We as sport fishers get screwed when WDFW decides to "shut" down any of our sport fisheries or our hatcheries! Apparently the commercials boys have set themselves up with a sweetheart deal that will assure that they always have an "opportunity" to keep fishing or they will get their license fees back becuase of "lost opertunity". Talk about a sweetheart deal! Now you see why the commercial boys always get to fish, no matter how bad the runs are predicted to be.

It's all about money folks, and it's pretty well spelled out in RCW 77.65.060 that's listed below. Should we have the same "opportunities" to get our fishing license fees back if WDFW decides to shut down any of our hatcheries or rivers? Because without hatchery fish, their will be no harvest allowed in most state waters. What's good for the goose should be good for the gander! What do you think?


RCW 77.65.060
No commercial fishery during year -- License requirement waived or license fees refunded. If, for any reason, the department does not allow any opportunity for a commercial fishery during a calendar year, the director shall either: (1) Waive the requirement to obtain a license for that commercial fishery for that year; or (2) refund applicable license fees upon return of the license.

[2000 c 107 § 30; 1995 c 227 § 1. Formerly RCW 75.28.034.]


Cowlitzfisherman

If all fishing was closed for recreational fishing then obviously YES I would want a refund.

That's exactly why WDFW continues to allow "sum type" of commercial fishery every year (i.e. on the Columbia River)! That way, they don't need to "refund" any license fees. Like I said, it's all about money!

Cowlitzfisherman

so your saying that commercial fisherman get to fish even when the sports dont?

No, that's not what I am saying!

But if NMFS says that a specie has now becomes endanger, and puts it on their list, that could then mean that you don't get to fish for it, and that you don't have the same type of "opportunity", and you won't be able to get your money back from WDFW even those "you" are being denied your "opportunity to fish" for that specie.

By the way that this RCW is worded, it sounds to me like "…If, for [any reason], the department does not allow [any opportunity] for a commercial fishery during a calendar year…" that the same rule should also apply to sport fishing. If the law applies to the commercials why should it not apply to sport fishers?

Does that make anymore sense to you?

Cowlitzfisherman

There are different types of commercial fishing licenses, a general license, and then specific licenses for specific fisheries.

What the rule says is this: If, say, in January the fees are due for the Col. Riv. commercial springer fishery, and then in March they decide not to have a commercial springer fishery in the Col. Riv. that year, then they get a refund of the fees, already paid, for that specific license.

Part of the reason that they have this rule is that commercials, unlike us sporties, must buy their licenses each year, whether they fish or not, or they lose their license, for good. Since the rule requires that they buy all the licenses they had last year again, it makes sense to refund their money for licenses that they don't have fisheries for that year.

They don't get refunds of general license fees, or, of course, fees for fisheries that are held, whether they fish in them or not.

Fish on...

Todd.

crf, i wonder how long it will be before they can buy THIS.

Todd

As an attorney, I have a few questions to ask you about our states fishing laws, in particular, the RCW's.

Is not every RCW created by a "Legislative findings and intent"?
Is so, does that not dictate what the meaning or the creation of the RCW was for?

Finally, is the "Legislative findings and intent" the strength and the guts to support a RCW?

Thanks,


Cowlitzfisherman

While I fully supported last fall's coastal closure and even stopped fishing before we were required to, does that mean I get a 90% refund since 90% of my salmon season was wiped out??

Boater ... they've been talking about that for a bit in AK. Guide vessels are commerical vessels engaged in a commerical fishery in the eyes of ADF&G. Be interesting to see what happens if any guides apply for it when a sport season is closed / restricted and they suffer losses ... I'd be willing to bet that it wouldn't apply to us!

Hey Todd, stop clouding the issue with facts. These conspiracy theories are much easier to believe when we don't have the truth getting in the way.

My fishing partner says if any hatcheries get closed he is going to sue the state for his license fees. He wants to get a bunch of people together and do it.

Stillybum - LOL!

Pimpin' - So let's say the state does close a hatchery, it's not like there aren't 90 or so more that will still be in operation. I think your buddy is gonna have a hard time finding a good attorney to take the case.

