AN ACT Relating to endangered species; amending RCW 77.08.010, 77.12.020, 77.21.010, 77.16.040, and 77.16.120; adding a new chapter to Title 77 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. Section 77.08.010, chapter 36, Laws of 1955 as amended by section 9, chapter 78, Laws of 1980 and RCW 77.08.010 are each amended to read as follows:

As used in this title or rules of the commission, unless the context clearly requires otherwise:

(1) "Director" means the director of game.

(2) "Department" means the department of game.

(3) "Commission" means the state game commission.

(4) "Person" means and includes an individual, a corporation, or a group of two or more individuals acting with a common purpose whether acting in an individual, representative, or official capacity, company, association, society, firm, partnership, joint stock company, and any department or instrumentality of the federal government, of any state or political subdivision thereof, or of any foreign government.

(5) "Wildlife agent" means a person appointed and commissioned by the director, with authority to enforce laws of this title, rules of the commission, and other statutes as prescribed by the legislature.

(6) "Ex officio wildlife agent" means a commissioned officer of a municipal, county, state, or federal agency having as its primary function the enforcement of criminal laws in general, while the officer is in the appropriate jurisdiction. The term "ex officio wildlife agent" includes fisheries patrol officers, special agents of the national marine fisheries commission, state parks commissioned officers, United States fish and wildlife special agents, department of natural resources enforcement officers, and United States forest service officers, while the agents and officers are within their respective jurisdictions.

(7) "To hunt" and its derivatives means an effort to kill, injure, capture, or harass a wild animal or wild bird.

(8) "To trap" and its derivatives means a method of hunting using devices to capture wild animals or wild birds.

(9) "To fish" and its derivatives means an effort to kill, injure, harass, or catch a game fish.

(10) "Open season" means those times, manners of taking, and areas or waters established by rule of the commission for the lawful hunting, fishing, or possession of game animals, game birds, or game fish. "Open season" includes the first and last days of the established time.

(11) "Closed season" means all times, manners of taking, and areas or waters other than those established as an open season.

(12) "Closed area" means a place where the commission has prohibited by rule the hunting of some species of wild animals or wild birds.

(13) "Closed waters" means all or part of a lake, river, stream, or other body of water, where the commission has prohibited by rule fishing for game fish.

(14) "Game reserve" means a closed area where the commission has prohibited by rule hunting for all wild animals and wild birds.

(15) "Bag limit" means the maximum number of game animals, game birds, or game fish which may be taken, caught, killed, or possessed by a person, as specified by rule of the commission for a particular period of time, or as to size, sex, or species.

(16) "Wildlife" means all species of the animal kingdom whose members exist in Washington in a wild state. This includes but is not limited to mammals, birds, reptiles, amphibians, fish, and invertebrates. The term "wildlife" does not include feral domestic mammals, the family Muridae of the order Rodentia (old world rats and mice), or those fish, shellfish, and marine invertebrates classified by the director of fisheries. The term "wildlife" includes all stages of development and the bodily parts of wildlife members.

(17) "Wild animals" means those species of the class Mammalia whose members exist in Washington in a wild state and the species Rana catesbeiana (bullfrog). The term "wild animal" does not include feral domestic mammals or the family Muridae of the order Rodentia (old world rats and mice).

(18) "Wild birds" means those species of the class Aves whose members exist in Washington in a wild state.

(19) "Protected wildlife" means wildlife designated by rule of the commission that shall not be hunted or fished.

(20) "Endangered species" means ((~~wildlife designated by rule of the commission as seriously threatened with extinction~~)) any animal species that is in danger of extinction or extirpation throughout all or a significant portion of its range within the state, and any species determined to be an "endangered species" under the federal endangered species act.

(21) "Game animals" means wild animals that shall not be hunted except as authorized by rule of the commission.

(22) "Fur-bearing animals" means game animals that shall not be trapped except as authorized by rule of the commission.

(23) "Game birds" means wild birds that shall not be hunted except as authorized by rule of the commission.

(24) "Predatory birds" means wild birds that may be hunted throughout the year as authorized by rule of the commission.

(25) "Deleterious exotic wildlife" means species of the animal kingdom not native to Washington and designated by rule of the commission as dangerous to the environment or wildlife of the state.

