United States v. State of Oregon and State of Washington, and Confederated Tribes of the Warm Spring Reservation, Plaintiffs-Intervenors-Appellees

The State of Oregon and the State of Washington bring this appeal from a now-expired preliminary injunction. The district court issued the injunction to allocate ehinook salmon among treaty and nontreaty fishermen for the fall 1982 salmon run on the Columbia River. Although the parties seek to employ this appeal as the means by which a number of issues important to the management of the river fishery can be resolved, we decline to proceed entirely as the parties wish. Nonetheless, we are convinced that the expiration of the preliminary injunction does not moot this appeal. Approached in the fashion hereinafter indicated, we affirm the action of the district court.

I.

MATTERS IN DISPUTE

At issue is the right to take, and the need to protect and enhance, two types of fall Chinooks, hatchery fish and the more desirable but vanishing wild salmon (brights). The hatchery fish are bred in the lower river, migrate to the ocean, and then return to the hatcheries. These fish, which do not spawn, exist in relative abundance. The brights, on the other hand, are bom further upriver and return there to spawn and die. Less than half of those reentering the river reach their spawning grounds.…