See id. The Tribes' claim for declaratory relief is moot. In their opening brief, the Tribes argue that "the State of Idaho and the Defendants have continually harassed the members of the Shoshone-Bannock Tribes who are engaged in off-Reservation treaty activity However, as was the case in Headwaters , the actual claims pleaded by the Tribes in their complaint are narrowly focused on a single past event, the closure order. See F. Nowhere in their complaint do the Tribes mention a single incident of harassment or attempt by defendants to curtail the Tribes' treaty rights other than by reason of the adoption of the order.
The Tribes' narrow claims requesting a declaration of the invalidity of the closure order are therefore moot. This case is distinguishable from the other salmon fishing cases cited by the Tribes, United States v. Oregon, F. Washington, F. Gordon, F. In each of those cases, the district court either had assumed continuing jurisdiction over a river management plan to review and approve allocations of fishing rights, or there was a present remedy, such as raising or lowering future allocations, which could rectify the damage resulting from the expired orders.
Neither of these factors is present here. The Tribes argue that, even if their claim is technically moot, it falls within the mootness exception for conflicts which are capable of repetition yet evading review. This exception will apply if 1 Fish and Game's action challenged by the Tribes was of too short duration to be fully litigated prior to its cessation or expiration, and 2 there is a reasonable expectation that the Tribes will be subjected to the same action again.
Murphy, U. The first element is satisfied. The Tribes' salmon fishing season was only three weeks long, and the order expired after less than four months. It is likely that similar future conflicts would run their course in the same amount of time. However, as the district court determined, it is unlikely that a sufficiently similar action will occur in the future to satisfy the second element of the exception.
Dunkle, F. In that case, the plaintiff sued the United States Fish and Wildlife Service, alleging that the Service did not have the authority to permit Native Americans to hunt migratory birds. As with salmon fishing, the season for migratory bird hunting is short, and the season at issue was over well before the merits of the case could be addressed. We held that the dispute was capable of repetition yet evading review because:. The parties are unsure which laws govern the subsistence hunting of migratory game birds in Alaska.
Unless the law is clarified it may not be possible to develop a program that addresses the population decline of migratory birds. Unlike in Dunkle, the legal standards which govern the authority of a state to regulate an Indian tribe's treaty fishing rights are clear. A line of decisions by the Supreme Court involving the regulation of salmon fishing in Washington has answered this question.
The state may regulate a tribe's fishing rights as necessary for conservation of the fish, but "the State must demonstrate that its regulation is a reasonable and necessary conservation measure, Washington Game Dept. Puyallup Tribe, U. Washington, U. We have further determined that the Tribes' interest in self-governance requires that an additional requirement be met. In order to regulate a tribe's fishing rights, the state must demonstrate that the tribe's own conservation measures are insufficient to meet the needs of conservation.
See United States v. The district court correctly applied these principles. The Tribes contend that it is necessary for us to define the meaning of "conservation necessity" in order to give guidance to the parties in regulating their future conduct.
To the contrary, the meaning of conservation necessity in the context of salmon runs has already been determined. United States v. This is not a case like Dunkle where the same parties are likely to encounter similar conflicts in the future without any clear legal standards to guide them. Here, the legal standards are well established. An application of those standards to a moot controversy whose exact facts cannot recur will not avert future conflict.
The circumstances of each year's salmon run are different, and the necessary conservation measures will change with them. Moreover, the listing of the Salmon River Spring Chinook Salmon as a threatened species by the National Marine Fisheries Service has so changed the legal dynamics of the interaction among the Tribes, the federal government and the state that it is highly unlikely that the same or a similar action by the state will occur in the future in anything like the manner in which it occurred in See 16 U.
We remand the question to the district court for factual development and resolution. The magistrate judge's report and recommendation adopted by the district court states that, even if the complaint were amended to state claims against the officials in their individual capacities, "it is highly unlikely that the Tribes would prevail" because the officials are entitled to qualified immunity.
We will decide an issue of law avoided by the district court where it becomes dispositive on appeal if we are equipped to do so. RTC Transp. Conagra Poultry Co. If we are not equipped to address the issue we will remand to the appropriate court.
State officials are entitled to qualified immunity if their conduct did "not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Fitzgerald, U. Where the defendant raises the affirmative defense of qualified immunity, the initial burden is upon the plaintiff to show that the rights were clearly established, after which the defendant bears the burden of proving that his conduct was reasonable.
Romero v. Kitsap County, F. There are three inquiries necessary to a determination of qualified immunity: 1 an identification of the right allegedly violated, 2 the determination whether that right was clearly established so that a reasonable official would have been aware of it and 3 the resolution of whether a reasonable official could have believed that the conduct at issue was lawful.
The first two questions are issues of law; the third, although ultimately a legal question, may require fact finding as well. The Tribes' right is and was clearly established. For more than twenty years, the Fort Bridger Treaty has been interpreted to reserve to the Tribes the right to fish on unoccupied lands of the United States. State v. Tinno, 94 Idaho , , P. It is equally well established that the states may not limit on conservation grounds an Indian tribe's treaty right to fish except where the limitation is necessary to the preservation of the fish.
