Of fish, federal dams, and state protections: a state's options against the federal government for dam-related fish kills on the Columbia River.

• Author: Craig, Robin Kundis

1. INTRODUCTION

   The Columbia River Basin houses two of the Pacific Northwest's greatest concerns: the Columbia River hydropower system and what "were once the world's largest salmon runs."(1) Unfortunately, the two are often in conflict. The Columbia River hydropower system is the world's largest, integrating over one hundred and fifty dams and producing more than forty percent of the nation's hydropower.(2) It has also significantly contributed to the severe decline in the River's salmon and steelhead numbers:(3) collectively, these dams can kill up to eighty percent or more of the fish that pass through their turbines.(4)

   Of the many Columbia River dams, thirteen make up the Federal Columbia River Power System (FCRPS).(5) The Federal Bureau of Reclamation and the U.S. Army Corps of Engineers (Corps) operate the FCRPS dams, while the Bonneville Power Administration markets the power they produce.(6) Eight FCRPS dams are considered "mainstem" and have the greatest effect on salmon and steelhead; from the Pacific Ocean upstream, they are Bonneville, The Dalles, John Day, McNary, Ice Harbor, Lower Monumental, Little Goose, and Lower Granite.(7) As a result, these dams have instituted fish protection measures. For adult fish, all eight dams provide fish passage facilities, or fishways,(8) which are passage routes that allow adult fish to negotiate the dams.(9) The Federal Bureau of Reclamation and the Corps are responsible for maintaining the fishways within certain standards.(10) For juvenile salmon, five dams--Ice Harbor, Little Goose, Lower Granite, McNary, and Lower Monumental--participate in a barging program for smolts.(11) In this program, the National Marine Fisheries Service (NMFS) and the federal operating agencies collect fish at the various dams and transport them down the Columbia to below Bonneville Dam for release to the Pacific Ocean.(12)

   Salmon and steelhead are anadromous fish, meaning that they hatch and begin their growth in freshwater rivers and streams but then migrate out to sea for two to three years before returning to fresh water to spawn and die.(13) The Columbia River power system is particularly devastating to the young fish migrating out to sea. First, the system slows the flow of the Columbia so that young fish spend twice as long as they otherwise would getting to sea, increasing their exposure to predators and resulting in some fish failing to leave the river system at all.(14) Second, each dam takes its own toll on the migrating fish, killing up to thirty percent of the fish that pass through the facility.(15) The barging program arguably offsets some of these losses, but ninety-five to ninety-nine percent of the fish migrating in-river still die.(16)

   Human activities have contributed to a drastic decrease in anadromous fish runs in the Columbia River, causing historic runs to drop from approximately ten to sixteen million fish annually to approximately two-and-one-half million fish by the mid-1980s.(17) For some runs of some species, return numbers are so low that observers can exactly count the fish that return to spawn. In 1991, for example, only seven adult Snake River sockeye were observed re-entering the Columbia River, and only four of those-including only one female-survived the nine-hundred-mile swim to their spawning grounds in Redfish Lake, Idaho.(18) Other runs, while substantially larger than that of the endangered Snake River sockeye, are nevertheless small enough so that one badly timed fish kill could severely cripple the species' continued survival. In 1994, for instance, less than 21,000 spring chinook returned to Bonneville Dam-a record low, down from 112,000 fish in 1993-and even lower numbers were expected for the summer and fall chinook runs.(19) Therefore, "even small increases in net in-river survival may be important" to the overall hydropower system survival of anadromous fish in the Columbia River.(20)

   "Ordinary" fish deaths from turbines, increased travel time, barging, and trucking have been punctuated over the years by "fish kills"--single-event, unusual mass deaths related to the dams. In 1967, for example, approximately twenty thousand salmon and steelhead died in the pool below the John Day Dam after the federal government opened the dam without fully operating fish ladders.(21) Between 1988 and 1995, the McNary Dam fish protection measures have been implicated in at least two major fish kills. On May 13, 1988, McNary Dam's fish barging program caused two separate fish kills. First, the Corps collected over 25,000 juvenile salmon in the dam's raceways.(22) When a water-inflow valve to the raceway failed to open, allegedly because of a Corps employee's negligence, over 20,000 juvenile salmon,(23) mostly threatened fall chinook, died from suffocation.(24) Second, almost 195,000 fall chinook died on a transportation barge when the water circulation system again failed, allegedly through the negligence of a Corps employee.(25) Washington State sued the United States for over $269,000 in damages,(26) only to face the United States' argument that a suit arising from fish barging is subject to admiralty jurisdiction.(27)

