Warren E. Burger: We’ll hear arguments first this morning in No. 67original, the State of Idaho and others against the States of Oregon and Washington. Mr. Attorney General, you may proceed whenever you are ready.
Wayne L. Kidwell: Mr. Chief Justice, may it please the Court, Attorney General Gorton, Attorney General Johnson, gentlemen. We are asking this Court to grant our motion for leave to file our complaint under the provision of the Constitution granting original jurisdiction, because we are facing what we consider in the Northwest a problem of monumental importance, of nationwide importance. We’re talking about the anadromous fish runs, the anadromous fish, a migratory fish that is born in freshwater, eventually makes its way to the sea, living from one to four years in the sea, and then, if possible, returns to the place of its birth to spawn. The problem is the 900 miles that these fish may travel has (sic) many hazards. We recognize there are other hazards than we’re going to address ourselves hereto today. Obviously, we have dams; there are eight of them over the part of the Columbia River Basin that we’re talking about today. They certainly take their toll. The nitrogen super-saturation, the slack water, the pollution. There are some factors:  heavy sports fishing and commercial fishing. The problem is that the anadromous fish, after they leave the ocean, go through two states; but over half of them spawn in the State of Idaho. And the anadromous fish are governed by a Compact that was passed by the States of Oregon and Washington in 1915, ratified by the United States Congress in 1918, of which only the two States are members. Idaho has not had a voice. It’s not because the State of Idaho has not attempted to have a voice. As far back as 1937, the United States Fisheries Commission recommended then that Idaho be made a member of the Columbia River Fish Compact. Negotiations were started. They continued for many, many years. As recently as 1968, the governors of the three States convened a meeting to discuss the anadromous fish in the Pacific Northwest, and the governors of these three States did recommend that Idaho become a member; however, nearly 40 years now have elapsed since the Compact was first entered into, and Idaho is still not a member. The problem is, if Idaho were a member, we feel that the problem would not be as acute and critical as it is. If we are allowed to file our complaint, we can show by competent evidence that in many instances, the fish runs themselves have been depleted by as much as 80%. This anadromous fish cycle is a unique ...
William H. Rehnquist: Is there some reason why membership has not been achieved?
Wayne L. Kidwell: Your Honor, I guess I would have to blame politics. Many of the leaders of the States have expressed their desire and willingness to have Idaho made a member, but the State Legislatures have never gotten around to admitting the State of Idaho.
William H. Rehnquist: Mr. Attorney General, if you are admitted, is that the end of your problem?
Wayne L. Kidwell: No, sir, it is not. If we are admitted to the Columbia River Fish Compact, that’s only Step 1. There would be three States then, if we were given an equal voice, the problem would arise that Idaho would have interests that are somewhat different than Oregon and Washington, and there is certainly the danger of our being outvoted two to one and we would maintain the status quo, and nothing would change. So we are asking this Court to grant us admission to the Columbia River Fish Compact. Now, I recognize --
William H. Rehnquist: By what authority do you have, General Kidwell, for this Court's power to grant you what you want?
Wayne L. Kidwell: Justice Rehnquist, I was going to point out that I recognize that there has been no case, at least that we have been able to find, whereby this Court could say directly that we would be entitled to become a member; however, there is considerable authority, Your Honor, that this Court is the final say-so on the politity and operation and fairness of interstate compacts. So we would urge either that this Court take the unprecedented step of saying that Idaho should be a member, or achieve the same result by saying that those portions of the Compact that deny Idaho its fair share, its apportionment, of the anadromous fish be declared invalid so far as the operation of the Compact is concerned.
William H. Rehnquist: What authority do you rely on for this Court’s power to review what you call the fairness of a Compact that has been entered into by the two States and ratified by Congress?
Wayne L. Kidwell: Your Honor, probably the most clear expression by this Court would be a fairly recent case, Nebraska versus Iowa at 406 U.S, Your Honor, where the Court then was not reviewing a fish compact, but it was a compact between two States concerning itself with the river boundaries between the two States.
William H. Rehnquist: And had that been ratified by Congress, that compact?
Wayne L. Kidwell: Yes, Your Honor, it had been.
William J. Brennan, Jr.: Well, you're asserting right now no more right than you would assert if there had been no Compact at all, namely, if you suggest that this Court apportion the anadromous fish in the river among the States just as though we were operating on a stream.
Wayne L. Kidwell: That’s essentially correct, Your Honor.
William J. Brennan, Jr.: And that if you're right, if you’re entitled to a portion of those fish runs, if Idaho is, then the agreement between two other States isn’t about to deprive you of it. That's your position, I take it.
Wayne L. Kidwell: Yes, Your Honor. The problem is that the fish, when they are attempting to return to Idaho to spawn, are taken from the Columbia River through many other factors; but commercial fishing is one way that we feel if Idaho were in that we could attempt to cut back. What we are asking for is, one, to become a member of the Compact and, secondly, for this Court to apply, for want of a better word, I’ll call it equitable apportionment, recognizing that this Court has applied that in water cases and applying it to this --
William J. Brennan, Jr.: Well, your second argument is independently of the Compact.
Wayne L. Kidwell: Yes, Your Honor, it is.
William J. Brennan, Jr.: Well, now, I still don’t understand your first one. Nebraska and Iowa, after all, held only that a Compact could be construed by this Court.
Wayne L. Kidwell: Yes, Your Honor.
William J. Brennan, Jr.: That’s all, and that’s not the issue on the -- you want to have Idaho made a party member to the Compact, isn’t that it? But how can under the ... that requires, I thought, the voluntary consents of the States and the approval by the Congress.
Wayne L. Kidwell: Justice Brennan, the reason I cited Nebraska versus Iowa is only to point out that this Court has said that they are the final arbiter, that you are the final arbiter.
William J. Brennan, Jr.: As to the meaning of a Compact.
Wayne L. Kidwell: As to the meaning of a Compact; and if this Compact, if it were determined by the proof that the Compact itself was depriving Idaho of substantive rights in this natural resource, then the Court could declare it invalid insofar as it takes these rights from the State of Idaho.
William J. Brennan, Jr.: You know, as a remedy, you don’t need anything more than the declaration of -- if you have it, the declaration of your right to these fish runs and enjoining anybody else who interferes with it.
Wayne L. Kidwell: That’s correct, Your Honor. That's correct.
William H. Rehnquist: Is there in the ... anywhere that would prevent you now, the State of Idaho, from being an original-jurisdiction suit against the other two States? Does the Compact bar you?
Wayne L. Kidwell: No, Your Honor, the Compact does not bar us, and at this point we felt that the most appropriate remedy and after much discussion would be to come to this Court with this type of original-jurisdiction case.
William H. Rehnquist: What if Congress did not approve it? Where would you be?
Wayne L. Kidwell: Your Honor, there is always that hazard. We do feel, however, that last year H.R. 200, which was passed by the Congress, which regulated the fishing three miles out, out to 200 miles out, specifically recognized the State of Idaho as having a voice in a Congressional discussion then concerning the anadromous fish, indicated that if there were the question of ratification up now of the original Compact that it is very likely they would not approve it without Idaho being made a member because of the danger of extinction of these fish, of the anadromous fish themselves.
Potter Stewart: Now the Assistant General has represented that the State of Oregon has agreed to your joining the Compact and that the State of Washington was on its way to agreeing to it, one of its Houses having enacted the necessary legislation or passed the necessary resolutions, and then the term of the Legislature ended, but that there is every possibility that the State of Washington will do so early next year. Do you agree with that as just a matter of fact?
Wayne L. Kidwell: Justice Stewart, if, in fact, the problem would become moot sometime in the future, Idaho would be first in line to ask to dismiss this case. We have been looking at it for 40 years. The State of Oregon, finally through their Legislature, did pass a version of a Compact after we had filed this motion for leave to file our complaint. Even with this pending, the State of Washington was not able to pass both Houses the Compact itself. So if both States would admit Idaho as a voting member of the Compact and if there were some way that the Compact would give Idaho a say-so in the anadromous runs or in the fish that are produced in our state, then the problem could become moot. But the argument now has been going on in this vein, Your Honor, for about 40 years, and nothing has happened.
