State v. McCormack
| Decision Date | 08 September 2022 |
| Docket Number | A173714,A173715 |
| Citation | 321 Or.App. 551 |
| Parties | STATE OF OREGON, Plaintiff-Respondent, v. RUSSELL BOYD McCORMACK, Defendant-Appellant. STATE OF OREGON, Plaintiff-Respondent, v. STEVEN DELROY SENTER, JR., Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Argued and Submitted May 11, 2022
Wasco County Circuit Court 19CR36453, 19CR36463, Janet L. Stauffer Judge.
John Evans, Deputy Public Defender, argued the cause and fled the briefs for appellants. Also on the briefs was Ernest G Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.
Carson L. Whitehead, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum Attorney General, and Benjamin Gutman, Solicitor General.
Before Tookey, Presiding Judge, and Egan, Judge, and Kamins, Judge.
Under Article III of the Nez Perce Treaty of 1855, members of the Nez Perce Tribe have a reserved right to fish at "all usual and accustomed places" without restriction by the state, unless the state proves that such restriction is necessary for the conservation of fish.
In this consolidated criminal case, defendants- who are both enrolled members of the Nez Perce Tribe- used gillnets to catch Chinook salmon at a "usual and accustomed" place along the southern bank of the Columbia River.[1] As a result of that conduct, defendants were convicted of unlawfully taking food fish with prohibited fishing gear, ORS 509.006; OAR 635-041-0025(3).[2] On appeal, defendants raise five assignments of error, arguing that the trial court erred when it denied defendants' pretrial motions to dismiss because the evidence in the record is legally insufficient to support the trial court's conclusion that the gillnet regulation in OAR 635-041-0025(3), and its application to treaty fishers, is necessary for the conservation of Columbia River salmon populations. For the reasons that follow, we reverse.
Whether the state has the authority to enforce its regulations against treaty fishers is a question of law. State v Jim, 81 Or.App. 177, 184, 725 P.2d 365 (1986), rev den, 302 Or. 571 (1987). In determining "whether the trial court's findings of fact are sufficient to support the trial court's conclusion," we "review a trial court's legal determinations for legal error and the trial court's findings of fact for any evidence in the record to support those findings." M. A. B. v. Buell, 366 Or. 553, 564, 466 P.3d 949 (2020). In accordance with that standard, we recount the following facts.
Defendants are enrolled members of the Nez Perce Tribe.
On May 16, 2019, defendants were fishing with gill-nets along the southern bank of the Columbia River, near the Dalles Dam. That location is a "usual and accustomed" fishing site for treaty fishers and falls within "Zone 6" of the Columbia River.[3] At the time, the spring-run Chinook salmon were migrating up the Columbia River. Defendants were using gillnets that measured, respectively, 32 feet long by 11 feet deep, with an eight-inch mesh; and 42 1/2 feet long by 17 1/2 feet deep, with a seven-and-one-half inch mesh. Three Senior Troopers with the Oregon State Police Fish and Wildlife Division contacted defendants and cited them for using gillnets that did not comply with OAR 635-041-0025(3). The state then charged each defendant with one count of unlawfully taking a food fish under ORS 509.006, based on defendants' use of noncompliant gillnets.
In substantively identical pretrial motions to dismiss, defendants argued that, under federal law, the state could not enforce the gillnet restriction in OAR 635-041-0025(3) against defendants, because the state could not prove that that restriction, and its application to treaty fishers, was necessary for the conservation of Columbia River fish populations. The state responded that OAR 635-041-0025(3), and its application to treaty fishers, was necessary for conservation, and that it would offer testimony to that effect from an Oregon Department of Fish and Wildlife (ODFW) fisheries manager.
