State v. McCormack/Senter

                                       551

   Argued and submitted May 11, reversed September 8, petition for review
                 allowed December 29, 2022 (

)
                      See later issue Oregon Reports


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                  RUSSELL BOYD McCORMACK,
                      Defendant-Appellant.
                    Wasco County Circuit Court
                   19CR36453; A173714 (Control)
                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                 STEVEN DELROY SENTER, JR.,
                     Defendant-Appellant.
                   Wasco County Circuit Court
                     19CR36463; A173715
                                   

    In this consolidated criminal case, defendants—who are both enrolled members of the Nez Perce Tribe—caught salmon at a “usual and accustomed” place
pursuant to Article III of the Nez Perce Treaty of 1855, and they were convicted
of unlawfully taking food fish, ORS 509.006, using gillnets prohibited under
OAR 635-041-0025(3). On appeal, defendants argue that the trial court erred
when it denied their pretrial motions to dismiss, because the state failed to prove
that the gillnet regulation in OAR 635-041-0025(3), and its application to treaty
fishers, is necessary for the conservation of Columbia River salmon populations.
Held: Under Article III of the Nez Perce Treaty of 1855, defendants had a reserved
right to fish at “all usual and accustomed places” without restriction by the state,
unless the state proved that such restriction, and its application to treaty fishers,
was necessary for the conservation of fish. The evidence in the record was legally
insufficient to support the trial court’s conclusion that the gillnet regulation in
OAR 635-041-0025(3), and its application to treaty fishers, was necessary for the
conservation of Columbia River salmon populations; therefore, the trial court
erred in denying defendants’ motion to dismiss.
    Reversed.



    Janet L. Stauffer, Judge.
  John Evans, Deputy Public Defender, argued the cause
and filed the briefs for appellants. Also on the briefs was
552                           State v. McCormack/Senter

Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, Office of Public Defense Services.
   Carson L. Whitehead, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
  TOOKEY, P. J.
  Reversed.
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           TOOKEY, P. J.
          Under Article III of the Nez Perce Treaty of 1855,
members of the Nez Perce Tribe have a reserved right to
fish at “all usual and accustomed places” without restriction
by the state, unless the state proves that such restriction is
necessary for the conservation of fish.
          In this consolidated criminal case, defendants—
who are both enrolled members of the Nez Perce Tribe—
used gillnets to catch Chinook salmon at a “usual and
accustomed” place along the southern bank of the Columbia
River.1 As a result of that conduct, defendants were convicted
of unlawfully taking food fish with prohibited fishing gear,
ORS 509.006; OAR 635-041-0025(3).2 On appeal, defendants
raise five assignments of error, arguing that the trial court
erred when it denied defendants’ pretrial motions to dismiss,
because the evidence in the record is legally insufficient to
support the trial court’s conclusion that the gillnet regulation in OAR 635-041-0025(3), and its application to treaty
fishers, is necessary for the conservation of Columbia River
salmon populations. For the reasons that follow, we reverse.
         Whether the state has the authority to enforce its
regulations against treaty fishers is a question of law. State
v. Jim, 

, 

 (1986), rev den, 

 (1987). In determining “whether the trial court’s
findings of fact are sufficient to support the trial court’s conclusion,” we “review a trial court’s legal determinations for
legal error and the trial court’s findings of fact for any evidence in the record to support those findings.” M. A. B. v.

     1
       An Oregon Department of Fish and Wildlife (ODFW) fisheries manager
testified for the state that “[a] gill net is typically a single-walled … curtain
[with] mesh sizes [that] are generally big enough that they are … an ensnaring
gear” that, if “[f]ish encounter, they become ensnared in the mesh.”
     2
       ORS 509.006 provides, in relevant part, “It is unlawful to take … any food
fish in or from any waters of this state … in a manner or by means of the fishing
gear prohibited by law.”
     OAR chapter 635, division 41, provides rules applicable to “those individuals
possessing Indian treaty fishing rights pursuant to … the Nez Perce Treaty.”
OAR 635-041-0005(1). OAR 635-041-0025(3) provides, “It is unlawful to use gill
nets, set nets, hoop nets, setlines, or dip nets or bag nets of a mesh size exceeding
five inches, or any other type of fishing gear not otherwise specifically authorized
in section (1) of this rule, except during the times and in the areas where such
gear is authorized for commercial fishing.”
554                                          State v. McCormack/Senter

