AGO 1994 No. 21 - Nov 23 1994
FISH-LICENSES-DEPARTMENT OF FISH AND WILDLIFE-Interpretation of "having designated" for purposes of applying for limited entry crab fishing license
Section 2(2), chapter 260, Laws of 1994, creating a new limited entry Dungeness crab—coastal fisheries license, effective January 1, 1995, requires that the vessel which meets the historical criteria outlined in chapter 260 be the same vessel designated on the 1994 qualifying license at the time the 1995 license is sought.
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November 23, 1994
State Senator, District 19
312 Legislative Building, MS 40419
Olympia, WA 98504-0419
HonorableRichard A. King
State Representative, District 38
426 John L. O'Brien Building, MS 40675:
Olympia, WA 98504-0675
Cite as: AGO 1994 No. 21
Dear Senator Snyder and Representative King:
By letter previously acknowledged, you asked for our opinion regarding the proper interpretation of certain provisions of Second Engrossed Substitute House Bill 1471, chapter 260, Laws of 1994. That act amended provisions of Title 75 RCW related to the Washington Dungeness coastal crab fishery. Section 2(2) creates a new Dungeness crab—coastal fishery license, effective January 1, 1995. Your particular question relates to the eligibility of certain persons to meet the historical participation requirements for the new license. Your letter indicates you are asking for our official opinion to assist you in determining whether or not further remedial legislation may be necessary.
The question presented relates to the meaning of language in section 2(2) which provides that a Dungeness crab—coastal fishery license shall only be issued to "a person who proved active historical participation in the coastal crab fishery by having designated, after December 31, 1993, a vessel on the qualifying license that meets [described historical] criteria". Section 2(2)(a) lists the qualifying licenses, each of which requires the licensee to designate a vessel to be used with the license.
Your question may be summarized as follows:
Under section 2(2) does a person qualify for the new crab—coastal license by having a vessel which meets the historical criteria designated on the qualifying 1994 license at the time the 1995 license is sought; or does a person qualify for the new license by designating, sometime during 1994, a vessel that meets the historical criteria, even if that vessel is not designated on the qualifying license at the time the new license is sought?
For the reasons outlined below, we believe the better interpretation is that the vessel which meets the historical criteria must be the vessel designated on the 1994 qualifying license at the time the 1995 Dungeness crab—coastal fishery license is sought.
Dungeness crab fishing in Washington occurs in Puget Sound, the Washington coast, and in the ocean beyond three miles from shore. The State regulates the taking of crab in state waters, which include the coastal waters within three miles of shore. Prior to passage of Second Engrossed Substitute House Bill (2ESHB) 1471, there were no limits on the number of fishers or vessels engaged in the crab fishery in Washington's coastal waters.
Dungeness Crab Fishery Study
In 1992 the Legislature responded to concerns about the potential for overfishing in the coastal crab fishery with the passage of House Bill 2294. Section 1 of HB 2294 provided:
The legislature finds that the Washington coastal crab fishery represents a separate and distinct fishery from that of the Puget Sound licensing district and that it is limited in quantity. Crab fishing, however, is an attractive alternative to fishers who face increased restrictions on other commercial fisheries of the state and region. The legislature finds that there is potential for an economically distressed and disorderly fishery due to the potential increase in the number of crab fishers. Based upon these circumstances, the legislature needs additional information to determine whether it should make substantial changes in the future management and licensing of the coastal crab fishery, including but not limited to, future restrictions on the number of fishers in the coastal crab fishery.
Laws of 1992, ch. 9, § 1, p. 39.
The Department of Fisheries was directed to participate in a study which would include an examination of the optimum number of fishers, vessels, licenses, and gear in the coastal crab fishery, and the advantages and disadvantages of establishing future limits on entry into the coastal crab fishery. Laws of 1992, ch. 9, § 2, p. 40.
The Department of Fisheries study was presented to the Legislature in October 1993.
