Washington v. Washington State Commercial Passenger Fishing Vessel Association

PETITIONER: Washington
RESPONDENT: Washington State Commercial Passenger Fishing Vessel Association
LOCATION: New York State Education Department

DOCKET NO.: 77-983
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: Washington Supreme Court

CITATION: 443 US 658 (1979)
ARGUED: Feb 28, 1979
DECIDED: Jul 02, 1979

ADVOCATES:
Louis F. Claiborne - for United States et al.
Mason D. Morisset - for the Indian Tribes
Philip A. Lacovara - for Associations of Non-Indian Fishermen
Slade Gorton - for State of Washington

Facts of the case

Question

Media for Washington v. Washington State Commercial Passenger Fishing Vessel Association

Audio Transcription for Oral Argument - February 28, 1979 in Washington v. Washington State Commercial Passenger Fishing Vessel Association

Warren E. Burger:

We'll hear arguments first this morning in Washington and others against Washington State Commercial Passenger Fishing Vessel Association and the consolidated cases.

Mr. Attorney General you may proceed whenever you're ready.

Slade Gorton:

Mr. Chief Justice and may it please the Court.

Mr. Claiborne has just delivered to the clerk a large map or sets of maps of the case area which may aid in your understanding of this argument into which we have no objections.

The central issue in this litigation --

William J. Brennan, Jr.:

Well, where are they?

Slade Gorton:

The clerk has them Mr. Justice Brennan and would not -- Mr. Claiborne just delivered them to him and he didn't wish to put them on your desks until you stated the desire to have them.

William J. Brennan, Jr.:

I see.

I see that they're being distributed.

Slade Gorton:

The central issue in this litigation, the issue to which every other question is subsidiary is the meaning of the phrase and I quote, "and common with all citizens" found in each of the treaties with which we are concerned.

Very little of the record and only a few paragraphs of the original District Court decision are relevant to the central issue.

The answer to the subsidiary questions is relatively easy once this Court construes the "and common with" language.

Without a decision on that point, answering the other questions is unlikely to resolve the controversy.

The United States and the tribes seek to fragment the controversy and delay its ultimate resolution.

Byron R. White:

Well, what if we thought that the "and" question has already been answered and it wasn't open here?

Slade Gorton:

If you felt that the question had already been answered that or that it were final in some respect or another we would not be able to bring it here in this litigation.

Byron R. White:

Well, I take it you're going to --

Slade Gorton:

The United States --

Byron R. White:

-- indicate why you think it's open here.

Slade Gorton:

Yes.

The United States says it may come up here in connection with some other case later.

The crux of our position is the --

Potter Stewart:

Is the -- those aren't the only words of Article 3?

Slade Gorton:

They are not and I will deal with the usual and accustomed --

Potter Stewart:

Well, and also --

Slade Gorton:

(Voice Overlap) as well.

Potter Stewart:

-- the right of taking fish.

Slade Gorton:

Yes.

Potter Stewart:

The right of taking fish.

Slade Gorton:

Yes that the entire phrase speaks of the fish and --