Buell, 

, 

 (2020). In accordance
with that standard, we recount the following facts.
                            I. BACKGROUND
A.    The Instant Litigation
           Defendants are enrolled members of the Nez Perce
Tribe.
         On May 16, 2019, defendants were fishing with gillnets along the southern bank of the Columbia River, near
The Dalles Dam. That location is a “usual and accustomed”
fishing site for treaty fishers and falls within “Zone 6” of
the Columbia River.3 At the time, the spring-run Chinook
salmon were migrating up the Columbia River. Defendants
were using gillnets that measured, respectively, 32 feet long
by 11 feet deep, with an eight-inch mesh; and 42 1/2 feet long
by 17 1/2 feet deep, with a seven-and-one-half inch mesh.
Three Senior Troopers with the Oregon State Police Fish
and Wildlife Division contacted defendants and cited them
for using gillnets that did not comply with OAR 635-041-
0025(3). The state then charged each defendant with one
count of unlawfully taking a food fish under ORS 509.006,
based on defendants’ use of noncompliant gillnets.
         In substantively identical pretrial motions to dismiss, defendants argued that, under federal law, the state
could not enforce the gillnet restriction in OAR 635-041-
0025(3) against defendants, because the state could not
prove that that restriction, and its application to treaty fishers, was necessary for the conservation of Columbia River
fish populations. The state responded that OAR 635-041-
0025(3), and its application to treaty fishers, was necessary
for conservation, and that it would offer testimony to that
effect from an Oregon Department of Fish and Wildlife
(ODFW) fisheries manager.
       At a hearing on defendants’ pretrial motions, the
ODFW fisheries manager testified that, although gillnets are
     3
       The state stipulated below that “the incident location was at a usual and
accustomed place on the Columbia River” in Zone 6. Zone 6 is a 147-mile stretch
of the Columbia River between Bonneville Dam (to the west) and McNary Dam
(to the east). Zones 1 to 5 cover a 145-mile stretch of the river between Astoria (to
the west) and Bonneville Dam (to the east).
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allowed for commercial fishing at certain times and places
in other zones of the Columbia River, gillnets are not allowed
for treaty subsistence fishing in Zone 6.4 He explained that,
in the area where defendants were fishing in Zone 6 near the
dam, fish “congregate as they are looking for the fish ladders
to ascend the ladders and continue migrating” and “can be
present in greater concentrations [near the ladders] than
they might be in the rest of the river.” The ODFW fisheries
manager testified that the gillnet regulation in OAR 635-
041-0025(3) was necessary for conservation, because there
are 13 fish species in the Columbia that are listed as either
“threatened” or “endangered” under the federal Endangered
Species Act, including spring-run Chinook; that “[g]ill nets
have the capacity to catch a tremendous amount of fish in
a short amount of time”; and that, “even if just by accident
[a gillnet] was left too long or unattended or just an unlucky
swarm of fish came through in a very short amount of time,
you could catch a high amount of fish and there is the potential that those would be endangered or listed.” He explained
that, for him, the “specific concern” was that use of gillnets
at the location where defendants were fishing near the dam
had the “potential capacity to impact those endangered
stocks in a short amount of time.”
        The ODFW fisheries manager further testified that
the treaty tribes are allotted a certain quantity of fish that
they may harvest pursuant to a joint management agreement with the state—i.e., the 2018-2027 United States v.
Oregon Management Agreement (Management Agreement);5
    4
      OAR 635-041-0010(5) provides, “ ‘Subsistence fishing’ means taking fish for
Indians’ personal use, including the sale or exchange with other treaty Indians,
but not sale or trade with non-Indians.”
    5
      The ODFW fisheries manager referred to the 2018-2027 United States
v. Oregon Management Agreement, which the state attached as an exhibit to
an affidavit it filed in the trial court. The Management Agreement is the latest of several, similar, prior joint-management agreements regarding fish harvests in the Columbia River. See Michael C. Blumm & Cari Baermann, The
Belloni Decision and Its Legacy: United States v. Oregon and Its Far-Reaching
Effects After a Half-Century, 50 Envtl L 347, 372-80 (2020) (explaining history
and evolution of Columbia River fisheries co-management plans between 1969
and 2020). The signatories to the Management Agreement include the tribes of
the Nez Perce, Umatilla, Warm Springs, Yakama, and Shoshone-Bannock; the
states of Washington, Idaho, and Oregon; and NOAA Fisheries, the U.S. Fish and
Wildlife Service, and the Bureau of Indian Affairs. We discuss the Management
Agreement in greater detail, below. See 321 Or App at 557-59.
556                              State v. McCormack/Senter

that he did not believe the tribes had exceeded the catch
amounts for any threatened or endangered fish species
during the 2019 spring run; and that he was not aware of
any instance where treaty fishing had impeded the recovery
of any fish population in the Columbia River.

