State v. Guidry , 153 Wash. App. 774 ( 2009 )

¶1 Larry Guidry appeals his convictions for first degree fish dealing without a license, first degree fish trafficking without a license, four counts of participation of a non-Indian in an Indian fishery for commercial purposes, and four counts of first degree commercial fishing without a license. He argues that the trial court should have dismissed the charges against him because he lawfully fished under the Nisqually Tribal Code (Tribal Code). He also argues that insufficient evidence supports his convictions for fish dealing and fish trafficking and that the trial court erred in imposing restitution. We reverse his convictions, vacate the restitution order, and remand.

Houghton, J.

FACTS

¶2 Guidry lives on the Nisqually Indian Reservation with his wife, Lorena.¹ Lorena is a member of the tribe, but Guidry is not.

¶3 In 1854, the tribe signed the Treaty of Medicine Creek (Treaty). 10 Stat. 1132 (1854). The Treaty preserves the tribe’s right to fish on the reservation and on all usual and accustomed places. United States v. Washington, 384 F. Supp. 312, 369 (W.D. Wash. 1974) (Boldt). The tribe’s usual and accustomed fishing places include the saltwater areas located at the mouth of the Nisqually River and the surrounding bay, and the freshwater courses of the Nisqually River and its tributaries. Boldt, 384 F. Supp. at 369.

¶[4 On January 11, 2005, Fish and Wildlife Officer Carl Klein observed Guidry and a companion outside Reservation boundaries standing with signs advertising fresh salmon for sale. They offered to sell Klein salmon and he declined. Klein then asked if either man had a State license to sell salmon and Guidry produced a spousal Treaty card.² Guidry did not have a State-issued wholesale or commercial license and he has never possessed one.

¶5 Between December 18 and 21, 2005, wildlife officers observed Guidry fishing on the Nisqually River. On those four days, Guidry launched his boat into the Nisqually River from the Riverbend Campground and used a gill net for the fishing. That campground is not on Reservation land, but it is within the tribe’s usual and accustomed fishing places on the Nisqually River. On each of the four days, Guidry unloaded a commercial quantity of fish from his boat and sorted it in a commercial manner by gender. He did not have anyone on the boat with him during the four days nor did anyone help him with the boat, the nets, or loading and unloading the fish.

16 Guidry filled out three “Treaty Indian Fish Receiving tickets”³ using Lorena’s Treaty card. The tickets showed that on (1) December 18, he sold $684.80 worth of chum salmon, (2) December 19, he sold $355.60 worth of chum salmon, and (3) December 20, he sold $587.65 worth of chum salmon. The December 18 ticket indicated that he used a drift gillnet and that the catch occurred on the Reservation. The December 19 and 20 tickets indicated that he used a set gill net and that the catches occurred off the Reservation. Nothing on the tickets suggested that he had fished outside of the usual and accustomed fishing places on the Nisqually River. He signed each ticket as the fisher.

¶7 The State charged Guidry with first degree unlicensed fish dealing (count I); first degree unlawful trafficking in fish, shellfish, or wildlife (count II); four counts of participation of non-Indian in an Indian fishery for commercial purposes (counts III-VI); and four counts of first degree commercial fishing without a license (counts X-XII).⁴ He waived his right to a jury in favor of a bench trial.

¶8 At trial, Klein testified that a “commercial quantity” of fish caught with a gill net is six or more adult salmon. Report of Proceedings at 66, 75. He stated that he had observed Guidry unload between 50 to 100 salmon, each weighing an average of 10 pounds, on December 18. Although Klein did not know the usual sales price per pound for the fish, he stated that the fish Guidry caught on December 18 and 19 were worth more than $250.

¶9 Guidry testified and admitted to catching and selling fish, but he said that the tribe’s spousal fishing permit allowed him to do so. He stated that his wife helped him prepare, process, and smoke the fish. She also checked on him periodically at the boat launch. Guidry used the money from the fish sales to provide for his family. He stated that he fished mostly on the reservation and did so between December 18 and December 21, 2005. He testified that his wife was not with him when he was fishing between December 18 through December 20.⁵

¶10 The trial court found Guidry guilty on all counts and he appeals.

