United States v. Winans

Michael Blumm on the Columbia River Gorge and the History of Natural Resources Law

Matthew L.M. Fletcher

Michael Blumm posted his paper, “The Columbia River Gorge and the Development of American Natural Resources Law: A Century of Significance” at SSRN (H/t to Legal History Blog). Here is the abstract:

The Columbia River Gorge, site of the nation’s first national scenic area and the only near sea level passage through the Cascade Mountains, possesses the longest continuously occupied site of human habitation in North America. The Gorge has served as a major transportation corridor between the Pacific and the Great Basin for hundreds of years, is home to spectacular scenery, dozens of waterfalls, many sacred sites, and abundant recreational activities, including world-class kite boarding and wind surfing. The Gorge has also been the location of over a century of legal battles that have made major contributions to American natural resources law. From judicial interpretations of 19th Indian treaties, to the development of the largest interconnected hydroelectric system in the world, to ensuing declines in what were once the world’s largest salmon runs – ultimately resulting in endangered species listings – to innovative federal statutes concerning electric power planning and conservation and land use federalism, to compensation schemes for landowners burdened with regulation, to dam removal and conflicts between sea lions and salmon, the Gorge has spawned a legal history as rich as its geography. This article surveys these developments and suggests that no area of the country has produced more varied and significant contributions to natural resources law.

Blumm and Steadman on the Judge Martinez Treaty Fishing Decision

Matthew L.M. Fletcher

Michael Blumm and Jane Steadman have posted “Indian Treaty Fishing Rights and Habitat Protection: The Martinez Decision Supplies a Resounding Judicial Reaffirmation” on SSRN. Here is the abstract:

In the mid-nineteenth century, as the pace of American westward expansion accelerated and tension between white settlers and indigenous tribes mounted, the federal government convinced many Pacific Northwest tribes to enter into treaties that would facilitate white settlement. In exchange for cession of millions of acres of their homeland, the tribes retained the right of taking fish at all usual and accustomed places in common with white settlers. In the 1905 case United States v. Winans, the United States Supreme Court explained that the treaty fishing right constitutes a “servitude upon every piece of land.” We have described this servitude as a “piscary profit,” a familiar property right at common law that must be exercised free from unreasonable interference. While the universally shared assumption at the time the treaties were signed was that the salmon resource was inexhaustible, in fact the salmon have been in precipitous decline since the late-1800s. This scarcity bred conflicts, which have forced the tribes to enforce their treaty fishing right in the courts for over a century.

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