Northwest Gillnetters Ass'n v. Sandison

• Decision Date: 21 May 1981
• Docket Number: No. 47406-1,47406-1
• Citation: 95 Wn.2d 638,628 P.2d 800
• Parties: NORTHWEST GILLNETTERS ASSOCIATION, an Unincorporated Association; Columbia River Fishermen's Protective Union, Inc., an Oregon Non-Profit Corporation; and Leslie Clark, an individual, Appellants, v. Gordon SANDISON, director Washington State Department of Fisheries; State of Washington: Department of Fisheries; and the State of Oregon, Respondents.
• Court: Washington Supreme Court

Page 638

95 Wn.2d 638

628 P.2d 800

NORTHWEST GILLNETTERS ASSOCIATION, an Unincorporated Association; Columbia River Fishermen's Protective Union, Inc., an Oregon Non-Profit Corporation; and Leslie Clark an individual, Appellants, v. Gordon SANDISON, director Washington State Department of Fisheries; State of Washington: Department of Fisheries; and the State of Oregon, Respondents.

No. 47406-1.

Supreme Court of Washington, En Banc.

May 21, 1981.

Charles E. Yates, Richard Slagle, Seattle, for appellants.

Kenneth O. Eikenberry, Atty. Gen., James Johnson, Asst. Atty. Gen., Olympia, Dave Frohnmayer, Atty. Gen., Richard D. Wasserman, Deputy Atty. Gen., John R. McCulloch, Jr., Sol. Gen., William F. Gary, Deputy Sol. Gen., Salem, Or., for respondents.

UTTER, Justice.

Northwest Gillnetters Association and other fishing groups sought a declaratory judgment and an injunction against Gordon Sandison, the Washington State Department of Fisheries, and the states of Washington and Oregon. They seek to have declared as void WAC 220-32-03000U and all other gillnet regulations not adopted for conservation. The Thurston County Superior Court denied their request, and we affirm.

Dismissing the State of Oregon for lack of personal jurisdiction, the Superior Court granted a summary judgment to the State of Washington and its Department of Fisheries. The court upheld the validity of WAC 220-32-03000U and all Washington regulations implementing the Columbia River Compact. WAC 220-32-03000U permitted, in 1980, a one day commercial season for the spring chinook salmon of the Columbia River. The one day season was declared lawful, though it is undisputed that its purpose was to allocate fish among the recreational and the commercial fishery, its adoption was not strictly necessary to preserve the resource, and its effect was to allocate the fish in each state's waters to its own citizens. ¹

Commercial fishing seasons on the Columbia River are annually set by mutual agreement between representatives from Washington and Oregon, pursuant to the Columbia River Compact. Pub.L. No. 123, 40 Stat. 515 (1918). Those representatives met on January 17, 1980 and, after hearing testimony and examining recommendations from their respective fishery departments, agreed to the one day season. To effectuate that agreement, WAC 220-32-03000U was passed.

The one day limit was the result of a lengthy process of negotiation. Five motions were considered before an agreement occurred. The states considered the expected size of the Willamette River run, escapement and conservation needs, and the interests each state has in its sports and commercial fishery. At the hearing, the Oregon Department of Fish and Wildlife staff recommended that there be no winter commercial season in 1980. A staff report indicated that even without a winter commercial season, the smallness of that year's expected run would necessitate restrictions on the recreational fishery. The Washington Department of Fisheries, on the other hand, initially recommended a two day commercial fishery. That recommendation was based on its agreement with the Oregon staff reports, the relative stock composition levels that occur in the winter season, and the need to strike a balance between commercial and recreational interests. ²

Authority to Manage the Resource

The Washington law governing respondents' authority has a checkered judicial history. A summary of that history, insofar as it relates to the department's authority to allocate salmon among fishermen using different types of gear, is found in Puget Sound Gillnetters Ass'n v. Moos, 92 Wash.2d 939, 946-47, 603 P.2d 819 (1979) (Gillnetters II). There we stated:

This court has consistently held that the State Departments of Fisheries and Game can regulate for "conservation only." Gillnetters, supra (Puget Sound Gillnetters Ass'n v. Moos, 88 Wash.2d 677) at 681 (565 P.2d 1151) (Department of Fisheries); Hartman v. State Game Comm'n, 85 Wash.2d 176, 532 P.2d 614 (1975) (Department of Game). However, the power to manage a fishery for conservation purposes only is not a restrictive one; it enables the agency to collect data regarding the size, placement, and harvest of runs, to regulate the type of gear and times at which it can be employed in fishing specific varieties and runs of fish, to discriminate among classes of users by gear and purpose, to artificially enhance the fishery through hatchery programs, and even to force the owners of existing dams to improve fish passage facilities. See Department of Fisheries v. Chelan County PUD 1, 91 Wash.2d 378, 588 P.2d 1146 (1979); Washington Kelpers Ass'n v. State, 81 Wash.2d 410, 502 P.2d 1170 (1972); Frach v. Schoettler, 46 Wash.2d 281, 280 P.2d 1038 (1955); McMillan v. Sims, 132 Wash. 265, 231 P. 943 (1925); Vail v. Seaborg, 120 Wash. 126, 207 P. 15 (1922). It has in the past included the power to exclude from state regulation Indians fishing "under federal regulation." State ex rel. Campbell v. Case, supra (182 Wash. 334) at 340-41 (47 P.2d 24).

