18 Ocean L. Memo 1 (1980)

handle is hein.journals/ocoaslme18 and id is 1 raw text is: 




Ocean and Coastal Law  Center * School of Law * University of  Oregon - EugenaJL97404980


Ocean Law Memo


Issue 18                                                                June 1, 1980


Treaty  Fishing Rights and the Salmon Resource
                      or
Why All Fishermen Should Support Treaty Rights


   In 1970, when United States v. Washing-
ton was filed with Federal District Judge
George Boldt, two arguments were presented
on behalf of fourteen Indian tribes. First,
the government argued that Indian fisher-
men  were entitled to share equally in the
salmon runs which traditionally migrated
past the Indians' upriver fishing places.
Second, the government argued that Indian
treaty rights protected the runs from de-
pletion caused by activities such as dam
construction, stream dredging, and logging.
Judge Boldt, anticipating the complexities
of both contentions, wisely decided to
split the case into two parts.  Phase I
would address the equal share argument
and Phase II would address the environ-
mental issue.  Although the dust may not
yet have settled on Phase I, the funda-
mental legal battle is over.  In 1974,
Judge Boldt announced that the Indians
were entitled to their fair share of the
fish.  His decision was affirmed by the
Ninth Circuit Court of Appeals in 1976 and
the fair share doctrine was upheld by the
United States Supreme Court in 1979.  In
the meantime, a timetable for Phase II,
the environmental issue, was set in
motion and the case is currently before
the federal district court in western
Washington.  The battle over the environ-
mental aspects of Indian fishing rights
is just beginning.

THE PROBLEM

   The vulnerability of salmon to environ-
mental changes is well demonstrated in
western Washington, the case area of United
States v. Washington.  The United States
Fish and Wildlife Service and the Washing-
ton Department of Fisheries have concluded
that the urban, residential, industrial,
and agricultural development of western
Washington have adversely affected all of
the salmon's environmental needs.  The
effect of environmental degradation is
reflected in an 80 per cent decline in
salmon landings in the Puget Sound region


between 1913 and 1967  (from over 15 mil-
lion fish to less than 3 million).  Al-
though overfishing has played a significant
role in this decline, environmental de-
gradation has been at least equally sig-
nificant.  The Washington Department of
Fisheries concludes that the main cause
of salmon depletion can be traced directly
to the environmental changes that have
taken place since the advent of civiliza-
tion in the Pacific Northwest.

     Salmon have five basic environmental
requirements:  (1) free access to and from
the sea;  (2) an adequate supply of clean
water;   (3) a sufficient amount of spawning
gravel;  (4) an ample supply of food; and
(5) sufficient shelter.  Alteration of
any one of these requirements will affect
the production potential of the species.
Consequently, a salmon's life cycle makes
it vulnerable to a wide range of environ-
mental change.

     The pattern of economic development
in western Washington has had severe im-
pacts on each of the salmon's five environ-
mental requirements.  The salmons' access
to and from the sea has been impeded or
completely blocked by over 141 dams (with-
out adequate fish passages).  Water
quality has been degraded by direct ef-
fluent discharge from agricultural, in-
dustrial, and sewage disposal sources
to the point where it is deleterious to
fish.  Certain logging and irrigation
practices have reduced streamside veaeta-
tion and withdrawn sufficient water such
that summer water temperatures often
become intolerable to salmon.  Suitable
spawning gravel has been adversely af-
fected by both direct gravel removal opera-
tions and by logging practices which in-
crease sedimentation levels in the river.
The general aquatic ecosystem on which
young salmon depend for food has been
degraded by logging, poor road building
practices, and industrial pollution.
Finally, the pool-riffle character of


I~J Oistributed   by: OSU Extension Service' Sea Grant Marine Advisory Program, Corvallis, OR 97331


6!!!!id Distributed by: OSU Extension Service' Sea


June 1, 1980


Grant Marine Advisory Program, Corvallis, OR 97331


Issue 18

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 2,700 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Access to this content requires a subscription. Please visit the following page to request a quote or trial:

Already a HeinOnline Subscriber?