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The Independent Institute
Research Article

Legally Induced Technical Regress in the Washington Salmon Fishery

The history of the Washington salmon fishery is a legal and economic horror story. When the whites first encountered the flourishing aboriginal fishery, they failed to recognize the virtues of its technical and, in a certain sense, legal organization. Determined to transform into private wealth an immensely valuable natural resource, they rushed to appropriate the salmon fishery and threatened its survival. The state’s voters, legislators, and appointed managers of the fishery, where the salmon ostensibly “belonged” to all the citizens of Washington collectively, would not permit outright destruction of the resource. But their response to the threat of overfishing was neither to limit entry into the fishery nor to create and enforce a private property right in it, something the Indians had approximated before the advent of the whites. Rather, the state’s solution was to limit the harvest by penalizing or prohibiting the more productive harvesting techniques. In the Washington fishery today fewer than 10,000 commercial fishermen, aided by many millions of dollars worth of fishing gear, harvest about 6 million salmon annually. Before World War I a similar number of men, working with much less than the modern amount of capital, normally harvested three to four times more salmon each year. Thus, commercial fishing productivity is now only a small fraction of what it was 70 years ago. This technical regress did not have to happen; in no sense was it inexorable. Those who created and enforced the legal rules of the fishery—voters, legislators, and state officials—made it happen. My story deals with how and why they did so and some of the economic consequences.

I. Rudiments of the Fishery

Five species of Pacific salmon—chinook, coho, sockeye, pink, and chum—and the steelhead trout are native to the waters of Washington. Although they differ in various respects, these species all follow an anadromous life course. They spawn in the gravel beds of shallow, clear, fast-running mountain streams. After a period of early growth in fresh water, the juvenile fish migrate downstream and enter the salt water of Puget Sound or the Pacific Ocean. Eventually, most of those in the sound continue through the Strait of Juan de Fuca to the Pacific. In the ocean, they feed, attempt to elude numerous predators, and—with luck—grow to maturity. While at sea, the several races of salmon disperse and intermingle with each other. At the age of 2 to 6 years, depending on the species, they migrate back to their places of origin. Each race moves homeward at a characteristic time—most sockeye from the Fraser River system, for example, pass eastward through the strait in late July and August. Many runs overlap, as the sockeye and the pink do in the northern sound, but each varies little from year to year in its return migration schedule. (Pink salmon in Puget Sound have the unique peculiarity that they run only in odd-numbered years.) As a run approaches its spawning site, its members become increasingly concentrated and separated from other runs. When they reenter fresh water, the salmon–but not the steelhead—cease feeding. For the remainder of their journey, which in some cases is more than a thousand miles, they consume their own body fat as a source of energy. Finally arriving at their places of origin, they dig nests in the gravel, deposit and fertilize their eggs, and die. The steelhead, again an exception, may live to migrate and spawn again, some passing through as many as three or four cycles.

For present purposes, two aspects of the life course of these fish are especially important to note:

First, their migration paths take them through long, narrow passages, in most cases either the Columbia River or the Strait of Juan de Fuca and Puget Sound, where successive fisheries can be placed (see Figure 1). Of course, everyone knows exactly where the adult fish ultimately will arrive, and therefore, from a societal point of view, it is wasteful to employ resources in attempts to locate and capture them prior to their arrival at their spawning streams.[1] However, in the absence of legal rules and enforcement to preclude it, prior interception may be economically attractive from a private point of view. The narrow passages through which the runs must pass facilitate such premature interception.

Second, in long-run equilibrium there exists a relation between the number of spawners and the number of subsequently returning fish. This relation is not monotonically increasing, because too many spawners can overload the capacity of a spawning area: there is neither sufficient space for building nests and depositing eggs nor enough nutrients available to sustain the overnumerous offspring; a congestion externality obtains. The spawner-returner relation therefore has a maximum. When the number of returning fish exceeds the number in the parent generation, the excess can be harvested on a sustained basis. In practice the harvestable excess is difficult to determine, because the actual spawner-returner relation is stochastic with a random element that is large relative to the expected values. The number of returners not harvested is called “escapement.” Much of fisheries management is concerned with insuring that this attains an optimal level.

By employing the spawner-returner function in conjunction with a function relating catch to fishing “effort” (composite inputs used in fishing) and to the number of returners, one can derive a sustained-yield function that relates fishing effort and catch in long-run equilibrium. (See Anderson, 1977 pp. 99–101 for the derivation). This is the counterpart in fisheries economics of the familiar production function in general economics. Like a typical production function, it shows the output (catch) rising at a diminishing rate as the variable input (effort) is added: the catch reaches a maximum and then declines. Too much fishing effort reduces the number of spawners to such low levels that they cannot sustain a population yielding current high catches indefinitely. If fishing effort is pushed far enough, runs can be virtually destroyed, although normally it would not be economically rewarding from a private point of view, to carry fishing effort to such drastic lengths even in an open-access fishery.

II. The Aboriginal Fishery

When large numbers of whites first moved into western Washington in the 1850s they found many small tribes of Indians whose cultures revolved around a flourishing salmon fishery. Suiting their tools to the occasion, the aborigines employed a variety of fishing gear, including traps, weirs, baskets, dip nets, spears, hooks and lines, gaffs, and assorted entangling nets and seines, to capture salmon. The diversity of their gear notwithstanding, they clearly placed major reliance on fixed appliances operated at strategic positions along the rivers (United States v. Washington, 1974, pp. 352–381; American Friends Service Committee, 1970, pp. 61. 64, 176). As Anthony Netboy (1958, p. 11) has observed, ‘“The red man had studied carefully the habits and movements of the salmon and knew that the places to trap them were at the mouths of the tributaries and churning cascades and waterfalls.”

The Indians also appreciated the importance of spawning escapement: ‘“When the Indians had obtained enough fish they would remove the weirs from the river in order that the fish they did not need could go upstream and lay their eggs so that there would be a supply of fish for future years” (Sextas Ward, a Quileute Indian born about 1852, quoted in American Friends Service Committee, 1970, p. 176). That the Indians had maintained the salmon fishery for centuries without destroying or markedly diminishing it testifies to their intelligence as fishery managers. Of course, their small populations—fewer than 10,000 in the 1850s—and primitive techniques for preserving and transporting their catch combined to render them less threatening to the resource than the more numerous and technically advanced whites subsequently would prove to be. Nevertheless, the Indians’ conscious regulation of the fishery played an important role in maintaining its yield over time.

Indian regulation of the fishery, though varying from tribe to tribe, rested on the enforcement of clearly understood property rights. In some cases these rights resided in the tribe as a whole; in other cases in families or individuals; sometimes in a mixture of the two. Judge George Boldt, in the findings of fact for a landmark court decision (United States v. Washington, 1974, pp. 352, 353), described these rights as follows:

Generally, individual Indians had primary use rights in the territory where they resided and permissive use rights in the natal territory (if this was different) or in territories where they had consanguineal kin. Subject to such individual claims, most groups claimed autumn fishing use rights in the waters near to their winter villages. Spring and summer fishing areas were often more distantly located and often were shared with other groups from other villages. . . . Control and use patterns of fishing gear varied according to the nature of the gear. Certain types required cooperative effort in their construction and/or handling. Weirs were classed as cooperative property but the component fishing stations on the weir were individually controlled.

In some instances—for example, the fishing stands at the great Celilo Falls of the Columbia, and the reef net locations of the Lummi tribe in northern Puget Sound—fishing rights were heritable individual properties passed down from father to son (Netboy 1958, p. 16: United States v. Washington, 1974. p. 361).

In sum, as Russel Barsh (1977, pp. 22–23) has emphasized, the Indians possessed a well-developed property system in the fishery, and the crucial right recognized and protected under this system was “their exclusive right to take [salmon] by fixed gear” in or near the rivers where the fish returned to spawn. As already noted, this is a socially efficient assignment of property rights because it encourages the taking of salmon in the least costly manner. It cannot be stressed too much that what the Indians owned was not simply a claim on certain quantities of fish. Rather, the Indians’ property rights ensured them the opportunity to take the salmon normally returning—that is, returning without human interception—to certain riparian fishing stations, using any gear whatever but allowing for adequate escapement. The state of Washington would subsequently permit extreme attenuation of these aboriginal property rights, substituting, in Barsh’s words, “a law that is economically inferior to the property system originally established by the tribes.” For more than one reason, it was unfortunate that the development of the fishery by white men doomed the Indians to a marginal status as fishermen and wholly destroyed the technical and legal apparatus they had employed for centuries.

III. Interception Externality: A Simple Model

The aboriginal salmon fishery was efficient because it was, with unimportant exceptions, a riparian fishery free from marine interceptions of returning adult fish. The salmon fishery developed by the whites would turn out to be increasingly inefficient because it allowed the attenuation of riparian fishing rights through the unobstructed establishment of intercepting marine fisheries and because, in important instances, an outright prohibition of highly productive gear was enforced. New forms of gear kept “getting in front of the established gear.” This progressive “robbery,” which inexorably pushed the focus of fishing activities toward the open sea, continued because the state’s property system condoned it, nay, actually encouraged and promoted it. The result was a fishery employing mixed gear: some terminal, some intercepting. The intercepting gear, itself relatively unproductive because it required higher costs to search for and capture more dispersed salmon stocks, also rendered the terminal gear less productive by reducing the size of and dispersing the runs arriving at the terminal gear sites.

