Justice for Wards Cove

By Douglas M. Fryer

The book tells the story of a highly controversial civil rights case which involved the Alaska salmon industry. That industry is an intense summer operation in mostly remote wilderness. The participants were drawn from a wide range of sources: Natives who had harvested salmon for centuries, Italian, Croatian and Scandinavian fishermen and Asians who historically manned the canning lines. The unskilled cannery work was supplied by a predominantly Filipino controlled union. In the early 1970s young activist members of that union initiated a class action suit against Wards Cove Packing Company contending that minority employees were segregated into separate housing and messing and excluded from better paying jobs. The plaintiff s lost the case at trial to the surprise of many and multiple appeals followed. The Supreme Court in a 5-4 decision, over a bitter dissent, ruled in favor of Wards Cove holding that discrimination had not been proven by either the class of workers or by any single worker. The high courts decision was roundly criticized in the press and academia and Congress attempted to intervene. The executive branch became an advocate, first as a party, and later as a friend of the court but changed sides after an election. The case tested the boundary of separation of powers but ultimately the Supreme Court found a way to insulate its decisional process from Congressional interference. There has been a lingering misunderstanding of the case in the media. It has been recently re-enacted as a denial of justice and it has been described by some academics as the death knell of the civil rights movement. This book explains how the plaintiff s lost the main event at trial and how multiple appeals heard by 27 judges did not change the facts as found by the trial court as to what actually happened.

• Language: English
• Publisher: Xlibris US
• Release date: Jul 16, 2016
• ISBN: 9781514477076

Douglas M. Fryer

Douglas M. Fryer served as lead counsel for the defense in this class action case. In his youth he went to sea on voyages to India and the Arctic and worked as a commercial salmon fisherman in Southeast Alaska. Graduating from the University of Washington, with degrees in Business (BA) and Law (JD), Order of the Coif, he was recruited under the Attorney General Honors Program to serve as a trial attorney in the Department of Justice. Later he was appointed as an Assistant United States Attorney by Robert F. Kennedy and Byron White. Upon leaving the government service he engaged in the private practice, specializing in maritime law and handled many cases arising in the North Pacific and Alaska. He was appointed by the federal government of Canada to handle a major west coast oil spill case and served for many years as disciplinary counsel for the Washington State Bar Association. Mr. Fryer was 40 years old when asked to defend Wards Cove Packing Company in this long lasting litigation and he was 68 when the case was finally concluded. He lives in Anacortes Washington with his wife Karen where they are active sailors.

Book preview

JUSTICE FOR

WARDS COVE

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Douglas M. Fryer

Copyright © 2016 by Douglas M. Fryer.

Library of Congress Control Number:   2016904513

ISBN:      Hardcover   978-1-5144-7709-0

                Softcover     978-1-5144-7708-3

                eBook           978-1-5144-7707-6

All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the copyright owner.

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Rev. date: 01/27/2017

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CONTENTS

Acknowledgments

Introduction

Prologue

Chapter 1 The Industry

Chapter 2 Wards Cove Packing Company and Columbia River Packers Association

Chapter 3 The Case Period Begins in 1971

Chapter 4 The Lawsuit Gets Underway

Chapter 5 State of the Law as Shaped by the Courts

Chapter 6 Proving Discrimination

Chapter 7 Initial Proceedings and Discovery

Chapter 8 Domingo v. New England Fish Company

Chapter 9 Events Leading to Trial

Chapter 10 The Trial Process as the Main Event

Chapter 11 The Crucible of Trial Begins

Chapter 12 The First Appeal on the Merits: Round One

Chapter 13 The Court of Appeals: Round Two

Chapter 14 Round Three and Watson v. Fort Worth Bank

Chapter 15 In the Supreme Court

Chapter 16 The Battleground Shifts to Congress and the Executive

Chapter 17 The Trial Court: Round Two

Chapter 18 Congress, the Courts, and Separation of Powers

Chapter 19 The Civil Rights Act of 1991 and the Wards Cove v. Atonio Exemption

Chapter 20 Retroactivity and Separation-of-Powers Decisions while a Second Wards Cove Appeal on the Merits Is Pending

