Transcript

IN THE SUPREME COURT OF THE UNITED STATES

STATE OF IDAHO, EX REL. JOHN V. EVANS, GOVERNOR; JIM JONES, ATTORNEY GENERAL; JERRY M. CONLEY, DIRECTOR, DEPARTMENT OF FISH AND GAME, Plaintiffs, v. STATES OF OREGON AND WASHINGTON

No. 67 Original

March 23, 1983

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:07 o'clock a.m.

APPEARANCES:

JIM JONES, ESQ., Attorney General of Idaho, Boise, Idaho; on behalf of the Plaintiffs.

EDWARD B. MACKIE, ESQ., Chief Deputy Attorney General of Washington, Olympia, Washington; on behalf of Defendant Washington.

PROCEEDINGS

CHIEF JUSTICE BURGER: We will hear first this morning Number 67 Original, Idaho against Oregon.

Mr. Attorney General, you may proceed whenever you are ready.

ORAL ARGUMENT OF JIM JONES, ESQ. ON BEHALF OF THE PLAINTIFFS

MR. JONES: 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 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.

QUESTION: What kind of a formula is used to protect the Indian rights?

MR. JONES: In the Sorhappy case, the Federal District Court said that the Indians were to get 50 percent of the harvestable surplus. Then the parties agreed on a five-year plan, starting in 1977 -- it just terminated last year -- whereby an escapement of 120,000 fish over Bonneville was agreed on. The Indians were then to get a certain amount, and it is in the formula in the five-year plan for ceremonial and subsistence fishers.

QUESTION: Is it in the nature of an escapement number?

MR. JONES: It is after the escapement is met. Then the fish are shared on a percentage basis. The Indians get 40 percent above the escapement and above the ceremonial fishery. The defendants get 60 percent. So it is on a percentage basis. And that is fair to all parties, and that is what we are basically after here.

I would like to give you a brief background on --

QUESTION: What is the formula that you think will protect Idaho's interests?

MR. JONES: The formula that we have laid out is essentially at Pages 81 and 82 of our brief, and we are saying that you go one step beyond the five-year plan, and that you take the 60 percent of the non-treaty fishery and slice off an allocation for Idaho. We are saying that with regard --

QUESTION: An allocation not yet determined?

MR. JONES: Not yet determined. What we are suggesting is that of that 60 percent, you use existing methodology and formulas to find out how much Idaho contributed. If Idaho contributed, say, 40 percent to that 60 percent, then you take that 40 percent and give Idaho 40 percent of it and give the defendant 60 percent. In other words, we are willing to share the fish that we contribute.

QUESTION: But didn't the Master say you could not tell how many Idaho had contributed?

MR. JONES: The Master indicated that, but the unrebutted testimony by Idaho's experts was that you could determine it, and that unrebutted testimony was based on formulas that the defendants have devised. And apparently the Master did not understand those formulas, but we are willing to live with them.

QUESTION: Well, General. Jones, you are not suggesting the Master isn't entitled to disbelieve testimony even though it is unrebutted, are you?

MR. JONES: Well, we are saying that if it is not inherently incredible, if it is not contradicted, if people don't punch holes on it, if it is not inherently incredible, he has to live with it, we think.

QUESTION: What if the Master concluded that it is simply an unknowable factor, and therefore it wouldn't be a matter of impugning the credibility or integrity of the witness, but simply a conclusion that the witness was in outer space in terms of giving an opinion?

MR. JONES: Well, Mr. Chief Justice, I think that he did not say it was unknowable, and possibly it could be, but historically the runs have been 50 percent contributed by Idaho, and that is recognized by the experts for Washington, Oregon, and Idaho, and fish counts are kept, so that you can find out certainly a year afterwards what the run was, and what --

QUESTION: Aren't you including in Idaho's contribution the hatchery fish?

MR. JONES: We include hatchery fish in all the calculations.

QUESTION: Why do you assign those hatcheries to Idaho?

MR. JONES: Pardon?

QUESTION: Why do you assign those hatcheries to Idaho as a state?

MR. JONES: Well, because this Court, I believe, recognized in the Washington fishing vessel case -- I believe it was that case -- that hatcheries are there primarily to compensate for damages caused by the dams, and the principle has been recognized with respect to the Indians, and it should be recognized with respect to us, and those hatcheries are apportioned, like under the Lower Snake Compensation Plan, those hatcheries are apportioned to compensate, they are distributed to compensate for the damages that were caused by the dams.

We didn't put the dams there. We didn't put those dams there that caused our fish to die.

QUESTION: You didn't put all the hatcheries there, either.

MR. JONES: But --

QUESTION: Did you?

MR. JONES: It is just like the fellow that goes out and gets mowed down on the street. He didn't get mowed down --

QUESTION: Well, I just asked you, did you put all the hatcheries in?

MR. JONES: No, but --

QUESTION: Who did?

MR. JONES: But when he is compensated --

QUESTION: Who did? Who --

MR. JONES: Idaho Power put some of them in.

QUESTION: And who else?

MR. JONES: The federal government put some of them in. Idaho put some of them in.

QUESTION: How many -- what -- How many hatcheries did Idaho itself put in?

MR. JONES: We have funded the McCall hatchery in McCall, Idaho.

QUESTION: How many hatcheries are there?

MR. JONES: There are eight hatcheries in operation in Idaho.

QUESTION: And you say -- and Idaho financed one?

MR. JONES: Idaho has financed one. The others were given by way of compensation for dams that we didn't place there. In other words, they are just making up, they are mitigating for the damages occasioned to us by virtue of the fact that they were placed there. We didn't have anything to do with -- and they are mitigating. They are compensating.

QUESTION: How many of the fish that you claim Idaho is supplying are hatchery fish?