A convenient apparatus for showing the workings of the interception externality is shown in Figure 2. In the short term, the run size is exogenously determined and independent of the amount or mix of fishing gear. Assume that two fixed-coefficient techniques are available: 1) the more capital-intensive technique represented by the expansion ray OT (mnemonic for traps), and 2) the more labor-intensive technique represented by the expansion ray OS (mnemonic for seines). If fishing effort were increased along OT, that is, using traps alone, the catch would after some point increase at a diminishing rate because of the fixed run size; similarly along OS. Therefore, the isoquants differing by a unit of catch are increasingly far apart as inputs are added along either activity ray.

At low levels of fishing effort, techniques can be combined without noticeable external effects. Thus, the catch obtained by traps alone operated at point A or by seines alone operated at point B can also be obtained by a linear combination of the two techniques. The straight line segment AB is the isoquant representing the locus of input combinations that hold the catch constant for various mixes of the two techniques. Here the diagram displays only an elementary proposition of activity analysis (Lancaster, 1969, pp. 64–66).

The twist appears at higher levels of fishing effort. Consider, for example, moving from point C (all traps) to point D (all seines), two points that represent the same catch level. Without interception externality, the interconnecting isoquant would be the straight line segment CED. With such high levels of fishing effort, however, the substitution of seines for traps will significantly “rob” the remaining traps in the technical mix and require more effort (inputs of labor and capital) simply to compensate for the loss through interception. The interconnecting isoquant will bow out, away from the origin, as shown by line segment CE’D. At higher levels of fishing effort the concavity of the mixed-technique isoquants becomes more and more pronounced, reflecting the growing severity of the interception externality as more gear is used with a fixed run size.

If a single wealth-maximizing owner operated the fishery, or if the terminal gear operators possessed enforceable property rights in runs headed for their trapping areas, mixed gear would never be used. Depending on the relative physical productivities of the two gear types (in isolation) and the relative input prices, either traps alone or seines alone would be cheaper than mixed gear for capturing a given catch. Consider, for example, the factor cost ratio represented by the lines K1L1 and K2L2. At those relative factor prices, the catch level represented by the isoquant FHG would be taken most cheaply by traps alone at point F. If a lack of property rights permits operation of the fishery with the mixed gear represented by point H, then the total costs of taking the catch will be increased. The excess cost can be measured either by the cost of acquiring the amount of labor L2–L1 by the cost of acquiring the amount of capital K2–K1 At higher levels of fishing effort, the social waste caused by the interception externality grows proportionately larger. (Note that the operators of each gear type recover their full private opportunity costs of inputs. The social inefficiency reflects the dissipation of the potential rent of the fishery, not a private operating inefficiency of any sort.)

The model portrayed in Figure 2 can be generalized to cover more than two inputs, substitutable-input production technologies, and more than two successively intercepting gear types. The substantive conclusions remain the same. Interception imposes socially unnecessary costs on the fishery. The larger the total fishing effort, ceteris paribus, the greater the social waste of a mixed gear fishery for anadromous stocks. Fishery managers concerned about social efficiency would attempt to discourage mixed gear; given a choice, they would favor gear in proportion to its “terminality” and strive to obstruct new modes of interception. If the fishery managers do not behave in this way, it is either because they do not consider social efficiency at all or because they place higher priority on other objectives with which social efficiency conflicts. Historically, the ruling motives involved both sources of inefficient management.

IV. The Columbia River Fishery to 1934

Washington’s modern salmon industry originated in the 1860s on the Columbia River, set in motion by technical improvements in the art of canning. The first salmon cannery on the Columbia began operation at Eagle Cliff, about 40 miles east of Astoria, in 1866; it quickly proved successful. The Columbia salmon pack increased rapidly, from 4,000 cases in 1866 to 100,000 cases in 1869 to 200,000 cases in 1871. (A standard case contains 48 one-pound cans.) By the early 1880s, when the Columbia industry was nearing its all-time peak, about threedozen canneries were operating. In 1883 and 1884, the peak years, they packed more than 600,000 cases annually (Cobb, 1930, p. 562). As the packers established new markets, improved their canning techniques, and accelerated their rate of output, they created a booming demand for fish.

At first the fishermen had little difficulty keeping up with the growing demand. The river teemed with salmon, and even unsophisticated gear could harvest them in huge numbers at little cost. Small beach seines, traps, and drift gillnets comprised the initial gear on the Columbia.[2] One packer reported in 1871 that his cannery had packed 25,000 cases in 90 days, the fish being caught by four small gillnets, each 125 fathoms long and 25–30 meshes deep. According to the Portland Oregonian, the average catch per gillnet boat on the Columbia in 1876 was 3,850 fish (Carstensen, 1971, pp. 66–76).

The amount of gear on the river soon increased greatly. Surveying the Columbia in 1888, the Corps of Engineers discovered 1,600 drift gillnets averaging 300 fathoms each (all together, 545 miles of gillnet!), 136 fish traps, an undisclosed number of beach seines, and seven fish wheels. Small wonder that the average catch per gillnetter in 1887 had fallen to 600 fish (Carstensen, 1971, pp. 66,76). Already the productivity decline characteristic of a developing open-access fishery was obvious. The potential rent of the fishery was being dissipated by socially unnecessary payments to fishermen and the owners of fishing gear. With nothing to limit further entry, the situation continued to deteriorate. In 1892 the Washington State Fish Commissioner (Washington State, Fishery Reports 3, 1892, p. 18) reported that, “at least twenty-five hundred gill nets, five hundred traps, seventy-five fish wheels and twenty-five seines are employed every season in taking salmon, and it is a fortunate fish that reaches the spawning grounds.” Of course, the catch per unit of gear declined even further.

Declining productivity created intense hostilities among the operators of various types of gear. Although the problem clearly arose from the growing excess of total gear, each group blamed the overfishing and its consequences on other groups and sought to curtail the fishing privileges of its rivals. From time to time, smoldering hostilities flamed into violent conflicts, some of which resulted in loss of life (Smith, 1974, p. 2).

The gillnetters, most of whom operated along the lower river near Astoria, seldom failed to play a central role in these conflicts. In the late nineteenth and early twentieth centuries, before the adoption of gasoline engines, gillnetting was hard and dangerous work. Most of the gillnetters were itinerant, unmarried immigrant men who came from San Francisco to work on the Columbia during the summer fishing season. Among them were many Italians, Greeks, Slavs, Portuguese, Spaniards, and Scandinavians. Carefully deleting the Scandinavians, who were considered “Americans,” the Seattle Post-Intelligencer once described the remaining fishermen as “piratical dagoes” (Carstensen, 1971, p. 67). Over the years, many lost their lives, being swept out to sea and drowned by the sudden gales that frequent the mouth of the Columbia.

Men accustomed to danger, the gillnetters sometimes freely assumed other risks. Not uncommonly, they tried to steal fish from the traps on the river’s north shore across from Astoria at Baker’s Bay. An old trap fisherman (Jackson, 1977, p. 203) recently recalled that “during the heavy fish runs in summer it was necessary to lift the traps at low water night and day as gillnetters would, if given the chance, lay alongside the pots and cut them open, taking whatever fish they could reach.” Gillnetters and trap men sometimes exchanged gunfire, and many casualties resulted from these infamous “salmon wars.” On one occasion, when the gillnetters were striking against the canneries for higher prices in 1896,

Some of the most radical of the strikers attempted by threats and violence to deter anyone from fishing for less than the rate established by the union, and numerous attacks were made by strikers upon those who attempted to deliver salmon at less than five cents per pound. This was especially the case with regard to the pound net fishermen of Baker’s bay, and the sheriff of Pacific county [Washington] being called upon by the owners of these pound nets for protection, concluded that with the means at his demand [sic] it would be impossible for him to afford the protection necessary, and after consulting with the prosecuting attorney of that county, he informed the governor of the serious nature of the trouble on the river, and asked for assistance in seeing that the law was upheld and the pound net fishermen protected. Acting upon the representations made to him by the sheriff and prosecuting attorney, the governor ordered a company of militia to the scene of disturbance, and from their arrival at Ilwaco no more trouble was experienced by the pound net operators. The situation became so serious on the other side of the river that the governor of Oregon was also obliged to send militia to maintain order (Washington State, Fishery Reports, 7, 1896, p. 5; note that “pound net” is simply another name for a fish trap.)

