Bit of C&P here but I thought this legal opinion from the AG interesting. I high lighted a couple of key things but look the the legal definition of HOW the WDF&W managed sport fisheries at that time and not much has changed.

Honorable Duane L. Berentson
State Representative, 40th District
P. O. Box 426
Burlington, Washington 98233
Cite as: AGO 1970 No. 15
Dear Sir:
By letter previously acknowledged, you have requested the opinion of this office on a question which
we paraphrase as follows:
May the director of fisheries lawfully close a given area to commercial fishing without also closing it to
sports fishing?
We answer your question in the affirmative subject to the qualification set forth in our analysis below
The regulatory powers of the director of fisheries are set forth in RCW 75.08.080, as follows:
"The director shall investigate the habits, supply and economic use of, and classify, the food fish and
shellfish in the waters of the state and the offshore waters, and [[Orig. Op. Page 2]] from time to time, make,
adopt, amend, and promulgate rules and regulations as follows:
"(1) Specifying the times when the taking of any or all the various classes of food fish and shellfish is
lawful or prohibited.
"(2) Specifying and defining the areas, places and waters in which the taking and possession of the
various classes of food fish and shellfish is lawful or prohibited.
"(3) Specifying and defining the types and sizes of gear, appliances, or other means that may be lawfully
used in taking the various classes of food fish and shellfish, and specifying the times, places, and manner in
which it shall be lawful to possess or use the same.
"(4) Regulating the possession, disposal, and sale of food fish and shellfish within the state, whether
acquired within or without the state, and specifying the times when the possession, disposal, or sale of the
various species of food fish or shellfish is prohibited.
"(5) Regulating the prevention and suppression of all infectious, contagious, dangerous, and
communicable diseases and pests affecting food fish and shellfish.
"(6) The fixing of the size, sex, numbers, and amounts of the various classes of food fish and shellfish
that may be taken, possessed, sold, or disposed of.
"(7) Regulating the landing of the various classes of food fish and shellfish or parts thereof within the
"(8) Regulating the destruction of predatory seals and sea lions and other predators destructive of food
fish or shellfish, and specifying the proof of the destruction of the same that shall be required.
[[Orig. Op. Page 3]]
"(9) Specifying the statistical and biological reports that shall be required from licensed or nonlicensed
fishermen, dealers, boathouses, handlers, or processors of food fish and shellfish.
"(10) Specifying which species of marine and freshwater life are food fish and shellfish.
"(11) Classifying the species of food fish and shellfish or parts thereof that may be used for purposes
other than human consumption.
"(12) Promulgating such other rules and regulations as may be necessary to carry out the provisions of
this title and the purposes and duties of the department.
"Subdivisions (1), (2), (3), (4), (6), and (7), shall not apply to licensed oyster farms or oysters produced
By its enactment of subsections (1)-(4), (6), (9) and (12) of this statute, the legislature has clearly
granted to the director the authority, in regulating the taking of food fish and shellfish, to specify seasons, areas,
gear, maximum catch and possession limits and allowable sales and disposition of catch, and to require certain
statistical reports for various segments of the state fishery. However, sound management of the total fishery
resource has necessitated the enactment of different regulations for sports fishing (angling) than for commercial
Basically, the sports fisheries are managed so as to allow large numbers of fishermen each to take a
limited number of fish. Lawful gear for angling is defined in RCW 75.04.100 as one pole, held in hand, to
which not more than two single hooks may be attached. Under WAC 220-56-063 and 220-56-066, most rivers,
streams and ocean areas are open to angling. Spawning areas and areas below dams and racks are closed to
angling, and other areas can and have been closed when such closures were necessary for proper
escapement. Possession and bag limits for angling vary for different areas. For the coastal fishery the limit is
three salmon of not less than 20 inches in length, as provided for in WAC 220-56-013. No license is required
for angling, but [[Orig. Op. Page 4]] sports catches must be recorded upon salmon punch cards which are
returned to the department of fisheries. See, WAC 220-56-023. Fish taken by angling are for personal use only
and may not be sold commercially.
On the other hand, the commercial fisheries are managed to allow for proper escapement and maximum
commercial take. The legislature has established license requirements for all segments of the commercial
fishery, and has defined lawful gear under the various licenses. See, chapter 75.28 RCW. Areas open to
commercial fishing are set by statute (chapter 75.18 RCW) and permanent regulations (WAC 220-47-010
through 220-47-070) promulgated thereunder. Data for the commercial fisheries is collected continuously by
the department of fisheries, and additional closures and regulations are frequently made by emergency
regulation to preserve necessary escapement as mandated by fishery data and recommendations of the
international salmon fishery commission.
