Letter Opinion 1972 No. 030

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                                                                    May 4, 1972

Honorable Duane L. Berentson
State Representative, 40th District
P.O. Box 426
Burlington, Washington 98233                                                                                            Cite as:  AGLO 1972 No. 30 (not official) 

Dear Sir:
 
            This is written in response to your recent letter requesting our opinion on certain questions pertaining to the legality of portions of proposed regulations being promulgated by the state director of fisheries governing commercial salmon fishing on Puget Sound waters.
 
                                                                     ANALYSIS
 
            Question (1):
 
            Your first question inquires as to the authority of the director of fisheries to close a given area to commercial fishing without also closing it to sports fishing.  This question was previously considered at some length in AGO 1970 No. 15, copy enclosed, which was written to you on June 25, 1970.  In this opinion we concluded that:
 
            "The director of fisheries may lawfully close a given area to commercial fishing without also closing it to sports fishing where his action is taken for the purposes of conservation and for the protection and proper management of the state's fisheries."
 
            We have reviewed the reasoning of this opinion and find no reason to depart therefrom.
 
            Question (2):
 
            Your second question has reference to the proposal of the director of fisheries to determine by a random selection process the names of persons who will be permitted to participate during the summer of 1972 in a new "limited entry" fishery which is proposed for Carr Inlet under the following proviso to RCW 75.12.010:
 
             [[Orig. Op. Page 2]]
            "And provided, That whenever the director determines that a stock or run of salmon cannot be feasibly and properly harvested in the usual manner, and that such stock or run of salmon may be in danger of being wasted and surplus to natural or artificial spawning requirements, the director may maneuver units of lawful gill net and purse seine gear in any number or equivalents at his discretion, by time and area, to fully utilize such harvestable portions of these salmon runs for the economic well being of the citizens of this state, except that gill net and purse seine gear other than emergency and test gear authorized by the fisheries department shall not be used in Lake Washington."
 
            This proviso was added as an amendment to RCW 75.12.010 by § 13, chapter 283, Laws of 1971, 1st Ex. Sess., in order to provide for the harvest of surplus salmon at terminal points.  Prior to the amendment, commercial fishing was totally prohibited in terminal areas such as Carr Inlet and surpluses could be harvested only by the department of fisheries itself.  The amendment does not open these terminal points to the entire commercial gill net or purse seine fleets but it allows the director to open areas in which surpluses exist to selected units of gill net and purse seine gear.
 
            Your question is whether the use of the random selection process which the director has proposed to identify these units would constitute a violation of the antilottery provisions of Article II, § 24 of our state Constitution and RCW 9.59.010.  We believe that our response to this question at the present time must simply be as follows:
 
            The director of fisheries has apparently found that the fairest method of determining those units of gear which will be allowed to harvest surplus salmon in Carr Inlet is by "random selection."  The mere fact that a random selection method (i.e., chance) is used to determine the identity of persons to whom a particular legal or other status is to be granted does not, in and of itself, cause the procedure to violate the lottery laws.  See, e.g., State ex rel. Evans v. Brotherhood Etc., 41 Wn.2d 133, 247 P.2d 787 (1952).
 
            Presumably, before making this particular policy decision the director considered what other alternatives might be available to him ‑ such as issuance of Carr Inlet fishing permits on a "first come first serve basis" somewhat  [[Orig. Op. Page 3]] like World Series or Rose Bowl tickets, or, perhaps, arbitrarily allocating them only to fishermen residing within certain areas, or to fishermen having license serial numbers within a given range, or the like.  However, exercising the discretionary judgment which he deemed the legislature to have granted to him, he chose the use of a random selection drawing as the fairest approach.  At this point in time, the director's policy decision has been made, and our basic responsibility as legal counsel for the director of fisheries is to stand ready to defend his decision in court should it be challenged.
 
            Question (3):
 
            Your final question involves the effectiveness of emergency closures adopted by the department of fisheries from time to time.
 
            Obviously, any such emergency closures and changes cannot be made arbitrarily but only on the basis of such factors as are described in detail in AGO 1970 No. 15, supra.  Insofar as the procedures for the adoption of such regulations on "an emergency basis" are concerned, we would refer you to RCW 34.04.030, a part of the state administrative procedure act, which provides as follows:
 
            "If the agency finds that immediate adoption or amendment of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observance of the requirements of notice and opportunity to present views on the proposed action would be contrary to the public interest, the agency may dispense with such requirements and adopt the rule or amendment as an emergency rule or amendment.  The agency's finding and a brief statement of the reasons for its finding shall be incorporated in the emergency rule or amendment as filed with the office of the code reviser under RCW 34.04.040.  An emergency rule or amendment shall not remain in effect for longer than ninety days.  This section does not relieve any agency from compliance with any law requiring that its rules be approved by designated persons or bodies before they become effective."
 
             [[Orig. Op. Page 4]]
            It is hoped that the foregoing will be of some assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
Philip H. Austin
Deputy Attorney General