Chapter 21 Return to the Court of Appeals

Chapter 22 Political Forces Renew Efforts to Overrule the Supreme Court

Chapter 23 The Supreme Court Takes up the Retroactivity Question

Chapter 24 The Ninth Circuit and the Law of the Case Cuts One Way

Chapter 25 The Landgraf and Rivers Decisions and the Question of Retroactivity Decided

Chapter 26 The Industry Begins to Change and Plaintiffs Get Help from the Administration

Chapter 27 The Trial Court’s Third and Final Hearing

Chapter 28 A Final Pair of Decisions

Epilogue

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To Alec Brindle and the Brindle family and to my wife Karen

ACKNOWLEDGMENTS

M any people deserve credit for aiding the effort which produced this book. Alec Brindle reviewed the sections on the industry and company history. Professor Penny Hazelton of the University of Washington Law School did an initial review and encouraged the book’s completion. My long time friends, attorneys John Watts and Dexter Washburn who helped with the editing and provided comment. Captain Robert A. Moss, USCG (Ret.) and Jenny Blenk provided a review. Attorneys Glen Nager former law clerk to Justice O’Connor and Assistant to the Solicitor General and Roger Clegg who was formerly Deputy Assistant Attorney General when the case went to the Supreme Court reviewed the book with respect to the changes in disparate impact law and George Mannina reviewed the book regarding the legislative battles that followed the Supreme Court decision. Finally my former law partner Doug Duncan who assisted in developing the book’s themes and who acted as a sounding board throughout the project and my former partner Rick Phillips who also read the book in its final form.

TIMELINE OF MAJOR EVENTS AFFECTING THE LITIGATION

March 20, 1974 Complaint Filed in US District court Western District of Washington

June 14, 1976 Order certifying class action.

July 14, 1980 Judgment from Court of Appeals affirming denial of Gene Viernes motion for preliminary injunction. (Not Published).

March 31, 1982 Court of Appeals reverses dismissal of Title VII claims against Wards Cove and Bumble Bee and affirms dismissal of Title VII claims against Columbia Wards Fisheries. Reported at 703 F. 2d 329.

May 2, 1982 Trial commences.

May 18, 1982 Trial concludes.

November 4, 1983 Trial court enters opinion and judgment for defendants. Reported at 34 Empl. Prac. Dec. (CCH) P34,437, as amended December 12, 1983.

February 6, 1985 oral argument in Court of Appeals.

August 16, 1985 Court of Appeals affirms dismissal of plaintiffs’ claims. Reported at 768 F.2d 1120.

November 19, 1985 Court of Appeals orders rehearing en banc. Reported at 787 F.2d 462.

February 18,1986 oral argument Court of Appeals.

February 23, 1987 Court of Appeals en banc holds disparate impact analysis can be applied to subjective hiring practice. Reported at 810 F.2d 1477.

September 2, 1987 Court of Appeals holds prima facie case of disparate impact is established. Dismissal of disparate treatment claims affirmed. Reported at 827 F.2d 439.

April 4, 1988 Supreme Court denies plaintiffs’ petition for certiorari. 485 U.S. 989.

June 30, 1988 Supreme Court grants defendants’ petition for certiorari. 487 U.S. 1232.

September 15, 1988 Supreme Court denies plaintiffs’ petition for rehearing on certiorari denial.

January 18, 1989 oral argument Supreme Court.

June 5, 1989 Supreme Court reverses Ninth Circuit holding that a prima facie case of impact was established. 490 U.S. 642.

January 25, 1990 Court of Appeals remands to District Court.

July 27, 1990 oral argument in District Court.

October 20, 1990 President George H.W. Bush vetoes Civil Rights Act of 1990.

January 25, 1991, District Court dismisses plaintiff’s case a second time. Reported at 54 Fair Empl. Prac.Cas. (BNA) 1623; 59 USLW 2526.

November 19, 1991 Representative McDermott introduces Justice for Wards Cove Workers Act.

November 21, 1991 President Bush signs into law Civil Rights Act of 1991.

September 17, 1992 oral argument Court of Appeals.

February 9, 1993 Ninth Circuit Court of Appeals holds Civil Rights Act of 1991 to apply retroactively in Estate of Reynolds v. Martin, 984 F.2d 345.

December 7, 1993 Court of Appeals affirms in part and reverses in part the District Court dismissal. Reported at 10 F.3d 1485.

