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Implementing the U.S.‐CANADApacific salmon treaty: The struggleto move from “fish wars”; tocooperative fishery managementMarlyn Twitchell aa Northwestern School of Law , Lewis and Clark College ,Portland, Oregon, 97219Published online: 16 Nov 2009.

To cite this article: Marlyn Twitchell (1989) Implementing the U.S.‐CANADA pacific salmontreaty: The struggle to move from “fish wars”; to cooperative fishery management, OceanDevelopment & International Law, 20:4, 409-427, DOI: 10.1080/00908328909545903

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Ocean Development and International Law, Volume 20, pp. 409-427 0090-8320/89 $3.00 + .00Printed in the UK. All rights reserved. Copyright © 1989 Taylor & Francis

Historical Note

Implementing the U.S.-Canada Pacific SalmonTreaty: The Struggle to Move from "Fish Wars" to

Cooperative Fishery Management

MARLYN TWITCHELLNorthwestern School of LawLewis and Clark CollegePortland, Oregon 97219

Abstract On January 28, 1985, the Pacific Salmon Treaty was signed in Ottawa,Canada, culminating 15 years of negotiations to end an increasingly tense "fish war"between the United States and Canada. The treaty provides a means to manage,conserve, and rebuild stocks of the five species of salmon that inhabit coastal watersof Oregon, Washington, Alaska, and British Columbia Canada. The primary purposeof the treaty is to address equitably the problem of ''interceptions''—that is, theharvest of one country's salmon by foreign fishermen.

The treaty established the Pacific Salmon Commission as its decision-makingbody. To say the Commission's task is difficult is an understatement. Implementingthe treaty involves international rules, numerous parties, and several competing in-terests. The Commission deals with five species of salmon, three major commercialgear groups, and both sport and native American fishermen. In addition, the Com-mission faces the sensitive task of dealing with four governments (Canada, Alaska,Washington, and Oregon) and various Indian tribes with a treaty right to a share ofthe harvestable fish passing their traditional fishing grounds.

During its first three years of implementing the treaty, the Commission grappledwith a number of issues, including those of interpreting treaty ambiguities.

Introduction

This article is a status report on implementation to date of the Pacific Salmon Treaty. Thefirst section provides historical background on the treaty. The next section describes itsgoverning principles, as well as the Commission's organization and responsibilities. Thethird section discusses the treaty's implementation over the past three years, followed byan analyzation of the treaty's implementation noting that the Commission has failed toaddress long-term management issues. The Article concludes that the Commission should(1) adopt long-term goals to provide an overall framework for its research, conservation,and enhancement efforts, and (2) incorporate habitat protection into its management pro-gram.

Background

The Interception Problem

The migratory nature of Pacific salmon has long been a source of frustration to both theUnited States and Canada. Juvenile salmon migrate from their inland freshwater

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spawning grounds out to the ocean, where they spend several years before returning totheir natal stream to spawn and die.1 During their time at sea, salmon migrate longdistances, crossing state and international borders along the way.2 In the course of theirmigrations, many fish originating in one country are caught—or "intercepted"3—byfishermen from the other country.4

Interceptions are essentially an allocation issue. When stocks were sufficient to meetboth countries' harvest demands, interceptions were not a problem. Stocks began to de-cline in the early part of this century, however, as a result of overharvesting, and theeffects of dam construction and pollution. Both the United States and Canada noticed thedecreasing salmon population, but neither country had the incentive to invest in con-serving stocks without the assurance of the catch.5

Overharvesting and Habitat Destruction: A Decline in Salmon Populations

For hundreds of years, the rivers and streams of the Pacific Northwest produced abundantstocks of salmon for the Indians in the region. Although they harvested large quantities ofsalmon,6 they took only what they needed, and therefore had no adverse impact onsalmon populations.

Shortly after the arrival of white settlers in the Pacific Northwest, wholesale exploita-tion of salmon stocks began. The advent of canneries in the mid-to-late 1800s inducedlarge-scale commercial fishing. Canneries encouraged methods, including traps, fishwheels, and gillnets, of fishing designed to scoop up the largest number of fish at Onetime.7

Declining salmon populations prompted federal, state, and provincial governments totake measures designed to prevent further declines in the stocks. Gear restrictions wereintroduced in the 1870s in both Washington and Oregon. Shortly thereafter, those statesbegan regulating the duration of the fishing season. Canada imposed its first catch limitson the Fraser River fishery in 1882, and in 1889 began to require licenses of all non-In-dian fishers. Gear and catch limitations were not taken seriously by fishermen, however,and since such limits were rarely enforced, overharvesting continued.8

Efforts were also made to enhance stocks through hatcheries. One of the first openedin 1877 on the Clackamas River, a tributary of the Columbia in Oregon. British Co-lumbia sited its first hatchery on the Fraser River in 1883. Washington's first hatcheryopened 12 years later in 1895 on the Kalama River, another Columbia River tributary,and Alaska began hatchery operations in 1905.9 Because many early hatcheries had noapparent effect on run sizes, however, they were abandoned.10 In the meantime, pressureon the declining stocks increased with the advent of troll fishing.11

The Need for Joint Management

Early Efforts at Joint Management: The IPSFC. The first major incident of salmon hab-itat destruction from development activities occurred in 1913. Construction crewsworking on a railroad right-of-way through the Hells Gate Canyon on the Fraser River inBritish Columbia attempted to blast through the sheer canyon walls, triggering rock slidesthat choked the river at Hells Gate and preventing tens of thousands of salmon fromreaching their spawning grounds.12 Many stocks were almost destroyed.13 The effectswere not limited to Canada, however, since the large numbers of Fraser stocks enteringthe waters off northern Washington comprised a major Washington fishery. Thus the

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Implementing U.S.-Canada Pacific Salmon Treaty 411

United States and Canada agreed that cooperation in restoring the Fraser stocks would bein their mutual interest.

After nearly 15 years of negotiations, the two countries signed the Convention for theProtection, Preservation and Extension of the Sockeye Salmon Fishery in the FraserRiver System on May 26, 1930.14 The Convention established two goals: (1) restorationof sockeye runs through hatchery operations and removing obstructions,15 and (2) equalharvest sharing in return for U.S. financial and technical assistance in restoring theruns.16

The Convention created the International Pacific Salmon Fisheries Commission(IPSFC),17 composed of six members, three from each country, and authorized theIPFSC to recommend fishing seasons and gear restrictions for the United States andCanada to meet its dual goals.18 The Convention gave the IPFSC no enforcement powers,but both countries usually adopted its recommendations.19

Although the IPSFC successfully rebuilt Fraser River sockeye runs,20 the Conven-tion's limited scope21 soon led to the first salmon "war"22 between the United States andCanada. In 1955-56 Canadian fishermen believed that U.S. fishermen shifted their har-vest efforts from sockeye to pink salmon and were catching large quantities of Fraserstocks. The Canadians responded by catching a comparable number of pink salmon.23 Inorder to prevent continued overharvesting of pink salmon, the Convention was amendedin 1957 to include Fraser River pink salmon.24

