# Opposition — Idaho ex rel. Andrus v. Oregon

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1975
- **Citation:** 423 U.S. 813

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2423%3A3. Public record. Not legal advice.