Potter Stewart: Well, something has happened recently. Oregon has acted and one House of the Washington Legislature has acted, and it’s represented there is every prospect that both Bouses of the Washington Legislature will act soon after it convenes in January of ... next January.
Wayne L. Kidwell: Your Honor, there is an additional problem, however. The Compact as passed by the State of Oregon is not in the same form as proposed by the State of Washington and would purport to regulate all fishing, even on the headwaters and streams in the State of Idaho. My point being is that even now, there is no agreement between the two States as to what form a new Compact should take.
Potter Stewart: Incidentally, what has prompted this activity finally in Oregon and Washington, the filing of this complaint?
Wayne L. Kidwell: Your Honor, I think it would be unfair to completely characterize it as that; but from my standpoint, there was no Compact passed by the Legislature until after we had filed this motion and after about 40 years of discussion. It’s almost ten years since the Governors of the three States themselves agreed that Idaho should be made a member of this before anything has happened.
Thurgood Marshall: General Kidwell, as I understand it, you want two things:  you want Idaho to be written in as the member of the Compact, and to rewrite the Compact and, I assume, to compel Congress to approve it. You want us to do that, too?
Wayne L. Kidwell: Justice Marshall, obviously, I recognize that we cannot compel Congress to approve it.
Thurgood Marshall: Well, is there any difference in compelling Congress and compelling the States? That's your problem. You see, this Court can't compel the State, a sovereign state, to make a Compact with you.
Wayne L. Kidwell: Your Honor, that's -- Justice Marshall, that’s why I pointed out that I believe that this Court could achieve that by invalidating that portion of the Columbia River Compact that would deny Idaho its say-so.
Thurgood Marshall: Well, do we have to do that, or could we just have some type of action which would say that these two States cannot interfere with Idaho’s fish?
Wayne L. Kidwell: Your Honor, that in effect would do it. That’s the second part,the --
Thurgood Marshall: But that is not what you asked for.
Wayne L. Kidwell: Your Honor, we are asking for two things:  one, to be made a member of the Compact; recognizing the difficulties there, the second part is what I have entitled equitable apportionment or, in other words, giving us a right to our fair share of the fish commensurate with the amount of the fish produced in the State of Idaho.
Thurgood Marshall: May I ask one more question about the first part of the case, the Compact part? Is there any assurance that if Oregon and Washington both passed Legislation inviting you in that you’ll necessarily go in? Maybe the terms are not acceptable to you. I take it there is a variety of forms the Compact could take.
Wayne L. Kidwell: Yes, Your Honor, and that certainly is a problem. We recognize that that’s why the second part of our prayer for relief is essential, or the basic fairness or equitable apportionment, as we have called it. If Idaho were to be guaranteed a right to its share of the anadromous fish, that they would not interfere with the share of the fish, this in effect would, we feel, force the three States to sit down and agree.
Thurgood Marshall: Well, just to dispose of the first part of the case in my own mind, if I may first, am I correct in believing you are not merely asking to be let in, but you are asking to be let in on the terms that you would specify?
Wayne L. Kidwell: Your Honor, I think that would be putting at a little harsher than we would like to have it recognized. We are asking to have a say-so in the anadromous fish runs, over 50% of which originate in the State of Idaho.
Thurgood Marshall: No, but you have to decide what kind of say-so, wouldn’t you, in order to formulate a meaningful decree on the Compact issue?
Wayne L. Kidwell: Your Honor, we feel that if there was an order entered that Idaho was entitled to its share of the fish, that this would then enforce the States to agree. I recognize --
Thurgood Marshall: But then you are in effect saying all you need is the second branch of your argument.
Wayne L. Kidwell: Your Honor, I am saying if the second part of our argument were granted, if that relief were granted, it would take care of the first.
Thurgood Marshall: And the first part can’t really do anything all by itself anyway without this Court in effect the writing the Compact for the three States.
Wayne L. Kidwell: Your Honor, we feel that even if we had a voice or a say-so in the Compact, the first part, which would not give us our total relief, even having the say-so as one-third of the Compact would be more than we have had for the last 40 years. The second part is the essential part to what we are asking this Court.
Harry A. Blackmun: Mr. Attorney General, then I would suggest you get to the second part, and let's hope we don’t question you further on the first.
Wayne L. Kidwell: Thank you, Your Honor.
Lewis F. Powell, Jr.: Mr. Kidwell, may I ask this question before you move on? If, for example, we agreed with your basic proposition that Idaho is entitled to an equitable share, how would you determine that share and, if you determined it in some mathematical way, how would you get the fish to Idaho...
Wayne L. Kidwell: Your Honor, it is --
Lewis F. Powell, Jr.: ... in the face of the eight dams?
Wayne L. Kidwell: Your Honor, it is capable of determining the amount of fish that are going into the headwaters with almost mathematical precision. Our Fish and Game Department is prepared to show, as I say, with mathematical precision the amount of fish that should be allowed to escape the figures they use into the State of Idaho. Over each of these dams, there is a counting process. One of these dams on the Colombia River is ... the last dam before the fish go into Idaho is Ice Harbor Dam, and the count going over there at this point is so low that it can be determined with precision how much or what efforts should be made down below to allow more escapement. There are a couple of other factors that I wanted --
Potter Stewart: By limitation of both sport fishing and commercial fishing ...
Wayne L. Kidwell: Yes, Your Honor.
Potter Stewart: ... primarily. The other problems you mentioned at the beginning of your argument cannot be really overcome. I mean, the existence of the dams and …
Wayne L. Kidwell: We do feel some efforts could be made --
Potter Stewart: ... I guess there's some pollution and so on and nitrogen in the water.
Wayne L. Kidwell: Yes, Your Honor. We do feel that if Idaho had a say-so in the Compact, that additional efforts could be made in putting what they call the certain types of lifts on the dams to stop the super-saturation, the turbine damage and some of these things.
Potter Stewart: Additional ladders, maybe, or …
Wayne L. Kidwell: Additional ladders, yeah, improved ladders that will take care of the other varieties of --
Potter Stewart: Are we talking about various varieties of salmon and also steelhead?
Wayne L. Kidwell: Salmon and steelhead, Your Honor, yes; primarily, the spring chinook salmon and the steelhead. As I pointed out, this is a truly unique phenomena in nature, these fish returning to where they spawn. A couple of other points --
Potter Stewart: Do those fish generally die upstream after they spawn? Unlike the Atlantic salmon, they go back out?
Wayne L. Kidwell: Your Honor, the chinook salmon automatically does die. It comes to the end of its lifecycle after they spawn. The steelhead theoretically can go back to the ocean. The figures and statistics of how many make it back are rather slight, but they do not automatically die; they attempt to. A couple of other points that I was going to bring out, Idaho, along with the other States, has attempted to minimize the impact of the loss of our anadromous fish by artificial spawning, planting of these fish. I would point out one problem that we have continually run into is that Idaho, being a very small state, we spend well over a million dollars a year in these efforts; but all of the fish that we transplant or artificially spawn in the State of Idaho, then to go to the ocean and come back, of course, a portion of them are taken by the States of Oregon and Washington. Oregon and Washington also spend considerable sums of money; but we do not have the same benefit from the money they spend, because the fish return to where they're put into the water and do not pass through the State of Idaho.
Potter Stewart: Is there any fishing of them, legal fishing of them, when they're on their way out to the ocean or only when they're coming upstream?
Wayne L. Kidwell: No, there is no significant problem when they are on their way back other than the dams and the other …
Potter Stewart: Which way? What you are talking about, "back", which is what?
Wayne L. Kidwell: When they are going back to the ocean.
Potter Stewart: Uh-huh. Well, how about they have never been to the ocean, but they have been born in freshwater, the little ones, and they're smolts.
