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Washington State Commercial Passenger Fishing Vessel Ass'n v. Tollefson

Citation: 8 ELR 20111
No. No. 43642, 89 Wash. 2d 276, (Wash., 11/23/1977)

After first having held the case moot, the Washington Supreme Court on rehearing sustains the trial court's invalidation of fishing regulations promulgated by the state Department of Fisheries. The regulations, adopted pursuant to a federal court order, sought to distribute evenly the state's annual harvestable salmon catch between Indian and non-Indian fishermen. The court voids the regulations, ruling that under the laws of Washington the powers of the department are limited to the issuance of regulations which conserve the state's resources and do not extend to regulations aimed at correcting social imbalances. The federal court, therefore, erred in ordering the Director of Fisheries to take action in excess of his statutory authority, and its order is to be disregarded. Furthermore, the regulations are grounded on an interpretation of several Indian treaties which would allocate 50 percent of the state's fishing resources to less than one percent of the population. This interpretation conflicts with constitutional guarantees of equal protection and is erroneous.

In a separate concurrence, two members of the court express the view that the case is moot and should not be decided. In dissent, two members argue that the majority erred not only in its treatment of the treaty and constitutional issues but also in failing to defer, under the Supremacy Clause, to the conclusions reached by the federal courts on these same issues.

Counsel for Appellants
Slade Gorton, Attorney General; James M. Johnson,
Dennis D. Reynolds
Temple of Justice, Olympia WA 98504
(206) 753-2550

Counsel for Appellees
Richard W. Pierson, Dale L. Kingman
Thom, Navoni, Hoff, Pierson & Ryder
37th Floor, Bank of California Center, Seattle WA 98164
(206) 623-8433

En banc Stafford, J., and Wright, C.J., concur by separate opinion; Utter and Horowitz, JJ., dissent by separate opinion; Dolliver, J., did not participate in the disposition of this case.

HAMILTON, BRACHTENBACH, and HICKS, JJ., and WIEHL, J. Pro Tem., concur.