Here's my take on situation...

First, sporties are not being screwed by this statute...it has nothing to do with sporties or sport seasons. The way that it works has no application to sportfishing, except possibly one, which I'll talk about below.

CFM,

The legislative intent/findings do have some role in interpreting statutes, but it's pretty rare and wouldn't really have much to do with anything like this, anyway.

As statutes are looked at in court to determine if and how they apply to a given situation, the first thing that the court wants to see is the statute itself. If the words of the statute are clear, the statute says what it says, then that's the end of it.

If there's some sort of confusion or ambiguity within the statute itself, then there are several tools that the court can use to try and clear up any confusion. The court will use statutes around the one in question to see if that helps clear it up, will look at other, less-related statutes to see if that clears it up, may look at how other states have interpreted similar statutes, and may use dictionaries to find the common definitions of words in the statutes, if those words are the cause of the ambiguity or confusion.

Legislative intent and findings can also be used to clear up the confusion. These come in two ways; as an actual statute section, or as a note following a statute (as in this case).

In this case, there isn't any ambiguity or confusion as to what the statute section is saying. It says if a commercial fishermen has to buy a license for a specific fishery, and then that specific fishery does not take place, he gets his money back.

Since there's not any confusion or ambiguity in the statute, the findings and intent are pretty much irrelevant.

Here they are, by the way...

Finding -- Intent -- 1993 c 340: "The legislature finds that the laws governing commercial fishing licensing in this state are highly complex and increasingly difficult to administer and enforce. The current laws governing commercial fishing licenses have evolved slowly, one section at a time, over decades of contention and changing technology, without general consideration for how the totality fits together. The result has been confusion and litigation among commercial fishers. Much of the confusion has arisen because the license holder in most cases is a vessel, not a person. The legislature intends by this act to standardize licensing criteria, clarify licensing requirements, reduce complexity, and remove inequities in commercial fishing licensing. The legislature intends that the license fees stated in this act shall be equivalent to those in effect on January 1, 1993, as adjusted under section 19, chapter 316, Laws of 1989." [1993 c 340 § 1.]

The part that would apply to this statute section is probably the part about removing inequities in commercial licensing. This statute pretty clearly does that, so it's right in line with the intent and findings.

Here's the one way this type of statute could be useful for sporties...

It would have to be if the state required you to buy a license for a specific fishery, then didn't have that specific fishery. Sorry, but closing hatcheries, even all of them, wouldn't even come close on this one.

However, the Puget Sound Enhancement fee might be a spot...this was created to fund and provide for a Puget Sound salmon fishery...and then those seasons for a while never happened, though they are a bit now.

This would be a case where PS fishers were required to buy a license, the fees went to a specific fishery that you needed the license to fish in, then the season never happened.

It's the only one I can think of...

Fish on...

Todd.

Over the day I was remembering my last post, and I seem to remember that someone (Puget Sound Anglers, maybe?) was considering legal redress for the PS Enhancement stamp.

Does anyone know if this did or did not happen, or if it was someone other than PSA that was looking into it?

Fish on...

Todd.

Yeah, PS Enhancement stamp...

I remember when that program was originally proposed -- I actually thought that we were gonna have the most incredible blackmouth fishing.

Whatever happened to that program? Anyone know?

Would appreciate a lil info (yeah, I'm lazy, I'll probably try a search for info sometime this weekend and will post any interestin facts)

Sincerely,
Roger

Todd and others:

I am sorry that it has taken so long to reply on this thread, but I was one of those guys that got cut off when Bob made his new changes and upgrades. Apparently my Netscape was just too darn old to post on Bob's newest upgrade. That should no longer be a problem!

When I was researching the RCW's, I came across RCW 77.04.020 (Composition of department and the Powers and duties). After reading your reply about the commercial fishing license refund issue, some serious questions have now come to my mind. In particular, I am very concerned after reading RWC 77.04.020 and then applying your reasoning to it about the "Legislative findings and intent". I have just a few more questions to ask you.

