OFFICES AND OFFICERS ‑- STATE ‑- DIRECTOR OF FISHERIES ‑- REGULATIONS OF INTERNATIONAL PACIFIC SALMON FISHERIES COMMISSION WHERE STATE REGULATION IS INCONSISTENT

OFFICES AND OFFICERS ‑- STATE ‑- DIRECTOR OF FISHERIES ‑- REGULATIONS OF INTERNATIONAL PACIFIC SALMON FISHERIES COMMISSION WHERE STATE REGULATION IS INCONSISTENT.

If the International Pacific Salmon Fisheries Commission promulgates a regulation which is contrary to a state regulation which creates a fish preserve and thereby prohibits commercial fishing in the area, the state regulation would be superseded insofar as it applied to Sockeye and Pink Salmon.

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                                                                February 17, 1961

Honorable Fred J. Martin
Senator, 40th District
Legislative Building
Olympia, Washington

                                                                                                                Cite as:  AGO 61-62 No. 11

Dear Sir:

            By letter dated January 24, 1961, you requested an opinion upon a question which we have paraphrased as follows:

            Can the International Pacific Salmon Fisheries Commission by regulation supersede a regulation promulgated by the State Director of Fisheries which creates a fish preserve and thereby prohibits commercial fishing within three miles of the north shoreline of the Olympic Peninsula and extending into the Strait of Juan de Fuca?

            We answer your question in the affirmative as qualified in the analysis.

                                                                     ANALYSIS

            The fish preserve in question was last established under state authority by a regulation promulgated by the Director of Fisheries which reads as follows:

            "The Strait of Juan de Fuca Salmon Preserve shall include those waters lying inside the Initiative 77  [[Orig. Op. Page 2]] line and within three miles offshore between a point three miles west of the Sekiu River mouth and a point three miles east of the Dungeness River."  (Section 38 (p), General Order 256, as last amended by Order 421, June 6, 1957.)

            On May 26, 1930, the governments of the United States of America and Great Britain, acting on behalf of the Dominion of Canada, entered upon a treaty relating to the conservation of sockeye salmon (oncorhynchus nerka) which document is generally referred to as the Sockeye Salmon Fisheries Convention.  Article II of the treaty established the commission consisting of six members, three to represent each the United States and the Dominion of Canada.

            The treaty was amended by a convention termed the Pink Salmon Protocol through an exchange of ratifications on July 3, 1957.  This extended the authority of the commission to utilization of its measures for conservation over pink salmon (onchorhynchus gorbuscha).

            Article I of the treaty describes the waters over which the commission is empowered to exercise its authority.  Section 2 thereof obviously includes the same waters in which commercial fishing has been prohibited through promulgation of the aforementioned regulation by the State Director of Fisheries.

            Congress has implemented the provisions of the treaty by the Sockeye Treaty Act.  See 16 U.S.C.A., §§ 776-776f.  One provision (16 U.S.C.A., § 776d (b)) authorizes the federal agency designated by the President to enforce the act and the treaty to appoint appropriate officials of this state to do likewise.  The Federal Fish and Wildlife Service, Department of the Interior, was appointed to be the enforcing federal agency by Executive Order 9892 (12 F.R. 6345).  We understand that the federal agency has authorized the officers of the state Department of Fisheries to act on behalf of this state, and by RCW 75.40.060 the legislature has generally so designated those same state officers.

            16 U.S.C.A. 776a (a) reads as follows:

            "It shall be unlawful for any person to engage in fishing for sockeye salmon or pink salmon in convention waters in violation of the convention or of this chapter or of any regulation of the Commission."

             [[Orig. Op. Page 3]]

            This appears to be the provision most appropriate to the question posed.  No provision of the Sockeye Treaty Act specifically relates to any open or closed periods or areas.  The similar provision in the convention or treaty is Article IV which reads, in part:

            "The Commission is hereby empowered to limit or prohibit taking sockeye (and pink) salmon in respect of all or any of the waters described in Article I of this Convention, . . .

            It appears then, that the International Pacific Salmon Fisheries Commission is empowered to regulate within the very waters that have been set aside as a fish preserve by regulation of the Director of Fisheries.  The empowering legislation in such instances should be liberally construed to effect the intended purposes.  Bailey v. Holland, 126 F. (2d) 317 (1942).  (As to delegation of authority see: Dow v. Ickes, 123 F. (2d) 909 (1941); United States v. Reese, 27 Fed. Supp. 833 (1939); United States v. Griffin, 12 Fed. Supp. 135 (1935); Shouse v. Moore, 11 Fed. Supp. 784 (1935).)

            Furthermore, it has been said, although the language is dicta, that fisheries are a proper subject for treaties, United States v. Rockefeller, 260 Fed. 346 (1919);United States v. Samples, 258 Fed. 479 (1919).  These cases involved the validity of the treaties with Great Britain on behalf of the Dominion of Canada, and the United Mexican States, the attendant congressional acts, and subsequent administrative regulations relating to migratory birds.  (See 16 U.S.C.A., §§ 703-710, and the annotations thereto.)  The validity of these conservation measures was upheld in varying circumstances in the cases cited above, and inMissouri v. Holland, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641, 111 A.L.R. 984 (1920); United States v. Selkirk, 258 Fed. 775 (1919); and, United States v. Thompson, 258 Fed. 257 (1919).  In any regard it is sufficient to state that assuming the treaty and federal legislation applicable to the question posed to be valid, as we must, they are to be considered paramount to and to supersede state regulatory measures.  Missouri v. Holland, supra.  Our own court has recognized that the provisions of a treaty between the United States and another country are the supreme law of the land and paramount to a law of this State.  SeeState ex rel. Tanner v. Staeheli, 112 Wash. 344, 349, 192 Pac. 991 (1920).

            However, the International Pacific Salmon Fisheries Commission is empowered to regulate only as to two species of salmon.  The  [[Orig. Op. Page 4]] authority of the State Director of Fisheries purports to extend to all species of salmon as well as other fish and shellfish.  The regulation of the state official involved here makes no distinction as to varieties or species affected.

            Furthermore, we understand that the international commission does not, with minor exceptions, actually promulgate regulations, but has generally only recommended to the affected governmental agencies for promulgation certain regulatory measures.  In doing so, the Commission has recognized the state preserve area in the Strait of Juan de Fuca.

            Therefore, we conclude that should the International Pacific Salmon Fisheries Commission promulgate a regulation which is contrary to the state regulation, through which commercial fishing is prohibited in the preserve area, the state regulation would be superseded insofar as it applied to sockeye and pink salmon.

            We trust that we have been of assistance.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ERNEST M. FURNIA
Assistant Attorney General