(dissenting)—I agree with the majority that the state has broad power in regulating the taking of *425salmon for the purpose of preserving and enhancing the great salmon fishery resource of this state. The state’s right and duty to accomplish this purpose cannot be questioned. The vital issue in this case, however, is whether the statute requiring the sports commercial fishermen to use more efficient equipment in the taking of salmon, and which is more destructive to the immature fish, has a reasonable and rational relationship to the objective of the preservation and conservation of the salmon fishery. The answer to me appears obvious on its face.
The record in this case clearly shows that this gear now required of sports commercial fishermen, by reason of RCW 75.12.650, is inconsistent with the accomplishment of the purpose of preservation of the salmon fishery.
We have a long history of legislation in this state limiting the manner and means of catching salmon, which has always been to make the taking of fish more difficult for the preservation of the salmon fishery, such as by the abolishment of fish traps, the regulation of the length and size of nets, and the size of the mesh to allow escapement of the immature fish, etc. But now for the first time the new theory has been evolved by the majority that the conservation of the salmon fishery can be better accomplished by requiring the sports commercial fishermen to equip their boats with gear that takes salmon more effectively and, in the process, is more destructive to the immature salmon.
The record in this regard contains the following which is not disputed.
Earl Holmstrom on direct:
Q. Now, sir, tell me this: How many lures would the average fixed-gear boat have out? Explain that. A. I didn’t run too many. I would run up to eighteen, six on each line, and an outrigger, well, yeah, about up to twenty. Q. Up to twenty? A. Yeah. Q. Would that be the actual lures that would be out at one time? A. Yeah. Q. And the bigger boats, how many do they get? A. Probably forty or fifty. Q. Forty or fifty? A. Yes, all together, counting all the different dogs they have out. Q. All right. And sir, tell the Court your experience with respect to fish killed by using this rigging-type of fishing? *426A. Well, there’s no comparison. On your sport gear you know right now what you got, and you can bring him in and unhook him, but on heavy gear a lot of times you come in—you leave them out there until they load up, especially the silvers, until they load up, and then you bring them in. You have got shorts on there that are dead, and you just throw them away. You can’t tell just by a straight pull on the gear.
Wilbur Barker on direct:
Q. And sir, can you tell this Court from your experience whether or not the wastage of fish is greater with fixed-gear than with the pole-type gear? A. This is an opinion on my part. I feel it is higher with fixed-gear, and the wastage is higher, from the standpoint of what we were speaking of yesterday, of dragging the fish through the water. I would like to say here in my testimony that I feel that not all fixed-gear fishermen pull their lines immediately, and I am talking about trollers now particularly, because in the common parlance in the fishing industry we practice what we call soaking a slug, and to explain that further to the Court I would like to say that when you are in these large Chinooks, large salmon, these fish are pretty wild when they are green, in other words, when they are first hooked, and in order to handle them properly at the boat it is sometimes necessary to drag them around for a while to actually tire them out, because you cannot handle them even on one hundred pound test leader and one hundred twenty-five pound test leader, they will break off if you reach for your snubber to pull them in that soon, so we don’t always pull the fish right away. Also, in fishing in a good silver bite, it has been my observation while fishing out there with the fleet at times that the trollers do not always pull immediately on getting one strike. If the bite is good they are going to leave the lines out and load up as much as they can before they pull. I would just like to add that here in the testimony as far as dragging fish around goes. Q. When these vessels have the fixed-gear, do they use a heavier weight generally? A. Well, any type of fixed-gear requires a heavy weight to hold the line down, depending on how deep you are fishing, how many spreads are being run and so forth, but commonly twenty-five pound lead weight ón the bottom is about a minimum that is run.
*427From this record, it is the duty of this court to hold there is no reasonable and rational relationship in the requirements of this statute and the conservation of the salmon fishery; that it constitutes an unreasonable exercise of the police power and should therefore be stricken down.
Not only is the effect of the statute destructive to .the salmon resource, but it has a far-reaching and detrimental effect upon the sports commercial fishermen. The department admits the effect of this statute will be to reduce the number of commercial fishermen who now pursue this occupation of commercial fishing with sports gear. It is also clear from the record that the cost of converting from sports gear to fixed gear is considerable, which will force some commercial fishermen out of business, and that the risk and hazard of using fixed gear on the smaller boats, now adaptable to sports commercial fishing, is so great that others also will be forced out of business unless they are economically able to secure larger boats for the conversion. The drastic effect of this statute upon the ability of the sports commercial fisherman to stay in business in pursuing his occupation is therefore also of paramount consideration in determining the reasonableness of the new statute in .the light of the purposes it purports to accomplish.