         During his testimony, the ODFW fisheries manager also stated that the “greatest manmade impact” on
Columbia River fish populations comes from the river’s system of dams: “The dams impede migration in both directions
and cause [a] tremendous amount of both immediate and
latent mortality for the out-migrating” fish. He also identified other human activities that negatively impact Columbia
River fish populations, including “[l]ogging, stream use,
[and] agriculture.”

         Based primarily on the ODFW fisheries manager’s testimony, the trial court found, by preponderance of
the evidence, that the gillnet regulation in OAR 635-041-
0025(3), and its application to treaty fishers, was necessary
for conservation. In so ruling, the trial court emphasized
that the evidence showed a need to prohibit gillnets at the
location where defendants had been fishing near the dam,
because the fish “congregate in high numbers” there, and
gillnets would allow fishers to catch “high numbers” of fish.
The court specifically found that the regulation at issue was
“required to prevent a demonstrable harm to actual conservation” and was “essential” to perpetuating “the spring
runs of the salmon.” The trial court then held a stipulatedfacts bench trial, and defendants were both found guilty of
unlawfully taking food fish with prohibited fishing gear,
ORS 509.006; OAR 635-041-0025(3).

          On appeal, defendants contend that the state did not
satisfy its burden of proving that OAR 635-041-0025(3), and
its application to treaty fishers, was necessary for conservation, because, among other reasons, the state presented no
evidence that the Nez Perce Tribe’s own conservation measures were insufficient for conservation of the salmon or that
the state’s conservation goal served by the gillnet restriction
could not be accomplished by further regulating nontreaty
fishers.
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         The state responds that, based on the ODFW fisheries manager’s testimony, the state met its burden by
showing that gillnets are capable of catching large numbers of threatened or endangered fish in a short amount of
time, particularly where defendants were fishing near The
Dalles Dam, and that OAR 635-041-0025(3) imposes “limited restrictions on location and gear,” which are “consistent
with” the Management Agreement. For those reasons, the
state contends, the evidence was legally sufficient to support
the trial court’s determination that OAR 635-041-0025(3),
and its application to treaty fishers, is necessary for the conservation of salmon.6
B. United States v. Oregon and the 2018-2027 Management
   Agreement
         Before turning to the legal issue in the instant case,
we discuss the decades-long litigation of treaty-reserved
fishing rights in United States v. Oregon and the 2018-2027
United States v. Oregon Management Agreement, because
the parties refer to it throughout their briefing, and because
it has factored prominently in both the state’s efforts to conserve fish populations and the tribes’ efforts to uphold their
treaty-reserved right to fish.
          In September 1968, the United States—on behalf
of itself and various tribes, including the Nez Perce Tribe—
filed a complaint in United States v. Oregon, 

 (D Or 1969),7 challenging certain Oregon statutes

     6
       On appeal, both parties assert—and we agree—that, as in State v. Jim, we
need not decide whether the argument raised below in defendants’ motions to
dismiss presented an issue of subject-matter jurisdiction, personal jurisdiction,
or simply a treaty defense to prosecution, as doing so would not affect the dispositive legal question before our court—i.e., whether the evidence was legally sufficient to support the trial court’s determination that OAR 635-041-0025(3), and
its application to treaty fishers, is necessary for conservation. See State v. Jim,

, 191 n 2, 

 (1986) (“Defendant raises the same issue in
two ways. First, he challenges the state’s jurisdiction. Second, he raises a treaty
defense. The analysis in both cases is the same.”).
     7
       Due to the overlapping treaty-rights issues raised in two separate federal
court cases—Sohappy v. Smith and United States v. Oregon—the district court
ordered both cases “consolidated for pretrial procedures and for trial.” See 

. Consequently, Sohappy represents the first case in the ongoing
litigation referred to as United States v. Oregon. See, e.g., United States v. Oregon,
657 F2d 1009, 1011 (9th Cir 1981) (noting that “[t]he United States initiated this
action in 1968,” and citing Sohappy v. Smith, 

 (D Or 1969)).
558                                         State v. McCormack/Senter

and regulations that, the plaintiffs argued, violated their
treaty right to fish at “usual and accustomed places” on the
Columbia River. 

. The court determined that the treaties entitled the tribes to “a fair share of
the fish produced by the Columbia River system,” and that
any state regulation must be “necessary for conservation.”