Legislative History of 2ESHB 1471 — 1993 Session
Legislation to create a limited entry coastal crab fishery was first considered in the 1993 legislative session with the introduction of House Bill 1471. HB 1471 provided that, effective December 1, 1993, a vessel could not take or land Dungeness crab in Washington coastal waters without a special crab pot license and license endorsement. The endorsement could only be issued to vessels which actively participated in the crab fishery as demonstrated by the number and size of landings made in certain qualifying seasons, and which maintained a "Washington state other than Puget Sound commercial crab pot license" between December 1, 1991, and December 1, 1993, the effective date of the limited entry license provisions.
On February 25, 1993, the House Fisheries and Wildlife Committee reported Substitute House Bill 1471. The substitute bill would have required a coastal crab pot license to deliver coastal Dungeness crab taken in coastal waters. The license would be issued only to vessels that held certain licenses or permits during specified periods, and met certain landing requirements. The qualifying licenses had to be held each calendar year 1990 through 1993. The new license would be effective January 1, 1994. Thus, under both the original and the substitute bill, the only vessels which would be eligible for a limited entry license would be those vessels which had been licensed from a specified starting date until the effective date of the new limited entry fishery.
SHB 1471 passed the House but was not acted upon in the Senate during the 1993 regular or special sessions. ESHB 1471 was reintroduced and retained in the 1994 legislative session.
In the interim, the Department of Fisheries "Dungeness Crab Fishery Study Report to the Governor and Legislature" was submitted. The Department of Fisheries recommended that "a modified version of legislation proposed in 1993 (ESHB 1471) be enacted during the 1994 legislative session". The Department of Fisheries noted its recommendation was formulated in the context of certain goals, including preventing a large influx of new entrants into the fishery, allowing current participants who were reasonably active in the fishery to remain, and maintaining the current vessel size composition and number of vessels in the fleet. Among key recommendations was a recommendation to issue a transferable crab—coastal license to individuals who had continuously held a license since 1990 and who made landings of a minimum number and poundage. The Department of Fisheries estimated that 150-160 fishers would qualify under these provisions.
Legislative History of 2ESHB 1471 — 1994 Session
When ESHB 1471 was considered by the House Fisheries and Wildlife Committee early in the 1994 session, it was against a backdrop of newly structured fisheries license laws. A comprehensive act was passed in 1993 which provided that licenses which had previously been issued to vessels would now be issued to persons. Laws of 1993, ch. 340,passim. These new licensing schemes became effective January 1, 1994. A person who holds a license may be required to designate a vessel to be used with the license. Laws of 1993, ch. 340, §§ 7, 17, pp. 1341, 1348; RCW 75.28.045, .130. Vessel designations can be changed no more than four times per calendar year, and no more than once in any seven-day period. Laws of 1993, 1st Sp. Sess., ch. 17, § 45, p. 2644; RCW 75.28.044.
The House Committee on Fisheries and Wildlife reported ESHB 1471 with a striking amendment which reflected these changes in fisheries license laws. The striking amendment restructured the requirements for entry into the coastal crab fishery to reflect the fact that licenses were now issued to a person rather than a vessel. The striking amendment changed the effective date of January 1, 1994, to one year later, and the qualifying licenses were changed to 1994 licenses issued to persons rather than vessels. The new version of the bill would require a person to have a crab—coastal fishery license effective January 1, 1995, in order to take and land Dungeness crab in the state's coastal waters, and provided "[s]uch a license shall only be issued to a person who proved active historical participation in the coastal crab fishery by having designated, as of December 31, 1993, a vessel on the qualifying license that meets" certain historical landing and license criteria. A presentation on the provisions of the striking amendment by a committee staff member included the following statement:
To qualify for the transferable permanent Dungeness crab—coastal fishery licensea person would have to be the owner of a vessel that meets the following criteria.
Tapes of hearing before the House Committee on Fisheries and Wildlife, January 28, 1994 (emphasis added). ESHB 1471, with the striking amendment, was reported by the House Committee on Fisheries and Wildlife on February 1, 1994.
On February 25, 1994, the Senate Committee on Natural Resources considered ESHB 1471. A proposed striking amendment was considered in the Senate Natural Resources Committee which substituted new language in section 2 as follows:
A Dungeness crab—coastal fishery license is transferable. Such a license shall only be issued to a person who proved active historical participation in the coastal crab fishery by having designated, after December 31, 1993[], a vessel on the qualifying license that meets the following criteria.
