Held: Failure to join the United States as a party to
Idaho's action against Oregon and Washington to secure equitable
apportionment of various runs of anadromous fish migrating between
spawning grounds in Idaho and the Pacific Ocean, will not prevent
this Court from entering an adequate judgment. Pp.
444 U. S.
387-393.
(a) None of the federal interests cited by the Special Master as
rendering impossible an adequate judgment in the absence of the
United States as a party -- the Government's control over the ocean
fishery on the runs of the fish at issue, its management of the
various dams that separate the spawning grounds in Idaho from the
Pacific Ocean, and its role as trustee for the various Indian
tribes with treaty rights in the fish at issue -- constitutes a
sufficient reason for dismissing the action for the failure to join
the United States as the Special Master recommends.
Arizona v.
California, 298 U. S. 558, and
Texas v. New Mexico, 352 U.S. 991, distinguished. Pp.
444 U. S.
387-391.
(b) Washington's additional argument in favor of dismissing the
complaint that any allocation of nontreaty fish to Idaho would
abrogate an agreement between the Indian tribes and Oregon and
Washington for managing the fish originating in the Columbia River
System, is without merit, since such agreement only divides the
available fish between treaty and nontreaty fishermen, and does not
purport to allocate the nontreaty share among the various States.
Pp.
444 U. S.
391-392.
(c) Washington's further assertion that, for some time, few if
any fish have been taken from the runs at issue, and that, hence,
any further restrictions on fishing in zones open to commercial
fishermen will have no appreciable effect upon the number of fish
arriving in Idaho, goes to the merits of Idaho's claim, and has
little or nothing to do with the need to join the United States as
a party. P.
444 U. S.
392.
Exceptions to Special Master's report sustained, and case
remanded.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER C.J., and BRENNAN, WHITE, BLACKMUN, POWELL, and STEVENS,
JJ., joined. STEWART and MARSHALL, JJ., filed a dissenting
statement,
post, p.
444 U. S.
393.
Page 444 U. S. 381
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
Invoking this Court's original jurisdiction, the State of Idaho
brought suit against the States of Oregon and Washington to secure
equitable apportionment of various runs of anadromous fish
migrating between spawning grounds in Idaho and the Pacific Ocean.
We granted Idaho leave to file its complaint, but left open the
questions whether that complaint stated a claim upon which relief
may be granted and whether the United States was an indispensable
party to the action.
429 U. S. 163
(1976). We later referred the action to a Special Master. 431 U.S.
952 (1977). On February 2, 1979, the Special Master recommended
that Idaho's action be dismissed for failure to join the United
States, but that the dismissal be without prejudice to Idaho's
right to refile its suit at some later date if it is wholly unable
to obtain a
Page 444 U. S. 382
remedy though negotiation with Oregon and Washington. Idaho has
filed exceptions to that recommendation.
I
The Snake River rises in northwest Wyoming and flows across
southern Idaho, eventually turning northward and forming the
boundary between Idaho and Oregon for approximately 165 miles and
between Idaho and Washington for approximately 30 miles. It then
turns westward and enters Washington, whence it proceeds for
approximately 100 miles to its confluence with the Columbia River.
The Columbia River rises in British Columbia and flows southward
through eastern Washington to its confluence with the Snake River.
Just below that confluence, it turns westward, forming the boundary
between Oregon and Washington until it empties into the Pacific
Ocean 270 miles downstream.
Numerous species of anadromous fish spawn in the gravel bars of
the Columbia/Snake River System. After remaining in their hatch
area for approximately two years, these fish migrate downstream to
the Pacific Ocean, where they spend anywhere from one to four
years. Near the end of their life cycle, the anadromous fish return
to the Columbia River and migrate upstream toward the waters of
their origin to spawn. At issue in the present case are three
particular runs of anadromous fish: spring chinook salmon, summer
chinook salmon, and steelhead trout. To a significant extent, these
three runs originate in, and would return to, spawning grounds
within the State of Idaho.
