Opposition — Idaho ex rel. Andrus v. Oregon

IN THE

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1974

No. ... 7... Original

STATE OF IDAHO, ex rel CecIL D. ANDRUS,

Governor; WAYNE L. KIDWELL, Attorney

General; JOSEPH C. GREENLEY, Director,

Department of Fish and Game, Plaintiffs

V.

STATE OF OREGON, STATE OF WASHINGTON,

Defendants.

STATE OF WASHINGTON’S BRIEF IN

OPPOSITION TO STATE OF IDAHO’S MOTION

TO FILE A COMPLAINT

SLADE GORTON

Attorney General

EDWARD B. MACKIE

Deputy Attorney General

Temple of Justice

Olympia, Washington 98504

(206) 753-6207

STATE PRINTING PLANT Er CLYMPIA, WASHINGTON

IN THE

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1974

a , Original

STATE OF IDAHO, ex rel CECIL D. ANDRUS,

Governor; WAYNE L. KIDWELL, Attorney

General; JOSEPH C. GREENLEY, Director,

Department of Fish and Game, Plaintiffs

V.

STATE OF OREGON, STATE OF WASHINGTON,

Defendants.

STATE OF WASHINGTON’S BRIEF IN

OPPOSITION TO STATE OF IDAHO’S MOTION

TO FILE A COMPLAINT

SLADE GORTON

Attorney General

EDWARD B. MACKIE

Deputy Attorney General

Temple of Justice

Olympia, Washington 98504

(206) 753-6207

iii

INDEX

Page

STATEMENT IN OPPOSITION TO THE MOTION.... 2

EE SEE EELS SED y

en cee ccerccccccecees 11

No. ccc ucdedeeoccceccces 12

TABLE OF AUTHORITIES

TABLE OF CASES

Arizona v. California, 283 U.S. 423 (193])................ 7

Arizona v. California, 298 U.S. 858 (1936)................ 4,7

Arizona v. California, 373 U.S 54€ (1963)............... 7

Kansas v. Colorado, 206 U.S. 46, 117 (1907).............. 6,7

Missouri v. Holland, 252 U.S. 416 (1920)................. 8,9

Missouri v. Illinois, 200 U.S. 496 (1906).................. 2

Nebraska v. Wyoming, 325 U.S. 589 (1945)............... 7

North Dakota v. Minnesota, 263 U.S. 365 (1923).......... 2

New York v. New Jersey, 256 U.S. 296 (1921)......... 2,9, 10

Sohappy v. Smith, 302 F. Supp. 899 (D.C. Ore. 1969)...... 6

United States v. Washington, 384 F. Supp. 312 (W.D.

EEE ASE 6

West Virginia v. Sims, 341 U.S. 22 (1951)............... 9

Wyoming v. Colorado, 259 U.S. 419 (1921)............... 7

CONSTITUTION & STATUTES

United States

ED, oc ccc devccccecoccovesccees +

Ne ecco cccececceceeeeeocccecocese 2,4

Oregon

Ch PO GE BED, cccccccccccccccccccecees 4

Washington

§ 116, chapter 31, Laws of 1915. ............cccccecceeces 3

OTHER AUTHORITIES

House Bill 156, Washington Legislative Session, 1975..... 4

Oregon-Washington Columbia River Fish Compact... .2, 4, 7

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IN THE

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1974

dainumnicdia , Original

STATE OF IDAHO, ex rel CECIL D. ANDRUS,

Governor; WAYNE L. KIDWELL, Attorney

General; JOSEPH C. GREENLEY, Director,

Department of Fish and Game, Plaintiffs

V.

STATE OF OREGON, STATE OF WASHINGTON,

Defendants.

STATE OF WASHINGTON’S BRIEF IN

OPPOSITION TO STATE OF IDAHO’S MOTION

TO FILE A COMPLAINT

The State of Washington by its Attorney Gen-

eral respectfully requests that the Court deny the

application of the State of Idaho to file an original

action in this Court against the states of Washington

and Oregon.

(

2

STATEMENT IN OPPOSITION TO THE MOTION

The State of Idaho has requested permission to

file a complaint in this Court seeking:

(1) Admission to the Oregon-Washington

Columbia River Fish Compact which was ratified

by Congress in 1918 (40 Stat. 515) (set forth in

Appendix 1).

(2) The Court to establish what Idaho calls an

“equitable portion” of the anadromous fish runs in

the Columbia River to be preserved for the State of

Idaho and its citizens.

We respectfully submit that there is no basis

for granting the relief requested by the State of

Idaho. This Court on a number of occasions in-

volving original suits by states in this Court has

stated:

“The burden upon the State of New York of

sustaining the allegations of its bill is much

greater than that imposed upon a complainant

in an ordinary suit between private parties.

