FISH ‑- COMMERCIAL SALMON FISHING ‑- REGULATION AND CONTROL

FISH ‑- COMMERCIAL SALMON FISHING ‑- REGULATION AND CONTROL.

Proposed Initiative 192, if passed, would not affect the general regulatory powers of the director of fisheries except that it would fix the limits of the salmon preserves defined therein and would probably abolish the three salmon preserves existing in the Straits of Juan de Fuca, San Juan, and Drayton Harbor, previously established by the director.

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                                                                   April 21, 1954

Mr. Robert J. Schoettler
Director of Fisheries
Department of Fisheries
1308 Smith Tower
Seattle 4, Washington                                                                                           Cite as:  AGO 53-55 No. 244

Dear Sir:

            Your letter of March 16, 1954, requested our opinion on the following question:

            What is the "possible impact of Initiative No. 192 on existing fisheries laws contained in Title 75, RCW, and in particular, on the delegated powers enunciated in Sec. 75.08.080 [[RCW 75.08.080]]?"

            In our opinion, the enactment of Initiative 192 might possibly abolish certain salmon preserves now in existence, but would not affect your general authority to regulate commercial fishing.

                                                                     ANALYSIS

            Initiative No. 192 consists of eight sections which may be titled as follows:

1.  Initiative line locations

2.  Salmon preserve boundaries

 [[Orig. Op. Page 2]]
3. Unlawful fishing methods

4. Non-application to Indians

5. Penalties

6. Confiscation and Forfeiture

7. Constitutionality

8. Repealer

            To answer your request for an opinion, we feel it is necessary to consider the entire proposal and particularly Sections 1, 2, 3, and 8.  In our analysis, we will use certain terms and for purposes of clarity, the following brief descriptions are supplied.

            1. Initiative Line:  This line was first established by Initiative No. 77, adopted by the voters on November 6, 1934, and reported in the Session Laws of 1935, Chapter 1, Sec. 1-12.  The line is also set out in the Session Laws of 1949, Chapter 112, Sec. 28 (RCW 75.12.010).  Section 1 of the proposed Initiative 192 likewise describes the same line.  The geographic location of the line is defined in detail in each of the above enactments, but generally, it extends easterly from Port Angeles to Whidbey Island and northerly from Whidbey Island to the shore line near Bellingham.

            2. Purse Seiners:  A type of commercial fishing which uses power operated gear.  Purse Seiners operate outside and, during certain seasons, inside the initiative line.  The purse seine nets may be 1800 feet long with a 4 inch mesh net webbing, fashioned in such a manner that they may be used to encircle fish.  In addition, the bottoms may be closed, forming a closed bag or purse (See Fisheries Department General Order No. 256, Sec. 1 (q) and Sec. 39 (a)).

            3. Gill Netters:  A type of commercial fishing which uses either power or manually operated gear.  Gill Netters usually operate outside and inside the initiative line.  Gill nets may be 1800 feet in length with a 5-1/2 inch mesh net, neither anchored nor staked, flowing freely with the tide approximately in a straight line.  Fish over the mesh net size are caught by their gills and taken when the net is hauled into the boat (Fisheries Department Order No. 256, Sec. 1 (i) and Sec. 39 (b)).

            4. Reef Netters:  A type of commercial fishing which uses manually operated nets.  Reef Netters operate in waters outside the initiative line and the fish taken are principally those migrating from the Pacific Ocean through the  [[Orig. Op. Page 3]] Straits of Juan de Fuca and north to the Fraser River and other Canadian rivers.  The reef net is approximately 75 feet in length and is suspended between two small boats.  It is non-self fishing and manually operated (Fisheries Department Order No. 256, Sec. 1 (r) and Sec. 39 (c)).

            Upon considering the initiative as a whole and the repealer clause specifically, we find no repeal of the general powers delegated to the Director of Fisheries.  The powers which are curtailed are specific ones and will be discussed by reference to the initiative section.

            Section 1.  The first part of Section 1 of the initiative prohibits purse seine, gill net, troll lines, and all other commercial gear from being used inside the initiative line, except from October 5 to November 30 of each year, with a provision for weekend closures.  The present law likewise prohibits commercial fishing inside the initiative line, except the director may permit gill net and troll line fishing at any time.  The effect of this part of Section 1 in no way affects the existing fishing rights of Purse Seiners or any other type of commercial fishermen, except Gill Netters and Trollers.  It expressly takes away the director's authority to permit Gill Netters and Trollers to fish inside the initiative line other than from October 5 to November 30 of each year.

            The second part of Section 1 provides, during odd years, an additional season for Purse Seiners, Gill Netters and all commercial fishermen using any lawful gear to take fish inside the initiative line.  In odd years, they may fish from August 7 to September 7, subject to weekend closures, in an area defined as inside a line from Dungeness Spit to Partridge Point on Whidbey Island and line from Olele Point to Bush Point on Whidbey Island.  The language of the initiative is somewhat ambiguous both as to the wording of the weekend closure and as to the description of the fishing area.  The apparent purpose of this part of Section 1 is to change the opening date from August 1 to August 7 and the closing date from September 1 to September 7.  Whether there is any biological justification for moving the period 7 days is not within the scope of this opinion.

            Section 2:  The Director of Fisheries by regulation (Order No. 256, Section 38), established 18 salmon preserves in the Puget Sound waters.  On the other hand, Section 2 of the initiative provides for 17 preserves.  A comparison of the initiative with the regulation reveals a reenactment of 15 existing preserves, the establishment of two new ones, and the omission of three, namely, the Straits of Juan de Fuca, San Juan, and Drayton Harbor.

             [[Orig. Op. Page 4]]

            It seems clear that the initiative continues the existence of 15 of the preserves created by the director.  It also definitely creates two new ones.  However, the initiative leaves the status of the three omitted preserves in doubt.

            If the initiative is passed, it could be contended that the voters merely intended to establish 17 preserves and that its enactment has no effect on the three omitted preserves.  On the other hand, if the question is litigated, a court might interpret the omission as indicating an intent to abolish the three preserves.  In either event, the meaning will depend to a large degree upon a determination of the voters' intent.  We, of course, cannot categorically declare which view the courts might adopt.

            The 26th Amendment of the Washington State Constitution provides that an initiative for two years after its passage can only be repealed by another initiative or a two-thirds vote of the majority of the legislature.  If it is determined that the three named preserves are abolished by the initiative, it could be argued that the director cannot reestablish those particular preserves since his action might possibly be in effect a partial repeal of the initiative.

            Section 3:  Section 3 of the initiative reenacts the existing law as to the unlawful methods of fishing, which is the Session Laws of 1951, Chapter 271, Section 3 (RCW 75.12.060), with one notable exception, that reef netting which is presently lawful is declared to be unlawful.  It is obvious that this initiative will make unlawful the industry of reef netting.

                        CONCLUSIONS

            If Initiative No. 192 is adopted, it will have the following effect:

            1. That the general powers of regulation delegated to the Director of Fisheries are not affected by the initiative, except as stated in this opinion.

            2. That three salmon preserves will possibly be abolished, namely, the Straits of Juan de Fuca, San Juan, and Drayton Harbor.

            3. That the preserves, if abolished, can only be reestablished by another initiative or session law of the legislature and the latter is subject to the two year  [[Orig. Op. Page 5]] constitutional limitation.

Very truly yours,

DON EASTVOLD
Attorney General

GLENN E. THOMSON
Assistant Attorney General