After the Senate passed ESHB 1471 with this language, a conference committee was appointed. The conference committee adopted the Senate version of section 2(2). The bill was passed in the form recommended by the conference committee.
Your question requires us to interpret the meaning of the phrase "having designated, after December 31, 1993, a vessel on the qualifying license that meets the following criteria" within the context of section 2(2) of 2ESHB 1471. That section provides:
A Dungeness crab—coastal fishery license is transferable. Such a license shall only be issued to a person who proved active historical participation in the coastal crab fishery by having designated, after December 31, 1993, a vessel on the qualifying license that meets the following criteria:
(a) Made a minimum of eight coastal crab landings totaling a minimum of five thousand pounds per season in at least two of the four qualifying seasons identified in subsection (4) of this section, as documented by valid Washington state shellfish receiving tickets; and showed historical and continuous participation in the coastal crab fishery by having held one of the following licenses or their equivalents each calendar year beginning 1990 through 1993, and was designated on the qualifying license of the person who held one of the following licenses in 1994:
(i) Crab pot—Non-Puget Sound license, issued under RCW 75.28.130(1)(b);
(ii) Nonsalmon delivery license, issued under RCW 75.28.125;
(iii) Salmon troll license, issued under RCW 75.28.110;
(iv) Salmon delivery license, issued under RCW 75.28.113;
(v) Food fish trawl license, issued under RCW 75.28.120; or
(vi) Shrimp trawl license, issued under RCW 75.28.130; or
(b) Made a minimum of four landings of coastal crab totaling two thousand pounds during the period from December 1, 1991, to March 20, 1992, and made a minimum of eight crab landings totaling a minimum of five thousand pounds of coastal crab during each of the following periods: December 1, 1991, to September 15, 1992; December 1, 1992, to September 15, 1993; and December 1, 1993, to September 15, 1994. For landings made after December 31, 1993, the vessel shall have been designated on the qualifying license of the person making the landings.
Laws of 1994, ch. 260, § 2(2), p. 1552 (emphasis added).
There are two possible meanings for the phrase "having designated" as used in the emphasized portion of this section. First, the phrase "having designated" a vessel on the qualifying license could be read as describing the present state of being designated. This reading would require the vessel to be the one designated on the 1994 license at the time the 1995 license is sought. A second reading of the phrase "having designated" would be one which means the past act of designating a vessel.
Either reading could be supported by the language of the legislation. The word "designated" is used in other contexts both to describe the state of being designated and to describe the act of designating a vessel. The context of section 2(2) which includes the phrase "having designated" does not indicate which meaning is the intended one: that sentence uses both the present tense "meets" and the past tense "proved": "Such a license shall only be issued to a person who proved active historical participation in the coastal crab fishery by having designated, after December 31, 1993, a vessel on the qualifying license thatmeets the following criteria[.]"
Where the language of a statute is ambiguous and amenable to more than one construction, the courts will look to the legislative history and apply rules of statutory construction to assist in ascertaining the intent of the Legislature. As noted inKadoranian v. Bellingham Police Dep't, 119 Wn.2d 178, 185, 829 P.2d 1061 (1992):
The goal of statutory construction is, of course, to give effect to the intent of the Legislature. Where the meaning of the statute is clear from the language of the statute alone, there is no room for judicial interpretation. If the language of the statute is amenable to more than one construction, however, resort to legislative history and other aids to construction is appropriate.
(Footnotes with citations to cases omitted.)
Thus, the primary objective in construing an ambiguous statute is to carry out the intent of the Legislature. Anderson v. O'Brien, 84 Wn.2d 64, 67, 524 P.2d 390 (1974). Several corollary rules flow from this objective. First, in determining what construction is appropriate, courts will look to the general object and purpose of the legislation. Strenge v. Clarke, 89 Wn.2d 23, 29, 569 P.2d 60 (1977). Second, a statute is to be interpreted in a manner that is consistent with its underlying purpose, and unlikely, absurd or strained results are to be avoided. State v. CSG Job Center, 117 Wn.2d 493, 500, 816 P.2d 725 (1991).