October 13, 1993 oral argument in Landgraf and Rivers in Supreme Court on retroactivity of Civil Rights Act of 1991.

April 26, 1994 Supreme Court holds 1991 Act not retroactive. Reported at 511 U.S. 244; 511 U.S. 298.

October 3, 1994 Supreme Court denies plaintiffs’ petition for certiorari. 513 U.S. 809.

November 29, 1995 oral argument in District Court.

August 9, 1999 Supplemental Opinion in District Court dismissing plaintiffs’ claims a third time. Not reported.

August 7, 2000 oral argument Court of Appeals.

December 26, 2001 Court of Appeals affirms dismissal of plaintiffs’ claims. Reported at 275 F.3d 797.

INTRODUCTION

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.

—Oliver Wendell Holmes Jr., The Common Law

J anuary 24, 2013, was a typically gray winter day in Seattle. The University of Washington Law School had invited two professors, Mike McCann and George Lovell, from the university’s Political Science Department to present their paper on the case of Wards Cove Packing Company v. Atonio at a faculty colloquium . The thrust of the paper was that the decision of the Supreme Court in that case in 1989 was the death knell for the civil rights movement in the United States and in their words was a classic case of jurispathic judicial violence. They argued that legal officials, legal scholars, and sociolegal scholars alike had contributed to a systematic disregard of the erasures of legal resources for challenging structural hierarchies of race and had freed corporate employers from liability for those hierarchies. This view has been expressed by many, including members of Congress, and has continued without significant interruption since the last decision in the case in 2001.

Although widely held by many critics of the Supreme Court who are strong advocates of expanded antidiscrimination enforcement, the contention is primarily based upon the allegations of the plaintiffs in the litigation rather than what they were able to prove. An examination of the actual trial court record leads to quite different conclusions. The crucible of trial determined the truth, and ultimately, after twenty-seven federal appellate judges heard arguments on five appeals, not a single finding of fact by the trial court was ever set aside.

Wards Cove Packing Company v. Atonio was a federal class action lawsuit alleging racial discrimination in the Alaskan salmon canning industry. It has been described as a landmark case by the supporters of the losing side; it was one of the longest-running federal cases in recent times, spanning twenty-seven years from the date the complaint was filed in 1974, until the final appellate decision affirmed the trial court in 2001. During the generation while the case was in process through trial and eight appellate decisions, several of the principals, many important witnesses, and a number of the judges who participated in the appellate decisions had died.

The plaintiffs’ counsel had been successful in winning two parallel cases with superficially similar facts against competitors of the defendant Wards Cove¹ yet lost this case to the disbelief of many. The uncontroverted facts demonstrated that minorities constituted a large proportion of the low-paying jobs yet a small proportion of the higher-paying jobs. The court of appeals repeatedly found the employer’s practices to include racial segregation in housing and messing, and the company records were replete with race labeling. How could these practices possibly be justified? The answer was in the trial evidence as testified to by the witnesses and in the detailed fact-findings of the trial judge. That evidence demonstrated that the racial imbalance was because of the impact of history, job skill requirements, geography and a minority controlled union, not discrimination. The trial court, after hearing the evidence, came to this conclusion and dismissed all claims. The court of appeals initially affirmed that decision but, on rehearing, ruled that because the workforce was racially out of balance, the burden of proving the absence of discrimination was to be shifted to the defendants on a disparate impact theory. The disparate impact analysis allowed proof of discrimination by numbers, comparing whites and minorities in relation to their theoretical availability in the labor market. If the minority employees did not match their availability, an inference of discrimination might be drawn. It was a method of proving discrimination that arose from a common law, or judicially fashioned remedy, of the Supreme Court in the 1971 case of Griggs v. Duke Power.

