University of Colorado Law School Colorado Law Scholarly Commons Articles Colorado Law Faculty Scholarship 1983 The Law of the Pacific Salmon Fishery: Conservation and Allocation of a Transboundary Common Property Resource Charles F. Wilkinson University of Colorado Law School Daniel Keith Conner University of Oregon School of Law Follow this and additional works at: https://scholar.law.colorado.edu/articles Part of the Environmental Law Commons, Indian and Aboriginal Law Commons, International Law Commons, Legal History Commons, and the Natural Resources Law Commons Citation Information Charles F. Wilkinson and Daniel Keith Conner, The Law of the Pacific Salmon Fishery: Conservation and Allocation of a Transboundary Common Property Resource, 32 U. KAN. L. REV. 17 (1983), available at https://scholar.law.colorado.edu/articles/1058. Copyright Statement Copyright protected. Use of materials from this collection beyond the exceptions provided for in the Fair Use and Educational Use clauses of the U.S. Copyright Law may violate federal law. Permission to publish or reproduce is required. This Article is brought to you for free and open access by the Colorado Law Faculty Scholarship at Colorado Law Scholarly Commons. It has been accepted for inclusion in Articles by an authorized administrator of Colorado Law Scholarly Commons. For more information, please contact [email protected]. +(,121/,1( Citation: Charles F. Wilkinson; Daniel Keith Conner, The Law of the Pacific Salmon Fishery: Conservation and Allocation of a Transboundary Common Property Resource, 32 U. Kan. L. Rev. 17, 110 (1983) Provided by: William A. Wise Law Library Content downloaded/printed from HeinOnline Thu Oct 26 13:23:38 2017 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information Use QR Code reader to send PDF to your smartphone or tablet device THE LAW OF THE PACIFIC SALMON FISHERY: CONSERVATION AND ALLOCATION OF A TRANSBOUNDARY COMMON PROPERTY RESOURCE* Charles F Wilkinson** Daniel Keith Conner*** TABLE OF CONTENTS I. INTRODUCTION .................................................... 18 II. THE LIFE JOURNEY OF A PACIFIC SALMON IN DIFFERENT HISTORI- CAL E RAS .......................................................... 22 A. The Era of Subsistence Fisheries (c. 7000 B. C -1866) ................ 22 B. The Time of the Free-for-All (1866-1933) ........................... 30 C The Era of Dams and Hydropower (1933-1973) ...................... 35 III. THE LIFE JOURNEY OF A PACIFIC SALMON TODAY: THE ERA OF ATTEMPTED RESTORATION (1973-PRESENT) ........................ 43 A. The Dominant Legal Events ....................................... 46 1. The "Boldt" Decision of 1974 and Other Indian Fishing R ights D ecisions ............................................. 46 2. The Fishery Conservation and Management Act of 1976 ..... 48 3. The Pacific Northwest Power and Conservation Act of 1980 53 4. The Proposed Pacific Salmon Interception Treaty with C anada ..................................................... 56 B. The Regulatogy M atrir ............................................ 61 1. Protection of Downstream Migrating Juveniles ............... 61 2. H arvest in the O cean ........................................ 67 3. H arvest in the R iver ........................................ 73 IV. REDRAWING THE PRECEPTS: ANADROMOUS FISH MANAGEMENT IN T H E 1980s ......................................................... 78 A. The Old Ideas.- The Era of Dams and Hydropower ................... 79 1. The Primacy of Hydropower and Irrigation over the Needs of the F ishery .................................................. 79 * This article is a revised version of a talk presented at the Second Annual Rocky Mountain Mineral Foundation Institute for Law Teachers in Boulder, Colorado on May 25-27, 1983. The research was sponsored in part by the Oregon Sea Grant College Program, University of Oregon Ocean and Coastal Law Center, supported by NOAA, Office of Sea Grant, U.S. Dept. of Commerce, under grant no. NA8 lAA-D-00086. ** Professor of Law, School of Law, University of Oregon. B.A. 1963, Denison University; LL.B. 1966, Stanford University. *** Third year student, School of Law, University of Oregon. Research Assistant, Ocean and Coastal Law Center. B.A. 1966, University of Chicago; M.S. 1981, Oregon State University. We thank Janis Chrisman, Howard G. Arnetts, Jon L. Jacobson, and Michael C. Blumm for their comments and contributions to this article. Thanks also to George Cameron Coggins, Tyler Professor of Law at the University of Kansas School of Law, who conceived of this Symposium and proposed this topic: he has outstripped even his considerable accomplishments by bringing Pacific Salmon to Kansas. We dedicate this Article to Chapin D. Clark, Professor of Law and Dean from 1974 through 1980, who has been the dominant influence in building the natural resources program at the University of Oregon Law School. KANSAS LAW REVIEW [Vol. 32 2. The Primacy of State Control over Fishing Seasons, Bag and Size Limits, and Gear Restrictions ........................... 