Lead Opinion
delivered the opinion of the Court.
In this action invoking the Court’s original jurisdiction, the State of Idaho seeks an equitable apportionment against the States of Oregon and Washington of the anadromous fish that migrate between the Pacific Ocean and spawning grounds in Idaho. The Special Master has filed his final report on the merits and recommends that the action be dismissed without prejudice. We have before us Idaho’s exceptions to that report.
I
Although somewhat repetitive of the Court’s prior writings in this litigation,
A
Among the various species of fish that thrive in the Columbia-Snake River system, anadromous fish — in this case, chi-nook salmon and steelhead trout — lead remarkable and not completely understood lives. These fish begin life in the upstream gravel bars of the Columbia and Snake and their respective tributaries. Shortly after hatching, the fish emerge from the bars as fry and begin to forage around their hatch areas for food. They grow into fingerlings and then into smolt; the latter generally are at least six inches long and weigh no more than a tenth of a pound. The period the young fish spend in the hatching areas varies with the species and can last from six months to well over a year.
At the end of this period, the smolts swim down river toward the Pacific.
Once in the ocean, the smolts grow into adults, averaging between 12 and 17 pounds. They spend several years traveling on precise, and possibly genetically predetermined, routes. See A. Netboy, supra, at 46-49. At the end of their ocean ventures, the mature fish ascend the river. They travel in groups called runs, distinguishable both by species and by the time of year. All the fish return to their original hatching area, where they spawn and then die. At issue in this case are the runs of spring chinook between February and May, the runs of summer chinook in June and July, and the runs of summer steelhead trout in August and September.
B
Since 1938, the already arduous voyages of these fish have been complicated by the construction of eight dams on the Columbia and Snake Rivers.
Pursuant to treaties ratified in 1859, several Indian Tribes have “the right of taking fish at all usual and accustomed places.” Sohappy v. Smith,
Although the parties disagree as to the causes, runs of all the relevant species since 1973 have been significantly lower. See Report of Special Master 46-51 (tables). Since that year, Oregon and Washington have not permitted commercial harvests of summer chinook; in both States, steelhead trout are now designated game fish and may not be harvested commercially. Harvests of spring chinook have been permitted only in 1974 and 1977. In the years since 1973, there has been some sport fishing of all three runs.
C
In 1976, the Court granted Idaho leave to file its complaint requesting an equitable apportionment of anadromous fish in the Columbia-Snake River system.
B
>
As an initial matter, the Special Master correctly concluded that the doctrine of equitable apportionment is applicable to this dispute. Although that doctrine has its roots in water rights litigation, see Kansas v. Colorado,
At the root of the doctrine is the same principle that animates many of the Court’s Commerce Clause cases: a State may not preserve solely for its own inhabitants natural resources located within its borders. See Philadelphia v. New Jersey,
B
Because apportionment is based on broad and flexible equitable concerns rather than on precise legal entitlements, see Colorado v. New Mexico,
To the extent that the Special Master found that the formulation of a workable decree is impossible, we must disagree. See Washington v. Fishing Vessel Assn.,
C
The Special Master also found, however, that Idaho has not demonstrated sufficient injury to justify an equitable decree. A State seeking equitable apportionment under our original jurisdiction must prove by clear and convincing evidence some real and substantial injury or damage. Colorado v. New Mexico,
We approve this approach. The Special Master found that, due to the operation of the dams, the fish runs have been depressed since 1970. Id., at 26, 34. It is highly unlikely that the dams will be removed or the number of deadly turbines reduced; all parties must live with these conditions in the determinable future.
Moreover, Idaho has not proved that Oregon and Washington have mismanaged the resource and will continue to mismanage. The two States in 1974 did permit some over
HH l-H
For the foregoing reasons, we adopt the Special Master’s recommendation and dismiss the action without prejudice to the right of Idaho to bring new proceedings whenever it shall appear that it is being deprived of its equitable share of anad-romous fish.
It is so ordered.
Notes
The smolts, apparently, prefer not to swim. They face upstream, open their mouths, and permit the current to carry them downstream. Should they come upon a quiet spot, they turn around and swim. A. Netboy, The Columbia River Salmon and Steelhead Trout 44 (1980).