The gillnetters also despised the operators of the fish wheels farther upriver. It galled them to witness fish being dumped rhythmically into huge piles without so much as an erg of human effort being exerted. The wheels, with their enormously visible productivity, seemed capable of destroying the salmon runs and with them the livelihood of the gillnetters. The lower river men were reluctant to recognize publicly that the gillnets, being so numerous, captured many times more salmon than the small number of productive wheels (Washington State, Fishery Reports, 36–37, 1927, p. 14). The interception externality created by the gillnetters was clearly demonstrated in July 1896. When the gillnetters went on strike against the fish buyers at Astoria, leaving the lower river unobstructed by nets, the sockeye came upriver “ ‘like smelt’ so thickly that all one [wheel operator] could see below the wheel was their backs sticking out of the water. They swarmed into the scoops of the wheel in such numbers that it was necessary for [the operator of this wheel] to raise the dips above the water to prevent foundering and disaster” (Donaldson and Cramer, 1971, pp. 63–64). Although many fish wheels failed even to cover their costs, their productivity being highly site specific and the number of good sites limited. They provoked “many years of perennial fish fights between Seufert Brothers Company [the principal owner of wheels at the Dalles] and the fishermen of the lower Columbia” (Donaldson and Cramer, 1971, pp. 20, 91).

The legislatures of Washington and Oregon began regulating the commercial fishing seasons and gear on the Columbia during the 1870s (Wendler, 1966; Oregon State Planning Board 1938, pp. 38–39). Although the laws passed and regulations issued were ostensibly conservation measures, their discriminating terms can be understood only in the context of the competition between the operators of different fishing gear. Increasingly, the operators of fixed gear, who constituted a small minority of the total fishing labor force, suffered disproportionately from restrictions and taxes.

In 1893 the Washington legislature passed an act “To Regulate and License the Catching of Salmon” (Washington State Session Laws, 1893, pp. 15–18). The act imposed restrictions on and required licenses for fixed gear only. It restricted the mesh size, lead length, and spacing of fixed appliances, limited each licensee to three licenses, and set the fee at $10 per license. No restrictions were placed on nor were licenses required of gillnetters or other operators of mobile gear.

The Washington legislature in 1897 repealed the act of 1893 and replaced it with an act “Regulating the Catching of Salmon” (Washington State, Session Laws, 1897, pp. 214–220). This act retained the physical restrictions previously imposed on fixed appliances. It required for the first time a license for gillnetting. The license fees it established, however, placed a relatively light burden on gillnetters:

For each drag seine not exceeding 250 feet in length $2.50
For each drag seine more than 250 feet and less than 500 feet in length $10.00
For each drag seine upwards of 500 feet in length $15.00
For each purse seine $25.00
For each gill net or drift net $2.50
For each set net $1.00
For each pound net, trap or weir on the Columbia River $15.00
For each pound net, trap or weir on Willapa harbor $10.00
For each pound net, trap or weir (except on the Columbia river or on Willapa harbor) $25.00
For each scow fish wheel $15.00
Stationery [sic] fish wheels shall pay $25.00 for first class wheels, and $15.00 for second class wheels; the classification to be determined by the fish commissioner (Washington Slate, Session Laws, 1897, p. 218).

As usual, the legislature placed a concluding section in the act to declare that “an emergency exists.”

An act of 1899 “Relating to Food Fishes” (Washington State, Session Laws, 1899, pp. 194–206) modified and made slightly more detailed the structure of the license fees. It also imposed a discriminatory tax on the catch of traps and wheels: $1.00 for each 1,000 fish taken. For the most productive traps in Puget Sound, this tax amounted to several hundred dollars per season. No catch tax was levied on the operators of nets.

When the Washington legislature, in an attempt to systematize its fishery laws, enacted a “Fisheries Code” in 1915 (Washington State, Session Laws, 1915, pp. 67 ff.), the license fees were set as follows (pp. 85–86): double-ended traps on Puget Sound; $100 single-ended traps on Puget Sound, $50; first-class traps on the Columbia, $25; second-class traps on the Columbia, $15 (a trap’s classification as first or second class depended on whether it caught more or less than $1,000 worth of salmon during the preceding season); traps on Willapa Bay and Grays Harbor, $15; stationary fish wheels, $35; scow fish wheels, $25; purse seines, $25 (purse seines over 1.800 feet were prohibited); gill nets on Puget Sound, $5 plus one cent per foot for every foot over 600 of length (gill nets over 3,000 feet were prohibited on Puget Sound); gill nets on other Washington waters, $7.50; beach seines, 3 cents per foot of length; set nets, $3.75.

A more important discrimination than the license fees was the catch tax from which gillnetters were explicitly exempted: $3.00 per 1,000 chinook or steelhead ($5.00 per 1,000 chinook on the Columbia before August 26); $1.50 per 1,000 sockeye; $1.00 per 1,000 coho or chum; $0.50 per 1,000 pink (Washington State, Session Laws, 1915, pp. 89–90). The State Fish Commissioner observed in 1919 (Washington State, Fishery Reports, 28–29, 1920, p. 23) that “the seemingly insignificant exemption from the catch tax of fish taken in gill nets and set nets permits fully seventy-five percent of the fish taken in the waters of the Columbia river to escape without the payment of any catch tax.” In addition, the Fisheries Code of 1915 (pp. 97–98) required that “the owner or operator of the fish trap or pound net shall constantly maintain, during the weekly closed season, a watchman, whose duty, among other things, it shall be to cause such pound net or trap to be closed” in a manner stipulated in detail by the act. This requirement entailed a substantial additional cost of labor for trap operators. As the Fish Commissioner plainly recognized, “the law at the present time favors certain classes of the industry as against other classes” Washington State, Fishery Reports 28–29, p. 24).

Although the operators of fixed gear suffered increasingly from discriminatory license fees, operational restrictions, and catch taxes, they were not, prior to 1927, forbidden to operate on the Columbia. In 1926, however, an important political battle took place in Oregon, a struggle whose outcome foreshadowed a similar but even more sweeping political decision in Washington eight years later.

The Oregon contest pitted the old enemies, gillnetters and wheel operators (Donaldson and Cramer, 1971, pp. 111–113; Smith 1974, pp. 4–5). The gillnetters placed on the ballot in 1926 an initiative proposal to outlaw all fish wheels in Oregon waters and all beach seines and traps on the Oregon side of the Columbia above the Cascades. The Oregon State Grange, the Oregon Federation of Labor, the Oregon Fish Commission, and most sportmen’s groups endorsed the initiative. Opposing it were the owners of the threatened gear, their employees, upriver business interests, and the Astoria cannery operators. The affirmative argument printed in the official voters’ pamphlet maintained “that two families (Seufert and Warren) took 85 percent of the fish caught above tidewater and employed relatively few men in their operations, and that a few fish wheels took as many fish in 24 hours as the average gill-net fisherman took in 4 years of labor. . . . The negative position [asked] . . . by what American principle of fair dealing could the takers of 88 percent of the fish demand confiscation of the large investments in equipment, factories, and labor of those who took less than 7 percent of the fish” (Donaldson and Cramer, 1971, p. 112).

When the voters went to the Oregon polls in 1926, more than 102,000 favored outlawing the wheels; only 73,000 wished to uphold the long-established private property rights under attack and to sustain the highly productive fixed gear for harvesting salmon (Smith, 1974, p. 3). Wheel owners subsequently failed in their attempts to have the initiative law declared unconstitutional by the courts. In Oregon, the fish wheel era had, after a half-century filled with strife, finally come to an end. In 1927, Frank A. Seufert, still fuming over his heavy capital losses, painted in large letters on the roof of a barn near his upriver cannery: TO BUILD THIS BUSINESS IT TOOK 47 YEARS. THE INITIATIVE LAW OF OREGON DESTROYED IT IN ONE DAY (photograph in Donaldson and Cramer, 1971, p. 112). Outlawing the Oregon wheels had little if any effect on the total harvest of salmon in the Columbia. Probably few people really cared about that. “The long-drawn-out ‘fishwheel fight’ on the Columbia was actually not fought for conservation, as depicted. Rather, the compelling reasons were economic, each side striving to catch as many fish as possible, with the low-cost production on the Upper river being particularly irritating to the lower-river operators” (Donaldson and Cramer, 1971, p. 113). This was by no means the first time that the political process had favored “equity” at the expense of productivity: nor, in the Pacific salmon fishery, would it be the last.

V. The Puget Sound Fishery to 1934

The Puget Sound district lagged behind the Columbia River district in the development of the modern salmon industry, but once it had gained momentum it far exceeded the scale of its precursor. The first cannery began operation at Mukilteo, about 20 miles north of Seattle, in 1877. It packed only 5,000 cases. For the next 15 years the Puget Sound pack of canned salmon fluctuated erratically, never exceeding 27,000 cases. Then, in the mid-1890s, it began to grow explosively: from 90,000 cases in 1893, the pack increased to 180,000 cases in 1895 to 494,000 cases in 1897, and to 1,381,000 cases in 1901 (Cobb, 1930, p. 557).[3] By this time the Puget Sound industry had far outstripped its counterpart on the Columbia. Puget Sound canneries experienced their golden age between the turn of the century and 1919, the peak year being 1913, when 2,583,000 cases were packed. After 1919, the pack settled on a fluctuating plateau less than half as high as that sustained during the golden age. In 1917, 45 canneries operated on Puget Sound. After 1919, never more than 23, and in several years only 10–14, operated. The estimated value of the pack, which reached a high of more than $16 million in 1917, never exceeded $10 million between 1920 and 1934 (Pacific Fisherman Yearbook, 1935, p. 80). Between 1909 and 1934, approximately nine-tenths of the salmon caught by commercial fishermen in Washington waters came from Puget Sound. During those years—after the Columbia fishery had peaked but before the development of a huge ocean fishery—the sound and the salmon fishery were almost synonymous.

