Idaho Evans v. Oregon

• Decision Date: 23 June 1983
• Docket Number: O,No. 67,67
• Citation: 77 L.Ed.2d 387,103 S.Ct. 2817,462 U.S. 1017
• Parties: 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 rig
• Court: U.S. Supreme Court

462 U.S. 1017

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.

Argued March 23, 1983.

Decided June 23, 1983.

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 requesting an equitable apportionment against Oregon and Washin ton 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. 1024-1029.

(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. 1024-1025.

(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. 1025-1027.

(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 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. 1027-1029.

Action dismissed.

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 natural resources of the Columbia-Snake River system in the Pacific Northwest. That system covers portions of Wyoming, Idaho, Washington, 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. N xt, 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 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).

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 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 molts 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 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 the Columbia from its mouth to the Bonneville Dam; zone six stretches from the Bonneville Dam to the McNary Dam below the confluence with the Snake. Each year, authorities from both States estimate the size of the runs to determine the length of a fishing season the runs can support. The States do not permit commercial harvests of chinook salmon or steelhead trout in any of their Columbia River tributaries; they do, however, permit sport fishing in most locations.

Pursuant to treaties ratified in 1859, several Indian tribes have "the right of taking fish at all usual and accustomed places." Sohappy v. Smith, 302 F.Supp. 899, 904 (Or.1969). In 1977, after lengthy litigation over Indian treaty rights,⁶ Oregon and Washington agreed with the Indians to preserve zone six solely for Indian fishing. They also agreed to limit commercial harvests in zones one through five to an amount that permits sufficient numbers of fish to pass over...