Wayne L. Kidwell: Okay, either one, either the steelhead going back or the smolts going down, juveniles, no, Your Honor, there is no problem of fishing.
Potter Stewart: Of fishing on their way down.
Wayne L. Kidwell: There is a tremendous problem with turbine damage and the ladders and this type of things, but no problem with the fishing. It’s only when they are on their way up --
Potter Stewart: Going upstream.
Wayne L. Kidwell: -- up to spawn. The equitable apportionment argument, I feel ... although I can’t cite this Court any actual case right in point, I feel that the water cases are analogous, the pollution cases. Certainly, this Court has demonstrated many times that it under the right factual situation can stop pollution above a state. If we can stop a state from putting something into the water before the water gets there, certainly it would seem obvious that the Court would have the same jurisdiction to stop them from taking something out of the water that was unique and a part of the natural ecological cycle. I think it’s also important to mention the reason we need this Court to invoke its original and exclusive jurisdiction, this is the only forum that we have. As the Court is well aware under Title 28 of the United States Code, Section 1251(a)(1) on this type of dispute between the two States -- and I would emphasize there is no reason for the United States to be a party to this. There is no problem with the Indian Rights. We recognize that they have certain treaty-guaranteed rights. It has been adjudicated rather fully. This would not diminish or interfere with the treaty rights or the rights that the Indians have been granted under existing case law. We have no other place to go. We have attempted diplomacy, as this Court has pointed out in controversies of this time. As the Court has said many times, there are three ways to settle disputes of this nature: diplomacy, war or by coming to this Court. Obviously, we feel very friendly toward Oregon and Washington and we don’t advocate going to war with them; so we are asking this Court to invoke its original jurisdiction, let us put on clear and convincing evidence as to what's happening to the anadromous fish runs in the Northwest. If I might briefly refer to the briefs filed by the State of Washington and the State of Oregon.
William J. Brennan, Jr.: Excuse me, Mr. Kidwell, I think you said the United States had no interest?
William J. Brennan, Jr.: I notice that the Solicitor General, in the memorandum that he has submitted as amicus, states that the United States is an indispensable party to this litigation.
Wayne L. Kidwell: Justice Brennan, what I was saying is that we respectfully disagree with the position of the Solicitor General, in that there is no reason or no legal reason why the United States would have any interest or want to be involved in this lawsuit between these two States.
Warren E. Burger: Does it interfere with your rights, your claims, if they were parties in some way?
Wayne L. Kidwell: Your Honor, I don’t believe that it would. We recognize the treaty rights and that there are some Federal rights. We also recognize that this interstate stream could be federalized; but since that has not happened, it is a dispute only between the two States, primarily --
Thurgood Marshall: The stated position, however, is that it would be improper for the Court to make an equitable apportionment of the fishery among the three States in the absence of the tribes or the United States as their trustee or both, suggesting indeed that there may be conflicts of interest between upstream and downstream Indian tribes.
Wayne L. Kidwell: Yes, Your Honor, and I am aware that the ...
Thurgood Marshall: But you disagree with that.
Wayne L. Kidwell: We disagree with that. The Solicitor General brief --
Thurgood Marshall: Do you think that the Solicitor General of the United States has any interest in dams on navigable rivers?
Wayne L. Kidwell: Your Honor, I think they have a tremendous interest.
William J. Brennan, Jr.: Well, won't this require changing dams on navigable rivers?
Wayne L. Kidwell: Not necessarily, Your Honor, Under --
William J. Brennan, Jr.: I thought you said you had to do something with the flow of the dam and the ladder.
Wayne L. Kidwell: Your Honor, I said that if Idaho --
William J. Brennan, Jr.: Didn’t you?
Wayne L. Kidwell: Yes, Your Honor, I said that if Idaho were admitted as a member of the Compact, we feel that we could have some say-so. I suppose there is a lobbying group, if nothing else, to the Congress urging them to make additional fish ladders  and …
William J. Brennan, Jr.: Suppose that interferes against the interests of the United States in a navigable river.
Wayne L. Kidwell: Your Honor, if that did --
William J. Brennan, Jr.: So the United States has an interest.
Wayne L. Kidwell: Yes, Your Honor, if that did happen. But under the relief we have asked, we respectfully urge that there is no reason for the United States to have an interest in the Compact.
William J. Brennan, Jr.: Well, I don’t know; but can you change a dam without the permission of the United States? I don’t believe you can change a dam on a navigable river without their permission from the Corps of Engineers.
Wayne L. Kidwell: Your Honor, other than through the Congress; the Congress, I believe, could make additional appropriations for moneys for fish ladders or the various remedies that are available through the dam.
William J. Brennan, Jr.: And if Congress called on the United States to give them their views, of course they would.
Wayne L. Kidwell: Yes, Your Honor.
William J. Brennan, Jr.: Well, why can’t we?
Wayne L. Kidwell: Your Honor, certainly you can. I am just saying that we don’t feel that they are an essential party to the action.
William J. Brennan, Jr.: Well, why do you resist making United States a party? You say the Indians tribes have independent rights, fishing rights, in these rivers ...
Wayne L. Kidwell: Yes, sir.
William J. Brennan, Jr.: ... that is under the cases of this Court, the States are wholly ... they couldn’t possibly totally deny it. They might be able to regulate, but they couldn’t deny them.
Wayne L. Kidwell: I well recognize that, Your Honor, and I --
William J. Brennan, Jr.: Well, why do you resist United States being a party?
William H. Rehnquist: Are you free to join the United States? You aren’t, are you?
Wayne L. Kidwell: No, sir. They have asked to come into the case, and we don’t strenuously say they should not be here. We just didn’t feel that they are necessary to resolve this dispute.
Harry A. Blackmun: Why can’t you move to join them as a party defendant?
Wayne L. Kidwell: Your Honor, we could. We just didn’t feel that there was any interest paramount of the United States that would call for that.
Warren E. Burger: I put a question to you first, General Kidwell. Was there any barrier to your bringing a traditional original-jurisdiction case making a claim that you would with reference to pollution of the stream or whatever, which is really what you have embrace within Paragraph No. 2 of your prayer for relief, I would take it; is that not so?
Wayne L. Kidwell: Yes, Your Honor, although --
Warren E. Burger: That ignores ... if you had asked for that relief alone, would the existence of the Compact be a barrier to the Court’s granting that relief alone?
Wayne L. Kidwell: Your Honor, the Compact would rear its head in that and would be headlong in conflict with our asking for this remedy. Therefore, it was my decision early, maybe erroneously, to ask that this Court give us a say-so in the Compact because of the 40-year history that we have attempting ...
Byron R. White: With you, I don’t understand why you would think that if Idaho has the right to claim that an agreement between two other States completely eliminate it. I don’t understand that.
Wayne L. Kidwell: Justice White, I do not feel it can, and that is the equitable apportionment.
Byron R. White: Well, why do you need any remedy against the Compact, I mean, as such?
Wayne L. Kidwell: Your Honor, we do not per se have to have the remedy of the Compact. Since the Compact has existed, since the turn of a century, since the early days of statehood, we did feel that if the Court would grant that order, it would minimize the difficulty of relations with the other States; but the significant remedy is the equitable-apportionment part of our complaint.
Warren E. Burger: Very well. General Johnson?
Lee Johnson: Chief Justice, may it please the Court. I think very simply the State of Oregon’s position in this case is that the complaint or the motion to file the complaint should be dismissed, because the complaint fails to state any claim upon which legal relief can be granted or, in other words, it fail to state a justiceable controversy.
Warren E. Burger: What if the State of Idaho had come in to pursue the question I just put to your friend and asked for nothing expect essentially what they pray for in Paragraph 2. Do you think the Compact bars this Court’s jurisdiction to grant relief in that limited area?
Lee Johnson: No, I do not. But I think that is definitely not what the State of Idaho is requesting.
Warren E. Burger: Well, isn't it true that sometimes when people ask for five or seven paragraphs of relief, a Court grants one or two?