Other Interjurisdictional Management Actions. The Fraser River Convention was a lim-ited one, dealing with only two species of salmon in a limited geographical area.25 Inareas outside convention waters, fishers of both countries freely harvested fish origi-nating in each other's waters, subject only to reciprocal agreements. The first such agree-ment, signed in 1970, provided that both countries could troll for salmon in each other's3-to-12 mile fishery zone.26 This agreement also required the countries to begin con-sulting on mutual concerns relating to Pacific salmon, and formal negotiations for abilateral salmon interception agreement began in 1971.27

By 1977 both Canada and the United States had extended their exclusive fisheryzones to 200 miles.28 Both countries also supported the "state-of-origin" principleduring the UN Law of the Sea discussions, arguing that salmon should be harvested onlyby the country in whose rivers they spawned. Despite taking this position, offshore areasof both countries remained open to fishing by the other country through reciprocal agree-ments. In order to be consistent with their Law of the Sea positions, the countries neededto apply the state-of-origin principle to their own fisheries or devise an equivalent alter-native.29

Fifteen Years of Negotiations. At first, the bilateral negotiations focused only on alloca-tion; the countries were content simply to limit interceptions to existing levels.30 By themid-1970s, however, the effects of hydroelectric dams on the Columbia River31 and the"Boldt decision"32 in Washington disrupted existing allocations. At the same time, sev-eral new hatcheries were proposed in Washington, on the Columbia River in Oregon, andacross the border on the Fraser River.33 Both countries were hesitant to bring these hat-cheries on line until assured the benefits of such enhancement would accrue to theirfishermen, not to "intercepting" foreign fishermen. The countries also wanted somekind of accounting system to allow a "payback" if one country intercepted too many ofthe other's salmon. Negotiators discovered, however, that the existing technology couldnot provide an adequate, accurate means of accounting.34

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412 M. Twitchell

In the late 1970s and early 1980s, the pressure on stocks reached a crisis when theeffects of dam construction,35 habitat destruction, and pollution compounded the effectsof overharvesting. In the early 1980s, biologists noted a startling decline in United Statesand Canadian chinook and coho stocks. The two countries then saw clearly the need for acomprehensive plan of joint management.36

To that end, the countries stepped up the negotiations and, in 1982, a draft intercep-tion treaty was signed. Puget Sound fishermen and the State of Alaska objected to thedraft treaty, however.37 The fishermen felt that the Fraser River Convention better pro-tected their interests,38 whereas the Alaskan government objected to proposed reductionsin the southeast Alaska chinook catch. This, the state alleged, would have a devastatingimpact on Alaskan fishermen.39 Consequently, the Alaska congressional delegation suc-cessfully blocked ratification of the treaty by the Senate.40 Canada responded by threat-ening another "fish war,"41 and Oregon and Washington Treaty Indian tribes undertookcourt action seeking to extend the 50 percent sharing provision of the "Boldt decision"to Alaskan fisheries.42

These initiatives prompted a resumption of the negotiations in January 1984. In ex-change for Alaska's support of the treaty, the tribes agreed not to pursue extending the"Boldt decision" to Alaska.43 The parties also agreed on measures to reduce the impactof southeast Alaska chinook harvest reductions.44 The treaty was finally signed on Jan-uary 28, 1985 and quickly ratified by Congress on March 7, 1985.

The Pacific Salmon Treaty

The treaty achieves what prior bilateral management actions failed to achieve—it appliesto all five species of salmon45 in all areas subject to intercepting fisheries along thePacific Northwest coast of the United States and Canada. Further, it calls for cooperationin all aspects of fishery management, including research, data collection, and enhance-ment.

Treaty Principles

The treaty establishes two basic principles: (1) conservation and (2) equitable alloca-tion.46 The first requires the United States and Canada to prevent overfishing and toprovide for optimum production. The second, known as the "equity" principle, promisesthat each country is to receive compensation equal to the salmon originating in its waters,thus ensuring that each party receives the benefits of its production efforts.47 In order toimplement the equity principle, each country must estimate the value of the salmon itproduces that are harvested by the other country. Because the countries currently lacksufficient data on the value of intercepted fish, the equity principle will be implementedthrough a phased approach, as data is gathered.48

To implement the treaty according to the conservation and equity principles, thecountries must consider: (1) the desirability of reducing interceptions, (2) avoidance of"undue disruption" to existing fisheries, and (3) annual variations in stock abundance.49

The second guideline, which commits the parties to avoid economic and social disruptionof historic fisheries, sharply circumscribes the equity principle.

The treaty also requires the parties to share data on run size estimates, escapements,estimated total allowable catch, stock interrelationships, and each country's managementobjectives.50 In addition, the two countries are required to conduct joint research on

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Implementing U.S.-Canada Pacific Salmon Treaty 413

migratory and exploitation patterns and the extent of interceptions.51 This information isessential to implement fairly the conservation and equity goals. Further, the parties mustshare data on proposed enhancement programs,52 since one party could easily thwart thegoals of the treaty and create a new interception problem through enhancement activities.If one party undertakes enhancement efforts, it is likely the other party would harvest aportion of those enhanced stocks while targeting on its own stocks. Bilateral cooperationon enhancement can avoid that problem.

A "savings" clause ensures that the treaty will not affect or modify existing aborig-inal rights established by treaty or federal law.53 Finally, the treaty establishes a Tech-nical Dispute Settlement Board, in the event the parties fail to agree on technical esti-mates of interceptions and overfishing.54

The Pacific Salmon Commission

The treaty's decision-making body, the Pacific Salmon Commission,55 is composed of aU.S. and a Canadian section, with four members each.56 The Canadian section consistsof one government official, and user group representatives for recreational fishing, thefishing union, and Indian fishery. Domestic enabling legislation prescribes the composi-tion of the U.S. section: one member from Alaska, one from Oregon or Washington, onerepresenting the treaty Indian tribes of Idaho,57 Oregon, and Washington, and one non-voting federal government official.58

Although the U.S. government is represented on the Commission, the federal role isactually quite limited. The states and tribes regulate their respective fisheries according tothe Commission's recommendations. If a state or tribe fails to comply with the treaty,however, the Secretary of Commerce does have the power to preempt their action. Fur-ther, the Secretary of State may disapprove of or object to fishery regimes and FraserPanel regulations approved by the Commission, but only to the extent that funds are notappropriated by Congress to carry them out.59

The treaty also establishes three regional panels.60 The Northern Panel is responsiblefor stocks originating in rivers that enter into the Pacific from southcentral and south-eastern Alaska to Cape Caution in northern British Columbia. The Fraser Panel has au-thority over Fraser River sockeye and pink salmon stocks.61 The Southern Panel overseessalmon originating in rivers (other than the Fraser) that enter the ocean south of CapeCaution, British Columbia62 (Figure 1). Each Panel consists of six members each fromthe United States and Canada.63 The U.S. section of each panel is composed of onefederal official and a mix of fishery managers and industry representatives.64

The Commission meets annually at the end of the fishing season to review postseasondata and preseason fishing plans, and to make any necessary changes to the treaty's sixfishery management regimes.65 Data are initially compiled and analyzed by the technicalcommittees established for each fishery regime.66 The technical committees' reports aresent to the three panels, which review the reports and make recommendations to theCommission on fishery management actions.67 The Commissioners then make final deci-sions on those recommendations for fishery regimes. All panel and Commission deci-sions are made by consensus.68

Treaty Implementation

The heart of the treaty is its six management regimes for intercepting fisheries of chi-nook, Fraser River sockeye and pink salmon, coho, chum, transboundary rivers, and the

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Figure 1. (a) Canadian and Alaskan fishermen off Northern British Columbia and S.E. Alaskacatch chinook spawned on the northern Oregon coast, upper Columbia and Snake rivers, and theWashington coast, (b) U.S. fishermen fishing in the U.S. stretches of the Columbia River catch fishspawned in the Canadian portion of the river, (c) Canadian fishermen off the west coast of Van-couver Island catch Columbia River hatchery chinook salmon and coho salmon from the Wash-ington coast and Puget Sound, (rf) Canadian fishermen in the Strait of Juan de Fuca, JohnstoneStrait, and Georgia Strait catch chinook, coho, and chum salmon from Puget Sound, (e) U.S.fishermen (primarily Washington) catch Fraser River sockeye, pink and chum salmon in the Straitof Juan de Fuca, and to a lesser degree in S.E. Alaska. (/) Alaskan fishermen catch salmon in theU.S. stretches of transboundary rivers.