A number of man-made conditions have combined with natural
obstacles to deplete seriously the number of fish that return to
Idaho successfully. During both their downstream and upstream
migrations, anadromous fish originating in Idaho must cross a
series of eight dams built and maintained by the United States Army
Corps of Engineers. The Bonneville Dam, built in 1938, lies closest
to the mouth of the Columbia River.
Page 444 U. S. 383
Fish crossing the Bonneville Dam on their way to Idaho also
encounter the Dalles Dam, the John Day Dam, the McNary Dam, the Ice
Harbor Dam, the Lower Monumental Dam, the Little Goose Dam, and,
finally, the Lower Granite Dam. During their downstream migration,
of course, the fish cross these dams in the reverse order.
At each of these dams, a portion of the water is released
through turbines used to generate hydroelectric power. Water
passing through these turbines is not conducive to either the
"smolts" migrating downstream or the mature fish migrating
upstream. Each dam is therefore equipped with a spillway, over
which smolts can pass, and a "fish ladder," up which mature fish
can climb. Because water sent over the spillways or fish ladders is
not available to generate power, and because river conditions vary
over time, the Corps of Engineers [
Footnote 1] is often faced with a choice between
generating power and facilitating migration. Even under optimal
conditions, when the Corps can allocate adequate water to the
spillways and the fish ladders, those mechanisms themselves will
cause a significant number of mortalities among migrating fish.
In addition to confronting these hurdles, anadromous fish afford
a catch for both sport and commercial fishermen. The Federal
Government regulates the ocean fishery in a zone stretching seaward
from 3 to 200 miles from the seacoast.
See Fishery
Conservation and Management Act of 1976, 16 U.S.C. ยง 1801
et
seq. Within the 3-mile limit and throughout their in-river
migrations, however, the anadromous fish are the subject of state
regulation.
In 1918, with the consent of Congress, Oregon and Washington
entered into the Oregon-Washington Columbia River Fish Compact, ch.
47, 40 Stat. 515. The Compact attempts to
Page 444 U. S. 384
assure uniformity in the regulation of anadromous fish in the
Columbia River by preventing either State from altering its fishing
regulations without the consent of the other State. Pursuant to
this compact, Oregon and Washington have divided the Columbia River
below the McNary Dam into six zones, with Zones 1 through 5
stretching between the Pacific Ocean and the Bonneville Dam and
Zone 6 stretching between the Bonneville Dam and the McNary Dam.
Idaho has attempted on a number of occasions to become a party to
the Compact, but its efforts thus far have been unsuccessful.
In 1968, a number of Indian tribes who fished along the Columbia
River brought suit against Oregon to protect fishing rights
allegedly granted them under various treaties with the United
States.
See Sohappy v. Smith, 302 F.
Supp. 899 (Ore.1969). The District Court concluded that Oregon
was obligated to structure its regulations so that the Indians
would have
"an opportunity to catch fish at their usual and accustomed
places equal to that of other users to catch fish at locations
preferred by them or by the state."
Id. at 910. The suit remained pending in the District
Court, and, in 1974, Washington moved to intervene as a defendant.
Eventually, the District Court determined that the treaties in
question gave the Indians a right to 50% of the fish taken from the
Columbia River. The United States Court of Appeals for the Ninth
Circuit affirmed this determination.
See Sohappy v. Smith,
529 F.2d 570 (1976).
On February 25, 1977, the parties in the
Sohappy
litigation entered into a 5-year agreement for managing the
fisheries on stocks of anadromous fish originating in the Columbia
River System above the Bonneville Dam. Under the agreement, Zones 1
through 5 are open to all commercial fishermen. Zone 6, which
extends from the Bonneville Dam 130 miles upstream to the McNary
Dam, is restricted for use by Indians fishing pursuant to their
treaty rights. A "technical advisory committee" estimates the
number of fish in various
Page 444 U. S. 385
runs entering the Columbia River "destined to pass [the]
Bonneville Dam." An agreed-upon "escapement" for spawning is
subtracted from this total in-river run size; the remaining fish in
the run are then allocated between treaty and nontreaty fishermen.