Before this Court can be meen to exercise its

extraordinary power under the Constitution to

control the conduct of one State at the suit of

another, the threatened invasion of rights must

be of serious magnitude, and it must be estab-

lished by clear and convincing evidence.” New

York v. New Jersey, 256 U.S. 296, 309 (1921) ;

also see, North Dakota v. M.nnesota, 263 U.S.

365, 374 (1923); and Missouri v. Illinois, 200

U.S. 496, 521 (1906).

The Columbia River System encompasses the

states of Washington, Oregon, Idaho and the Cana-

m

3

dian province of British Columbia. Throughout most

of this river system anadromous fish are produced

and these fish spawn in fresh water and migrate as

juveniles to the Pacific Ocean. After varying periods

of time, the fish which have survived the outward

migration and the salt-water environment reenter

‘the Columbia River and try to return to their

original spawning areas which are on tributaries

and the main stream of the river throughout the

Columbia River System. One of the major tributaries

of the Columbia River is the Snake River, which

originates in the State of Idaho. This river forms the

border between the states of Washington and Idaho

for approximately thirty miles. It then proceeds

through the State of Washington for nearly 140

miles, flowing into the Columbia River, which at

that point is nearly 300 miles from the Pacific

Ocean. The Columbia River then forms the border

between the states of Washington and Oregon for

approximately 270 miles, extending to the Pacific

Ocean. The concerns and contentions expressed by

the State of Idaho relate to this lower portion of the

Columbia River and the Snake River and the anad-

romous fish populating the same.

The states of Washington and Oregon have been

exercising effective management control for a num-

ber of years with reference to the harvesting and

conservation of anadromous fish runs in the Colum-

bia River. In 1915 the Washington 'egislature (§

116, chapter 31, Laws of 1915) and the Oregon

4

legislature (§ 20, chapter 188, Laws of 1915) author-

ized the creation of the Oregon-Washington Colum-

bia River Fish Compact contingent upon approval

by Congress pursuant to Article I, § 10 of the

United States Constitution. Congress in 1918 (40

Stat. 515) approved and ratified the Compact.

Idaho is now seeking by its proposed complaint to

become a member of the Oregon-Washington Colum-

bia River Compact. The Governor of the State of

Washington by an executive request (House Bill 156,

quoted in Appendix 2) has sought legislative approval

for the addition of the State of Idaho to the Oregon-

Washington Compact. The bill passed the Washing-

ton House of Representatives 93-5 and was recom-

mended for final passage by the Senate committee.

However, the legislature ended before the Senate

approved the bill. A compact under the United

States Constitution, Article I, § 10, clearly requires

the consent of the states and Congress. The judicial

relief being sought by Idaho is an attempt to com-

pel consent not only from the states of Washington

and Oregon but also from the United States Con-

gress, which is not named or proposed as a party in

this action. The failure to join the United States is

significant in light of this Court’s dismissal of

Arizona v. California, 298 U.S. 558, 571 (1936),

because the United States, which was a necessary

party, had not been included as a party.

At the time this brief was prepared the states of

Washington and Oregon through the Compact have

5

closed the entire Columbia River below the conflux

with the Snake River, and the Snake River within

the State of Washington to fishing by either com-

mercial or sports fishermen. The total closure is an

effort to protect spawning stock so that the fish runs

will have the opportunity to naturally replenish and

continue in the future. A major source of adverse

impact on fish runs in the Columbia River has been

the construction of large hydroelectric dams by the

federal government. In the first 270 miles of the

river which forms the border between the two states,

there are three large federal dams. There are four

additional federal dams within the State of Wash-

ington on the remaining portion of the Columbia

and Snake Rivers with which Idaho is concerned.

Thus, anadromous fish seeking to return to Idaho

waters are confronted with seven major federal

dams which are responsible for a substantial fish

mortality. The states of Washington, Oregon and

Idaho, individually and collectively, have sought im-

provements in these dam facilities to reduce fish

mortality. The fish mortality due to these dams

means that during those periods in which there are

adequate fish runs in the Columbia River to support

a reasonable sport and commercial harvest a sub-

stantial curtailment of that harvest will simply

increase the fish mortality due to dams without

necessarily resulting in any real increases in fish

reaching the State of Idaho. Such a curtailment of

an appropriate harvest would effectively increase

6

the natural wastage of the resource. If one assumes

that Idaho has some interest in the anadromous fish

outside of its jurisdiction, and we are not conceding

that assumption, this Court in Kansas v. Colorado,

206 U.S. 46, 117 (1907), has recognized that the

beneficial use of water by Colorado, even though

some injury occurred to the State of Kansas, did not

justify relief. We submit that the beneficial use of

the fish in the lower Columbia which minimizes

natural wastage of the resource is similar and out-

weighs the “injury” to Idaho.