Puyallup, U. Any reasonable Idaho Fish and Game official would have known of these long established rights. The determination of whether a reasonable official could have believed that the closure order did not violate the Tribes' treaty right if it did violate that right requires factual determinations.
Our review of a motion to dismiss is limited to the contents of the pleadings. See Buckey v. County of Los Angeles, F. If, as the Tribes allege in their amended complaint, the closure order was not necessary to the conservation of the salmon, then the order violated the Tribes' clearly established right. On the other hand, if the defendants' version of the facts is true, the order was necessary to conservation and there was no violation.
Further, in denying the Tribes' motion for summary judgment, the district court already determined that there is a disputed issue of material fact as to whether the state closure order was necessary to conservation. That determination is not before us. The Tribes' claim must survive a more demanding legal standard here than on the merits i. We cannot determine from the record before us, however, what the circumstances of the salmon run appeared to be, and therefore whether a closure order could reasonably have appeared to be necessary.
The inquiry requires an examination of facts not before us and upon which the parties disagree. The order of the district court dismissing the Tribes' claim under 42 U. We remand that claim to the district court for further proceedings consistent with this opinion.
The Honorable William H. The district court declined to address whether the Tribes' claims against the state officials in their individual capacities were barred, finding instead that the complaint did not state such claims see below.
It also did not address the question of whether the claims for injunctive and declaratory relief were barred, having found those claims to be moot. The appellees argue that the complaint does not allege any actions by Conley causing damage to the Tribes. This is incorrect.
As noted above, the complaint alleges actions taken by "Defendants" presumably all of them sufficient to state a cause of action under section While it is true that the complaint centers upon the issuance of the Commission's order, over which Conley had no control, as director of the Idaho Fish and Game Department Conley has the authority to enforce all orders of the Commission, including the order challenged by the Tribes.
Idaho Code Sec. The complaint alleges that "Defendants have prohibited or unduly restricted the Tribes and their members from taking salmon from certain areas where the salmon are plentiful. Your Notes edit none. Cited By 33 This case has been cited by other opinions: Ralph E. Thornton Cheryl A. Thornton v. City of St. Jay Stroh, Director of the … 99 Cal. Daily Op. The circumstances resemble, in many respects, those of Heckler v. Chaney, U. For reasons that fully apply to this case, the Supreme Court held that "agency refusals to institute investigative or enforcement proceedings" are presumed immune from judicial review under 5 U.
Courts are ill-equipped to evaluate the factors that go into a decision not to bring suit or to enforce regulations. In addition, the government's refusal to institute legal proceedings--as compared to an affirmative exercise of power--is less likely to encroach upon protected liberty or property interests. Judicial monitoring of a refusal to act is correspondingly less necessary. To be sure, Chaney held only that an agency's decision not to enforce its regulations is presumptively unreviewable.
Judicial review may be had if Congress has "indicated an intent to circumscribe agency enforcement discretion, and With respect to this case, is there a "meaningful standard" for assessing whether and how the Attorney General should exercise her discretion in deciding to assert claims on the Tribes' behalf in the Snake River basin water rights adjudication? The Tribes identify no statute or other restriction so limiting the Attorney General's discretion here.
The provision conferring authority on the Attorney General to represent tribal interests contains no "meaningful standard" limiting her prosecutorial discretion. That provision, 25 U. Morton, F. Pyramid Lake rejected a tribe's claim for reimbursement of its legal expenses incurred in its successful challenge to a regulation promulgated by the Secretary of the Interior.
We held that Sec. Escondido Mutual Water Co. Even without this precedent, however, we would conclude that Sec. Volpe, U. The provision does not withdraw discretion from the Attorney General, and it offers no standards for judicial evaluation of the Attorney General's litigating decisions to pursue or not to pursue particular claims.
The Tribes have not alleged and the record does not show that the Attorney General acted in bad faith in rejecting the Tribes' request. There is surely nothing in Sec. Professional ethics are not suspended whenever an Indian tribe seeks to have the government represent it.
Idaho has its own Rule 11, comparable to Rule 11 of the Federal Rules of Civil Procedure, requiring attorneys who sign and file pleadings and other papers to have a reasonable belief that the pleading or paper is well grounded in fact and is warranted by existing law or a good faith argument for the extension of existing law. While it is true that the United States acts in a fiduciary capacity in its dealings with Indian tribal property, United States v.
Cherokee Nation of Oklahoma, U. United States v. Mitchell, U. We agree with the district court that an Indian tribe cannot force the government to take a specific action unless a treaty, statute or agreement imposes, expressly or by implication, that duty. Andrus, F. The Treaty of Fort Bridger, giving the Tribes their right to hunt on "the unoccupied lands of the United States so long as game may be found thereon," does not require the United States to litigate the claim the Tribes desire to pursue in Idaho.
