The opinion
ROBERTS, J.,
dissenting.
I dissent from the majority opinion because I conclude that where dual sovereigns, the states of Washington and Oregon, have concurrent jurisdiction each may exercise its own sovereignty in the prosecution of crimes without violating the constitutional prohibition against double jeopardy.
The majority opinion states "we need not decide [the question of dual sovereignty] if we can resolve the problem short of the constitutional issue.” (44 Ór App at 563.) The decision then resolves the problem by denying Oregon the right to exercise its sovereignty in the prosecution of acts in violation of its laws. I believe we cannot avoid the question of dual sovereignty in this case.
In my opinion the majority erroneously relies on dicta from Nielsen v. Oregon, 212 US 315, 320 , 29 S Ct 383 , 53 L Ed 528 (1909), for the proposition that the prosecution of an offense in one state prevents the prosecution for the same offense in another. The facts in Nielsen provide the clearest distinction. There, defendant was a Washington resident fishing with a Washington license within the boundaries of the state of Washington. The language relied upon by the *573 majority is dicta and does not appear to be the holding of any case. On the other hand, cases decided since Nielsen , albeit cases dealing with the federal-state relationship, are directly contrary to the Nielsen dicta.
As the majority states, the U. S. Supreme Court has not ruled on whether the dual sovereignty doctrine applies when two states have concurrent jurisdiction over a boundary river (Slip opinion at 6); however, the Supreme Court has held that states are sovereign. I conclude that if states are sovereign as to the federal-state relationship they are also sovereign as to the state-state relationship.
Justice Frankfurter, writing for the majority in Bartkus v. Illinois, 359 US 121 , 79 S Ct 676 , 3 L Ed 2d 684 (1959), said:
"* * * It would be in derogation of our federal system to displace the reserved power of States over state offenses by reason of prosecution of minor federal offenses by federal authorities beyond the control of the States.
"Some recent suggestions that the Constitution was in reality a deft device for establishing a centralized government are not only without factual justification but fly in the face of history. It has more accurately been shown that the men who wrote the Constitution as well as the citizens of the member States of the Confederation were fearful of the power of centralized government and sought to limit its power. Mr. Justice Brandéis has written that separation of powers was adopted in the Constitution 'not to promote efficiency but to preclude the exercise of arbitrary power.’ Time has not lessened the concern of the Founders in devising a federal system which would likewise be a safeguard against arbitrary government. The greatest self-restraint is necessary when that federal system yields results with which a court is in little sympathy.
"The entire history of litigation and contention over the question of the imposition of a bar to a second prosecution by a government other than the one first prosecuting is a manifestation of the evolutionary unfolding of law. Today a number of *574 States have statutes which bar a second prosecution if the defendant has been once tried by another government for a similar offense. A study of the cases under the New York statute, which is typical of these laws, demonstrates that the task of determining when the federal and state statutes are so much alike that a prosecution under the former bars a prosecution under the latter is a difficult one. The proper solution of that problem frequently depends upon a judgment of the gravamen of the state statute. It depends also upon an understanding of the scope of the bar that has been historically granted in the State to prevent successive state prosecutions. Both these problems are ones with which the States are obviously more competent to deal than is this Court. Furthermore, the rules resulting will intimately affect the efforts of a State to develop a rational and just body of criminal law in the protection of its citizens. We ought not to utilize the Fourteenth Amendment to interfere with this development. * * *” (Footnotes omitted.) 359 US at 137-39 .
It is this reasoning that prompted the statement in n 3 of the majority opinion ( 44 Or App 557, n 3 ) with reference to the Supreme Court’s concern with the dynamics of the federal system. It is my contention that Article IV of the United States Constitution, which recognizes the autonomy of states, is as much a part of the dynamics of the federal system as the Tenth Amendment.
The Supreme Court in Abbate v. United States, 359 US 187 , 79 S Ct 666 , 3 L Ed 2d 729 (1959), which was decided the same day as Bartkus employs the following quote from United States v. Lanza, 260 US 377 , 43 S Ct 141 , 67 L Ed 314 (1922):
"We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject matter within the same territory. * * * Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.” 260 US at 382 .
*575 United States v. Wheeler, 435 US 313 , 98 S Ct 1079 , 55 L Ed 2d 303 (1978), summarizes the statements set out above by stating:
"Bartkus and Abbate rest on the basic structure of our federal system, in which States and the National Government are separate political communities. State and Federal Governments '[derive] power from different sources,’ each from the organic law that established it. United States v. Lanza, 260 US 377, 382 , 67 L Ed 314 , 43 S Ct 141 . Each has the power, inherent in any sovereign, independently to determine what shall be an offense against its authority and to punish such offenses, and in doing so each 'is exercising its own sovereignty, not that of the other.’ Ibid. And while the States, as well as the Federal Government, are subject to the overriding requirements of the Federal Constitution, and the Supremacy Clause gives Congress within its sphere the power to enact laws superseding conflicting laws of the States, this degree of federal control over the exercise of state governmental power does not detract from the fact that it is a State’s own sovereignty which is the origin of its power.” (Footnote omitted.) 435 US at 321 .
I conclude that Oregon has jurisdiction with Washington over the waters of the Columbia River as established by the Oregon Admissions Act and ORS 507.010.1 1 also conclude that where Oregon has jurisdiction it is not required to yield to another state in *576 the prosecution of acts in violation of its laws because it is a separate sovereign. I agree with the state’s argument that there is no reason to depart from the firmly established doctrine of concurrent jurisdiction as established in the cases cited above. To do otherwise would allow one state, once obtaining personal jurisdiction over the defendant, to freely prosecute, but at the same time would deny the other state the right to prosecute. It would also encourage defendants to land their boats and their illicite catch on the side of the Columbia River having the least serious penalties or the most lenient enforcement. This would reduce the effectiveness of law enforcement on both sides of the Columbia and further weaken the control over the Columbia River fishery which is vital to both the state of Washington and the state of Oregon.
ORS 507.010 — 507.040 establishes the Oregon-Washington Columbia River fish compact.
ORS 507.010 provides in pertinent part:
"Congress, by virtue of the authority vested in it under section 10, Article I, United States Constitution, providing for compacts and agreements between states, having ratified the recommendations of the conference committees of the States of Oregon and Washington, appointed to agree on legislation necessary for the regulation, preservation and protection of fish in the waters of the Columbia River, over which said states have concurrent jurisdiction, and other waters within either state which would be affected by such concurrent interest, recommendations being as follows: 'We further recommend that a resolution be passed by the legislatures of Washington and Oregon, whereby the ratification by Congress of the laws of the States of *576 Oregon and Washington shall act as a treaty between said states, subject to modification only by joint agreement by said states;’ * *
The Compact in ORS 507.040 provides in pertinent part:
"ARTICLE VIII
"Nothing in this compact shall be construed to limit the powers of any state or to repeal or prevent the enactment of any legislation or the enforcement of any requirement by any state imposing additional conditions and restrictions to conserve its fisheries.
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