(26) "Game farm" means property on which wildlife is held or raised for commercial purposes, trade, or gift. The term "game farm" does not include publicly owned facilities.

(27) "Conserve," "conserving," and "conservation" mean to use and the use of all methods and procedures that are necessary to bring any species to the point at which the measures provided under this chapter, chapter 77.-- RCW (sections 4 through 17 of this 1986 act), and chapter 79.-- RCW (sections 18 through 29 of this 1986 act) are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, and transplantation.

(28) "Endangered species act" means the federal endangered species act of 1973, Public Law 93-205 (87 Stat. 884), including any subsequent amendments to that act.

(29) "Species" means any species or subspecies of animal and includes any distinct population segment of any animal.

(30) "Take" with respect to animals means to capture, collect, destroy, ensnare, gig, harass, harm, hunt, kill, lure, pursue, shoot, spear, trap, wound, or to attempt to engage in any such conduct.

(31) "Threatened species" means any animal species likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range within the state, and, except for species determined by the commission to be endangered species, any species determined to be a "threatened species" under the federal endangered species act.

NEW SECTION. Sec. 2. The legislature finds and declares that species of wildlife within this state and the nation that are endangered, threatened, or otherwise reduced in number or may become so because of destruction, modification, or severe curtailment of their habitats, or because of exploitation for commercial, scientific, educational, or private uses, should be afforded protection as is necessary to maintain and enhance their numbers.

The purpose of this chapter is to provide a program for the conservation of endangered and threatened species by prohibiting the taking, possession, transportation, exportation from this state, processing, sale or offer for sale, or shipment within this state of endangered and threatened species.

It is the policy of this state to conserve endangered and threatened species of wildlife for human enjoyment, for scientific purposes, and to ensure their perpetuation as viable components of their ecosystems.

NEW SECTION. Sec. 3. (1) In addition to those species determined to be endangered or threatened under the endangered species act, the commission shall by rule, in accordance with the administrative procedure act, chapter 34.04 RCW, determine whether any species within the state is an endangered or threatened species as a result of any one of the following factors:

(a) The present or threatened destruction, modification, or curtailment of its habitat or range;

(b) Overuse for commercial, recreational, scientific, educational, or private purposes;

(d) The inadequacy of existing regulatory mechanisms affecting its continued existence within the state; or

(e) Other natural or manmade factors affecting its continued existence within the state.

(2) The commission shall make determinations required by this section solely on the basis of the best scientific information available and after consultation, as appropriate, with federal agencies, other interested state agencies having a common interest in the species, and interested persons and organizations. In determining whether any species is endangered or threatened, the commission shall take into consideration any actions being carried out or about to be carried out by the federal government, other state agencies, or political subdivisions of this state, or by any other person that may affect the species under consideration.

NEW SECTION. Sec. 4. (1) The commission shall conduct investigations of all species indigenous to this state wherever they occur in order to develop information relating to population, distribution, habitat needs, limiting factors, and other biological and ecological data, and to determine conservation measures and requirements necessary for their survival.

(2) The commission may, at its discretion, withhold from any person information about the distribution, location, and biology of a species if it determines that disclosures of such information would threaten the survival of that or another species in any way.

NEW SECTION. Sec. 5. (1) The commission shall within one year issue rules containing an initial list of all species within the state that it determines, in accordance with sections 3 and 4 of this act, to be endangered species and threatened species and shall periodically revise and amend the list. The list shall refer to the species contained therein by scientific and common name or names, if any. In cases where a conflict exists between common and scientific names, the scientific name shall prevail, and all valid scientific synonyms will be construed to refer to the listed animal.

(2) In accordance with sections 3 and 4 of this act, the commission shall review every five years those species listed as endangered or threatened to determine whether any such species should:

(a) Be removed from the list of endangered species and threatened species;

(b) Be changed in status from an endangered species to a threatened species; or

(3) Review of species that are listed by both the commission under this chapter and the United States department of the interior pursuant to the federal endangered species act shall, to the maximum extent practicable, be conducted in conjunction with the five-year review process of the United States department of the interior.