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Implementing U.S.-Canada Pacific Salmon Treaty 415

boundary areas contained in Annex IV of the treaty. The six management regimes strike adelicate balance between adequate conservation and optimum harvests for both countries.Because the Pacific Salmon fisheries are intermingled, with both the United States andCanada catching fish that originated in the other's waters, the regimes are also inter-meshed in an effort to ensure an overall equitable allocation. Fisheries not directly ad-dressed by one of these regimes are to be managed so that no new intercepting fisheriesare established, and no intentional increases in existing intercepting fisheries occur.69 Theregimes vary in complexity depending on the amount of data available on the status ofstocks and the extent of interception for the particular fishery. Thus joint technical com-mittees are established for each regime—except the Fraser, which has adequate data—tocollect and analyze data on the status of stocks, harvest rates, and management actions; toidentify information and research needs; and to make recommendations for managementactions.70

Whereas the treaty's governing principles are embodied in its articles and can beamended only through formal renegotiation, technical matters contained in the treaty'sannexes—including the management regimes in Annex IV—can be changed through asimple exchange of notes between the countries.71 The fishery regimes may be changedwhen their terms expire: every two years for chinook, coho, transboundary, andboundary area regimes; every year for chum; and every four years for the Fraser River.The following sections describe the six management regimes and discuss the Commis-sion's activities in the past three years.

The Management Regimes

Chinook. The decline in naturally spawning chinook stocks was a major factor in thedecision by the United States and Canada finally to sign and ratify the treaty.72 Bothcountries realized that without joint management chinook stocks faced further declinesand possible extinction in some areas.73 Thus the treaty establishes a program to rebuildnatural chinook stocks by 1998.74 This schedule allows rebuilding while avoiding dislo-cation of existing fisheries that drastic harvest reductions would cause.75 In addition, theregime allows any party a "hatchery add-on" to its chinook allocation. This "add-on"encourages enhancement by ensuring the party undertaking the enhancement activityreaps the benefit of that activity.76

Coho. Although overall populations of coho were not at the same critical levels as thoseof the chinook, some stocks in Oregon and Washington were declining at the time thetreaty was signed. Except for Washington and southern British Columbia, the partieslacked sufficient data on coho stocks to estimate confidently total allowable catch andharvest levels. Washington and southern British Columbia have the most critical manage-ment problems, and, therefore, are the focus of the coho regime.

Boundary Area. The boundary area regime addresses the chum, sockeye, and pink inter-cepting fisheries in the boundary area between northern British Columbia and southeastAlaska, near the maritime boundary in Dixon Entrance. This area has historically beendifficult to manage, primarily because a number of stocks originating in both countriesmingle in this area. Consequently, the parties agreed to a complex regime designed toreduce interceptions while allowing each party to harvest its own stocks to the greatestextent possible.77

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Chum. The chum regime addresses stocks in the southern British Columbia and Wash-ington areas. When the treaty was signed, little attention had been paid to these stocks,and little data existed. Therefore, the 1985 Annex established no specific managementregime for this fishery. Instead, the Annex called upon the chum Joint Technical Com-mittee to gather data and make recommendations for management measures for 1985 andthereafter.78

Transboundary Rivers. The treaty defines a transboundary river as one "that arises inCanada and flows to the sea through the United States."79 The major transboundaryrivers within the treaty's geographic scope are the Taku, Stikine, Alsek, and Yukon,which flow through Alaska, and the Columbia, which flows through Oregon and Wash-ington.

Not all of these transboundary rivers are subject to the transboundary regime, how-ever. Unique circumstances existing on the Yukon and Columbia rivers exempt themfrom the regime's protocols.80 The Yukon is unique because of its distance from the otherrivers and because its fisheries are already regulated by a trilateral Canadian-American-Japanese agreement.81 In the case of the Columbia, hydroelectric dams have blocked fishpassage into the Canadian portion of the river, limiting the extent to which the river'stransboundary flow is a meaningful factor in decision making.82

Thus only the Taku, Stikine, and Alsek rivers in southeast Alaska are subject to thetransboundary regime. Several problems arise in managing these rivers.83 First, theparties must estimate what portion of fish originate in the Canadian portion of the rivers.Second, because the United States has established a large, viable gillnet fishery on theTaku and Stikine, allowing Canada to establish a viable river fishery could result insevere disruption to U.S. fisheries. Therefore, the Annex calls for joint enhancement andsets ceilings for Canadian sockeye fisheries on the Taku and Stikine.84

Fraser River Sockeye and Pink Salmon. This regime replaces the Fraser River Conven-tion with minor changes, the most important being extending the management of Fraserstocks beyond "convention waters." Thus the parties can no longer frustrate manage-ment by shifting harvest efforts to Fraser stocks outside convention waters.85

The Fraser River regime is unique among the treaty's other management regimes.First, the Fraser Panel (the successor to the IPFSC) oversees this fishery only. Second,because the Fraser River fishery was managed by the IPFSC for about 50 years prior tothe Pacific Salmon Treaty, the parties have a substantial amount of data on run sizes,escapement needs, and allowable harvest rates. Consequently, this regime is the mostdetailed of any in the treaty, establishing preliminary expectations of the total allowablecatch (TAC) for 1985-92 as well as the U.S. harvest share for the 1985-88.86 Finally,the Fraser Panel is the only one that engages in hands-on, week-by-week management ofthe fishery, setting preseason expected run sizes and making in-season adjustments.87

The Annex establishes two successive four-year regimes, allocating 7 million sockeyeto the United States over the first four years.88 The U.S. harvest share for pink salmonwas 3.6 million for 1985 and 1987, the years in which the pinks run.89 The Annex doesallow adjustments to U.S. harvest ceilings, either through changes in the estimated TACor under the "coho adjustment." Under the latter, the United States agreed to take50,000 less Fraser sockeye in exchange for Canada's agreement to take 50,000 less cohoallocated under the coho regime.90

The Fraser River's TAC estimate for 1985-92 may be adjusted pre- or in-season,either increasing or decreasing the U.S. catch. If the TAC increase is due to Canadian-

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Implementing U.S.-Canada Pacific Salmon Treaty 417

funded enhancement, however, the U.S. harvest level will not increase. Fraser TACadjustments must also take into account any increase in the Canadian Indian subsistencefishery. The Annex sets the subsistence allocation at 400,000 sockeye; any increases willbe absorbed solely by the Canadians.91 If the U.S. catch levels are not met in any year,the United States is to be compensated in subsequent years.92

During the second four years, the U.S. allocation is the same as the first four years, 7million sockeye and 3.6 million pinks for 1989 and 1991. However, the parties agreedthat during the second four years, these catch levels may be addressed in response tochanges in estimated TAC but cannot be increased.93 As in the first four years, anyincrease in the Canadian Indian food fishery will not affect the U.S. harvest levels.

