Washington Kelpers Ass'n v. State
| Citation | 502 P.2d 1170,81 Wn.2d 410 |
| Decision Date | 14 November 1972 |
| Docket Number | No. 41664,41664 |
| Parties | WASHINGTON KELPERS ASSOCIATION, Respondent, v. STATE of Washington, and Thor C. Tollefson, Director of Fisheries, Appellants. |
| Court | United States State Supreme Court of Washington |
Slade Gorton, Atty. Gen., Larry Coniff, Asst. Atty. Gen., Olympia, for appellants.
Neil Hoff, Tacoma, for respondent.
Defendants State of Washington and the Director of Fisheries appeal from a judgment declaring RCW 75.12.650 unconstitutional and restraining the Department of Fisheries from enforcing the provisions of the statute.
RCW 75.12.650 provides:
'Angling' or 'personal use' gear, in accordance with the provisions of RCW 75.04.070, RCW 75.04.080, RCW 75.04.100 and under the authority set forth in RCW 75.08.080, is prohibited for commercial salmon fishing.
The effect of the legislation is to prohibit the use of sports gear for commercial salmon fishing. 1
The record indicates that in 1969 there were nearly 2800 commercial salmon fishing licenses issued by the Department of Fisheries. Approximately one half of these licenses were commercial trolling licenses issued to fishermen using 'angling' or sports gear rather than one of the various types of fixed trolling gear. Plaintiff is an association of these licensees who fish commercially with sports gear.
The trial court held that (1) RCW 75.12.650 is not a valid exercise of the police power in that it has no real or substantial relation to the objects stated to be accomplished by the Department of Fisheries; and (2) the statute discriminates within a class and violates both the state and federal constitutions.
In deciding the constitutional questions thus raised, it is necessary to view RCW 75.12.650 in the context of the comprehensive conservation and management programs for our salmon resource carried on by the state through the Department of Fisheries. Salmon in the waters of the state of Washington are a managed and protected resource from the time young salmon come out of their native spawning beds and move downstream to sea until the time they once again return from the ocean to these same beds to spawn their young and die. The Department of Fisheries' management program is quite complex. The department protects and improves habitat by regulating the taking of gravel and diversion of water from streams, initiating stream improvement cleanup work to insure that streams are suitable for salmon, constructing fish ladders and other devices which open up miles of Washington's streams which would otherwise be inaccessible to salmon, and maintaining hatcheries for the artificial propagation of salmon. As salmon go to sea, the department observes them and the conditions that affect them and predicts the survival expected in the oncoming harvest.
As there is a limited supply of salmon and high competition for them, the department must have a complex set of regulations so that salmon will be properly protected and managed as the return through the various intensive fisheries and so that a proper escapement will be obtained. Regulations are based on the expected size of salmon runs and the department's knowledge of the effectiveness of various types of fishing gear and the corresponding effect on the returning fish.
The ocean fishery, which includes the sport fishery and the commercial troll fishery, is the most difficult to regulate because the department cannot tell whether a particular fish caught is from a limited stock or an abundant stock. Heavy fishing may overfish limited stocks of fish while exploiting more abundant stocks. It is necessary to limit the ocean catch so that overutilization can be corrected by management of other fishing areas as the fish move to their home streams.
As the various runs of salmon move inland from the ocean, they begin to separate. The department, when these conditions are known, can apply regulations allowing for higher catches on abundant stocks and more stringent regulations to protect those stocks of fish which are weak. If an ocean catch is not tightly regulated and managed, it is impossible to properly protect weak stocks of fish.
The department has three management tools that are used in the regulation of fisheries. These are (1) regulation of the time of fishing, (2) the area of fishing, and (3) the type of gear that may be used for fishing. 2 Management of the total fishing effort has necessitated the enactment of different regulations for sport fishing and for commercial fishing. Basically, the sports fisheries are managed to allow large numbers of fishermen to take a limited number of fish. Lawful gear for angling is defined in RCW 75.04.100, Supra footnote 1. Under the provisions of WAC 220.56.053 and WAC 220.56.066, most rivers, streams, and ocean areas are open to angling with varying possession and bag limits for different areas. For the coastal fishery, the limit is three salmon of not less than 20 inches in length. WAC 220.56.013. No license is presently required for angling, but sport catches must be recorded upon salmon punch cards, which are returned to the Department of Fisheries. Fish taken by angling are for personal use only and may not be sold commercially.