Lee Johnson: Well, my point is, Mr. Chief Justice, is, that it is not what the State of Idaho is asking; indeed, that is the last thing that the State of Idaho wants, and I think maybe I can explain this by simply first maybe describing the regulatory scheme that exists in Oregon and Washington and pointing out to what Idaho wants, it doesn’t want to strike down that regulatory scheme; they just don’t like the way we are doing it. That regulatory scheme provides -- and both States have similar statutes -- provides for a regulatory commission. The commission sets the time of fishing, sets the manner of fishing and sets the place of fishing. The commission -- and this is strictly in the area of commercial fishing that we are talking about today, according to Idaho’s complaint. Now, the commission, one, there is an established area for commercial fishing. It is from the mouth of the Columbia River up to approximately 140 miles, just short of Bonneville Dam, which is the first major dam on the Columbia. The fishing days or the season is open on the basis of an escapement level. That is the rationale or the terminology as it is used in this regulatory scheme, and the escapement level basically is to get enough fish over this commercial fishing area. And understand there is a second commercial fishery above Bonneville, which is the Indian commercial fishery, regulated by the treaties. There is, of course, a game fishery that goes all the way through Oregon and Washington and on into Idaho. The escapement level is premised to try to use the existing spawning beds, to fully utilize those existing spawning beds that exist throughout the Columbia and its tributaries, both Oregon, Washington and Idaho. There is a limitation on those spawning beds because of the industrialization that has occurred; but it is to utilize those beds to preserve the run, and once that escapement -- and it is estimated by taking the number of fish that are in, and also they have to allow for how many fish are going to be taken by the Indians and how many are going to be taken by game fishermen in all three States -- and still get the proper spawning level. Once that escapement is accomplished, then we open that fishing up for commercial fishing and the season is open, and until that escapement is accomplished the season is closed. What Idaho is contending -- and this is one of the things, one of their analogies or one of their arguments, they rely on a case, Pennsylvanian versus West Virginia. But the whole problem that Idaho has in this case is that the only effect of the State of Oregon and the State of Washington's regulation has got to be positive as far as the State of Idaho is concerned, because every day that that fishing is closed means that fish do get to Idaho. If the States had chosen not to regulate it or if this Court should declare that statute, for example, as a undo interference with interstate commerce, Idaho would be left terribly out in the cold, as well as would our States, because what would happen would be the destruction of the fishery.
Warren E. Burger: I am not sure I follow that, Mr. Attorney General. I go back to my prior question:  what is the relief asked for in this original-jurisdiction complaint, which is just Paragraphs 1 and 2, what would be your position here now?
Lee Johnson: I've got to ... one is, as I recall, that --
Warren E. Burger: One is that we take jurisdiction, the formal prayer, and the second is that we declare -- that we determine the equitable apportion of the upriver fishing that is due to Idaho.
Lee Johnson: Well, all right. Why don't we go to the equitable apportionment argument? I think our answer is, our question -- and we still think it's the main issue in this case -- is that the State of Idaho has got to state some basis for which they are going to get equitable relief. There has got to be some legal basis.
Warren E. Burger: Well, they state that or at least they represent that they spawn the fish originally.
Lee Johnson: I don’t see how that gives them any right whatsoever. What difference would that be, because this is what Idaho is asking is, if somebody in Idaho raises a bird and he releases that bird out in the sky -- now, presumably this bird is a bird that does migrate all over the world -- does that mean this Court is then to order each state in the United States to adopt regulations to protect that particular bird --
Warren E. Burger: You are now going --
Lee Johnson: -- simply because Idaho wants to protect that bird?
Warren E. Burger: You are now going to the remedy. Perhaps it would be correct that the Court would find what you suggest; but would the Court have jurisdiction if that was the only relief sought?
Lee Johnson: Well, I don’t see how the Court can take jurisdiction unless there is some legal interest that Idaho alleges that’s being violated. And in fact --
Byron R. White: Well, that's just it. That’s one of the questions in the case.
Lee Johnson: All right. The only cases that Idaho cites to support this proposition, Idaho can see there is no authority for this whatsoever. The only cases they cite for it are those cases in which this Court has exercised jurisdiction, adjudicating water rights between States. What is that based upon? That is based upon long-established, common-law riparian rights to water. Every one of those cases rests on that common-law premise.
Byron R. White: Well, suppose --
Lee Johnson: There is no comparable -- pardon me.
Byron R. White: Suppose that the lower States simply established a barrier in the river and let no fish through whatsoever in Idaho, that they're just going to take them all. They announce one day that "We are now taking all the fish, not letting any of them escape into Idaho." You would have the same answer, that Idaho would have no remedy, no right, to any of those fish.
Lee Johnson: No, I would disagree there ...
Byron R. White: Well, what right would they have?
Lee Johnson: ... on the grounds there, there, I think if the State’s regulatory scheme -- if the State did nothing, it’s another question; but if the State’s regulatory scheme, basically that was the effect of the State’s regulatory scheme, then I think Idaho has a contention, would have a very legitimate contention that the State --
Byron R. White: Where do you find that right?
Lee Johnson: Interstate commerce, undue interference with the interstate commerce. But that made my point.
Byron R. White: Idaho asserts that the other State is interfering with interstate commerce and the fish.
Lee Johnson: Yes. If the State of Oregon passed a law that said that no fish will pass through the State of Oregon into Idaho, I think that law would be -- at least it certainly is very arguable that’s undue interference with the interstate commerce.
Byron R. White: Well, in any event, whatever the source of the right, you would concede Idaho would have a right?
Lee Johnson: Yes, premised on the Constitution. But Idaho in this case on the face of its complaint cannot make that contention about the Oregon/Washington regulatory scheme, because the only possible effect of that scheme is to guarantee that fish do get to Idaho.
Warren E. Burger: But not enough of them.
Lee Johnson: Not enough, I mean, what Idaho is asking this Court -- this is their whole point. Idaho is asking this Court ... it's not asking this Court for a judicial decree that our statutory and regulatory scheme is unconstitutional; it is asking that you not give judicial review to that, but that you would administer it. It’s asking you to become the fish master for the ladder, for the farming.
Byron R. White: So you simply concede that Idaho is entitled to an equitable portion of the fish, and you just say you are giving them an equitable portion. That seems to be what you're saying.
Lee Johnson: No. Well, I think we go back and forth. I think there are two arguments by analogy that Idaho uses. One is resting on a Constitutional argument, a contention of interstate commerce. And my point is there is, there is no undue interference with interstate commerce on the face of it. The only effect the regulatory scheme can have is a positive effect on interstate commerce. It guarantees that some fish, at least, get up the river. Let me say we do not agree that --
Harry A. Blackmun: Well, where do you draw the line? You've conceded if you blocked them all off that this could not be done. But if you let 1 out of 10 million go up, is this all right?
Lee Johnson: No, I'm not saying that, Your Honor.
Potter Stewart: Your point is, as I understand it, Mr. Attorney General, that if there were no Compact between Washington and Oregon and if indeed the States, either in cooperation with each other or individually, did nothing, then no fish would get to Idaho.
Lee Johnson: Right.
Lee Johnson: What he is saying, he hasn't -- this is the most extraordinary remedy. He is saying he wants the States of Oregon -- he does not like the way we regulate it. He doesn’t disagree with the theory of our regulation because if you had none, Idaho -- no fish would get up to the same river.
Lee Johnson: He's saying -- you're just saying we're not being good enough policemen. And I should also point out one thing, because this is certainly something that when you get to the question of irreparable injury, I know Mr. Gorton is going to point out this. The regulations, the existing regulations today, for one thing, we talk about steelhead. The States of Oregon and Washington have prohibited commercial fishing of steelhead for years. Two, they talk about the salmon. The States of Oregon and Washington for the last two years has (sic) prohibited any fishing on the upriver stocks of salmons. These are the salmons that go to the Idaho streams. We have not prohibited on the fish that go into a lot of the Oregon streams, and the reason is, it's strictly a conservation point: the runs going to Idaho are in dangerous shape from a conservation viewpoint, and as a consequence the States have had to regulate them. So any idea of irreparable injury here is ridiculous, because the fact is is for the last two years, the State of Oregon and Washington have not permitted any commercial fishing over those fish.