There is nothing to the Tribes' contention that the "mere existence" of the Treaty requires the federal government to protect whatever claims to off-reservation water rights the Tribes may wish to advance. Mitchell I, U.
The Treaty creates a doubly contingent tribal hunting right: the federal lands outside the Reservation must remain unoccupied, and game must continue to be found on those federal lands. The Treaty does not suggest in the slightest that upon the Tribes' request, the United States is bound to file and defend meritless claims to water rights allegedly derived from this provision.
The Tribes have a conditional hunting right as against the United States, not a right to demand that the Department of Justice act as its attorney for any and all claims the Tribes consider worth filing in state court.
To the extent the government had some duty to evaluate the Tribes' position before rejecting it, it fulfilled that obligation. The government undertook instream flow studies; discussed with the Tribes their claim to off-reservation water rights; retained a historian to determine if the Treaty might be read as the Tribes apparently viewed it; and actively sought the assistance of the Tribes and their experts.
The Tribes point us to three cases supporting, they say, their contention that the government's role as trustee requires the Attorney General to file claims on their behalf in the Idaho proceeding. In the first, Fort Mojave Indian Tribe v. United States, 23 Cl. California proceeding that quantified the tribes' federal reserved water rights.
That the tribes had such reserved rights all agreed. The only issue was how the rights should be measured. The Claims Court held that the United States was not immune from the suit and that the federal government had a duty to protect the tribes' property--the reserved water right, which the government held in trust.
On the question before us, Fort Mojave has nothing to say. Nowhere in their complaint do the Tribes mention a single incident of harassment or attempt by defendants to curtail the Tribes' treaty rights other than by reason of the adoption of the order. The Tribes' narrow claims requesting a declaration of the invalidity of the closure order are therefore moot. This case is distinguishable from the other salmon fishing cases cited by the Tribes, United States v.
Oregon, F. Washington, F. Gordon, F. In each of those cases, the district court either had assumed continuing jurisdiction over a river management plan to review and approve allocations of fishing rights, or there was a present remedy, such as raising or lowering future allocations, which could rectify the damage resulting from the expired orders. Neither of these factors is present here. The Tribes argue that, even if their claim is technically moot, it falls within the mootness exception for conflicts which are capable of repetition yet evading review.
This exception will apply if 1 Fish and Game's action challenged by the Tribes was of too short duration to be fully litigated prior to its cessation or expiration, and 2 there is a reasonable expectation that the Tribes will be subjected to the same action again. Murphy, U. The first element is satisfied.
The Tribes' salmon fishing season was only three weeks long, and the order expired after less than four months.
It is likely that similar future conflicts would run their course in the same amount of time. However, as the district court determined, it is unlikely that a sufficiently similar action will occur in the future to satisfy the second element of the exception. Dunkle, F. In that case, the plaintiff sued the United States Fish and Wildlife Service, alleging that the Service did not have the authority to permit Native Americans to hunt migratory birds.
As with salmon fishing, the season for migratory bird hunting is short, and the season at issue was over well before the merits of the case could be addressed. We held that the dispute was capable of repetition yet evading review because:. Unlike in Dunkle, the legal standards which govern the authority of a state to regulate an Indian tribe's treaty fishing rights are clear. A line of decisions by the Supreme Court involving the regulation of salmon fishing in Washington has answered this question.
The state may regulate a tribe's fishing rights as necessary for conservation of the fish, but "the State must demonstrate that its regulation is a reasonable and necessary conservation measure, Washington Game Dept. Puyallup Tribe, U. Washington, U. We have further determined that the Tribes' interest in self-governance requires that an additional requirement be met.
In order to regulate a tribe's fishing rights, the state must demonstrate that the tribe's own conservation measures are insufficient to meet the needs of conservation.
See United States v. The district court correctly applied these principles. The Tribes contend that it is necessary for us to define the meaning of "conservation necessity" in order to give guidance to the parties in regulating their future conduct. To the contrary, the meaning of conservation necessity in the context of salmon runs has already been determined. United States v. This is not a case like Dunkle where the same parties are likely to encounter similar conflicts in the future without any clear legal standards to guide them.
Here, the legal standards are well established. An application of those standards to a moot controversy whose exact facts cannot recur will not avert future conflict. The circumstances of each year's salmon run are different, and the necessary conservation measures will change with them.
Moreover, the listing of the Salmon River Spring Chinook Salmon as a threatened species by the National Marine Fisheries Service has so changed the legal dynamics of the interaction among the Tribes, the federal government and the state that it is highly unlikely that the same or a similar action by the state will occur in the future in anything like the manner in which it occurred in See 16 U.
That, added to the lack of any need for further court definition of the governing legal principles, demonstrates that the situation in question here is not truly capable of repetition.
The Tribes argue that the district court erred in its determination that their claims for damages against Fish and Game and the other defendants in their official capacities were barred by the Eleventh Amendment. Ulaleo v. Paty, F. On the other hand, to the extent the Tribes' amended complaint seeks damages from the state officials in their individual capacities, such claims are not barred by the Eleventh Amendment.
Price v.
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