Salmon have been allocated among fishermen using different types of gear ever since it became necessary to manage the resource. We do not agree for the reasons stated below with the assertion of the Puget Sound Gillnetters Association in its brief in opposition to the motion of the State and the Director of Fisheries, that the Department of Fisheries has no statutory authority to participate in allocation. The gillnetters, and their fellow reefnetters, purse seiners and salmon trollers, have all benefited from department regulations limiting the fishing of other user groups to insure each class of fishermen a "share" of the State's salmon resources.... Limiting an agency to conservation regulation has consistently had only one real effect it prevents the agency from allocating fish among "competing claimants for purposes other than conservation," Gillnetters, supra (88 Wash.2d) at 683, (565 P.2d 1151) i. e., "to any user of the same class." Gillnetters, supra at 692 (565 P.2d 1151); see also Kelpers, supra (81 Wash.2d) at 421-22 (502 P.2d 1170).

(Italics ours.)

Gillnetters II thus clarified that the Department of Fisheries can allocate among noncompeting users for purposes other than conservation. That conclusion is consistent with our earlier authority, for nonconservation measures have been invalidated only when violative of equal protection. Gillnetters II at 947, 603 P.2d 819; Purse Seine Vessel Owners Ass'n v. Moos, 88 Wash.2d 799, 810, 567 P.2d 205 (1977). Recognizing this and given the United States Supreme Court's ruling that treaty and nontreaty fishermen are not competing users, we stated:

(A)llocation among treaty and nontreaty fishermen user classes is necessary to prevent depletion of the resource and to reestablish and "maintain the economic well-being and stability of the commercial fishing industry in the state of Washington." RCW 75.08.012. Regulations necessary to manage the fishery in a manner consistent with implementation of tribal treaty rights can be promulgated by the State of Washington.

Gillnetters II, 92 Wash.2d at 949, 603 P.2d 819.

That mandate to allocate, as well as its rationale, applies with equal force to nontreaty sports and commercial fishermen. The latter, like treaty and nontreaty fishermen, are not competing users within the same class. See Gillnetters II, at 947-48, 603 P.2d 819; Purse Seine, 88 Wash.2d at 810, 567 P.2d 205. Appellants' arguments are therefore untenable after Gillnetters II.

They are also not sustained by the language of the statutes. The overriding purpose of the statutes is to provide for wise use of the resource, which is the broadest possible definition of conservation. They specifically grant the department the authority to manage, allocate, and perform other necessary functions. RCW 75.08.012, for example, provides:

It shall be the duty and purpose of the department of fisheries to preserve, protect, perpetuate and manage the food fish and shellfish in the waters of the state and the offshore waters thereof to the end that such food fish and shellfish shall not be taken, possessed, sold or disposed of at such times and in such manner as will impair the supply thereof. For the purpose of conservation, and in a manner consistent therewith, the department shall seek to maintain the economic well-being and stability of the commercial fishing industry in the state of Washington.

While emphasizing the word "conservation," the direction of the last sentence of the statute, to act "(f)or the purpose of conservation, and in a manner consistent therewith" directs the department to engage in other related activities so long as they are consistent with conservation and do not impair the fish supply. These activities, as indicated in the first sentence of the statute, are to "preserve, protect, perpetuate and manage the food fish and shellfish in the waters of the state and the offshore waters ..."

Other statutes also recognize the department's duty to manage within the parameters of conservation. RCW 75.08.020 ³ requires the director to enforce laws and regulations relating to propagation, protection, preservation, and management of the fishery. RCW 75.08.080 ⁴ delineated the scope of the director's power with regard to the time, place, gear and size, sex, numbers and amounts of various classes of food fish and shellfish that may be taken, possessed, sold, or disposed of. RCW 75.08.085 ⁵ empowers the director to promote orderly recreational fisheries and allows him or her to take into consideration factors of navigation, law enforcement, recreational fishery enhancement, environmental concerns and public recreation.

RCW Title 77, while dealing with a different fishery and regulatory scheme, unambiguously identifies the relationship between regulation and conservation. RCW 77.12.010 provides:

(G)ame fish shall only be taken at such times or places, by such means, in such...