S-1644

AN ACT Relating to making corrections to the fish and wildlife enforcement code; amending RCW 75.08.011, 77.08.010, 77.15.030, 77.15.400, 77.15.410, 77.15.430, 77.15.170, 77.15.230, 77.15.460, 77.15.480, 77.15.600, 77.15.190, 77.15.550, 77.15.570, 77.15.670, and 77.16.070; adding a new section to chapter 77.15 RCW; recodifying RCW 77.16.070; repealing RCW 75.25.160, 77.12.101, 77.15.200, 77.16.290, 77.21.020, 77.21.030, and 77.32.094; and prescribing penalties.

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

Sec. 1. RCW 75.08.011 and 1998 c 190 s 70 are each amended to read as follows:

As used in this title or Title 77 RCW or rules adopted under those titles, unless the context clearly requires otherwise:

(1) "Commission" means the fish and wildlife commission.

(2) "Director" means the director of fish and wildlife.

(3) "Department" means the department of fish and wildlife.

(4) "Person" means an individual or a public or private entity or organization. The term "person" includes local, state, and federal government agencies, and all business organizations, including corporations and partnerships.

(5) "Fish and wildlife officer" means a person appointed and commissioned by the commission, with authority to enforce this title, rules of the department, and other statutes as prescribed by the legislature. Fish and wildlife officers are peace officers. Fish and wildlife officer includes a person commissioned before June 11, 1998, as a fisheries patrol officer.

(6) "Ex officio fish and wildlife officer" 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 fish and wildlife officer" also includes special agents of the national marine fisheries service, United States fish and wildlife special agents, state parks commissioned officers, department of natural resources enforcement officers, and United States forest service officers, while the agents and officers are within their respective jurisdictions.

(7) "To fish," "to harvest," and "to take" and their derivatives mean an effort to kill, injure, harass, or catch fish or shellfish.

(8) "State waters" means all marine waters and fresh waters within ordinary high water lines and within the territorial boundaries of the state.

(9) "Offshore waters" means marine waters of the Pacific Ocean outside the territorial boundaries of the state, including the marine waters of other states and countries.

(10) "Concurrent waters of the Columbia river" means those waters of the Columbia river that coincide with the Washington-Oregon state boundary.

(11) "Resident" means a person who has maintained a permanent place of abode within the state for at least ninety days immediately preceding an application for a license, has established by formal evidence an intent to continue residing within the state, and who is not licensed to hunt or fish as a resident in another state.

(12) "Nonresident" means a person who has not fulfilled the qualifications of a resident.

(13) "Food fish" means those species of the classes Osteichthyes, Agnatha, and Chondrichthyes that have been classified and that shall not be fished for except as authorized by rule of the commission. The term "food fish" includes all stages of development and the bodily parts of food fish species.

(14) "Shellfish" means those species of marine and freshwater invertebrates that have been classified and that shall not be taken except as authorized by rule of the commission. The term "shellfish" includes all stages of development and the bodily parts of shellfish species.

(15) "Salmon" means all species of the genus Oncorhynchus, except those classified as game fish in Title 77 RCW, and includes:

Scientific Name Common Name

Oncorhynchus tshawytscha Chinook salmon

Oncorhynchus kisutch Coho salmon

Oncorhynchus keta Chum salmon

Oncorhynchus gorbuscha Pink salmon

Oncorhynchus nerka Sockeye salmon

(16) "Commercial" means related to or connected with buying, selling, or bartering. Fishing for food fish or shellfish with gear unlawful for fishing for personal use, or possessing food fish or shellfish in excess of the limits permitted for personal use are commercial activities.

(17) "To process" and its derivatives mean preparing or preserving food fish or shellfish.

(18) "Personal use" means for the private use of the individual taking the food fish or shellfish and not for sale or barter.

(19) "Angling gear" means a line attached to a rod and reel capable of being held in hand while landing the fish or a hand-held line operated without rod or reel.

(20) "Open season" means those times, manners of taking, and places or waters established by rule of the commission for the lawful fishing, taking, or possession of food fish or shellfish. "Open season" includes the first and last days of the established time.

(21) "Fishery" means the taking of one or more particular species of food fish or shellfish with particular gear in a particular geographical area.

(22) "Limited-entry license" means a license subject to a license limitation program established in chapter 75.30 RCW.

