Sacrificing the Salmon: A Legal and Policy History of the Decline of the Columbia Basin Salmon.

• Author: Wandesforde-Smith, Geoffrey
• Position: Book Review

At the risk of starting with an awful pun, Michael Blumm, author of Sacrificing the Salmon: A Legal and Policy History of the Decline of the Columbia Basin Salmon, (2) is a powerhouse (3) when it comes to environmental and wildlife law. And when it comes to salmon law he is the powerhouse. Blumm teaches the only law school course in the country (and one assumes, perhaps, in the world) on Pacific salmon law. More to the point and more impressively, Blumm is the author of a truly monumental body of scholarship. No other scholar has focused so intently and so successfully on analyzing and evaluating the history of law and policy addressing Columbia Basin salmon. (4)

Blumm has exceptionally detailed, even intimate, knowledge of the most recent tranche of this history, because in 1979 he began editing the Anadromous Fish Law Memo, a trusted and influential publication for more than a decade of the Oregon State University Sea Grant Program. Blumm subsequently became co-director of the Northwest Water Law and Policy Project (now inactive) (5) at Lewis & Clark Law School, where he is on the faculty and whence he has engineered a most remarkable series of professional collaborations on salmon law, many with students as well as colleagues at the law school, over the last two decades. It is inconceivable that during this time many (probably all) of the major participants in the ongoing saga of the Columbia Basin salmon have failed to avail themselves of Blumm's expertise and counsel, or that, if they failed to get him on their side, it was not from want of trying.

This book comes from an author of exceptional talent and distinction, who could continue to make himself available as a major natural resource for the legal and policy communities in the Pacific Northwest, and across the nation, who also care deeply about this subject. After all, the decline of the Columbia Basin salmon has not been reversed, and who better to be in the vanguard for the work that lies ahead than Blumm?

II

One's first thought, then, is that Blumm has written and published this book not just to tell war stories about the last twenty years, but also to lay the groundwork for victory in battles yet to come. In fact, Blumm intriguingly hints in his preface that he is tiring of the fight and may even be preparing to leave the field. For example, he apologizes to his wife and family for having to endure years of salmon law and says he looks forward to being on the baseball diamond more often with his five-year-old son. (6) Of course, this sort of tender nod in the direction of one's family is standard fare in prefaces.

Elsewhere Blumm describes the book itself not as an inspirational prelude to eventual success in the fight to "save the salmon," (7) but in more modest, even mundane, terms as "a reference source on the numerous discrete aspects of salmon history, law, and policy." (8) In these terms, the book is still unquestionably important. If Blumm chooses to retire from the field, others could pick up such a legacy and carry on the fight to save the salmon, and there will be no confusion for the next generation about the present state of play or where to start the next offensive.

In this book, Blumm delivers consistently on his encyclopedic intent. He clearly organizes and presents its contents, patiently touches all the important bases, and, despite a valiant effort to eschew them in the spirit of historian Richard White--who has also written about the river and the salmon, (9) Blumm includes a multitude of footnotes and citations.

However, something curious and even a little disconcerting remains about the studied straightforwardness with which Blumm approaches this book. He says the book provides clear points of view on several subjects, which it does, and that he has not shied away from advocacy, of which there is some in the book, too.

Blumm's advocacy is most prominent in chapter 12, where he argues for a judicial declaration that nineteenth century Indian treaties provide an implied right to protect salmon habitat. The treaties reserved to the northwest tribes "the right of taking fish." (10) In chapter 13 Blumm argues for breaching the Lower Snake River dams to save the imperiled Snake River salmon runs. (11) In chapter 14 he warns against the allure of ecosystem management as a panacea for salmon restoration. (12)

The book is not without some surprising twists and turns. Many readers will be impressed with Blumm's surprisingly pessimistic and sobering assessment of the effect the Endangered Species Act has had on the salmon problem--a matter to which I return later. (13) By the same token, Blumm is upbeat about the untapped opportunities of the Clean Water Act (CWA) (the subject of chapter 10) and the Federal Power Act (chapter 11). (14)

Nevertheless, it seems to me Blumm stays his hand in the face of repeated opportunities to make necessary and appropriate judgments, and especially, perhaps, political judgments. Given the sad state of the salmon, there is not as much fire in Blumm's belly as I had expected when I first picked up the book.

