462 U.S. 1017 (1983), 67, Idaho Ex Rel. Evans v. Oregon

Docket Nº:No. 67, Orig.
Citation:462 U.S. 1017, 103 S.Ct. 2817, 77 L.Ed.2d 387
Party Name:State of IDAHO, ex rel. John V. EVANS, Governor; Jim Jones, Attorney General; Jerry M. Conley, Director, Department of Fish and Game, Plaintiffs v. States of OREGON and Washington
Case Date:June 23, 1983
Court:United States Supreme Court
 
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Page 1017

462 U.S. 1017 (1983)

103 S.Ct. 2817, 77 L.Ed.2d 387

State of IDAHO, ex rel. John V. EVANS, Governor; Jim Jones, Attorney General; Jerry M. Conley, Director, Department of Fish and Game, Plaintiffs

v.

States of OREGON and Washington

No. 67, Orig.

United States Supreme Court.

June 23, 1983

Argued March 23, 1983.

[103 S.Ct. 2818] Syllabus[*]

SYLLABUS

Since 1938, several dams have been constructed along the Columbia-Snake River system, severely reducing the number of anadromous fish that migrate between the Pacific Ocean and their spawning grounds in those rivers and their tributaries. Fishing is another factor depleting the anadromous fish population. In 1976, this Court granted Idaho leave to file its complaint [103 S.Ct. 2819] requesting an equitable apportionment against Oregon and Washington of the anadromous fish in the Columbia-Snake River system. A Special Master was appointed, and after trial and oral argument he entered the report involved here, recommending that the action be dismissed without prejudice. Idaho filed exceptions to the report.

Held: The Special Master's recommendation is adopted, and the action is dismissed without prejudice to Idaho's right to bring new proceedings whenever it shall appear that it is being deprived of its equitable share of anadromous fish. Pp. 2822 - 2825.

(a) The doctrine of equitable apportionment is applicable here. Although that doctrine has its roots in water rights litigation, the natural resource of anadromous fish is sufficiently similar to make equitable apportionment an appropriate mechanism for resolving allocative disputes. The doctrine is neither dependent on nor bound by existing legal rights to the resource being apportioned. Thus, the fact that no State has a pre-existing legal right of ownership in the fish does not prevent an equitable apportionment. Pp. 2822 - 2823.

(b) Because apportionment is based on broad and flexible equitable concerns rather than on precise legal entitlements, a decree is not intended to compensate for prior legal wrongs. Instead, it prospectively ensures that a State obtains its equitable share of a resource. Although a decree may not always be mathematically precise or based on definite present and future conditions, uncertainties about the future do not provide a basis for declining to fashion a decree. The Special Master erred to the extent that he found that the formulation of a workable decree is impossible in this case. If Idaho suffers from the injury it alleges, there is no reason why that injury could not be remedied by an equitable decree. Pp. 2823 - 2824.

(c) However, a State seeking equitable apportionment under this Court's original jurisdiction must prove by clear and convincing evidence some real and substantial injury or damage. The Special Master, in

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finding that Idaho has not demonstrated sufficient injury to justify an equitable decree, properly based his finding on present conditions and properly focused on the most recent time period, 1975-1980, during which all the dams and various conservation programs were in operation. The evidence does not demonstrate that Oregon and Washington are now injuring Idaho by overfishing or that they will do so in the future. Moreover, Idaho has not proved that Oregon and Washington have mismanaged the resource and will continue to mismanage. Pp. 2824 - 2825.

Action dismissed.

COUNSEL

Jim Jones, Attorney General of Idaho, argued the cause for plaintiffs. With him on the briefs were David H. Leroy, former Attorney General, Stephen V. Goddard, Deputy Attorney General, and Don Olwinski.

Edward B. MacKie, Chief Deputy Attorney General, argued the cause for defendant State of Washington. With him on the brief were Kenneth O. Eikenberry, Attorney General, and James Johnson, Senior Assistant Attorney General.

Jim Jones, Atty. Gen., Boise, Idaho, for plaintiffs.

Edward B. Mackie, Deputy Atty. Gen., Olympia, Wash., for defendant State of Wash.

Justice BLACKMUN delivered the opinion of the Court.

In this action invoking the Court's original jurisdiction, the State of Idaho seeks an equitable apportionment against the States of Oregon and Washington of the anadromous fish that migrate between the Pacific Ocean and spawning grounds in Idaho. The Special Master has filed his final report on the merits and recommends that the action be dismissed without prejudice. We have before us Idaho's exceptions to that report.