. The court then retained jurisdiction over the case
in anticipation of similar, future disputes, explaining:
        “This court cannot prescribe in advance all of the details
    of appropriate and permissible regulation of the Indian
    fishery …. As the Government itself acknowledges, proper
    anadromous fishery management in a changing environment is not susceptible of rigid pre-determination [and]
    the variables that must be weighed in each given instance
    make judicial review of state action, through retention
    of continuing jurisdiction, more appropriate than overlydetailed judicial predetermination.”

 (internal quotation marks omitted).8
         The court’s decision to retain jurisdiction soon
proved essential; throughout the early 1970s, “litigation continued,” state management of the fish runs “often occurred
on a run-by-run basis,” and the tribes repeatedly “ask[ed]
the court for emergency injunctions.” Michael C. Blumm &
Cari Baermann, The Belloni Decision and Its Legacy: United
States v. Oregon and Its Far-Reaching Effects After a Half-Century, 50 Envtl L 347, 373 (2020). Therefore, in 1975, the
court “ordered the tribes and states to cooperate on developing a comprehensive fish management plan.” Id. at 374.
In 1977, “the tribes and states finally adopted a five-year
co-management plan”; however, the “1977 plan expired in
1982,” and the “next year, the parties were back in court,
litigating the same conservation issues over which the parties struggled since … 1969.” Id. at 374-75. From 1983 to
1988, the “tribes and the states continued to negotiate,”
and, in 1988, “the tribes and states agreed to a new tenyear Columbia River Fish Management Plan (1988 plan).”

    8
       The term “Indian”—rather than another term—appears throughout this
opinion, because that is the term used in the relevant case law, federal legislation, and scholarly literature, see State v. Begay, 

, 652 n 3, 

 (2021) (taking similar approach), and it is the term used by the parties in
their briefing.
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Id. at 376. The 1988 plan “included not only harvest limits
but also established specific goals, timetables, and methods
for cooperative management of both natural and hatchery
fish for Columbia River Basin fish runs in Idaho, Oregon,
and Washington.” Id. (internal quotation marks omitted).
         Thereafter, the parties negotiated several subsequent agreements, and, in 2018, the parties negotiated the
2018-2027 United States v. Oregon Management Agreement.
The signatories of the Management Agreement include the
Nez Perce, Umatilla, Warm Springs, and Yakama tribes—
collectively referred to as the “Columbia River Treaty
Tribes”; the states of Washington, Idaho, and Oregon; and
NOAA Fisheries, the U.S. Fish and Wildlife Service, and the
Bureau of Indian Affairs. As noted above, the purpose of the
Management Agreement is “to provide a framework within
which the Parties may exercise their sovereign powers in a
coordinated and systematic manner to protect, rebuild, and
enhance upper Columbia River fish runs while providing
harvests for both treaty Indian and non-treaty fisheries.”
United States v. Oregon Management Agreement (2018-
2027), Civ No 3:68-cv-00513-MO (D Or Feb 26, 2018), ECF
2607-1. The Management Agreement provides, among other
things, the allotment of fish that the Columbia River Treaty
Tribes have a legal right to harvest. It also provides that
“[t]he Columbia River Treaty Tribes maintain that tribal
fisheries are subject to limitations only under the conservation necessity standards in federal case law, including case
law governing the United States v. Oregon litigation. Other
Parties, including the States, disagree.”
                      II. ANALYSIS
         We begin our analysis by discussing the Nez Perce
Tribe’s treaty right to fish at “usual and accustomed” places.
We then discuss the “conservation necessity” standard—
the standard developed by the federal courts that governs
the permissibility of state restrictions on treaty fishing
rights. Finally, we apply that standard to the instant case,
concluding that the trial court erred when it denied defendants’ pretrial motion to dismiss, because we believe the
evidence in the record is legally insufficient to support the
trial court’s conclusion that the gillnet regulation in OAR
560                               State v. McCormack/Senter

635-041-0025(3), and its application to treaty fishers, is
necessary for the conservation of Columbia River salmon
populations.