During the incipient period of the fishery, 1877–1892, a few units of simple gear could easily harvest the salmon packed on Puget Sound. The State Fish Commissioner reported in 1892 that the gear consisted of 19 beach seines, 19 purse seines, and 10 gillnets (Washington State, Fishery Reports, 3, 1892, p. 14). Several experimental fish traps were constructed on the sound during the 1880s, but apparently none was successful.

The point of inflection in the growth of the Puget Sound salmon industry occurred in 1891, when the first successful traps were constructed near Point Roberts, just below the Canadian border. This area is propitiously situated on the migration path of the sockeye and pink salmon that spawn in British Columbia’s Fraser River system. During the later 1890s, a great trap fishery developed in Washington waters stretching from Point Roberts through the San Juan Islands and southward along the west coasts of Fidalgo and Whidbey Islands (Rounsefell and Kelez, 1935, pp. 3,6; Cobb 1930, pp. 424, 483). These traps, much larger, more elaborate, and more expensive than their counterparts on the Columbia, proved to be the most awesomely productive appliances ever devised for capturing salmon. As such, they provoked the hostilities of sportsmen and fishermen operating less productive forms of gear and became the focus of a “salmon war” that spanned four decades. They also made a few people quite rich—which is not unrelated to the hostilities they provoked.

To obtain exclusive private property rights over a trap site, one had to obtain a trap license (the license fee was $50 in Puget Sound after 1898), then file the initial claim to a location marked by at least three substantial piles, upon which the license number was posted. After filing a location map with the proper state authority, the licensed claimant possessed “the exclusive right to hold, occupy and fish such location, to renew the license there for, and to mortgage, sell and transfer the same.” Licenses had to be renewed annually, but Puget Sound trap sites could be legally retained by actually constructing the trap only once every 4 years (Washington State, Session Laws, 1915, pp. 76–79). To construct a Puget Sound trap cost between $5,000 and $14,000, depending on the physical conditions of the site and the size and design of the trap (Darwin, 1916, p. 4; Cobb 1930, p. 483). Prospectors who had filed claims on good locations in the 1890s were well placed to reap large capital gains when the Puget Sound salmon fishery began to grow explosively at the end of the century.

In 1899, Roland Onffroy organized the Pacific American Fisheries Company, a syndicate funded by Chicago investors. Onffroy was said to have brought from Chicago “a million dollars to buy up the available traps, fleets, and canneries” (Teck, 1903, p. 186). Whether or not he had a million to spend, he certainly had more than anyone had ever before spent on trap sites. Many owners sold their sites to Pacific American and to competing canneries at prices between $20,000 and $90,000 each (Teck, 1903, pp. 186–187; Cobb 1930, p. 483); others scrambled to stake new claims. This was the high-water mark when, as a contemporary writer expressed it, “Onffroy made princes of our fish trap barons” and transported them “from the strenuous struggle to the lap of ease by the fish trap route” (Teck, 1903, p. 186). Many claims proved unremunerative and were abandoned: from 454 Puget Sound trap sites licensed in 1900, the number fell to 305 in 1902: thereafter, more than 300 licenses were issued only in 1912 and 1913, and the number was usually between 200 and 300. License holders actually constructed traps on only about two-thirds of their sites in any given year; more traps were built in odd-numbered years to take advantage of the pink runs. Trap sites varied enormously in value. While pointing out in 1917 that, “some fish trap locations in Puget Sound are worth many times more than other locations,” the Washington Fish Commissioner (Washington State, Fishery Reports 26–27, 1917, pp. 26, 35) referred in passing to “fishing locations worth in some instances hundreds of thousands of dollars.”

It was significant that the canneries acquired ownership rights over most of the traps early in the development of the Puget Sound salmon industry. Perhaps, as the Fish Commissioner remarked in 1919 (Washington State, Fishery Reports 28–29, 1919, p. 10), “because of [the traps’] greater ability to take fish, prejudice had naturally been aroused against them.” But their tremendous catching power would not have provoked such intense and widespread hostility if they had been independently owned and operated. The canneries were “big business” their operators were “barons” and “millionaires.” The traps, in the eyes of that large segment of the public inclined toward leveling, gave an “unfair” advantage to persons whose wealth already placed them in enviably advantaged positions. As most of the net fishermen were men of small means, many of them immigrants, it was easy for the public to sympathize with the “little men” in their struggle to capture a larger share of the salmon and obtain higher prices from the canneries for the fish they caught.

While the traps dominated the fishery in the first decade of the twentieth century, the little men’s day was dawning. As elsewhere in the American economy of that era, the critical innovation was the gasoline engine. Installed in the purse seine vessel—virtually the entire fleet adopted it during the years 1903–1906—it transformed that type of harvesting gear and made it for the first time a serious competitor of the fish trap (Rounsefell and Kelez, 1935, pp. 3–5; Washington State Fishery Reports, 28–29, 1919, p. 10). In 1908, only 69 purse seiners were licensed in Puget Sound. Their numbers then increased rapidly to 252 in 1913 and 420, an all-time peak, in 1917. Their share of the catch increased with their numbers. In 1913, when comprehensive catch data were first collected, purse seiners caught only about a third of the total catch: the traps caught 61 percent, and miscellaneous gear, mostly gillnets, took the small residual share. Two years later, 110 additional purse seiners having been licensed in the interim, the seiners took 57 percent of the catch. They continued to outfish the traps during 1916–1917 and 1919. In the 1920s the traps recovered some of their former share, but even then the purse seiners outfished them in some years. After 1929 the seiners always caught more than the traps (Washington State, Fishery Reports, 46–49, 1939, pp. 69–73). “Use of the purse seine,” said the State Fish Commissioner (Washington State, Fishery Reports, 28–29, 1919, p. 10), “stole upon us like a thing in the night. Their greatly increasing use occurred during the world war and for that reason did not attract the notice or excite the comment they would have under ordinary conditions.”

Although it cost about $7,000 and required a crew of seven to nine men, and hence was relatively expensive to operate, the gasoline-powered purse seiner did possess “deadly effectiveness . . . as a catcher of fish” (Washington State, Fishery Reports, 28–29, 1919, p. 10; Darwin, 1916, p. 4). Its most valuable attribute was mobility. Seiners could meet the returning salmon in June on the Swiftsure Bank southwest of Vancouver Island, follow them through the Strait of Juan de Fuca, northward through the San Juan Islands to the Canadian border or southward through Admiralty Inlet into inner Puget Sound (Rounsefell and Kelez, 1935, p. 5). Observed the Pacific Fisherman (July 1936, p. 28). “where there is a congregation of fish, there will be a congregation of purse seiners . . .”

The purse seine catch, however, was by no means all a net addition to the total. Many of the fish the seiners caught, if allowed to proceed, would have entered the traps. By placing themselves “in front of” the traps sometimes the seiners flagrantly set their nets immediately adjacent to the traps, where the trap leads had concentrated schools of fish—the seiners created a classic interception externality. The Fish Commissioner recognized this as early as 1913 (Washington State, Fishery Reports, 22–23, 1913, p. 33), when he observed that

there has undoubtedly been an increase in number and efficiency of purse seines during the last few years. But it is also a fact that the increase in the number and efficiency of purse seines reduces the efficiency of the pound nets and traps in the taking of fish for the reason—among others—that the prevalence of purse seines in the vicinity of fish traps scatters and diverts the schools of fish and causes them to pass out into deep water beyond the traps, and we think that it can be safely asserted that while the total number of appliances and gear may have been increased in recent years, the efficiency in the catching of fish has not been much, if any, increased.

Attempts to intercept salmon became frantic during World War I. “During the five-year period from 1913 to 1917 more fishing gear was employed than in any year before or since:” the year 1917 witnessed the most intensive effort of all (Rounsefell and Kelez, 1935, pp. 13, 15). The price of salmon rose to undreamed of heights: from an average paid to fishermen of 12.8 cents per fish in 1913, the price jumped to 53.9 cents in 1917 and 71.2 cents in 1918 (Washington State, Fishery Reports, 28–29, 1919, p. 36). “Stimulated by the high prices which they received for their catch, the fishermen [were] building larger boats so as to enable them to go farther out to sea, making use of larger nets, while the ranks of the fishermen [were] steadily augmented by persons attracted from other occupations” (Washington State, Fishery Reports, 28–29, 1919, pp. 35–36; emphasis added).

Close in the wake of the purse seiners came other “little men.” Trollers, intent on intercepting fish before they reached the existing interceptors, emerged in huge numbers during the war. Said the Fish Commissioner in 1919 (Washington State, Fishery Reports, 28–29, 1919l, p. 9):

One of the most amazing developments of the fishing industry of this state during the last four years has been fishing for our salmon with hook and line. . . . [T]his period of time witnessed the building up of the great fleets for operation off our Pacific Coast line from the Columbia river to Cape Flattery. . . . It was the hook and line fisherman or the troller who first started the intensive offshore fishing for immature salmon. Because of his presence in much greater numbers, it is possible that in the course of a year the hook and line fishers take more salmon than are taken by any of the other appliances off the mouth of the Columbia river.

