Marincovich v. Tarabochia, No. 56199-1

• Court: United States State Supreme Court of Washington
• Writing for the Court: DOLLIVER; CALLOW, C.J., DORE
• Citation: 114 Wn.2d 271,787 P.2d 562
• Decision Date: 08 March 1990
• Docket Number: No. 56199-1
• 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., Petitioners, 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.

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114 Wn.2d 271 787 P.2d 562 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., Petitioners,
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. 56199-1. Supreme Court of Washington,
En Banc. March 8, 1990.

[787 P.2d 563]

Page 272

Peter J. Eglick & Associates by Peter J. Eglick, Seattle, for petitioners.

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

DOLLIVER, Justice.

Plaintiffs and defendants are commercial gillnet fishermen who make their living on the lower Columbia River. Plaintiffs are members of the Altoona

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Snag Union, Inc., which pools together funds collected from its members in order to coordinate the yearly removal of snags and debris from areas of the river where gillnet fishing would otherwise be impossible.

Snags are most commonly cleared from drifts, which are expanses of water over which gillnet fishermen set their nets. Certain drifts on the lower Columbia River have long been recognized and maintained according to local custom and usage. The State of Washington Department of Fisheries issues snagging permits to individual fishermen for the purpose of authorizing snag removal.

Membership in the Altoona Snag Union is evidenced by ownership of a "drift right", by which the union gives an exclusive right to fish a particular drift where snags have been removed. Drift rights have traditionally been treated as valuable personal property and have been passed to family members through probate and divorce proceedings. It is undisputed fishermen have paid valuable consideration for their drift rights.

Membership in the union is exclusive. Agreement to help pay for snag clearing does not make one a member; instead, a person interested in joining must locate an already existing right and purchase it with the union's approval. Enforcement of drift rights occurs in a variety of ways, all of which include some degree of intimidation and, in some cases, threats to life and property. The most common form of enforcement is "corking". This entails placing one's fishing net so close to that of the offending fisherman that the offender is forced to remove his net from the water to avoid ripping or tearing.

[787 P.2d 564] In October 1985, plaintiffs filed a complaint for damages and injunctive relief against defendants arising from a dispute over an area of the river not clearly controlled under the drift right system. The trial court imposed a permanent injunction against the defendants and ordered them to stop interfering with plaintiffs' fishing operations. Defendants filed a counterclaim challenging the legality of plaintiffs' drift rights. In February 1987, defendants filed a motion for

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summary judgment on this issue. The trial court concluded that before a material issue of fact can arise, plaintiffs must possess a basic legal right to exclude others from fishing the cleared drifts. Finding no such right existed, the trial court granted defendants' summary judgment motion. The court granted a stay of judgment pending the outcome of plaintiffs' appeal.

The Court of Appeals affirmed the trial court's ruling. Marincovich v. Tarabochia, 53 Wash.App. 633, 769 P.2d 866 (1989). We also affirm.

When reviewing an order of summary judgment, this court engages in the same inquiry as the trial court. Highline Sch. Dist. 401 v. Port of Seattle, 87 Wash.2d 6, 15, 548 P.2d 1085 (1976). A summary judgment motion can be granted only when there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). The court must consider the facts in the light most favorable to the nonmoving party, and the motion should be granted only if, from all the evidence, reasonable persons could reach but one conclusion. Wilson, at 437, 656 P.2d 1030.

Plaintiffs argue local custom and usage constitute a sufficient legal basis for recognizing they have a proprietary interest in drift rights; as such, they assert the trial court erred by granting summary judgment in favor of defendants on this issue. Plaintiffs base their position on...