This blog is about regular people, legends, and one historical figure.
Legends include people who are well known during a portion of their lives and a generation or so after.
My Dad was a legend in Iowa.
The judges and law professors I mention in this blog are also legends. The law professor, Alan Vestal, a former primary editor of Moore’s Manual, is probably better known nationally than the judges I discuss, who are most familiar to people on the West Coast.
Historical figures are different than legends. The historical figure discussed in this blog is William H. Rehnquist, a deceased Justice, who also served as Chief Justice of the United States Supreme Court.
And then there are regular folk, like myself and fishermen clients.
So our story begins back in the late seventies.
Sara Hemphill was a fellow student in the University of Washington’s Law and Marine Affairs program in 1976. We became fast friends and partners in a law firm we named Stafne and Hemphill. It was one of the first law firms to specialize in Fisheries and Conservation Management Act law.
We represented longliners, trollers, and the first Soviet-US Joint venture vessel processing company. For years foreign countries and domestic fishermen had been able to fish outside the U.S. three mile territorial limit without restrictions. Creation of the United States’ Exclusive Economic Zone (EEZ) between 3 to 200 miles from our coastline caused havoc for many notwithstanding the promise of better utilization marine resources.
Not everyone was happy with this assertion of power. For example, the State Department wanted to continue our “special relationship” with Canada by allowing its troll salmon fishermen to fish off the coast of Washington. (Troll fishers catch salmon by use of hook and line mostly in areas more than three miles off our coastline.)
My clients, the American trollers who would have to compete with Canadian trollers for these same salmon, were not thrilled with this diplomatic decision. Indeed, from my clients’ view the State Department purposefully violated the specific provisions of the Fishery Management Act which precluded fishing in the EEZ of fish stocks, like salmon, which were already being fished by domestic fishermen to the point of their maximum sustainable yield.
So I brought suit on behalf of my troll clients to have the federal court kick the foreign (Canadian) fishermen out of Washington.
I’ll never forget Judge Vorhees listening to the short, well dressed, DOJ attorney who had flown out from Washington D.C., state in a very nasal voice: “Well, Judge, we agree this is technically a violation of the law.” Vorhees raised an eyebrow and replied, “You can omit the word ‘technically.’” By the end of the hearing Judge Vorhees had ruled from the bench the Canadian fishermen had to go.
Of course, Canada was not happy about this. Canada retaliated by kicking all U.S. fishing vessels out of its waters and made renewed claims with regard to long on going boundary disputes. I was summoned to Washington to speak before a Senate Committee regarding the dispute.
President Carter appointed a special ambassador to deal with the issue, attorney Lloyd Cutler. Cutler, who is now deceased, was a D.C. attorney who advised several U.S. Presidents. He could be considered a legend. http://en.wikipedia.org/wiki/Lloyd_Cutler
Cutler and I did not get along well. This was probably because he viewed my clients as complicating diplomacy with Canada.
While this so called fish war was raging, the Stafne & Hemphill law office was torched. I read about it in Anchorage, Alaska where I was attending a meeting of the North Pacific Fishery Management Council. When I got back to Seattle, the authorities were investigating the fire.
Sara and I were the top suspects until we all learned we had no insurance. Our brand new $13,000 Lanier word processors were fried and we had so many briefs and memoranda to write.
Sara left the firm shortly after our offices were burned. Sara, who by then had become a shaker and mover in the Seafood World, decided to accept one of the many jobs she had been offered which stressed economic development as opposed to litigation. Later Sara was appointed by the President to be a voting member of the North Pacific Council.
Today Sara is the Director of the King County Conservancy District.
Sara, now (as always) still a little older than I, also has legend status.
Sara was a Rainmaker at Stafne & Hemphill, particularly with regard to aggrieved fishermen.
In the late seventies three federal judges were legends with regard to their maritime and fisheries cases. I call them the three Bs. Judge Beeks. Judge Boldt. And Judge Belloni. (Don’t laugh this really was his name.)
Beeks was considered the most knowledgeable judge about admiralty law during this time period. Boldt had interpreted a treaty right to “fish in common” as meaning the tribes had a right to catch 50% of the salmon.
Judge Belloni was Judge Boldt’s counterpart in Oregon with regard to implementing Tribal fishing rights.
Before the passage of the 200 Mile Limit Act salmon trollers who fished beyond the 3 mile territorial waters of the U.S. weren’t subject to these judges’ rulings. This caused resentments as the trollers appeared free from the long reach of the federal courts, at a time those same courts appeared to be putting many non-Indian domestic fishermen out of business.
Now the game had changed. Trollers had become subject to regulation. Many other salmon fishermen wanted them to share the pain.