While most of them fished off the mouth of the Columbia, several hundred operated west of the Strait of Juan de Fuca, in the open sea, beyond the jurisdiction of the Washington authorities (Washington State, Fishery Reports, 30–31, 1921, pp. 42–43, 78). The purse seiners then began to taste the same bitter medicine they had administered in such large doses to the trap men during the past decade.

With the depression of 1921 and the decline of fish prices from their wartime peaks, the Puget Sound fishery experienced a period of retrenchment in the early 1920s. “The drop in the run offish, and greatly increased cost of operating due to the war, together with the low selling value of the fish, made the industry unprofitable for the purse seiners, and many of them removed to California or Alaska with their vessels” (Washington State, Fishery Reports, 32–33, 1923, p. 10). Recovery after 1923 was slow but steady. The number of purse seiners licensed in Puget Sound rose from 133 in 1923 to 251 in 1931. The seiners and the trap men, as if they had declared a truce, took about equal shares of the total catch during the 1920s. The truce, however, was more apparent than real. The seiners, not satisfied with their large share of the catch, longed to banish the trap men from the fishery altogether. The Great Depression—and some unexpectedly powerful new allies—would create favorable conditions for the realization of their objective.

VI. The Political Economy of Initiative No. 77

The Great Depression promoted a multifaceted transformation of American opinions and values. Perhaps the most obvious shift was the high premium that came to be placed on the employment of labor per se. Given an opportunity to choose politically between labor-saving and labor-intensive techniques of production, most people favored the latter more strongly than ever before. Overlapping the heightened preference for labor-intensive, employment-creating techniques was a shift of sympathies toward helping the poor and disadvantaged. The other side of this coin was a more intense hostility toward the rich and advantaged. Especially suspect were the “monopolists” and “big businessmen,” those who had vainly claimed responsibility for the New Prosperity of the 1920s and now stood vulnerable to an unwelcome attribution of responsibility for the Great Depression. Another significant characteristic of public opinion in the 1930s was a renewed concern for the conservation of natural resources, a concern strongly embraced and articulated by Franklin Roosevelt’s administration (Graham, 1976, pp. 36–43; Gunderson, 1976, pp.443–446).

Each of these elements played a part in reshaping the political context within which the electorate and the legislature of Washington regulated the salmon fishery. In particular, the proposal to conserve the salmon runs by outlawing the highly productive but labor-saving trap technique promised simultaneously to conserve a valuable natural resource, to expand employment opportunities, to reward the poor and disadvantaged (the net fishermen), and to punish big business (the canneries, which owned most of the traps). Thus, the prevailing public opinions of the 1930s created a much more conducive environment for the net fishermen’s assault on the trap men.

Probably no important change would have occurred, however, without the arrival on the political stage of a significant new actor: the sport fisherman. People had caught salmon for sport since the late nineteenth century, but with the increase of personal income, the decline of the work-week, and the wide diffusion of the automobile in the 1920s the ranks of the sport fishermen began to increase rapidly. The Director of the Department of Fisheries (Washington State, Fishery Reports, 40–41, 1931, p. 7) referred in 1930 to “sport fishing activities in salt water areas [that were] growing by leaps and bounds.” In 1937, a Seattle journalist proclaimed that “a new industry has sprung up in the past 10 years, that of sports fishing in Puget Sound, providing employment to thousands and enjoyment to thousands more. That industry is entitled to protection and encouragement” (quoted in “No Fish Traps,” 1937, p. 6; emphasis in original). Here was a political force to be reckoned with. Tens of thousands of resident sport fishermen, along with all those interested in supplying and transporting them or otherwise catering to their demands, formed a potential bloc of voters numerous enough to overwhelm any commercial fishing group if the bloc could only be inspired and organized for political action.

The inspiration was the easy part; it arose from the mere sight of the traps. Sportsmen cruising the waters of Puget Sound could always see the traps. They could also see the cannery tenders hauling scows piled full of salmon, tens of thousands of them in a single load, taken from the traps. To see so many salmon in one load confirmed their worst fears about the imminent destruction of the runs. The gillnetters, who fished at night, and the purse seiners, who often operated far from shore, were less visible and hence less immediately threatening. As usual, the limited and biased evidence of immediate experience received more weight than the systematic data available, which showed that the purse seiners caught most of the salmon (Washington State, Fishery Reports, 46–49, 1939, pp. 71–73).

In retrospect, one can see that the sportsmen’s proposal to conserve the salmon by abolishing the traps was both ill-considered and misrepresented. On the one hand, they failed to recognize that a fish caught is a fish caught: conservation would not be promoted if other types of gear remained free to take fish previously taken by the traps. Also, they failed to recognize that they actually competed more directly with the trollers and the seiners than with the traps. The former types of gear intercepted many chinook and coho—the only species of interest to sportsmen, the others being not readily caught by hook and line—before they reached the Puget Sound areas then frequented by the sportsmen. In the fishing areas adjacent to the trap sites, the sportsmen themselves could intercept the salmon before they reached the traps. Further, the traps relied heavily on catches of sockeye, pink, and chum species of no interest to sportsmen. Finally, of course, the sportsmen’s crusade against trap fishing was scarcely a true conservation scheme at all. Rather, like most proclaimed conservation measures (Maass, 1968, pp. 271–279), it was an attempt to take from “them” and give to “us,” a simple transfer of wealth disguised in the trappings of an abstract policy prescription held in high regard by the general public and the electorate. Although they liked to think of themselves as noble and public-spirited citizens campaigning against greed and the destruction of nature’s bounty, the sportsmen were simply a special interest group, as grasping as the next.

Direct appeals to the state legislature met with no success. In 1933, a bill was introduced in the House to prohibit fish traps, but it died in committee (McLeod, 1937, p. 15). The issue was too hot for the timid legislators to handle. The sportsmen and the operators of mobile commercial gear needed a more coherent and organized effort to achieve their objective. Frustrated by their rebuff in the legislative session of 1933, they resolved to carry their appeal directly to the people.

They decided to circulate an initiative petition. Over the years, this device had been attempted on five different occasions by Washington fishery interests, but each time the sponsors had been unable to secure enough signatures to place their proposal on the ballot (Washington Secretary of State, 1966). Oregon groups, however, had placed more than a dozen fishery initiatives on their state’s ballots; and in 1926, as previously noted, the Oregon voters had approved an initiative outlawing fish wheels and restricting the areas where beach seines and fish traps could operate on the Oregon side of the Columbia (Smith, 1974, p. 3). An initiative petition allowed the anti-trap forces to circumvent the legislature and its intricacies of committees, procedural hurdles, and strategic vote trading, and to present the issue directly to the voters. To publicize the issue and perform the political legwork, the anti-trap groups put aside their differences and entered into a formal coalition. Early in 1934 they formed the Salmon Conservation League. Described by its founders as “an expedient combination of both commercial and sports interests” (Washington Sportsman, 2, Feb.–Mar. 1936, p. 4), the league brought together the Washington State Sportsmen’s Council, which claimed to represent 120 sportsmen’s clubs with some 40,000 members (Washington Sportsman, 2, Apr.–May 1936, p. 15), the Purse Seine Fishermen’s Association, the Puget Sound Gill Netters’ Association, and the Trolling Vessel Owners’ Association. The commercial fishermen’ s associations provided the money, and the sportsmen’ s groups supplied the manpower (Washington Sportsman, 2, Feb.–Mar. 1936, p. 4).

On February 1, 1934, the Salmon Conservation League filed Initiative Measure No. 77 with the Secretary of State and began to circulate petitions to collect the voter signatures required to place it on the November ballot (Washington Secretary of State, 1966; Pacific Fisherman, March 1934, p. 12). A counterinitiative, No. 82, was filed on March 10, 1934 (Washington Secretary of State, 1966; Pacific Fisherman, April 1934, p. 17). Initiative 82 proposed new restrictions on the net size, vessel length, and operating areas of purse seiners. The backers of No. 82 failed to secure enough signatures to place their measure on the ballot. The Salmon Conservation League, on the other hand, did validate its petitions. In November 1934, the voters of Washington would have their first direct opportunity to choose whether a sweeping reorganization of the state’s salmon fishery should take place.

Initiative No. 77 contained several substantive provisions. It divided Puget Sound into two areas separated by a line running easterly from Angeles Point on the Olympic Peninsula to Penn Cove on the east side of Whidbey Island, thence northerly to Sinclair Island, thence irregularly northward along Lummi Island and to the mainland, enclosing Lummi Bay. Within the Washington waters east and south of the line, it was made unlawful to fish for salmon with any gear other than hook and line, except that other mobile gear could fish there between October 5 and November 20 at any time other than the weekend closed period (4:00 P.M. Friday to 4:00 A.M. Sunday). Puget Sound gillnet licenses were made personal and nontransferable and issuable only to those who had held such licenses during either 1932 or 1933. Gillnets on the Columbia were limited to 250 fathoms in length. Beach seines on the Washington side of the Columbia were made unlawful. Most importantly, the initiative made it “unlawful to construct, install, use, operate, or maintain, within any of the waters of the State of Washington, any pound net, fish trap, fish wheel, scow fish wheel, set net, weir, or any fixed appliance for the purpose of catching salmon, salmon trout, or steel head, or to take salmon, salmon trout, or steel head by any such means” (Washington State, Session Laws, 1935, pp. 3–8).