Under the "Composition of department and the Powers and duties" of RCW 77.04.020 this is what is stated as the Legislative findings and intent; "Legislative findings and intent -- 1987 c 506: "Washington's fish and wildlife resources are the responsibility of all residents of the state. We all benefit economically, recreationally, and aesthetically from these resources. Recognizing the state's changing environment, the legislature intends to continue to provide opportunities for the people to appreciate wildlife in its native habitat. However, the wildlife management in the state of Washington shall not cause a reduction of recreational opportunity for hunting and fishing activities. The paramount responsibility of the department remains to preserve, protect, and perpetuate all wildlife species. Adequate funding for proper management, now and for future generations, is the responsibility of everyone." (Notice it did not say : "Native" species it only refers to "native habitat")

Using your reasoning, I am very concerned that WDFW has not maintained its legislative mandate. I cannot understand how the WDFW can justify their current position of closing down hatcheries; when under this Legislative finding and intent, it is clearly stated that. . ."However, the wildlife management in the state of Washington shall not cause a reduction of recreational opportunity for hunting and fishing activities." Clearly in my view, when the state fishery agency closes down a hatchery site, it has unquestionably created a "reduction" to our recreational fishing opportunity. The language is extremely clear when it states that wildlife management in the state of Washington "shall not cause a reduction" of recreational opportunity for hunting and fishing activities. I don't think that the majority of sport fishers would disagree with me on this one!

I understand and fully expect that you will come back and use the word "paramount"! But the word [S]hall overrides everything else when it comes to interpreting the law!

I have read the following foot notes that are listed below this RWC, but I still did not see how or where they would change the above statement, or how it could be construed in any other fashion. I know that you are not a "big" hatchery supporter, but this appears to me to be in direct conflict of what the management of WDFW was mandated to do.

Moreover, RCW 77.04.012 states the: "Mandate of department and commission. Wildlife, fish, and shellfish are the property of the state. The commission, director, and the department shall preserve, protect, perpetuate, and manage the wildlife and food fish, game fish, and shellfish in state waters and offshore waters.
The department shall conserve the wildlife and food fish, game fish, and shellfish resources in a manner that does not impair the resource. In a manner consistent with this goal, the department shall seek to maintain the economic well-being and stability of the fishing industry in the state. The department shall promote orderly fisheries and shall "enhance and improve recreational" and commercial fishing in this state.


What am I missing? Or have we really been SCREWED! How can one interrupt this in any other fashion?

Or are you going to say again; "You don't drive a van with tinted windows, do you!! Or work for the cable company! I hope not!!" ?


Cowlitzfisherman

Bob,

Thanks for getting the joke...and knowing that it was one.

You've asked a very complex question, one that I can assure was discussed back when I worked at the State.

There is this group of laws that are supposed to guide the WDFW in it's actions regarding wildlife and wildlife utilization...and they're contradictory.

It's like telling them in one law that they must wear green uniforms, and in another telling them that they must wear blue.

They are commanded to do several things, like preserve and perpetuate wildlife, to provide recreational opportunities that do not diminish, and provide commercial fisheries that are economically viable.

Final answer? It's impossible. Each and every one of those commands are virtually impossible in light of the others.

Additionally, there is the full panoply of federal laws and regulations regarding wildlife and environmental protection, all of which put additional restraints on what and how WDFW operates.

Since it's impossible to do all the things required, the laws are pretty much looked at as guidelines.

My guess is that since they can't possibly do all three, and that if they concentrated on one, they'd get sued up the ying-yang over the other two, they try hard to do as close to all three as possible.

In the course of doing that, they don't really do any of them to the extent that the RCW's ask them to do.

That's my take on it, anyway.

Fish on...

Todd.

Thanks Todd

If you think that was a bad one to answer, let's let the board kick this one around for awhile!

RCW 77.110.040
Declaration -- Denial of rights based on race, sex, origin, or cultural heritage.

The people of the state of Washington declare that under the Indians Citizens Act of 1924, all Indians became citizens of the United States and subject to the Constitution and laws of the United States and state in which they reside. The people further declare that any special off-reservation legal rights or privileges of Indians established through treaties that are denied to other citizens were terminated by that 1924 enactment, and any denial of rights to any citizen based upon race, sex, origin, cultural heritage, or by and through any treaty based upon the same is unconstitutional.