Warren E. Burger: If it were physically feasible -- and I have no idea whether it is -- could Idaho put nets up at its border and keep all these fish in Idaho and never let them get out without --
Lee Johnson: I think they can, or the only question there is whether they are in effect by their State action unduly interfering with interstate commerce, and that would be the only contention we could be on.
Warren E. Burger: You said it would be an interference if that happened on the upstream side. Why wouldn’t it be on the downstream side?
Lee Johnson: Well, I would have to say this. I would make a very strong argument but that’s undue interference with interstate commerce. And I think you've got to get this distinction, though, that the regulatory schemes as they exist in these two States --
John Paul Stevens: General Johnson, let me test your distinction. You say that the main point, as I understand your argument in response to Justice Stewart’s question is that to the extent that your States regulate, Idaho benefits; but Idaho is basically asking you to impose additional regulation, they have no standing to do that. Isn’t that the basis of your argument?
Lee Johnson: Yes. Let me --
John Paul Stevens: Why is that different?
Lee Johnson: I am saying that as a matter of law. I do not think that that is sustaining a justiceable controversy if Idaho --
John Paul Stevens: Well, why is that different than supposing Idaho had no regular -- the water flows towards the ocean, I assume. Assume Idaho had absolutely no pollution control whatsoever and let industry dump anything it wanted to into the river. And could you then have standing to bring an action against Idaho to compel Idaho to impose some regulation on what was dumped into the river?
Lee Johnson: On water rights, I think there is a long common-law --
John Paul Stevens: But then what's the difference?
Lee Johnson: I do not think we can on fish, because the common law is pretty well-established. Those fish, the State does not have any proprietary right to those fish.
John Paul Stevens: But you conceded they'd have a right on fish if it were an interference rather than a lack of adequate regulation.
Lee Johnson: Well, first, I was answering you on the common law. And secondly, I think there is a question under interstate commerce. But let me say if Idaho was interfering, doing the same thing to the fish --
John Paul Stevens: Idaho was failing to do anything is my question. If they failed to do anything.
Lee Johnson: I feel that our remedy is, we do not have a right to go enjoin the State of Idaho to regulate its fishery.
John Paul Stevens: Now, I'm talking about you would agree it could if it were water, though.
Lee Johnson: On water, I think there is a possible contention -- we can certainly to the point that it’s destroying our riparian rights.
John Paul Stevens: But you'd have a remedy, even though what you sought was an order compelling them to impose additional regulation they didn't now impose. Then I'd think you then --
Lee Johnson: Well, I think it gets -- and this Court in those water-right cases, it has accepted jurisdiction in a number of them; in most of them, as I recall reading them, the Court has backed off because of this statutory problem. The appropriate place for the State of Oregon to go to solve that problem and my point here is, the appropriate place for Idaho is, one, is to try to work out a Compact. And Idaho -- I think this should be made clear to the Court what Idaho -- they say, "Well, there's differences of opinion over the Compact." Yes, we want to regulate the streams in Idaho. Idaho doesn’t want to come into the Compact on that term. We said, "We are going to regulate the Oregon and Washington streams. How about let's also regulating the tributaries to the Columbia that are in Idaho?" That’s where the argument is. That’s why we haven’t been able to get finally together. I am confident the three States are going to. But secondly, where their real remedy is is in Congress.
Warren E. Burger: You are now into your colleague’s time, General.
Lee Johnson: Thank you.
Lee Johnson: It’s our opinion that the case should be dismissed. General Gorton.
Slade Gorton: Mr. Chief Justice, and may it please the Court. Mr. Chief Justice, you asked the question as to whether or not absence of an intent to get into the Compact, this Court would have jurisdiction. My answer to that question is that it clearly -- it clearly would. The question is whether or not you should exercise that jurisdiction, given the burden and standards of proof for you to take an original-jurisdiction case or whether or not there are not other forms of governmental entities, which are better able to handle the question. Mr. Justice Marshall was entirely correct in saying that the United States is clearly an indispensable party in this case, not only from the point of view of its protection of the Indians and not only from the point of view of the requirement that Congress ratify any Compact; but because there are eight dams on the Columbia River between its mouth, along the Columbia and the Snake before one reaches the State of Idaho, every one of which--
William H. Rehnquist: Was the United States a party in Arizona against California?
Slade Gorton: It was -- the first Arizona versus California case was dismissed, because the United States was not joined as a defendant.
William H. Rehnquist: How about the second?
Slade Gorton: In the second one, it was a party.
Harry A. Blackmun: Well, what are you asking, that we start all over again and name the United States?
Slade Gorton: From the point of view of his asking to be in the Compact, it seems to me he clearly has to be. I think from the point of view of his request for other relief, he must do so, as well, because those eight dams on which --
Harry A. Blackmun: Then you'll be up here in a few more months all over again.
Slade Gorton: We might well be, and we’ll argue what I am going to argue --
Harry A. Blackmun: So what you gain by this point when the Solicitor General certainly could move to intervene if he wanted to.
Slade Gorton: By the time that that happened, Idaho would probably have been offered membership in the Compact. But my point to the Chief Justice is that I do not believe that you should exercise your jurisdiction, which is discretionary, in any event in a case of this sort. If you do, let me assure you that you will be involved in it forever. The United States District Courts in Oregon and Washington have been effectively managing the fish from the point of view of Indian fisheries for the past decade, and there is no possible end in sight to represent to you that a simple mathematical division will reach the goal; the State of Idaho is completely erroneous. Those eight dams, which are controlled completely by the United States, over the two most reasons, the two upstream dams, we are presently engaged in litigation against the United States, demanding that they be redesigned better to facilitate the passage of fish. The State of Idaho hasn't even seen fit to join that litigation.
Thurgood Marshall: How about the High Mountain Sheep Dam? Isn't that on the same river?
Slade Gorton: No, that’s … pardon me.
Thurgood Marshall: Is that on the same river?
Slade Gorton: Yes, that is on the Snake. That's on the Snake up in Idaho.
Warren E. Burger: Are you suggesting, General Gorton, that this case be put on the backburner and let these diplomatic processes that your friend from Idaho talked about to proceed?
Slade Gorton: Exactly, Mr. Chief Justice, exactly as you did in New York versus New Jersey and Vermont versus New York. There is no instant urgency in this case. Publications -- not only the regulations, which are matters of public record of which you can take judicial notice; but publications, in the production of which the State of Idaho has joined in the last couple of months, will show you the following facts: there has been no commercial fishery for upriver spring chinook salmon since 1974 and exactly one day in that year. There has been no commercial fishery for upriver summer chinook salmon since 1964. There has been no commercial fishery for steelhead by Washingtonians since the 1930s, for 40 years. There has been no commercial fishery for steelhead by Oregonians since the people of Oregon passed an initiative on that subject in 1974.
William J. Brennan, Jr.: This has been because Washington and Oregon have prohibited commercial fishing?
Slade Gorton: Have prohibited commercial fishing for those fish, which go to Idaho. We are taking none of them, Mr. Justice Brennan, zero.
William J. Brennan, Jr.: How about the Indians? How about Indian fisheries?
Slade Gorton: The Indian fisheries have gone on longer than that; but the Indian fisheries, which of course are not controlled by our States or by the Compact, were stopped on a commercial basis in the terrible year of 1975. On many of these, even the Indians cooperated in this respect and banned their commercial fishery.
William J. Brennan, Jr.: All of one year ago.
Slade Gorton: Well, that is because 1975 was a terrible year, Your Honor. If you will look at these figures -- and I will get to why it was a terrible year in just a moment --
John Paul Stevens: But, General Gorton, when you ask us to look at these figures, aren't you asking us to look at the evidence that would be before the trier of the fact? How can we do this on deciding whether to file a complaint or not?