The Washington supreme court has consistently upheld the authority of the director of fisheries to
prohibit the use of certain specified gear in a given area while leaving the same area open for the use of other
gear. Thus, inBarker v. State Fish Commission, 88 Wash. 73, 152 Pac. 537 (1915), the court upheld a
regulation which effectively closed Puget Sound to gill net fishing while leaving the Sound open to purse seine
net fishing. And inVail v. Seaborg, 120 Wash. 126, 207 Pac. 15 (1922), the court upheld a regulation which
closed Puget Sound to commercial gear while leaving it open to hook and line fishing. Subsequently,
inMcMillan v. Sims, 132 Wash. 265, 231 Pac. 943 (1925), the court upheld a regulation closing Skagit Bay to
commercial fishing while allowing the area to remain open to hook and line fishing.
The court has specifically rejected the contention that opening specified areas only to certain gear or
types of fishing violates the equal protection and the privilege and immunity clauses of the federal and state
Constitutions, respectively.1/ See,State v. Tice, 69 Wash. 403, 125 Pac. 168 (1912); Barker v. State Fish
Commission, supra; and Frach v. Schoettler, 46 Wn.2d 281, 280 P.2d 1038 (1955). In theBarker case, in
denying the allegations that a [[Orig. Op. Page 5]] prohibition against gill nets was discriminatory, the court
stated at pp. 76-77:
"It seems plain to us that this is not a discrimination between, or a classification of, persons; but only a
discrimination as to appliances which may be used; and that as to each class of such appliances, every person
may use them under exactly the same conditions and restrictions. There is no suggestion in the law that gill
nets may not be used as the law prescribes by all persons, or that purse and drag seines may not be used as the
law prescribes by all persons. There is plainly no discrimination touching any characteristic or quality attaching
to the person of appellants or any other person.
"It has become the settled law of this state, in harmony with the rule prevailing in other states, that the
classification of territory in game and fish laws preventing hunting or fishing in a portion of the state and
permitting it elsewhere in the state is not a discrimination between, or a classification of, persons in violation of
the state or Federal constitutional guaranties here invoked. Hayes v. Territory, 2 Wash. Terr. 286, 5 Pac. 927;
State v. Tice, 69 Wash. 403, 125 Pac. 168, 41 L.R.A. (N.S.) 469;Cawsey v. Brickey, 82 Wash. 653, 144 Pac.
938. Among the numerous decisions of other states so holding we note: Portland Fish Co. v. Benson, 56 Ore.
147, 108 Pac. 122; Bittenhaus v. Johnston, 92 Wis. 588, 66 N.W. 805, 32 L.R.A. 380.
"Classification of methods of taking fish, making certain methods lawful and other methods unlawful,
has been held not to discriminate between persons in violation of any constitutional right. State v. Lewis, 134
Ind. 250, 33 N.E. 1024, 20 L.R.A. 52; State v. Mrozinski, 59 Minn. 465, 61 N.W. 560, 27 L.R.A. 76."
The conclusion to be drawn from these cases in terms of the question which you have posed, is that the
director of [[Orig. Op. Page 6]] fisheries has the authority to close a given area to commercial fishing without
also closing it to sports fishing where his action is taken for the purposes of conservation, protection and proper
management of the state's fisheries. Furthermore, we should add that we view this conclusion as being fully
consistent with that which was reached in AGO 59-60 No. 127, which you have referred to in your request. In
that 1959 opinion to a previous director of fisheries, we advised that the director could not close an area to
commercial fishing for the sole purpose of establishing an area for sports fishing pointing out there, as we have
here, that the underlying requirement which the director must meet in promulgating regulations is that his
action must be reasonable in terms of his responsibility for the management and conservation of the fishery
resource. The problem, in the case considered in this prior opinion, was that no conservation or management
goals were involved; instead, the proposed closure would have been made to keep commercial boats out of a
given area solely for the purpose of promoting sports fishing in that area, and thus (we concluded) would have
been arbitrary and capricious.
We trust the foregoing will be of assistance to you.
Very truly yours,
Attorney General
Assistant Attorney General
1/United States Constitution, Amendment 14 and Washington Constitution, Article I, 12.
Dazed and confused.............the fog is closing in