Hartman v. Washington State Game Commission, 43156

• Decision Date: 27 February 1975
• Docket Number: No. 43156,43156
• Citation: 85 Wn.2d 176,532 P.2d 614
• Parties: Robert James HARTMAN et al., Respondents, v. The WASHINGTON STATE GAME COMMISSION, Appellant.
• Court: Washington Supreme Court

Page 176

85 Wn.2d 176

532 P.2d 614

Robert James HARTMAN et al., Respondents, v. The WASHINGTON STATE GAME COMMISSION, Appellant.

No. 43156.

Supreme Court of Washington, En Banc.

Feb. 27, 1975.

Slade Gorton, Atty. Gen., James M. Johnson, Asst. Atty. Gen., Olympia, for appellant.

McPhee, Pope & Phillips, William Thomas McPhee, Olympia, for respondents.

BRACHTENBACH, Associate Justice.

The Washington State Game Commission appeals from a declaratory judgment which held part of a fishing regulation to be invalid. We affirm the trial court.

The Game Commission adopted the 1974 fishing regulations which provided in part:

FISHING FROM BOATS EQUIPPED WITH MOTORS UNLAWFUL--It shall be unlawful to fish from a boat or any other floating device equipped with a motor during the supplemental steelhead and whitefish seasons in the following waters: (A list of 11 rivers or parts of rivers follows.)

Three fishermen affected by the prohibition challenged the regulation. The trial court declared the section invalid on the grounds that its adoption was without statutory authority, without compliance with procedural requirements related to rulemaking, and in violation of the plaintiffs' constitutional rights to due process.

It is noted at the outset that the regulation related only to 1974 and is no longer effective, regardless of questions concerning its prior validity. However, this court will review a case, otherwise moot, if matters of continuing and substantial public interest are involved. Criteria to be considered in deciding whether to hear such a case include the public nature of the question presented, the desirability of an authoritative determination for the future guidance of public officers, and the likelihood of future recurrence of the question. Sorenson v. Bellingham, 80 Wash.2d 547, 496 P.2d 512 (1972). Such elements are present here.

Did the Game Commission have statutory authority to adopt the challenged regulation? Two statutes must be examined. RCW 77.12.040 authorizes the commission to

adopt, promulgate, amend, or repeal, and enforce, reasonable rules and regulations governing the time, place and manner, or prohibiting the taking of the various classes of game animals, fur-bearing animals, protected wildlife, and predatory animals, game birds, predatory birds, nongame birds, and harmless or song birds, and game fish in the respective areas and throughout the state and the quantities, species, sex and size of such animals, birds and fish that may be taken.

The commission argues that the challenged regulation pertains to the 'manner' of taking game fish and is, therefore, within its regulatory authority. Respondents, however, take the position that the commission's regulatory authority is qualified by RCW 77.12.010, which provides:

The wild animals and wild birds in the state of Washington and the game fish in the waters thereof are the property of the state. The game animals, fur-bearing animals, game birds, nongame birds, harmless or song birds, and Game fish shall be preserved, protected, and perpetnated, and to that end such game animals, fur-bearing animals, game birds, nongame birds, harmless or song birds, and game fish Shall not be taken at such times or places, by such means, In such manner, or in such quantities As will impair the supply thereof.

(Italics ours.)

The chief of the Fisheries Management Division testified specifically that the purpose of the regulation was to govern the deportment of fishermen using a river, there having arisen disputes and dissension between bank fishermen and those fishing from powered boats. Such a purpose is obviously improper if the legislature intended to limit the commission's regulatory authority to the effectuation of those concerns enunciated in RCW 77.12.010.

Our essential object, in interpreting the meaning of RCW 77.12.040, is to ascertain and give effect to the intent of the legislature, and we must look to the statutory context as a whole to derive legislative intent. Amburn v. Daly, 81 Wash.2d 241, 501 P.2d 178 (1972). Where the legislature prefaces an enactment with a statement of purpose such as RCW 77.12.010, that declaration, although without operative force in itself, nevertheless serves as an important guide in understanding the intended effect of operative sections. State ex rel. Berry v. Superior Court, 92 Wash. 16, 159 P. 92 (1916); Whatcom County v. Langlie, 40 Wash.2d 855, 246 P.2d 836 (1952).

Thus, we look to the prefatory section to explicate the extent of authority intended to be delegated by RCW 77.12.040, and that preface clearly pertains to matters of conservation, I.e., preservation, protection and perpetuation so as not to impair the supply. It is To that end that the manner of taking is to be restricted. There is no indication that the legislature intended that regulations relating to the manner of taking should be directed toward a different end, and to interpret identical language in the two sections as having different connotations would be illogical. As further support for this view, it should be noted that RCW 77.12.330 authorizes the commission to set aside exclusive fishing areas for minors. From that statute it can be inferred that the legislature believed it necessary to confer special regulatory authority upon the commission to enact a rule unrelated to the purposes contained in the policy section. The essential failing of the regulation is that its intended purpose bore absolutely no relation to the regulatory authority delegated to the commission. Indeed the respondents concede that if its purpose had been related to conservation it would be valid.

There is an alternative basis for holding that the challenged regulation is invalid. The administrative procedure act (RCW 34.04) establishes certain procedural requirements relating to an agency's rule-making, and RCW 34.04,025 provides that, prior to the adoption of any rule, the agency shall:

Give at least twenty days notice of its intended action by . . . giving public notice as provided in chapter 42.30 RCW, as now or hereafter amended. Such notice...