USE OF COMMERCIAL FISHING VESSELS ON COLUMBIA RIVER

OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF FISHERIES ‑- "BUY BACK PROGRAM" ‑- USE OF COMMERCIAL FISHING VESSELS ON COLUMBIA RIVER

A commercial fishing vessel which is purchased by the department of fisheries under RCW 75.28.500, et seq., and then sold by the department, may not be used for commercial fishing on the Washington side of the Columbia River.

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                                                                  March 24, 1976

Honorable Donald W. Moos
Director
Department of Fisheries
115 General Administration Bldg.
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1976 No. 23

Dear Mr. Moos:

            In light of the Department of Fisheries' responsibilities under the 1975 legislation for the purchase and resale of fishing vessels, you have requested that our office answer the following inquiry, which we paraphrase as follows:

            Can a vessel which is sold by the Department of Fisheries under the buy-back program (RCW 75.28.500, et seq.) be used for commercial fishing in the Columbia River?

            We answer your inquiry as explained in the following analysis.

                                                                     ANALYSIS

            The legislature authorized, by the passage of chapter 183, Laws of 1975, 1st Ex. Sess. (codified as RCW 75.28.500, et seq.), the state Department of Fisheries to purchase commercial fishing vessels from private owners under certain specified circumstances.  The purpose of the program is to alleviate the over-abundance of commercial fishing gear in our state waters, which causes great pressure upon the fishing resource.  The legislature has declared that the state is to purchase commercial fishing vessels in a manner which will provide relief to individual vessel owners and achieve a reduction in the commercial fishing gear in use in the state and thus insure increased economic opportunity for persons in the industry and insure that sound scientific conservation harvesting programs are carried out.  (RCW 75.28.500)

            Recognizing the costs of implementing this buy-back program, it was specifically provided that the act would take  [[Orig. Op. Page 2]] effect only upon the receipt by the Department of Fisheries from the federal government of funds in an amount sufficient to administer the program.  (RCW 75.28.535)  A fund was created in the state treasury to receive any federal or other funds to carry out this purchase program and all the proceeds acquired by the Department from the resale or disposition of vessels and equipment acquired under the 1975 act.  An integral on-going part of the buy-back program is the resale of vessels and other equipment by the Department of Fisheries.  It would, of course, be self-defeating to the purpose of the buy-back program; i.e., the reduction of the commercial fishing fleet, if the vessels were simply sold and reentered the commercial fishing fleet in this state.  The legislature has therefore specifically required that the vessels which are sold by the Department of Fisheries under this program,

            ". . . 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."  RCW 75.28.520.

            The above‑quoted language refers to "waters within the boundaries of the state of Washington."  A similar phrase "waters of the state" is defined in RCW 75.04.050 as including all waters within the territorial limits of the state.  The state constitution in Article XXIV, § 1, defines the state boundary in the lower portion of the Columbia River as running up the mid-channel of the river.  Thus, the mid-point of the Columbia River is normally considered the boundary between the states of Oregon and Washington.  In responding to your inquiry, we should consider two separate situations:  First, commercial fishing in the lower portion of the Columbia River which occurs in the northern half of the river; second, fishing activities which occur in the southern one‑half of the Columbia River.

            For a number of years the states of Washington and Oregon, in accordance with a compact (RCW 75.40.010) which has been approved by the United States Congress, have exercised concurrent jurisdiction over fishing activities in the lower portion of the Columbia River.  Although there has been an exercise of concurrent jurisdiction over the entire width of the river, it is clear that the compact has not modified the state boundary and thus the northern half of the Columbia River is clearly a water which is within the state of Washington.  Thus, under the explicit language of RCW 75.28.520 quoted above, fishing vessels which are sold by the Department of Fisheries under the  [[Orig. Op. Page 3]] buy-back program cannot be used to engage in commercial fishing in the northern one‑half of the Columbia River.  We recognize that RCW 75.28.020 accepts an Oregon license which is validly issued as entitled to recognition by the state of Washington for fishing activities which occur in the Columbia River where the two states have concurrent jurisdiction.  That statute specifically permits the holder of an Oregon license to fish within the Washington portion of the Columbia River, but that statutory authorization, which was last amended in 1963, does not countervail the explicit prohibition of the use of the buy-back vessels for commercial fishing within the state of Washington.