Initiative No. 77 promised substantial benefits to each of its sponsors. Most important to all of them, of course, was getting rid of the traps and other fixed gear. In addition, the gillnetters of Puget Sound protected themselves against new entry into their gear group. The purse seiners gained much and lost little or nothing. Although commercial purse seine fishing was allowed inside the line only between October 5 and November 20, this period turned out to be the prime season for the seiners to enter that area in any event. During July through September, they normally concentrated on the runs of sockeye and pink salmon passing through the Strait of Juan de Fuca and the San Juans on their way back to spawn in the Fraser River. In October and November, when the coho and chum runs arrived in inner Puget Sound, the seiners would still be free to pursue them (Pacific Fisherman, July 1936, p. 28). The sportsmen found their alliance with the seiners a congenial one. Sportsmen value the chinook, or king, salmon above all others. At maturity, these fish reach an average weight of 20–25 pounds: the largest range up to 100 pounds. Sport fishermen dream of catching a huge chinook as a trophy. As it happened, “the purse seine catch of Chinooks”—fish that run more individually and less in schools than other salmon—was “purely incidental to fishing for other species; at no time [did] the fleet fish principally for Chinooks” (Pacific Fisherman, July 1936, p. 28). Therefore, the sportsmen felt themselves little threatened by the seiners, even though the incidental catch of chinooks was substantial and the purse seines captured huge numbers of coho, the other (but smaller) species of interest to sportsmen.

The campaign was hard fought. While the Salmon Conservation League hammered away at the conservation theme, the trap men fought back with advertisements that proclaimed the initiative would (Pacific Fisherman, October 1934, p. 32; emphasis in original):

  • Increase taxes

  • Throw thousands of men and women out of work

  • Confiscate the property of hundreds of small fishermen and deny them the right of earning a living

  • Deprive the farmer, the manufacturer, and the merchant of hundreds of thousands of dollars now spent with them annually by the salmon industry

  • Create an absolute monopoly. Read Section 8, of Initiative No. 77 in the pamphlet sent you by the Secretary of State. By making it unlawful to use any other type of fishing gear, it leaves the purse seiners, trollers and gillnetters with a complete monopoly. They demand the exclusive privilege of catching the salmon, which belong to all the people of the state. No wonder their slogan is, “Save OUR Salmon.” Under present conditions they are YOUR salmon, fully protected by rigid state regulations. It is the only instance where the people have been asked to turn over a natural resource to an absolute monopoly . . . . Then watch the price of salmon go up.

Most voters chose to ignore these dire, and partly spurious, warnings. In addition, the Democratic Party of Washington helped to promote Initiative No. 77 by making it a part of the party’s platform in 1934 (McLeod, 1936–1937, p. 22). When the votes were finally counted, there were 275,507 in favor and only 153,811 opposed (Washington Secretary of State, 1934, p. 3).

The trap interests refused to accept defeat without a struggle. Both in the courts and in the legislature, they retaliated against those who had backed Initiative No. 77. During the legislative session of 1935, “a number of rather important fishery measures were killed by the legislature, among them being one designed to increase the license fee on purse seiners” (Pacific Fisherman, April 1935, p. 14).

The legislature of 1935 also had to act on an Initiative to the Legislature, No.5, which had been filed on October 20, 1934 (Washington Secretary of State, 1966). Under state law, this type of initiative measure goes first to the legislature; if defeated there, it must be presented to the electorate at the next general election. The initiative was filed by William K. Fisher, who was identified as president of the Cowlitz County Sportsmen’s Association, and its sponsors represented it as a sportsmen’s proposal (Pacific Fisherman, Dec. 1934, p. 13; Drumheller, 1935, p. 19). This was a ruse. Ken McLeod, who served as the secretary of both the Sportsmen’s Council and the Salmon Conservation League, declared that the Cowlitz County Sportsmen’s Association was, in fact, “dormant” and that “Initiative No.5 was plainly filed as a reprisal against the purse seine fishermen for having supported No. 77. It was financed by several individuals who were prominent in the fight against 77. . . . [T]he hope of the sponsors [was] that if they could wipe out the commercial salmon fishery on Puget Sound, they might have their fish traps reinstated when a readjustment was made” (McLeod, 1936–1937, p. 22).

Initiative No.5 proposed to prohibit “the use of purse seines and the owning, using or maintaining of any boat or other appliance in connection therewith used in fishing for salmon” (Washington State, Secretary of State, 1936).

After the legislature failed to pass Initiative No.5 at its session of 1935, the sportsmen turned their attention toward defeating it at the general election in 1936. At the August, 1936, meeting of the Sportsmen’s Council, L. W. Whitlow, president of the Salmon Conservation League, argued vigorously against Initiative No.5. Denouncing it as a retaliatory measure against Initiative No. 77, he argued that No.5, if passed, would serve as an entering wedge for reestablishment of the trap fishery. He requested that the assembled delegates urge their memberships to vote against the measure (Washington Sportsman, 2, Oct.–Nov. 1936, p. 19).

The voters never had an opportunity to decide the fate of Initiative No. 5. On October 1, 1936, the State Supreme Court ordered the initiative struck from the ballot because a sufficient number of signatures on the petitions had not been checked by the Secretary of State to validate the measure. McLeod, exultant over this latest “crushing defeat suffered by the adversaries of Initiative No. 77,” proclaimed October 1 “another red letter day for the sportsmen” (McLeod, 1936–1937, p. 22).

Still, the trap interests did not give up, and during the legislative session of 1937 the battle raged furiously. Several proposals to alter Initiative No. 77 were debated. One proposed to reestablish trap fishing only in certain areas. Another, advocated by the State Department of Fisheries, sought greater flexibility in the use of purse seines and gill nets inside the line fixed by No. 77 at the discretion of the Director of Fisheries (Pacific Fisherman, Feb. 1937, p. 28). Ultimately, the disputes focused on Senate Bill No. 29, introduced by Senator T. C. Bloomer, which sought to repeal Initiative No. 77 outright.

The battle over Bloomer’s bill took a familiar shape. “There is a tie-up between certain purse-seiners and certain sportsmen’s leaders,” said Bloomer, “with the purse-seiners providing the money to defeat any measure to modify No. 77.” Whitlow, addressing a meeting of the Sportsmen’s Council on January 31, 1937, declared that “this is a fight of manpower and principle against greed and money” (“No Fish Traps,” 1937, p. 5). Ben Paris, the operator of a restaurant and sporting-goods store in Seattle and a leader of the fight for No. 77, placed an advertisement in the Washington Sportsman (March 1937, p. 12; emphasis in original) that exhorted the magazine’s readers to

FIGHT FOR INITIATIVE 77! If you appreciate the wonderful sport of salmon fishing, join ill the fight to protect our salmon against the destructive fish traps! Write your Senator and Representatives in the Legislature—make yourself heard in behalf of conservation and against the repeal of Initiative 77!

The same issue of the Sportsman contained a lengthy article under the headline “NO FISH TRAPS! Sportsmen United in Opposition to Return of Destructive Gear; Rally to Defend Initiative 77.” A cartoon printed with the article shows a bulbous speaker addressing a crowd with the words, “We might compromise with four or five traps in the Columbia River” offstage, two Daddy Warbucks types labeled “trap operators” are listening, diamond stickpins aglow, and one is saying, “O Boy! If we can get four or five traps on the Washington side of the Columbia, we’ll get ’em all back!”

In January 1937, Paris had sent a letter to all members of the legislature soliciting their stand on Initiative No. 77. Almost all of the 27 respondents expressed a commitment to resist any changes. Senator Mary Farquharson added to her expressed assurances the statement that “it is necessary for the government to step in and take control of our natural resources.” Representative Robert W. Ginnett wrote, “I am deeply aware of the destruction of the fishing industry by the trap men when they were given full leeway and I feel that we should now all work together for the conservation of this natural resource.” Only one legislator, Senator Edmund J. Miller, had the intelligence and courage to say: “I have never had any valid reason as to why Initiative 77 should be considered a conservation measure. Neither has anyone ever shown me where the purse seiner is not as great a detriment as any other type of fisherman. . . . Do not misunderstand me. I am for the conservation of our natural resources, but I have yet to be shown that Initiative 77 accomplishes this” (quoted in “No Fish Traps,” 1937, pp. 6, 15).

On March 6, 1937, the Senate overwhelmingly defeated the Bloomer bill, thereby preserving Initiative No. 77 (Washington Sportsman, 3, Apr. 1937, p. 3). Proposals for more limited changes similarly met defeat.

Challenges to the constitutionality of No. 77 had, with one minor exception, already failed (Pacific Fisherman, Aug. 1935, p. 16). In Campbell v. Case (182 Wash. 334), the State Supreme Court on July 2. 1935, upheld the initiative as it applied to a Puget Sound trap fisherman. In Gile v. Huse (183 Wash. 560), the high court on September 18, 1935, ruled that a Columbia River trap fisherman challenging No, 77 on different grounds could not escape the fate to which the initiative had consigned him. In Bacich v. Huse (187 Wash. 75), the court on August 4, 1936, ruled that the initiative’s restriction of Puget Sound gill net licenses was unconstitutional. This was a small setback for the Salmon Conservation League; it hardly marred the sweeping triumph.