Thus, for spring chinook salmon, one of the runs at issue here, the
plan sets an escapement goal of 120,000 fish passing into Zone 6.
[
Footnote 2] Where the run size
exceeds the escapement goal by less than 30,000 fish, no nontreaty
fishermen may take spring chinook salmon at any time before the
fish pass into the Snake River on the other side of Zone 6. Where
the run size exceeds the escapement goal by more than 30,000 fish,
nontreaty fishermen may take 60% of that excess while treaty
fishermen may take 40%. Other runs of fish are regulated similarly,
with a predetermined escapement goal and with the remainder of the
fish being divided between treaty and nontreaty fishermen.
[
Footnote 3]
In the present suit, Idaho alleges that nontreaty fishermen in
Oregon and Washington take a disproportionate share of fish
destined for Idaho, thereby depleting those runs to the detriment
of Idaho fishermen. [
Footnote
4] It seeks equitable apportionment of anadromous fish destined
for Idaho in the Columbia River. Significantly, Idaho does not
contend that the Indians' share of anadromous fish should be
reduced, but rather seeks to share in that portion of the catch now
taken exclusively by nontreaty fishermen in Oregon and
Washington.
Page 444 U. S. 386
The Special Master concluded that Idaho's complaint presents a
justiciable controversy, and indicated that he found some merit in
Idaho's claim that it was entitled to equitable apportionment.
Nevertheless, the Special Master recommended that this suit be
dismissed for failure to join the United States Government, which
has invoked its sovereign immunity and has steadfastly refused to
intervene as a party. [
Footnote
5] In deciding that the United States was an indispensable
party to this litigation, the Special Master looked for guidance to
Rule 19(b) of the Federal Rules of Civil Procedure, which lists
four factors to be considered in deciding whether a suit can
proceed in the absence of an allegedly necessary party. These
factors are (1) the extent to which a judgment rendered in the
party's absence might be prejudicial to that party or those already
parties; (2) the extent to which the court could lessen or avoid
such prejudice by shaping the judgment or relief; (3) the court's
ability to render an adequate judgment in the party's absence; and
(4) the adequacy of remedies available to the plaintiff should the
suit be dismissed.
The Special Master concluded that factors (1), (2), and (4)
weighed in favor of allowing Idaho to prosecute this suit. Because
the United States could not be bound by any judgment rendered in
its absence, and because Idaho was seeking no relief against the
treaty fishermen for whom the United States acts as trustee, no
absent party would be prejudiced by the relief sought by Idaho.
Furthermore, the Special Master felt that this suit offered Idaho
its only practical avenue of relief. Oregon and Washington had
consistently rebuffed Idaho's attempts to join the Columbia River
Fish Compact or to otherwise negotiate some sort of accommodation.
Nor did it appear that Idaho could intervene in the
Sohappy litigation
Page 444 U. S. 387
to assert its interest. Given the pendency of the 5-year
agreement, the
Sohappy court quite probably would reject
Idaho's motion to intervene as untimely. Moreover, any attempt by
Idaho to assert in that litigation an interest adverse to Oregon
and Washington might convert that suit into a dispute among the
States, a dispute over which the District Court would have no
jurisdiction.
Although these factors weighed heavily in favor of allowing
Idaho's suit to proceed, the Special Master held that federal
interests were so intertwined in this suit that this Court could
not possibly render an adequate judgment in the absence of the
United States as a party. In particular, the Special Master cited
the United States Government's control over the ocean fishery, its
management of the various dams along the Columbia and Snake Rivers,
and its role as trustee for the various Indian tribes with fishing
rights in the anadromous fish at issue here. Balancing factor (3)
of Rule 19(b) against the other three factors, the Special Master
concluded that Idaho's complaint should be dismissed. At the
suggestion of the United States, however, the Special Master
recommended that the dismissal be without prejudice to Idaho's
right to reinstitute the suit if it is wholly unable to obtain a
remedy through negotiation with Oregon and Washington. In
suggesting this disposition, the United States implied that it
would intervene in a later action brought by Idaho should Oregon
and Washington remain intractable.
