## Facts

- Commercial gill-net fishermen on the lower Columbia River operated in fishing areas known as “drifts.”
- Members of the Altoona Snag Union pooled funds to remove snags and debris so nets could be used in certain drifts.
- By long local practice, some fishermen claimed exclusive “drift rights” to particular drifts that had been cleared.
- The Union treated ownership of a drift right as the basis for Union membership, required Union approval for transfers, and participants paid consideration for drift rights.
- Drift rights were treated within the fishing community as valuable personal property and were sometimes transferred in probate and divorce proceedings.
- Drift rights were enforced informally, including by “corking” (setting a net so close that another fisherman must pull his net to avoid damage) and other intimidation.
- A dispute arose in 1985 when non-Union fishermen fished in an area Union members claimed was within their exclusive drift rights.
- Union members sued for damages and injunctive relief to stop the nonmembers from fishing in the contested drifts; defendants counterclaimed that the asserted drift rights were not legally valid.

## Issues

1. Whether long-standing local custom and Union practice created legally enforceable property rights in exclusive fishing locations on a navigable river.
2. Whether recognizing exclusive drift rights would conflict with public rights in navigable waters and the state’s statutory authority to regulate fishing and related permits.
3. Whether summary judgment was proper where the factual history of custom and investment was largely undisputed but the claimed right depended on legal recognition.

## Decision

- The Washington Supreme Court affirmed summary judgment for the defendants.
- The court held that the asserted “drift rights” were not legally enforceable property rights and provided no lawful basis to exclude other licensed commercial fishermen from the drifts.
- The court concluded that custom and private arrangements could not create exclusive private control over portions of navigable waters without clear legislative authorization.
- Because plaintiffs lacked any legally cognizable right to exclude others even if their factual assertions were accepted, there was no material issue for trial.

## Legal Principles

- Local custom and usage, without clear statutory authorization, cannot create exclusive private fishing rights in public navigable waters.
- The public’s rights in navigable waters and the state’s regulatory control over fisheries limit private claims that would partition public waters into exclusive use areas.
- Private associations may arrange contributions and internal expectations, but such arrangements do not bind nonmembers or confer enforceable exclusion rights against other lawful users.
- Summary judgment is appropriate when the dispositive issue is the absence of any legal right supporting the plaintiff’s claim, even if the underlying historical facts are not disputed.

## Conclusion

The court refused to recognize the Union’s custom-based “drift rights” as enforceable property interests, holding that they could not be used to exclude other licensed fishermen from navigable waters and that defendants were entitled to judgment as a matter of law.


Marincovich v. Tarabochia, 787 P.2d 562 (Wash. 1990)