No rights, privileges, or immunities shall be denied to any citizen upon the basis of race, sex, origin, cultural heritage, or by and through any treaty based upon the same.
[1985 c 1 § 4 (Initiative Measure No. 456, approved November 6, 1984). Formerly RCW 75.56.040.]

One can only think of all the possibilities and reifications that this law can mean!

Cowlitzfisherman

Bob,

Should I answer, or do you want to hear from others first?

Fish on...

Todd

glad i dont have to decipher the meanings or intent of any of that stuff for a living

Bob,

Since no one else took a shot at it...I'll give it a try!

That law prohibits giving special rights or immunities to any one based on race, treaty rights, etc....

It would certainly prohibit a caucasian only fishing season...or a lake that is only open for mexicans...or a limit of two steelhead for germans, but only one for the rest of us.

I'm guessing that's not what you're looking for, though...I'm pretty sure you want to know about the "treaty rights" part...and the answer is a lot easier than for the above statutory questions.

The answer?

It has absolutely no legal application whatsoever. No one, and I mean not even one, Indian has ever been arrested, nor has any tribe been sued, under this statute.

The reason that they haven't is that they can't be. The law itself violates the United States Constitution, which states that the laws of the U.S. cannot be usurped by any state laws.

This includes federal court rulings.

As we all know, the federal courts have repeatedly, and without fail, found that signatories to the Treaties of Point Elliot, Point No Point, Medicine Creek, etc., all have off-reservation treaty fishing rights, rights that are paramount to our abilities to go fishing.

Why is the law still on the books? Probably for a couple of reasons. One, it still prohibits other types of discriminatory practices...even though that wasn't the point of writing it. Two, it might be that someone just hasn't done it yet, lazy or not important enough to do it. Or three, the state wants you to think that they tried to do something about it, i.e., tried to prohibit treaty fishing, even though they knew they couldn't.

I can tell you this, though, that law is the butt of many jokes in the AG's office.

Fish on...

Todd.

P.S. Even though it has been stated on this BB and all the others, repeatedly, that the State can do nothing to limit the treaty fishermen's right to fish...folks repeatedly bash WDFW for not doing something to limit treaty fishing. Here's the answer to your prayers...this law. Problem is, it doesn't matter.

Bob,

Did you get to read the above post yet?

Todd.

Todd,

Thanks for you reply!

I just got some time to reply to your answer and you may be surprised at what it is!

I was under the impression (but do not know if it is true) that you and I were required to hire a "tribal" fishing guide if we wanted to fish on the Lower Quinault River. I could be wrong on that one, but that is what I have always been told. Since I have never fished it personally, I don't know if that is true or not. But if it is true, and you are required to hire a "special Indian guide" if you want to fish the lower Quinault, then that would diffidently show that there is a "cultural discrimination" occurring. If only tribal Indians are being allowed to guide on those navigable waters, it would be in my opinion, a civil right violation. It is my understanding that the tribes own the land that their reservations lays within. But the U.S. Supreme has a long standing ruling under the "Equal Footing Doctrine" that rivers are navigable, for title purposes, and are owned by the state and "held in trust" for the public.

If that is true, then the Lower Quinault River should be owned and held in trust by the "state" for it's people. Am I wrong, or is there some other federal law or ruling that you know of that overrides the U.S Supreme Court ruling? Can you please point it out for me so that I can review it if there is such a law? Was their any ruling in any of the Treaties of Point Elliot, Point No Point, Medicine Creek, etc. that specifically address this issue? Can a tribe own or control sections of "navigable water" that are being held in trust for it's people of the state?

One more thought; if the tribes are allowed to have their usual and custom fishing rights on their reservations or historic fishing areas, is the white or any other colored race then restricted from fishing side by side on these "navigable" waters (like the lower Quinault)?

These are questions that I would like to hear your opinion on. I have never heard anyone discuss these question before, so that is why I brought up the issue about RCW 77.110.040.
Since the Quinault headwaters are outside the reservation lands, they should be consider as state waters...right?