Slade Gorton: You are entitled, it seems to me, to take judicial notice of matters which are published, and particularly of orders --
John Paul Stevens: But aren't these the precise factual issues that would be involved in a trial if the complaint were to be filed?
Slade Gorton: They are some of the facts which would be so involved.
John Paul Stevens: You are, I think, in essence, saying they can’t prove what they have alleged.
Slade Gorton: That is exactly right, Your Honor, and it seems to me that you should consider whether or not this is a case in which you can fashion appropriate judicial relief. If you are dealing, as you were in Vermont versus New York with only one tiny aspect of a problem, which also involves irrigations, use of water which hurts fish, which also involves Indian rights, which also involves dams constructed by the Congress of the United States, there simply isn't any way in which you can provide for the relief which they ask for, and there are alternative sources for their reaching those rights. And those are exactly the grounds on which you have declined to exercise your original jurisdiction in cases like Vermont versus New York and New Jersey versus Pennsylvania.
Byron R. White: Mr. Gorton, is the United States subject to suit in this action against its consent?
Slade Gorton: I believe it is not, Your Honor. I think it has to simply agree whether or not to intervene.
Byron R. White: And although I take it appropriate officials of the United States might be subject to suit in this very action.
Slade Gorton: I believe so, and I believe in a District Court action, for example, that it is very likely, at least, that the fish commissions of the respective States could be sued if we were to start at a District Court level. There hasn't --
Byron R. White: Who administers those dams?
Slade Gorton: The United States at the Corps of Engineers. We have no control of them. We have --
Byron R. White: In terms of the suit against the United States, I take it to the extent those dams are significant in this litigation, the Corps of Engineers or the Generals could be made parties.
Slade Gorton: Exactly, it could be. We are in lawsuits against the Corps of Engineers right now on two of the dams on the Snake, demanding greater fish escapement. Idaho hasn't bothered to join that litigation. They come here to sue the wrong parties for the wrong reasons for something we're not doing. We haven't even permitted recreational fisheries in the Columbia River on steelhead since 1974, on upriver chinook since 1973, upriver summer chinook since '73.
Byron R. White: What about your territorial waters, the ocean on the ocean side?
Slade Gorton: Those are not under the Compact. There is, of course, a very --
Byron R. White: Well, whether they're under the Compact or not, what about your commercial fishing at the mouth of the rivers?
Slade Gorton: There is a very considerable commercial fishery not at the mouths of the rivers, but on the open ocean, which involves Alaska, British Columbia, Washington, Oregon and California fisheries.
Byron R. White: Any foreign nations?
Slade Gorton: Well, until the 2 -- under the new 200-mile limit law to which General Kidwell referred, there is now a commission to work on that 200-mile-limit area, of which Idaho is a member. It is the only member on any one of those commissions in the entire United States which is not an oceanfront state. But the reason for the lost of these fish is not commercial fishing, it’s not recreational fishing; it’s dams. Every one of those dams destroys 15% of the fish which try to get over it. So 100 fish below Bonneville become 27 fish at the border of Idaho.
Byron R. White: You don’t think more fish would come upstream if there was no commercial fishing on the ocean side at all?
Slade Gorton: If there were no commercial fishing on the ocean side at all, which is not totally under the jurisdiction of these States, more fish would get up there. Now, you will get to the point, Mr. Justice White --
Byron R. White: So there is some commercial fishing in the ocean that is subject to your jurisdiction.
Slade Gorton: There is, but that has not been a subject of this complaint. This complaint is talking about river fishing under the Compact. That’s the way he brought the complaint. That ocean fishery is not under the Compact. Now, there is, of course, also escapement beyond which you gain nothing. There is a maximum form of escapement. For example, in one of these groups of fish, it’s 40,000 above the last dam in Washington. But Idaho has shown no great interest in this area. The Hells Canyon Dam, which is a privately owned dam by the Idaho Power Company, cuts off fish entirely in half of the entire original spawning area of the Snake River, and that’s cut off the lower States, of course, as well as what goes on in Idaho above that point. Idaho has shown no interest in joining with us in litigation over the dams, which have caused their own losses. They simply demand to be put into a Compact, which your own questions have indicated is entirely without precedent, or to get you into a fish-management program which is simply impossible for you to administer when there is not only the Compact itself, but a Pacific Northwest Regional Commission, which incidentally has said that the Compact is the third best method of administering these fish; a new commission for ocean fisheries under the 200-mile limit, the negotiations of which are going on at the present time. This case you do have jurisdiction, and there is no question in my mind but that leaving aside the Compact portion of this case, you have jurisdiction to take this case. It’s by one state against another. It falls within that Constitutional prohibition. But if you take it, you are going to be in that morass for years to come. You are not going to have everyone subject to your jurisdiction.
Byron R. White: General Gorton, is that really a basis on which we can decline an original-jurisdiction case, that it’s going to get us into a morass?
Slade Gorton: It’s a way -- it’s one on which you have historically declined such. You’ve said in New York versus New Jersey that you were convinced after looking at it that a problem, which was the problem of both of those States, would be solved, in fact, by the work of those two States. In Vermont versus New York, you --
Byron R. White: We've had some of these cases for a long time, General Gorton.
Slade Gorton: Pardon?
Byron R. White: I say, we've had some of these original cases here for a long time.
Slade Gorton: I understand that, and then --
Byron R. White: Let me ask this. Have you had some unpleasantness on the river recently, some shootings and …
Slade Gorton: That was on Puget Sound. That is not a part of --
Byron R. White: Puget Sound, not on the river.
Slade Gorton: No. That has to do with the Indian fishery; but it has to do with the Indian fishery on Puget Sound, which is totally unrelated to this case. No Puget Sound salmon ever go to Idaho. Simply to return to the final point that I was making, in Vermont versus New York, this Court refused to enter a consent decree to which both States agreed, because it would involve the Court in the continuing supervision over a matter relating to waters, not totally dissimilar to this, unlike your cases involving the rivers in the western part of the country, where you had an order which could specifically be entered as to how much water had to pass the border between Colorado and Kansas, for example, after which State regulation was perfectly appropriate. In this case, these disputes as to the proper number of fish to be let go for simply replenishment purposes, as to a proper division between sportsmen in Idaho and commercial fishermen in Oregon and Washington are literally unending. Every single season is different from every single one of its predecessors. In fact, the reason for this lawsuit is that we are in a period of very low runs, which coincide with the runs which could not get over the newest to these dams. Several of these dams have been completed just in the last three or four years, and they have simple decimated the Idaho fish runs going down at the point where they are not fished by anyone at all. And so consequently in these years, they are not able to come back, up and this has created a problem for the State of Idaho which it did not envisage when it refused to fight against the dams or to fight for better escapement over those dams, and we end up being --
Potter Stewart: They get decimated as their smolts' going out to sea.
Slade Gorton: 95% of the 1973 smolts going downstream were killed by the dams.
Potter Stewart: And this is what in your view and your submission basically accounted for the gross deterioration of the fishery in 1975?
Slade Gorton: Exactly, and why we were unable -- and why we simply had to ban any commercial or recreational fishing at all on fish going to Idaho, because we agree with them that too few fish are going back there for anyone to have the season and for the fish to reproduce themselves. But we haven’t created for them an emergency which requires you to deal with it right now. The emergency was created by the dams; we are at least as interested in it as Idaho is. We spend much more money on it than Idaho does.
Byron R. White: You said there's litigation over the operation of the dams that Oregon and Washington has presently pending against the Corps of Engineers?
Slade Gorton: Washington does. Those two dams are in the Snake in Washington.
Byron R. White: But, of course, you don’t have , I gather, any suit pending on the Hells Canyon Dam, do you?
Slade Gorton: No, we do not.
Byron R. White: That's private.
