Abstract

Fifty years ago, Judge Robert Belloni handed down an historic treaty fishing rights case in Sohappy v. Smith, later consolidated into United States v. Oregon, which remains among the longest running federal district court cases in history. Judge Belloni ruled that the state violated Columbia River tribes’ treaty rights by failing to ensure “a fair share” to tribal harvesters and called upon the state to give separate consideration to the tribal fishery and make it management priority co-equal with its goals for non-treaty commercial and recreational fisheries. This result was premised on Belloni’s recognition of the inherent biases in state regulation, despite a lack of facial discrimination.

The decision was remarkable because only a year before, in Puyallup Tribe v. Department of Game, the U.S. Supreme Court seemed to accord considerable deference to state regulation of tribal harvests (which it would soon clarify and circumscribe). Instead of deference, the Belloni decision reinstated burdens on state regulation that the Supreme Court had imposed a quarter-century earlier, in Tulee v. Washington, but seemed to ignore in its Puyallup decision. The directive for separate management was prescient because otherwise, tribal harvests would remain overwhelmed by more numerous and politically powerful commercial and recreational fishers.

Judge Belloni eventually grew tired of resolving numerous conflicts over state regulation of the tribal fishery, calling for the establishment of a comprehensive plan, agreed to by both the state and the tribes, to manage Columbia Basin fish harvests. Eventually, such a plan would be negotiated, implemented, and amended over the years. Today, the Columbia River Comprehensive Management plan is still in effect a half-century after the Belloni decision, although the district court’s oversight role is now somewhat precariously perched due to statements by Belloni’s latest successor. Nonetheless, the plan remains the longest standing example of tribal-state co-management in history and a model for other co-management efforts. This article examines the origins, effects, and legacy of the Belloni decision over the last half-century.

Citation: 
Blumm, Michael C. and Baermann, Cari, The Belloni Decision and Its Legacy: United States v. Oregon and Its Far-Reaching Effects After a Half-Century (May 17, 2019). Environmental Law, Vol. 50, No. 1, 2020, Forthcoming.

 
Available at SSRN.

Michael Blumm

Lewis & Clark Law School

Michael Blumm is a professor at Lewis & Clark Law School. He is one of the architects of the Law School’s acclaimed Environmental and Natural Resources Law Program. He has been teaching, writing, and practicing in the environmental and natural resources law field for forty years. He came to the law school after practicing with an environmental group and the U.S. Environmental Protection Agency in Washington, D.C., where he helped draft the EPA’s first wetland protection regulations. Blumm’s chief interests are in the restoration of the Pacific Northwest salmon runs, the preservation of the West’s public lands and waters, the management of natural resources by Indian tribes, the modern use of the public trust doctrine, and governmental authority to regulate private property for public purposes.

Cari Baermann

Lewis & Clark Law School

Cari Baermann is a J. D. Candidate at Lewis & Clark Law School.

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