MR. JONES: Presently, about 30 to 50 percent of the spring chinook in the runs are hatchery fish. The rest are wild fish. And about 50 to 60 percent of the steelhead are hatchery fish.

QUESTION: Could I ask you again, the formula that you want would provide for how many fish coming over Bonneville?

MR. JONES: The same amount that the --

QUESTION: The 120,000?

MR. JONES: The 120,000 -- well, the 120,000, but you have to include the Indian catch, so it would have to be somewhere over 120,000. But that is what we talk about when we talk about an escapement. It is the number over Bonneville less the Indian catch.

QUESTION: And out of the 120,000, how much of that would be necessary to keep their runs going?

MR. JONES: All of it.

QUESTION: All of it.

MR. JONES: All of it. You can't fish on a minimum escapement.

QUESTION: Well, all right, but what I really want to know, then, is how would you ever harvest any fish?

MR. JONES: Well, we would have to get 120,000 fish over the dam plus the Indian catch --

QUESTION: Plus your share.

MR. JONES: -- and plus our share.

QUESTION: I see. The 120,000 is the minimum to keep the runs alive?

MR. JONES: That's correct. If we're going to continue the runs, we've got to have at least that many.

QUESTION: And how many -- Do you have -- Can you quantify like that, the Indians would get how many fish?

MR. JONES: Well, they would get 40 percent of the harvestable surplus. Let's say that there were 180,000 fish going over --

QUESTION: So they count the fish going over Bonneville --

MR. JONES: Right, the defendants do that every year.

QUESTION: -- and then you take off 120, and whatever is left over, the Indians get half of them?

MR. JONES: Well, no, there are 30,000 fish under their plan that have to go upriver. The defendants can take a certain amount of those, a maximum of 7,500 --

QUESTION: Above Bonneville?

MR. JONES: -- above Bonneville when you have between 120,000 and 150,000.

QUESTION: All right. All right. I've got it.

MR. JONES: And then above the 150,000 you have your harvestable surplus, and that is the amount that is allocated out to the treaty and non-treaty fisheries.

QUESTION: What would be an optimum escapement, how many?

MR. JONES: An optimum escapement would be somewhere in the vicinity of 150,000 plus the Indian fisheries. And that would provide for maximum sustained yield, and essentially that is what they are shooting for.

QUESTION: How many years have there been that many available for an optimum escapement?

MR. JONES: Prior to the 1970's, there would have been certainly enough for an optimum escapement. I think --

QUESTION: Since the seventies. Are there enough for an optimum escapement?

MR. JONES: Prior to the 1970's -- I believe that for the first three years of the seventies, there would have been enough. As a matter of fact, it is interesting that when we had seven dams on line in the system, when the mortality rates had been fairly well established at about two fish for each one that reached Idaho through the entire system, so you lose a maximum of one fish as they are coming up the river for one that you get, at a time when we had that situation existing starting in 1970, we had two of the record runs of fish in the spring chinook runs.

QUESTION: When was the last dam put in?

MR. JONES: The last dam was put in in 1975, but it did not add --

QUESTION: And that is the one closest to Idaho, isn't it?

MR. JONES: That's the Lower Granite Dam. It did not add significantly to the mortality, because measures were incorporated in that dam to make sure that the fish could get up the ladders. So it did not add very much to the mortality rate.

QUESTION: How about going down?

MR. JONES: Downstream, mortality is a more difficult situation. But they have had good success with the screening, and one of the things -- one of the things in the Lower Snake Compensation Plan and the Columbia River Basin Plan, a copy of which has just come to our attention, and it has been lodged with the Court, a copy provided to counsel, that plan is designed to either transport fish around the dams on their downstream migration or to properly screen the turbines so that the won't have the mortalities that we've had.

That has been the sticking point, and that is really what the problem is with the narrow constrained time frame that the Master used. He used a time frame where we were suffering yet from overfishing by the defendants in previous years. The runs were suffering from those strains caused to it. They were suffering from the upstream and downstream mortality from the dams.

But during that five-year period we didn't take into account all of the massive effort that is being made and going to be made to affect those upstream and downstream mortalities, so we have an artificial period of time.

QUESTION: General Jones, to get one fish to Idaho, it requires that two die en route, two others die to get one through to Idaho?

MR. JONES: No. With regard to spring chinook, one or less have to die to get one to Idaho, and that is set out in Pages 4 and 5 of our reply brief. It has the upstream mortality rates for the years 1962 through 1980. The mortality rate for spring chinook in 1962 was 1.33. In 1968, when John Day Dam, and that's the big killer, when John Day Dam went on line, it went to 1.56, and it has been going back and forth between that figure and 2.24 since that period of time. But it is generally --

QUESTION: So it is one to two now --

MR. JONES: Right.

QUESTION: -- to get one to Idaho.

MR. JONES: Right. With regard --

QUESTION: And it is your position that it is better to prevent people downstream from catching those fish, that we should force them to die rather than be caught and used to get Idaho's fish upstream? Is that basically it?

MR. JONES: Well, we are not saying that we should force them to die. We are saying that we have got a strong state commitment by the state of Idaho and by the federal government to ensure that those runs do not die out. The Central Idaho Wilderness Act, the Wild and Scenic Rivers Act give high priority to maintaining those salmon runs.

As a matter of fact, the defendants give priority by their 120,000 escapement plus the Indian harvest. They give high priority to maintaining those runs. And I think that all of the parties would like to see those runs continue.

QUESTION: What is going to happen now that the five-year plan has terminated? Is there some prospect for another agreement?

MR. JONES: Well, if the five new --

QUESTION: Because the Indians are not parties to this case.

MR. JONES: What we do here today will not affect the Indians, because they have a court decree to fall back on.

