State v. McCormack/Senter

The imposition of OAR 635-041-0025(3) to restrict the use of gill nets by treaty fishers fishing in usual and accustomed sites may be beneficial to its conservation interest but not necessary.

Defendants, members of the Nez Perce Tribe, appealed a fishing violation. OAR 635-041-0025(3), prohibits the use of fishing with a gillnet larger than five inches without authorization. Defendants assigned error to the trial court's denial of their motion to dismiss. On appeal, Defendants argued the State failed to prove that applying OAR 635-041-0025(3) to treaty fishers would be necessary for conservation because they did not demonstrate that the Nez Perce’s conservation methods were inadequate, or that the State would not accomplish its conservation goals by first regulating non-treaty fishers. In response, the State argued that applying OAR 635-041-0025(3) is necessary for salmon conservation because gillnets have the potential to catch a large amount of endangered fish in a short amount of time. Rules governing off-reservation fishing do not apply to treaty fishers fishing in usual and accustomed sites unless the State can prove by clear and convincing evidence: "(1) The 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. The Court found the State did not show that the tribes own conservation measures would be insufficient or that the State would not be able to to preserve the spring-run Chinook. The Court reasoned that the imposition of OAR 635-041-0025(3) to treaty fishers may be beneficial to its conservation interest but not necessary. Reversed.