(23) "Seaweed" means marine aquatic plant species that are dependent upon the marine aquatic or tidal environment, and exist in either an attached or free floating form, and includes but is not limited to marine aquatic plants in the classes Chlorophyta, Phaeophyta, and Rhodophyta.

(24) "Fish" includes all species classified as game fish or food fish by statute or rule, as well as all fin fish not currently classified as food fish or game fish if such species exist in state waters. The term "fish" includes all stages of development and the bodily parts of fish species.

(25) "Trafficking" means offering, attempting to engage, or engaging in sale, barter, or purchase of fish, shellfish, wildlife, or deleterious exotic wildlife.

Sec. 2. RCW 77.08.010 and 1998 c 190 s 111 are each amended to read as follows:

As used in this title or Title 75 RCW or rules adopted pursuant to those titles, unless the context clearly requires otherwise:

(1) "Director" means the director of fish and wildlife.

(2) "Department" means the department of fish and wildlife.

(3) "Commission" means the state fish and wildlife 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.

(5) "Fish and wildlife officer" means a person appointed and commissioned by the director, with authority to enforce laws and rules adopted pursuant to this title, and other statutes as prescribed by the legislature. Fish and wildlife officer includes a person commissioned before June 11, 1998, as a wildlife agent.

(6) "Ex officio fish and wildlife officer" 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 fish and wildlife officer" includes special agents of the national marine fisheries service, 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 fish.

(10) "Open season" means those times, manners of taking, and places or waters established by rule of the commission for the lawful hunting, fishing, or possession of game animals, game birds, or game fish that conform to the special restrictions or physical descriptions established by rule of the commission or that have otherwise been deemed legal to hunt, fish, or possess by rule of the commission. "Open season" includes the first and last days of the established time.

(11) "Closed season" means all times, manners of taking, and places or waters other than those established by rule of the commission as an open season. "Closed season" also means all hunting, fishing, or possession of game animals, game birds, or game fish that do not conform to the special restrictions or physical descriptions established by rule of the commission as an open season or that have not otherwise been deemed legal to hunt, fish, or possess by rule of the commission as an open season.

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

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

(14) "Game reserve" means a closed area where hunting for all wild animals and wild birds is prohibited.

(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 as food fish or shellfish by the director. 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 the commission that shall not be hunted or fished.

(20) "Endangered species" means wildlife designated by the commission as seriously threatened with extinction.

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

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

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

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

(25) "Deleterious exotic wildlife" means species of the animal kingdom not native to Washington and designated 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) "Person of disability" means a permanently disabled person who is not ambulatory without the assistance of a wheelchair, crutches, or similar devices.

(28) "Fish" includes all species classified as game fish or food fish by statute or rule, as well as all fin fish not currently classified as food fish or game fish if such species exist in state waters. The term "fish" includes all stages of development and the bodily parts of fish species.

(29) "Trafficking" means offering, attempting to engage, or engaging in sale, barter, or purchase of fish, shellfish, wildlife, or deleterious exotic wildlife.

Sec. 3. RCW 77.15.030 and 1998 c 190 s 4 are each amended to read as follows:

Where it is unlawful to hunt, take, fish, ((or)) possess, or traffic in big game or protected or endangered fish or wildlife, then each individual animal unlawfully taken or possessed is a separate offense.

Sec. 4. RCW 77.15.400 and 1998 c 190 s 9 are each amended to read as follows:

(1) A person is guilty of unlawful hunting of ((~~game~~)) wild birds in the second degree if the person:

(a) Hunts for, takes, or possesses a ((~~game~~)) wild bird and the person does not have and possess all licenses, tags, stamps, and permits required under this title;

(b) Maliciously destroys, takes, or harms the eggs or nests of a game bird except when authorized by permit; ((or))

(c) Violates any rule of the commission or director regarding seasons, bag or possession limits but less than two times the bag or possession limit, closed areas ((~~including game reserves~~)), closed times, or other rule addressing the manner or method of hunting or possession of ((~~game~~)) wild birds; or

(d) Possesses a wild bird taken during a closed season for that wild bird or taken from a closed area for that wild bird.

(2) A person is guilty of unlawful hunting of ((~~game~~)) wild birds in the first degree if the person ((~~hunts game birds and the person~~)) takes or possesses two times or more than the possession or bag limit for ((~~such~~)) game birds allowed by rule of the commission or director.