A.    The Nez Perce Tribe’s Treaty Right to Fish at Usual and
      Accustomed Places

         Scholars have pointed out that, “[p]rior to white settlement, numerous tribes established temporary and permanent fishing camps along the Columbia River.” Blumm &
Baermann, 50 Envtl L at 349 n 4 (2020). By “the early 1850s,
the Nez Perce still lived in their vast aboriginal domain,”
which “encompassed most of Central Idaho … as well as
parts of southeast Washington and northeast Oregon,” and
they “travel[ed] to traditional fishing spots as far west as the
fabulous grounds at Celilo Falls on the Columbia.” Charles
F. Wilkinson, Indian Tribal Rights and the National Forests:
The Case of the Aboriginal Lands of the Nez Perce Tribe, 34
Idaho L Rev 435, 436 (1998). In 1854 and 1855, during a
“burst of treaty-making activity,” the United States negotiated numerous treaties with the Indians of Oregon and
the Puget Sound region. Felix Cohen, Cohen’s Handbook of
Federal Indian Law § 1.03(6)(b), 63-64 (Nell Jessup Newton
ed 2012). One of those treaties was the Nez Perce Treaty of
1855. 12 Stat 957 (ratified Mar 8, 1859).

         As relevant here, Article III of the Nez Perce Treaty
of 1855 guarantees to the Nez Perce “the right of taking fish
at all usual and accustomed places in common with citizens
of the Territory.” Id. It is “well established that every fishing location where members of a tribe customarily fished
from time to time at and before treaty times … is a usual
and accustomed ground or station at which the treaty tribe
reserved, and its members presently have, the right to take
fish.” United States v. Confederated Tribes of Colville Indian
Reservation, 

 (9th Cir 2010).

        Importantly, we highlight that the “treaty was not
a grant of rights to the Indians, but a grant of right from
them—a reservation of those not granted.” United States v.
Winans, 

, 

, 

 (1905)
(emphases added). The fishing rights guaranteed under the
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Nez Perce Treaty of 1855 are “part of the supreme law of
the land which the states and their officials are bound to
observe.” Sohappy v. Smith, 

 (D Or 1969).
Accordingly, “[t]he right to fish ‘at all usual and accustomed’
places may, of course, not be qualified by the State.” Puyallup
Tribe v. Dep’t of Game (Puyallup I), 

, 

, 

 (1968); see also Antoine v. Washington,

, 

, 

 (1975) (“State
qualification of the [tribe’s treaty-reserved fishing] rights is
… precluded by force of the Supremacy Clause.”).
B.   The Conservation Necessity Standard
          As a general rule, “state regulation of Indian hunting and fishing must yield to Indian rights secured by [the
Nez Perce] treaty,” State v. Jim, 

, 

 (1986), but the United State Supreme Court has held
that “the manner of fishing, the size of the take, the restriction of commercial fishing, and the like may be regulated by
the State in the interest of conservation,” Puyallup I, 

. However, “no regulation applied to off-reservation
treaty [fishing] can be valid or enforceable unless and until
it has been shown reasonable and necessary to conservation
as defined by federal law.” Jim, 81 Or App at 194 (brackets and internal quotation marks omitted); see also United
States v. Sohappy, 770 F2d 816, 823 (9th Cir 1985), cert den,

 (1986) (“[A] State prosecuting an Indian treaty
fisherman for violating a state fishing regulation must
establish that the regulation is reasonable and necessary
for conservation purposes.”).
         Under federal law, “[c]onservation purposes are
narrowly circumscribed, encompassing only those that are
necessary for the perpetuation of a species,” or “necessary to
prevent the exercise of the [fishing] right in a manner that
will imperil the continued existence of the resource.” Jim,
81 Or App at 193 (citing Dep’t of Game v. Puyallup Tribe
(Puyallup II), 

, 

, 

(1973), and Sohappy, 

 (brackets, ellipsis,
and internal quotation marks omitted)). Thus, the “ ‘conservation necessity’ standard accommodates both the State’s
interest in management of its natural resources and the
[Tribe’s] federally guaranteed treaty rights.” Minnesota v.
562                                State v. McCormack/Senter

Mille Lacs Band of Chippewa Indians, 

, 

, 

 (1999).
         To satisfy the conservation necessity standard—
and, therefore, to enforce the regulation against treaty fishers
at usual and accustomed sites—the state must prove three
requirements: “(1) [T]he regulation is a reasonable and necessary conservation measure; (2) the application of the specific regulation to treaty fishers is necessary in the interest
of conservation, and (3) the regulation does not discriminate
against treaty fishers.” Jim, 81 Or App at 181. We focus in
particular on the first and second prongs, as they are dispositive in this case.
         Regarding the first prong, to show that its regulation is a reasonable and necessary conservation measure,
“the state must show that … the regulation [is] the least
restrictive which can be imposed consistent with” achieving
the state’s conservation goal, United States v. Oregon, 769 F2d
1410, 1416 (9th Cir 1985), and the “state must demonstrate
that the tribe’s own conservation measures are insufficient to
meet the needs of conservation,” Shoshone Bannock Tribes v.
Fish & Game Comm’n, 