The defendants, the Department of Fisheries and the director, assert that large numbers of salmon are being taken by fishermen using sports or “angling” gear under a commercial trolling license without reporting these salmon on the punch cards used by sportsmen or on the receiving tickets used by commercial fishermen; that this prevents the Department of Fisheries from accumulating accurate catch data essential for the management of the salmon fishery, and that RCW 75.12.650 was enacted to correct this problem by making separate and distinct the sports and commercial fishery.
The record does not show this problem will be corrected by this statute except by a reduction of the number of sports fishermen engaged in commercial fishing. The records show that commercial fishermen, other than sports *428commercial fishermen, can also abuse the requirements of statistical reporting by taking salmon for their personal use, by giving them away or by selling their catch in illegal channels. The evidence also shows there are over 450,000 sports fishermen and a significant number of these fishermen do not return their punch cards to the department, thereby failing to indicate the number of salmon they have caught. I believe that the ineffectiveness of this drastic statute, in accomplishing better statistical reporting, fails to meet the test of reasonableness and to have a rational relation to the correction of the evil intended.
The defendants further assert that fishermen possessing a commercial trolling license, who fish in restricted areas or water open to sport salmon fishing only, using “angling” gear, obtain an unfair advantage over other sports fishermen because they are able to exceed the bag limit imposed upon sports fishermen (three fish per day). This assumes that substantially all sports commercial fishermen will disobey the law by exceeding the bag limit for sports fishermen while fishing as sports fishermen in restricted waters. This is unfair to sports commercial fishermen who do obey the law. I agree with the Washington Kelpers Association (plaintiff) that the severe effects of this statute, for the correction of this purported abuse by some sports commercial fishermen, are unreasonable when other alternatives less drastic are available for correcting this purported abuse.
The defendants argue, however, that the sports commercial fishermen wear two hats, one as a sports fisherman and the other as a commercial fisherman; that they fish in restricted waters as sports fishermen in which fixed gear commercial fishermen may not fish commercially, as well as in the nonrestricted areas. The record does not support this argument. Fixed gear fishermen have the same opportunity to fish as sports fishermen in waters closed to commercial fishermen, as do commercial sports fishermen as long as they fish only with sports gear. It is implicit from the record, however, that the fixed gear fishermen do not fish as sports *429fishermen in the closed areas for the obvious reason that a greater take of salmon results with the more efficient fixed gear in the nonrestricted areas.
A conversion of sports commercial fishermen to more efficient fixed gear would thus result in the former sports commercial fishermen likewise staying out of the restricted areas in order to utilize the more efficient gear for the taking and harvesting of a greater number of salmon than by the use of sports gear in the restricted area which, in any event, is limited by law to the taking of three fish per day.
The defendants further contend it is difficult to identify the sports commercial fishermen; that the statute will make identification less difficult, resulting in more efficient enforcement of sports fishing regulations, and in managing the commercial fishing. I agree with the plaintiff that this is not a reasonable and appropriate regulation for the protection and conservation of the salmon fishery. The mere fact that such regulation aids in the identity of commercial boats or aids in the gathering of statistics cannot justifiably convert such a regulation into a valid exercise of police power, which is so detrimental to the sports commercial fishermen, when other reasonable alternatives for identification of a sports commercial fishing boat are obviously available.
Furthermore, as contended by the plaintiff, there is no showing in the record that the commercial fishing for salmon by the use of sports gear is in itself detrimental to the conservation and protection of the salmon fishery. On the other hand, as heretofore stated, it is implicit from the record that by requiring a conversion from “angling” or “personal use” gear to more effective and efficient fixed gear would result in a greater take of mature salmon and a greater destruction of immature salmon; and that such a regulation is not only unreasonable and inappropriate, but is inconsistent with the conservation of the salmon resource.
Again, we should be mindful of the gross discriminatory *430effect of this statute on those fishermen using “angling” gear. As previously discussed, the real effect of this statute is to force out of business many sports commercial fishermen using “angling” gear. Such discrimination detrimentally affecting members of the commercial fishery class, without any reasonable or appropriate justification for such act, transcends the bounds of legitimate police power, and is in contravention of the equal protection and privilege and immunities provisions of our state and federal constitutions.
I cannot reasonably conceive from this record a state of facts to justify the required conversion of sports gear to fixed gear for commercial fishing to accomplish the objective intended by the statute, the conservation of the salmon fishery.
The judgment of the trial court should be affirmed.
Rosellini and Hale, JJ., concur with Hunter, J.
Petition for rehearing denied December 22, 1972.