II
Idaho has filed exceptions to the Special Master's report, and
has asked us to reject his conclusion that the United States is a
necessary party to this suit. In deciding this issue, we consider
separately each of the federal interests cited by the Special
Master as rendering impossible an adequate judgment without joinder
of the United States Government.
First, the Special Master noted that the United States controls
the ocean fishery on the runs of anadromous fish at issue
Page 444 U. S. 388
here during that portion of their lifespan when they are outside
the 3-mile limit in the Pacific Ocean. Nevertheless, we do not
understand either the Special Master or the defendants to rely
heavily upon this interest as evidence of the necessity for joining
the United States Government as a party in this litigation. Idaho
seeks apportionment of those fish entering the Columbia River
destined for spawning grounds in Idaho. While regulation of the
ocean fishery may have some effect upon the total number of
anadromous fish returning to the Columbia River, [
Footnote 6] it has little to do with proper
allocation of the rights to take those fish once they have entered
the river.
Second, the Special Master cited the role of the United States
in operating the eight dams that separate the hatching grounds in
Idaho from the Pacific Ocean. He pointed out that, at each dam, the
Corps of Engineers must allocate water among the turbines, fish
ladders, and spillways. Under varying river conditions, this
allocation often requires a choice between the generation of power
and the survival of migrating fish. The Special Master felt that,
without authority to bind the United States to whatever judgment
was entered in this case, he could not ensure that any additional
fish allowed to pass through the first five fishing zones would
ever reach the State of Idaho.
We do not find this consideration a persuasive reason for
dismissing Idaho's suit. We can assume, as suggested by defendants,
that the eight dams along the Columbia and Snake Rivers are the
primary reason why more fish do not successfully migrate back to
Idaho. Nevertheless, Idaho stresses that it has no quarrel with the
operation of the various dams. It argues, quite persuasively we
believe, that greater numbers of fish reaching each dam will, under
all but the most adverse
Page 444 U. S. 389
river conditions, result in greater numbers of fish crossing
each dam. The mortality rate at each dam for any given set of river
conditions can be, and has been, estimated and taken into account
in apportionment formulas. In the case of spring chinook salmon,
for example, the
Sohappy agreement states that,
"[u]nder average river flow conditions, 120,000 fish at
Bonneville Dam will generally provide 30,000 fish at Lower Granite
Dam and 150,000 fish at Bonneville Dam will generally provide
37,500 fish at Lower Granite Dam."
If Oregon and Washington fishermen are taking more than their
fair share of Idaho-bound anadromous fish, this Court could set
aside a portion of those fish for Idaho, taking into account the
estimable mortality rate at each dam.
Third, the Special Master cited the role of the United States
Government as trustee for the various Indian tribes that fish the
runs at issue here. Although, as noted above, the Special Master
found that a judgment rendered in this case would not adversely
affect the interests of those Indians, he felt that this Court
could not render a complete judgment unless it could guarantee that
the Indians would not take the fish allocated to Idaho.
As a mathematical proposition, the relief sought by Idaho need
not involve the Indians at all. Any particular run of anadromous
fish entering the Columbia River destined to pass the Bonneville
Dam must be allocated to one of three categories: nontreaty catch,
treaty catch, and spawning escapement. Under present practices, as
memorialized in the
Sohappy agreement, nontreaty fishermen
conduct their operations almost entirely in Zones 1 through 5. Fish
allocated to Indian fisheries and to escapement are then allowed to
pass the Bonneville Dam and into Zone 6. The treaty fishermen take
their allocation in that zone, and allow the spawning escapement to
continue upriver. Idaho would have this Court order Oregon and
Washington to allow a portion of the nontreaty share to pass into
Zone 6 along with the treaty share
Page 444 U. S. 390
and the escapement. According to the Special Master, however,
without some control over treaty fishermen, this Court could not
guarantee that Idaho's allocation would ever get out of Zone 6.