Three dams in Idaho — the Brownlee (constructed in 1968), the Oxbow (1961), and the Hells Canyon (1967) Dams — have closed off the upper Snake River entirely to this piscean traffic. This renders unusable much good spawning area.
Most dams are also equipped with screens that divert the smolts away from the turbines and into the spillways. Since 1969, however, the number of turbines operating on the dams has increased from 8 to 24, causing more water to be directed through turbines and reducing the water flow down the spillways. This has increased smolt mortality dramatically. There is an experimental plan to place smolts in tanks and “bus” them around all the dams for release below the Bonneville Dam. See Tr. of Oral Arg. 15; Idaho’s Exceptions to Master’s Final Report on Merits 102-103 (Idaho’s Exceptions).
At each fish ladder, the Army Corps of Engineers has constructed observation windows from which it counts and records the number of ascending fish and notes their variety. This count must be adjusted for the phenomenon of “fall back”: often adult fish that have been counted are swept back over the dam or down the ladder by strong currents. In addition to the effect this phenomenon has on the complexity of the count, the fall over the dam causes nitrogen supersaturation, making the fish slightly giddy and disoriented, and serving to increase adult mortality.
Apparently, the John Day Dam, constructed in 1968, is “the big killer” of ascending adults. See Tr. of Oral Arg. 16. To mitigate the effects of the high mortality rate caused by all the dams, hatchery programs hatch and nurture millions of smolts and release them into the Snake River. The Idaho Power Company finances several Idaho hatcheries, pursuant to a condition imposed by the Federal Energy Regulatory Commission in
The Sohappy District Court in 1974 held that the Indians were entitled to 50% of the fish destined to pass over the Bonneville. See Sohappy v. Smith,
Washington filed no exceptions of its own, but has responded to those of Idaho. Oregon did not participate in our review of the Special Master’s report.
The Court in Kansas v. Colorado said:
“[W]henever... the action of one State reaches through the agency of natural laws into the territory of another State, the question of the extent and the limitations of the rights of the two States becomes a matter of justi-ciable dispute between them, and this court is called upon to settle that dispute in such a way as will recognize the equal rights of both and at the same time establish justice between them.”206 U. S., at 97-98 .
Oregon and Washington authorities employ a similar formula in estimating the size of runs and in setting Bonneville Dam escapement goals pursuant to the Indian treaty rights settlement agreement. In addition to the apportionment formula, Idaho’s plan would require Oregon and Washington (1) to continue the same primary management techniques they have been using; (2) to estimate the size of future runs and dam mortality rates; (3) to meet the escapement requirements they have set for the last five years; (4) to determine the number of fish in each run that originated in Idaho; (5) to determine the harvestable surplus of Idaho-origin fish; (6) to allot to Idaho a share of that surplus (after subtracting Indian fisheries) equal to the percentage that Idaho-origin fish are of the total Columbia River run; and (7) to make up any shortfall in Idaho’s allocated harvest out of the next year’s harvest.
The latter prediction is possible because most fish that surmount the Ice Harbor Dam are headed for spawning grounds in Idaho. We express no view on the appropriateness of Idaho’s proposed formula. We note that it apportions fish solely on the basis of their origin. Flexibility is the linchpin in equitable apportionment cases, and, in our prior decisions, we have based apportionment on the consideration of many factors to ensure a fair and equitable allocation. See Colorado v. New Mexico,
Idaho accepts, as it must, see
Idaho claims that from 1962 through 1980, when spring chinook that originated in Idaho constituted 50% of the total runs, Oregon and Washington took 83% of the Idaho spring chinook. According to Idaho, they also harvested 75% of the Idaho-origin summer chinook, which during the period constituted 40% of all summer chinook runs. As to steelhead trout, Idaho asserts that Oregon and Washington took 58% of the harvest of Idaho-origin fish, which was 48% of the total steelhead runs. Id., at 49-50.
Of course, these figures presume, as does Idaho’s entire argument, that Idaho is entitled to those fish that originate in its waters. After Hughes v. Oklahoma,
The Special Master found that the last incident of mismanagement occurred in 1974 when, despite the recommendation of experts, Oregon and Washington permitted a limited harvest. They overestimated the Bonneville count by failing to consider the fall back phenomenon, and underestimated the Indian fishery for the year. The overfishing reduced the number of fish returning to spawn. Report of Special Master 32.