   More recently, at least thirty-six thousand and perhaps over ninety thousand(28) juvenile chinook salmon were killed in the barging program collection system at McNary Dam over the weekend of July 15-17, 1994.(29) The Corps was holding fish in its collection system, and the fish died as a result of high water temperatures and clogged fish screens.(30) However, knowing that water temperatures made transportation potentially lethal for the fish, the Corps had already stopped its barging operations.(31) Although the Corps switched to its emergency bypass system immediately after the kill, temperatures in that system were also dangerously high.(32) Nevertheless, the Corps initiated only a limited spill, designed to reduce post-dam predation on the fish.(33) Despite the importance of salmon to the Columbia River states' economies and ecosystems, the current legal system provides those states with few, if any, effective means to challenge or remedy questionable decision-making on the part of the federal government, even when those decisions lead to massive fish kills. Because the federal government owns the FCRPS dams, federal sovereign immunity thwarts many potential state suits that could serve as a check on federal decision-making.

   Federal law(34) as well as the economic and environmental interests of the Columbia River states require that one goal of Columbia River management is to limit actions that unnecessarily or avoidably kill large numbers of salmon. Nevertheless, the current legal regime lacks a mechanism by which states or citizens can deter day-to-day decisions at the federal level that create conditions where fish kills are likely. In most environmental regulatory schemes,(35) monetary damages, penalties, or fines(36) serve as the deterrence mechanism, particularly when an injunction is not a likely possibility. Indeed, as part of the powers inherent in their state sovereignty, Oregon, Washington, and Idaho each have fish-protection laws and procedures that would allow them to recover damages for dam-related fish kills. Moreover, some sort of monetary penalty, whether damages or restoration costs, is likely to be the only effective deterrent possible for fish kills at federal dams. States have little, if any, warning before a fish kill happens, and fish kills happen relatively quickly, limiting the practicality of injunctive relief. Therefore, although monetary penalties are an imperfect remedy,(37) they could, if properly crafted, encourage the FCRPS managers to keep fish kills from happening in the first place.

   This Comment argues that federal sovereign immunity unwisely prevents the Columbia River states from protecting their critical natural resources and from acting as a needed check on the federal government's discretion in operating the dams. Part II outlines the states' role as protectors of the Columbia River fish, focusing on their statutory protections for fish. Part III examines the concept of sovereign immunity and statutory waivers of such immunity in a variety of potentially relevant environmental statutes and concludes that such waivers provide little or no remedy for states. Part IV argues that the historical erosion of sovereign immunity in the United States and the increasing regulation of the Columbia River dams support the creation of a strict liability cause of action for fish kills. Finally, Part V concludes that this new cause of action, properly limited, could strike a better balance between state interests and federal power on the Columbia River.

2. STATE PROTECTIONS OF COLUMBIA RIVER FISH

   1. State Claims to Ownership of Columbia River Fish

      Under the wildlife laws of the United States, management of fish and wildlife is the states'--not the federal government's--prerogative. As early as 1895, the United States Supreme Court held that the power to regulate wild animals passed from England through the colonial governments to the states.(38) States exercise that power as part of the public trust,(39) through their police powers.(40) Even after the Supreme Court subjected state regulation of wildlife to the Commerce Clause in the United States Constitution, it still recognized that states have "the legitimate purpose of protecting and conserving wild animal life within their borders"(41) and exempted hunting regulations from the federal Privileges and Immunities Clause.(42) Moreover, Congress passed the Lacey Act of 1900(43) "to strengthen and supplement state wildlife conservation laws" by prohibiting persons from using interstate commerce to circumvent a state's protective laws.(44) Thus, the federal government has consistently recognized and supported states' roles in protecting wildlife, including fish.

      Oregon, Washington, and Idaho have each statutorily recognized their role as regulators...