ANALYSIS

Counts I and II

¶11 Guidry first contends that insufficient evidence supported his convictions for first degree fish dealing without a license (count I) and first degree unlawful trafficking in fish (count II). Both convictions relate to his January 11, 2005 conduct when he sold fish on the side of the road outside reservation land.

f 12 Sufficient evidence supports a conviction when any rational fact finder could find the essential elements of the crime beyond a reasonable doubt when viewing the evidence in the light most favorable to the State. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004), aff’d, 166 Wn.2d 380, 208 P.3d 1107 (2009). An insufficiency of the evidence claim admits the truth of the State’s evidence and all reasonable inferences drawn from it. Thomas, 150 Wn.2d at 874.

f 13 In order to convict Guidry for first degree fish dealing without a license, the State had to prove beyond a reasonable doubt that he had engaged in wholesale selling, buying, or brokering of fish without a license and that the fish were worth $250 or more. RCW 77.15.620(3). In order to convict Guidry of first degree trafficking in fish, the State had to prove, among other elements, that the fish were worth $250 or more. RCW 77.15.260(2).

¶[14 At trial, the State established that Klein had observed Guidry and a companion on the side of a road with a sign advertising fish for sale and that Guidry had asked Klein if he would like to buy any salmon. The State produced no evidence as to the value of the fish, and it failed to sufficiently establish all the essential elements to convict Guidry on counts I and II. Thus, we reverse and remand with instructions to dismiss counts I and II with prejudice.⁶ See State v. Stanton, 68 Wn. App. 855, 867, 845 P.2d 1365 (1993) (as a matter of law, insufficient evidence requires dismissal with prejudice).

Counts III - X

¶15 Guidry next contends that counts III through X should be dismissed because he lawfully fished under Tribal Code 14.20.01; RCW 77.15.570 unlawfully curtails his rights under the Tribal Code; and the State did not establish beyond a reasonable doubt that from December 18 through December 21, 2005, he fished outside the tribe’s usual and accustomed places on the river.⁷ The State counters that Guidry was not lawfully fishing under the Tribal Code because his member spouse was not present at the fishing site with him and federal court decisions and Tribal regulations do not allow a nonmember to exercise a tribal member’s treaty rights.

¶16 The Tribal Code and Washington law contain conflicting language. Under the Tribal Code, the tribe’s right to fish in its usual and accustomed fishing places on the Nisqually River may be exercised by “enrolled members or their authorized assistants” as established under Tribal Code 14.20.01; Boldt, 384 F. Supp. at 412. The Tribal Code allows a nonmember spouse to fish on behalf of the member without that member present in the boat while in usual and accustomed places on the Nisqually River.⁸ Tribal Code 14.20.01(d)(i)(A). The Tribal Code further provides that a nonmember spouse may assist an enrolled member on reservation fishing sites or within the tribe’s usual and accustomed off-reservation fishing sites, including the Nisqually River. Tribal Code 14.20.01(c)-(d). The Tribal Code defines “exercise or assist in the exercise of any fishing right” as

to handle or operate any boat or other vessel used in fishing, to handle or operate any net, device used in the operation of any net, or any other gear used in fishing; or to use a treaty fisherman or other Indian identification card in fishing or in the sale, trading or peddling of fish.

Tribal Code 14.19.03(a).

¶17 Neither party disputes that between December 18 and December 21, 2005, Guidry confined his fishing to the reservation and/or usual and accustomed places on the Nisqually River. On these days, he fished without his tribal member spouse on the boat or at the fishing site. He assisted his tribal member spouse to exercise her fishing rights by operating a boat and nets for fishing purposes in her absence. He also possessed a fishing identification spouse card as the Tribal Code required. Tribal Code 14.21.01(b). Thus, he lawfully fished under the Tribal Code’s broad definition of “assist.”

¶18 Under RCW 77.15.570, however, spouses of a “treaty Indian fisherman may assist the fisherman in exercising treaty Indian fishing rights when the treaty Indian fisherman is present at the fishing site.” RCW 77.15.570(3)(a) (emphasis added). The State asserts that we must apply RCW 77.15.570(3)(a) and not the Tribal Code. To support its argument, the State relies in part on State v. Price, 87 Wn. App. 424, 942 P.2d 377 (1997), and urges us to follow it.