The history of actions by the Legislature with regard to a legislative enactment, including sequential versions of bills and legislative reports, may also help to illuminate legislative intent. Biggs v. Vail, 119 Wn.2d 129, 134, 830 P.2d 350 (1992). The interpretation of a statute by an administrative agency charged with administering a statute may also be considered. Rozner v. Bellevue, 116 Wn.2d 342, 347, 804 P.2d 24 (1991). These rules and their relationship were summarized in Rozner as follows:
Where the legislative intent does not clearly appear on the face of the statutory language, as is the case here, in order to determine intent the court may resort to various tools of statutory construction which may include consideration of the legislative history and administrative interpretation of the statute. However, the interpretation adopted should always be one which best advances the legislative purpose.
The first step in our analysis, then, is to determine which interpretation of section 2(2) best advances the legislative purpose. The general object the Legislature intended to accomplish is set forth in section 1 of 2ESHB 1471. There the Legislature made certain findings, as follows:
The legislature finds that the commercial crab fishery in coastal and offshore waters is overcapitalized. The legislature further finds that this overcapitalization has led to the economic destabilization of the coastal crab industry, and can cause excessive harvesting pressures on the coastal crab resources of Washington state. In order to provide for the economic well-being of the Washington crab industry andto protect the livelihood of Washington crab fishers who have historically and continuously participated in the coastal crab fishery, the legislature finds that it is in the best interests of the economic well-being of the coastal crab industry to reduce the number of fishers taking crab in coastal waters, to reduce the number of vessels landing crab taken in offshore waters, to limit the number of future licenses, and to limit fleet capacity by limiting vessel size.
Each of the alternative interpretations of section 2(2) must be measured against these stated purposes. Under the first interpretation, in which the phrase "having designated . . . on the qualifying license" is interpreted as a current state of designation, the vessel which meets the historical criteria of the act would be the vessel first designated on the crab—coastal license issued in 1995. This reading would further the stated legislative intent to limit the number of fishers and vessels taking crab in coastal waters. This reading would also further the legislative intent to limit fleet capacity, as it would maintain the number of vessels and the size of vessels to those which have historically participated in the crab fishery.
Under the alternative reading, a crab fisher who had designated a vessel which met the historical criteria at any time during 1994, but who subsequently replaced that vessel with a newly designated vessel, would qualify for one of the limited entry crab—coastal licenses. This reading would be contrary to the legislative intent. It would allow the number of fishers and vessels, and the size of vessels, to increase without any linkage to the historical fleet. For example, this reading would allow a number of individuals to use the same "historical" vessel to qualify for the limited entry license. A vessel which met the historical criteria could be designated by an individual, who could then designate a new vessel and sell the historical vessel to a new fisher. That fisher could in turn designate the same vessel, making that fisher also eligible for the limited entry crab—coastal license, and so on.
There is no indication that the Legislature ever intended to allow a person to qualify for the limited entry fishery merely by having held and designated a vessel that met the historical criteria at some time during 1994. Such a reading would be contrary to the expressed legislative purpose of the bill.
The second prong of our analysis focuses on the legislative history of 2ESHB 1471. A study of this history leads us to the conclusion that the Legislature intended that the vessel which meets the historical criteria is the vessel which is to be initially designated on the new crab—coastal fishery license.
A review of the sequential versions of HB 1471 indicates this result was what the Legislature intended. Under both HB 1471 and SHB 1471, the vessel with historical participation in the fishery, and not a substitute vessel, would be eligible to be licensed for the limited entry fishery. While the language of subsequent versions of the bill was changed to reflect a new scheme which licensed persons rather than vessels, there is no indication that the Legislature intended to change its original provision linking eligibility for a crab—coastal license to present ownership of a vessel that meets historical criteria.
The legislative history which is available on this point indicates the intent was to maintain this aspect of the earlier bills. As noted above, in a presentation of the provisions of the bill to the House Committee on Fisheries and Wildlife, a member of the committee staff stated that "[t]o qualify for the transferrable permanent Dungeness crab—coastal fishery license a person would have to be the owner of a vessel that meets the following criteria". Tapes of hearing before the House Committee on Fisheries and Wildlife, January 28, 1994. Our review of the legislative history revealed no indication that the Legislature contemplated that a person who designated a vessel that met historical criteria, but subsequently designated a vessel without historical participation, would be eligible for the limited entry license.
