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March 31, 1970
Honorable John A. Biggs
Department of Game
600 North Capitol Way
Olympia, Washington 98501
Cite as: AGLO 1970 No. 50
By letter previously acknowledged you have requested an opinion of this office on a question which we have paraphrased as follows:
Does the Washington state game commission have authority to adopt reasonable rules and regulations prohibiting fishing for game fish from boats and/or motor powered boats in specified areas?
We answer your question in the affirmative for the reasons set forth below.
Your question concerns the game commission's authority to regulate a method of fishing for game fish and not its authority to regulate boating itself.1/ The legislature has granted to the commission certain powers under chapter 77.12 RCW to manage the game animals, birds and fish of the state of Washington consistent with the policy enunciated in RCW 77.12.010, which reads:
"The wild animals and wild birds in the state of Washington and the game fish in the waters thereof are the property of the state. The game animals, fur-bearing animals, game birds, nongame birds, harmless or song birds, and game [[Orig. Op. Page 2]] fish shall be preserved, protected, and perpetuated, and to that end such game animals, fur-bearing animals, game birds, nongame birds, harmless or song birds, and game fish shall not be taken at such times or places, by such means, in such manner, or in such quantities as will impair the supply thereof."
In accordance with this policy the commission may regulate the manner of fishing for game fish under the authority of RCW 77.12.040, which provides in material part:
"The commission shall, from time to time, adopt, promulgate, amend, or repeal, and enforce, reasonable rules and regulations governing the time, place and manner, or prohibiting the taking of the various classes of game animals, fur-bearing animals, protected wildlife, and predatory animals, game birds, predatory birds, nongame birds, and harmless or song birds, and game fish in the respective areas and throughout the state and the quantities, species, sex and size of such animals, birds and fish that may be taken.
". . ." (Emphasis supplied)
The underscored portions of this statute authorize the game commission to adopt regulations governing the time, place and manner of taking game fish. Acting under the authority of this statute and in accordance with the general policy enunciated in RCW 77.12.010, supra, the commission has in the past adopted regulations restricting certain waters to fly fishing only (WAC 232-12-350); limiting the number of lines and hooks which may be used when bait casting (WAC 232-12-340); and other regulations concerning methods of fishing and types of gear used. Your question pertains to the commission's authority to adopt similar regulations relative to fishing for game fish from boats and/or motor powered boats in certain areas.2/
The extent of the game commission's authority to adopt regulations under RCW 77.12.040 (or its predecessor, Rem. Rev. Stat., § 5855), supra, was considered by this [[Orig. Op. Page 3]] office in an opinion dated May 1, 1939 (AGO 1939, p. 73) [[1939-40 OAG 73]]to the prosecuting attorney of Thurston County. At issue was the commission's authority to promulgate a regulation which provided that:
". . . it shall be unlawful to offer, pay or receive any reward, prize or compensation for the hunting, pursuing, taking, killing or displaying of any game animal, game bird or game fish or any part thereof."3/
In considering this regulation, the opinion specifically recognized the commission's broad statutory authority to establish open and closed seasons, prescribe the method of killing or taking game or game fish, establish bag limits, and promulgate necessary orders and rules; however, it was then concluded that the commission had exceeded its discretion in adopting the particular rule in question.
Following his receipt of this opinion, the Thurston County prosecuting attorney initiated a "test" case with respect to the rule, and ultimately the matter was heard and determined by the state supreme court in State v. Miles, 5 Wn.2d 322, 105 P.2d 51 (1940). The supreme court sustained the trial court's dismissal of the criminal charges which had been brought against the defendant, Miles, and concluded that the portion of the regulation prohibiting the display of game4/ was beyond the commission's authority. It is notable, however, that this holding with regard to the validity of the rule was much narrower than the view which had been expressed in the 1939 attorney general's opinion. The court stated in pertinent part, with respect to the extent of the commission's rule‑making power, that:
"It is well settled that the legislature may, under proper circumstances, delegate to executive or administrative officers and boards authority to promulgate rules and regulations to carry out an express legislative purpose, or to effect the operation and enforcement of a law. The general principle governing the conditions [[Orig. Op. Page 4]] under which such power may be delegated has been succinctly stated in 11 Am.Jur. 955, § 240, as follows:
"'A legislature, in enacting a law complete in itself and designed to accomplish the regulation of particular matters falling within its jurisdiction, may expressly authorize an administrative commission, within definite valid limits, to provide rules and regulations for the complete operation and enforcement of the law within its expressed general purpose.'
". . .
". . . the state game commission has the authority to promulgate reasonable rules and regulations governing the taking of game. Thus, it may prescribe that one may not take game without first procuring a license; that he may not take game except at certain times or places, or except with certain weapons; that he may take only a certain amount or character of game. There are many other such rules and regulations, concerning the validity of which there can be no question. They all relate to the protection and conservation of the game supply, and they all have reference to the conditions under which game may be taken." (5 Wn.2d 322, 325-327.)
The court invalidated only that portion of the rule which prohibited the "display" of game after it had been taken. By only invalidating a portion of the rule, the court recognized a broader authority for the promulgation of rules relating to the "taking of game" than did the 1939 attorney general's opinion.
More recently, in 1954,5/ this office again considered the scope of RCW 77.12.040 (in the light of the Miles case, supra) and concluded that the commission could validly prohibit the use of aircraft for the location or pursuit of game as this prohibition reasonably related to the manner of taking animals, saying:
[[Orig. Op. Page 5]]
"The quoted statutes are plainly broad enough to permit regulation of the means and methods employed in the 'taking' of game. The first, and essential, step in the 'taking' of game is to discover it. We would conclude that various mechanical means employed to that end, including the use of aircraft, are fairly subject to regulation by the Game Commission."
Clearly, a prohibition on the use of boats and/or power boats while fishing for game fish (such as is presently under consideration) is analogous to the use of aircraft in locating or pursuing game animals. It is logically consistent with the foregoing that a regulation containing a similar prohibition on the taking of game fish from boats would be reasonably related to the manner of taking game fish and a valid exercise of authority by the commission.6/
We trust the foregoing will be of assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
Assistant Attorney General
*** FOOTNOTES ***
1/Since the subject in question is not the regulation of boating, per se, no questions arise concerning possible conflicts with state and federal laws regulating boating. With regard to county regulation of boating, see AGO 1967 No. 7 [[to Department of Game on March 31, 1967]].
2/See, Temporary Regulation No. 297, as adopted at a special meeting of the commission on September 18, 1969.
3/The commission now has specific authority in this area. See, RCW 77.16.010.
4/The defendant Miles operated a sporting goods store in Olympia and offered a $10.00 cash prize to the person displaying during the deer hunting season the largest deer at his store. He was charged with a violation of the rule, to-wit, offering a prize or reward for the displaying of any game animal.
5/See attorney general's opinion dated March 16, 1954, to R. A. Hensel, prosecuting attorney of Douglas County.
6/The commission in exercising its rule‑making authority must, of course, do so in a reasonable manner. Thus, in promulgating specific rules the commission should consider the various pertinent facts in the exercise of its authority for the purpose of conservation, protection and management of the game resources.