Moreover, despite Idaho’s claim that Oregon and Washington managed only for minimum escapements over the Bonneville, the Special Master found that Idaho had never requested those States to increase the escapement goal. Id., at 31. In fact, Idaho seems quite content with the current escapement goals; its plan requires that Oregon and Washington “manage to meet the same spawning escapements they have been managing for over the last five years.” Idaho’s Exceptions 82.
Dissenting Opinion
dissenting.
The Special Master reasoned that Idaho was entitled to a “fair share” of the anadromous fish that are the subject of this dispute. Without quantifying that share, however, he rejected the claim that Washington and Oregon had mismanaged the fishery, Report of Special Master 30-34, concluding instead that they had acted in good faith, id., at 35, and that the relief requested by Idaho was unworkable, ibid.
The Court today overrules the exceptions to the report of the Special Master. I see substantial merit to several of the points raised by Idaho and am persuaded that they require a remand to the Special Master for further proceedings. Accordingly, I dissent.
I
The Master properly concluded that “Idaho is entitled to its fair share of the fish.” Id., at 25. No one owns an individual fish until he reduces that fish to possession, Pierson v. Post,
“[WJhenever. .. the action of one State reaches through the agency of natural laws into the territory of another State, the question of the extent and the limitations of the rights of the two States becomes a matter of justi-ciable dispute between them, and this court is called upon to settle that dispute in such a way as will recognize the equal rights of both and at the same time establish justice between them.” Kansas v. Colorado,206 U. S. 46 , 97-98 (1907).1
HH 1 — I
In spite of his recognition that Idaho was entitled to a fair share of the runs of anadromous fish, the Master found that there was no injury to Idaho. I am at a loss to understand how he reached that conclusion without specifying the nature and extent of Idaho’s entitlement.
A
The first problem with the Master’s approach requires little elaboration. Even if there is absolutely no harvestable surplus for a year or for several years, Idaho has a right to seek to maintain and eventually increase the runs by requiring the defendants to refrain from practices that prevent fish from returning to their spawning grounds in numbers sufficient to perpetuate the species in this river system. Cf. Colorado v. New Mexico,
Further, the need for relief in such a situation is compelling. Techniques are available that may aid significantly in maintaining or increasing the runs.
B
In my view, the Master erred also in excluding the evidence of the past practices of the defendants, of the past conditions on the river system, and of the probable conditions in the future. Consideration of Idaho’s interest in maintaining the runs has already illustrated one way in which evidence of the past conditions and practices and of probable future conditions was indeed relevant in this action. Moreover, the Master’s limitations place Idaho in an untenable position. Although harvests were minimal from 1975 to 1980, conditions were different when Idaho sought leave to file its complaint in this action on March 31, 1975. In 1974, Washington and Oregon had harvested some 22,400 spring chinook and 9,500 summer steelhead. Report of Special Master 18-19.
HH HH HH
The proper approach in this case, in my view, would require the Master to determine whether Idaho has a protectible interest in the preservation of the runs and what Idaho’s proper share is, expressed as a proportion of the harvestable surplus. In making that determination, the Master should have a broad range of flexibility, drawing guidance from our previous cases reconciling conflicting claims of States to natural resources by equitable apportionment. The classic statement of the considerations governing equitable apportionment of interstate streams emphasizes
“Apportionment calls for the exercise of an informed judgment on a consideration of many factors. Priority of appropriation is the guiding principle. But physical and climatic conditions, the consumptive use of water in the several sections of the river, the character and rate of return flows, the extent of established uses, the availability of storage water, the practical effect of wasteful uses on downstream areas, the damage to upstream areas as compared to the benefits to downstream areas if a limitation is imposed on the former — these are all relevant factors. They are merely an illustrative, not an exhaustive catalogue. They indicate the nature of the problem of apportionment and the delicate adjustment of interests which must be made.” Nebraska v. Wyoming,325 U. S. 589 , 618 (1945).