            Now turning to the second situation; i.e., the use of vessels sold under the buy-back program for commercial fishing in the Columbia River on the Oregon one‑half of the river, as we have previously indicated, the states of Washington and Oregon exercise concurrent jurisdiction over fishing activities on the Columbia River pursuant to the compact.  (RCW 75.40.010)  Consistent with that concurrent jurisdiction, our state recognizes the validity of Oregon fishing licenses in the Washington waters over which the two states have concurrent jurisdiction.  Further, our state recognizes in RCW 75.32.070 that if a catch-fee has been paid to the state of Oregon for a catch made in the Columbia River, an exemption is granted from the catch fee imposed by the state of Washington.  Furter, RCW 75.12.020 makes certain acts unlawful both within the territorial limits of the state of Washington and in the waters of the Columbia River over which this state has concurrent jurisdiction with Oregon.  The special nature of the Columbia River is further recognized in RCW 75.08.027 wherein the director of Fisheries is authorized to cooperate with Oregon in respect to the annual yield of aquatic products in the Columbia River.  The 1975 legislation (chapter 183, supra) recognized that the adverse situation (i.e., an over-abundance of commercial fishing gear) had been compounded by the recent United States District Court decision inUnited States v. Washington, 384 F.Supp. 312 (Western District of Wash. 1974).  That decision involved fishing by treaty Indians in the watersheds of Puget Sound and the Olympic Peninsula north of Grays Harbor, commonly referred to as the "case area" ofU.S. v. Washington.  The legislature, while recognizing the geographical area directly impacted by that decision, defined the term "case area" as also including ". . . any area in which fishing rights are affected by court decision in a manner consistent with the above‑mentioned decision;" (RCW 75.28.505).  Following the decision inU.S. v. Washington, the United States District Court for Oregon amended its decree inSohappy v. Smith, 302 F.Supp. 899, so as to incorporate essentially the same allocation of the fish resource between treaty Indians and non-treaty fishermen as had been decreed in U.S. v. Washington.  TheSohappy decision directly affects fishing in the Columbia River, and thus the need to reduce the  [[Orig. Op. Page 4]] commercial fishing gear is not restricted to Puget Sound and the Olympic Peninsula area but rather includes the lower parts of the Columbia River.

            We recognize that at the present time the state is not engaged in a buy-back program involving commercial fishing vessels in the Columbia River area, but it is not unreasonable to anticipate that there may in the near future be developed a buy-back program affecting that area.  If that expectation materializes, and vessels sold under the current buy-back program are utilized for commercial fishing in the Columbia River, there well may materialize a situation in which a federally funded buy-back program will essentially be repurchasing the same vessels for the second time.

            As we have previously noted, the lower portions of the Columbia River are subject to the concurrent jurisdiction of the states of Washington and Oregon.  Further, under the licensing laws, Oregon licensed fishermen can fish the entire width of the river, and Washington fishermen can also fish the entire width of the river and are not confined to simply fishing in Washington territorial waters.  We believe that in this light the waters of the Columbia River are in a special status, but it cannot be directly concluded from the statutory language of RCW 75.28.520 that the statutory prohibition on the use of the vessels for commercial purposes would apply to the Oregon portion of the river.  We note, however, that the director is authorized under the statute to adopt rules and regulations and is specifically directed to require that purchasers or other users of vessels resold or otherwise disposed of by the department shall execute any and all suitable instruments to insure compliance.  In light of those directions and authorizations in the statute, you may wish to consider the special status of the Columbia River fishery insofar as it is under the concurrent jurisdiction of Washington and Oregon as to limitations placed in the documents of sale of the vessels.  In this area, the instruments utilized by the department in conjunction with the sale are of crucial importance, because the statute cannot be said to clearly apply to this situation.

            In order to preclude the use of vessels resold under this buy-back program from engaging in commercial fishing activities in the Columbia River, it will be necessary for you to adopt appropriate regulations and draft appropriate documents.  If such adoption and drafting is not executed by you, the provisions of RCW 28.75.520 will not directly prohibit such use on the Oregon portion of the Columbia River.

             [[Orig. Op. Page 5]]

            We trust the foregoing will be of assistance to you.

Very truly yours,

EDWARD B. MACKIE
Deputy Attorney General