Of Fish, Federal Dams, and State Protections: A State's Options Against the Federal Government for Dam-Related Fish Kills on the Columbia River

Abstract

Since the federal government developed the Columbia River for hydropower, fish kills - single events killing thousands of fish - have been infrequent but recurring consequences of the Columbia River dams. Over the weekend of July 15-19, 1994, for example, at least 36,000 and perhaps more than 90,000 juvenile chinook salmon died at the federally owned and operated McNary Dam in the dam's fish collection system. The state laws of Oregon, Washington, and Idaho would have allowed those state to sue for damages for the kill, providing a legal means of checking or challenging federal decision-making in the day-to-day operation of the dams. However, federal sovereign immunity creates a severe impediment to state suits against the United States for fish kills at federal dams. This Comment explores the extent of federal immunity for dam-related fish kills, discusses the interaction of state and federal interests in the Columbia River, and argues that the Columbia River states should have a strict liability remedy available to them against the federal government for fish kills in the Columbia River arising out of the Federal Columbia River Power System.

Keywords: sovereign immunity, fish, hydroelectric, dam, Columbia River, salmon, federalism