Although the sportsmen continued to fret about a few Indians permitted to maintain fish traps on their reservations (Washington v. Edwards, 188 Wash. 467; Washington Sportsman, 3, Aug. 1937, p. 9), the fight was really finished. Finally resigned to a reliance on purse seiners for their fish, the canneries gave up their resistance to Initiative No. 77 and concentrated on gaining control over seine vessels to assure themselves a supply of raw materials. The sportsmen and the purse seiners had effected “the most radical change that has taken place in the fisheries of this state” (Pacific Fisherman, Jan. 1935, p. 57), and, for the moment at least, they were happy.

VII. Some Economic Effects of Initiative No. 77

Initiative No. 77 had several important economic effects. Perhaps the most obvious was the confiscation of private property: the virtually complete destruction of the owners’ investments in stationary fishing gear and the total destruction of the value of their fishing sites. According to reports made to the Department of Fisheries for 1933 (Washington State, Fishery Reports, 42–45, 1936, p. 119), the value of gear alone was as follows: trap gear, $1,211,635; Columbia River beach seines, $284,900; fish wheels, $89,837; total, $1,586,372. No comprehensive data are available on the value of trap sites. It is suggestive that Pacific American Fisheries, while awaiting a court decision on the constitutionality of Initiative No. 77 in 1935, still carried on its corporate books an asset valuation of $275,100 for an undisclosed number of Puget Sound trap sites (Drumheller, 1935, Auditors’ Note 5). In 1933, Washington owners held 686 separate licenses—and presumably an equal number of sites—for the operation of fixed fishing appliances later outlawed by No. 77 (Washington State, Fishery Reports, 42–45, 1936, p. 119). If the average site was worth only $1,000, which seems far too low even under the conditions prevailing in 1933, then the total value of the sites was $686,000. Adding this to the value of the outlawed gear, one obtains a total loss of $2,272,372. I suspect strongly that this estimate is short of the truth. My own guess is at least $3 million. In any event, the loss was far from trivial. Of course, no compensation whatever was paid by the state. So much for the sanctity of private property rights.

The social loss occasioned by Initiative No. 77 was another, and far more important, matter. This loss, an ongoing suppression of economic productivity, arose from the superior resource productivity of the traps relative to the legal gear. Of course, interception externality had greatly reduced the productivity of the traps, beach seines, and wheels long before No. 77 abolished them outright. To see just how far Washington had strayed from its production possibility frontier in the harvesting of salmon, one must perform some calculations pertaining to a hypothetical alternative.

To establish an empirical benchmark, consider first that in 1913 the state’s 629 traps, 26 wheels, and 25 Columbia River beach seines—680 units of fixed gear in all—captured approximately 25 million fish (Washington State, Fishery Reports, 46–49, 1939, p. 85). These totals imply an average catch of almost 37,000 fish per unit of fixed gear. This establishes what fixed gear demonstrably could do, even under the physical restrictions enforced by the law in 1913.[4] Next consider that during 1937, the legal mobile gear, which included 1,111 gillnets, 213 purse seines, 395 troll units, 49 reef nets, and an assortment of minor gear, caught about 7.6 million salmon inside Washington’s jurisdiction (Washington State, Fishery Reports, 46–49, 1939, pp. 67, 90). If fixed gear had been permitted and mobile gear eliminated in 1937, then, assuming only an average harvest of 37,000 fish per unit of fixed gear, 205 units of fixed gear could have taken the same number of fish that were actually taken by the assorted mobile gear.

To operate the mobile gear of 1937 required at least 3,400 men plus 1,100 gill net boats, 213 purse seine vessels, and 395 troll vessels. Let us eliminate the trollers on the grounds that their catch occurred mostly outside Washington’s jurisdiction and hence was not included in the total catch figure. Allowing a minimum capital and operating cost per year of about $300 per gill net boat and $2,000 per purse seine vessel, one finds the total to be $756,000. Allowing a minimum average labor cost of $400 per season (Washington State, Fishery Reports, 42–45, 1936, p. 120), one obtains a total labor cost of $1,200,000. The total costs of capital and labor for the mobile gear of 1937 were therefore at least $1,956,000—say, $2 million as a round, lower-limit estimate.

To operate 205 units of fixed gear would have cost, at most, $732,000; that is, the sum of $400,000 for capital services and $332,000 for labor. By this (admittedly rough but still adequately illustrative) calculation, society could have saved about two-thirds of the total costs of the salmon harvest of 1937 by the simple expedient of outlawing the relatively unproductive rather than the relatively productive gear.

Actually, the situation was even worse than illustrated by the hypothetical calculations above. There is little doubt that any post-1934 salmon harvest could have been accomplished by no more than 100 traps if those devices had been placed in the river mouths, free of design restrictions, and protected from intercepting gear. This means that something in the neighborhood of five-sixths of the resources expended in harvesting salmon since 1934 could have been saved and allocated to alternative employments of value to society. At only $2 million per year (in the purchasing power of 1937), every year since 1934, the total social waste is staggering.

Sad to say, the loss has been even greater. Under the regulatory policies embraced during the past 40 years, erratic time and area closures have been the principal policy tools used to preserve the salmon runs by allowing escapement for spawning. This kind of regulation has failed to obstruct either further entry into the mobile commercial fleets or the effective exertion of additional effort by existing operators. The social resource waste has therefore grown steadily larger over time. Today, from a comprehensive point of view, the Washington salmon fishery almost certainly makes a negative contribution to net national product. The opportunity costs of the socially unnecessary resources employed there, plus the socially unnecessary costs of governmental research, management, and regulation, are greater than the total value added by all the labor and capital employed in the fishery (Royce et al., 1963, pp. 37–52; Crutchfield and Pontecorvo, 1969, p. 166; Barsh, 1977, pp. 23–30; Higgs, 1978, pp. 34–39).

What a difference it would have made if Initiative No. 77 could only have been stood on its head, abolishing the mobile intercepting gear and sustaining the fixed appliances. But given the political realities in Washington’s history, one must be a dreamer to imagine that outcome. In an open political contest between productivity and perceived “equity,” the realistic bettors will place their wagers on equity.

Appendix: Salmon Fishing Gear

To appreciate fully the discussion of this paper, one must know something about the principal forms of gear used in harvesting salmon. This appendix provides brief descriptions.

Drift gillnets are long rectangular nets designed, as their name suggests, to entangle fish by the gills. The upper edge of the net is kept afloat by corks while the lower edge is pulled down by lead weights; the net therefore forms a vertical wall with which the fish collide and become entangled. Mesh sizes vary according to the species sought. Columbia chinook nets, for example, commonly had a stretch mesh of about 9 inches at the turn of the century. At that time, drift gillnets averaged about 300 fathoms in length and 45 meshes in depth. To set the net, the fisherman first attaches a buoy to one end of it, then pays out about two-thirds of its length as the boat moves perpendicular to the current. The boat is then turned downstream and the remainder of the net paid out. The boat and gear drift with the current from about an hour before to about an hour after the turn of the tide. The fisherman then retraces his way along the net, hauling it in over a roller at the stern of the boat, removing any fish caught in the meshes and throwing them into the bottom of the boat. Gillnetters usually operate at night, when the fish are less able to see and evade the net. Before the first decade of the twentieth century, the boats employed oars and sails and carried a two-man crew. Afterward, with the introduction of gasoline engines, they were usually operated by a single man.

Set nets are gillnets held in position by stakes or anchors, often with one end secured to the shore. They are generally much shorter than drift gillnets, seldom exceeding 100 fathoms; some are as short as 10 fathoms. They can be operated most effectively in the narrower upper reaches of the rivers.

Beach (or haul or drag) seines are 100 to 400 fathoms long and vary from about 35 meshes in depth at the shallow end to as much as 400 meshes at the deep end. Starting from offshore, a dory attached to the shallow end heads for the beach while a larger seine boat pays out the net in a large semicircle against the current. As soon as the net is fully paid out, a line attached to the offshore (deep) end is brought ashore, where several horses aid in pulling the entire net onto the beach as rapidly as possible to prevent the escape of encircled salmon. Beach seines operated mostly along the shallow bars and beaches near the mouth of the Columbia River.

Purse seines, 200–300 fathoms long with a depth of 20–25 fathoms and a 4-inch stretch mesh, are encircling nets designed to prevent the encircled fish from escaping by sounding while the net is being hauled in. To set the seine, one end is attached to a skiff. The larger purse seine vessel pays out the net in a wide circle, returning to the skiff to join the two ends of the net and haul it onboard. As the net is hauled in, a line running through rings at the bottom edge of the seine is hauled in faster than the cork line at the upper edge. This action closes the bottom of the net in the same way that a drawstring closes a purse; hence the name. When most of the net has been hauled onboard, the fish within it are forced into the bunt remaining alongside the vessel; they are easily scooped out with a dip net. The great advantage of the purse seine is its mobility. Until the introduction of the power block in the 1950s, its great disadvantage was that it required a crew of 7 –10 men.

