WHETHER THE GAME COMMISSION MAY FORBID THE IMPORTATION OF DANISH TROUT

WHETHER THE GAME COMMISSION MAY FORBID THE IMPORTATION OF DANISH TROUT.

The State Game Commission may not forbid the importation of Danish trout as the same would be unconstitutional in view of the Federal Constitution and would not be for the purpose of aiding the state in its enforcement of conservation laws.

                                                                   - - - - - - - - - - - - -

                                                                     July 6, 1950

Mr. John A. Biggs
Assistant Director
Department of Game
509 Fairview Avenue North
Seattle, Washington                                                                                                 Cite as:  AGO 49-51 No. 297

Dear Mr. Biggs:

            In a recent letter you inquired as follows:

            "The State Game Commission has been approached by a group of game farmers who are licensed to engage in the business of game farming in the state of Washington, and who raise and sell commercially large numbers of trout.  These men have formed an association for the purpose of promoting and protecting their industry.

            "It is their contention that large numbers of trout are being imported into this state from foreign countries principally Denmark, and that these trout are of an inferior quality and presents them with a type of competition which they have a great deal of difficulty in meeting and which they feel gives a bad name for trout which are raised locally in this state or in other states in the United States.

            "They have requested the State Game Commission to establish a regulation prohibiting the importation of trout into the state of Washington for purposes of sale from countries outside the continental limits of the United States.  It is their belief that the Game Commission has  [[Orig. Op. Page 2]] the legal right to make such a regulation as a result of power granted it under Section 13, chap. 275, Session Laws of 1947, which is the Game Code of the state of Washington The last paragraph of that section reads as follows:

                        'The Commission may authorize or prohibit the importation of wild animals, wild birds and game fish, and regulate and license the sale and transportation thereof within the state.'

            "Under the power granted it by this section the Game Commission has established an importers license under terms and conditions to be found in Permanent Regulations No. 5 and 6 of the State Game Commission.

            "It is the belief of this group that the Game Commission can, if it so desires, absolutely prohibit the importation of trout into the state.  The State Game Commission recognizes and feels that it has this right only for purposes of game and fishery management, but questions its right to establish a regulation which is solely for the purpose of protecting an industry and has no connection with any fishery or game management functions.

            "Therefore we respectfully request your opinion as to whether or not the State Game Commission has the power to promulgate a regulation prohibiting the importation of trout into the state of Washington from outside the continental limits of the United States by virtue of its powers under Section 13, Chap. 275, Laws of 1947, such regulation having as its sole and only purpose the protection of an industry of this state, namely that of game farming or the commercial rearing and selling of fish."

                                                                     ANALYSIS

            The power to regulate importations from foreign countries is one that the states have delegated to the federal government and this has long been recognized to be an exclusive authority of the federal government.

            However, both the federal and state courts in our country have recognized certain exceptions to this rule.  It has, for example, been held that a state may prohibit the importation of game birds and game animals into its territory from another state or from another country if the prohibition is necessary to aid the state in its enforcement of its own conservation laws.

             [[Orig. Op. Page 3]]

            InGreer v. Conn., 161 U.S. 519, the U.S. Supreme Court recognized this principle.  Again in theBayside Fish Flour Co. v. Gentry, 297 U.S. 422, the Supreme Court again recognized the same principle holding that a state may pass laws and regulations directly affecting interstate commerce if the laws and regulations are necessary to aid the state in enforcing its own conservation laws.  InState v. Belknap, 104 Wash. 221, 176 Pac. 5, our State Supreme Court had occasion to rule upon the legality of a statute making the possession of salmon taken outside the territorial waters of the state illegal during the closed season for fishing for salmon.  The same statute made it legal to possess during the closed season salmon taken outside the three mile limit of Neah Bay.  The defendant defended the case upon the theory that the fish were legally taken in waters outside the jurisdiction of the state.  The Supreme Court affirmed the contention of the defendant holding that while the state has authority to regulate the possession and sale of fish taken outside its jurisdiction in order to control the sale of fish taken from its territorial waters, the fact that the statute excepted salmon taken from some of the outside waters made the act ineffective.  The court then reviewed a considerable number of citations which upheld the power of the state in this regard and then stated as follows:

            "* * * an examination of the section of our act discloses that the legislature has in the section itself nullified the reason which these courts have assigned as the only basis for sustaining the legislation attempted in the main part of this section; for the legislature has added a proviso which reads:  'that this provision shall not apply to salmon taken three miles outside of the Straits of Juan De Fuca.'  By adding this provision, the act renders it possible to defeat the very purpose which the U.S. Supreme Court in the Silz case has declared to be the one justification of such legislation, * * *"

            We think these authorities clearly hold that the state has no power to enact legislation directly affecting interstate or foreign commerce unless said legislation can clearly be said to be necessary to aid the state in its enforcement of its laws protecting its own fish and game resources.

             [[Orig. Op. Page 4]]

            Applying this test to the situation set forth in your letter, we are of the opinion that a statute or regulation by the game Commission forbidding the importation of Danish trout for the sole purpose of fostering and protecting a local industry rather than for the purpose of aiding the state in its enforcement of conservation laws would be unconstitutional.  In fact we are of the opinion that the commerce clause of our federal constitution was primarily intended to prohibit such legislation by states.  We believe that the state could pass such legislation if it found it necessary to do so in order to protect and conserve its game and fish populations.  However, that does not appear to be the case at the present time and we must therefore hold that such a regulation passed for the purposes mentioned in your letter would be unconstitutional.

Very truly yours,

SMITH TROY
Attorney General

WILLIAM E. HICKS
Special Assistant
Attorney General