POWER OF THE STATE TO REQUIRE PERSONAL AND BOAT REGISTRATION LICENSES OF THOSE LANDING FISH IN THE STATE OF WASHINGTON WHICH WERE TAKEN IN THE OFFSHORE WATERS

POWER OF THE STATE TO REQUIRE PERSONAL AND BOAT REGISTRATION LICENSES OF THOSE LANDING FISH IN THE STATE OF WASHINGTON WHICH WERE TAKEN IN THE OFFSHORE WATERS.

The State of Washington, in the absence of federal regulation, may require personal fishing licenses and boat registration licenses of those landing fish in the State of Washington which were taken from the offshore waters, since the State of Washington is actively engaged in regulating the offshore fishery and has a vital interest therein and since the offshore fishery is closely related to the state fishery.

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                                                                   June 29, 1950

The Honorable Alvin Anderson
Director of Fisheries
State of Washington
Smith Tower
Seattle, Washington                                                                                                 Cite as:  AGO 49-51 No. 291

Dear Mr. Anderson:

            In your recent letter you inquired as follows:

            "Sections 66 and 68 of the fisheries code provide as follows:

            "'A personal commercial fishing license shall be obtained by each and every person who takes or assists in taking any fish or shellfish from the waters or beaches of the state for commercial purposes, or brings or assists in bringing any fish or shellfish into the state for commercial purposes after having taken such food fish or shellfish in the offshore waters.  The fee for such license shall be five dollars ($5) per annum.  The  [[Orig. Op. Page 2]] personal license shall be carried on the person whenever such person is engaged in the taking, landing or selling of any fish or shellfish:  Provided however, that this section shall not apply to those persons engaged solely as employees of any person holding a valid oyster or clam farm license.

            "'A license shall be required for each and every commercial vessel which delivers or lands fish or shellfish within the state, for which license there shall be paid a fee of five dollars ($5) per annum:  Provided, that nothing in this section shall apply to vessels operated by any person having an oyster or clam farmer's license and used exclusively for that purpose.

            "'Each annual application for a commercial fishing vessel license shall contain the name and address of the owner of the vessel, the name and address of the operator of the vessel, the name and number of the vessel, a description of the vessel and fishing gear to be carried thereon, and such information as may be required by the Department.

            "'At the time of issuance of such license the Director shall furnish each applicant with a certificate of registration and two license plates with the registration number stamped thereon.  Such registration shall be known as the "State of Washington license and registration number" and shall not be transferable.  The registration certificate shall be carried aboard the vessel at all times and the license plates shall be affixed and carried in plain sight on each side of the vessel well forward.

             [[Orig. Op. Page 3]]

            "'Registrants shall report immediately any change of name, ownership or operator of the vessel.  Defaced, mutilated or lost license plates shall be replaced immediately and a fee of two dollars ($2) shall be charged for such new plates.'"

            "The constitutionality of these sections has been questioned by certain fishermen who take fish from the waters of the Pacific Ocean beyond the territorial limits of the State of Washington and 1 and the same within the state.  The fishing activities of some of these are confined exclusively to such waters although the fish they catch and land within the State of Washington cannot be distinguished from those commonly taken from within the territorial waters of the state.

            "As you are aware, the State of Washington, in addition to regulating fishing activities within its territorial limits is also engaged in regulating salmon fishing in the waters of the Pacific Ocean beyond its territorial limits through its participation in the Pacific Marine Fisheries Compact.  Pursuant to our obligations under this compact the State of Washington, like the states of Oregon and California, regulates this fishery by imposing closed seasons and regulating the possession of such fish.  It therefore becomes essential that the State of Washington maintain close supervision over the landings of fish, and also it is necessary that the state possess information regarding the number of boats and fishermen engaged in this fishery together with the amount of their catch in order that its management and control of the fishery be intelligent and in the public interest.  The fish taken from this fishery are from the same schools that migrate to and from our territorial  [[Orig. Op. Page 4]] waters and the state at considerable expense augments the natural reproduction with hatchery stock.  A considerable portion of the Department's expenditure for research, management and hatchery facilities is used for the benefit of this particular fishery.  However, since the fishery is located beyond the territorial limits of the state there are those who question the right of the state to impose a license fee for those engaging in the fishery and landing of products within the state.

            "Would you kindly give us the benefit of your opinion in this matter."

                                                                     ANALYSIS

            There's no question but what our federal constitution prohibits the imposition of an import tax by a state since the power to regulate interstate and foreign commerce is delegated by the states to the national government.  It is likewise not permissible for a state to impose a license fee upon an individual for the privilege of engaging in either interstate or foreign commerce. However, we are of the opinion that the situation presented by your letter presents an entirely different problem.  From the facts you set out there can be no question but what the State of Washington has a valid and vital interest in regulating the activities of those engaged in this particular fishery and is under a duty to inspect their fish landings.

