SALE OF FISHING VESSELS TO INDIANS

OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF FISHERIES ‑- FISH ‑- INDIANS ‑- SALE OF FISHING VESSELS TO INDIANS

If the department of fisheries purchases commercial fishing vessels under chapter 183, Laws of 1975, 1st Ex. Sess., the department may not then sell those vessels to Indians residing in this state for their use in commercial fishing activities in Washington waters.

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                                                                 October 8, 1975

Honorable Donald W. Moos
Director, Department of Fisheries
Room 115, General Administration Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1975 No. 87

Dear Sir:

            This is written in response to your recent request for our opinion on a question which we paraphrase as follows:

            If the department of fisheries purchases commercial fishing vessels under chapter 183, Laws of 1975, 1st Ex. Sess., may the department then sell those vessels to Indians residing in this state for their use in commercial fishing activities in Washington waters?

            We answer this question in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Chapter 183, Laws of 1975, 1st Ex. Sess., which was passed by the legislature last June, authorizes the state department of fisheries to purchase commercial fishing vessels and appurtenant gear from the private owners thereof under certain specified circumstances.  See, § 4, which reads, in full, as follows:

            "The department is authorized to purchase commercial fishing vessels and appurtenant gear, and the appropriate current commercial fishing licenses and delivery permits issued by the state of Washington if the vessel, licensee or permit holder:

            "(1) Was licensed to fish or deliver fish during 1974 within the case area; and

            "(2) Was substantially restricted in its fishing season in 1974 by the department as a result of compliance with United States of America et al v. State of Washington et al., Civil No. 9213, United States District Court for Western District of Washington, February  [[Orig. Op. Page 2]] 12, 1974.

            "The department shall not purchase any vessel without also purchasing all appropriate current Washington commercial fishing licenses and delivery permits issued to such vessel or its owner:  PROVIDED, That the department is authorized to purchase current licenses and delivery permits in the absence of the purchase of a vessel."

            The underlying basis for such purchases of commercial fishing vessels and gear is spelled out in § 2 of the act as follows:

            "The legislature finds that the protection, welfare, and economic well-being of the commercial fishing industry is important to the people of this state.  There presently exists an overabundance of commercial fishing gear in our state waters which causes great pressure on the fishing resources.  This results in great economic waste to the state and prohibits conservation and harvesting programs from achieving their goals.  This adverse sitation has been compounded by the recent federal court decision, United States of America et al. v. State of Washington et al., Civil No. 9213, United States District Court for the Western District of Washington, February 12, 1974.  As a result, large numbers of commercial fishermen face personal economic hardship and the state commercial fishing industry is confronted with economic difficulty.  The public welfare requires that the state have the authority to purchase commercial fishing vessels, licenses, gear, and permits offered for sale, as appropriate, in a manner which will provide relief to the individual vessel owner,and which will effect a reduction in the amount of commercial fishing gear in use in the state so as to insure increased economic opportunity for those persons in the industry and to insure that sound scientific conservation and harvesting programs can be carried out.  It is the intention of the legislature to provide relief to commercial fishermen adversely affected by the current economic situation in the state fishery and to preserve this valuable state industry and these natural resources."  (Emphasis supplied.)

             [[Orig. Op. Page 3]]   Consistent with this declaration of policy to remove surplus commercial fishing vessels and gear from use for that purpose, § 6 of the act, upon which our answer to your question depends, then provides that:

            "The department may arrange for the insurance and storage and for the resale or other disposition of all vessels and gear purchased pursuant to this 1975 amendatory act.  Such vessels shall not be used by any owner or operator as a fishing vessel other than as a vessel used for angling or other personal use in waters within the state of Washington, nor shall such vessels be used by any owner or operator to deliver fish within the boundaries of the state of Washington.  The department shall require that the purchasers or other users of vessels resold or otherwise disposed of by the department execute any and all suitable instruments to insure compliance with the requirements of this section.  The director may commence suit or be sued on any such instrument in any state court of record or United States district court having jurisdiction."

            This section of the act, as you will readily note, expressly permits the department, among other things, to ". . . arrange for the . . . resale . . . of all vessels and gear purchased pursuant to . . ." the act.  Any vessels so disposed of by the department, however, can only be legally used by the purchasers thereof, within the waters of the state of Washington, for ". . . angling or other personal use. . ."; conversely, the vessels ". . . shall not be used by an owner or operator as a fishing vessel . . . " other than in the foregoing manner.

            Section 7 of the act then adds sanctions to this prohibition by providing for criminal penalties as follows:

            "Any person violating any of the provisions of this 1975 amendatory act, or of any of the rules or regulations of the director made pursuant thereto, or who aids or abets or assists in the violation thereof, shall be guilty of a gross misdemeanor, and upon a conviction thereof shall be punished by imprisonment for not less than thirty days or more than one year, or by a fine of not  [[Orig. Op. Page 4]] less than twenty-five dollars or more than one thousand dollars, or both.  Upon conviction of any person of a violation of any provision of this 1975 amendatory act, or rule or regulation of the director, the judge or justice of the peace may, in addition to the penalty imposed by law, provide for the forfeiture of the vessel and licenses and/or permits to the state of Washington."

            Based upon the foregoing, it will be seen that while the department of fisheries may sell any of the vessels in question to Indians residing in this state, they will be subject to the same restrictions as apply to any other purchasers and thus will be barred from using the vessels for fishing in any other manner than by what is referred to in § 6, supra, as angling.  In effect, all purchasers, be they Indian or non-Indian, will be barred from using the vessels in Washington waters for the basic purchase for which they are designed ‑ i.e., commercial fishing with normal commercial fishing gear.  Thus, we answer your question, as paraphrased, in the negative.

            We trust that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

EDWARD B. MACKIE
Deputy Attorney General