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Bob Ferguson

AGO 1970 No. 15 -
Attorney General Slade Gorton


The director of fisheries may lawfully close a given area to commercial fishing without also closing it to sports fishing where his action is taken for the purposes of conservation and for the protection and proper management of the state's fisheries.

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                                                                   June 25, 1970


Honorable Duane L. Berentson
State Representative, 40th District
P. O. Box 426
Burlington, Washington 98233

                                                                                                                 Cite as:  AGO 1970 No. 15

Dear Sir:

            By letter previously acknowledged, you have requested the opinion of this office on a question which we paraphrase as follows:

            May the director of fisheries lawfully close a given area to commercial fishing without also closing it to sports fishing?

            We answer your question in the affirmative subject to the qualification set forth in our analysis below.


            The regulatory powers of the director of fisheries are set forth in RCW 75.08.080, as follows:

            "The director shall investigate the habits, supply and economic use of, and classify, the food fish and shellfish in the waters of the state and the offshore waters, and  [[Orig. Op. Page 2]] from time to time, make, adopt, amend, and promulgate rules and regulations as follows:

            "(1) Specifying the times when the taking of any or all the various classes of food fish and shellfish is lawful or prohibited.

            "(2) Specifying and defining the areas, places and waters in which the taking and possession of the various classes of food fish and shellfish is lawful or prohibited.

            "(3) Specifying and defining the types and sizes of gear, appliances, or other means that may be lawfully used in taking the various classes of food fish and shellfish, and specifying the times, places, and manner in which it shall be lawful to possess or use the same.

            "(4) Regulating the possession, disposal, and sale of food fish and shellfish within the state, whether acquired within or without the state, and specifying the times when the possession, disposal, or sale of the various species of food fish or shellfish is prohibited.

            "(5) Regulating the prevention and suppression of all infectious, contagious, dangerous, and communicable diseases and pests affecting food fish and shellfish.

            "(6) The fixing of the size, sex, numbers, and amounts of the various classes of food fish and shellfish that may be taken, possessed, sold, or disposed of.

            "(7) Regulating the landing of the various classes of food fish and shellfish or parts thereof within the state.

            "(8) Regulating the destruction of predatory seals and sea lions and other predators destructive of food fish or shellfish, and specifying the proof of the destruction of the same that shall be required.

             [[Orig. Op. Page 3]]

            "(9) Specifying the statistical and biological reports that shall be required from licensed or nonlicensed fishermen, dealers, boathouses, handlers, or processors of food fish and shellfish.

            "(10) Specifying which species of marine and freshwater life are food fish and shellfish.

            "(11) Classifying the species of food fish and shellfish or parts thereof that may be used for purposes other than human consumption.

            "(12) Promulgating such other rules and regulations as may be necessary to carry out the provisions of this title and the purposes and duties of the department.

            "Subdivisions (1), (2), (3), (4), (6), and (7), shall not apply to licensed oyster farms or oysters produced thereon."

            By its enactment of subsections (1)-(4), (6), (9) and (12) of this statute, the legislature has clearly granted to the director the authority, in regulating the taking of food fish and shellfish, to specify seasons, areas, gear, maximum catch and possession limits and allowable sales and disposition of catch, and to require certain statistical reports for various segments of the state fishery.  However, sound management of the total fishery resource has necessitated the enactment of different regulations for sports fishing (angling) than for commercial fishing.

            Basically, the sports fisheries are managed so as to allow large numbers of fishermen each to take a limited number of fish.  Lawful gear for angling is defined in RCW 75.04.100 as one pole, held in hand, to which not more than two single hooks may be attached.  Under WAC 220-56-063 and 220-56-066, most rivers, streams and ocean areas are open to angling.  Spawning areas and areas below dams and racks are closed to angling, and other areas can and have been closed when such closures were necessary for proper escapement.  Possession and bag limits for angling vary for different areas.  For the coastal fishery the limit is three salmon of not less than 20 inches in length, as provided for in WAC 220-56-013.  No license is required for angling, but  [[Orig. Op. Page 4]] sports catches must be recorded upon salmon punch cards which are returned to the department of fisheries.  See, WAC 220-56-023.  Fish taken by angling are for personal use only and may not be sold commercially.

