FISHERIES -- CATCH TAX REQUIRED ON FISH CAUGHT BEYOND THREE‑MILE LIMIT WHEN CO-MINGLED [[COMMINGLED]] -- DIRECTOR MAY REQUIRE AFFIDAVIT FROM FISHERMEN CERTIFYING WHERE FISH HAVE BEEN CAUGHT

FISHERIES --CATCH TAX REQUIRED ON FISH CAUGHT BEYOND THREE‑MILE LIMIT WHEN CO-MINGLED [[COMMINGLED]] -- DIRECTOR MAY REQUIRE AFFIDAVIT FROM FISHERMEN CERTIFYING WHERE FISH HAVE BEEN CAUGHT

A. Fish from high seas subject to landing tax if co-mingled [[commingled]]with fish taken in state waters.

B. Director may impose reasonable regulations to determine where taken.

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                                                                    May 6, 1952

Honorable Robert J. Schoettler
Director of Fisheries
State of Washington
1308 Smith Tower
Seattle 4, Washington                                                                                                              Cite as:  AGO 51-53 No. 298

Dear Mr. Schoettler:

            We have for answer your letter of April 11, 1952, requesting advice in reference to the showing which you should require from fishermen who claim exemption from the landing fees based upon the claim that the fish landed in the State of Washington were taken beyond the territorial limits of the State of Washington.  In discussing this matter, the term fish applies to both food fish and shell fish.

            We paraphrase the questions raised as follows:

            1. Would the requirement that each fisherman execute the form of fish ticket, now in use by your department coupled with section 14, chapter 112, Laws of 1949, sufficiently insure the collection of all "catch fees" provided for in section 35, chapter 271, Laws of 1951, RCW 75.32.070 and section 36, chapter 271, Laws of 1951, RCW 7.32.080?

             [[Orig. Op. Page 2]]

            2. Can fishermen who co-mingle [[commingle]]food fish or shell fish caught without the territorial limits of the State of Washington with fish or shell fish caught inside of the territorial waters of the State of Washington claim exemption from the catch tax for the co-mingled [[commingled]]portion caught outside of the territorial limits of the State of Washington?

            3. Can the Director of Fisheries require fishermen who claim exemption from tax on the ground that the fish or shell fish landed were caught without the territorial limits of the State of Washington to execute and deliver to the Director of Fisheries a specific affidavit setting out the facts upon which claim for exemption is based?

            4. Would it be sufficient for the Director to require the fisherman claiming such an exemption to execute an affidavit at specific intervals during the fishing season, covering the fish previously landed by such fisherman, or would it be sufficient for the Director to require affidavits only on demand?

            5. Would an affidavit by the original receiver of fish, as such receiver is defined in section 36, chapter 271, Laws of 1951, RCW 75.32.080, setting out that the fish caught were taken outside the territorial limits of the State of Washington, be sufficient?

            Our conclusions will be found later herein.  We will not set them forth here because of their necessary length.

                                                                     ANALYSIS

            Prior to March 20, 1951, the effective date of chapter 271, Laws of 1951, a catch tax was required by law on certain food fish and shell fish taken for commercial purposes within the territorial limits of the State of Washington, and such catch tax is still in effect.

            Section 45, chapter 271, Laws of 1951, provided for a landing fee on fresh or frozen food fish or shell fish taken outside of the territorial limits of Washington and landed within the State of Washington.  This section was held by the superior court of the State of Washington for Thurston County in the case ofMcCool et al v. Schoettler et al to be invalid.  The decision of the superior court applies only to fishermen who fish exclusively outside of the territorial limits of the State of Washington.

             [[Orig. Op. Page 3]]

            You have advised the fishing industry of your intention to require an affidavit to be executed by the master of each fishing boat for each landing of fish claimed exempt by reason of having been caught outside the territorial limits of the State of Washington.  You now advise us that such a requirement would impose too heavy a burden upon the industry and you desire our advice as to the showing that you should require which would reasonably be calculated to protect the interest of the State of Washington in the collection of all catch taxes and discharge your obligation to collect such taxes.