QUESTION: The United States is not a party, either.

MR. JONES: That's correct, and this Court decided that that was not necessary.

QUESTION: No, I know.

MR. JONES: And we don't believe that it is necessary, because we have a court decree to fall back on for the Indians where they get 50 percent of the fish.

QUESTION: So you want the defendant states not to fish so much below Bonneville.

MR. JONES: That's essentially it. We are saying, let a few --

QUESTION: And let more fish get through Bonneville and also keep their catch down above Bonneville.

MR. JONES: That's correct. They don't do too much fishing above Bonneville. We are just saying, let a few of them come up to Idaho. Now, you know, during the events leading up to this suit, we did have an agreement at one point, and that was in 1972, and I believe the defendants recognize that we were entitled to some fish, and at that time there were some hatchery fish, too, but anyway, they agreed in 1972 that we could have an upriver escapement of spring chinook of 40,000. That would be above the uppermost Snake Dam.

And essentially that would give us a spawning escapement goal of 30,000 plus about 10,000 above the uppermost Snake Dam.

QUESTION: How many fish do have to reach Idaho waters to satisfying the spawning requirement, 30,000?

MR. JONES: Thirty-thousand over the uppermost dam.

QUESTION: Has to get to Idaho?

MR. JONES: Right, and anything above that can be fished on. Actually, you can fish below that level if you take the surplus of the hatcheries, which we did during this five-year period, and it is a progressive way to manage your fish. It is recognized by the Oregon Department of Fisheries and Wildlife as being a progressive technique that all of the parties are going to have to adopt.

QUESTION: Have they tried the transporting of fish downstream around the dams?

MR. JONES: That has been tried, and it has been successful for steelhead.

QUESTION: How about the salmon?

MR. JONES: The salmon?

QUESTION: What do they do, lose their way on the way back?

MR. JONES: No. If you use a barge, they can keep the scent.

QUESTION: I see.

MR. JONES: As far as we know, that's what gets them back up the river. They get the scent of the water.

QUESTION: Yes, all right.

MR. JONES: But if you use a barge, that generally is taken care of. But in any event, I wanted to just basically outline what Judge Brightenstein felt the situation was when he first considered the case, and this really is representative of the situation.

In 1978, in his report, Judge Brightenstein said, "The contribution of Idaho to the total system fishery is substantial. Idaho produces many fish and receives few. To a significant extent, Idaho is subsidizing the downstream fishery, both Indian and non-Indian."

And that was supported, those initial findings were supported by uncontroverted evidence in the record. That evidence showed that from 1962 until 1980, Idaho contributed 50 percent to the upriver runs of spring chinook, the defendants harvested 435,622 fish of Idaho origin, constituting 83 percent. They left us 17 percent of the harvestable amount.

During that same period, we produced 40 percent of the summer chinook. They harvested 75 percent of the Idaho origin summer chinook for a total of 58,069. We produced or we contributed 48 percent of the steelhead to the upriver run. The defendants harvested 58 percent, which amounted to 370,484 fish.

We believe that the evidence building on that shows that not only were the dams depressed because of -- or were the runs depressed because of the dams, and the mortality caused by the dams, but also because of overfishing by the defendants.

With regard to spring chinook, they fished in seven years, 1958, '59, '60, '63, '65, '67, and '74, in which an adequate minimum escapement was not provided for, and one of the highest priorities in fish management is to ensure that you have that minimum escapement so that you can continue the species. They took 515,000 fish and about half of those were of Idaho origin.

And it should be pointed out that in 1974, just one year before the period that the Master thought was important, they fished against the recommendations of the biologists. The biologists said, we aren't going to have a fishable run, a harvestable run, but they fished anyway, and they seriously impacted that run. The escapement over Bonneville was almost half what it should have been. It was 68,000 and some odd fish.

And that had impact. When you overfish in one year, it has impact in the future, because there should have been additional fish available in 1968 which would have been four-year-olds out of the '74 return, and five-year-olds in the 1969 run, yet the 1969 run -- or '79 run, which the Master did consider, was a record low.

So, essentially, if we say there is no relief in sight, we are allowing the defendants to benefit from their management practices, which allowed fishing below a minimum escapement.

The same situation is generally applied with regard to the summer chinook and the steelhead trout.

We believe that a remedy is appropriate, that it is feasible, and that it is necessary. Idaho should be allocated a share of the fish that it contributes to these runs. We are not asking for the defendant's fish. We are asking just to share in the fish that we contribute.

As the director of the -- or as the Department of Fisheries in Washington indicated in the publication entitled A Plan for Revitalizing The Salmon Fisheries of Washington State, at Page 8 -- that is exhibit I-25 --"As a general rule, we must recognize that a major proportion of salmon must be returned to all areas where they originate for disposition as their owners choose."

And what they are saying essentially is that you have got to reward the people that are the husbands for these fish, maintain the husbandry, the stewards for those fish, to give them some incentive to carry on, and that is what we are asking for.

QUESTION: General Jones, can I ask one question?

MR. JONES: Yes.

QUESTION: And you don't have to answer it right now, but before you get through, it would be very helpful to me if you picked any year you like and tell me for a particular run how many fish you think the Indians, your adversaries, and you could take out of that run under your proposal.

MR. JONES: Okay. Justice Stevens, if I could, when I get up during my rebuttal, I will figure that out and --

QUESTION: Because I can't -- it is very, very difficult to understand your theory. At least it is for me.

MR. JONES: Okay. I would like to outline --

QUESTION: I think you are coming into your rebuttal time now.

MR. JONES: Okay. I would like to outline just what I think are the minimum elements of any allocation plan. Number One, we need to have minimum escapements over Bonneville and Lower Granite Dams, and that is essentially necessary. Right now it is really essential because the five-year plan has expired, and I don't know that there are any minimum escapements that bind them, so that we can have proper management.