, 1283 (9th Cir 1994) (citing
United States v. Washington, 520 F2d 676, 686 (9th Cir 1975),
cert den, 

 (1976) (“So long as the tribes responsibly insure that the run of each species in each stream is preserved, the legitimate conservation interests of the state are
not infringed.”)). Regarding the second prong, to show that
applying the specific regulation to treaty fishers is necessary
in the interest of conservation, “[t]he state must show … that
restriction of … non-treaty [fishers] is insufficient to accomplish conservation of the resource.” Jim, 81 Or App at 195;
see also Washington, 520 F2d at 686 (“The state must pursue its goals as best it can by regulating its own non-treatyIndian citizens,” and “[d]irect regulation of treaty Indian fishing in the interests of conservation is permissible only after
the state has proved unable to preserve a run by forbidding
the catching of fish by other citizens under its ordinary police
power jurisdiction.” (Citing Antoine, 

.)).
        Under the conservation necessity standard, the
state bears the burden of proof. Jim, 81 Or App at 194; see
also Antoine, 

 (“[T]he State must demonstrate
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that its regulation is a reasonable and necessary conservation measure.”). Though it is well established that that
burden falls upon the state, it is less well established what
degree of proof is required to satisfy that burden.9 The
appellate courts of this state have not previously addressed
that point, and the scant case law from other jurisdictions
that have addressed that point shows that not every court
has required the same degree of proof. At least one jurisdiction has required a “preponderance of the evidence.” See
State v. Peterson, 

, 

 (Wis
Ct App 1980) (“[T]he reasonableness and necessity of the
enforcement of a regulation against Indian fishermen …
must be supported by a preponderance of the evidence.”);
but see State v. Newago, 

, 

 (Wis Ct App 1986) (LaRocque, J., dissenting) (“I
believe State v. Peterson, [

], to be in error in
its conclusion that the [conservation necessity standard
must be] proven only by a preponderance of the evidence.
… I would reverse and remand to the trial court for the
purpose of determining the reasonableness and necessity of
the DNR regulation … under a clear, satisfactory, and convincing burden of proof.”). In other jurisdictions, however,
courts have required “clear and convincing evidence.” See
United States v. State of Mich., 653 F2d 277, 279 (6th Cir),
cert den, 

 (1981) (“The state bears the burden
of persuasion to show by clear and convincing evidence that
… the need for [its gillnet fishing] regulation exists.”); see
also State v. Reed, 92 Wash 2d 271, 276, 

, cert
den, 

 (1979) (noting that “the state need only
introduce clear and convincing evidence to show that the
regulation was reasonable and necessary for conservation”
(citing United States v. Washington, 

(WD Wash 1974))). In light of the available authority, and
because this case involves Indian treaty rights—a matter of
federal law—we follow the United States Court of Appeals
for the Sixth Circuit and the Washington State Supreme

    9
      As one scholarly article observes, the United States Supreme Court is “all
over the map in determining the standard of proof for the various sovereigntyprotected doctrines,” and, in the context of the conservation necessity standard,
“there is little guidance as to what kind of showing is demanded.” Note, The
Sovereign Self-Preservation Doctrine in Environmental Law, 133 Harv L Rev 621,
633-34 (2019).
564                                         State v. McCormack/Senter

Court, and we conclude that the conservation necessity
standard requires the state to prove by clear and convincing
evidence that its regulation of treaty fishing is necessary for
conservation.10

    10
       There are, we think, two additional reasons in support of requiring the
state to meet its burden under the conservation necessity standard by clear and
convincing evidence. First, we are mindful that “Indian treaties, like international treaties, entered into by the United States are part of the supreme law
of the land which the states and their officials are bound to observe.” Sohappy,

; see also Missouri v. Holland, 

, 

,

 (1920) (“[Under] Article 6, treaties made under the authority of the
United States, along with the Constitution and laws of the United States made
in pursuance thereof, are declared the supreme law of the land.”). For that reason, “[s]tate regulation of tribal rights normally is preempted by federal law,”
and courts have made it clear that “a state may regulate off-reservation [treaty]
rights only so long as the regulation is ‘reasonable and necessary’ ” for conservation. Restatement of the Law of American Indians (Proposed Final Draft) § 83(e)
(Mar 30, 2021); see also Sohappy, 