Other than the unique industry from which the claims arose, there was nothing remarkable about the Wards Cove case until the Supreme Court granted review, and outside interests perceived the case as a vehicle to push their own agendas for their legal or political goals. Among the plaintiffs’ supporters before the Supreme Court were former Attorney General Nichols B. Katzenbach and several powerful organizations. Ultimately, all three branches of the federal government became involved in how the case should be decided. The Solicitor General Charles Fried supported the defendants before the Court; the Supreme Court in an opinion by Byron R. White ruled in the defendants favor in a 5–4 decision, over blistering and hyperbolic dissents by John Paul Stevens and Harry Blackmun; and Congress, which passed a 1990 civil rights bill that sought to overrule the Supreme Court, made it easier for the plaintiffs to prove discrimination and made the changes expressly retroactive. That bill would have dramatically altered the law and revived time-barred claims dismissed fifteen years before. Finally, the president himself, George H. W. Bush, took action and vetoed the retroactive 1990 bill, stating it would force employers to hire according to racial quotas. Congress narrowly failed to override the veto by one vote in the Senate but immediately went to work on a second bill, the Civil Rights Act of 1991. That bill expressly overruled the Supreme Court but was ambiguous as to retroactivity. It was passed by Congress and signed into law. This statute contained a specific exemption for the Wards Cove case from the legislation because the case had been tried and already argued on appeal four times, and it was felt by a majority of Congress that the changes in the law should not be retroactive to that lawsuit. Certain members of Congress did wish the statute to be retroactive and change the decision in the case in favor of the plaintiffs. They sought to remove the exemption with the introduction of a new bill, the Justice for Wards Cove Workers Act. Among those attempting to remove the exemption was Senator Brock Adams, whose law firm had been associated with the plaintiffs’ trial counsel before Adams was elected to the Senate. President Clinton also supported the Justice for Wards Cove Workers Act immediately after his election.

In the meantime, the plaintiffs mounted an unsuccessful attack on the exemption in the court of appeals on constitutional grounds. The plaintiffs then asked the Supreme Court to review that decision with the support of President Clinton’s new Solicitor General Drew Days. The Supreme Court denied review and subsequently held in the case of Landgraf v. USI Film Products that the Civil Rights Act of 1991 was not to be applied retroactively. This effectively mooted the Justice for Wards Cove Workers Act, and that bill died without reaching the floor. Finally, in December 2001, after more than a year’s deliberations, the court of appeals, after several inconsistent rulings, finally accepted the trial court’s findings of fact and again dismissed all claims while unjustifiably criticizing the plaintiffs’ counsel for not marshaling the evidence better.

Bitterness remains with those who were aligned with the plaintiffs and who cannot accept or understand the ultimate finding that the employers did not discriminate. The dissents of Justices Stevens and Blackmun are quoted today by those disappointed with the result as if the dissents were the Court’s opinion. Few critics of the decision have read the trial court’s decisions, which established the truth as far as our system of justice will permit. Facts are stubborn things as John Adams said, and those facts ultimately led the court system, after consideration by a total of twenty-eight judges, to dismiss all the plaintiffs’ claims.

The legal issues raised in the case and as altered by the Civil Rights Act of 1991 as to how the plaintiffs in other cases proved discrimination remain in tension to this day. The analytic model that minorities and whites cannot be treated separately tends to require employers to be color-blind in hiring, while the model that looks at the impact of hiring decisions and the racial balance of the workforce tends to be result oriented. These theories came into collision in June 2009 in Ricci v. DeStefano, another 5–4 Supreme Court decision, which held that an employer’s abandonment of a test that might have impacted minorities was a race-conscious decision and thus invalid when it led to hiring minorities in preference to the whites who had passed the test.

This book is about how a difficult and complex case was decided in favor of an employer on facts that seemed superficially outrageous and politically incorrect even by standards of thirty years past. The story is also about how the three branches of the federal government function in a case with political implications, where emotions run high and where the limits of separation of powers are tested. The case has been criticized by many as wrongly decided, and there have been efforts to rewrite its history. The following is an effort to set the sequence of events and material facts straight, and while admittedly told from the perspective of defense counsel, it is supported by the record. While I remained the lead counsel throughout the twenty-seven-year history of the case, the success is largely attributable to my associate attorneys who became my partners in the practice of law, Doug Duncan and Rick Phillips. They constituted a critical part of the defense effort, and we operated as a team.

PROLOGUE

I t was March 1974, and my law partner, Alec Brindle, walked into my office and handed me a complaint just filed in a federal court in Seattle against his family-owned business, Wards Cove Packing Company, and its partner, Bumble Bee Seafoods. The complaint alleged racial discrimination in employment by the defendants in their Alaskan salmon canning business and sought class action relief for back pay and injunctive relief to require increased hiring of nonwhites in higher-paying jobs. Alec asked me if I was willing to appear and defend the case. I did not have any experience with employment cases but did have considerable experience in the Alaskan fisheries, and I had been defending Wards Cove and Bumble Bee in a suit by Bristol Bay fishermen. I agreed to take the case with the assurance that Alec would provide the background facts and guide me through the business operations.