Washington and Oregon are concerned with

the conservation of the fish run as evidenced by

the restrictions that they have placed on fishing ac-

tivities within their jurisdictions for a number of

years. Since 1957 no commercial fishing has been

permitted above Bonneville Dam, which is the first

dam on the Columbia River, except for Indian fish-

eries. It should be noted that at the present time the

states of Washington and Oregon are required by

judicial decree in Sohappy v. Smith, 302 F. Supp.

899 (D.C. Ore. 1969) to permit Indians to obtain

an equitable portion of the entire fish run. More re-

cently, the United States District Court of Oregon

in 1974 amended the Sohappy decree, supra, under

its continuing jurisdiction and specifically decreed

that Indians are entitled to 50% of the harvestable

fish. That amendment was based on a decision

rendered in United States v. Washington, 384 F.

Supp. 312 (W.D. Wash. 1974) (aff’d Ninth Cir.,

7

June 4, 1975). The complexities of managing the

fish runs and recognizing treaty Indian fisheries on

the Columbia River and its tributaries present a

complex regulatory situation which is a strong argu-

ment for not exercising judicial intervention. This

Court noted in Nebraska v. Wyoming, 325 U.S. 589,

616 (1945), that situations involving the interest of

quasi-sovereigns :

“*s * * present complicated and delicate

questions, and, due to the possibility of future

change of conditions, necessitate expert admin-

istration rather than judicial imposition of a

hard and fast rule. Such controversies may

appropriately be composed by negotiations and

agreement, pursuant to the Compact Clause

of the federal constitution.”

The legislative action already taken by the

State of Oregon to permit the addition of the State

of Idaho to the Oregon-Washington Columbia River

Fish Compact and the similar action now pending

in the State of Washington strongly support the

suggestion that the Court reject the Idaho suit

without prejudice.

We submit that the water right adjudication

cases involving states, for example, Arizona v. Cali-

fornia, 283 U.S. 423 (1931), 298 U.S. 558 (1936),

373 U.S. 546 (1963), Nebraska v. Wyoming, 325

U.S. 589 (1945), Wyoming v. Colorado, 259 U.S.

419 (1921), and Kansas v. Colorado, 206 U.S. 46

(1907), supra, are not apropos to the current pro-

ceeding. In the situations giving rise to those cases

8

either a state or its citizens were appropriating

water which by virtue of its appropriation was not

available for use by others, and if the upstream

diversion or use could be enjoined, the water would

in fact be available for use by the downstream con-

sumer. In the present situation, a failure to harvest

fish downstream on the Columbia River does not

automatically mean that those fish will be available

for harvest by an upstream state and its citizens.

First, there are mixed stocks of fish in the river

which spawn in various areas; not all of the fish are

destined for the Snake River and its tributaries.

Further, there is a substantial natural mortality

of the fish involved in the upstream migration. Thus,

the preclusion of an appropriate harvest can simply

result in greater natural wastage of the resource.

Furthermore, in the water cases the Court has

recognized an interest in water, and we are una-

ware of any cases which have held that a state has

a proprietary interest in migratory animals located

outside of its jurisdiction.

The Court in Missouri v. Holland, 252 U.S. 416

(1920), rejected the contention of the state of Mis-

souri that the federal government could not, pur-

suant to an international treaty, exercise some con-

trol over migratory birds when they were located

within the state of Missouri. The Court noted that

the subject matter; ie., the birds, were only

transitorily within the state and had no permanent

habitat therein. Supra at 435. The Court further

9

rejected the contention that the state could exercise

exclusive authority by virtue of an assertion of title

to the migratory birds. Supra at 434. We believe it

would be anomolous for the Court, having recognized

limitations on the authority of the state over a

migratory resource within its boundaries, to find

that a state has sufficient interest to affect the

actions of other states regarding migratory fish

located within another state’s jurisdiction. The con-

cept argued here on behalf of the State of Idaho

would appear to apply with equal force to migratory

animals, birds or fish. We respectfully submit that

there is no basis for the assertion of such claims for

extraterritorial jurisdiction over those resources.

CONCLUSION

We do not believe that it is appropriate for the

Court to assume jurisdiction of this matter, and in

support we quote the following language by Justice

Frankfurter in West Virginia v. Sims, 341 U.S. 22,

27 (1951):

“* * * The delicacy of interstate rela-

tionships and inherent limitations upon this

Court’s ability to deal with multifarious local

problems have naturally led to exacting stand-

ards of judicial intervention and have inhibited

the formation of a code for dealing with such

controversies.”

Similar sentiments were expressed by the Court

in New York v. New Jersey, 256 U.S. 296, 313

(1921), when the Court observed that the problems

between New York and New Jersey were,

10

“* * * more likely to be wisely solved by

. cooperative study, by conference and mutual

concession on the part of representatives of the

state so vitally interested in it than by pro-

ceeding in any court, however constituted.’

