LOCATION: Minnesota State Legislature
DOCKET NO.: 67 ORIG
DECIDED BY: Burger Court (1981-1986)
CITATION: 462 US 1017 (1983)
ARGUED: Mar 23, 1983
DECIDED: Jun 23, 1983
Edward B. Mackie - on behalf of Defendant Washington
Jim Jones - on behalf of the Plaintiffs
Facts of the case
Media for Idaho ex rel. Evans v. Oregon
Audio Transcription for Oral Argument - March 23, 1983 in Idaho ex rel. Evans v. Oregon
Warren E. Burger:
We will hear first this morning Number 67 Original, Idaho against Oregon.
Mr. Attorney General, you may proceed whenever you are ready.
Thanks, Your Honor.
Mr. Chief Justice, and may it please the Court, in this case Idaho seeks apportionment of the fish it contributes to three Columbia Rivers... Columbia River runs of anadromous fish, spring and summer chinook salmon, and steelhead trout.
We have historically contributed about half of the fish to each of the upriver runs of these fish, but have not received a fair share of the harvest.
From 1962 until 1980, the defendants took 83 percent of the harvest.
They took of summer... of spring chinook.
They took 75 percent of the harvest of summer chinook, and 58 percent of the harvest of steelhead.
The Master, however, reached a conclusion which is not supported by the record because he confined Idaho to a straightjacket of proof, a narrow five-year period from 1975 to 1980, the period after the suit was originally filed.
He disregarded a history of disproportionate sharing of Idaho origin fish, as I have just outlined, the very evidence which we believe this Court wanted in the original decision issued in 1981.
He chose a narrow, unrepresentative time frame of runs depressed by dams and overfishing by the defendants, when there was no significant harvest of fish available.
The only significant harvest was by the defendants in 1977, and it was on the summer... on the spring chinook run.
At that time, even though there were not enough fish to meet the escapement that the defendants had agreed on with the Indians in the five-year plan, the defendants conducted a downstream harvest, and during that year they took 78 percent of the harvest of spring chinook, and that was during the five-year period that the Master actually did consider.
Idaho did harvest some fish during those years, but they were harvests that were conducted in the hatchery areas on surplus fish that were not needed for spawning requirements.
The Master did not take into account the massive effort that was just getting under way to restore these runs to their former numbers so that they would once again be harvestable.
The facts are that the runs are being restored through existing hatchery efforts in the three states.
They are going to be restored additionally under the Lower Snake compensation plan which contemplates nine new hatcheries.
About three or four of those are presently on line, and others are in the works.
Under the Northwest Electric Power Planning and Conservation Act, a tremendous effort is just getting under way to restore the damage caused by the Lower Columbia Dams, and that is going to have an effect, because it is going to be implemented starting immediately.
Granting relief to Idaho will not be in vain, because passage mortality losses upstream are such now that renewed runs will get to Idaho.
An allocation formula can be made using existing methodology and formulas that the defendants use each year already in making allocations of fish for the Indians under their five-year plan.
It is not going to be that much more difficult to take a share of the non-treaty fishery, the non-treaty harvestable surplus, and set it aside for Idaho, so that we can share in the fish that we contribute to these runs.
The Indians found that it was necessary for them to get a court decreed allocation of fish, because they are in the same position that we are.
We are end users.
In other words, the defendants fish below both us and the Indians.
They can take the fish.
We have no control over them.
And it was apparent to the Indians that they needed the protection of a court decree, and we believe that we do, too.
Sandra Day O'Connor:
What kind of a formula is used to protect the Indian rights?
In the Sorhappy case, the Federal District Court said that the Indians were to get 50 percent of the harvestable surplus.