Thanks again for your quick responses

Cowlitzfisherman

Bob,

The parts of the Quinault, Queets, and Salmon Rivers that are within the Quinault Indian Reservation are wholly under their ownership and control. They're not "owned" by the state and held in trust for us.

Thus, you have to have an Indian guide to fish on those parts of the rivers.

The "in common with" language in the treaties applies to off-reservation, usual and accustomed fishing areas, and an example of where that works would be like on the Chehalis, where the Quinaults net and we fish side by side.

The upper Quinault is outside the reservation, and you and I can fish there without a tribal guide...same with the upper Queets and lower Salmon River.

It's up to the particular tribe as to what the regulations will be on their reservation. I believe that if you fish portions of Lake Roosevelt that are within the Colville Reservation, or, say, the Pend Oreille river within the Kalispel Indian Reservation, you don't need a guide, but you do need a tribal recreational fishing license.

Fish on...

Todd.

Thanks again Todd for your prompt reply!

But do these waters now belong to tribes or do they now belong to the people of the state? If not the state, to whom do they now belong to, and how did they receive ownership of our public water ways (i.e. what ruling was it done under)?

I am having a little problem understanding what you just have posted. Can you "walk" me through this one more time and explain to me how this is legal under the U.S. Supreme court ruling of "Equal Footing Doctrine"?

Thanks,

Cowlitzfisherman

Bob,

I'll give you a quick answer for now...

The waterways within the reservations are owned by the tribes, or perhaps more accurately, by the federal government and held in trust for the tribes.

They were given to the tribes by the federal government in the treaties that ceded land to the feds and created reservations for the tribes.

The equal footing doctrine has been used to fight treaty rights that pre-exist the creation of a state, and it hasn't worked yet.

Fish on...

Todd.

Thanks again Todd for your prompt reply!

I am having a little problem understanding what you had just posted. Can you "walk" me though this one more time and explain to me how this is legal under the U.S. Supreme court ruling of "Equal Footing Doctrine"?

It has been my understanding that the state's public trust ownership of a river is not diminished where a river flows through a National Forest, National Park, Wild and Scenic river, or other "federal land"-- the river is still "held in trust" for public navigation and recreation by the state (one would think that this would also include "federal reservations" also since they too are also under government control and Jurisdiction!

Federal agencies can regulate the development of and beside the river, and they can regulate commercial trips (because they are commerce not navigation) (does this sound like guiding to you?).

They can also prohibit certain types of navigation, such as motors, where motors would conflict with the public-trust enjoyment of the river. But regulations on non-commercial, non-motorized trips are subject to the subject's paramount right to navigate and visit the land along the river up to the ordinary high water mark.

Limits on such navigation-- such as a river "permit system" on a river flowing through federal land-- must be at a level that is supported by the majority of those requested spaces within the limits. And the federal courts have repeatedly ruled that limits must be administered so that space is no less available noncommercially than it is commercially.
Ok, how far am I off?

Please take some time, before you give us your relpy to these questions. Thanks again Todd for for giving us your opinion!


Cowlitzfisherman

Todd,

Just wanted to add one more thing to my last post.

You said that the "The equal footing doctrine has been used to fight treaty rights that pre-exist the creation of a state, and it hasn't worked yet." We are not talking about fighting any "treaty rights" here; we are talking about the rights of a citizen of the state to use the waterways that are held in trust for its people.

I have nothing against the tribes, but I do have a problem with what both our federal laws and state laws appear to say when it comes to this particular issue.

Have you had a chance yet do any additional research on this issue?

Thanks ahead of time,

Cowlitzfisherman

Todd/Cowlitzfisherman -
How is that for a pair.

I'm seem to remember a big rhubarb on the Bighorn River in Montana about fishermen being able to float through the local reservation. Believe it was in the 1970s and as that tail water fishery developed the local tribe tried to limit access but after several years of court actions it was resolved. Don't know if there is any federal case law or decisions that would be applicable to this discussion or not. Todd?

Tight lines
Smalma

What a giant load of BS.