Anthony v. Veatch

• Decision Date: 30 June 1950
• Citation: 189 Or. 462,220 P.2d 493
• Parties: ANTHONY et al. v. VEATCH et al. (COLUMBIA RIVER FISHERMEN'S PROTECTIVE UNION et al., Intervenors).
• Court: Oregon Supreme Court

220 P.2d 493

189 Or. 462

ANTHONY et al. v. VEATCH et al. (COLUMBIA RIVER FISHERMEN'S PROTECTIVE UNION et al., Intervenors).

Supreme Court of Oregon.

June 30, 1950

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Thomas H. Ryan, Portland, argued the cause for appellants and cross respondents. On the brief were Anthony Pelay, Jr., and Ryan & Pelay, all of Portland.

Cecil Quesseth, Assistant Attorney General, argued the cause for respondents and cross appellants. With him on the brief was George Neuner, Attorney General of Oregon.

Ben Anderson, Portland, argued the cause for intervenors-respondents and cross appellants. On the brief were Anderson & Franklin, of Portland.

Before LUSK, C. J and BRAND, BELT, ROSSMAN, HAY, and LATOURETTE, JJ.

HAY, Justice.

Each of the plaintiffs in this case is the owner and operator of fishing appliances of the type commonly called 'fixed gear' for the taking of salmon from the Columbia River specifically, pound nets or fish traps. In this opinion, we shall refer to these persons either as 'plaintiffs' or as 'fixed-gear fishermen'. They brought this action praying for a declaratory judgment declaring Chapter 3, Oregon Laws 1949, as adopted by the people of the state of Oregon through the initiative on November 2, 1948, to be unconstitutional.

The defendants are the members of the Fish Commission of the State of Oregon and the State Master Fish Warden. They will be referred to herein as 'the Commission'. Certain other persons, who are owners and operators of appliances for the taking of salmon in the Columbia River of the type called 'floating gear', specifically, drift gillnets, and an incorporated labor union whose members are gillnet fishermen in the Columbia River, intervened in the action by permission of the circuit court. These intervenors will be referred to herein as 'the gill-netters'.

The initiative act prohibited the taking of salmon, salmon trout or steelhead in any of the waters of the Columbia River or its tributaries in the state of Oregon by means of fixed gear, with the proviso that the act does not apply to fishing by Indians under Federal regulations or to the taking of fish for propagation or scientific purposes by the state or national governments.

The complaint alleges that the initiative act is unconstitutional in several respects which will be set forth specifically hereunder. The commission answered, contending that the act is a reasonable exercise of the police power of the state and is in all respects valid and constitutional. The gill-netters answered, alleging that the operation of the fishing gear of plaintiff threatens an indiscriminate slaughter of anadromous fish in the Columbia River, regardless of size or species, and that, if plaintiffs are permitted to continue such fishing, the salmon runs of the Columbia River will in large measure be destroyed, to the irreparable damage of the gill-netters 'and all persons who are engaged in lawfully taking fish in said waters.' The plaintiffs replied to both answers by general denial.

After a hearing, the court, on November 21, 1949, entered a decree holding, in effect, as follows:

(1) That section 1 of the act is unconstitutional, in that such section goes beyond the scope of the title of the act by prohibiting the use of drag seines for any purpose whatever in the waters specified, whereas the title of the act defines its purpose in this connection to be only the prohibition of the use of drag seines for the taking of salmon in such waters.

(2) That section 3 is unconstitutional, in that it goes beyond the scope of the title of the act by prohibiting the use of whip seines for any purpose whatever in said waters, whereas the title of the act defines its purpose in this connection to be only the prohibition of the use of whip seines for the taking of salmon in such waters.

(3) That section 2 is unconstitutional, in that it prohibits the taking of salmon, salmon trout or steelhead by means of fixed appliances, whereas the title of the act 'evidences an intention to limit the prohibition to the taking of salmon by such means.'

The remainder of the act was declared to be constitutional.

Plaintiffs appealed from the decree so far as it declared certain portions of the act to be constitutional. The Commission appealed from those parts of the decree which declared that portions of sections 1, 2, and 3 of the act were unconstitutional. The gill-netters appealed from those parts of the decree which declared that portions of the initiative act were unconstitutional.