 (holding that state may regulate tribe’s treaty-reserved fishing rights “only to the extent necessary to prevent
the exercise of that right in a manner that will imperil the continued existence of
the fish resource”). Thus, we think that requiring the higher clear and convincing standard, rather than the lower preponderance standard, is more consistent
with the limitations on state regulatory power enshrined in the conservation
necessity standard and with the status of Indian treaty-fishing rights under the
Supremacy Clause. See OTR Wheel Eng’g, Inc. v. W. Worldwide Servs., Inc., 

 (9th Cir 2018) (“Clear and convincing evidence requires greater
proof than preponderance of the evidence.”).
     Second, when a federal law (rather than state law) has the effect of restricting an Indian treaty right, federal courts have required “clear evidence” or “clear
and convincing evidence” that Congress intended to abrogate that treaty right.
See, e.g., Herrera v. Wyoming, 

, 

, 

 (2019) (“There simply is no evidence that Congress intended to abrogate the
1868 Treaty right through the Wyoming Statehood Act, much less the ‘clear evidence’ this Court’s precedent requires.”); Mille Lacs Band of Chippewa Indians,

 (“Congress may abrogate Indian treaty rights, but … [t]here
must be clear evidence that Congress actually considered the conflict between
its intended action on the one hand and Indian treaty rights on the other, and
chose to resolve that conflict by abrogating the treaty.” (Internal quotation marks
omitted.)); United States v. Turtle, 365 F Supp 3d 1242, 1248 (MD Fla 2019)
(“[T]he Court does not find clear and convincing evidence that Congress chose to
abrogate the Tribe’s” treaty-secured fishing and hunting rights.); United States
v. Fiddler, No 2:10-cr-00052-RLH-LRL, 

 at *2 (D Nev Mar 11,
2011) (“In assessing whether Congress implicitly abrogated a treaty right, what
is essential is clear and convincing evidence that Congress” chose to abrogate the
Indian treaty.); United States v. Imperial Irrigation Dist., 

(SD Cal 1992) (“[T]he relevant inquiry is whether … clear and convincing evidence [shows] that Congress knew that the lands were Indian lands and intended
to abrogate the band’s rights to the land.”). To the extent that an analogy may be
drawn between a federal law restricting treaty-reserved rights and a state law
doing the same, we think that using the clear and convincing standard in the former context seems to support, and be consistent with, using that same standard
in the latter context.
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         With that understanding of the conservation necessity standard in mind, we turn to its application in this case.
C. Application
          As explained above, to enforce the gillnet restriction in OAR 635-041-0025(3) against defendants, the state
had the burden of proving by clear and convincing evidence
that that restriction, and its application to treaty fishers,
was necessary for conservation. Here, as relevant to our consideration of prongs one and two of the conservation necessity standard, the state presented testimony that gillnets
are allowed for commercial fishing in other zones of the
Columbia River but are not allowed for treaty subsistence
fishing in Zone 6, where defendants were fishing; that there
are 13 species of fish in the Columbia River that are threatened or endangered; that fish congregate in higher concentrations near the dam where defendants were fishing; that
gillnets are capable of catching large amounts of fish very
quickly; and that gillnets “left too long or unattended” have
the “potential capacity to impact those endangered stocks
in a short amount of time.” That evidence might be sufficient to show that enforcing OAR 635-041-0025(3) against
treaty fishers could be beneficial to the state’s salmon conservation goals; however, we conclude that the trial court
erred when it denied defendants’ pretrial motions to dismiss, because the evidence in the record is legally insufficient to support the trial court’s conclusion that the gillnet
regulation in OAR 635-041-0025(3), and its application to
treaty fishers, is necessary for the conservation of Columbia
River salmon populations. Cf. Jim, 181 Or App at 195
(“[A] rational relation to conservation … is not enough to
authorize the state to enforce its regulation” against treaty
fishers.).
        As we said above, under the first prong of the
conservation necessity standard, to show that OAR 635-
041-0025(3) is necessary for conservation, “the state
must demonstrate that the tribe’s own conservation measures are insufficient to meet the needs of conservation.”
Shoshone Bannock Tribes, 42 F3d at 1283. Here, however, the state presented little, if any, evidence about the
Nez Perce Tribe’s own conservation measures, much less
566                                        State v. McCormack/Senter

