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Bob Ferguson

AGLO 1978 No. 33 -
Attorney General Slade Gorton


For lack of statutory authority (and not because of any constitutional objection), the State Department of Fisheries may not give (i.e., transfer without monetary consideration) surplus edible salmon which have come within its possession or ownership, no matter how obtained, to a federally-recognized Indian tribe (or individual members thereof)‑-except in the case of spawned-out salmon and salmon in spawning condition to the extent permitted by RCW 75.12.130; the department may, however, sell any such other salmon to a federally-recognized Indian tribe for whatever price may be agreed upon between the department and the tribe rather than (necessarily) full market value.

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                                                                October 23, 1978

Honorable Gordon Sandison
Department of Fisheries
115 General Administration Bldg.
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1978 No. 33

Dear Sir:

            By letter previously acknowledged you requested or opinion on a question which we paraphrase as follows:

            May the State Department of Fisheries dispose of surplus edible salmon by giving those salmon to federally-recognized Indian tribes without monetary consideration?

            We answer your question in the negative except as qualified in our analysis.

             [[Orig. Op. Page 2]]


            At the outset let us focus, briefly, upon the analytical basis for our answer to your question.  In the recent case ofAnderson v. O'Brien, 84 Wn.2d 64, 524 P.2d 390 (1974), the Washington Supreme Court held that Article VIII, § 5 of our state constitution does not prohibit loans or gifts of state funds or property to a federally-recognized Indian tribe.  Accord, the intergovernmental transaction exception to this constitutional prohibition which was earlier recognized by the court in cases such asRands v. Clarke County, 79 Wash. 152, 139 Pac. 1090 (1914). Therefore, in essence, the question to be here considered is strictly one of statutory authority in accordance with the well-established principle that state agencies, such as the Department of Fisheries, have only those powers which have been granted by the legislature, either expressly or by necessary implication.  See,e.g.,State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956).  Furthermore, for the same reason, another point should be made before proceeding.  Because of the inapplicability of Article VIII, § 5, supra, it follows that even where the department must sell, rather than give away, such surplus edible salmon as are the subject of this opinion, the actual sale price may, as a practical matter, be nominal in those instances in which a federally-recognized Indian tribe is the purchaser.  Accord, AGO 1978 No. 10, copy enclosed at p. 8.

            With the foregoing in mind we turn, now, to your question.  There are, all told, three separate situations in which the Department of Fisheries obtains "ownership" of adult salmon which may be surplus to its needs.1/   Those situations are:

            (1) Where fish have been seized by the department from persons who are in illegal possession thereof;

            (2) Where fish have been caught by the department or its contractors in the operation of a test fishery; and

             [[Orig. Op. Page 3]]

            (3) Where adult fish have returned to hatcheries or related facilities operated by the department in the spawning process.

            We will first direct our attention to those fish which have been seized by the department from someone who was in illegal possession thereof.  In this instance, the applicable statutes are RCW 75.36.010, which authorizes the seizure of such fish, and RCW 75.36.050 which provides for their later disposition, as follows:

            "In the event of seizure and forfeiture of any articles as provided in this chapter, the director may sell or destroy all or any of such articles at public auction.  The time, place, and manner of holding such sale shall be within the discretion of the director.  Notice of the time and place of any such sale shall be published once a week for at least two consecutive weeks in advance of such sale, in at least one newspaper of general circulation in the county wherein the sale is to be held.

            "The proceeds from all such sales shall be deposited with the state treasurer to credit of the general fund."

            Under the well-established principle of statutory construction, expressed in the latin maximexpressio unius est exclusio alterius, it must be concluded that the two methods of disposition expressly authorized by this statute are exclusive;i.e., to sell the fish (or other seized property) or to destroy them.  Therefore, it is our opinion that surplus edible salmon falling within this first category may not be given away, even to a federally-recognized Indian tribe, without monetary consideration.

            We next turn to the second situation in which the Department of Fisheries may obtain ownership of adult salmon which may be surplus to its needs;i.e., through the operation of a test fishery.  Accord, RCW 75.12.130, the first paragraph of which reads as follows:

            "The director may, for the purpose of carrying out his duties, take or remove or cause to be taken or removed in any manner, at any time, any fish or shellfish of any kind, character, or description from any waters or beaches of the state.

            ". . ."

             [[Orig. Op. Page 4]]

            Once again, however, the statutorily authorized method of disposition is by sale rather than gift.  See, the second paragraph of RCW 75.12.130, which provides that:

            "The director is authorized to sell food fish or shellfish caught or taken during test fishing operations conducted by the department for the purpose of food fish or shellfish resource evaluation studies."

            In addition, even this authority to sell surplus salmon obtained through the operation of a test fishery has been further qualified by the legislature through its enactment of the following proviso to another section of the fisheries code, RCW 75.08.230:

            ". . . PROVIDED, That salmon taken in test fishing operations shall not be sold except during a season open to commercial fishing in the district wherein test fishing is being conducted. . . ."