NEW SECTION. Sec. 6. The commission shall expeditiously determine whether any species should be added to or removed from the list of threatened or endangered species, except with respect to those species determined to be endangered or threatened under the federal endangered species act, upon the presentation of substantial evidence in the petition of any interested party. The commission shall issue regulations implementing this section.

NEW SECTION. Sec. 7. (1) Notwithstanding sections 3 through 6 of this act, the commission shall adopt a rule that adds a species to the list of endangered species and threatened species as an emergency rule if it determines that there is a significant threat to the continued existence of the species within the state.

(2) Adoption of the emergency rule shall follow the procedures prescribed in the administrative procedure act, chapter 34.04 RCW.

NEW SECTION. Sec. 8. The commission may, by rule, treat any species as an endangered species or threatened species even though it is not listed under section 3 of this act if it finds that:

(1) The species so closely resembles in appearance a species that is listed that enforcement personnel would have substantial difficulty in attempting to differentiate between the listed and unlisted species;

(2) The effect of this substantial difficulty is an additional threat to an endangered species or threatened species; and

(3) Such treatment of an unlisted species will substantially facilitate the enforcement and further the intent and policy of this chapter.

NEW SECTION. Sec. 9. The commission shall establish programs necessary for the conservation of endangered species and threatened species, and shall use all vested authority to carry out the provisions of this chapter. The commission may issue rules pursuant to chapter 34.04 RCW necessary to carry out the provisions and purposes of this chapter.

NEW SECTION. Sec. 10. (1) All state departments and agencies, in consultation with and with the assistance of the commission, shall use their authorities to further the purposes of this chapter by carrying out programs for the conservation of endangered species and threatened species, and by taking actions necessary to ensure that any action authorized, funded, or carried out by them will not appreciably reduce the likelihood of the survival or recovery of any endangered species or threatened species within the state.

(2) Consultation under this section shall be conducted whenever the commission determines that a state agency's proposed action may affect an endangered species or threatened species. On the basis of such consultation and the best scientific and commercial data available, the commission shall issue a written finding that indicates whether the proposed action would appreciably reduce the likelihood of the survival or recovery of the species in the state. If the commission concludes that the proposed action would appreciably reduce the likelihood of the survival or recovery of the species, it shall specify reasonable and prudent alternatives to the proposed project that can be implemented and are consistent with conserving the species, and the state agency shall adopt such reasonable and prudent alternatives.

(3) A state agency may apply for an exemption for such action from the governor if:

(a) There are no reasonable and prudent alternatives that can be implemented; and

(b) The action will not appreciably reduce the likelihood of the survival or recovery of the affected species.

(4) The governor shall approve an application for an exemption only if the governor finds that:

(a) The state agency did not make an irreversible or irretrievable commitment of resources after initiation of consultation that has the effect of foreclosing the opportunity for formulating and implementing reasonable and prudent alternatives that will not appreciably reduce the likelihood of the survival or recovery of the species in the state;

(b) The benefits of the action clearly outweigh the benefits of alternative courses of action that will not appreciably reduce the likelihood of the survival or recovery of the species; and

(c) The state agency will require reasonable mitigation and enhancement measures as are necessary and appropriate to minimize the adverse impacts of the action upon the species, including but not limited to, propagation, transplantation, habitat acquisition, restoration, and improvement.

(5) If, after consultation under subsection (2) of this section, the commission concludes that the state agency's proposed action would not appreciably reduce the likelihood of the survival or recovery of an endangered species or threatened species but would result in the incidental taking of such species, the commission shall provide the state agency with a written statement that:

(a) Identifies the impact of such incidental taking on the species;

(b) Identifies those reasonable and prudent measures and alternatives that can be implemented to minimize the impact of the incidental taking on the species; and

(c) Sets forth the terms and conditions, including but not limited to reporting requirements, that must be complied with by the state agency to implement the measures specified under subsection (5)(b) of this section.

(6) The state agency shall implement such reasonable and prudent measures and alternatives, and any taking that is in compliance with the alternatives and measures specified under this subsection shall not be prohibited by this chapter.

NEW SECTION. Sec. 11. (1) Except as provided in subsections (2) and (3) of this section and section 12 of this act, it is unlawful for any person to:

(a) Take any endangered or threatened wildlife species or nest thereof within the state; or

(b) Possess, sell or offer for sale, import, export, deliver, receive, carry, transport, or ship, in intrastate or interstate commerce, by any means whatsoever, any endangered or threatened species or products thereof.

