OFFICES AND OFFICERS - STATE - FISHERIES - AUTHORITY OF DIRECTOR TO CLOSE AN AREA TO COMMERCIAL FISHING IN ORDER TO ESTABLISH AN AREA FOR SPORTS FISHING

OFFICES AND OFFICERS - STATE - FISHERIES - AUTHORITY OF DIRECTOR TO CLOSE AN AREA TO COMMERCIAL FISHING IN ORDER TO ESTABLISH AN AREA FOR SPORTS FISHING.

The director of fisheries is not legally authorized to close an area to commercial fishing for the sole purpose of establishing an area for sports fishing.

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                                                                   June 24, 1960

Honorable Milo E. Moore
Director of Fisheries
4015 20th Avenue West
Seattle 99, Washington                                                                                          Cite as:  AGO 59-60 No. 127

Dear Sir:

            You have requested the assistance of this office in defining the regulatory powers of the director of fisheries.  We have paraphrased your question as follows:

            May the director of fisheries close an area to commercial fishing for the sole purpose of establishing an area for sports fishing?

            We assume for the purposes of this opinion that no question of conservation is involved and on this assumption we answer your question in the negative.

                                                                     ANALYSIS

            While the scope of the director's regulatory power, set forth in RCW 75.08.080, is broad regulations made pursuant to this authority must be directed to the accomplishment of the legislative purpose.

            A statement of the general principles involved in a proper delegation by the legislature of the power to regulate may be found in 11 Am. Jur., Constitutional Law § 240, as follows:

            ". . . A legislature, in enacting a law complete in itself and designed to accomplish the regulation of particular matters falling within its jurisdiction,  [[Orig. Op. Page 2]] may expressly authorize an administrative commission, within definite valid limits, to provide rules and regulations for the complete operation and enforcement of the law within its expressed general purpose. . . ."  (Emphasis supplied.)

            The legislative purpose in enacting the fisheries code may be found in RCW 43.25.020 which provides as follows:

            "It shall be the duty and purpose of the department of fisheries to preserve, protect, perpetuate and manage the food fish and shellfish in the waters of the state and the offshore waters thereof to the end that such food fish and shellfish shall not be taken, possessed, sold or disposed of at such times and in such manner as will impair the supply thereof."

            The constitutionality of this provision was upheld in Vail v. Seaborg, 120 Wash. 126, 207 Pac. 15 (1922).

            In exercising the regulatory authority vested in them, administrative officers must act within the limits of the powers granted and policy established by the legislature.  State v. Miles, 5 Wn. (2d) 322, 105 P. (2d) 51 (1940); State ex rel. West v. Seattle, 50 Wn. (2d) 94, 309 P. (2d) 751 (1957).

            It is therefore our conclusion that the director of fisheries is limited in his authority to regulations designed to accomplish the purposes set forth in RCW 43.25.020.  These purposes clearly relate to conservation of the fishery resources and any attempt to regulate contrary to or beyond this policy would be invalid.  Therefore, there being no question of conservation, the director of fisheries may not close an area to commercial fishing for the sole purpose of establishing an area for sports fishing.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

STEPHEN M. REILLY
Assistant Attorney General