Marincovich v. Tarabochia, No. 11302-3-II

• Court: Court of Appeals of Washington
• Writing for the Court: WORSWICK; ALEXANDER, C.J., and REED
• Citation: 53 Wn.App. 633,769 P.2d 866
• Parties: Gary MARINCOVICH, Douglas Westerlund, Lawrence Telen, Joseph Lloyd Tarabochia, Daniel J. Stephan, Daniel L. Stephan, Thomas Svensen, Richard Quashnick, Gary Backman, and Altoona Snag Union, Inc., Appellants, v. Joseph B. TARABOCHIA, Jr., and Cinnon Tarabochia, husband and wife; Ronald Tarabochia, a single person; Daniel Tarabochia, a single person; and Joseph B. Tarabochia, Sr., a single person, Respondents.
• Decision Date: 17 March 1989
• Docket Number: No. 11302-3-II

Page 633

53 Wn.App. 633 769 P.2d 866 Gary MARINCOVICH, Douglas Westerlund, Lawrence Telen, Joseph
Lloyd Tarabochia, Daniel J. Stephan, Daniel L. Stephan,
Thomas Svensen, Richard Quashnick, Gary Backman, and Altoona
Snag Union, Inc., Appellants,
v.
Joseph B. TARABOCHIA, Jr., and Cinnon Tarabochia, husband
and wife; Ronald Tarabochia, a single person; Daniel
Tarabochia, a single person; and Joseph B. Tarabochia, Sr.,
a single person, Respondents. No. 11302-3-II. Court of Appeals of Washington,
Division 2. March 17, 1989.

[769 P.2d 867] Fred A. Johnson, George F. Hanigan, P.S., Cathlamet, for appellants.

James E. Warme, Calbom, Pond, Falkenstein, Warme & Engstrom, Longview, for respondents.

WORSWICK, Judge.

Members of the "Altoona Snag Union," an association of commercial fishermen, appeal a summary

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judgment holding unenforceable their claim to exclusive rights, commonly called "drift rights," to fish certain portions of the Columbia River with gill nets, and enjoining them from interfering with fishing in such areas by non-members. We affirm.

It has become customary over a long time for groups of fishermen to form associations the purpose of which is to improve fishing areas of the river by clearing snags and then to claim exclusive fishing rights in those areas. The group in question, the Altoona Snag Union, claims to have existed for more than 50 years. Its membership is exclusive; one can join only by buying an existing membership.

No state agency has officially recognized the claims of these groups. They enforce their claims through various kinds of self-help, none of which can be described as courteous. This litigation is the culmination of a simmering dispute that finally erupted when Altoona attempted to extend its claims to a deep area of the river that did not require snag removal.

It is axiomatic that food fish, prior to taking, are state property and that the state has the exclusive right to regulate fishing. Washington Kelpers Ass'n v. State, 81 Wash.2d 410, 502 P.2d 1170 (1972); Vail v. Seaborg, 120 Wash. 126, 207 P. 15 (1922). Conceding this, and that they can assert no claim against the state, the appellants nevertheless contend that, until the state asserts itself on the subject, they can acquire and enjoy "drift rights" against all others. There is no legal basis whatsoever for their position.

Appellants' case is built entirely on the assertion that they have acquired these rights by custom and usage. All of...