AGO 1993 No. 2 - Mar 10 1993
DEPARTMENT OF FISHERIES--FISH--Authority of the Department of Fisheries to Regulate Landings of Fish Caught Outside Washington and to Regulate Size Limits Based on Different Types of Fishing Gear
1. The Department of Fisheries has the authority to require that salmon caught in Canadian waters meet landing size and possession limits of the State of Washington when the fish are landed at Washington ports.
2. The Department of Fisheries has the authority to set size limits based upon the type of gear being used by the fisherman.
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March 10, 1993
Honorable Lorraine Wojahn
State Senator, District 27
407 Legislative Building, MS 0427
Olympia, WA 98504-0427 Cite as: AGO 1993 No. 2
Dear Senator Wojahn:
By letter previously acknowledged you requested our opinion on the following paraphrased questions:
1. Does the Department of Fisheries have the authority to require that salmon caught in Canadian waters meet landing size and possession limits for a Washington port of landing?
2. Does the Department of Fisheries have the authority to distinguish between anglers and spearfishers by imposing size limits on lingcod for anglers but not for spearfishers?
The answers to both Questions 1 and 2 are yes.
Your questions arise out of 1992 amendments to rules adopted by the Department of Fisheries (Fisheries). First, WAC 220‑56-156 was amended to provide:
It is unlawful to land at any Washington state port shellfish or food fish taken for personal use from Canadian waters unless the person landing the shellfish or food fish possesses a Canadian sport fishing license and catch record, if one is required, valid for the period when the shellfish or food fish were taken. Salmon taken for personal use from Canadian waters and landed at a Washington port must meet current salmon regulations for that port.
State Register 92-11-012 (Jun. 1992) (bill draft form).
Second, WAC 220-56-235 was amended to provide:
(c) It is unlawful to possess lingcod taken by angling less than (
(22)) 26 inches in length ( (taken by angling)) or greater than 40 inches in length.
(d) The daily bag limit taken by spear fishing may include no more than one lingcod. There is no size restriction on the one lingcod allowed in the daily bag limit if taken by spear fishing.
State Register 92-11-012 (Jun. 1992) (bill draft form). Your request questions the authority of Fisheries to adopt these amendments.
Does the Department of Fisheries have the authority to require that salmon caught in Canadian waters meet landing size and possession limits for a Washington port of landing?
Your first question concerns the authority of Fisheries to regulate the landing of fish in Washington when the fish were taken in Canadian waters. Fisheries is an agency of the state and can exercise only powers expressly granted by statute or necessarily implied therein. E.g.,McGovern v. Social & Health Servs., 94 Wn.2d 448, 450, 617 P.2d 434 (1980). Therefore, the power to regulate possession of Canadian caught fish must be granted by statute.
RCW 75.08.080 describes Fisheries' authority to adopt rules. Specifically, the Legislature has granted authority to adopt rules: "Regulating the possession, disposal,landing, and sale of food fish or shellfish within the state,whether acquired within or without the state." RCW 75.08.080(1)(d) (emphasis added).
Revised WAC 220-56-156 falls within this statutory power. The rules regulate possession and landing of salmon, regardless of whether the salmon was "acquired within or without" the territorial boundaries of Washington.
Your letter suggests that Fisheries may lack the authority to regulate the landing of these fish because they were legally taken in Canadian waters. This raises the issue of whether such a regulation has an impermissible effect on foreign commerce. State laws that affect foreign commerce must comply with restrictions arising from the Commerce Clause of the United States Constitution. SeeBob-Lo Excursion Co. v. Michigan, 333 U.S. 28, 34, 92 L. Ed. 455, 461, 68 S. Ct. 358 (1948) (regulation of excursion boat to Canada from Detroit involves "commerce").
The Commerce Clause of the United States Constitution provides that: "The congress shall have power . . . [t]o regulate commerce with foreign nations, and among the several states, and with the Indian tribes". U.S. Const. art. 1, § 8, cl. 3. Although the clause is phrased as a grant of power to Congress, the Supreme Court has long recognized that the clause limits the power of the states to erect barriers against interstate or foreign trade. SeegenerallyLewis v. BT Investment Managers, Inc., 447 U.S. 27, 35, 64 L. Ed. 2d 702, 711, 100 S. Ct. 2009 (1980). The limit on state power to affect foreign commerce is not absolute. The states retain substantial powers to regulate matters of local concern even though interstate or foreign commerce may be affected. Id. at 36.