(3)(a) Unlawful hunting of ((~~game~~)) wild birds in the second degree is a misdemeanor.

(b) Unlawful hunting of ((~~game~~)) wild birds in the first degree is a gross misdemeanor.

Sec. 5. RCW 77.15.410 and 1998 c 190 s 10 are each amended to read as follows:

(1) A person is guilty of unlawful hunting of big game in the second degree if the person:

(a) Hunts for, takes, or possesses big game and the person does not have and possess all licenses, tags, or permits required under this title; ((or))

(b) Violates any rule of the commission or director regarding seasons, bag or possession limits, closed areas including game reserves, closed times, or any other rule governing the hunting, taking, or possession of big game; or

(2) A person is guilty of unlawful hunting of big game in the first degree if the person was previously convicted of any crime under this title involving unlawful hunting, killing, possessing, or taking big game, and within five years of the date that the prior conviction was entered the person:

(a) Hunts for big game and((:

~~(a) The person~~)) does not have and possess all licenses, tags, or permits required under this title; ((or))

(b) ((~~The act was~~)) Acts in violation of any rule of the commission or director regarding seasons, bag or possession limits, closed areas including game reserves, or closed times; or

(3)(a) Unlawful hunting of big game in the second degree is a gross misdemeanor.

(b) Unlawful hunting of big game in the first degree is a class C felony. Upon conviction, the department shall revoke all licenses or tags involved in the crime and the department shall order the person's hunting privileges suspended for two years.

Sec. 6. RCW 77.15.430 and 1998 c 190 s 11 are each amended to read as follows:

(1) A person is guilty of unlawful hunting of ((~~game~~)) wild animals in the second degree if the person:

(a) Hunts for, takes, or possesses a ((~~game~~)) wild animal that is not classified as big game, and does not have and possess all licenses, tags, or permits required by this title; ((or))

(b) Violates any rule of the commission or director regarding seasons, bag or possession limits but less than two times the bag or possession limit, closed areas including game reserves, closed times, or other rule addressing the manner or method of hunting or possession of ((~~game~~)) wild animals not classified as big game; or

(c) Possesses a wild animal that is not classified as big game taken during a closed season for that wild animal or from a closed area for that wild animal.

(2)((~~(a)~~)) A person is guilty of unlawful hunting of ((~~game~~)) wild animals in the first degree if the person ((~~hunts a game animal that is not classified as big game; and~~

~~(b) The person~~)) takes or possesses two times or more than the possession or bag limit for ((~~such game~~)) wild animals that are not classified as big game animals as allowed by rule of the commission or director.

(3)(a) Unlawful hunting of ((~~game~~)) wild animals in the second degree is a misdemeanor.

(b) Unlawful hunting of ((~~game~~)) wild animals in the first degree is a gross misdemeanor.

Sec. 7. RCW 77.15.170 and 1998 c 190 s 21 are each amended to read as follows:

(1) A person is guilty of waste of fish and wildlife in the second degree if:

(a) The person kills, takes, or possesses fish, shellfish, or wildlife and the value of the fish, shellfish, or wildlife is greater than twenty dollars but less than two hundred fifty dollars; and

(b) The person recklessly allows such fish, shellfish, or wildlife to be wasted.

(2) A person is guilty of waste of fish and wildlife in the first degree if:

(a) The person kills, takes, or possesses ((~~food~~)) fish, shellfish, ((~~game fish, game birds,~~)) or ((~~game animals~~)) wildlife having a value of two hundred fifty dollars or more or wildlife classified as big game; and

(b) The person recklessly allows such fish, shellfish, or wildlife to be wasted.

(3)(a) Waste of fish and wildlife in the second degree is a misdemeanor.

(b) Waste of fish and wildlife in the first degree is a gross misdemeanor. Upon conviction, the department shall revoke any license or tag used in the crime and shall order suspension of the person's privileges to engage in the activity in which the person committed waste of fish and wildlife in the first degree for a period of one year.

(4) It is prima facie evidence of waste if a processor purchases or engages a quantity of food fish, shellfish, or game fish that cannot be processed within sixty hours after the food fish or shellfish are taken from the water, unless the food fish or shellfish are preserved in good marketable condition.