79 3. The Primacy of Non-Indian Commercial and Sport Fishing over Indian Fishing Rights .................................. 80 4. The Primacy of Hatcheries as a Method of Resource E nhancem ent ............................................... 8 1 B. The New Ideas.- The Era of Attempted Restoration ................... 84 1. Recognition of Anadromous Fish as a Co-Equal Resource .... 85 2. Enhancement of the Resource through Habitat Management. 85 a. Restoration of Wild Fish Runs ............................ 85 b. Water Budgets and Instream Flow Programs .............. 92 3. Management of the Ocean Fishery .......................... 94 4. Interdisciplinary Planning and Citizen Participation ......... 96 5. Recognition of Indian Fishing Rights ........................ 98 6. Lim ited Entry ............................................... 99 7. Interjurisdictional Management .............................. 102 V. AN AGENDA FOR THE FUTURE: COORDINATING AND CONSOLIDAT- ING JURISDICTIONS ................................................ 103 V I. C ONCLUSION ...................................................... 107 I. INTRODUCTION With the possible exception of the great whales,' and perhaps also some spe- cies of fur-bearing seals and otters, no group of marine animals has been so inten- sively exploited as the various species of salmon and their relative the steelhead trout. Both nature and humans make extreme demands on these anadromous fish, 2 and for that reason they have been aptly called the world's most harassed 3 fish. By any standard of measure, Pacific salmon and steelhead trout are an ideal symbol of the bounty of nature: large, extravagantly numerous in their natural state, perpetually self-renewing, and easily caught. Virtually every river on the Pacific coast, from Monterey Bay up to the Bering Peninsula, once teemed with salmonids on their way upriver to spawn. Early nineteenth century explorers I On the economics, politics, and laws of whaling see M'Gonigle, The "'Economtzing"of Ecology. Why Big, Rare Whales Still Die, 9 ECOLOGY L.Q. 120 (1980). See also K. ALLEN, CONSERVATION AND MANAGE- MENT OF WHALES (1980). 2 "Anadromous" fish (from Greek, "running upward") are born in freshwater, spend part of their lives in the ocean, and return to freshwater to spawn. Other anadromous fish are lampreys, shad, smelt, and sturgeon. "Catadromous" fish, like the Atlantic eel, spend their adult lives in freshwater, moving into the ocean to spawn. Most animals are content to spend their lives near the place of their hatching or birth. Some, however, undertake periodic migration, either in search of optimum climate, more food, or conditions necessary for breeding. Among the latter are Pacific salmon which, though not the most wide-ranging of migratory animals, are perhaps the most intensively studied and among the most commercially valuable. See gener- ally, P. STREET, ANIMAL MIGRATION AND NAVIGATION (1976). There are five species of anadromous Pacific salmonids. Oncorhyncus (0.) tsawytscha, the chinook or king salmon; 0. nerka, the sockeye or red salmon; 0. kisutch, the coho or silver salmon; 0. keta, the chum or dog salmon; and 0. gorbuscha, the pink or humpback salmon. The genus name "Oncorhynchus" means "hooked snout." The species names are of Russian derivation because they were first described by a naturalist on the Bering expedition in 1737. R. CHILDERHOSE & M. TRIM, PACIFIC SALMON 25-26 (1979). The steelhead trout (a sea-run rainbow trout), Salmo gairdneri, is more closely related to the Atlantic salmon, Salmo salar, than to the Pacific species. 3 A. NETBOy, SALMON: THE WORLD'S MOST HARASSED FISH (1980). THE LAW OF THE PACIFIC SALMON FISHERY and settlers were awestruck by the sheer numbers of fish in the rivers at certain times of the year.4 Later in the century, old-timers would gather to swap tales of those Arcadian times when one could walk across a river on the backs of migrat- ing fish. 5 One version to be reckoned with comes from a crusty yarnspinner named Hathaway Jones, a regional Mlinchausen of Oregon folklore who lived on a remote stretch of the Rogue River in the late nineteenth and early twentieth centuries.