We conclude that this issue is answered by numerous cases upholding state authority to regulate possession of fish and wildlife lawfully acquired outside the boundaries of the state. SeeFrach v. Schoettler, 46 Wn.2d 281, 280 P.2d 1038,cert.denied, 350 U.S. 838 (1955); State v. Nelson, 146 Wash. 17, 261 P. 796 (1927) (state may regulate possession of trout even if lawfully taken in Montana);Bayside Fish Flour Co. v. Gentry, 297 U.S. 422, 426, 80 L. Ed. 772, 775, 56 S. Ct. 513 (1935);New York ex rel. Silz v. Hesterberg, 211 U.S. 31, 53 L. Ed. 75, 29 S. Ct. 10 (1908). But see,State v. Belknap, 104 Wash. 221, 176 P. 5 (1918) (distinguishingSilz, and holding that a particular ban on possession of extraterritorial fish did not serve local interest), cert.denied, 251 U.S. 553 (1919).
InFrach, the Washington Supreme Court reviewed a 1953 law that prohibited the possession of salmon at certain times and places, regardless of whether the salmon were taken from closed Washington waters or lawfully taken from ocean waters outside Washington territory. See Laws of 1953, ch. 147, §§ 5-8, pp. 289‑90. Fishing boat owners who fished outside the three-mile territorial waters challenged the law as an unconstitutional interference with interstate and foreign commerce.
TheFrach court upheld the 1953 law, noting first that the Washington law took effect only on vessels and persons that brought their catch through waters within the jurisdiction of the state. Frach, 46 Wn.2d at 288. The court held that the ban on all possession of salmon facilitated enforcement of the closure of the territorial Washington waters. The court explained that if the state had no power to regulate fishers returning from outside territorial waters, "it would clearly result in the practical deprivation to the state of its undoubted right to regulate the taking of fish from within its territorial waters." Id. at 288, quotingMirkovich v. Milnor, 34 F. Supp. 409, 412 (N.D. Cal. 1940). TheFrach court therefore held that any possession and sale of salmon by fishing boat ownersin Washington could be subject to state regulation. "Even though the taking is beyond our jurisdiction, the possession and sale are within our jurisdiction, and appellants are subject to state regulation." Id. at 290.
InBayside,supra, the U.S. Supreme Court upheld a California law that prohibited commercial use of sardines for animal feed, even if the sardines had been taken in international waters outside California.
Sardines taken from waters within the jurisdiction of the state and those taken from without are, of course, indistinguishable; and to the extent that the act deals with the use or treatment of fish brought into the state from the outside,its legal justification rests upon the ground that it operates as a shield against the covert depletion of the local supply, and thus tends to effectuate the policy of the law by rendering evasion of it less easy.
Bayside, 297 U.S. at 426 (emphasis added).
We believe that Fisheries has authority to adopt the rule in question because two "local benefits" are achieved by regulating the landing of fish taken in Canadian waters. First, the regulation facilitates enforcement of the closures and bag limits in Washington waters by precluding false claims that salmon were taken in Canadian waters. Second, the taking of fish in Canadian waters affects the population of fish in Washington waters, because many anadromous fish in Canadian waters are destined for Washington streams or rivers. SeeFrach, 46 Wn.2d at 290;Bayside Fish Flour Co., 297 U.S. at 426 (quoted above);State v. Bundrant, 546 P.2d 530, 552-54 (Alaska 1976) (Alaska regulation of extraterritorial king crab fishing upheld because it preserves the king crab that migrate into Alaskan waters).
Based upon the above analysis, we conclude that Fisheries has statutory authority to apply state limits and closures to all fish landed in Washington ports, even if the fish were originally taken in Canadian waters. We also conclude that the regulation does not run afoul of the Commerce Clause of the United States Constitution.
Does the Department of Fisheries have the authority to distinguish between anglers and spearfishers by imposing size limits only on lingcod for anglers but not for spearfishers?