            You have submitted the form of fish ticket which you require executed by all fishermen landing fish in the State of Washington.  This fish ticket if properly executed shows, among other things, the area of catch, the species and weight and number of fish.  There is on the fish ticket no requirement that the fishermen state whether the catch covered by the ticket was caught exclusively outside the territorial limits of the State of Washington.  The term "area of catch" does not appear to have definite reference to an area within or without the territorial limits of the State of Washington.

            For the past several years, that is during the time a catch tax has been collected on fish caught within the territorial limits of the State of Washington, the showing required by the fishing ticket you now use or a similar fish ticket has been considered sufficient for the Department of Fisheries to determine whether the catch tax should be imposed.

            Section 14, chapter 112, Laws of 1949 provides:

            "Every person who intentionally gives false or misleading information to the Department as to the time, area, or waters in which any food fish or shellfish were taken or who shall intentionally prepare and submit a false or misleading report to the Department shall be guilty of a gross misdemeanor and shall be punished by a fine of not less than two hundred and fifty dollars ($250.00) and not more than one thousand dollars ($1,000.00) or by imprisonment in the county jail for not more than one year or by both such fine and imprisonment."

                        CONCLUSIONS

             [[Orig. Op. Page 4]]

            1. Section 14, quoted above, has to do with an intentionally false or misleading report made to the department.  To establish a violation of this statute, it would be necessary to show that the false report related to a report required by law or the regulations of the Director.  Since your fish ticket does not specifically require a report as to whether the fish covered by the fish ticket were taken within or without the territorial limits of the State of Washington, it is our opinion that the fish ticket submitted is insufficient to invoke the provisions of section 14.

            It is further our opinion that you should require fishermen who claim exemption from a catch tax on the grounds that the fish taken were caught exclusively outside of the territorial limits of the State of Washington, to enter on the fish ticket now in use a statement substantially as follows:  "All fish covered by this fish ticket were taken outside the territorial limits of the State of Washington."  It is our opinion that fisherman who falsely makes such a statement would be subject to the provisions of section 14.  Such a requirement considered with the penalty imposed by section 14 for a false report, in our opinion, would be sufficient to protect the interest of the State of Washington and justify you in accepting the statement as a prima facie showing of entitlement to exemption from the catch tax.

            Since the question to be determined is whether the fish were taken within or without the territorial limits of the State of Washington, we would recommend that you exempt from the foregoing requirements fish, such as tuna, which are only caught at a substantial distance beyond the territorial limits of the State of Washington.

            2. We are of the opinion that fishermen who co-mingle [[commingle]]fish caught within the territorial limits with fish caught without the territorial limits and land such fish in a co-mingled [[commingled]]mass are not entitled to exemption from the catch tax, and should be required to pay the catch tax on the co-mingled [[commingled]]fish.

            3. We are of the opinion that if in your judgment further showing is necessary you may require from a fisherman who claims exemption from the catch tax on the grounds that his catch was taken exclusively outside the territorial limits of the State of Washington, an affidavit to that effect and you may require such affidavit to be executed at specific intervals during the fishing season to cover prior landings of fish claimed by the fisherman to have been exempt from tax.

             [[Orig. Op. Page 5]]

            4. We are further of the opinion that in discharging your duties to determine whether a catch tax should be imposed, you may require further showing including special affidavits where, in your opinion, such showing is necessary to determine the facts.

            5. We are of the opinion that an affidavit from the original receiver of the fish would be of no value for the reason that is obvious such an original receiver would normally have no knowledge as to where the fish were taken and such affidavit would necessarily be based upon information received by the original receiver from others.  The fisherman who claims the benefit of the exemption from tax should be the one to make the showing.

Very truly yours,

SMITH TROY
Attorney General

JOHN J. O'BRIEN
Special Assistant
Attorney General