At that time, I was forty years old and had been practicing law for fifteen years primarily in litigation and mostly in maritime law. My interest in the maritime law had grown out of personal seagoing experience in my youth. Early on at age fifteen, I began to sail in small boats, which led me in 1950 to obtain a workaway position dishwashing on a ninety-seven-foot schooner, Gracie S, which operated as a boys’ camp, and I took my first trip to Southeast Alaska that year, traveling to Ketchikan, Juneau, Petersburg, Wrangell, and Sitka. It rained most of that trip; we ate salt beef and stood watches four hours on and four hours off on an open deck, and I was glad to get home. The next year, I graduated from high school and embarked on a more enjoyable trip on the schooner, this time to San Francisco, Los Angeles, and the Hawaiian Islands and return.

I wanted to see more of the world rather than entering college after graduation from high school. I found a couple of wintertime delivery trips on the Pacific Coast, one southbound on an eighty-seven-foot yacht to San Diego and then northbound on the 101-foot former pilot schooner Adventuress. Like Joseph Conrad’s Youth, I wanted to see the East and, in 1952, found a job as acting able-bodied seaman on the Liberty ship David B. Johnson, carrying grain to India by way of Honolulu and Singapore. I was not prepared for the poverty, the rampant disease, or the starvation in India. My first view of India was at Cuddalore, where we anchored the ship in a roadstead about four miles offshore and at daybreak saw a fleet of perhaps thirty lateen-rigged sailing lighters headed toward our ship, carrying some three hundred thin longshoremen, who were to sack two thousand tons of grain by hand and discharge it into the lighters in three days’ time. After that, we sailed up the Hooghly River to discharge the balance of the cargo at Calcutta. The next year, I went to Anchorage, Alaska, as a second mate on a converted 110-foot subchaser, carrying groceries, and then a three-month trip as ordinary seaman on the Bureau of Indian Affairs Knot ship North Star, carrying supplies to the Eskimos in forty-six towns and villages in the remote areas of the Bering Sea and the Arctic as far north as Point Barrow. This work was interrupted by some college courses at the University of Washington, but I found work at George Broom’s Sail and Rigging Loft at Maritime Shipyard for the summer of 1954 and on the purse seine fishing boat Molle for the summer of 1955. The Molle (Croatian for let go) was an Alaskan limit salmon seine boat fifty-one feet on the keel with an eight-man crew owned by Nakat Packing Company. We fished Excursion Inlet, Icy Strait, and the west side of Noyes Island in Southeast Alaska. Our home port in Alaska was the Waterfall Cannery on Prince of Wales Island touted to be the largest salmon cannery ever built. The next spring, I worked out of the Alaska Fishermen’s Union as a longshoreman and, in the summer of 1956, returned to the Gracie S and worked as a rigger for her new owner, actor Sterling Hayden, who renamed the schooner Wanderer.² My last seagoing job was the summer of 1957, when I worked on the 112-foot ocean tug Justine Foss, towing barges to Southeast Alaska, Kodiak, Anchorage, and Bristol Bay. In the process of these jobs, I worked out of two closed-shop hiring halls, the Sailors Union of the Pacific and the International Longshore and Warehouse Unions (ILWU). The closed-shop union has the right to do the exclusive hiring for employers. As a result, I witnessed firsthand overt discrimination in the Sailors Union and long-standing nepotism in the ILWU.

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Purse seiner.in Icy Strait 1955. A sister vessel to the Molle

(photo Doug Fryer)

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Doug Fryer during fishing days on the Molle in 1955

(photo Doug Fryer)

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Doug Fryer and shipmate on the Molle 1955

(Doug Fryer photo)

I thrived at the University of Washington Law School after obtaining a BA in business administration. The history of law, its ever-changing case-by-case decisional process, and the Socratic method of teaching got my full attention as nothing else had ever done. I did well enough on graduation in 1959 to be recruited by the Department of Justice Attorney General Honor Program, which sought honor graduates from law schools around the country. I was offered a position as a trial attorney in the Admiralty and Shipping Section, which I accepted, and my wife and I drove east in our two-door 1955 Chevrolet to settle in Alexandria, Virginia, about a fifteen-minute bus ride from the Department of Justice headquarters on Constitution Avenue. On arrival, I found that the honor program recruits were mostly from elite Ivy League schools, and the one young attorney with whom I had much in common was Ron Jacks from Minnesota, who was in the Appellate Section of the Civil Division. Ron and I became lifelong friends.