Your second question concerns the distinction Fisheries makes between anglers and spearfishers taking lingcod. Fisheries has broad authority to allocate the resource among users. InNorthwest Gillnetters Ass'n v. Sandison, 95 Wn.2d 638, 628 P.2d 800 (1981), the court "clarified that the Department of Fisheries can allocate among noncompeting users for purposes other than conservation." Id. at 642. The court supported its conclusion by reviewing the statutes that authorize Fisheries to make rules, RCW 75.08.080, and a statute that allowed Fisheries to promote orderly recreational fisheries by taking into account navigation, law enforcement, environmental concerns, and public recreation, RCW 75.08.085. TheSandison court upheld a regulation setting a one-day commercial Chinook season, even though the purpose of the regulation was to allocate between commercial and recreational fishers, not conservation.
Although Fisheries has broad statutory authority to balance fishing by anglers and spearfishers, your letter suggests that there is unlawful discrimination between anglers (who must release oversized and undersized fish) and spearfishers (who have no size limitations).
The Washington Supreme Court has rejected arguments that limitations on thetype of gear to be used for fishing constitutes unlawful discrimination in violation of the Equal Protection Clause of the United States Constitution. SeeWashington Kelpers Ass'n v. State, 81 Wn.2d 410, 422, 502 P.2d 1170 (1972),cert.denied, 411 U.S. 982 (1973). InWashington Kelpers, the court concluded that a regulation of gear to be used for fishing is not a classification of persons for the Equal Protection Clause:
It seems plain to us thatthis is not a discrimina-tion between, or a classification of,persons; but only a discrimination as to appliances which may be used; and that as to each class of such appliances, every person may use them under exactly the same conditions and restrictions. . . . There is plainly no discriminationtouching any characteristic or quality attaching to the person of appellants or any other person.
Id., quoting Barker v. State Fish Comm'n, 88 Wash. 73, 76, 152 P. 537 (1915) (emphasis added). We conclude that the different size limits for angler gear and spearfish gear is not a classification of persons. Every person may take lingcod lawfully with either gear.
Therefore, there is no statutory or constitutional infirmity with Fisheries' decision to allow lingcod to be taken by both angling and spearfishing gear. The decision to adopt different size limits rationally relates to the fact that spearfishing mortally wounds a fish so that it cannot be released.
We trust that this opinion will be of assistance to you.
Very truly yours,
CHRISTINE O. GREGOIRE
JAY D. GECK
Assistant Attorney General
We note that Fisheries' size and possession limits apply to salmon taken in Canadian waters only if the salmon are landed within Washington's territorial boundaries. Apparently, salmon from Canadian waters may be landed in Canada without triggering the Washington landing regulations. Fisheries therefore is limiting its enforcement of Washington laws to state territory.
Fisheries expressly stated this second purpose for the proposed rule at State Register 92-03-151 (Feb. 1992).
In Bundrandt, Alaska prohibited the possession and sale of king crab taken outside Alaska's boundaries. The Alaska Supreme Court held that the state had a legitimate interest in controlling the activities of Alaskan fishers who were depleting the king crab in extraterritorial waters, because the crab had predictable migratory habits of moving into Alaskan waters. "If the fishery outside the three-mile limit destroys the resource outside, it will similarly destroy the resource inside the three-mile limit. If the State of Alaska cannot protect this resource under its police power, then such power is far more limited than any recorded case reveals." 546 P.2d at 552.
RCW 75.08.085 was repealed in 1983. Laws of 1983, 1st Ex. Sess., ch. 46, § 185, p. 1809. In its place, RCW 75.08.012 was amended to add the following sentence: "The department shall promote orderly fisheries and shall enhance and improve recreational and commercial fishing in this state." In recodifying the Fisheries code, the Legislature declared that "[u]nless the context clearly requires otherwise, the revisions made to the fisheries code by this act are not to be construed as substantive." Laws of 1983, 1st Ex. Sess., ch. 146, § 1, p. 1728. We conclude that the general authority of Fisheries still includes the power to allocate fishing opportunities among different sport fishers, such as spearfishers and anglers.