The U.S.-Canada Pacific Salmon Treaty, which established the Pacific Salmon Commission, was adopted in 1985.40 It provides for the conservation and equitable allocation of north Pacific salmon stocks originating from Canada and the United States. The treaty was preceded by fourteen years of negotiations; its signing was finally caused by the drastic decline of chinook stocks in Southeast Alaska, Canada and the Pacific Northwest in the early 1980s.41 The treaty’s chinook rebuilding program, with a goal of rebuilding naturally spawning chinook stocks coastwide by 1998, is a cornerstone of the treaty and serves as a base for management actions in other salmon fisheries.42
The Pacific Salmon Commission, in carrying out the parties’ obligations under the treaty, is guided by two principles: conservation and equity, which are described by the treaty as follows:
With respect to stocks subject to this Treaty, each Party shall conduct its fisheries and its salmon enhancement programs so as to:(a)prevent overfishing and provide for optimum production; and
(b) provide for each Party to receive benefits equivalent to the production of salmon originating in its waters.43
These principles are based on the Law of the Sea Convention,44 which recognizes that a nation has a primary interest in the stocks that originate in its waters. This is because the country of origin must protect the spawning, rearing, and in-river migratory habitat of these stocks, at times sacrificing their ability to maximize other river uses; or expend funds to restore stocks and healthy fisheries lost to habitat destruction and degradation, as is the case with the Columbia River Basin stocks.
The Pacific Salmon Commission itself is composed of a Canadian Section and a United States Section of four members each.45 Each section has one vote and a decision may only be made with the approval of both sections.46 Within the United States Section there are three votes that must be cast on a consensus basis before the U.S. may agree to a recommendation of the Commission.47
With regard to chinook salmon, the treaty included specific annex language to halt the decline in spawning escapements in depressed chinook salmon stocks and, by 1998, to attain escapement goals to restore production of naturally spawning chinook stocks based on a 1984 rebuilding program.48 This was designed to be a dual track approach: first, implementing harvest restrictions for immediate reductions in impacts on depressed stocks; and, second–and perhaps more importantly–addressing habitat and production problems that were critically limiting the productive capability of naturally spawning stocks.49
Unfortunately, the region and the federal agencies are still struggling to meet this second commitment. Stock abundances continue to decline, hastened by recent poor ocean survival conditions, forcing fishery managers to further restrict ocean and terminal fisheries. These restrictions cause further economic disruption and dislocation for communities and businesses dependent upon healthy fisheries.
Under the Pacific Salmon Commission, the Parties are developing abundance-based approaches for harvest management with the goal of addressing conservation concerns during periods of poor survival while meeting domestic and international equity objectives as well. In addition, the Commissioners acknowledge that harvest management will become only more contentious as more stocks collapse along the coast, unless habitat and production problems are addressed by management agencies in both countries.50
40. Treaty Between the Government of the United States and the Government of Canada Concerning Pacific Salmon, Treaty Doc. No. 99-2 (entered into force, March 18, 1985) [hereinafter Pacific Salmon Treaty].
41. Letter from Rolland Schmitten, Director, Washington Dept. of Fisheries, to Malcolm Baldrige, Secretary of Commerce (April 15, 1981). Director Schmitten wrote: “Serious conservation problems currently exist for nearly every chinook stock harvested in the southeast Alaska troll fishery, such that failure to meet natural spawning escapement goals for these U.S., Canadian and southeast Alaska stocks in 1981 will be the rule rather than the exception.”
42. Also integral to the signing of the treaty was an agreement with the United States, entered into before the Federal District Court of Western Washington, by which the states of Alaska, Washington, and Oregon and the 24 treaty tribes agreed to put aside “north-south” allocation issues related to chinook until the completion of the chinook rebuilding program in 1988, so long as the Pacific Salmon Commission provided consensus recommendations to each country until 1998. Confederated Tribes and Bands of the Yakima Nation v. Baldrige, 505 F.Supp. 833 at 835 (W. D. Wash. 1985).
43. Pacific Salmon Treaty at Art. III, para. 1. In addition, the principles are qualified by three guidelines:
- the desirability in most cases of reducing interceptions;
- the desirability in most cases of avoiding undue disruption of existing fisheries; and
- annual variations in abundance of the stocks. Id at Art. III, para. 2.
44. United Nations Convention on the Law of the Sea (UNCLOS), Dec. 10, 1982, —U.S.T.—, 21 I.L.M. 1261 (entered into force Nov. 16, 1994).
45. Id at Art. III, para. 1.
46. Id at Art. III, para. 6.
47. Pacific Salmon Treaty Act of 1985, 16 U.S.C. §3631, 3632(g). The Treaty also provided panels of six representatives each for stocks originating in the Pacific Northwest and Southern British Columbia, stocks originating in the Fraser River and stocks originating in Alaskan and northern British Columbia rivers. Id. at Annex I. A commentator involved in negotiating the treaty on behalf of the Columbia River tribes summarized the treaty process as follows:
[T]he panels will receive technical information from the two countries and from bi-lateral technical teams. the Commission will receive conservation and management information and recommendations from the panels. The Commission will recommend harvest regulations to each country, and each country will promulgate and enforce regulations to implement the Commission recommendations. Jensen, The United States-Canada Pacific Salmon Treaty: An Historical and Legal Overview 16 Envtl. L. 363 at 403-404 (1986).
48. Id. at Annex IV, chap. 3, para. 1(a).
49. As was noted shortly after the Treaty’s signing:
The ultimate success or failure of the Pacific Salmon Treaty is not only in the hands of the fishermen, but will be read in the decisions of the United States Forest Service, Environmental Protection Agency, Bureau of Land Management, Bonneville Power Administration, Federal Energy Regulatory Commission, Department of Energy, state and local government bodies, private landowners, industry and others. Will logging be managed to protect spawning habitat? Will adequate fish passage facilities be built and maintained at Columbia River and other Pacific Northwest dams? Will more dams be built? Will federal and state water quality laws be enforced? Will agricultural interest continue to be allowed to bleed spawning streams dry for crop irrigation? Jensen at 420.
50. To address habitat problems, the U.S. Section continues to discuss the formation of a Habitat Committee to provide a forum in which to develop recommendations for policy changes that will take into account the needs of the salmon resource and the people and communities that depend upon them. As for production, the Treaty already provides specific language regarding enhancement programs:
The parties agree that enhancement efforts designed to increase production of chinook salmon would benefit the rebuilding program. They agree to consider utilizing and redirecting enhancement programs to assist, if needed, in the chinook rebuilding program. They agree that each region’s catches will be allowed to increase above established ceilings based on demonstrations to the Commission and assessments by it of the specific contributions of each region’s new enhancement activities, provided that the rebuilding schedule is not extended beyond 1998. Id. at Annex IV, chap. 3, para. 2.