            The regulation and management of its fishery resources by a state has always been held to be a matter over which the state has sole and exclusive jurisdiction.  The courts have often referred to the state as holding title to the fish in trust for the use and benefit of all its citizens and in proceeding upon this theory have ruled that the states have extremely broad powers in this regard.

            It would appear from your letter that these fish are not imports from a foreign country, nor is there anything to indicate that they have been introduced into interstate commerce upon being landed in the State of Washington.  They are, however, imports in the sense that they originate from the waters of the Pacific Ocean outside the territorial limits of the state and would therefore in  [[Orig. Op. Page 5]] our opinion be a matter for proper regulation by the federal government federal government chose to assume jurisdiction.  To date, however, the federal government has not done so and whatever regulation exists comes from the states.

            It has been held in repeated instances that states may pass valid laws in the exercise of their police power which indirectly or directly affect interstate or foreign commerce.  InParker v. Brown, 317 U.S. 341, 362, the court said:

            "When Congress has not exerted its power under the Commerce Clause, and state regulation of matters of local concern is so related to interstate commerce that it also operates as a regulation of that commerce, the reconciliation of the power thus granted with that reserved to the state is to be attained by the accommodation of the competing demands of the state and national interests involved.  SeeDi Santo v. Pennsylvania, 273 U.S. 34, 44 (with which compareCalifornia v. Thompson, supra); South Carolina Highway Dept. v. Barnwell Bros., supra; Milk Control Board v. Eisenberg Co., 306 U.S. 346;Illinois Gas Co. v. Public Service Co., 314 U.S. 498, 504-5.

            "Such regulations by the state are to be sustained, not because they are 'indirect' rather than 'direct,' seeDi Santo v. Pennsylvania, supra; cf.Wickard v. Filburn, supra, not because they control interstate activities in such a manner as only to affect the commerce rather than to command its operations.  But they are to be upheld because upon a consideration of all the relevant facts and circumstances it appears that the matter is one which may appropriately be regulated in the interest of the safety, health, and well-being of local communities, and which, because of its local character, and the practical difficulties involved, may never be adequately dealt with by Congress.  Because of its local character also there may be wide scope for local regulation without substantially impairing the national interest in  [[Orig. Op. Page 6]] the regulation of commerce by a single authority and without materially obstructing the free flow of commerce, which were the principle objects sought to be secured by the Commerce Clause.  SeeMinnesota Rate Cases, supra, 398-412; California v. Thompson, supra, 113."

            The power of the state to enact measures directly affecting interstate commerce which are necessary for the conservation of their fish and game resources is discussed at length inGeer v. Conn., 161 U.S. 519; Bayside Fish Flour Co., v. Zellerback, 124 Cal. App. 564, 566;Van Camp Sea Food Co. v. Dept. of Natural Resources, 30 F. (2d) 805.  The language found inTakahashi v. Fish and Game Commission is particularly applicable since in that case the following statute was under attack:

            "Every person who uses or operates or assists in using or operating any boat, net, trap, line, or other appliance to take fish, mollusks or crustaceans for profit, or who brings or causes fish, mollusks or crustaceans to be brought ashore at any point in the State for the purpose of selling the same in a fresh state, shall procure a commercial fishing license."

            The court said:

            "(18, 19) Considering the provisions of section 990 in regard to the bringing ashore of fish caught beyond coastal waters, it is well established that the State, in the exercise of its police power may regulate and control the taking, possession and sale, or transportation of fish and game.  This principle is applicable to sea products caught upon the high seas beyond the three‑mile limit of state jurisdiction and sought to be brought into or transported over portions of the state which have been subjected to statutory regulations affecting the taking, possession, and sale of fish and other marine products.  Johnson v. Gentry, 220 Cal. 231, 30 P. (2d) 400, 92 A.L.R. 1264; Svenson v.  [[Orig. Op. Page 7]] Engelke, 211 Cal. 500, 296 P. 281; Ex parte Maier, supra:  Silz v. Hesterberg, 211 U.S. 31, 40, 29 S.Ct. 10, 53 L.Ed. 75; Geer v. State of Connecticut, supra; Van Camp Sea Food Co. v. Dept. of Natural Resources, D.C. 30 F. (2d) Ill; In re Deininger, C.C., 108 F. 623.  This rule is not violative of the federal government's interstate commerce power.  Ex parte Maier, supra, 103 Cal. at page 484, 37 P. 402, 42 Am. St. Rep. 129;Geer v. State of Connecticut, supra, 161 U.S. at page 534, 16 S.Ct. 600, 40 L.Ed. 793;Silz v. Hesterberg, supra, 211 U.S. at page 43, 29 S.Ct. 10, 53 L.Ed. 75;Van Camp Sea Food Co. v. Dept. of Natural Resources, supra, 30 F. (2d) at page 113.  The reason for upholding such a regulation or prohibition was stated in Van Camp Sea Food Co., v. Department of Natural Resources, supra, where the court said:  'We entertain no doubt as to the validity of such restriction on or qualification of the use to be made of the fish, because it tends to their protection and conservation as much as does a limitation on the right to sell game or ship it to points without the state, * * * the state has the right to limit or qualify the use that may be made of fish of the same species brought into the state from the high seas, in order to make effective the restriction on the use of fish taken from its own waters."