(2) Nothing in this chapter, or any rules adopted under it, with respect to the importation or exportation of, or interstate or foreign commerce in, any endangered species or threatened species, may (a) prohibit what is authorized under an exemption or permit provided for by the federal endangered species act or in any rule implementing that act, or (b) permit what is prohibited by the federal endangered species act or by any rule that implements that act.

(3) Nothing in this chapter or any rules adopted under it may prohibit entry into, or transportation through, this state of any endangered species or threatened species in accordance with the terms of any permit issued under the laws of another state.

(4) Nothing in this chapter or any rules adopted under it, applies to:

(a) Any raptor legally held in captivity or in a controlled environment on the effective date of this act; or

(b) Any progeny of any raptor described in (a) of this subsection until such time as any such raptor is intentionally returned to a wild state.

(5) Any person holding any raptor or progeny described in subsection (4) (a) or (b) of this section must be able to demonstrate that the raptor or progeny does in fact, qualify under this section and shall maintain and submit to the department, on request, such inventories, documentation, and records as the department may by regulation require as being reasonably appropriate to carry out the purposes of this section. Such requirements shall not unnecessarily duplicate the requirements of other rules and regulations promulgated by the commission.

NEW SECTION. Sec. 12. (1) The commission may permit, under such terms and conditions as it shall prescribe, any act otherwise prohibited by section 11 of this act for scientific purposes that will enhance the propagation or survival of the affected species.

(2) The commission may permit, under such terms and conditions as it shall prescribe, any taking otherwise prohibited by section 11 of this act if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. No permit may be issued by the commission authorizing any incidental taking unless the applicant therefor submits to the commission a conservation plan that specifies:

(a) The impact that will likely result from such taking;

(b) What steps the applicant will take to minimize and mitigate such impacts, and the funding that will be available to implement such steps;

(c) What alternative actions to such taking the applicant considered and the reasons why such alternatives are not being considered; and

(d) Such other measures that the commission may require as being necessary or appropriate for the purposes of the plan.

(3) The commission may issue such permit only if it finds that reasonable and prudent measures and alternatives will be implemented so that the proposed action will not appreciably reduce the likelihood of the recovery of the species in the state and if the applicant has obtained written consent from the owner of the land upon which the species occurs and from any person having a bona fide property interest therein. The commission shall:

(a) Specify the impact of such incidental taking on the species;

(b) Specify reasonable and prudent measures and alternatives that can be implemented so that the proposed action will not appreciably reduce the likelihood of the recovery of the species in the state; and

(c) Set forth the terms and conditions, including but not limited to reporting requirements, with which the applicant must comply to implement the measures and alternatives specified under (b) of this subsection.

(4) The applicant shall implement such reasonable and prudent measures and alternatives through an adequately funded conservation plan, and the commission shall revoke any permit issued under this subsection if it finds that the permittee is not complying with the terms and conditions of the permit.

NEW SECTION. Sec. 13. Any person who violates the provisions of this chapter or any rules adopted under it, or who fails to procure any permit required under section 12 of this act, or who violates the terms of any such permit shall be punished in accordance with RCW 77.21.010.

Sec. 14. Section 77.16.240, chapter 36, Laws of 1955 as last amended by section 1, chapter 31, Laws of 1982 and RCW 77.21.010 are each amended to read as follows:

(1) A person violating RCW 77.16.040, 77.16.050, 77.16.060, 77.16.080, 77.16.210, 77.16.220, 77.16.310, 77.16.320, or 77.32.211, or chapter 77.-- RCW (sections 2 through 13, 15, and 16 of this 1986 act), or committing a violation of RCW 77.16.020 or 77.16.120 involving big game or ((an)) a threatened or endangered species is guilty of a gross misdemeanor and shall be punished by a fine of not less than two hundred fifty dollars and not more than one thousand dollars or by imprisonment in the county jail for not less than thirty days and not more than one year or by both the fine and imprisonment. Each subsequent violation within a five-year period of RCW 77.16.040, 77.16.050, or 77.16.060, or of RCW 77.16.020 or 77.16.120 involving big game or an endangered species, as defined by the Washington state game commission under the authority of RCW 77.04.090, shall be prosecuted and punished as a class C felony as defined in RCW 9A.20.020. In connection with each such felony prosecution, the director shall provide the court with an inventory of all articles or devices seized under this title in connection with the violation. Inventoried articles or devices shall be disposed of pursuant to RCW 77.21.040.