evidence demonstrating clearly and convincingly that any
such measures are insufficient to ensure the perpetuation
of the fish in the Columbia River.11 To the contrary, testimony from the ODFW fisheries manager showed that the
tribes had not violated the catch amounts for any threatened or endangered fish species during the 2019 spring run,
and that he was not aware of any instance where treaty
fishers had impeded the recovery of any of the fish populations in the Columbia River. Thus, we do not think the state
met its burden with respect to that point. See Washington,
520 F2d at 686 (“So long as the tribes responsibly insure
that the run of each species in each stream is preserved,
the legitimate conservation interests of the state are not
infringed.”).
          Additionally, as we also said above, under the second requirement of the conservation necessity standard,
“[d]irect regulation of treaty Indian fishing in the interests of conservation is permissible only after the state has
proved unable to preserve a run by forbidding the catching of fish by other citizens under its ordinary police power
jurisdiction,” Washington, 520 F2d at 686, and “[t]he state
must show … that restriction of … non-treaty [fishers]
is insufficient to accomplish conservation of the resource,”
Jim, 81 Or App at 195. Here, the state’s witness explained
that gillnets are not allowed for treaty subsistence fishing
in Zone 6 of the Columbia River, but gillnets are allowed for
non-treaty commercial fishing in other zones of the river.
However, nothing in the record shows that the state was
unable to preserve the spring-run Chinook by forbidding
the catching of fish by other individuals under its ordinary
police power and, therefore, had to adopt this particular
gillnet regulation. Similarly, the state did not show that further restriction of non-treaty fishers would be insufficient to
accomplish conservation of the Columbia River fish populations. The state did not show, for example, that restricting
or forbidding non-treaty fishing in Zones 1 to 5—where gillnet fishing by non-treaty fishers is allowed at certain times
and places for commercial purposes—would be insufficient
    11
       During the hearing on defendants’ pretrial motion, the state observed that
the Nez Perce regulations define “gill net” but do not “say one way or another
where it can be used.”
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to accomplish conservation of the Columbia River salmon
populations.
         For the above reasons, we conclude that the evidence in the record is legally insufficient to support the trial
court’s conclusion that the gillnet regulation in OAR 635-
041-0025(3), and its application to treaty fishers, is necessary for the conservation of Columbia River salmon populations; therefore, the trial court erred in denying defendants’
motion to dismiss.
         In seeking a contrary conclusion, the state also
contends that the harvest allotments provided in the
Management Agreement are necessary for conservation,
and that OAR 635-041-0025(3) imposes “limited restrictions on location and gear,” which are “consistent with” the
Management Agreement. As we understand that contention, the state suggests that the gillnet restriction in OAR
635-041-0025(3) being “consistent with” the Management
Agreement indicates that that restriction is necessary for
conservation. We disagree.
         As noted above, the test for determining the permissibility of a state restriction on treaty-reserved fishing
rights is whether that restriction is necessary for conservation (i.e., necessary for the perpetuation of a species), not
whether it is “consistent with” a co-management agreement.
To be sure, the ODFW fisheries manager testified that the
treaty tribes are allotted a certain quantity of fish that they
may harvest under the Management Agreement, and the
Management Agreement does provide that “[t]ribal harvest
in mainstem treaty fisheries with subsistence [fishing] gear
shall be consistent with any harvest guidelines identified
herein.”
        However, nothing in the Management Agreement
requires the Nez Perce to subject their treaty-reserved fishing rights to a gillnet restriction such as that contained in
OAR 635-041-0025(3), nor does the agreement otherwise
proscribe the use of the type of fishing gear for which defendants were cited under OAR 635-041-0025(3). Likewise,
nothing in the record indicates that the Nez Perce Tribe
harvests in mainstem treaty fisheries with subsistence
fishing gear have failed to be consistent with the harvest
568                             State v. McCormack/Senter

guidelines identified in the Management Agreement; to the
contrary, the ODFW fisheries manager explained that he
was not aware of any instance in which the Nez Perce Tribe
had exceeded its harvest allotments under the Management
Agreement.
         In short, nothing in the record indicates that the
gillnet restriction in OAR 635-041-0025(3) is required under
the Management Agreement or is otherwise necessary for
achieving the state’s conservation goals for Columbia River
fish populations. Thus, to the extent that the state argues
that OAR 635-041-0025(3) is a permissible restriction of
defendants’ treaty-reserved fishing rights because it is consistent with the Management Agreement, that argument
is—on this record—unpersuasive.
                    III.   CONCLUSION
        For the reasons explained above, we conclude that
the evidence in the record is legally insufficient to support
the trial court’s conclusion that the gillnet regulation in
OAR 635-041-0025(3), and its application to treaty fishers,
is necessary for the conservation of Columbia River salmon
populations. The trial court therefore erred in denying
defendants’ motion to dismiss.
        Reversed.