¶19 In Price, the trial court found a nonmember spouse of a Yakama Indian Nation (Yakama) member guilty of participating in fishing by a non-Indian in an Indian fishery. 87 Wn. App. at 425-26. Price did not, however, involve a conflict between RCW 77.15.570 and the Yakama Tribal Code because the code itself prohibited nonmembers from operating or assisting members. 87 Wn. App. at 431-32. Additionally, the Chair of the Yakama Tribal Council Fish Committee explained that the Yakama do not authorize tribal fishing in the northern Puget Sound where Price fished. Price, 87 Wn. App. at 431-32. Here, in contrast, the Tribal Code allows fishing by nonmember spouses in certain circumstances. And the tribe asserts that Guidry lawfully fished under its Tribal Code. Thus, Price does not apply here.

¶20 Next, we must decide whether RCW 77.15.570’s requirement that Guidry’s tribal member spouse be present at the fishing site is proper under Boldt. Boldt unequivocally states, “A treaty right fisherman may also be assisted by his or her spouse (whether or not possessing individual treaty rights), forebears, children, grandchildren and siblings.” 384 F. Supp. at 412. Boldt also provides that the State cannot deny or qualify treaty fishing rights except when reasonable and necessary for conservation. 384 F. Supp. at 333, 342. In order to show that a State regulation is a lawful exercise of the State’s power, Boldt notes that

[ejvery regulation of treaty right fishing must be strictly limited to specific measures which before becoming effective have been established by the state, either to the satisfaction of all affected tribes or upon hearing by or under direction of this court, to be reasonable and necessary to prevent demonstrable harm to the actual conservation of fish.

384 F. Supp. at 342.

¶21 Thus, we hold that if a nonmember spouse assists the member spouse to fish on the reservation or at the tribe’s usual and accustomed fishing places in a manner approved in the Tribal Code, the State cannot impose different conditions unless reasonable and necessary for the conservation of the resource. The State has not shown that it is reasonable and necessary here.

¶22 State regulations cannot discriminate against Indian fishers. Boldt, 384 F. Supp. at 333. Not allowing Guidry to fish as he did here denies his tribal member spouse’s rights. Moreover, because an Indian exercising treaty fishing rights is not required to possess a commercial fishing license, the State cannot require that a nonmember spouse possess one when assisting the member spouse. See Boldt, 384 F. Supp. at 358 (treaty Indians are not required to purchase a license or pay a landing tax); State v. Petit, 88 Wn.2d 267, 558 P.2d 796 (1977) (implies that lawful Indian fishing on usual and accustomed fishing places exculpates charge for commercial gillnetting without a license).⁹

f23 Because, under these facts, Guidry lawfully fished, we reverse his convictions for counts III through X. He also contends that the trial court erred in entering a $10,000 restitution order. Because we reverse his convictions, we vacate the restitution order.

¶24 To summarize, we reverse all of Guidry’s convictions, vacate the restitution order, and remand.

Van Deren, C.J., concurs.

1 We refer to Lorena by her first name for clarity, intending no disrespect.

2 The Tribal Code requires that tribal members and their spouses possess a tribe-issued fishing identification card to exercise their fishing rights. Tribal Code 14.20.01(b).

3 A Treaty Indian Fish Receiving ticket is a receipt from the sale of salmon. Copies of tickets go to the Tribe and to the State for salmon management purposes.

4 The State also charged Guidry with obstructing a law enforcement officer (count XI). When law enforcement officers attempted to arrest him on December 21, 2005, he resisted by grabbing his truck’s steering wheel. The arresting officers had to forcibly remove him from his truck and handcuff him. The trial court found him guilty on this count, and he does not challenge this conviction.

5 Lorena testified that she does not go with Guidry when he fishes because fishing season occurs during cold winter months and the boat is too small for both of them. She also said she stayed on reservation land on December 20 and 21, 2005, but she did not on December 18 and 19, 2005.

6 Guidry also contends that his count I and II convictions violate double jeopardy. Because we reverse these convictions for insufficient evidence, we do not address this issue.

7 The tribe filed a amicus curiae brief, which states that Guidry lawfully fished between December 18 and December 21, 2005.

8 But both the nonmember spouse and the member must be present on the boat in any other usual and accustomed fishing places. Tribal Code 14.20.01(d)(i)(B).

9 The dissent disagrees with our reasoning here and asserts that our reliance on cases dealing only with Indians is in error. This goes to the heart of our disagreement. In the unique situation where a non-tribal-member spouse assists the tribal member spouse to exercise his/her treaty fishing rights, all protections afforded under Boldt must necessarily extend to the assisting nonmember spouse. To hold otherwise would effectively limit the tribal member’s unequivocal fishing rights under Boldt.