            On the other hand, the commercial fisheries are managed to allow for proper escapement and maximum commercial take.  The legislature has established license requirements for all segments of the commercial fishery, and has defined lawful gear under the various licenses.  See, chapter 75.28 RCW.  Areas open to commercial fishing are set by statute (chapter 75.18 RCW) and permanent regulations (WAC 220-47-010 through 220-47-070) promulgated thereunder.  Data for the commercial fisheries is collected continuously by the department of fisheries, and additional closures and regulations are frequently made by emergency regulation to preserve necessary escapement as mandated by fishery data and recommendations of the international salmon fishery commission.

            The Washington supreme court has consistently upheld the authority of the director of fisheries to prohibit the use of certain specified gear in a given area while leaving the same area open for the use of other gear.  Thus, inBarker v. State Fish Commission, 88 Wash. 73, 152 Pac. 537 (1915), the court upheld a regulation which effectively closed Puget Sound to gill net fishing while leaving the Sound open to purse seine net fishing.  And inVail v. Seaborg, 120 Wash. 126, 207 Pac. 15 (1922), the court upheld a regulation which closed Puget Sound to commercial gear while leaving it open to hook and line fishing.  Subsequently, inMcMillan v. Sims, 132 Wash. 265, 231 Pac. 943 (1925), the court upheld a regulation closing Skagit Bay to commercial fishing while allowing the area to remain open to hook and line fishing.

            The court has specifically rejected the contention that opening specified areas only to certain gear or types of fishing violates the equal protection and the privilege and immunity clauses of the federal and state Constitutions, respectively.1/   See,State v. Tice, 69 Wash. 403, 125 Pac. 168 (1912); Barker v. State Fish Commission, supra; and Frach v. Schoettler, 46 Wn.2d 281, 280 P.2d 1038 (1955).  In theBarker case, in denying the allegations that a  [[Orig. Op. Page 5]] prohibition against gill nets was discriminatory, the court stated at pp. 76-77:

            "It seems plain to us that this is not a discrimination 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 no suggestion in the law that gill nets may not be used as the law prescribes by all persons, or that purse and drag seines may not be used as the law prescribes by all persons.  There is plainly no discrimination touching any characteristic or quality attaching to the person of appellants or any other person.

            "It has become the settled law of this state, in harmony with the rule prevailing in other states, that the classification of territory in game and fish laws preventing hunting or fishing in a portion of the state and permitting it elsewhere in the state is not a discrimination between, or a classification of, persons in violation of the state or Federal constitutional guaranties here invoked.  Hayes v. Territory, 2 Wash. Terr. 286, 5 Pac. 927; State v. Tice, 69 Wash. 403, 125 Pac. 168, 41 L.R.A. (N.S.) 469;Cawsey v. Brickey, 82 Wash. 653, 144 Pac. 938.  Among the numerous decisions of other states so holding we note:  Portland Fish Co. v. Benson, 56 Ore. 147, 108 Pac. 122; Bittenhaus v. Johnston, 92 Wis. 588, 66 N.W. 805, 32 L.R.A. 380.

            "Classification of methods of taking fish, making certain methods lawful and other methods unlawful, has been held not to discriminate between persons in violation of any constitutional right.  State v. Lewis, 134 Ind. 250, 33 N.E. 1024, 20 L.R.A. 52; State v. Mrozinski, 59 Minn. 465, 61 N.W. 560, 27 L.R.A. 76."

            The conclusion to be drawn from these cases in terms of the question which you have posed, is that the director of  [[Orig. Op. Page 6]] fisheries has the authority to close a given area to commercial fishing without also closing it to sports fishing where his action is taken for the purposes of conservation, protection and proper management of the state's fisheries.  Furthermore, we should add that we view this conclusion as being fully consistent with that which was reached in AGO 59-60 No. 127, which you have referred to in your request.  In that 1959 opinion to a previous director of fisheries, we advised that the director could not close an area to commercial fishing for the sole purpose of establishing an area for sports fishing pointing out there, as we have here, that the underlying requirement which the director must meet in promulgating regulations is that his action must be reasonable in terms of his responsibility for the management and conservation of the fishery resource.  The problem, in the case considered in this prior opinion, was that no conservation or management goals were involved; instead, the proposed closure would have been made to keep commercial boats out of a given area solely for the purpose of promoting sports fishing in that area, and thus (we concluded) would have been arbitrary and capricious.

            We trust the foregoing will be of assistance to you.


Very truly yours,

Attorney General

Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/United States Constitution, Amendment 14 and Washington Constitution, Article I, § 12.