There should be an allocation for Idaho, and hopefully an allocation based on contribution, which will give the parties incentive to contribute to those runs.

Number Three, there should be a sharing of passage losses, because those dams were built primarily for the benefit of the defendants. They get the benefits of the power. They ought to share the burden of the passage losses.

And Number Four, there ought to be a catchup clause just like the Indians have that say, if you don't make the proper allocation this years, the upstream states get it the next year, and it works both ways.

I would submit to the Court that these fish are a treasure, not only for Idaho but for the nation, and they can and must be protected and restored, and I think that in order to do that, you have to give the stewards a share of the bounty.

Thank you.

CHIEF JUSTICE BURGER: Mr. Mackie.

ORAL ARGUMENT OF EDWARD B. MACKIE, ESQ., ON BEHALF OF DEFENDANT WASHINGTON

MR. MACKIE: Mr. Chief Justice, and may it please the Court, the starting position that the state of Idaho takes is to assert that the Master in some way restricted the record they had an opportunity to make. That assertion is simply false. The Master did not restrict the record which the plaintiffs had an opportunity to make in this suit. The Master's report and statistics indicates run sizes from 1956 on. The record has material reflecting runs that are prior to 1956.

What the Master did was, having heard the testimony on the question of indispensability, which resulted in the report, and then subsequently when the matter was remanded to the Master for proceeding upon the merits, took the testimony, the exhibits, and the arguments, and from that looked at the totality and could see the marked changes that have occurred in the Columbia River and Snake system as a result of the dams and the impact on the fishery, and having that knowledge before him, indicated that if the court was to prescribe a decree to address an allocation as sought by Idaho, one should look at what the realities of life are now, to address that decree, rather than to address a decree on the basis of what may have occurred in the 1940's, fifties, or sixties.

So, the record is in fact full. It is not restricted to the most recent period.

On the presentation of argument for the indispensability question, one of the contentions for indispensability was that most of these dams on this system are owned and operated by the federal government or licensees of the federal government, and therefore the United States for that reason was an indispensable party, because its control of the flow of water through those dams and the turbines as contrasted with spill had a direct impact on the availability of fish.

Idaho's response was that they accept the dams, they accept the loss, and therefore the United States was not indispensable upon that theory. This Court in the opinion remanding it back to the Master acknowledged that position taken by Idaho.

Now, it turns back to this Court. They are taking the posture that one should in some way apportion the loss that occurs by upstream passage of the fish rather than Idaho being the area where the fishery takes place after the fish have gone through eight dams on its upward matter.

QUESTION: Mr. Mackie, do you concede that Idaho is entitled under some theory to an equitable share of the fish?

MR. MACKIE: Your Honor, our position on that is that Idaho's claim is novel, it is unique, it has no precedent in terms -- in any case law nor any that they could develop for having "a right" here at all. The Court has found that the issue is in fact justiciable, so that it can be considered by a court for relief.

We therefore believe that if there is any right, it is an equitable right, and that equitable right comes in --

QUESTION: Well, do you concede that Idaho has an equitable right to some share of the fish?

MR. MACKIE: In terms -- I believe that Idaho could present in an appropriate circumstance a need to have some protection which would give rise --

QUESTION: Well, just in the abstract, does Idaho have an equitable right to a share of anadromous fish?

MR. MACKIE: Your Honor, in the abstract, my response is that the right comes into being because of the need to create it, and therefore if in fact they have demonstrated the need, that gives rise to the equitable right. The equitable right does not exist free-standing, separate, and apart from any --

QUESTION: Well, as I read your brief, I thought you were saying that fish just weren't a subject for equitable apportionment, and that the Master was just wrong in saying that Idaho was -- did have an equitable right, and if it could prove it up, it would get relief. I thought you were just against that.

MR. MACKIE: Your Honor, what our position was is that Idaho having failed to prove need for any protection, it is not appropriate therefore to label that they have a right at the outset. If they --

QUESTION: You don't think our prior opinion precluded the Master -- would have precluded the Master from, after hearing the evidence, saying there is not a right to equitable apportionment?

MR. MACKIE: Yes. You are --

QUESTION: The case is justiciable. It is like filing a complaint. It is certainly justiciable, but it is justiciable, you might -- you might judge it by saying you fail to state a cause of action.

MR. MACKIE: Your Honor, the Master addressing that point found that it was inappropriate to dismiss the action without having it proceed to the merits to determine whether there might be a right that would give rise.

QUESTION: Do you disagree with that --

MR. MACKIE: And that is what this Court affirmed.

MR. MACKIE: Do you disagree with that judgment?

MR. MACKIE: No, I do not disagree with that judgment.

QUESTION: Okay.

MR. MACKIE: But it means --

QUESTION: Well, the Master determined that Idaho was entitled to an equitable share, did he not?

MR. MACKIE: That's the point that we indicated, that the Master, by having concluded that there was no need for any relief, should not therefore recognize that there is an underlying right. Until the Master finds that there is a need, there should not be a recognition of a right.

QUESTION: But you didn't take exception to that.

MR. MACKIE: We did not take exception to the Master's conclusion of dismissal of the action. The -- I --

QUESTION: I am still puzzled --

MR. MACKIE: Excuse me.

QUESTION: -- about your legal position. I hate to -- Supposing you had a case where there were no dams at all, and your state took off all the fish, fished them all. Would Idaho have any rights?

MR. MACKIE: I believe that if the downstream states completely pre-empted the entire fishery --

QUESTION: Correct.

MR. MACKIE: -- Idaho would be in a position of claiming some relief from the --

QUESTION: They would have a legal -- they would have an equitable right under those facts?