The traps (or pound nets) of the lower Columbia River and Puget Sound were carefully shaped arrangements of netting or wire mesh secured to driven piles, usually placed not far from shore along demonstrated migration paths of returning salmon. The “lead” was a straight fence of netting, often several hundred feet long, extending from the bottom to the high water level and running in a direction approximately perpendicular to the shoreline. After encountering the lead, the salmon swam along it toward the shore into the “outer heart,” a V-shaped, semienclosed arrangement of netting; proceeding through the outer heart toward the shore, they squeezed into the “inner heart,” another V-shaped enclosure from which the only avenue of escape was the narrow passage through which they had entered. (Some traps had no inner heart.) From the inner heart, the determined salmon, whose instinctual reluctance to turn in their own wake makes the traps so effective, proceeded through a narrowing tunnel into the “pot,” a shallow holding area from which almost no fish could escape. Some traps had a “spiller” adjacent to the pot, and connected with it by another tunnel, to facilitate emptying the captured fish into a scow. A few traps, so-called double-headers, had hearts and pots at both ends of the lead.

Fish wheels were used at two areas with rapid currents along the Columbia River: the Cascades, 34–42 river miles east of Portland; and the Dallas, 187–201 river miles east of Portland. One type of fish wheel was stationary, positioned within a sturdy framework of heavy timbers and stone or concrete constructed near the bank; another type was mobile (though stationary while operating), mounted at the end of a large scow. Both types utilized the same principles: the river’s rapid current turned the wheel, which consisted of three large, wire-mesh dip nets radiating from the axle; as the wheel revolved, fish scooped up in the nets slid toward the axle, down a chute, and into a holding box. Leads of piling and planks extending diagonally in a downstream direction were often used to direct the fish toward the wheel channel. Wheels ranged from 9 to 32 feet in diameter and from 5 to 15 feet in width.

Trolling gear is nothing more than an elaborate arrangement of hooks and lines. Some trollers use as many as six lines, three on each side of the boat. The lines are held away from the hull by a pole extending perpendicular to the fore-and-aft line. Each line holds about half a dozen leaders with baited hooks or artificial lures. The lines can be set to troll at varying depths. Modern trollers use a power winch (“gurdy”) to haul in the lines. Modern lines are made of stainless steel and weighted by heavy lead cannonball sinkers.

For more detailed discussions, diagrams, and photographs of the gear discussed above, see Cobb (1930, pp. 477–490); Browning (1974, pp. 117–249); and Donaldson and Cramer (1971, passim).


  1. A qualification which the modern troll fishermen espouse to justify their occupation is that salmon caught in the ocean command a price premium for superior quality. In the modern fishery this quality differential exists mainly because the trollers clean and ice their catch immediately, whereas the net fishermen of the “inside” fisheries do not; also, some fish are bruised by rough treatment in the nets. However. in the absence of a troll fishery, high-quality fish with undamaged flesh certainly could be taken by fish traps at the river mouths, if it were legal to do so.

  2. Readers unfamiliar with the gear commonly used to harvest Pacific salmon can find brief descriptions in the Appendix.

  3. The reader will notice that the catch data cited in this section always pertain to odd-numbered years. This practice is necessary to preserve comparability between years. The pink salmon of Puget Sound run only in odd-numbered years. The sockeye, though they run annually, exhibited in the early twentieth century a pronounced quadrennial cycle, the “big years” being 1901, 1905, 1909, and 1913. Because of a rockslide that almost completely blocked the Fraser River at Hell’s Gate in 1913, the sockeye run was decimated and the amplitude of its cycle became less pronounced subsequently.

  4. The most important restrictions were that traps could not be located within 3 miles of a river mouth nor in water deeper than 65 feet at low tide; minimum allowable mesh size was 3 inches stretch measure; leads could not exceed 2,500 feet in length in Puget Sound, 800 feet elsewhere; an end passage way at least 600 feet and a lateral passage way at least 2,400 feet had to be maintained between all fixed appliances in Puget Sound, 30 and 900 feet, respectively, elsewhere (Washington State, Session Laws, 1899. pp, 194–197).


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Anderson, Lee G, (1977). The Economics of Fisheries Management. Baltimore: Johns Hopkins University Press.

Bacich v. Huse (1936). 187 Wash, 75.

Barsh, Russel L. (1977). The Washington Fishing Rights Controversy: An Economic Critique. Seattle: University of Washington Graduate School of Business Administration.

Browning, Robert J. (1974). Fisheries of the North Pacific: History, Species. Gear, and Processes. Anchorage: Alaska Northwest Publ.

Campbell v. Case (1935). 182 Wash. 334.

Carstensen, Vernon (1971). “The Fisherman’s Frontier on the Pacific Coast: The Rise of the Salmon-Canning Industry.” In John G, Clark (ed.), The Frontier Challenge: Responses to the Trans-Mississippi West, Lawrence. Kans.: University Press of Kansas.

Cobb, John N. (1930). Pacific Salmon Fisheries. Washington, D.C.: U.S. Department of Commerce. Bureau of Fisheries, Doc, No, 1092.

Crutchfield, James A. and Giulio Pontecorvo (1969). The Pacific Salmon Fisheries: A Study Irrational Conservation. Baltimore: Johns Hopkins University Press.

Darwin, L. H. (1916). The Fisheries of the State of Washington. Olympia. Wash.: Washington State Bureau of Statistics and Immigration.

Donaldson, Ivan J. and Frederick K. Cramer (1971). Fishwheels of the Columbia. Portland, Oreg,: Binfords & Mort.

Drumheller, Ehrlichman, and White (1935). A Review of the Salmon Industry. Seattle: privately printed.

Gile v. Huse (1935). 183 Wash. 560.

Graham, Otis L., Jr. (1976). Toward a Planned Society. New York: Oxford University Press.

Gunderson, Gerald (1976). A New Economic History of America. New York: McGraw-Hill.

Higgs, Robert (1978). “Preliminary Report on the Probable Socio-Economic Effects of a Moratorium on the Issuance of New Vessel Licenses in the Pacific Ocean Commercial Salmon Fishery.” Prepared under PFMC Contract No. 78–18 for the Pacific Fishery Management Council.

Jackson, Laurence D. (1977). “Fish Trap Art.” Oregon Historical Quarterly 78: 197–206.

Lancaster, Kelvin (1969). Introduction to Modern Microeconomics. Chicago: Rand McNally.

Maass, Arthur (1968). “Conservation: 1. Political and Social Aspects.” International Encyclopedia of the Social Sciences 3: 271–279.

McLeod, Ken (1936). “Salmon Treaty Developments.” Washington Sportsman 2 (Feb.–Mar.): 3–4.

McLeod, Ken (1936–1937). “Sponsors of ’77’ Again Victorious.” Washington Sportsman 2 (Dec.–Jan.): 22.

McLeod, Ken (1937). “Initiative 77 Withstands Legislative Attacks; Who Was For and Who Against?Washington Sportsman 3 (April): 14–15.

Netboy, Anthony (1958). Salmon of the Pacific Northwest: Fish vs. Dams. Portland, Oreg.: Binfords & Mort.

“No Fish Traps!” (1937). Washington Sportsman 3 (March): 5–6, 15.

Oregon State, Planning Board (1938). A Study of Commercial Fishing Operations on the Columbia River. Portland. Oreg,: State Planning Board.

Pacific Fisherman (various years). Seattle.

Rounsefell, George A. and George B, Kelez (1935). “Abundance and Seasonal Occurrence of the Salmon in the Puget Sound Region and the Development of the Fishery,” Special Report, Washington, D.C.: U.S. Department of Commerce, Bureau of Fisheries.

Royce, William F., and others (1963). Salmon Gear Limitations in Northern Washington

Waters, Seattle: University of Washington Publications in Fisheries. New Series.

Smith, Courtland L. (1974). “Oregon Fish Fights.” Oregon State University. Corvallis, Sea Grant College Program. Publ. No, ORESU-T-74–004.

Teck, Frank C. (1903). “How Onffroy Made Princes of Our Fish Trap Barons: or From the Strenuous Struggle to the Lap of Ease by the Fish Trap Route.” An unidentified newspaper clipping in the C. B. Bagley Scrapbook No. I. pp. 186–187. University of Washington Library. Northwest Collection.

United States v. Washington (1974). 384 F. Supp, 312.

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Washington State, Secretary of State (1934). Abstract of Votes polled in the State of Washington at the General Election held November 6, 1934, Olympia. Wash.: State Printer.

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Washington v. Edwards (1936). 188 Wash. 467.

Wendler, Henry O. (1966). “Regulation of Commercial Fishing Gear and Seasons in the Columbia River from 1859 to 1963.” Washington Department of Fisheries, Fisheries Research Papers 2: 19–31.

Robert Higgs is Senior Fellow in Political Economy at The Independent Institute and Editor at Large of the Institute’s quarterly journal The Independent Review. He received his Ph.D. in economics from Johns Hopkins University, and he has taught at the University of Washington, Lafayette College, Seattle University, and the University of Economics, Prague. He has been a visiting scholar at Oxford University and Stanford University, and a fellow for the Hoover Institution and the National Science Foundation. He is the author of many books, including Depression, War, and Cold War.

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