We respectfully submit that the Court should

deny the motion by the State of Idaho for leave to

file a complaint in this action.

DATED this 2/ day of July, 1975.

Respectfully submitted,

SLADE GORTON

Attorney General

EDWARD B. MACKIE

Deputy Attorney General

Attorneys for

State of Washington

11

APPENDIX 1

40 STAT. 515

Be it enacted by the Senate and House of Repre-

sentatives of the United States of America in Con-

gress assembled, That the Congress of the United

States of America hereby consents to and ratifies the

compact and agreement entered between the States

of Oregon and Washington relative to regulating,

protecting, and preserving fish in the boundary

waters of the Columbia River and other waters,

which compact and agreement is contained in sec-

tion twenty of chapter one hundred and eighty-eight

of the general laws of Oregon for nineteen hundred

and fifteen, and section one hundred and sixteen,

chapter thirty-one, of the session laws of Washington

for nineteen hundred and fifteen, and is as follows:

“All laws and regulations now existing, or

which may be necessary for regulating, pro-

tecting, or preserving fish in the waters of the

Columbia River, over which the States of Ore-

gon and Washington have concurrent jurisdic-

tion, or any other waters within either of said

States, which would affect said concurrent jur-

isdiction, shall he made, changed, altered, and

amended in whole or in part, only with the

mutual consent and approbation of both States.”

Nothing herein contained shall be construed to

affect the right of the United States to regulate

commerce, or the jurisdiction of the United States

over navigable waters.

12

APPENDIX 2

WASHINGTON HOUSE BILL NO. 156

1975 Legislative Session as passed by the

Washington State House of Representatives

AN ACT Relating to anadromous fish; provid-

ing for a compact between the states of Washington,

Oregon and Idaho relative to anadromous fish in

the waters of the Columbia and Snake Rivers and

providing for the ratification thereof; repealing

section 75.40.010, chapter 12, Laws of 1955 and

RCW 75.40.010; and repealing section 75.40.020,

chapter 12, Laws of 1955 and RCW 75.40.020; and

repealing the compact now existing between Oregon

and Washington relating to fish in the concurrent

waters of the Columbia River only upon approval by

the congress of the compact provided for in section 1

of this 1975 act.

BE IT ENACTED BY THE LEGISLATURE OF

THE STATE OF WASHINGTON:

NEW SECTION. Section 1. Should congress by

virture of the authority vested in it under Article

1, section 10, of the Constitution of the United

States, providing for compacts and agreements be-

tween states, ratify the following as a definite com-

pact and agreement between the states of Washing-

ton, Oregon and Idaho, then, and in that event, there

shall exist between the states of Washington, Oregon

and Idaho a compact and agreement, the purport of

which shall be substantially as follows:

13

The compact states acknowledge that they have

a common interest in the conservation and manage-

ment of anadromous fish stocks in the Columbia

River drainage and they mutually agree to assume

joint responsibility in developing sports and com-

mercial fishery programs and regulations which will

maintain and preserve the resource for the interest

and benefit of all users.

Membership from the compact states shall be

the Idaho fish and game department, the fish com-

mission of the state of Oregon, Oregon wildlife com-

mission, Washington department of fisheries and

the Washington department of game or the successor

agency to any of the above. The compact members

may appoint advisors to serve as needed.

All rules and regulations now existing or wnich

may be necessary for the conservation and rmanage-

ment of anadromous fish in the waters of tne main

stem of the Columbia River from its mouth to the

mouth of the Snake River and the waters of the

main stem of the Snake River from its mouth to the

mouth of the Salmon River, shall be made, changed,

altered and amended in whole or in part by a major-

ity vote. In voting on rules and regulations, each

state shall be entitled to one (1) vote. Idaho will vote

only on those regulations which might have a sub-

stantial impact on fish destined for Idaho waters.

The individual states shall be responsible for

the management of anadromous fish stocks in per-

14

tinent tributary streams and shall be guided in such

management by the intent and purpose of this com-

pact.

NEW SECTION. Sec. 2. The compact and agree-

ment now existing between the states of Washington

and Oregon for the purpose of regulating, protecting

or preserving fish in the waters of the Columbia

River, or its tributaries, over’ which the states of

Washington and Oregon have concurrent jurisdic-

tion, or which would be affected by said concurrent

jurisdiction shall be of no force and effect upon

ratification by the congress of the compact and agree-

ment provided for in section 1 of this 1975 act.

NEW SECTION. Sec. 3. The following acts or

parts of acts are each hereby repealed:

(1) Section 75.40.010, chapter 12, Laws of

1955 and RCW 75.40.010; and

(2) Section 75.40.020, chapter 12, Laws of

1955 and RCW 75.40.020;

It is the intention of the legislature that the repeal-

ers contained in this section shall become effective

only upon ratification by the congress of the com-

pact and agreement provided for in section 1 of this

1975 act.