            The language ofMirkovich v. Milnor, 34 F. Supp. 409, is also particularly applicable to the question.  In this case the following California statute was construed:

            "No person shall use or operate or assist in using or operating in this state or the waters thereof, any boat or vessel used in connection with fishing operations irrespective of its home port or port of registration, which fishing boat or vessel delivers or by which there is delivered to any point or place other than within this state any fish, mollusks or crustaceans  [[Orig. Op. Page 8]] which are caught in, or taken aboard said boat or vessel from, the waters of the Pacific Ocean within this state or on the high seas or elsewhere, unless a permit authorizing the same shall have been issued by the Fish and Game Commission."

            The court ruled as follows:

            "(3) That a state has the power to enact legislation for the conservation of its fisheries, is, of course, not open to question.  Any law having a reasonable relation to such object and its accomplishment, and which is not unduly oppressive upon individuals must be upheld as a legitimate exercise of the state's police power without inquiry into the possible soundness of legislative judgment in the premises, and without consideration for possible individual hardships.  Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385; Bayside Fish Flour Co. v. Gentry, 297 U.S. 422, 56 S.Ct. 513, 80 L.Ed. 772.

            "* * *

            "(5) Plaintiff cannot deny to the State of California its right, for the conservation of its fisheries, to require a permit for the operation of fishing vessels within state waters which were taking fish from the waters of the state.  His complaint is that there is no power in the state to legislate, in the manner of section 1110 of the Fish and Game Code, over fishing vessels within its waters which are not taking fish within the state's territorial boundaries.  If this latter power were denied to the state, it would clearly result in the practical deprivation to the state of its undoubted right to regulate the taking of fish from within its territorial waters.  Unless all fishing boats within state waters which deliver their catch beyond the state's jurisdiction are brought within the operation of  [[Orig. Op. Page 9]] section 1110 of the Fish and Game Code, it is apparent from the nature of things that there can be no effective control over those boats whose operations within state waters tend to impede the administration and enforcement of the state's fish and game laws and tend to the depletion and waste of its fish supply.  Vessels plying beyond the imaginary three mile boundary line which marks the termination of the state's jurisdiction, as plaintiff alleges he is about to do, can easily cross the line to within the state's territorial waters, engage in their fishing operations and remove their take beyond the three mile limit without any real danger of apprehension in the act.  * * *"

            "(6) The insurmountable difficulties attendant upon policing the waters of the state from the coast to the imaginary three mile limit, wherever fishing operations occur; the impossibility of distinguishing fish taken in state waters from those taken from without, or between vessels fishing within from those fishing beyond the state's limits; the consequent case with which fraud and deceit might be practiced by vessels delivering fish taken from the fisheries of the state to points outside the state on the pretext of operating solely beyond the three mile limit‑-these considerations alone justify the provisions of section 1110 of the Fish and Game Code as a proper exercise of the police power of the State of California, having reasonable relation to the object of their enactment, and reasonably calculated to render effective the state's power of control over the fish supply within its territorial waters."

            We are aware that the Superior Court of Thurston County in the case ofOley Berkvold v. Milo Moore, et al ruled that the two sections of our fisheries code now under consideration did not apply to boats or individuals engaged in the offshore fishery.  However, this case was decided by court upon its stipulated  [[Orig. Op. Page 10]] set of facts in which it appeared that the boats and individuals concerned were engaged solely in an offshore fishery over which the state asserted no jurisdiction and that the fish caught were at all times readily distinguishable from fish caught within the territorial limits of our state.  It is apparent, therefore, that an entirely different set of facts was presented to the court from those set out in your letter and those forming the basis of the decisions cited herein.

            We are of the opinion that the facts you relate justify the two sections of the code even more strongly than the facts set forth in Mirkovich v. Milnor supra, inasmuch as here it appears the state is actually engaged in regulating the offshore fishery as well as having a vital interest in the offshore fishery because of its bearing and connection with the fishery located within its territorial waters.

            We therefore believe that section 66 and 68 are constitutional insofar as they apply to individuals and boats engaged in our offshore fishery under the facts and circumstances set forth in your letter.

Very truly yours,

SMITH TROY
Attorney General

WILLIAM E. HICKS
Special AssistantAttorney General