Slade Gorton: That was privately built. That was authorized by the Federal Power Commission that provided for no escapement --
Byron R. White: Of course, if you were a party to this case, then you could file a crossclaim again and enjoin that private outfit.
Byron R. White: We might well because, of course, while those fish came down and benefited our citizens when that dam was built or, actually, its predecessor really first cut the ... cut off all of Idaho.
Byron R. White: That dam hurts you worse than anyone ...
Slade Gorton: Yes, it hurts us worse than anyone.
Byron R. White: ... as far as the fishing goes.
Slade Gorton: Yeah, exactly. The fishery has been destroyed by a large combination of events, the most significant of which is dams, irrigation water, the possibility of diversions to California, Indian fisheries and commercial and sports fisheries. You are asked to take jurisdiction over one tiny aspect of that problem, which you simply can’t solve by taking that portion of it.
Byron R. White: Well, this might be a form of that, maybe interest on all these parties.
Slade Gorton: They may well be, but they can probably solve the problems better themselves, now that we have a Congress which is much more interested in giving money for fish escapement than it ever was in the 1930s, 1940s and the 1950s when these --
William J. Brennan, Jr.: Before you sit down, I understand from the Assistant General’s memorandum that you contemplate that your Legislature is going to adopt the necessary enabling legislation to bring Idaho into the Compact?
Slade Gorton: Yes, sir. Now, Mr. Justice Brennan, obviously, I can’t stand here and promise you that my Legislature will act favorably in January. Moreover, I perfectly agree with him that the fact that this lawsuit has certainly helped in something we've wanted for a long time. I believe, however, that by March, we will have made such an offer. The point is, if they aren't satisfied with membership, they want a veto right.
Byron R. White: Thank you, General Gorton. Counsel will keep the Court notified of any legislative events.
Slade Gorton: We certainly will, Your Honor.
Slade Gorton: Mr. Chief Justice and the General Kidwell, for the brief time I have left, the Court asked -- Mr. Justice White asked earlier -- about our priorities, and if you can look at the complaint or when you do, in the complaint I would point out that after our recital that the Court accept and assume jurisdiction, the second point is the equitable-apportionment part. That stands supreme, paramount, the fair-share concept.
Byron R. White: Is it true that no salmon or steelhead can pass either way on the Hells Canyon Dam?
Slade Gorton: Yes, Your Honor, unfortunately it is true, and I dislike that as much as, I'm sure, the other two States.
Byron R. White: And where is the Hells Canyon Dam? I know it's in Hells Canyon, but where is it in relation to where the Snake and Salmon River join?
Slade Gorton: Your Honor, it’s on another tributary. It’s not in what we're arguing about; and I agree, it’s a travesty. I think, my own opinion is is that the States made a mistake when that dam was built; but, yes, that --
Byron R. White: "The State made a mistake"? Well, how about the Federal Power Commission? Was it in there?
Slade Gorton: Well, at least I feel they did not take all of the factors into consideration. Yes, Your Honor, I feel that it is --
Byron R. White: Is it on a tributary of the Snake River?
Slade Gorton: It’s on the Snake River itself, Your Honor.
Byron R. White: Where?
Slade Gorton: Well, it is on the border between Oregon ...
Byron R. White: And Washington.
Slade Gorton: ... and Washington and Idaho.
Byron R. White: And Idaho, so that no fish can come upstream from there?
Slade Gorton: Up this branch.
Byron R. White: Up this branch.
Slade Gorton: Up this branch of the river, that’s right, Your Honor. Your Honor, very briefly, the instant urgency that Counsel refers to is here. The reason commercial fishing has been held back, the reason there is no commercial fishing going on at the present time, is because of the 30-year history of the Columbia River Compact. We recognize that the dams are a contributing factor; but so are commercial fishing, the size of the nets, the gillnetting that is being allowed on the river. Your Honor, evidently I used up my time before, so I will …
Byron R. White: No, that’s just a signal. You have a moment or two left.
Slade Gorton: Oh, I see. All right, Your Honor. A couple of points, then, very briefly. The State of Oregon in its brief cites several cases as to why this Court should not consider the complexity and should not take jurisdiction. I would point out respectfully that these cases, the whole list of citation in the brief of Oregon, referred to cases where the Court would have original and exclusive jurisdiction. We are bringing this action under the A1 provision of 1251 where the Court has exclusive jurisdiction. This is our only forum. This is our only way that we can get some relief. I realize this is not going to entirely solve the problem, but it’s a step that should have been made many decades ago. For 40 years, we have been trying negotiations, and they have not worked.
Byron R. White: Thank you, gentlemen. The case is submitted.


Sam H. Lattimore: -- may I -- Mr. Justice Stewart referred to the confessions on where the information might be -- can be verified. In the course of the opinion of the Court in giving the history of the case, the Court said thereafter, he was arrested on a bus by a member. Now, he had -- had paid a bus driver to haul him over into another part of Eastern Oklahoma. Thereafter, he was arrested by -- on a bus by a member of the highway patrol at Poteau, Oklahoma. And a short time later confessed the murder of Tommy Cooke, taking the officers to the point in Le Flore County, Oklahoma, where he had disposed of the gun, which the officers recovered and which ballistic experts established was the gun that killed Cooke. Another question was asked several times with reference to the procedure of the Court in Volume -- Sections 973, that's a sequence here. The Court passed on that very clearly in this case. When -- the Court referring to that contention said that we are of the opinion that both the provisions of 974 and 973 are contingent -- contingent upon the request for evidence under the provisions of 974 and 975 are contingent upon the request for evidence under the provisions of 973 or is -- it was in the trial court's discretion to pursue some other reasonable method, and that's the question. When the parties fail to make a request for the privilege thereof, the same is waived and some other method of supplying the Court with the necessary information for the pronouncement of judgment and sentence may be substituted therefore. I am citing a large number of cases from other States. It is therefore -- in this record at no time did the defendant attempt to invoke the principles of this statute. He did not, at any time, request the taking of evidence in mitigation or offered the slightest statement by a way of litigation. He only asked for mercy, something he did not show the victim. We are therefore of the opinion that the defendant's first contention under both the law and the facts cannot be sustained. In that connection, I refer to the fact that in the making of those statements, the County Attorney wasn't the only one who made the statement. Mr. Woodson, who represented the defendant, made an extended statement.
Earl Warren: Did he deny --
Sam H. Lattimore: Coming back to the --
Earl Warren: -- did he deny --
Sam H. Lattimore: I beg your pardon?
Earl Warren: -- did he deny or contest any of these statements --
Sam H. Lattimore: The -- no, sir.
Earl Warren: -- of the (Voice Overlap) --
Sam H. Lattimore: When Mr. Woodson was asked if he had anything further to say he said no. And then when the Court asked the defendant very specifically and it's set out in both --
Earl Warren: Yes.
Sam H. Lattimore: -- the opinions of the Judge Brett's opinion and Judge Powell's opinion. The fact that the defendant said he had nothing further to say and that all of the statements made by the County Attorney were true. With reference to the contention as to the merger, our court said, "It is further urged that the crime of kidnapping merged into the crime of murder. Neither of these contentions can be sustained for the law defines murder and kidnapping as two separate and distinct offenses. Therefore, there would not be such as -- be such things as merger of these separate offenses. Furthermore, Oklahoma does not recognize such doctrine," citing a number of cases." It is urged that these crimes arise out of the same transaction, but such fact will not result in a merger of these separate and distinct offenses," citing another case. I have cited in my brief a number of cases to which I will not have reference to refer. As I said a while ago, we can't present you a case just on the exact state of facts but we do have the parallels and I refer to a charge of conspiracy, which our court has held repeatedly, does not merge in the offenses that are the object of the conspiracy. And I reported in my brief to several other cases from other States, including cases from California, where they expressly held that there was no merger. In the case of Morgan versus Devine, 237 U.S., this Court referred to the fact that Section 192 of the U.S. Penal Code declares it to be a crime for any person to forcibly break into or attempt to break into any post office, with intent to commit in such post office any larceny or depredation. Section 190 makes it a crime to steal, purloin or embezzle any mail bag or other property in use or belonging to the post office department or to appropriate any such property to one's own use or to any other use than its proper use. In Morgan versus Devine, the Court held that the breaking into the post office in violation of 192 did not merge in the crime of larceny, of property taken out of the post office and that the two crimes under these two sections were distinct and separate crimes, one other part to the other.
