for salmon, they’re entitled to it,” Geck said. “They did not take sea urchins, crabs and geoducks in deep waters.”

But Philip Katzen of Columbia Legal Services, representing the tribes, said the treaties specifically spelled out the Indians’ rights to take fish - including shellfish - in places where they have fished in the past.

“It doesn’t matter if it’s private property,” he said.

“There’s absolutely no indication the United States intended to exclude any species of fish from the treaty rights. If it’s fish, it’s fish.”

Katzen also said “staked or cultivated” applied only to artificial shellfish beds. Beaches where natural shellfish beds existed cannot be claimed off-limits to Indians by private-property owners, he said.

Katzen and Evelyn Ying of the U.S. Department of Justice said there’s plenty of historical evidence that tribes in Washington did take shellfish in deep waters.

“It would be unjust and wholly contrary to treaty rights to exclude shellfish in deep waters,” Ying said.