1986: Organization and Start-Up

The Commission spent its first year primarily on start-up activities: selecting a chairmanand vice chairman for the Commission and for each of the three panels; adopting bylaws;and undertaking a number of other organizational and administrative activities. At its firstannual meeting, the Commission agreed to minor changes to the Annex IV managementregimes and to some interpretations of treaty provisions. Specifically, the Commissionagreed on a management regime for chum salmon94 and adjusted Canada's pink trollfishery allocation under the Boundary Area regime in order to allow Canadian trailers toharvest pink stocks returning to the Queen Charlotte Islands.95

The Commission also reached agreement on implementation of the Coho, Fraser, andChinook regimes for 1986. First, the Commission agreed on compensation for the short-fall in the Canadian coho harvest and for payback for the excess (overage) in the Cana-dian harvest of Fraser River sockeye.96 Second, the Commission reduced the southeastAlaska and northern British Columbia chinook catch ceilings, fearing the impact of in-duced mortalities and overfishing on the chinook rebuilding program. The Commissionalso directed committees to devise measures to reduce future overfishing and inducedmortalities.97 Third, since the Strait of Georgia chinook stocks declined in 1985, theCommission ordered Canada to take appropriate management actions to return to thechinook rebuilding schedule by the end of 1987.98

1987: Frustration and Deadlock in Renegotiating the Fishery Regimes

In 1987 the terms of five of the treaty's six fishery regimes were open for renegotiation.99

The parties appeared to see this renegotiation as an opportunity to regain what had beenlost in signing the treaty. Discussions thus focused on allocation, with each party makingallegations of overfishing and offering proposals either to increase its allocation or toreduce the other party's. Not surprisingly, each party was unwilling to offer concessionswithout receiving something in return. After 10 days of negotiations, the Commissionadjourned in frustration and deadlock. An additional three days of meetings producedagreement on all but the Transboundary Rivers regime.100 Because several spring fish-eries were ready to begin, the Commission adjourned and agreed to meet later in the yearto discuss Transboundary Rivers.

Maintaining the Status Quo for Allocations and Managing Overfishing. Despite thelengthy negotiations, few changes were made to the fishery regimes. In the end, theCommission retained the allocation quotas set in 1985, for example.101 The major

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changes made to the Annex IV management regimes addressed conservation concerns forchinook and coho. In addition, the Commission agreed on interpretation of the FraserRiver regime.

The Commission also began addressing the problems of "overages and underages"(the amount of chinook or coho caught over and under set harvest levels) and "associatedfishing mortalities" (chinook harvested while targeting on another species). The overagesand underages policy sets a 7.5 percent management range above and below a catchceiling. Deviations above a catch ceiling will accumulate on a continuing basis, and oncea party exceeds the 7.5 percent range it must take domestic management action in thenext year to return the cumulative deviation (plus any penalty assessed) to a level withinthe established management range. If, however, a party continually underfishes, devia-tions will not accumulate below the 7.5 percent range.102

Under the associated fishing mortality policy, the Chinook Joint Technical Com-mittees will analyze data provided by both parties to assess the impacts of mortalities onthe chinook rebuilding program and will suggest management actions to ensure that thechinook rebuilding program is met. Beginning in 1988, the parties must consider asso-ciated fishing mortalities when establishing fishing regimes, and may adjust harvestlevels accordingly.103

During the 1987 negotiations, the Commission also resolved a two-year dispute overlanguage in the Fraser River regime, which allocates 7 million sockeye to the UnitedStates for 1989-92. The United States interpreted this as a guarantee, whereas Canadaargued that 7 million was just a ceiling. The parties finally agreed that the 7 million is infact a guarantee and, if not met, the U.S. will be compensated in subsequent years.104

Transboundary Rivers: Deadlock. When the Commission adjourned its 1987 negotiationmeetings on March 25, it still had not agreed on new terms for the Transboundary Riversregime. The Commission met in June 1987, but, once again, was unable to reach agree-ment. The stumbling block was the determination of harvest sharing levels on the Takuand Stikine rivers. Canada, which received 15 percent of the sockeye on the Taku and 35percent on the Stikine, pressed for a 7 percent increase in its take over seven years. TheU.S. commissioners were willing to allow some increase in the Canadian harvest, but notthe proposed 7 percent. This time when the Commission adjourned without an agree-ment, Canada threatened to harvest more than allowed under the treaty, raising thespecter of another "fish war."105

1988: A Model Agreement for Transboundary Rivers

The 1988 negotiations were markedly less contentious than those of 1987, in part becausenone of the fishery regimes was open for renegotiation. Thus the Commission made onlyminor amendments to the fishery regimes in response to conservation concerns andagreed on several implementation issues, including (1) measures under the BoundaryArea regime, (2) protection of depressed chum salmon stocks originating in PortlandCanal streams, and (3) identification of possible measures to rebuild those stocks.106 TheCommission also established pre- and in-season consultation over coho fisheries in thenorthern Puget Sound/Strait of Juan de Fuca area, in order to determine whether thestatus of stocks requires restrictions on directed coho fisheries.107 Finally, the Commis-sion agreed to a payback policy for the Fraser River regime, which requires each party'sannual allocation to be adjusted for overages or underages from the prior year's alloca-

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tion, up to a 5 percent reduction. The balance of overages and underages exceeding 5percent will be paid back in subsequent years.108

The Commission's major achievement, however, was reaching an agreement on theTransboundary Rivers regime. Hailed by both countries as "precisely the type of mutualproblem solving that this Commission was created to achieve,"109 the agreement estab-lishes a five-year joint sockeye salmon enhancement program for the Taku and Stikinerivers. Under the agreement, sockeye eggs will be collected from the Canadian portionsof the rivers, reared in incubation facilities in southeast Alaska, and then returned to theirnative streams. The two countries will share in harvesting the returning adults.110

An Evaluation of Treaty Implementation

The Pacific Salmon Treaty's first three years of implementation have been marked byboth frustration and success. The Commission has experienced normal "growing pains"as the parties seek to establish the most efficient procedures and working arrange-ments.111 The Commission has also experienced significant frustration in applying thetreaty's twin governing principles of conservation and equitable allocation.112

The equity principle, which promises that each party is to receive compensation equalto the salmon originating in its waters, has caused particular implementation problems.When the treaty was signed in 1985, the parties agreed to implement the equity principlein a phased approach, since more data must be gathered to calculate equity accurately.113

Fishers who feel they aren't getting enough fish and want to increase their allocation,however, invoke "equity" as a debating point. Intercepting fishers counter that the treatyalso prohibits "undue disruption" of existing fisheries, and therefore their allocationshould not be altered. Thus the frustrating win-lose allocation battles begin, and long-term equity is subverted by short-term allocations.