Is Blumm just trying to tell us, by the dispassionate way he frames and writes this book, that after two decades he has grown weary of this whole subject? Something we could all understand and regret, but which we might not find shocking? Or is Blumm signaling, even subliminally, that the fight to save the Columbia Basin salmon is all over but the shouting?

If Blumm is sending us the latter message, then this book's appearance is a benchmark event. It marks what any person reasonably well-informed about American environmental policy law would say is a truly remarkable turn of events. It is among the first honest and sustained appraisals by a frontline participant of an enduring political and legal strategy for change that took form in the late 1960s and has lasted ever since.

More narrowly, if this book is Blumm's envoi, then I believe he is the first major architect of the legal and policy strategies that have sustained the mainstream environmental movement in the United States since the late 1960s to say that those strategies do not work and, perhaps, that they may never work. Others have tried to make the same point--much less convincingly, in my view--from the comfortable armchair of economic theory. But Blumm is not merely an armchair theorist. He is a player.

I am not privy to Blumm's real intent and motivation, and he does not clearly address these issues in the book itself. (15) But given Blumm's close identity with the story of the salmon over the last twenty years, as well as with a great deal of the thinking behind the legal and policy strategies he details, one has to raise the question.

Moreover, if Blumm is signaling the end of the road in the fight to save the salmon, he is separating himself from that body of legal scholars who have written at great length recently to explain how they see in the history of wildlife law a bright new future--a future so bright and exciting, in fact, that it presages the remaking of the landscape of environmental law as we enter the twenty-first century. (16)

At this point in time, the body of legal scholars I allude to is probably small, and neither I nor anyone else can gauge how fast it might be growing. Blumm's contribution in this book would be all the more remarkable, however, if it creates an opposition between competing theories about the future of environmental law.

If Blumm is not leaving the field, we can expect him to push ahead with new ideas for litigation chiefly aimed at federal agencies and skillfully exploiting the multiple statutory mandates he sees as relevant to the future of the Columbia salmon. Perhaps he will push ahead without giving much regard to his underlying politics or to the broad level of political support his strategy attracts. My reading of Goble and Freyfogle is that, while they do not want to put a moratorium on litigation to vindicate wildlife interests, their chief concern is reconstituting the philosophical and political foundations on which wildlife law and policy can attract public support, thus revitalizing the impact wildlife law and policy have on the status and prospects of wildlife populations.

III

I think it helps to evaluate Blumm's new book about the decline of the Columbia Basin salmon to set it in the context of other attempts to grapple with the political equation that has produced the salmon story--whether on the Columbia or elsewhere. Blumm's central premise is that the history of the Columbia Basin salmon is best understood through what he calls the "promise metaphor" (17)--a depressingly long series of broken and unfulfilled promises. (18) Blumm says he wants to explain the promises, why they were made, what they have and have not accomplished, and what they might hold for the future.

Other authors writing about salmon have also been impressed with the broken promises theme, although none has developed it through history at such length and with such mastery as Blumm. (19) This is not the place to attempt an outline of all the salmon stories added to the literature over the years, but let me set down some markers I have found useful in thinking about Blumm's contribution.

I cut my own teeth on the salmon story as a student of Richard Cooley, who won the 1963 Western Political Science Association prize for best work of scholarship on a problem of government for his book about the decline of the Alaska salmon. (20) "This is the pathetic history," wrote Cooley, with some passion and with his values, as always, plainly in view, "of the ruinous exploitation of one of the nation's important renewable natural resources." (21) Cooley observed no shortage of theories about what happened to the resource. Each set of actors in the story had both a favored explanation for decline and a simple cure for the problem. (22)

Cooley was not impressed, however, by either the intellectual breadth or the...