The Admiralty Section was staffed with lawyers who were trained in maritime law and traveled throughout the country to try cases involving the Navy, Coast Guard, Maritime Administration, and government-owned cargoes. I was sent around to various law offices and courtrooms in Miami, Pittsburgh, Philadelphia, Chicago, New York, Houston, Norfolk and Moorhead City for hearings, depositions, and motion practice but was not in the DC office long enough to actually try a case. I had only been there for fifteen months before I was again recruited, this time to return to Seattle and take a position as an Assistant United States Attorney to replace Jacob Mikkelborg, who was leaving for private practice. Mikkelborg had been doing the government’s maritime work, so it was a natural fit, except I was still woefully inexperienced for the caliber of work to be assigned. I took the transfer along with a modest cut in pay, and Robert Kennedy as Attorney General and Byron White as Deputy Attorney General signed my appointment certificate. White was destined for the Supreme Court and to be the critical decision maker in the Wards Cove case thirty years later.

While in the U.S. Attorneys Office, the experience came fast. I was given both civil work, admiralty work, and some criminal prosecutions. Most of the time, I was an adversary to more skilled lawyers, and this provided a real learning curve, even though the results were sometimes disappointing. I was in court almost daily on motions, pleas, sentencings, and trials. Late in 1961, Brock Adams was appointed United States Attorney, and he became my immediate supervisor. Brock was only thirty-four when appointed and was about the same age as Attorney General Robert F. Kennedy. He was a good person to work for, in that he was rarely critical of a subordinate and was almost always friendly and outgoing. I tried two cases as second chair to him, which included a defense of the Coast Guard in an air crash and the unsuccessful prosecution of the Canadian John Waslynchuk for the Greenwood bank robbery and murder of a Seattle police officer. Otherwise, Brock mostly left the cases I handled to my discretion. In my view, he had a dark side, which was closely guarded. This was revealed during the extradition proceeding for Waslynchuk when he confided that, if our Canadian counsel lost, Adams would announce to the press that we had been sold out. That did not happen, as the court granted extradition, but Waslynchuk was eventually acquitted on an alibi from a policeman of the Royal Canadian Mounted Police, who by happenstance had testified for Waslynchuk in a previous bank robbery trial.

I left the Department of Justice in 1965 and joined three former Assistant U.S. Attorneys who had formed the law firm of Broz, Long, and Mikkelborg. I remained with that firm and its successors for forty-seven years. Most of my work came out of the fishing industry based in Seattle and Alaska. It included a heavy litigation practice, and there were many vessel casualties involving loss of life in the stormy waters of the North Pacific and the Bering Sea. Some of the cases required frequent travel to Alaska, mostly to where the courts were located in Juneau, Ketchikan, Anchorage, Fairbanks, and Kodiak but also to places where the casualties occurred or litigation arose. I also became acquainted with many of the leaders in the fishing industry and their successes, as well as failures. Not a small number of my clients were lost at sea, so I became well aware of the dangers in the industry.

In the process of litigating cases, like most trial lawyers, my focus was on the judicial process, which is entirely removed from politics except in the rarest of situations. The potential interaction of the two was not a subject taught when I went to law school. In retrospect, I was somewhat naive to regard the judicial process as insulated. My first taste of political influence on a case I was handling was in 1982, before the Atonio case went to trial. The state of Alaska had seized a crab-fishing vessel outside its three-mile limit for a violation of state fishing regulations, and the Alaska Supreme Court had affirmed the seizure. We had argued that the area where the vessel had fished was subject to exclusive federal jurisdiction, and we petitioned the U.S. Supreme Court for review. The Court asked the Department of Justice for its views on the case, and the department prepared a brief strongly supporting our position. Unknown to me and my associate counsel, Alaska sent a lobbying delegation to the Department of Justice and persuaded the Solicitor General to change the brief and lessen support for review. As a result, only two justices voted for review, and the Court declined to hear the case.³ After this hard lesson, I was better prepared for the full onslaught of the political process when Congress sought to change the ruling in Wards Cove v. Atonio.