Such contentious discussions over allocations dominated the 1987 renegotiation ofTreaty fishery regimes. In 1989 the terms of all six of the treaty's fishery regimes will berenegotiated. To avoid the problems encountered in 1987, the Commission should adopta long-term fishery management perspective.

The Need for Long-Term Goals

Both because fishing is big business and because user groups are represented on both theCommission and its panels, most of the Commission's attention at its annual negotiationshas been spent on allocations.114 In the past three years, the Commission has developedseveral policies related to allocations. Overage and underage policies have been adoptedfor chinook, coho, and Fraser River sockeye and pink salmon,115 an associated mortalitypolicy was adopted for chinook,116 and questions over the U.S. allocation under theFraser River regime have been resolved.117 Allocations address only short-term concerns,however, and fail to consider long-term production issues. In setting allocations, theparties negotiate over a seemingly fixed resource, competing in a zero-sum game.

This competition became extremely intense during 1987, when the Commission rene-gotiated the terms of the fishery regimes for the first time and reached a deadlock over theTransboundary Rivers regime.118 The Transboundary Rivers dispute was not resolved fora year, but the final agreement includes a long-term joint enhancement program, in addi-tion to setting short-term allocation. Joint enhancement provides a means to increase theresource, thus creating more fish for both parties over the long term—a win for both

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parties. More long-term solutions like the Transboundary Rivers agreement are needed toimplement the treaty effectively.

The treaty calls on the parties to prevent overfishing and provide for optimum produc-tion, and each party has its own long-term fishery plans to meet both of those goals. TheCommission should adopt a long-term plan for managing intercepting fisheries, includingtargets for increased production and measures to help each party to achieve its own con-servation and production objectives. A long-term plan with identified goals will serve asan important yardstick against which the Commission, fishermen, and observers canmeasure the success of Commission activities, and will also provide the framework forincreased cooperation in managing intercepting fisheries.

Long-Term Research Needs

Application of the treaty's principles requires accurate data on the status of stocks, actualharvest levels, the extent of interception, and each party's fisheries production. This typeof information was either incomplete or nonexistent for many fisheries when the treatywas signed in 1985.

In 1986 the Commission contracted two consultants experienced in treaty negotiationto help identify the kind and extent of information necessary to implement the treaty bothin the short and the long term.119 Preseason forecasts and fishing plans, in-season man-agement, and postseason harvest are needed for short-term allocations, whereas determi-nation of harvesting and enhancement goals is a long-term activity. The consultants notedthat research had been directed primarily at short-term issues, particularly stock identifi-cation. The consultants strongly suggested that the Commission adopt a program forlong-term research issues and begin focusing research efforts on production.120 Althoughthe Commission's Standing Committee on Research and Statistics officially accepted theconsultant's report,121 to date this report has been largely ignored.122

Habitat Protection

An important aspect of long-term conservation and enhancement is habitat protection.Habitat destruction has taken a significant toll on salmon runs in the Pacific Northwest'stwo most productive rivers, the Fraser River in Canada123 and the U.S. portion of theColumbia River.124 In addition, current logging practices, irrigation, and other forms ofpollution and development activities threaten salmon habitat and can produce future de-clines in salmon runs.125

Although it does not contain an express habitat provision, the treaty implicitly re-quires habitat protection. Its conservation principle generally requires the parties to pro-vide for optimum production of stocks.126 More specifically, the parties agreed to a pro-gram to rebuild devastated chinook stocks.127 The positive effects of harvest limits andenhancement operations, designed to meet the treaty's conservation goals, can bethwarted by habitat destruction. In order to ensure optimum production and rebuilding ofchinook stocks, as well as to protect each party's investments in enhancement measures,the Commission should begin to develop a policy for habitat identification and moni-toring.

Recognizing the importance of habitat to salmon production, two U.S. fisheries man-agement entities have recently adopted habitat protection measures. First, in 1986 Con-gress amended the Magnuson Fishery Conservation and Management Act to require re-

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gional fishery councils to assess the effect of changes in habitat on fishery resources andto include information on such effects in the councils' management plans. The amend-ment also authorized the councils to comment on state and federal activities affectingfishery habitat.128 Second, in August of 1988 the Northwest Power Planning Councilamended its Fish and Wildlife Program to designate approximately 44,000 miles of crit-ical salmon habitat as protected from future hydroelectric development.129

Whereas the Commission does not have authority to prohibit development activities,it can influence development decisions by assessing habitat needs and commenting onproposed development activities.130 The treaty contemplates consultation and com-menting on activities that affect habitat. Article II, paragraph 8 states: "[t]he Commis-sion may make recommendations to or advise the Parties on any matter relating to theTreaty." Since optimum production is one of the treaty's goals,131 and habitat degrada-tion affects fishery production, habitat protection is clearly a matter which relates to thetreaty. The Commission should, therefore, establish a policy to assess and monitor hab-itat and comment on proposed activities that may threaten existing salmon habitat.

It is conceivable that the treaty, which imposes obligations132 on the governments ofboth countries to rebuild depressed stocks and provide for optimum production, could bejudicially interpreted to require habitat protection. Other treaties have been so interpretedrecently. For example, treaties with Indian tribes in both the United States and Canada, inwhich the tribes reserved a right to fish, have been construed to include an implied rightto habitat protection. Courts in both countries have concluded that the right to fish in-cludes the right to protect the fish from destruction, holding that proposed developmentactivities cannot threaten fish habitat133 and imposing measures to mitigate the effects ofon-going activities.134 In addition, although yet untested, the Migratory Bird Treaty,135

which prohibits killing certain migratory birds, arguably includes an implied habitat pro-tection requirement.136 Similarly, the Pacific Salmon treaty may be interpreted to includea habitat protection requirement. For without adequate spawning and rearing grounds, thetreaty's promise of optimum production and restored salmon runs cannot become a re-ality.

Conclusion

The Pacific Salmon Treaty represents the culmination of over 15 years of negotiationsbetween the United States and Canada to resolve the problems associated with inter-cepting fisheries. However, the treaty is not an end in itself. Rather, it establishes aframework for the parties to manage their intercepting fisheries jointly.

The treaty's conservation and equity principles contemplate long-term solutions tomanagement problems by increasing the total fishery resource and gathering data onstocks eventually to calculate with accuracy each party's equitable allocation. However,short-term allocation issues have dominated the Commission's first three years of treatyimplementation. Focusing only on dividing up the fishery resource pie produced frustra-tion and disappointment in the Commission's 1987 renegotiation of the treaty's fisheryregimes and deadlock over the Transboundary Rivers regime. The dispute over trans-boundary rivers was resolved only when the parties agTeed to a long-term solution—in-creasing the resource through a joint enhancement program.

To avoid repeating the frustrations experienced at the 1987 negotiations, the Com-mission must look at more long-term solutions to management problems. Specifically,the Commission should establish goals for increasing fishery production and establishinga policy to ensure protection of salmon habitat.

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Despite the problems faced over the past three years, the parties—and the fish—farebetter under the treaty than without it. Thus the parties must continue to work together toachieve the treaty's promise of abundant salmon runs and viable fisheries for all parties.

Acknowledgments

The author thanks Professor Michael C. Blumm and Thomas C. Jensen for their assis-tance.