            From these statutes relating to the disposition of fish obtained through the operation of a test fishery it must again be concluded (as in the case of seized fish under RCW 75.36.050) that the Department of Fisheries may sell, but not give away, such fish to a federally-recognized Indian tribe.2/

            Finally, we turn to the third situation in which the Department of Fisheries may obtain ownership of adult salmon which may be surplus to its needs;i.e., through the operation of hatcheries and facilities.  Prior to 1969, it was the practice, apparently recognized by the legislature in that year, for the  [[Orig. Op. Page 5]] Department of Fisheries to sell those surplus fish obtained from this source.  See, the following colloquy between Senators Bailey and Peterson (Ted) on the floor of the Senate during debate preceding the passage of § 2, chapter 16, Laws of 1969, 1st Ex. Sess., amending RCW 75.12.130:

            "Senator Bailey:  'Would Senator Peterson (Ted) yield?  Senator Peterson, the practice now is to let this out on bid, and this fish is sold on the market, is it not?'

            "Senator Peterson (Ted):  'The prime green fish will be put out for bid and sold on the market, Senator, and not the fish that has been spawned out or stripped or milked.'

            "Senator Bailey:  'You said that this would be furnished to institutions.  What I am asking is what is the dividing line between the fish that is furnished the institutions and the fish that is sold on the open market?'

            "Senator Peterson (Ted):  'There is a great dividing line because there you are only selling the green fish, what we call prime fish on the open market.  That fish has not been spawned out.  Any fish that has been spawned out will, if they are in good condition as far as the spawned out fish are concerned, go to the institutions.  Anything beyond that that is not in edible condition for human consumption, will go for animal, mink food, etc.'

            "Senator Bailey:  'What I am trying to find out is if our third greatest fish that we are giving to institutions is fish that is not very good.  This is what I am trying to find out.'

            "Senator Peterson (Ted):  'No, we are very careful about that, Senator.  They are fish that are spawned.  They are virtually green fish in good condition but they are spawned out.  If it is fish that has turned and is not in good condition and cannot be used, it will be used for animal food.'"3/    [[Orig. Op. Page 6]]

            The amendment to the statute which was thus being discussed now appears in the third and last paragraph of RCW 75.12.130, and reads, in full, as follows:

            "The director is prohibited from selling spawned-out salmon carcasses or salmon in spawning condition for human consumption:  PROVIDED, That such salmon and carcasses may be given to state institutions or schools or to economically depressed people, unless such salmon are found to be unfit for human consumption by the department of health.  That which is not fit for human consumption may be sold by the director for animal food, fish food, or for industrial purposes."

            What this means is that we now have two separate categories of hatchery surplus fish.  In the case of the first category (hatchery fish are neither spawned out nor in spawning condition) the department may sell such fish but, for lack of statutory authority, it may not give them to an Indian tribe or anyone else.  However, in the case of spawned-out salmon carcasses and salmon in spawning condition the department may, based upon an appropriate finding under the above‑quoted 1969 amendatory proviso, give such fish to a federally-recognized Indian tribe which has some members who are economically distressed.


            For the above‑stated reasons our direct answer to your question, in brief summary form, is as follows:  For lack of statutory authority (and not because of any constitutional objection), the Department of Fisheries may not give (i.e., transfer without monetary consideration) its surplus edible salmon, no matter how obtained, to a federally-recognized Indian tribe (or anyone else)‑-except in the case of spawned-out salmon or salmon in spawning condition to the extent permitted by the proviso to RCW 75.12.130,supra.  The department may, however, sell any such other salmon to a federally-recognized Indian tribe for whatever price may be agreed upon between the department and the tribes rather than (necessarily) full market value.  See, AGO 1978 No. 10, p. 8.4/

             [[Orig. Op. Page 7]]

            It is hoped that the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Deputy Attorney General

                                                         ***   FOOTNOTES  ***

1/In accordance with the terms of your question we are only concerned, in this opinion, with the disposition of such fish as have actually come into the possession or ownership of the Department of Fisheries.  Conversely, we are not here concerned with salmon or other fish which are harvested by Indian tribal representatives, even though such harvests may have occurred in terminal areas close to, or even adjacent to, a state hatchery or related facilities.  By reason of such tribal harvests those latter fish do not come into the possession of the Department of Fisheries and thus are not subject to disposal by the department.

2/In this context, however, we should make note of the fact that the department is authorized to contract with private fishermen to conduct a test fishery on its behalf.  See, RCW 75.16.070.  Under this authorization the department could, therefore, contract with an Indian tribe to perform a test fishery and, under the terms of the contract, permit the tribe to retain the surplus fish obtained thereunder as consideration for its test fishing operation on behalf of the department.  We would caution, however, that the object of any such test fishery must be to obtain information and data for the department and may not be used simply as a device to provide a tribal fishery with no benefit to the state.

3/1969 Journal of the Senate, p. 512.

4/For the same reason (i.e., the absence of aconstitutional ban against even a gift to a federally-recognized Indian tribe) we should also point out that, in so many words, that it would be permissible for the legislature, by appropriate statutory amendment, to authorize that alternative method of disposition contemplated by your question.