I

Although somewhat repetitive of the Court's prior writings in this litigation, 444 U.S. 380, 100 S.Ct. 616, 62 L.Ed.2d 564 (1980), we feel it worthwhile to outline once again the facts of the case and the Court's prior rulings. The dispute concerns fish, one of the valuable

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natural resources of the Columbia-Snake River system in the Pacific Northwest. That system covers portions of Wyoming, Idaho, Washington, [103 S.Ct. 2820] Oregon, and British Columbia. From its origin in northwest Wyoming, the Snake River flows westerly across southern Idaho until it reaches the Idaho and Oregon border. At that point, the river winds northward to form the border between those States for approximately 165 miles, and then the border between Washington and Idaho for another 30 miles. Next, it turns abruptly westward and flows through eastern Washington for approximately 100 miles, finally joining the Columbia River. The Columbia, before this rendezvous, flows southward from British Columbia through eastern Washington. After it is supplemented by the Snake, the Columbia continues westward 270 miles to the Pacific Ocean. For most of the distance, it forms the boundary between Washington and Oregon.

A

Among the various species of fish that thrive in the Columbia-Snake River system, anadromous fish--in this case, chinook salmon and steelhead trout--lead remarkable and not completely understood lives. These fish begin life in the upstream gravel bars of the Columbia and Snake and their respective tributaries. Shortly after hatching, the fish emerge from the bars as fry and begin to forage around their hatch areas for food. They grow into fingerlings and then into smolt; the latter generally are at least six inches long and weigh no more than a tenth of a pound. The period the young fish spend in the hatching areas varies with the specie and can last from six months to well over a year.

At the end of this period, the smolts swim down river toward the Pacific. 1 In the estuary of the Columbia, the

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young fish linger for a time in order to grow accustomed to the chemical cues of the water. A. Netboy, The Columbia River Salmon and Steelhead Trout 44 (1980). It is believed that they pick up the river's scent so that in their twilight years they can return to their original home. Tr. of Oral Arg. 19. Even under the best of conditions, only a small fraction of the smolts that set out from the gravel bars ever reach the ocean.

Once in the ocean, the smolts grow into adults, averaging between 12 and 17 pounds. They spend several years traveling on precise, and possibly genetically predetermined, routes. See A. Netboy, supra, at 46-49. At the end of their ocean ventures, the mature fish ascend the river. They travel in groups called runs, distinguishable both by specie and by the time of year. All the fish return to their original hatching area, where they spawn and then die. At issue in this case are the runs of spring chinook between February and May, the runs of summer chinook in June and July, and the runs of summer steelhead trout in August and September.

B

Since 1938, the already arduous voyages of these fish have been complicated by the construction of eight dams on the Columbia and Snake Rivers. 2 First, interdicting the flow of the Snake River in Washington are the Lower Granite (constructed in 1969), the Little Goose (1968), and the Lower Monumental (1967) dams. The Ice Harbor dam (1961) sits astride the Snake just above its confluence with the Columbia. Four more dams interrupt the Columbia on its way to the Pacific: the McNary (1953), the John Day (1968), the Dalles (1957), and the original dam, the Bonneville (1938).

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In order to produce electrical power, these dams divert a flow of water through large turbines that have devastating effect on young smolts descending to the Pacific. Spillways have been constructed to permit [103 S.Ct. 2821] the smolts to detour around the turbines. 3 The dams also present great obstacles to the adults. Fish ladders--water covered steps--enable the returning adults to climb over the dams; in addition, the ladders provide an opportunity for compiling statistics. 4 Varying water conditions and the demand for power can increase the mortality of both descending smolts and ascending adults. The mortality rate for ocean-bound smolts averages approximately 95%. Report of the Special Master 7. Their adult counterparts die at a rate of 15% at each dam. Only 25% to 30% of the adults passing over the first dam, the Bonneville, succeed in running the gauntlet to traverse the Lower Granite Dam and enter Idaho. Ibid.5

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Another factor depleting the anadromous fish population is fishing, sometimes referred to as "harvesting." In 1918, Oregon and Washington, with the consent of Congress, Act of Apr. 8, 1918, ch. 47, 40 Stat. 515, formed the Oregon-Washington Columbia River Fish Compact to ensure uniformity in state regulation of Columbia River anadromous fish. Idaho has sought entry into the compact on several occasions, but has been rebuffed. Under the compact, Oregon and Washington have divided the lower Columbia into six commercial fishery zones: zones one through five cover...

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