Notes1. See Jensen, The United States-Canada Pacific Salmon Interception Treaty: An Historical

and Legal Overview, 16 Envtl. L. 363, 369-370 (1986); Wilkinson and Conner, The Law of thePacific Salmon Fishery: Conservation and Allocation of a Transboundary Common Property Re-source, 32 U. Kan. L. Rev. 17, 23-26 (1983).

2. Generally, salmon spawned in southern areas migrate northward to the Gulf of Alaska tofeed and grow before returning to their natal streams. See Wilkinson and Conner, supra note 1, at25.

3. The treaty defines "interception" as "the harvesting of salmon originating in the waters ofone Party by a fishery of the other Party." Treaty Between the United States of America and theGovernment of Canada Concerning Pacific Salmon, Jan. 28, 1985, Treaty Doc. No. 99-2 (entered1into force, Mar. 18, 1985) [hereinafter Pacific Salmon Treaty], at art. I, para. 4.

4. See Jensen, supra note 1, at 369-371. Salmon are a classic example of the tragedy of thecommons, See Wilkinson and Conner, supra note 1, at 21; see generally Hardin, The Tragedy ofthe Commons, in Managing the Commons 16 (Hardin and Baden, ed. 1977).

5. See Jensen, supra note 1, at 369-372. Each country was concerned that the fish producedwith its dollars would benefit fishers of the other country. In other words, the foreign fishermenwould take a "free ride" at the other country's expense. See generally Demsetz, Toward a Theoryof Property Rights, 57 Am. Econ. Rev. 347 (1970).

6. It is estimated that Indians on the Columbia River (once the most productive river on thecoast) harvested more than the total amount of salmon taken today by Indians, commercial andsport fishermen combined. See Wilkinson and Conner, supra note 1, at 28.

7. Id. at 31-32. Overharvesting and waste at canneries was rampant during the late 19thcentury. The first cannery on the Columbia River began operation in 1866. By 1883 40 cannerieson the Columbia packed nearly two-thirds of the total Pacific Coast salmon harvest. Fishermencaught as many fish as they could handle and sold them to the canneries. If a cannery could notprocess all of the harvested fish, the dead fish were simply dumped back in the river. By 1894canneries had caused a serious decline of salmon stocks, some nearly to the point of destruction. Id.at 30-33.

8. See generally Wilkinson and Conner, supra note 1, at 33-34.9. Id. at 81.10. Id. at 34, 82.11. Coastal trolling began in 1912; by 1920, the fleet numbered over 1,000 vessels. See

O'Brien, Undercurrents in International Law: A Tale of Two Treaties, 9 CAN.-U.S. L.J. 1, 15(1985).

12. The Fraser River is the most productive salmon spawning river in Canada. See Conner,The Troubled Pacific Salmon Treaty: Why It Must Be Ratified, 24 Ocean Law Memo 1, 2 (Sept.1983).

13. See Jensen, supra note 1, at 373. In 1918 the commercial catch was on'y thirteen percent ofthe 1914 catch. Id. at 373 n. 23.

14. Convention for the Protection, Preservation, and Expansion of the Sockeye Salmon Fisheryin the Fraser River System, United States-Canada, May 26, 1930, 50 Stat. 1355, T.S. No. 918(entered into force, July 28, 1931) [hereinafter Fraser River Convention]. Ratification took an

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additional seven years. Objections to the convention came from U.S. fishers (in Puget Sound), whoare dependent on Fraser River stocks. U.S. fishers caught a larger share of Fraser stocks and wereunwilling to share equally with the Canadians. However, in 1935 Washington state imposed strictfishing regulations that resulted in an increased Canadian harvest of Fraser stocks. U.S. fishermenthen dropped their opposition to the treaty, and Congress ratified it in 1937. See Jensen, supra note1, at 374 n. 24.

15. Fraser River Convention, supra note 14, at art. III.16. Id. at art. VII.17. Id. at art. II. The Commission was commonly known as the "Sockeye Commission."18. Id. at art. IV-V.19. See Wilkinson and Conner supra note 1, at 58 n. 224.20. See Conner, supra note 12, at 3.21. See infra note 24 and accompanying text.22. A fish "war" is the deliberate overharvesting of a fish stock by one group to prevent

another group from taking any of the stock. No one wins a fish "war," however, since overhar-vesting results in reduced spawning escapements which leads to reduced runs in subsequent years.See Jensen, supra note 1, at 372 n. 18.

23. Id. at 375.24. Protocol between the Government of the United States and the Government of Canada to

the Convention for the Protection, Preservation and Extension of the Sockeye Salmon Fisheries inthe Fraser River System, Dec. 28,1956, 8 U.S.T. 956, T.I.A.S. No. 3867 (entered into force, July3, 1957).

25. Convention waters were those adjacent to British Columbia and the State of Washington,including the Strait of Juan de Fuca, the Strait of Georgia up to Lasqueti Island, and the FraserRiver as far as Mission, B.C. Note, Accommodation of Indian Treaty Rights in an InternationalFishery: An International Problem Begging for an International Solution, 54 Wash. L. Rev. 403,409 at n. 19(1979). (The technical description of convention waters can be found at Article I of theFraser River Convention.)

26. Agreement Between the Government of the United States of America and the Governmentof Canada on Reciprocal Fishing Privileges in Certain Areas off Their Coasts, Apr. 24, 1970, 21U.S.T. 1283, T.I.A.S. No. 6879. The agreement was extended in 1973, but the extended agree-ment cut back on areas in which trolling was allowed and prohibited both countries from initiatingnew intercepting fisheries without first consulting the other country. Agreement Between the Gov-ernment of the United States of America and the Government of Canada on Reciprocal FishingPrivileges in Certain Areas off Their Coasts, June 15, 1973, 24 U.S.T. 1729, T.I.A.S. No. 7676.The agreement was revised again in 1977, committing the countries to "preserving existing pat-terns of their reciprocal fisheries." Agreement Between the Government of the United States ofAmerica and the Government of Canada on Reciprocal Fishing Privileges in Certain Areas offTheir Coasts, Feb. 24, 1977, 28 U.S.T. 5571, T.I.A.S. No. 5648.

27. See Jensen, supra note 1, at 380.28. The Magnuson Fishery Conservation and Management Act extended the U.S. fishery zone

to 200 miles. 16 U.S.C. §§ 1801-1882. Effective January 1, 1977, Canada also extended itsfishery zone to 200 miles, through a measure substantially similar to the Magnuson Act. SeeSynopsis, Recent Developments in the Law of the Sea 1976-1977, 14 San Diego L. Rev. 718, at n.31 (1977).

29. See Jensen, supra note 1, at 379.30. Id. at 381.31. Dam construction on the Columbia River began in the 1930s with the completion of the

Rock Island and Bonneville Dams. Today there are 30 dams on the river. It is estimated the hydrooperations are responsible for the loss of 5-11 million salmon in the Columbia River Basin. SeeNorthwest Power Planning Council, Staff Issue Paper on Hydropower Responsibility for Salmonand Steelhead Losses in the Columbia River Basin (Apr. 1986).

32. United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), aff'd, 500 F.2d 676

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(9th Cir. 1975), cert, denied, 423 U.S. 1086 (1976), substantially aff d sub nom. Washington v.Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979). The "Boldtdecision" held that the treaty Indian tribes are entitled to 50% of the harvestable catch that passtheir usual and accustomed fishing grounds. See 384 F. Supp. at 343.

