REGULATION OF OFF-SHORE FISHING BY CITIZENS OF THE STATE OF WASHINGTON

REGULATION OF OFF-SHORE FISHING BY CITIZENS OF THE STATE OF WASHINGTON

Director of Fisheries may promulgate regulations affecting fishing of state citizens beyond the three mile limit provided like legislation becomes effective jointly as to the citizens of Oregon and California.

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                                                                November 9, 1956

Honorable Arthur B. Langlie
Governor of the State of Washington
Legislative Building
Olympia, Washington                                                                                            Cite as:  AGO 55-57 No. 338

Dear Sir:

            You have requested our opinion on the following question:

            Does the State of Washington have authority under existing law to prohibit citizens of the State of Washington from salmon fishing beyond the 3-mile limit off the coast of Washington?

            Our answer to this question is a qualified affirmative.  The director of fisheries, under existing law, is authorized to regulate fishing by Washington citizens beyond the 3-mile limit, provided that like rules, regulations or statutes have been made or will become effective jointly as to the citizens of the States of Oregon and California.

                                                                     ANALYSIS

            Section 1, chapter 29, Laws of 1947 (RCW 75.40.030), authorized the State of Washington to enter into the Pacific Marine Fisheries Compact, concerning off-shore fishing, with the States of Oregon and California, should Congress ratify such a compact.  At the same time the State of Oregon (ORS 507.040) and the State of California (31 West's Annotated California Code, p. 469) passed similar legislation.  Thereafter, on July 24, 1947, in Public Law 232, the 80th Congress ratified and gave its consent to the aforementioned three states to enter into said compact (61 Stat. 419).  Pursuant to such congressional legislation, the three governors of the States of Washington, Oregon and California executed the Pacific Marine Fisheries Compact on December 15, 1947.  The text of the compact may be found in RCW 75.40.030.

            When our state legislature authorized the enactment of the compact, it authorized the director of fisheries to represent this state on the Pacific Marine Fisheries Commission (RCW 75.40.040).  At the same time, the legislature passed § 3, chapter 29, Laws of 1947 (RCW 75.40.050), which reads as follows:

             [[Orig. Op. Page 2]]

            "In the event the compact set forth in section 1 hereof becomes effective, the director of fisheries shall have the power and he is hereby authorized from time to time to make, adopt, amend and promulgate, governing off-shore fishing in the Pacific Ocean by citizens of the State of Washington, rules and regulations, prohibiting wastage of food or shellfish, establishing open and closed season for all fishing, designating areas open or closed to fishing, setting minimum and maximum sizes of fish and shellfish that may be taken, declaring the kinds of food or shellfish that may be used for bait, and regulating fishing gear to be used as to mesh, size and length of nets and number, length and size of line and hooks:  Provided, That no rule or regulation shall be issued governing the conduct of citizens of the State of Washington unless like rules or regulations or statutes have been made or will become effective jointly as to the citizens of the States of Oregon and/or California."  (Emphasis supplied.)

            The foregoing statute has not been repealed but, in fact, was re‑enacted in § 75.40.050, chapter 12, Laws of 1955.  The "and/or" in the last line was replaced with "and."  It is, therefore, clear that the director of fisheries can promulgate only such regulations affecting fishing by Washington state citizens in waters beyond the 3-mile limit which are like those of Oregon and California with respect to their citizens.

            If the proviso in RCW 75.40.050 had not been enacted, there is authority to the effect that states have the right to govern the conduct of their citizens upon the high seas "with respect to matters in which the state has a legitimate interest and where there is no conflict with acts of congress."  Skiriotes v. Florida, 313 U.S. 69, at page 77, 85 L.Ed. 1193. In that case, Florida was permitted to regulate sponge fishing by its citizens beyond its territorial waters.  On the authority of that case it is quite possible that the State of Washington could have regulated the fishing of its citizens beyond the 3-mile limit, regardless of Oregon or California laws in this area.  However, since the legislature has restricted such power by requiring joint action by all three states, we must comply with its mandate.

            We have been unable to discover any existing laws of the States of Oregon and California which regulate fishing by their citizens beyond the 3-mile limit.  Consequently, the State of Washington must wait until such laws are enacted or reach an agreement with one or both of the other two states to legislate in this area.

             [[Orig. Op. Page 3]]

            We trust this satisfactorily answers your inquiry.

Very truly yours,

DON EASTVOLD
Attorney General

JOSEPH T. MIJICH
Assistant Attorney General