We do not share the Special Master's pessimism. Under the
Sohappy agreement, the Indians are limited to a fixed
share of the fish entering Zone 1 and destined for the waters above
the Bonneville Dam. Absent evidence to the contrary, we cannot
assume that the Indians would violate that agreement by taking more
fish than have been allocated to them. Nor can we assume that
Oregon and Washington, the other parties to the Sohappy agreement,
would ignore any such violation. Because the treaty and nontreaty
commercial fisheries undoubtedly compete to a certain extent,
Oregon and Washington might find it in their own interests to
enforce the ceiling on treaty fishing in Zone 6. Finally, should
other remedies fail, Idaho might be able to intervene in the
Sohappy litigation for the sole purpose of enforcing the
limitations on treaty fishing. Thus, we cannot agree with the
Special Master that failure to join the United States as a party to
this litigation would prevent this Court from rendering an adequate
judgment. [
Footnote 7]
This case is quite different from earlier cases where we found
the United States to be an indispensable party to the
Page 444 U. S. 391
prosecution of.a suit within our original jurisdiction. In
Arizona v. California, 298 U. S. 558
(1936), a suit involving the division of theretofore unapportioned
water in the Colorado River, we found that the Federal Government
already had exercised its authority to impound that water and to
control its disposition.
See id. at
298 U. S. 570.
Here, by contrast, the United States has made no attempt to control
apportionment of the in-river harvest of anadromous fish, except to
the extent that it has acted to protect treaty rights. In
Texas
v. New Mexico, 352 U.S. 991 (1957), another suit involving the
apportionment of water flowing in an interstate river, we adopted
the finding of the Special Master that the United States was
indispensable in its role as trustee for various Indians. A decree
in that case, however, would have "necessarily affect[ed] adversely
and immediately the United States" in its fiduciary capacity.
See Report of the Special Master, O.T. 1956, No. 9 Orig.,
p. 41. In this case, the Special Master specifically dismissed the
possibility of prejudice to the United States, either in its role
as trustee for the Indians or in its role as manager of the ocean
fishery and the dams.
Cf. United States v. Candelaria,
271 U. S. 432,
271 U. S. 438,
271 U. S. 443
(1926).
Moving beyond the report of the Special Master, Washington has
advanced two additional arguments in favor of dismissing Idaho's
complaint. First, Washington asserted at oral argument that the
Sohappy agreement was founded on the assumption that
nontreaty fishermen in Washington and Oregon were entitled to take
any fish not allocated either to treaty fishermen or to spawning
escapement. According to Washington, any allocation of nontreaty
fish to Idaho would result in abrogation of the
Sohappy
agreement.
See Tr. of Oral Arg. 46-47. The
Sohappy agreement, however, only divides the available
fish between treaty and nontreaty fishermen. It does not purport to
allocate the nontreaty share among the various States. Even if the
agreement did guarantee Washington or Oregon fishermen any fish not
allocated
Page 444 U. S. 392
to treaty fishermen or to escapement, such an agreement could
not and should not survive a finding by this Court that Idaho is
entitled to some of those fish, presently being taken by Oregon and
Washington. Moreover, should Oregon or Washington seek to reopen
negotiations in the
Sohappy litigation, an attempt by
Idaho to intervene in that litigation might meet with more success
than an attempt to intervene in the face of an extant 5-year
agreement.