Charles E. Whittaker: (Inaudible)
Sam H. Lattimore: I beg your pardon?
Charles E. Whittaker: (Inaudible)
Sam H. Lattimore: That it doesn't mean at all that the penalty of death was imposed on -- on a charge of murder and the two crimes were separate and distinct. Suppose that -- suppose that he had been given it as penalty in Muskogee County --
Charles E. Whittaker: (Inaudible)
Sam H. Lattimore: -- it would -- yes, sir, it would not have prevented the Court in Tulsa County from imposing a death penalty following the kidnapping.
Charles E. Whittaker: (Inaudible)
Sam H. Lattimore: Certainly he took into consideration. They murdered a felon. If he hadn't committed anything except just to simply kidnap this young man and had later released him unharmed, either been given a pardon or life penalty. Now, we wouldn't have such a wide stretch in the penalty law, going all the -- going all the way --
Charles E. Whittaker: (Inaudible)
Sam H. Lattimore: I beg your pardon?
Charles E. Whittaker: (Inaudible)
Sam H. Lattimore: No, sir, it was the second -- it was a heavier penalty for kidnapping. In -- in imposing the penalty in a kidnapping case, the Court is going to take into consideration all the things that it done, following that kidnapping, your federal statute provides for a death penalty but prevents its imposition if the victim is released unharmed.
Charles E. Whittaker: (Inaudible)
Sam H. Lattimore: Yes.
Charles E. Whittaker: (Inaudible)
Sam H. Lattimore: He also -- yes, sir, he also took into consideration crime of robbery for which he had given him 50 years. He also took into consideration the other crimes that he -- he perpetrated. The whole thing came into the picture --
Charles E. Whittaker: (Inaudible)
Sam H. Lattimore: Well, there isn't any denial at all that the fact that he took that into consideration. But he could have done that if he had received a death penalty in this Court again. He wouldn't have barred that. There isn't -- I beg your pardon?
Earl Warren: Mr. Lattimore, you may take one minute or so to sum up, but your time is up and we must --
Sam H. Lattimore: Thank you very much.
Earl Warren: -- conclude the case.
Sam H. Lattimore: I have cited other parallels in my brief beside that of conspiracy. And this federal case is arising under those two statutes. The second offense statutes constitute, to me, a parallel on the same principle, and I haven't cited the cases because there are so many of them. But in this Court here, this Court in the case of Graham versus West Virginia, in 224 U.S. went into the subject of these second offense statutes. And this Court said that even though the former conviction is taken into consideration in giving the man a heavier punishment for the second offense, he is not being sentenced because of the -- and or punished because of the former conviction. But this is a new punishment but a heavier one imposed because of his first conviction. And in the last case that was before this Court, it came up from the Supreme -- appeal from the Supreme Court of Kansas, involved this question and this Court dismissed the appeal on the ground that there was a want of a substantial federal question, and that's in the -- law addition, the U.S. -- and that's exactly -- in my opinion is what ought to be done with this case.
Earl Warren: Mr. Ladner.
John A. Ladner, Jr.: May it please the Court. I am in desperate need of time, but to sum up just as quickly as I can because the fact of the matter is I don't intend to file a reply brief in this case, at least, on this consideration, I may later. But to -- to sum up my rebuttal to the State's position as they put it in this brief, and as I think I heard it here today, first of all, there's -- the cases that they cite, Morgan versus Devine and certain other cases involving the construction of congressional acts, I don't believe have one moment's applicability to our situation here. In rebuttal to Morgan versus Devine and one or two of the other cases there, I cite to this Court the later decisions of Prince versus United States and of the -- the latest advance sheet, my namesake Ladner versus United States where you held under the Act of Congress that one shot at two federal officers is one offense rather than two assaults.
Felix Frankfurter: It's all the question of construction not of --
John A. Ladner, Jr.: Absolutely.
Felix Frankfurter: -- constitutionality.
John A. Ladner, Jr.: Absolutely. And I do not rely on those cases but I say that by the same token, neither can they. I am interested in state cases here, cases arising under the Fourteenth Amendment. They -- the State of Oklahoma has made the same mistake throughout their entire brief. They consider that I am here under the Fifth Amendment, I am not. When I mention double jeopardy, I am here under the Fourteenth Amendment. And I mean double jeopardy only to the extent that that doctrine applies under the Fourteenth Amendment, double punishment. And your cases that I have cited, many of them here bear me out on that absolutely. Now, let's -- let's understand my feeling on this. If we want to go into how heinous a crime is, if we want to say how despicable a man is and deny him his constitutional rights on that basis, then that's new law indeed. These constitutional guarantees apply to the innocent as well as the guilty, and this man admitted his guilt to the kidnapping. These -- so far as the facts are concerned, I would hesitate to be any part of a speculation or a conjecture that puts the switch on anybody in the electric chair, and I don't mean by that to depart from rationale thinking and get into the purely emotional anymore than perhaps the trial judge in this case intended to do that, but that's just exactly what he did. He was misled. The statement by the County Attorney that there are plenty of cases as precedent by which we can give this man the death penalty for kidnapping is not so at all. If Clarence Darrow would have been in Tulsa and tried to figure out what this man would have gotten for the kidnapping, he would have come to no other conclusion than we did. I don't care how experienced the trial attorney. What do you do? You go back and look at the kidnapping cases that have been decided by the juries of the State of Oklahoma. And barring a type of legal or judicial entrapment, which, if I am not stepping out of the bounds of propriety, is exactly what happened here, through the co-work of the prosecuting attorney, barring that we should be allowed to rely on the precedent of those kidnapping cases taking similar fact situations. We -- absolutely, we discussed this case with the defendant. He wanted to get it off his chest. Now, taking that into consideration, it was incredible to us to find what transpired here and to find even more, let us say, and in all due respect to our courts that it was upheld by the Criminal Court of Appeals. We don't come here asking mercy, we come asking justice. And for that matter, I just -- I just feel that commendation to me as a public defender, as even the -- our Criminal Court of Appeals did is not what -- what we're -- what I want here. I want to see, now that we are down to the edge of the water, that we can step into it because Ciucci, I believe is the way its pronounced, versus Illinois, Hoag versus New Jersey, if I had the time I'd like to distinguish those two cases and use them because I feel that Hoag can be very definitely distinguished on the fact that the first three robberies wound up in a mistrial by the prosecuting attorney. So this Court says that's an unexpected turn of events. That doesn't happen in our case. We had a trial or at least a plea of guilty in Muskogee free from any error. And in Hoag versus New Jersey, you said it was all right for them to prosecute the man again. In Ciucci versus Illinois, without getting allophonic question of the admissibility of evidence of all three or four murders, that prosecutor, just sure as this world, was repeatedly trying to do the very same thing that the prosecutor in the State of Oklahoma. He was not satisfied. And this Court said in -- in Ciucci versus Illinois that if it could be established by the record that that was the situation, then they might consider the case otherwise, and I think that's definitely the situation in -- in this case.
Earl Warren: Mr. --
John A. Ladner, Jr.: Thank you.
Earl Warren: -- Ladner while I'm sure you didn't -- hadn't given your services to this man for the purpose of obtaining public commendation, the Court does appreciate what you have done. We realize you have left the Public Defender's Office and are giving your own -- your own time as a lawyer in the interest of what you consider to be the cause of justice and for that, we -- we do commend you. And it just -- does give us comfort to know that lawyers will -- will do that.
John A. Ladner, Jr.: Thank you, Mr. Chief --
Earl Warren: And of course, gentlemen, we appreciate the manner in which you have represented the interest of your State.