My lifelong avocation has been sailing, which has taken me extensively to British Columbia, Southeast Alaska, twenty-one trips to or from Hawaii, twice to French Polynesia, and a twenty-one-thousand-mile voyage around South America by way of Cape Horn and the Panama Canal. In the process, I was required to become skilled in both coastal and celestial navigation, boat maintenance, and adapting to life at sea. These skills helped me understand many of the challenges that confront all mariners, including those manning fishing vessels.

In 1976, our firm recruited Doug Duncan as an associate attorney right out of law school. Doug had graduated magna cum laude from Santa Clara University School of Law and had worked at the Court of Appeals for the Ninth Circuit as an extern, doing research and reviewing briefs for the court. When he was interviewed, we told him we were defending a class action employment discrimination case involving the Alaskan canneries. When he expressed interest in the case and employment law generally, a decision was made to hire him. Doug was given the task to organize the massive amount of information involving the case into what was useful evidence, to interview witnesses, and to hire expert witnesses. Doug also was to take a lead role in brief writing and legal research on the ever changing law of discrimination. He also argued the case in the trial court at a critical stage when I was gone on one of my sailing ventures.

In 1979, we recruited Rick Phillips, an honor graduate of the University of Puget Sound Law School and a former deputy prosecuting attorney. We assigned him to the Atonio defense team. Rick’s considerable experience as a trial lawyer proved invaluable during discovery and at trial. In two years with the prosecutor, he had tried twenty jury cases. He was born in Fresno, California, to a Mexican American mother and a father who came from a long line of farmers and was a journeyman machinist. His mother worked as a riveter in the aircraft industry during World War II, building B-17s. The family moved to a small farm town in Illinois, where Rick graduated from high school as class president. Rick started his working career picking strawberries for his grandfather and then at age twelve, for 50¢ an hour, trimming grass at a cemetery, which grew to digging and filling graves for his first two years in high school. He subsequently had many low-paying jobs through high school and college but managed to graduate from the University of Illinois in political science and gain acceptance to the first class of the University of Puget Sound Law School at Tacoma, Washington, and was a founding member of the law review.

Both Doug and Rick had competed at the varsity level in high school and college sports and were natural to the adversary nature of litigation. Importantly, they provided sage advice to me as lead counsel as to how the case could be best presented. We never had arguments over strategy or tactics, and I often acceded to their recommendations. If I can attribute any one thing to most of my successes in litigation, it has been developing the ability to invite and listen to the opinions of those who worked with me. The end result was truly a team effort.

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Southeast Alaska Ketchikan and Wards Cove Area (NOAA Chart.16016)

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NOAA Chart 500. From Defendants’ Exhibit A-177

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JUSTICE FOR WARDS COVE

The Legal and Political Battle in One of America’s Longest-Running Civil Rights Cases: A Test of Separation of Powers

CHAPTER 1

The Industry

A laska remains a vast wilderness, stretching nearly two thousand miles from Ketchikan in the southeast section to Attu Island in the Western Aleutians and comprising 571,000 square miles. At the beginning of the case period in 1971, the population was a mere 302,583 for the entire state, and half of that concentrated in the city of Anchorage. ⁴

The land is mountainous; two of the ranges, the Alaska Range and the St. Elias Range, have the tallest mountains in North America. Immense river systems generating the Yukon and Kuskokwim flow from deep in the Alaskan interior and from Canada to the Bering Sea. The northern sections are icebound in winter, and the ground is of permafrost.

The Kodiak Archipelago, consisting of Kodiak and Afognak Islands, is located in the Gulf of Alaska, separated from the Alaska Peninsula by the stormy thirty-mile-wide Shelikof Strait, and consists of 3,595 square miles. At the time of the case period, the total Kodiak population was 6,375, half of which resided in the small city of Kodiak on the east coast of the island. The villages outside the city are small and typically, like Karluk and Ouzinkie, have less than one hundred inhabitants. There are virtually no roads, except on the east shore, which requires most transportation to the salmon canneries to be by boat or airplane. All of Alaska presents a challenge to bush pilots because of the variable and often adverse weather. Kodiak Island has the highest fatality rate in the state of Alaska for small aircraft. There are numerous glaciers and streams flowing from its isolated, mountainous terrain.

