This Note indicates that both the district court's use of declaratory relief on the hatchery fish issue and the merits of its declaration on the environmental issue were entitled to affirmance. An analysis of the procedural history of the case suggests that the court should have decided the environmental issue. An analysis of the right to habitat protection reveals that habitat protection should be regarded as an implied term of the treaty right to take fish and that measuring the scope of the right by the tribes' moderate living needs fulfills the purpose of the treaty fishing clause. The measure of the state's duty to honor that right, however, needs further definition. Concern over acknowledgment of the Indians' right to habitat protection focuses on one real issue: the potentially disruptive effect on the state's development decisions. The cooperative approach taken by the Oregon district court in Sohappy v. Smith relieves this concern by providing workable guidelines for implementation of the treaty right. Sohappy, in which the state accords the Indians' rights weighted consideration, demonstrates that giving practical effect to the environmental right can be accomplished both effectively and economically through use of environmental procedures already in place.
Judith W. Constans,
The Environmental Right to Habitat Protection: A Sohappy Solution—United States v. Washington, 759 F.2d 1353 9th Cir.), cert. denied, 106 S. Ct. 407 (1985),
61 Wash. L. Rev.
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