33. See Jensen, supra note 1, at 382-383.34. Id. at 383-84.35. See supra note 31.36. See Jensen, supra note 1, at 388.37. The draft treaty was nearly identical to the version that was ratified.38. See Conner, supra note 12, at 6-7 .39. For a discussion of the Alaska position, see Stevens, United States-Canada Salmon Treaty

Negotiations: The Alaskan Perspective, 16 Envtl. L. 423 (1986); see also Conner, supra note 12, at5-8 .

40. See Stevens, supra note 39, at 424.41. See Jensen, supra note 1, at 395. See supra note 21 for an explanation of a "fish war."42. The vehicle was Confederated Tribes and Bands of the Yakima Indian Nation v. Baldridge,

605 F. Supp. 833 (W.D. Wash. 1985).43. See 605 F. Supp. at 835.44. See infra note 76 and accompanying text.45. In implementing the treaty, the parties must also take into account the conservation of

steelhead. Steelhead are not subject to targeted intercepting fisheries, but are often incidentallyharvested. Pacific Salmon Treaty, supra note 3, at art. IX.

46. Pacific Salmon Treaty, supra note 3, at art. III.47. The second treaty principle is actually an adaptation of the "state-of-origin" principle. See

supra note 28 and accompanying text.48. See Memorandum of Understanding accompanying the Pacific Salmon Treaty at para. A.49. Pacific Salmon Treaty, supra note 3, at art. III, para. 3.50. Id. at art. IV.51. Id. at art. X.52. Id. at art. V.53. Id. at art. XI.54. Id. at art. VII. The Board's findings are final and must be accepted by the Commission as

the best scientific information available. Id. at para. 2. Rules of procedure have not yet beenadopted for the Board. See Bylaws of the Pacific Salmon Commission (Sept. 1985) at 14.

55. Pacific Salmon Treaty, supra note 3, at art. II.56. Id. Alternates are designated for each Commissioner, making a total of sixteen Commis-

sioners. See 16 U.S.C. § 3632(b) (Supp. III 1985).57. Inclusion of a representative from the treaty tribes is a recognition that the tribes, who are

entitled to 50 percent of the fish that pass their usual and accustomed fishing grounds, are coman-agers with the states with regard to the salmon resource. See Yanagida, The Pacific Salmon Treaty,81 Am. J. Int'l L. 577, 583-584 (1987).

58. See 16 U.S.C. § 3632(2)(a) (Supp. III 1985). The Commissioners are recommended by thestates and tribes and appointed by the President for four-year terms. Id.

59. See 16 U.S.C. § 3633(a)(2) (Supp.III 1985).60. Id. at Annex I.61. The Fraser Panel replaced the IPFSC. See infra note 86 and accompanying text.62. Pacific Salmon Treaty, supra note 3, at Annex I.63. Alternates may be appointed for each panel member. See 16 U.S.C. § 3632(3)(f) (Supp. III

1985).64. Id.65. Pacific Salmon Treaty, supra note 3, at Annex IV.66. See infra note 70 and accompanying text.67. See Pacific Salmon Treaty, supra note 3, at art. II, para. 19.

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68. Consensus is the rule for Commission decision making. Each section has one vote anddecisions or recommendations require agreement of both parties. See Pacific Salmon Treaty, supranote 3, at art. II, para. 6. In addition, U.S. section decisions are made by consensus. See 16 U.S.C.§ 3632(g)(i). For a discussion of the advantages and disadvantages of the consensus rule. SeeYanagida, supra note 57, at 585-586.

69. Id. at Annex IV, ch. 7.70. The specific charge to each Joint Technical Committee varies with each regime.71. Pacific Salmon Treaty, supra note 3, at art. III, para. 3.72. See Jensen, supra note 1, at 388-393.73. In 1978 federal fisheries agencies initiated the process to list a number of Columbia River

runs for protection under the Endangered Species Act. See Bodi, Protecting Columbia RiverSalmon Under the Endangered Species Act, 10 Envtl. L. 349 (1980).

74. Pacific Salmon Treaty, supra note 3, at Annex IV, ch. 3. At the conclusion of the re-building program, the parties are to ensure optimum production and fair allocation. Id. at para.(D(g).

75. Actually, the parties began the rebuilding program in 1984, before the treaty was signed.To achieve rebuilding, escapement levels were set for a number of fisheries, and total chinookharvests in southeast Alaska and northern and central British Columbia were capped at a level tomeet escapement levels. The regime requires the benefits of these reduced harvests to accrue tospawning escapement. Adjustments to catch ceilings can be made either upon the recommendationsof the Joint Technical Committee after annual evaluation of the status of stocks or to allow a party ahatchery add-on. Id. at para. (l)(d)(iv), (c)(ii), 2.

76. Id. at para. 2. This provision was added in order to offset the treaty's nearly 25 percentreduction in the southeast Alaska chinook harvest. Alaska has been able to make accurate pre-season estimates of its hatchery production and has thus received an "add-on" each year since1985.

77. The parties agreed to reduce interceptions of chum salmon in the Portland Canal area,collect data, and identify possible measures to restore and enhance those stocks. See PacificSalmon Treaty, supra note 3, at ch. 2, para 1. The Annex also sets ceilings for United Statesharvest of sockeye salmon: The U.S. Noyes Island purse seine fishing in District 4 is limited to afour-year total catch of 480,000 prior to U.S. statistical week 31 (about the third week in July). TheU.S. Tree Point drift gillnet fishery in District 1A and 1B is to average 30,000 fish per year.Finally, the annex sets the ceilings for Canadian harvest of pink salmon. The net fishery in Areas3 - 1 , 3-2 , 3 - 3 , 3-4, and 5-11 is limited to an average of 900,000 during 1985-88. The trollfishery in Area 4 is limited to 1,000,000 for 1985-86. However, in any year if the pink salmoncatch reaches 300,000 in areas north of 54° 35' north, that area will be closed.

78. Id. at Annex IV, ch. 6, para. 1.79. Id. at art. 1, para. 7.80. International Convention for the High Seas Fisheries of the North Pacific Ocean, United

States-Canada-Japan, May 9, 1952, 4 U.S.T. 380, T.I.A.S. No. 2786.81. Pacific Salmon Treaty, supra note 3, at art. VIII.82. Id. at art. VIII, para. 3; see also Memorandum of Understanding accompanying the Pacific

Salmon Treaty, at para. C. In 1985 the parties began negotiations to (1) account for U.S. harvestsof Canadian-origin salmon, (2) develop cooperative research and enhancement, and (3) establish anorganizational structure to address Yukon River stocks.

83. Id. at Annex IV, ch. 1, para. 7.84. On the Stikine, the Canadians are allowed to take 35 percent of the total catch of sockeye

originating in the Canadian portion of the river or 10,000 sockeye, whichever was greater. Inaddition, the treaty allows Canada to harvest 2,000 Stikine coho. As part of the chinook rebuildingprogram, the parties must ensure an escapement of 19,800-25,000 to the Canadian portion of theriver by 1995. Id. at para. 3(a)(i)-(iii).