At a hearing on defendants' pretrial motions, the ODFW fisheries manager testified that, although gillnets are allowed for commercial fishing at certain times and places in other zones of the Columbia River, gillnets are not allowed for treaty subsistence fishing in Zone 6.[4] He explained that, in the area where defendants were fishing in Zone 6 near the dam, fish "congregate as they are looking for the fish ladders to ascend the ladders and continue migrating" and "can be present in greater concentrations [near the ladders] than they might be in the rest of the river." The ODFW fisheries manager testified that the gillnet regulation in OAR 635-041-0025(3) was necessary for conservation, because there are 13 fish species in the Columbia that are listed as either "threatened" or "endangered" under the federal Endangered Species Act, including spring-run Chinook; that "[g]ill nets have the capacity to catch a tremendous amount of fish in a short amount of time"; and that, "even if just by accident [a gillnet] was left too long or unattended or just an unlucky swarm offish came through in a very short amount of time, you could catch a high amount offish and there is the potential that those would be endangered or listed." He explained that, for him, the "specific concern" was that use of gillnets at the location where defendants were fishing near the dam had the "potential capacity to impact those endangered stocks in a short amount of time."
The ODFW fisheries manager further testified that the treaty tribes are allotted a certain quantity of fish that they may harvest pursuant to a joint management agreement with the state-i.e., the 2018-2027 United States v. Oregon Management Agreement (Management Agreement);[5] that he did not believe the tribes had exceeded the catch amounts for any threatened or endangered fish species during the 2019 spring run; and that he was not aware of any instance where treaty fishing had impeded the recovery of any fish population in the Columbia River.
During his testimony, the ODFW fisheries manager also stated that the "greatest manmade impact" on Columbia River fish populations comes from the river's system of dams: "The dams impede migration in both directions and cause [a] tremendous amount of both immediate and latent mortality for the out-migrating" fish. He also identified other human activities that negatively impact Columbia River fish populations, including "[l]ogging, stream use, [and] agriculture."
Based primarily on the ODFW fisheries manager's testimony, the trial court found, by preponderance of the evidence, that the gillnet regulation in OAR 635-041-0025(3), and its application to treaty fishers, was necessary for conservation. In so ruling, the trial court emphasized that the evidence showed a need to prohibit gillnets at the location where defendants had been fishing near the dam, because the fish "congregate in high numbers" there, and gillnets would allow fishers to catch "high numbers" of fish. The court specifically found that the regulation at issue was "required to prevent a demonstrable harm to actual conservation" and was "essential" to perpetuating "the spring runs of the salmon." The trial court then held a stipulated-facts bench trial, and defendants were both found guilty of unlawfully taking food fish with prohibited fishing gear, ORS 509.006; OAR 635-041-0025(3).
On appeal, defendants contend that the state did not satisfy its burden of proving that OAR 635-041-0025(3), and its application to treaty fishers, was necessary for conservation, because, among other reasons, the state presented no evidence that the Nez Perce Tribe's own conservation measures were insufficient for conservation of the salmon or that the state's conservation goal served by the gillnet restriction could not be accomplished by further regulating nontreaty fishers.
The state responds that, based on the ODFW fisheries manager's testimony, the state met its burden by showing that gillnets are capable of catching large numbers of threatened or endangered fish in a short amount of time, particularly where defendants were fishing near the Dalles Dam, and that OAR 635-041-0025(3) imposes "limited restrictions on location and gear," which are "consistent with" the Management Agreement. For those reasons, the state contends, the evidence was legally sufficient to support the trial court's determination that OAR 635-041-0025(3), and its application to treaty fishers, is necessary for the conservation of salmon.[6]
Before turning to the legal issue in the instant case, we discuss the decades-long litigation of treaty-reserved fishing rights in United States v. Oregon and the 2018-27 United States v. Oregon Management Agreement, because the parties refer to it throughout their briefing, and because it has factored prominently in both the state's efforts to conserve fish populations and the tribes' efforts to uphold their treaty-reserved right to fish.
In September 1968, the United States-on behalf of itself and various tribes, including the Nez Perce Tribe- filed a complaint in United States v. Oregon, 302 F.Supp 899 (D Or 1969),[7] challenging certain Oregon statutes and regulations that, the plaintiffs argued, violated their treaty right to fish at "usual and accustomed places" on the Columbia River. 302 F.Supp at 903-04. The court determined that the treaties entitled the tribes to "a fair share of the fish produced by the Columbia River system," and that any state regulation must be "necessary for conservation." Id. at 911. The court then retained jurisdiction over the case in...
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