MR. MACKIE: They would, under the general approach of the water rights cases for original jurisdiction, this Court would in fact condone the fashioning of some relief to protect Idaho from that pre-emptive action by the downstream states.

QUESTION: And you don't disagree with that as a matter of law.

MR. MACKIE: Right.

QUESTION: Well, Mr. Mackie, does your answer suggest that you think every time a person -- a state is entitled to equitable apportionment in the abstract, they are also entitled to a decree? Couldn't the Master -- I mean, I read the Master's finding in this case as being pretty much saying in the abstract they may have some right, but there just isn't any way we could give them relief on these facts.

MR. MACKIE: I agree, Your Honor. There is -- The Master concluded no relief. And all we are saying is that actually when one "says there is a right" the general reaction is, therefore "there should be a remedy," and that when one is looking to the recognition of something which is new and novel, as is here presented, it is prudent to say that we will try to describe what the nature of that may be when there is a need for some relief.

QUESTION: The principle of Ahkan's Razor. If there is no remedy, you don't have to worry about whether there is a right.

MR. MACKIE: That's right, Your Honor.

QUESTION: In that respect, now, we who are not experienced in water matters may get confused even about very elementary things, water and fish. Is there a difference on the right of a state with respect to water and the contents of the water, on terms of allocation?

MR. MACKIE: Yes, Your Honor. The first is that in water rights traditionally those adjudications have tried to resolve and harmonize the respective rights held by individuals and entities in varying states.

QUESTION: And is that based on need?

MR. MACKIE: That is based historically, when you are dealing with two states both of whom have a right of prior appropriation doctrine, of merging those two systems. When you deal with a state which has Raparian rights and appropriation rights, trying to merge the two systems. But generally those cases have recognized on a historical priority the older established right provided it has not been abandoned.

Now, more recently, this Court in the Colorado-New Mexico case issued in December seems to put a more current re-examination of what rights are being exercised that have been historical to determine whether some of those rights may be withdrawn back and transferred. In that case, all of the water had effectively been previously appropriated to New Mexico, and the claim was for water in Colorado. The Master ordered a withdrawal from the New Mexico portion and given to Colorado.

This Court remanded it to the Master to make further findings because it was not satisfied that -- of the reasons for the transfer, and the Court had various opinions on it. But it does say that you look more at a current use rather than the historical approach that has been more common in water right. It is to look at what has been the historical pattern of the use and recognize those historical patterns when they can be made compatible.

But in the water cases, there are two very important things related to this. One, the water cases have traditionally refused to grant a state -- a preferred position to the state of origin. This Court reaffirmed that refusal in the Colorado-New Mexico case at Footnote 13. That same approach has been in the Nebraska-Wyoming case.

Idaho's claim here is "a state of origin" it has. In water right, that does not give a preferred position.

Second, in water, the state of origin is in fact where the total volume as it exits the state has in fact been formed. The amount of water as it flows across the border is a certain quantity of water, and then it exits the state. In this situation, Idaho is the place of birth, and those fish which are born there leave Idaho when they weigh between one-tenth of a pound and one-fortieth of a pound when they leave Idaho.

When they return, and Idaho is here asserting basically a claim and a preferred position for harvest, those fish average about 15 pounds, which is a factor of 150 to 600 times the weight of when these fish left, and that growth and that weight gain all occurs outside the state of Idaho.

QUESTION: But certainly not all of it in the state of Washington.

(General laughter.)

MR. MACKIE: No, Your Honor, it does not. It occurs in river, it occurs on the coastal waters, in Alaska, in the ocean.

QUESTION: What is your point? I am trying to get the point.

MR. MACKIE: My point is that they are asserting a preferred right by virtue of this fish which weighs basically a tenth of a pound leaving it to a preferred position for any of the adult fish that return, they should have the first priority for harvest.

QUESTION: But isn't it true that the fish that originate in Washington and Oregon are also very small when they originate?

MR. MACKIE: Certainly.

QUESTION: So that the percentages aren't affected by the size at the time of birth, are they? Percentage in the run at any given time is --

MR. MACKIE: No, the percentage in terms of the run is not affected, but the question is is what the interest is of the originating state.

QUESTION: Well, it is really more than an originating state, because it is also the state to which the fish would normally return if there were no dams and no fishing.

MR. MACKIE: Your Honor, the position by Idaho is that if a run by virtue of what happens to the other components is -- 100 percent of the run originates from Idaho, then they are entitled to 100 percent of the harvest, with no harvest permitted by the downstream states. That is the Idaho formula. And on one of their documents in their brief, they identify one of the steelhead year runs as being 98 percent of Idaho origin. Under their formula, therefore, they are entitled to 98 percent of that run. Washington is 2 percent.

QUESTION: Ninety-eight percent of what?

MR. MACKIE: Ninety-eight percent of the 98 percent. What Idaho does -- excuse me. On upstream -- we are referring here to upstream stocks. Those are fish which go above Bonneville Dam, which is the first of the eight dams on the Columbia and the main portion of the Snake. Those fish as they cross that dam are destined for a multitude of different locations, some of those in various tributaries, main stem Columbia, and also the Snake River.

Idaho takes the posture that those fish which come from the Snake River, the boundary line with Washington and Idaho, are, by their definition, "Idaho origin stocks." They take that percentage and they say, okay, if the entire run is 100 fish, and if 60 come from that Idaho component, they are entitled to --

QUESTION: Yes, but that is just addressing the fish that get above the dam.

MR. MACKIE: Idaho's --

QUESTION: The question is how many fish get above the dam.

MR. MACKIE: Yes, but Idaho's posture is that you put the restrictions upon the fisheries below the first dam.