Plaintiffs contend that the act herein attacked is an attempt to regulate fishing in the tidewaters of the Columbia River, a matter which is 'within the exclusive jurisdiction of the United States', and that it is therefore unconstitutional. They cite no authority for such contention, but suggest that the rationale of United States v. State of California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889, may hereafter be extended to bring such fishing within federal control, 'particularly for the social-economic reasons which often impel our present United States Supreme Court'.

The case in question was concerned only with whether the United States or the state had title to marginal lands comprising the bed of coastal waters within a belt three miles in width beyond mean low-water mark of the California littoral. It was held that such title is in the United States. In argument, the government did not deny that California has 'a qualified ownership of lands under inland navigable waters such as rivers, harbors, and even tidelands down to the low water mark', but did question the rationale of Pollard v. Hagan, 3 How. 212, 11 L.Ed. 565, which held that ownership of such lands is a necessary incident of state sovereignty. As far as is material to the present discussion, the Pollard case decided (1) that the shores of navigable waters, and the soils under such waters, were not granted to the United States by the Constitution, and (2) that new states have the same rights, sovereignty, and jurisdiction over navigable waters within their borders as had the original states. The court reasoned that, at the time when this country won its independence from England, there was no general understanding among nations that each owned a marginal belt of lands beyond its foreshores. The individual colonies, when they became independent states, did not claim such right. Hence, while such right was not granted by the states to the United States, neither was it retained by the states. It was simply non-existent. Some countries, it was noted, and particularly England, Spain, and Portugal, had made from time to time sweeping claims to dominion over wide expanses of ocean, (See Selden, Dominion or Ownership of the Sea, II, 459) but such claims are made no longer. However, the idea that a nation has right of dominion over a sort of cordon sanitaire beyond its foreshores has, in comparatively modern times, gained widespread acceptance. The three-mile extent of such dominion has not been acceded to by all states, but it appears to have been asserted by the United States as early as about the year 1812. Jessup, The Law of Territorial Waters and Maritime Jurisdiction, 57.

The Pollard case had to do with a title dispute over reclaimed lands in Mobile Bay. The bay was regarded as navigable tidewater, intra fauces terrce, title to the soil under which inhered in the state by virtue of its sovereignty. Cf. Alsos v. Kendall, 111 Or. 359, 369, 227 P. 286. Upon admission of a state into the Union, the title of the United States to lands underlying navigable waters within such state passes to the state, as an incident of 'local sovereignty'. United States v. State of Oregon, 295 U.S. 1, 55 S.Ct. 610, 79 L.Ed. 1267, 1274; Hume v. Rogue River Packing Co., 51 Or. 237, 246, 83 P. 391, 92 P. 1065, 96 P. 865, 31 L.R.A., N.S., 396, 131 Am.St.Rep. 732; Parker v. West Coast Packing Co., 17 Or. 510, 515, 21 P. 522, 5 L.R.A. 61; Coquille Mill & Mercantile Co. v. Johnson, 52 Or. 547, 549, 98 P. 132, 132 Am.St.Rep. 716; Micelli v. Andrus, 61 Or. 78, 84, 120 P. 737; Atkinson v. State Tax Commission, 156 Or. 461, 473, 62 P.2d 13, 67 P.2d 161; Id., 303 U.S. 20, 58 S.Ct. 419, 82 L.Ed. 621. The sovereignty of individual states of the Union over soils under navigable waters is not to be confused with the rights of dominion and regulation which the United States must of necessity and in self-protection exercise over the ocean and its bed within the marginal belt.

To the extent that ownership of inland navigable waters is concerned, the Pollard decision was not disturbed by United States v. State of California, supra. Indeed, the court was careful to say so, in a footnote, which, referring to the case of United States v. Mission Rock Co., 189 U.S. 391, 23 S.Ct. 606, 47 L.Ed. 865, reads, in part, as follows: '* * * The United States sued in ejectment for certain lands situated in San Francisco Bay. The defendant held the lands under a grant from California. This Court decided that the state grant was valid because the land under the Bay had passed to the state upon its admission to the Union. * * * There may be other reasons why the judgment in that case does not bar this litigation; but it is a sufficient reason that this case involves land under the open sea, and not land under the inland waters of San Francisco Bay.' [332 U.S. 19, 67 S.Ct. 1661.]

There is, in our opinion, no implication to be drawn from United States v State of California, supra, that the rationale of that case might at some future time be extended so as to deprive a state of the right to regulate and control fishing within its own inland navigable waters. Cf. Toomer v. Witsel, 334 U.S. 385, 68 S.Ct. 1156, 92...