On the Taku, Canada is allowed 15 percent of the total allowable catch of sockeye. Id. at3(b)(i). In addition, Canada may take chinook, pink, chum, and coho as incidental catch of the

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targeted sockeye fishery. The parties must assure escapement of 25,600-30,000 chinook. No spe-cific catch levels are designated for the Alsek. Instead, the parties agreed to ensure necessaryescapement for chinook and early run sockeye, both of which were depressed stocks when thetreaty was signed in 1985.

85. See supra note 23 and accompanying text.86. See Pacific Salmon Treaty, supra note 3, at Annex IV, ch. 4, para, (a)-(b).87. In contrast to the IPFSC, which set only preseason estimates, the Fraser Panel makes run

size and harvest estimates in-season as well as pre-season. Pre- and in-season adjustments must beagreed to by both parties.

88. The 7 million is distributed over the four years to reflect annual variations in run sizes.89. On the Fraser and Washington streams, pink salmon run only in odd-numbered years.90. Pacific Salmon Treaty, supra note 3, at Annex IV, ch. 4, para. 1.91. Pacific Salmon Treaty, supra note 3, at Annex IV, ch. 4, para. 1.92. The treaty does not specify whether the payback will be all in one year or spread over

several years.93. Pacific Salmon Treaty, supra note 3, Annex IV.94. See Letter to The Honorable George P. Schultz from Don W. Collinsworth (Mar. 23,

1986) at 1.95. Id.; see also Pacific Salmon Commission, 1985/86 First Annual Report, at 16.96. The Canadian coho catch off the West Coast of Vancouver Island was approximately

326,000 less than the 1.75 million limit set in Annex IV. See Pacific Salmon Treaty, supra note 3,at Annex IV, ch. 5, para. 4(a). The Commission decided to address compensation for this shortfallin 1987 and beyond, rather than in 1986. The Fraser panel calculated an overage in the CanadianFraser River sockeye catch of approximately 107,000. The Commission agreed that the paybackwould occur in 1986. See Letter to Geroge P. Schultz, supra note 94, at 3 -5 .

97. The Commission directed the chinook Joint Technical Committee to assess the impact ofinduced mortalities on the chinook rebuilding program and appointed a work group to identifymeans to address overages and underages from catch ceilings. Id. at 5.

98. Id.99. When the treaty was signed in 1985, the parties agreed to two four-year regimes for the

Fraser, so the terms of that regime will not expire until 1993. However, the parties may consideradjusting the regime in 1989. See Pacific Salmon Treaty, supra note 3, at Annex IV, ch. 4, para.Kg).

100. The Commission's annual meeting was held in Seattle, Feb. 21-Mar. 1, 1987. Themeetings ended in deadlock, and all proposed fishery regimes were tabled. The Commission heldadditional meetings on March 23-24 and did not complete its business until March 25.

101. See Letter to The Honorable George P. Schultz from C. Wayne Shinners (Mar. 25,1987).

102. 1987 Annex, at ch. 3, para. (d)(vii); ch. 5, para (g).103. Id. at ch. 3, para. (d).104. See Pacific Salmon Commission, 1986/87 Second Annual Report at 9-10.105. See Anchorage Daily News, June 14, 1987, at C7.106. See Letter to Secretary of State George P. Schultz from S. Timothy Wapato (Feb. 19,

1988) at Attachment 1, p. 10.107. Id. at 5.108. Id. at 4 - 5 .109. See Pacific Salmon Commission, News Release (Feb. 25, 1988) at 1.110. See Letter from S. Timothy Wapato to Sec. of State (Feb. 19, 1988).111. See Pacific Salmon Commission, Draft Report of the Working Group on Procedural

Reform (July 24, 1987); see also Todd and Jensen An Assessment of the Pacific Salmon Commis-sion's First 3 Years: Frustration and Disappointment But Optimism for the Future, 47 AnadromousFish L. Memo (Nat'l. Resources L. Inst.) 13, 14 (Dec. 1988).

112. See supra notes 46-47 and accompanying text.

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113. See supra note 48 and accompanying text.114. See Todd and Jensen, supra note 111.115. See supra notes 102 and 108 and accompanying text.116. See supra note 103 and accompanying text.117. See supra note 104 and accompanying text.118. See supra notes 104-05 and accompanying text.119. Natural Resource Consultants, Technical Information Requirements for Effective Imple-

mentation of the Canada/United States Treaty Concerning Pacific Salmon (Oct. 1986). The twoconsultants, M.P. Shephard and Dr. D.L. Alverson, specialize in fishery management issues.

120. See Report at 3-4.121. See Pacific Salmon Commission, 1986/87 Second Annual Report, at 17.122. Telephone conversation with T. Jensen, Deputy Executive Secretary, Pacific Salmon

Commission (Nov. 22, 1988).123. See supra notes 12-13 and accompanying text.124. See Blumm, Hydropower vs. Salmon: The Struggle of the Pacific Northwest Anadromous

Fish Resources for a Peaceful Coexistence With the Federal Columbia River Power System, 11Envtl. L. 211 (1981).

125. See generally R.J. Childerhose and M. Trim, Pacific Salmon 49-74 (1979); see alsoNorthwest Power Planning Council, Staff Compilation of Salmon and Steelhead Losses in the Co-lumbia River Basin (Mar. 1986).

126. Pacific Salmon Treaty, supra note 3, at art. III, para. l(a).127. See supra notes 74-75 and accompanying text.128. See Kennedy, The 1986 Habitat Amendments to the Magnuson Act: A New Procedural

Regime for Activities Affecting Fisheries Habitat, 18 Envtl. L. 339 (1988).129. See Northwest Power Planning Council, Protected Areas Amendments and Response to

Comments (Sept. 14, 1988).130. See, e.g., Kennedy, supra note 128, at 9-10.131. Pacific Salmon Treaty, supra note 3, at art. III.132. Under the Supremacy Clause of the U.S. Constitution, art. VI, cl. 2, treaties may over-

ride conflicting state laws. See Missouri v. Holland, 252 U.S. 416 (1920) (Migratory Bird TreatyAct, which prohibits killing certain migratory birds, is binding on states).

133. See Claxton v. Saanichton Marina Ltd., 4 C.N.L.R. 48 (B.C.S.C. 1987) (enjoining con-struction of marina that would harm Indian fishery); No Oil Port! v. Carter, 520 F. Supp. 334(W.D. Wash. 1981) (ordered trial on the issue of whether proposed northern tier pipeline's rivercrossings would impair fish habitat); United States v. Washington (Phase II), 506 F. Supp. 187(W.D. Wash. 1980), vacated on other grounds, 459 F.2d 1353 (1985).

134. Kittitas Reclamation Dist. v. Sunnyside Valley Irrigation Dist., 763 F.2d 1032 (9th Cir.1985) (affirming district court order to release water from Bureau of Reclamation dam to preservesalmon redds threatened by low water flows at the end of the irrigation season).

135. 16 U.S.C. §§ 703-712.136. See Comment, Toxic Pollution at Kesterson Reservoir: The Law Fails to Avert a Tragedy,

15 Envtl. L. Rev. 10, 386, 10, 390-391 (1985) (discussing the Dept. of Interior's conclusion thatcontinuous drainage of toxic substances into wildlife refuge violated the Migratory Bird TreatyAct's prohibition against killing certain birds).

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