State v. Svenson

• Decision Date: 03 October 1985
• Docket Number: No. 51149-7,51149-7
• Citation: 104 Wn.2d 533,707 P.2d 120
• Parties: The STATE of Washington, Petitioner, v. Thomas E. SVENSON, and Steven Nelson, Respondents.
• Court: Washington Supreme Court

Page 533

104 Wn.2d 533

707 P.2d 120

The STATE of Washington, Petitioner, v. Thomas E. SVENSON, and Steven Nelson, Respondents.

No. 51149-7.

Supreme Court of Washington En Banc.

Oct. 3, 1985.

Jeff M. Campiche, Pros. Atty., Douglas E. Goelz, Deputy Pros. Atty., South Bend, for petitioner.

August F. Hahn, Long Beach, for respondent Svenson.

Jack B. Micheau, Copland & Micheau, Aberdeen, for respondent Nelson.

Kenneth O. Eikenberry, Atty. Gen., Mr. Thomas F. Carr, Senior Asst. Atty. Gen., Olympia, for amicus curiae Washington State Dept. of Fisheries.

CALLOW, Justice.

The State appeals the Superior Court ruling finding Thomas Svenson and Steve Nelson not guilty of violating WAC 220-32-031, unlawful operation of a salmon gillnet in a closed area, Columbia River Management Area 1A. We affirm.

On August 27, 1980, Steve Nelson was cited for violation of WAC 220-32-031, unlawful gillnetting, by Washington fisheries officers. A bench trial was held in North District Court for Pacific County. The District Court held that if the fishing was not legal on the Oregon side of the Columbia River, the territory in which the defendant was cited, a verdict of guilty would be entered. However, if such activity was legal in Oregon, a finding of not guilty would be entered. The court advised defense counsel that proof the acts were legal in Oregon would be an affirmative defense. Nelson offered no proof and a guilty verdict was entered. Nelson appealed to the Superior Court.

Thomas Svenson, an Oregon resident, was also cited by Washington Department of Fisheries officers for unlawful gillnetting on August 25, 1981 at about 10 p.m. In a bench trial in the South District Court of Pacific County, he was found guilty and he too appealed the decision to the Superior Court.

Oral argument was heard in Superior Court in the Nelson case before it was set in Svenson's case. Since Nelson presented the same issue raised by Svenson, Svenson's counsel stipulated that the issues and arguments were the same. The court ruled in favor of Nelson. The State and Svenson stipulated that the Superior Court decision would be controlling for purposes of appeal.

The Superior Court Judge noted in his Memorandum Opinion of February 14, 1983, that the evidence at trial failed to establish that Nelson was illegally gillnetting on the Washington side of the Columbia River. He then stated: "The crux of this case is whether this State has jurisdiction over fishing activities on the Oregon side of the boundary 'line' defined by R.C.W. 43.58 where there exists no proof that Oregon and Washington have enacted laws or regulations 'only with the mutual consent and approbation of both states.' " He then held "the State ... has the burden to provide what law exists." The Superior Court Judge dismissed the case holding that the State had failed to meet its burden of proof.

The cases were consolidated in the Court of Appeals for appellate review and transferred to this court.

I.

The issue presented by the consolidated appeal is whether the term "concurrent jurisdiction" requires that both Oregon and Washington enact the same fishing regulation to permit a Washington Fisheries officer to enforce a particular Washington regulation in Oregon waters. A related issue is whether the presence of a similar Oregon regulation is an affirmative defense or a question of jurisdiction and thus the State's burden. To answer the first question we must examine the history of the Washington and Oregon Territories and the origins of the grant of concurrent jurisdiction over the Columbia River.

The Territory of Washington was created by the Organic Act, 10 Stat. ch. 90, p. 172 (1853) at the same time Congress enacted Oregon's Enabling Act. Washington Territory was carved out of the Oregon Territory and included "[A]ll that portion of Oregon Territory lying and being south of the forty-ninth degree of north latitude, and north of the middle of the main channel of the Columbia River ... [§ 1, p. 172]. And be it further enacted, That the Territory of Oregon and the Territory of Washington shall have concurrent jurisdiction over all offenses committed on the Columbia River, where said river forms a common boundary between said Territories." [§ 21, p. 179] This provision, codified in 1873, 18 Stat. § 1950, p. 342, was repealed by 47 Stat. ch. 202, p. 1429 in 1933.

Oregon became a state in 1859 and its admission act gave Oregon concurrent jurisdiction over the waters forming the boundaries of the state. 11 Stat. 383 § 2 (1859). One of the boundaries is the middle channel of the Columbia River "including jurisdiction in civil and criminal cases upon the Columbia River and Snake River, concurrently with States and Territories of which those rivers form a boundary in common with this State." 11 Stat. § 1, p. 383 (1859).