After much effort I had convinced the Pacific Fishery Management Council to allow trollers to fish for several days longer than the recreational fishermen thought appropriate. The recreational fishers’ view was shared by Indian tribes, the Secretary of the Interior, and the states of Washington, Oregon, Idaho, and California.
So these folks brought suit against the Secretary of Commerce, Juanita Kreps, to stop my clients, the trollers, from fishing salmon during the small period of time which the Pacific Council had found my clients should be allowed to fish.
To the fisherman and his representative everything about fishing is urgent.
That is probably why the framers of the Fishery Conservation and Management Act precluded judges from issuing injunctions prior to the completion of judicial review. Under the circumstances, I was happy with this congressional wisdom. This provision gave me some assurances that my clients would be allowed to fish because it was unlikely any judicial review could take place before their salmon season ended.
As the case against the Secretary of Commerce had been filed in Oregon and I was not admitted in that State, I retained an Oregon lawyer to appear Pro Hac Vice. I was surprised when this lawyer called me and said he had talked with Judge Belloni, who indicated he would have no problem with my clients filing an affidavit of prejudice against him based on appearance of fairness grounds.
I immediately called my friend, Doug, who represented the Secretary of Commerce, and told him what had been said. We both agreed this was a huge development; Judge Belloni wanted to step down from presiding over the fish wars.
I wrote up the motion and appeared at a hearing in Portland. The first thing Judge Belloni talked about was my motion to recuse. He looked at me and indicated he could find no fault with the motion and had to accede to it. Then he talked about his concern for the Shoshone Indians who might soon be harvesting their last salmon out of the Snake River.
The news reverberated around the Northwest.
David Flory, an associate at the time, called and read me the front page headline article from the PI. “It makes it sound like you forced him to step down.” I smiled. That was so untrue, but sounded so good.
I later learned through the grapevine that Judge Belloni did not appreciate my telling others what really had happened. Seems like he thought I should have known that much of what the courts do is secret and should stay that way. But they never taught us about this kind of secrecy in law school. And I was a young attorney, not even thirty years old, who had fallen into a major case because of my pretty partner Sara. How was I to know?
So what happened next was we were ushered before Chief Judge Skopil. (I don’t know if he is properly characterized as a legend, but most federal judges are.) He appeared surprised by the events and promised to find us another judge promptly.
I was not happy when I found out who that would be: Chief Federal District Court Judge for the Ninth Circuit William Schwarzer. Schwarzer and I had history. Although I obtained a Ninth Circuit reversal of a decision by him which had prevented my clients from fishing, the reversal was obtained after Schwarzer’s overturned order had been implemented.
So when I appeared before Schwarzer we knew each other. He indicated he was inclined to grant an injunction against Secretary Juanita Kreps that would prevent my clients from fishing. I reminded him about the statutory prohibition which prevented him from doing this. You know, the one which mandated that no injunction could be granted until after to conclusion of judicial review.
Schwarzer apparently did not think much of Congress’ prohibition and granted the injunction.
As word got out fishermen began to meet in groups which got larger and larger. Authorities became concerned. The Coast Guard asked me to travel by helicopter to West Port to talk to the fishermen. I agreed to do so.
I did not know what to tell my clients. I had just stood in Schwarzer’s court room, the chief federal district court judge in the Ninth Circuit, and watched him ignore the clear meaning of a federal statute.
I remember I did say to the fishermen groups, with the expectation of being quoted by the reporters who were there, something to the effect that “one must wonder about federal judges making decisions in complex areas they know nothing about.” My recollection is I later did see this language in print. I am sure the statement did not endear me to the legal establishment.
The next thing I did was file an emergency appeal with the Ninth Circuit Court of Appeals. The time was ticking away. The limited fishing season given my clients would soon be gone if the Ninth Circuit did not act.
I called the Ninth Circuit often to see what was happening and then someone told me: “Many people think your clients didn’t share in the suffering of the other domestic salmon fishermen (i.e. gillnetters, seiners) before the 200 mile limit went into effect.”
Huh? What’s that got to do with the legal issue of whether Judge Schwarzer had any authority to issue an injunction in direct violation of a statutory mandate not to do so?
I decided I needed help. I called my Civil Procedure professor Allan D. Vestal, a renowned legal scholar, to help me. http://www.press-citizen-media.com/150/vestal.html He found a case where the United States Supreme Court granted mandamus ordering a federal district court to timely decide the case before it.
With Vestal’s gift I brought a mandamus action against the Ninth Circuit Court of Appeals to decide whether Schwarzer, a federal judge, had any authority under the Fishery Conservation Act to enjoin my clients from fishing.
The mandamus petition was addressed to Chief Justice William H. Rehnquist, who was responsible for overseeing the Ninth circuit at that time.
During this time period the Supreme Court was frequently overturning Ninth Circuit decisions.
To be continued in next blog…