QUESTION: Exactly, in order to let more fish up, but they are not saying you aren't entitled to take any Idaho fish below the dam.

MR. MACKIE: Idaho is saying that --

QUESTION: Are they?

MR. MACKIE: Yes, they are, Your Honor.

QUESTION: I don't understand that.

MR. MACKIE: No. Excuse me. What they are saying, Your Honor, is that if the run -- if the run --

QUESTION: If some Idaho fish get above the dam, they get 98 percent of 98 percent.

MR. MACKIE: They get 98 percent of 98 percent, which means --

QUESTION: Of the fish that get above the dam.

MR. MACKIE: No, Your Honor. They say in terms -- 98 percent of "the harvestable fish." They are not talking about above the dam. And they are further -- therefore, under their theory of 98 percent, Washington would be, and Oregon, entitled to take two fish from that run out of the 100.

QUESTION: You mean anywhere, below the dam or above the dam?

MR. MACKIE: That's right, and further, if Washington took those two fish below the dam and the 100 was computed at the dam, we would not be able to take two because we would have to take one to factor in for the loss that goes on to Idaho. That is their position.

QUESTION: Well, Mr. Mackie, assume for a moment that a state like Idaho is able to prove a need. Then what formula do you think is appropriate to ensure that Idaho gets an equitable share?

MR. MACKIE: Your Honor, I don't believe that this case lends itself to any formula, because --

QUESTION: I know you don't, but I am asking, you know, if the Court were faced with a situation where they had to devise something, what do you think is fair?

MR. MACKIE: What I am saying -- excuse me, Your Honor -- is that I cannot in terms give you a formula because the number of fish is a factor of what is the division of the runs. What portion in turns would be going to Idaho contrasted with the other areas. The smaller the Idaho total of the whole -- For example, in their brief, their reply brief, they have identified what they designate to be the percentage interest that occurs of Idaho in a given year, and those are not 50 percent, they range over the map.

For example, with reference to summer chinook, in the most recent year, 14 percent of the total run is of Idaho origin. The year before, 10 percent; 33 percent before that. The smaller the Idaho portion of a harvestable total of mixed stocks, one has to therefore, if you preserve a catch for Idaho, avoid catching a substantial portion of the non-Idaho stocks, because those stocks are intermixed in the lower river, and therefore if you are harvesting those fish which are spring chinooks that are destined for places other than Idaho, if Idaho has a set formula amount, you then have to refrain from harvesting fish you otherwise would harvest. Now, conversely --

QUESTION: Now, in a low year, is it to everybody's interest to let a large escapement go across so that there will be more fish in the future?

MR. MACKIE: The parties in this suit stipulated in the pretrial order in Number 16 that all three states are interested in protecting and enhancing the upriver spring chinook, summer chinook, summer steelhead runs originating in the Snake River and its tributaries, and the downstream states consistently try to manage those runs so that the returns are being made to perpetuate that species --

QUESTION: Should there be then a minimum escapement requirement so that the fish are perpetuated?

MR. MACKIE: For the minimum escapement requirement, it is interesting that counsel made reference to the Northwest Power Council as being the savior coming upon the horizon for these fish runs. What that council recommended or stated in a document which was lodged by Idaho with this Court on Friday was that, "The Council has examined these positions" -- this is the positions of the various fish agencies and utilities as to what goals should be for fish escapement -- "carefully, and does not believe that the information now available is adequate to support a final decision on goals, and they therefore have prescribed that all of those entities are required to report their proposals by April 15, 1984."

That is found in Section 201, Pages 2.1 and 2.2.

QUESTION: Report them where?

MR. MACKIE: Excuse me?

QUESTION: Report them where?

MR. MACKIE: To the Pacific Northwest Power Council, which was created by the 1980 Pacific Northwest Power and Conservation Act.

QUESTION: Is Sohappy being reopened?

MR. MACKIE: Sohappy's status, Your Honor, is that two of the four tribes indicated that they no longer wished to proceed with the five-year agreement, and that notification was given a little over a year ago. The District Court is nevertheless continuing to provide for the management of the fishery based on the five-year agreement. They did it last year, and the Court is continuing to do it this year.

QUESTION: So it still has jurisdiction, and it is going to manage it on that basis, but I suppose it will be -- there will be further litigation then.

MR. MACKIE: If the parties are unable to reach a replacement agreement, then it would appear that further litigation is the only alternative.

QUESTION: In which case there would be a decree, and it would set a minimum escapement.

MR. MACKIE: The decree might or might not, Your Honor, set a minimum escapement.

QUESTION: The agreement did, though, didn't it?

MR. MACKIE: Yes. With the agreement, the traditional areas of dispute on an Indian fishery have been how many fish are necessary for conservation and what should be the division of the harvest. So the agreement addressed both points.

QUESTION: Yes.

MR. MACKIE: When the courts have entered decrees with reference to quantifying the Indian fishing share, they have done so with reference to the harvestable portion, but have not made part of their decree what is required for the purposes of escapement, leaving that to the ongoing management of the respective parties. So, what the Court might do if litigation is required there is up in air.

Further, that five-year agreement, counsel refers to the 40-60 sharing of upriver spring chinook.

QUESTION: Is Idaho a party to the Sohappy?

MR. MACKIE: No, they are not, Your Honor.

QUESTION: But Washington and Oregon are? Or just their fishing authorities?

MR. MACKIE: Oregon was the original party in Sohappy in 1969.

QUESTION: As a state.

MR. MACKIE: As a state. In 1974, the Court indicated an intention to change its decree because the '69 degree in Sohappy was a fair share. In 1974, in light of the changing in the impact, Washington moved to intervene and was made a party. So Washington and Oregon were a party in '74.