Commercial fisheries, on the other hand, are managed to allow for proper escapement and maximum commercial take. The legislature has established license requirements for all segments of the commercial fishery. Areas open to commercial fishing are set by statute (See RCW 75.18) and permanent regulations (See WAC 220.47.010 through WAC 220.47.070). The legislature has also defined lawful gear for the various classes of licenses.
RCW 75.12.650 was enacted by the legislature as a part of the management and regulatory scheme of the Department of Fisheries as outlined above. The state asserts that the statute, by prohibiting the use of sports gear for commercial fishing, improves the Department of Fisheries' ability to manage both the sport and commercial ocean fisheries and furthers the overall conservation goals of the department.
In determining the constitutionality of RCW 75.12.650, we must remember that the state, in its sovereign capacity, owns the fish in the waters of the state. Fishermen have no private property rights in taking salmon. in regulating the fisheries, the state is merely enacting legislation concerning its own property and prescribing the methods which may be used in acquiring it by private persons.
In Vail v. Seaborg, 120 Wash. 126, 207 P. 15 (1922), the court was faced with a rule and order of the state fisheries board prohibiting the taking of salmon from Puget Sound during a specified period by any means except with hook and line. Complainants, gill netters, claimed that they had an investment in their boats and appliances; that fishing was their only means of livelihood; and that the board's order would deprive them of their means of livelihood. A demurrer to the complaint was sustained on the following basis, on page 131, 207 P. on page 17:
The food fish in the waters of the state belong to the people of the whole state, and the state through its Legislature has the same right of regulation and control of this property that it has of any other state property. The fact that appellant and others are engaged in the business of taking fish does not give them any property in the fish prior to taking. The right exists in the state in the first place to say whether any fish whatever shall be taken. By the act in question the right to fish is provided for, but only under such regulations as shall be found by a properly constituted board to preserve and perpetuate the supply.
Later, in McMillan v. Sims, 132 Wash. 265, 231 P. 943 (1925), the court sustained a state fisheries board order establishing certain waters as a fish preserve, prohibiting operation of fish traps located therein, and prohibiting the taking of salmon from those waters except by hook and line. This court's opinion reviewed the rule of state authority in the regulation of its fishery resource, stating on page 268, 231 P. on page 944:
Let us at the outset be reminded that in the regulation of and restrictions upon the taking of the fish from the waters of the state, the state is but dealing with its own property over which its control is as absolute as any other owner has over his property. In State v. Tice, 69 Wash. 403, 125 P. 168, 49 L.R.A. (N.S.), 469, we said:
'The decisions of the courts in this country, so far as they have come to our notice, are all in unison in holding that there is no private right in the citizen to take fish or game, except as such right is either expressly or inferentially given by the state.'
The Vail and McMillan cases were cited and their principles recently reaffirmed in State v. Moses, 79 Wash.2d 104, 113, 483 P.2d 832 (1971), where we referred to these cases for the proposition that
Fish, while in a state of freedom, are the property of the sovereign power in whose waters they may be. In the United States, it is the state and not the United States which is the sovereign power in whose waters the fish are, and the state owns the fish in its sovereign capacity as the representative of and for the benefit of all people in common. 36A C.J.S. Fish § 2 (1961). This state has affirmed the rule of state sovereign ownership over wild animals, wild birds, and fish freely swimming in this state's waters. State ex rel. Bacich v. Huse, 187 Wash. 75, 59 P.2d 1101 (1936); Judd v. Bernard, 49 Wash.2d 619, 304 P.2d 1046 (1956); Wiegardt v. State, 27 Wash.2d 1, 175 P.2d 969 (1947); McMillan v. Sims, 132 Wash. 265, 231 P. 943 (1925); Vail v. Seaborg, 120 Wash. 126, 207 P. 15 (1922); State v. Tice, 69 Wash. 403, 125 P. 168 (1912).
Bearing in mind this broad discretion existing in the legislature as it protects and regulates the state's salmon resource, we turn to the specific constitutional defects in RCW 75.12.650 found by the trial...
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