Washington also argues that, at present and for the past several
years, few if any fish have been taken from the runs at issue here,
and that further restrictions on fishing in Zones 1 through 5 will
have no appreciable effect upon the number of spring chinook
salmon, summer chinook salmon, and steelhead trout arriving in
Idaho. This assertion, however, goes to the merits of Idaho's
claim, and has little or nothing to do with the need to join the
United States as a party to this litigation. Idaho's narrow
complaint is a two-edged sword. It has sidestepped the need to join
the United States as a party by seeking only a share of the fish
now being caught by nontreaty fishermen in Oregon and Washington.
It now must shoulder the burden of proving that the nontreaty
fisheries in those two States have adversely and unfairly affected
the number of fish arriving in Idaho. A trial on the merits may
well demonstrate that the target fisheries have, in fact, had no
effect upon the runs of anadromous fish at issue here.
Alternatively, a trial may demonstrate that natural and manmade
obstacles will prevent any additional fish allowed to pass out of
Zone 5 from reaching Idaho in numbers justifying additional
restrictions on nontreaty fisheries in Oregon and Washington.
Cf. Washington v. Oregon, 297 U.
S. 517 (1936) (water not used by Oregon would sink into
deep gravel in the bed of the river and never reach users in
Washington). Neither of these possibilities, however, persuades us
that an adequate judgment is impossible without a joinder of the
United States Government.
Page 444 U. S. 393
We therefore sustain Idaho's exceptions to the Special Master's
report recommending that Idaho's complaint be dismissed, and remand
the case to the Special Master for further proceedings not
inconsistent with this opinion.
So ordered.
MR. JUSTICE STEWART and MR. JUSTICE MARSHALL dissent. Agreeing
with the Special Master's report, they would overrule Idaho's
exceptions thereto and would order that the complaint be
dismissed.
[
Footnote 1]
To a certain extent, the United States Bureau of Reclamation and
the Federal Energy Regulatory Commission also exercise some control
over water releases.
See Report of the Special Master
8.
[
Footnote 2]
The plan estimates that, under normal river conditions, an
escapement of 120,000 spring chinook salmon above the Bonneville
Dam will provide 30,000 spring chinook salmon at the Lower Granite
Dam, the last dam separating the fish from Idaho's spawning
grounds.
[
Footnote 3]
For summer steelhead trout, the agreement sets an escapement
goal of 150,000 fish passing the Bonneville Dam or 30,000 fish at
the Lower Granite Dam. If the run exceeds these goals, the excess
is apportioned entirely to nontreaty fishermen. As for summer
chinook salmon, the third run at issue here, the agreement states
that runs of those fish "are precariously low, and do not warrant
any fishery at the present time. . . ."
[
Footnote 4]
According to Idaho, it has no significant commercial fishery,
but only sport fisheries.
[
Footnote 5]
The United States has adopted this position despite its repeated
concession that Idaho appears to be entitled to some sort of
equitable relief.
See Memorandum from Louis F. Claiborne
to the Solicitor General, reproduced as Appendix C to Idaho's
exceptions, p. C-5; Tr. of Oral Arg. 60.
[
Footnote 6]
The
Sohappy agreement, however, is "based upon the
premise" that the United States, through the Pacific Fishery
Management Council, will regulate ocean fishing on the runs at
issue here so that the ocean catches will be "essentially
de
minimis portions" of those runs.
[
Footnote 7]
The Special Master also implied that he felt dismissal was
warranted because of the complexity of apportioning runs of
anadromous fish and because this Court might have to retain
continuing jurisdiction over the management of the fisheries in the
Columbia and Snake Rivers. We rejected a similar argument in
Nebraska v. Wyoming, 325 U. S. 589,
325 U. S. 616
(1945), a case involving apportionment of water:
"There is some suggestion that, if we undertake an apportionment
of the waters of this interstate river, we embark upon an
enterprise involving administrative functions beyond our province.
. . . But the efforts at settlement in this case have failed. A
genuine controversy exists. . . . The difficulties of drafting and
enforcing a decree are no justification for us to refuse to perform
the important function entrusted to us by the Constitution."