The District Court then changed its decree from fair share to 50 percent. That was appealed to the Ninth Circuit, which in 1976 said that you have not considered the appropriate factual matters in changing your decree. We hereby set aside your setting 50 percent and remand back for further proceedings to determine the appropriate share.

QUESTION: And then there was an agreement.

MR. MACKIE: Then there was an agreement executed in 1977 which provided for a five-year period.

QUESTION: Has Idaho ever tried to intervene in that suit?

MR. MACKIE: No, Your Honor, they have not.

QUESTION: Let me go back to my question and see if it will clarify some of these things for me. Your friend in his argument was emphasizing several times the origin of these fish, that is, they were hatched, born in the state of Idaho, and then left, and when they left they were about the size of a large sardine, but when they come back they are 15, 16, 17 pounds. You both agreed on that.

Now, I take it that his complaint about the Master's findings is that the Master has not given sufficient consideration to the place of origin of these fish. Idaho is asserting a special right in the fish which originate there. Now, you challenge that, I take it? Or what is your view about the place of origin? How important is that?

MR. MACKIE: I believe that the place of origin is simply one of a large number of factors that go into the consideration of making an allocation if an allocation is to be made. Just as it is in terms of water allocations between states, the point of origin is not the determinative factor. You look to the historical uses, whether there is wastage, the whole combination, for trying to harmonize for an allocation.

Idaho only wants to look at one element, which is the element of the point of origin. We contend that you have to look at the totality in terms of the historical patterns, the industry, what the impact, the economic, and so forth.

What the Master in terms looked at here is taking Idaho's posture as to the harvest historically, from 1962 to 1980, where counsel makes reference to the division that occurred. Now, their own document, when looked at in their brief at Pages 27 through 30, reveals that from 1962 to 1980, Idaho harvested of these three species 373,000 fish.

During that same period, when you take the Washington and Oregon harvest and then factor it downward to reflect -- in other words, if Washington harvested and Oregon two fish in the lower river, that would not reflect on two fish even being made available to Idaho. So the fish which in theory would have reached Idaho had there not been a harvest was 558,362, which means during that period Idaho received 40 percent of the harvest of these stocks, and the two downstream states combined 60 percent.

In the most recent seven-year period, 1977 through 1980, which reflects the installation not only of the dams but the increase in the number of turbines on the Snake River from three to 24, reflects in terms the impact totally barring access to elements of the Snake River with the Brownley, Oxlow, and Hell's Canyon Dam, the 1971 impact of the Dorsvach Dam on the Meka tributary of the Clearwater for production in Idaho, with all of those, during that period --

QUESTION: Do all of those dams have ladders?

MR. MACKIE: No, Hell's Canyon is a complete blockage, and therefore that series completely blocked that entire area of the Snake River to any further fish production. On -- The others do have ladders, but the problem of passage, Your Honor, is both upstream and downstream.

Now, during this most recent seven-year period, Idaho harvested of these three species 56,500 fish. Washington and Oregon, when you take the catch which was 27,000 and factor it downward for the mortality, reflects 15,953 fish that had been caught zero would have been available in Idaho for harvest.

That is a sharing of the harvest of 78 percent for Idaho and 22 percent for Washington and Oregon.

QUESTION: Mr. Mackie, can I interrupt with a question about the figures? They vary dramatically from year to year in all sorts of ways, and I notice one of the most complete schedules in the papers is the one at Pages 4, 5, and 6 of your adversary's reply brief. They are not -- of course, all those are not findings by the Master.

To what extent do you think it is proper for us to rely on those figures? Do you challenge them at all?

MR. MACKIE: Your Honor, for the purposes of this case at this point we are not challenging those numbers. What those numbers show is, when one looks in hindsight on a lag basis, there is an amazing counting system that takes place in this watershed, and when you look back in time, you can do all kinds of marvelous things by using your calculator and your computer.

QUESTION: Well, yes, but for example, do you accept the basic Idaho percentages that they set forth in those tables? You had the 98 percent as one example. That was kind of an unusual year.

MR. MACKIE: Yes.

QUESTION: The other percentages are consistent with your understanding of the record.

MR. MACKIE: On the basis of what is in the record, I believe these are fairly accurate, Your Honor, but what I am emphasizing is that these numbers make one look and say, it is very easy to compute.

QUESTION: I understand.

MR. MACKIE: What the Master was indicating is that what these very numbers indicate is what when you are trying to manage a run during a given year, they are radically different one year from another on a wide variety of actions that you can't tell here.

Now, it is also in terms of Idaho's figures we should point out that on Page 29 of Idaho's brief they report the downstream catch as total for the period 1962 to 1980 as being 870,484. That is clearly a typographical error, because the total is 370,000, a slight change of a half a million off of that figure.

QUESTION: What page is that?

MR. MACKIE: That is on Page 29 of the Idaho brief, under the total that they have for a column. It is off by half a million.

CHIEF JUSTICE BURGER: Counsel, for your timing rely on the supplementary signal there. This one seems to be out of order. MR. MACKIE: Thank you, Your Honor.

In an original action, the standard for relief is that the Plaintiff seeking relief must have an injury of serious magnitude and must clearly and fully prove it. They must prove it and establish it by clear and convincing evidence. This is the standard which has been enunciated by Justice Holmes in the Missouri versus Illinois decision, in New York versus New Jersey, more recently in Colorado versus New Mexico.

This Court in the last proceedings at 444 U.S. 380 identified it as adversely and unfairly affecting Idaho. The Master, who has heard and examined all of the testimony, all of the exhibits, which are numerous, all of the briefing and arguments, has found that Idaho has failed to sustain that burden, that Idaho not only failed, but the Master found that Oregon and Washington have in fact acted in good faith in their management of this fishery.

We submit therefore that the Master's report should be accepted.