Southeast Alaska consists of a thirty-mile strip of mainland; isolated, rough, and broken islands; and dense, heavy forests of spruce, hemlock, and cedar. The Coast Mountain Range which runs north and south along the eastern border, provide a limited number of passes into Canada. At the north end of the region, the rugged St. Elias Range, which rises abruptly from the ocean and towers to nineteen thousand feet, has no good through routes and isolates the southeast area from the rest of Alaska. The area has a rainfall of nearly two hundred inches per year. The coastline is rocky with hundreds of islands, numerous reefs, and dangers, many of which are unmarked, making navigation challenging in conditions of poor visibility. Southeast Alaska had its own version of the Titanic disaster on October 23, 1918, when the passenger vessel SS Princess Sophia ran aground in a snowstorm on Vanderbilt Reef in Lynn Canal just northwest of Juneau. The vessel sank in a gale forty hours later with the loss of 343 lives. There were no survivors, except the ship’s dog. The last message from the ship came from the radio operator pleading for help as his station was flooding.⁵

Southwest Alaska is a land of tundra, wildflowers, grizzly bears, caribou, and mosquitoes in abundance. Bristol Bay is located in the Bering Sea just above the Alaska Peninsula and is connected by several river systems with large lakes, where the world’s most abundant stocks of sockeye salmon breed. It was named by Capt. James Cook, who charted the area in 1778, in honor of the Earl of Bristol. The Alaska Peninsula is also an area of volcanic activity and includes the Valley of Ten Thousand Smokes, where the 1912 eruption was the largest of the twentieth century.

Throughout the Alaskan coastal areas where fishing occurs, the tides have a large range, and the resulting tidal currents are swift and potentially dangerous, especially when setting against a strong wind. Southwest Alaska and Kodiak Island have had numerous vessel losses, of which the Deep Sea on August 26, 1976, was just one. It involved a salmon tender, which was capsized and sank in a northeast gale in Whale Pass on the north side of Kodiak Island. The Deep Sea carried a crew of three and five passengers. All were lost. The tender was running at night with an undermanned and incompetent crew, and the court decision arising out of this casualty was to become relevant in the subsequent Wards Cove case.⁶

The weather along the Gulf of Alaska, including Kodiak Island, remains somewhat temperate even in winter because of the Japanese current, which sweeps eastward south of the Aleutian Islands and then to Canada. North of the chain, there is no temperate current, and the Bering Sea will freeze over on occasion as far south as Bristol Bay. Winter storms are severe in all coastal areas, and hurricane force is not uncommon, with deep low-pressure systems sometimes having a radius of one thousand miles. In summer, gales may also develop, as the protective center of the North Pacific High’s pressure gradient will remain far south at latitude 38°–40°. By September, at the end of the salmon-fishing season, summer is over, and storms occur with increasing frequency, as the High shrinks and moves south. The Coast Pilot summarizes weather in the Bering Sea as follows: The weather over the Bering Sea is generally bad and very changeable. Good weather is the exception and it does not last long when it does occur.

Roads in Alaska are few. Only one road connects the state with the outside world through the Yukon in Canada, and transportation for most of the state is chiefly by air or water. Most of the smaller cities and towns near the fishing grounds have no road connection to other parts of Alaska. Transportation by bush pilot is necessary for most cannery locations and can be hazardous because of the weather and terrain.

The abundant streams and lakes fed by glaciers and rain are the world’s most prolific spawning grounds for salmon.

Ocean fishing is the world’s last hunt for wildlife for commercial purposes. Mankind decimated the bison, deer, and the antelope, as well as their predecessors—the mammoths—through centuries of hunting for food. Even many of the ocean resources have been depleted. Overfishing has led to the near extinction of the Atlantic salmon and the Atlantic halibut; bluefin tuna is now on the endangered list. The Columbia River and Sacramento River salmon runs are 10 percent of the returns at the beginning of the twentieth century. Yet the Alaskan salmon biomass remains resilient. This is because of good fisheries management, an absence of dams, and a lack