See Colorado v. New Mexico,
Only after making this initial determination can we decide whether Idaho has been wrongfully deprived of fish. If the depletion of the runs is attributable to mismanagement by Oregon and Washington, we should grant relief. The Master suggested that relief is unworkable because of the difficulties of estimating the runs and apportioning them. The task is indeed a complicated one, as we recognized when we stated in Puyallup: “Only an expert could fairly estimate what degree of net fishing plus fishing by hook and line would allow the escapement of fish necessary for perpetuation of the species.”
H-1 <1
Since the Master failed to quantify Idaho s right m the anadromous fish, he was unable to determine whether Idaho suffered any injury entitling it to a remedy. I would remand to allow the Master to apply our precedents on equitable apportionment to determine the extent of Idaho’s rights, and, if appropriate, to devise a remedy protecting those rights.
This controversy, like disputes over the waters of interstate streams, is one particularly appropriate for resolution by this Court in the exercise of its original jurisdiction. The original jurisdiction was “conferred by the Constitution as a substitute for the diplomatic settlement of controversies between sovereigns and a possible resort to force,” North Dakota v. Minnesota,
The failure to specify Idaho’s rights also seems to me to represent a poor use of judicial resources, inviting future litigation, rather than settling questions properly presented now. Cf. Comment, Sohappy v. Smith: Eight Years of Litigation over Indian Fishing Rights, 56 Ore. L. Rev. 680, 693 (1977) (although court’s initial order declared that the Indians had a right to a “fair share” of fish, “[u]nfortunately, the court did not provide any guidelines for determining what a ‘fair share’ is, and consequently, the parties have been back in court to argue about the application of Sohappy”).
The Master did permit Idaho to create a record, at least of evidence of past conditions and practices, see Exceptions of Idaho 101, but he refused to consider that evidence, effectively excluding it. See Report of Special Master 25-26, 27.
In support of this decision, the Master cited Nebraska v. Wyoming,
“Harvestable surplus” refers to the number of fish in the run that remain after the escapement ordered for the preservation of the runs and after the Indian Tribes have exercised their treaty rights.
For instance, hatcheries supplement the natural reproduction of the fish. See Report of Special Master 9. Also, fish may be transported around dams to reduce mortality in passage, Exceptions of Idaho 102-103; see ante, at 1021, n. 3. Finally, the States can continue investment and efforts to maintain proper conditions for spawning, Report of Special Master 8.
In this regard, I think that the Master properly rejected Idaho’s proposed quantification of its right, relying solely on its role as the State of origin. As Idaho explains its position: “[Idaho’s] share of the harvestable surplus of Idaho origin fish should equal Idaho’s percentage contribution to the entire run.” Exceptions of Idaho 47. This proposal would require the Master to base the apportionment on one factor alone. The most glaring problem with this formulation is that it takes no account of the relative benefits and burdens to each State of dividing the resource. To allow one fish to reach Idaho, Oregon and Washington must allow some significantly larger number, the exact value of which is the subject of some dispute, see Response of Washington 14-15, 43-45; Reply Brief for Idaho 7-9, to pass by the downstream fisheries. These other fish will be lost in passage, and no one will benefit. Considerations of relative benefits and burdens imposed by a given division are at the core of equitable apportionment. See, e. g., Colorado v. New Mexico,
The Master’s report suggests that the source of revenue used for investment by the State — fishing license fees as opposed to general taxes — is somehow relevant. See Report of Special Master 30. Although the proper range of considerations is quite broad, I fail to see the relevance of that consideration.
The Master’s dismissal of Idaho’s calculations reflects an undue skepticism where statistics are concerned. The linear least squares regression method that the Master concluded was “of little value in making predictions,” id,., at 41, for instance, can indeed have predictive value, if used properly. See, e. g., W. Hays, Statistics § 10.4 (3d ed. 1981). Courts can rely on the same sort of calculations that agencies charged by the States with management of fisheries perform.
The Five-Year Plan of the parties to the Sohappy litigation expired in 1982, see Report of Special Master 11. The Plan had required the defendants to take certain actions that tended to preserve the runs. Id., at 35. Although the Plan was never adequate to protect Idaho, since it was not a party to the Plan, id., at 10, the expiration makes the need for relief, if there has been an injury, even more urgent.