Public law litigation and marine affairs: The boldt decision

Abstract

The management and conservation of the marine environment and its natural resources are increasingly understood to be issues of public policy with consequences for society at large. On a variety of dramatic occasions over the last decades, the federal judiciary has departed from its traditionally passive role in the shaping of social policy. This paper examines a critical marine controversy, the Boldt Decision (U.S. v. Washington 1974), to illustrate and evaluate nontraditional judicial behavior. The first two sections introduce Indian‐United States treaties concerning Pacific Northwest salmon resources, and the unfolding of the Boldt Decision. A third section argues that a “public law”; model of litigation fits the legal events of the Boldt Decision. A fourth section addresses the competence of the Boldt court as it is manifest in judicial organization, analysis, and implementation. A final section comments on the potential for public law litigation elsewhere in the governing of marine affairs.