Hon. JOHN B. BREAUX, SALMON UNLIMITED, Fort Bragg, Calif., May 22, 1979. Chairman, Subcommittee on Fisheries and Wildlife Conservation and the Environment, House of Representatives, Washington, D.C. DEAR CONGRESSMAN BREAUX: Salmon Unlimited, an organization composed of commercial fishermen, charter boat operators, commercial fish processors, sportsmen, and outdoor recreation users, urgently request that immediate control over the unregulated harvest of salmon in the Klamath River by certain citizens be afforded the people of the State of California for the specific purpose of protecting a fragile and declining resource that is socially and economically important. We are further of the opinion that it is impossible to adequately manage any resource until all elements affecting the resource are manageable. We are gravely concerned with the loss of management authority by the State of California over the anadromous fishery resource in the Klamath River and request that it be restored. It is requested that this letter be entered into the record as part of your hearing scheduled for May 26, 1979. Very truly yours, RAY WELSH, President. Hon. JOHN B. BREAUX, Eureka, Calif., May 31, 1979. Chairman, Subcommittee on Fisheries and Wildlife Conservation and the Environment, House of Representatives, Washington, D.C. DEAR CONGRESSMAN BREAUX: We, the undersigned Yurok Indians of the Hoopa Valley Reservation, either directly or indirectly participated in the hearings which your subcommittee held in Eureka, California, on Saturday, May 26, 1979. We wish to express our appreciation for your efforts to conduct the hearing in a fair and courteous manner. During the hearing, Congressman Paul McCloskey deliberately attempted to confuse and distort the issues involved in the Klamath River fishing controversy and the "Jessie Short case". Therefore, our tribal advisor, Allan Morris, requested that we forward to you, for inclusion into the permanent record of the May 26th hearing, the attached copy of an official recapitulation of the "Jessie Short case" which was recently prepared by judges of the United States Court of Claims in connection with their ruling the case entitled "The Hoopa Valley Tribe v. The United States, No. 568-77". We are also enclosing a copy of the complex 11 page "Declaration" form which each of the approximately 3300 named plaintiffs in the "Jessie Short case" were required to complete and file following the unanimous 1973 Court of Claims decision in their favor. We also wish to point out that although many of the plaintiffs are dissatisfied with the conduct of their attorneys in the "Jessie Short case", and although the defendant-intervenor "Hoopa Valley Tribe" is understandably unhappy with the court's decision in our favor, those are not sufficient reasons for Congress to intervene in the case. The true reason for the inexcusable delay in bringing the "Jessie Short case" to a conclusion, is the failure of trial judge David Schwartz to take control of the case and impose firm guidelines and deadlines on the defendants' attorneys, and the failure of plaintiffs' attorneys to vigorously and properly represent their clients. If possible, please cause the appropriate federal agency to investigate Judge Schwartz's peculiar handling of the Jessie Short case". Almost six years have elapsed since the Court of Claims filed its decision in the "Jessie Short case". How can Judge Schwartz possibly justify his failure to bring the case to a conclusion within that period of time? Congressman Breaux, when the record of the May 26th hearing is published, would you please arrange for each of us and our advisor to receive a copy of the published records. We would appreciate it very much if you would cause the 27 copies to be sent to us at the above address. Thank you again for your kind and considerate treatment of our representatives during the May 26th hearing. Although Congressmen Paul McCloskey and Don Clausen have almost destroyed our faith in Congress, your conduct during the hearing has given us hope that we may yet receive fair treatment from Congress. Any assistance or advice you can give us, will be greatly appreciated. Please make this letter and the attached Court of Claims report a part of the permanent record of the May 26th hearing. Sincerely, H. D. "TIMM" WILLIAMS, In the United States Court of Claims No. 568-77 (Decided March 21, 1979) THE HOOPA VALLEY TRIBE v. THE UNITED STATES Jack Tomlinson, attorney of record, for plaintiff. Neil R. Bardack, Tomlinson and Bardack, Michael Kip Maly and Murphy, Weir & Butler, of counsel James E. Brookshire, with whom was Assistant Attorney General James W. Moorman, for defendant. C. David Redmon, of counsel. Before DAVIS and KUNZIG, Judges. ON PLAINTIFF'S MOTION TO RETRANSFER AND DEFENDANT'S MOTION TO DISMISS PER CURIAM: This case comes before the court on plaintiff's request for review by the court of the recommended decision of Trial Judge David Schwartz, filed July 13, 1978, on plaintiff's motion to retransfer the case to the United States District Court for the Northern District of California and on defendant's motion to dismiss the petition (complaint). Oral argument has been had and the court has also considered the written briefs of the parties. Since the court agrees with the recommended decision of the