Meanwhile, Washington's Enabling Act, 25 Stat. ch. 180, p. 676 (1889) made no mention of the jurisdiction over the Columbia. Sections 22 and 23 of the Act, however, permit an inference that concurrent jurisdiction over the Columbia continued. Finally in 1915 the States of Washington and Oregon entered into the Columbia River Compact, RCW 75.40.010, approved by Congress in 1918, which provides:

There exists between the states of Washington and Oregon a definite compact and agreement as follows:

All laws and regulations now existing or which may be necessary for regulating, protecting or preserving fish in the waters of the Columbia river, or its tributaries, over which the states of Washington and Oregon have concurrent jurisdiction, or which would be affected by said concurrent jurisdiction, shall be made, changed, altered and amended in whole or in part, only with the mutual consent and approbation of both states.

In 1983 the Legislature defined concurrent waters of the Columbia to mean "those waters ... that coincide with the Washington-Oregon state boundary." RCW 75.08.011(9).

Between 1889 and 1918 the issue of concurrent jurisdiction over the Columbia was discussed in three federal court opinions. Most important of the three was Nielsen v. Oregon, 212 U.S. 315, 29 S.Ct. 383, 53 L.Ed. 528 (1909) in which the Court observed that when two states have concurrent jurisdiction, the one first acquiring jurisdiction over a crime may prosecute and punish for an act punishable by the laws of both states. The Court noted however that the rule is inapplicable when the act is prohibited in only one of the States, and went on to hold that a State cannot prosecute for a violation of its laws when the act not only occurs within the territory of another State but is also permitted by that State.

An earlier case had held that Oregon could not prosecute an Oregon resident for violation of an Oregon law in Washington waters. In re Mattson, 69 Fed. 535 (C.C.D.Or.1895). "The word 'concurrent,' in its legal and generally accepted definition, means acting in conjunction ... and can [here] only mean the power to enact such criminal statutes as are agreed to or acquiesced in by ... Washington, or as are already in force within its jurisdiction." Mattson, at 542. The right of citizens of a state to fish is not subject to control or regulation by the other unless there is mutual agreement to that end. Accord Ex Parte Desjeiro, 152 Fed. 1004 (C.C.D.Or.1907). Hence, at the time of adoption of the Columbia River Compact in 1918 existing law appeared to require that for enforcement by one state of its own regulation against citizens of another in that state's territory, the second state must have a similar regulation or acquiesce in the first state's regulations.

Washington and Oregon have since entered into a compact to define the precise boundary line between the two states. RCW 43.58.090 (1965) (repealing RCW 43.58.010-.040, an act establishing a commission to investigate and make a treaty with Oregon defining the precise boundary between the states.) The Boundary Compact took effect after passage by both Washington, (Const. amend. 33 (1958) ) and Oregon (Or.Rev.Stat. § 186.520 (1957) ) legislatures, and approval by the United States Congress.

II.

A compact is a binding legal instrument which provides for formal cooperation between states. F. Zimmerman & M. Wendell, The Law and Use of Interstate Compacts, ch. 4, p. 40 (Council of State Governments 1976). Authority to enter into such compacts is found in article 1, section 10 of the United States Constitution. Compacts have been used to settle matters involving boundary disputes, energy conservation, civil defense, workmen's compensation, mass transit, fisheries and other issues. It was only in the 1920's, however, that compacts came to be used for more than settlement of interstate boundary disputes.

Compacts are both statutory and contractual at the same time. Consequently, statutory interpretation and contract law are applicable. Zimmerman, at 2. There is a relatively small body of case law construing compacts, and that which does exist must be used with caution because the term "compact" has been loosely used as a synonym for nearly any solemn agreement. Zimmerman, at 3. Construction of the Columbia River Compact has been infrequent. Nevertheless, the writers on compacts have observed that "[t]he fisheries compact between ... Oregon and Washington in 1915 groped toward a degree of uniformity in boundary water fishery regulations by requiring concurrent legislative action in the member states." F. Zimmerman and M. Wendell, The Interstate Compact Since 1925, at 4-5 (1951).

It has been suggested that the Columbia River Fisheries Compact does not recognize concurrent jurisdiction with respect to gillnet fishermen as the same type of jurisdiction referred to in statutes and enabling legislation. Wollenberg, The Columbia River Fish Compact, 18 Or.L.Rev. 88 (1938-9). The article posits that only gillnetters occupy the thalweg, or central portion of the river, whereas other fishermen set their nets into the banks of the river and...