New Scholarship on Sohappy v. Smith/United States v. Oregon

Michael C. Blumm and Cari Baermann have posted “The Belloni Decision and Its Legacy: United States v. Oregon and Its Far-Reaching Effects After a Half-Century” on SSRN. It is forthcoming in Environmental Law.

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.

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