QUESTION: Are a lot of the hatcheries above Hell's Canyon?

MR. MACKIE: No, Your Honor.

QUESTION: Hell's Canyon blocks either way?

MR. MACKIE: Hell's Canyon is a complete blockage, and --

QUESTION: Either way.

MR. MACKIE: -- fish cannot traverse in either direction.

QUESTION: Is there any way to cure that or not?

MR. MACKIE: No, the height of those dams and the way that they are designed for Oxbow, Brownley, and Hell's Canyon, those are permanent blockages to that entire basin for fish production.

QUESTION: So it is really the -- the fishery, the spawning grounds then is really for the rivers originating in Idaho below Hell's Canyon.

MR. MACKIE: And also in terms for tributaries which go into Oregon, which Idaho is claiming -- because the hatchery is put into Idaho.

QUESTION: Yes.

QUESTION: Do tributaries go into Oregon or come from Oregon?

MR. MACKIE: Excuse me. The tributaries flow from Oregon into the Snake River.

CHIEF JUSTICE BURGER: Mr. Attorney General, you have a few minutes remaining.

ORAL ARGUMENT OF JIM JONES, ESQ., ON BEHALF OF THE PLAINTIFFS - REBUTTAL

MR. JONES: Thank you, Mr. Chief Justice.

QUESTION: You were going to respond with some figures for us.

MR. JONES: Yes. Now, we have done a calculation, and I believe this is in the supplemental brief that was filed with the Court, with the Master, taking the 1977 year as an example --

QUESTION: Supplemental brief filed where?

MR. JONES: With the Master.

QUESTION: Is that here?

MR. JONES: It should be in the record.

QUESTION: In the record.

MR. JONES: It should be in the record.

Now, taking a total upriver run size for spring chinook of 175,000, in that year, the Washington and Oregon origin fish were 53 percent. Idaho origin fish constituted 47 percent, which amounted to 82,000 fish. Those were headed up the river to the Snake River to Idaho. And that is figured using existing methodology that the defendants are well acquainted with. Using the seven-year -- or the five-year plan that was in existence at that time, of Idaho origin fish, the treaty fishery would have received 10,400. Oregon and Washington, considering the contribution of 53 percent, would have received of the harvestable surplus 8,300.

We would have had an escapement over Lower Granite Dam, the uppermost dam on the Snake River, of 37,200. That would have left a spawning escapement of 30,000 fish, and Idaho would have had a harvest based on their 47 percent contribution to the Idaho -- to the entire run, they would have had a harvest of 7,200 fish.

So, what we are doing is taking the fish that Idaho contributes to that run, using existing methodology that the defendants use and that they rely on in determining that we should receive 47 percent of the Idaho origin harvestable surplus, the non-treaty surplus, and that the defendant should receive 53 percent of it. They would take theirs down the river. We would take ours up the river.

QUESTION: That is assuming all the hatchery fish are attributed to Idaho.

MR. JONES: That would include the approximately 30 to 50 percent of the run that is comprised of hatchery fish. I previously mentioned a case that -- I think I miscited it -- the case in which the Court indicated that hatchery fish should be considered the same as natural fish because they are only mitigating for damages caused by the dams was a Court of Appeals case, United States against Washington, 694 Federal 2nd 1374, a Ninth Circuit case, where Washington was making the contention that the Indians shouldn't have any part of the hatchery fish, and the Court stated, the fact is that the state hatchery program was established to mitigate for fish artificially lost by the -- to replace fish artificially lost by dams, and that they should --

QUESTION: But your whole argument depends on the fish being your fish.

MR. JONES: Well, they do come from hatcheries in Idaho.

QUESTION: That makes them your fish.

MR. JONES: Well, it gives us a little bit of a claim, along with the defendants, too.

QUESTION: Oh, a little bit of a claim?

MR. JONES: A little -- a claim to share them.

QUESTION: I thought that was your whole claim.

MR. JONES: We are only asking --

QUESTION: Your whole claim was that because the fish were born in Idaho, henceforth and forevermore they belong to Idaho.

MR. JONES: Well, because Idaho has had to make a lot of sacrifices to make sure that those fish continue, we are not able to have any dams on our wild and scenic rivers so that those fish can continue. We are not able to do any dredge or placer mining. So we have made a lot of sacrifices. We are not able to use the waters of those rivers for harvests.

QUESTION: Who required you to do that?

MR. JONES: A majority of Idahoans apparently supported --

QUESTION: So Idaho did it on their own.

MR. JONES: No. And the federal government did, too. A majority of Idaho people supported --

QUESTION: Wait a minute. Wait a minute. Did the federal government order those dams built?

MR. JONES: That is correct.

QUESTION: I thought you said the people of Idaho did it.

MR. JONES: The people of Idaho supported the Central Wilderness Area Act that said that we couldn't have any dams on those rivers. The Wild and Scenic Rivers Act, which Congress passed here, which said we couldn't have any dams on those rivers, and one of the reasons for that is to make sure that these runs of fish continue. So we've had our sacrifices, and we ought to be able to share in the bounty. That is all we are asking for.

QUESTION: May I just ask one other question about the figures you gave us? Were those for the -- Am I correct, they were for spring chinook for the 1976 year?

MR. JONES: Seventy-seven, Your Honor.

QUESTION: They don't jibe with the record if they are '77. Well, that's all right.

MR. JONES: The figures around it, I think that we have set those out in that supplemental brief. There were some corrections that were made, but I believe that they were correct numbers, and that they were just rounded.

QUESTION: For '77, though?

MR. JONES: For '77.

CHIEF JUSTICE BURGER: Thank you, gentlemen. The case is submitted.

(Whereupon, at 11:09 o'clock a.m., the case in the above entitled matter was submitted.)