We believe the better reading of section 2(2) of 2ESHB 1471 is that a person must have a vessel which meets the historical criteria designated on the qualifying 1994 license at the time the 1995 crab—coastal license is sought. Thus, the vessel which meets the historical criteria must be designated before December 31, 1994, when the 1994 qualifying license expires. It is immaterial when in 1994 the designation is made, so long as the vessel which meets the historical criteria is the currently designated vessel when the 1994 qualifying license expires. This reading of the statutory language is consistent with the legislative intent, as reflected in the stated purpose of the statute and revealed in the legislative history.
As noted above, you indicated that you have asked for our opinion to assist you in determining whether further remedial legislation may be necessary. In this context, we should caution that while Attorney General Opinions are given substantial weight by the court, these opinions are not binding and a court may ultimately disagree with the conclusion we have reached. Further, the ambiguity of this statutory language may have contributed to persons changing vessel designations in a manner which makes them ineligible for the new crab—coastal license. For these reasons, you may wish to consider legislation that clarifies the meaning of the statutory language and addresses situations in which confusion may have arisen.
Very truly yours,
CHRISTINE O. GREGOIRE
At that time, the general licensing scheme provided for vessels, not persons, to be licensed. This general licensing scheme was changed effective January 1, 1994, to license persons rather than vessels. See discussion at pages 4-5 infra.
[T]he laws governing commercial fishing licensing in this state are highly complex and increasingly difficult to administer and enforce. The current laws governing commercial fishing licenses have evolved slowly, one section at a time, over decades of contention and changing technology, without general consideration for how the totality fits together.
The Legislature found the laws governing commercial fishing licenses had created confusion, and noted: "Much of the confusion has arisen because the license holder in most cases is a vessel, not a person." Laws of 1993, ch. 340, § 1, p. 1339.
A Dungeness crab—coastal class B fishery license was also created by 2ESHB 1471. This license is a temporary, non-transferable license which may be issued to some fishers who meet certain historical criteria but would not qualify for a permanent license.
The change from "as of December 31, 1993" in the House version to "after December 31, 1993" in the Senate version likely reflects a realization that the requirement for vessel designation on a license did not go into effect until January 1, 1994. Thus, it would be impossible to designate a vessel "as of" December 31, 1993.
See, e.g., RCW 75.28.044(1) where the terms "designate" and "designated" are used in describing both the act of designation and the state of being designated: "The holder of a license subject to this section may substitute thevessel designated on the license ordesignate a vessel if none has previously been designated[.]"
Section 10, chapter 260, Laws of 1993, restrains growth in the fleet capacity of the limited entry coastal crab fishery by limiting the frequency of changes in vessel designations, and limiting the extent to which the length of a newly designated vessel may exceed the "currently designated vessel". We believe the initial "currently designated vessel" on a Dungeness crab—coastal license is the vessel which meets the historical criteria of section 2. The holder of the license may not change vessel designation if the hull length of the vessel proposed to be designated exceeds the hull length of thecurrently designated vessel by more than 10 feet. Laws of 1994, ch. 260, § 10(1)(a), p. 1555. There are limits on both the frequency of changes of vessel designation and the hull length of the vessel which may be designated. If the hull length of the vessel proposed to be designated is comparable to or exceeds by up to one foot the hull length of the currently designated vessel, the vessel designation may be changed no more than once in any two consecutive Washington state coastal crab seasons. If the hull length of the vessel proposed to be designated is between 1 and 10 feet over the hull length of the currently designated vessel, the department may change the vessel designation no more than once in any five consecutive Washington state coastal crab seasons. Thus, the historical fleet size and composition would be the beginning base from which gradual changes in size are allowed under section 10.
Further, both the Department of Fisheries study and analyses of the bills by the legislative committees predicted the total number of vessels which would be eligible for entry into the fishery. If the number of entrants were not limited by the number of vessels which met historical criteria, there would be no way to predict these numbers. It would be mathematically possible for a single vessel to be designated on 52 separate licenses since vessels must remain designated on any one license only seven days. See RCW 75.28.044.