trial judge, as hereafter set forth, it affirms and adopts that decision, together with the following suppleinental paragraphs, as the basis for its judgment in this case. 1. On the question of the jurisdiction of the District Court and of this court, we add the following to the trial judge's discussion (which, as stated above, we adopt): As the trial judge points out, it is by now firmly established that, where the prime effort of the complaining party is to obtain money from the Federal Government, this court's exclusive jurisdiction over non-tortious claims (above $10.000) cannot be evaded or avoided by framing a District Court complaint to appear to seek only injunctive, mandatory, or declaratory relief against Government officials or the Federal Government. See American Science & Engineering. Inc. v. Califano, 571 F.2d 58 (1st Cir. 1978), and cases cited; Sherar v. Harless, 561 F.2d 791, 793-94 (9th Cir. 1977); Alabama Rural Fire Ins. Co. v. Naylor, 530 F.2d 1221, 1226-30 (5th Cir. 1976); International Engineering Co.. Div. of A-T-O, Inc.. v. Richardson, 512 F.2d 573 (D.C. Cir. 1975), cert. denied, 423 U.S. 1048 (1976); Warner v. Cox. 487 F.2d 1301 (5th Cir. 1974); Mathis v. Laird, 483 F.2d 943 (9th Cir. 1973). Here, the objective of the suit is obviously to force payment by the Government to plaintiff and its members) of all the monies derived from the timber of the Square of the Hoopa Valley Reservation, instead of the lesser share due plaintiff (and its members) under Jessie Short v. United States, 202 Ct. Cl. 870, 486 F.2d 561 (1973), cert. denied, 416 U.S. 961 (1974). The jurisdiction of this court over this kind of suit is as clear as it was in Jessie Short, supra, and the multitude of other cases seeking payment from the Treasury of monies to one or another Indian tribe or Indian individuals.1 Conversely, under the The trial judge rightly points out that the United States holds legal title to Indian funds held in the Treasury. Plaintiff says that, even so, this court has no jurisdiction where the only issue is which set of Indians will obtain the money, and accordingly there will be no net detriment to the Treasury. The error in that proposition is shown. not only by the numerous cases (before the Indian Claims Commission and before this court) in which Indian tribes contend over which one shall be paid for the taking or loss of certain property, but also by this court's thirdparty practice (41 USC § 114(b) (1976); CT. CL. R. 41) which contemplates that the court will consider conflicting claims to money held by the United States. See Richfield Oil Corp. v. United States. 138 Ct. Cl. 520. 522-23. 151 F. Supp. 333. 335 (1957); Christy Corp. v. United States, 181 Ct. Cl. 768, 771, 772, 387 F.2d 395, 396, 397 authorities cited supra, the District Court lacks jurisdiction of this action (even though framed purely in equitable or declaratory terms) which attempts, in direct impact, to obtain these monies from the Treasury.2 2. On the merits, we agree with the trial judge (for the reasons he gives) that, with one possible exception, all of the issues now raised by plaintiff3 were decided adversely to it in the Jessie Short litigation, and cannot now be pursued because of the doctrines of collateral estoppel and res judicata. Counts I and II of the complaint basically raise issues litigated and determined against plaintiff in Jessie Short-as Trial Judge Schwartz demonstrates.4 Plaintiff had a full and fair opportunity to litigate each of those issues before this court made its determination, and application of collateral estoppel is in no way unfair. See Parklane Hosiery Co. v. Shore, 47 U.S.L.W. 4079 (1979). The precise issue presented in Count III did not arise before this court's first determination in Jessie Short but issues underlying and determining that particular question were litigated and decided in Short; moreover, plaintiff has been (on its own intervention) a party to all proceedings in the Trial Division since the court's liability_decision in Jessie Short, 202 Ct. Cl. 870, 486 F.2d 561 (1973), cert. denied, 416 U.S. 961 (1974), and could and should have presented, in that litigation, the apportionment problem it now seeks to raise in Count III. Cf. RESTATEMENT (SECOND) OF JUDGMENTS 56.1(2) ("Effect of Failure to Interpose Counterclaim") (Tent. Draft No. 1, 1973). Г (1967); Bowser, Inc. v. United States. 190 Ct. Cl 441 448-49. 420 F.2d 1057, 1062 (1970) Plainly, the plaintiff relied on that principle when it sought to intervene, before the court rendered its decision, in the Jessie Short litigation. 2 Insofar as plaintiff's argument is that this court has no jurisdiction over a monetary claim which is equitable in nature, that contention is incorrect. Pauley Petroleum Inc. v. United States. No. 197-69, slip op at 11-13 Ct. Cl. Jan. 24, 1979); Mitchell v. United States. Nos. 772-71, 773-71, 774-71. and 775-71 (Ct.Cl. Jan. 24. 1979). 3 To discover the issues now raised, we have taken account of the complaint filed in the District Court as interpreted and explained by plaintiff's briefs on the current motions. It must not be forgotten that, not only did the Hoopa Valley Tribe participate actively as amicus in the proceedings in the Trial Division, but that at the court level it requested and was granted full intervention as a party. |