(2) A person violating or failing to comply with this title or a rule of the commission for which no penalty is otherwise provided is guilty of a misdemeanor and shall be punished for each offense by a fine of not less than twenty-five dollars or by imprisonment for not more than ninety days in the county jail or by both the fine and imprisonment.

(3) Persons convicted of a violation shall pay the costs of prosecution and the penalty assessment in addition to the fine or imprisonment.

(4) The unlawful killing, taking, or possession of each wildlife member constitutes a separate offense.

(5) District courts have jurisdiction concurrent with the superior courts of misdemeanors and gross misdemeanors committed in violation of this title or rules of the commission and may impose the punishment provided for these offenses. Superior courts have jurisdiction over felonies committed in violation of this title.

NEW SECTION. Sec. 15. (1) Any person may commence a civil suit on his or her own behalf:

(a) To enjoin any person, including the United States and any other government instrumentality or agency, to the extent permitted by applicable law, who is alleged to be in violation of any provision of this chapter or any rule adopted under it;

(b) To compel the commission to apply the prohibitions set forth in or authorized in section 11(1) of this act with respect to the taking of any endangered species or threatened species within this state; or

(c) Against the commission where there is alleged a failure of the commission to perform any act or duty that is not discretionary with the commission.

(2) No action may be commenced under this section before ten days after the commission has received written notice of any alleged violation or alleged failure to enforce the provisions of this chapter or any rule adopted under it.

NEW SECTION. Sec. 16. This chapter shall be known and may be cited as the "endangered wildlife conservation act."

Sec. 17. Section 77.12.020, chapter 36, Laws of 1955 as last amended by section 13, chapter 78, Laws of 1980 and RCW 77.12.020 are each amended to read as follows:

(1) The commission shall investigate the habits and distribution of the various species of wildlife native to or adaptable to the habitats of the state. The commission shall determine whether a species should be managed by the department and, if so, classify it under this section.

(2) The commission may classify by rule wild animals as game animals and game animals as fur-bearing animals.

(3) The commission may classify by rule wild birds as game birds or predatory birds. All wild birds not otherwise classified are protected wildlife.

(4) In addition to those species listed in RCW 77.08.020, the commission may classify by rule as game fish other species of the class Osteichthyes that are commonly found in fresh water except those classified as food fish by the director of fisheries.

(5) If the commission determines that a species of wildlife should not be hunted or fished, the commission may designate it protected wildlife by rule.

(6) ((~~If the commission determines that a species of wildlife is seriously threatened with extinction in the state of Washington, the commission may designate it an endangered species by rule.~~

~~(7)~~)) If the commission determines that a species of the animal kingdom not native to Washington is dangerous to the environment or wildlife of the state, the commission may designate it deleterious exotic wildlife by rule.

Sec. 18. Section 77.16.040, chapter 36, Laws of 1955 as last amended by section 72, chapter 78, Laws of 1980 and RCW 77.16.040 are each amended to read as follows:

Except as authorized by law or rule of the commission, it is unlawful to bring into this state, offer for sale, sell, possess, exchange, buy, transport, or ship wildlife ((~~or articles made from an endangered species~~)). It is unlawful for a common or contract carrier knowingly to ship or receive wildlife for shipment ((~~wildlife or articles made from an endangered species~~)).

Sec. 19. Section 77.16.120, chapter 36, Laws of 1955 as amended by section 81, chapter 78, Laws of 1980 and RCW 77.16.120 are each amended to read as follows:

Except as authorized by rule of the commission, it is unlawful to take, hunt, fish for, possess, or control protected wildlife((~~, or endangered species~~)) or to destroy or possess the nests or eggs of game birds or protected wildlife.

NEW SECTION. Sec. 20. Sections 2 through 13, 15, and 16 of this act shall constitute a new chapter in Title 77 RCW.