APPLICABILITY OF WASHINGTON GAME LAWS ON SNAKE RIVER

GAME ‑- APPLICABILITY OF WASHINGTON GAME LAWS ON SNAKE RIVER.

RIVERS ‑- APPLICABILITY OF WASHINGTON GAME LAWS ON SNAKE RIVER.

The Washington Game Laws are applicable on the west side of the main channel of the Snake River, which is the boundary between Washington and Idaho.

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                                                                    June 9, 1958

Honorable John A. Biggs, Director
Department of Game
509 Fairview Avenue North
Seattle, Washington                                                                                        Cite as:  AGO 57-58 No. 200

Attention:  !ttMr. Walter Neubrech, Chief
                       Enforcement Division

Dear Sir:

            You have asked the opinion of this office on the following paraphrased question:

            To what extent are Washington game laws applicable on the segment of the Snake River that forms the common boundary between the states of Washington and Idaho?

            It is our conclusion that Washington game laws are applicable from the middle of the main channel of the Snake River to the Washington side.

                                                                     ANALYSIS

            Section 1, Article 24, of the Constitution of the state of Washington, defines the boundaries of the state of Washington.  The portion pertinent hereto provides as follows:

             [[Orig. Op. Page 2]]

            ". . . thence east on the forty-sixth parallel of latitude to the middle of the main channel of the Shoshone or Snake river, thence follow down the middle of the main channel of Snake river to a point opposite the mouth of the Kooskooskia or Clear Water river, thence due north to the forty-ninth parallel of north latitude . . ."

            Title 77 RCW, known as the game code of the state of Washington, sets out the jurisdiction of your department, as well as the manner of enforcement of the game code.

            The state of Washington has jurisdiction over the navigable rivers, which includes the Snake River, for the right of the United States in the navigable waters within the several states is limited to the control thereof for purposes of navigation and subject to such rights.  The state is the owner of the navigable waters within its boundaries, and of the land thereunder.  Port of Seattle v. Oregon and W. R. Company, 255 U.S. 56.  InSilas Mason Co. v. Tax Commission of Washington, 302 U.S. 186, also,Ryan v. Washington, 302 U.S. 186, the supreme court said that the United States has paramount authority over the Columbia River, for the purpose of control and improvement of navigation, but title to river beds and shorelands, including school lands, is in the state of Washington, and the state has legislative authority over these lands consistent with federal functions.

            Cases concerning jurisdictional problems on rivers which form the common boundary between the states have been decided by case law concerning the Columbia River where it forms the boundary between the states of Washington and Oregon.  By the respective state constitutions of Oregon and Washington and by the acts of Congress, wherein these two states were admitted into the union, the middle of the main channel of the Columbia River is the common boundary.

            A major difference arises, however, with respect to the Columbia River, in view of the fact that by act of Congress, Oregon and Washington were given concurrent jurisdiction over both civil and criminal matters over the entire river.  Implementation of this concurrent jurisdiction was reached by compact.  See RCW 75.40.010 and RCW 75.40.020.

            An opinion rendered by this office to Milo Moore, Director of Fisheries, on October 4, 1946 [[1945-46 OAG 1049]], stated that a fisheries inspector has authority to make an arrest in the waters of the Columbia River on the Oregon side thereof, for offenses against the conservation laws of Oregon and Washington, under the  [[Orig. Op. Page 3]] compact between these two states.  But such jurisdiction over the entire river is only by virtue of an act of Congress, making the Columbia River a matter of concurrent jurisdiction, coupled with the compact entered into by Oregon and Washington, which was subsequently ratified by an act of Congress.  No such compact has been entered into by the states of Washington and Idaho.

            SeeState ex rel. Gile v. Huse, 183 Wash. 560, wherein the court stated that it is still possible for some act pertaining to fishing to be lawful in one state and unlawful in the other.  This is because the matter in question was not within the compact between the state of Washington and the state of Oregon.

            InNielsen v. Oregon, 212 U.S. 315, we find that an act done malum prohibitum within the territorial limits of the state of Washington, under authority of license from that state, one cannot be prosecuted and punished by the state of Oregon.  In that case, the defendant had a license from the state of Washington for a purse net.  Oregon law at that time prohibited purse nets.  The defendant was arrested in Washington waters.  The compact did not cover purse nets, and the supreme court stated that Oregon cannot prosecute, and that Washington law applied within the territorial limits of the state of Washington.  Washington game officials cannot enforce Washington game laws on the Idaho side of the Snake River.  In fact, Washington game laws, which may be more stringent than the game laws of Idaho, cannot be enforced on the Idaho side of the Snake River.  See opinion rendered by this office on October 4, 1946, supra.

            The question of determining where the middle of the channel of the Snake River is, still remains, regardless of the width of the river, or the stage of the water therein.  This question appeared inWashington v. Oregon, 211 U.S. 127, wherein the supreme court confined itself to the narrow facts before it, and took the occasion to recommend the determination thereof, that is, the middle of the channel, by a joint agreement between the states of Washington and Oregon.  The Attorney General of the state of Washington, in the opinion of October 4, 1946, makes a similar recommendation.  The supreme court inWashington v. Oregon, 211 U.S. 127, did go so far as to say that the precise boundary is the varying center of the main channel of the Columbia River, and again in Washington v. Oregon, 214 U.S. 205, the supreme court said that the widest channel does not mean the broadest expanse of water, but simply the widest expanse of water which can reasonably be called a channel.

            We conclude, therefore, that Washington game laws may be enforced only within the territorial limits of the state of Washington, on the Snake River, and such territorial limits are confined to that portion of the Snake River which lies west  [[Orig. Op. Page 4]] of the middle of the main channel of the Snake River.

            We trust that this information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

LEO J. GESE
Assistant Attorney General