Sec. 8. RCW 77.15.230 and 1998 c 190 s 26 are each amended to read as follows:

(1) A person is guilty of unlawful use of department lands or facilities if the person enters upon, uses, or remains upon department-owned or department-controlled lands or facilities in violation of any rule of the department.

(2) Unlawful use of department lands or facilities is a misdemeanor.

Sec. 9. RCW 77.15.460 and 1998 c 190 s 28 are each amended to read as follows:

(1) A person is guilty of unlawful possession of a loaded firearm in a motor vehicle if:

(a) The person carries, transports, conveys, possesses, or controls a rifle or shotgun in or on a motor vehicle; and

(b) The rifle or shotgun contains shells or cartridges in the magazine or chamber, or is a muzzle-loading firearm that is loaded and capped or primed.

(2) A person is guilty of unlawful use of a loaded firearm if the person negligently shoots a firearm from, across, or along the maintained portion of a public highway.

(3) Unlawful possession of a loaded firearm in a motor vehicle or unlawful use of a loaded firearm is a misdemeanor.

(4) This section does not apply if the person:

(a) Is a law enforcement officer who is authorized to carry a firearm and is on duty within the officer's respective jurisdiction;

(b) Possesses a disabled hunter's permit as provided by RCW 77.32.237 and complies with all rules of the department concerning hunting by persons with disabilities.

(5) For purposes of this section, a firearm shall not be considered loaded if the detachable clip or magazine is not inserted in or attached to the firearm.

Sec. 10. RCW 77.15.480 and 1980 c 78 s 27 are each amended to read as follows:

Articles or devices unlawfully used, possessed, or maintained for catching, taking, killing, attracting, or decoying wildlife are public nuisances. If necessary, ((~~wildlife agents and ex officio wildlife agents~~)) fish and wildlife officers and ex officio fish and wildlife officers may seize, abate, or destroy these public nuisances without warrant or process.

Sec. 11. RCW 77.15.600 and 1998 c 190 s 32 are each amended to read as follows:

(1) A person is guilty of engaging in commercial wildlife activity without a license if the person:

(a) Deals in raw furs for commercial purposes and does not hold a fur dealer license required by chapter 77.32 RCW; or

(b) Practices taxidermy for ((~~profit~~)) commercial purposes and does not hold a taxidermy license required by chapter 77.32 RCW((~~; or~~

~~(c) Operates a game farm without a license required by chapter 77.32 RCW~~)).

(2) Engaging in commercial wildlife activities without a license is a gross misdemeanor.

Sec. 12. RCW 77.15.190 and 1998 c 190 s 34 are each amended to read as follows:

(1) A person is guilty of unlawful trapping if the person:

(a) Sets out traps that are capable of taking wild animals, game animals, or furbearing mammals and does not possess all licenses, tags, or permits required under this title; ((or))

(c) Fails to identify the owner of the traps or devices by neither (i) attaching a metal tag with the owner's department-assigned identification number or the name and address of the trapper legibly written in numbers or letters not less than one-eighth inch in height nor (ii) inscribing into the metal of the trap such number or name and address.

(2) Unlawful trapping is a misdemeanor.

Sec. 13. RCW 77.15.550 and 1998 c 190 s 40 are each amended to read as follows:

(1) A person is guilty of violating commercial fishing area or time in the second degree if the person acts for commercial purposes and takes, fishes for, possesses, delivers, or receives food fish or shellfish:

(a) At a time not authorized by statute or rule; ((or))

(b) From an area that was closed to the taking of such food fish or shellfish for commercial purposes by statute or rule; or

(c) If such fish or shellfish do not conform to the special restrictions or physical descriptions established by rule of the department.

(2) A person is guilty of violating commercial fishing area or time in the first degree if the person commits the act described by subsection (1) of this section and:

(a) The person acted with knowledge that the area or time was not open to the taking or fishing of food fish or shellfish for commercial purposes; and

(b) The violation involved two hundred fifty dollars or more worth of food fish or shellfish.

(3)(a) Violating commercial fishing area or time in the second degree is a gross misdemeanor.

(b) Violating commercial fishing area or time in the first degree is a class C felony.

Sec. 14. RCW 77.15.570 and 1998 c 190 s 49 are each amended to read as follows:

(1) Except as provided in subsection (3) of this section, it is unlawful for a person who is not a treaty Indian fisherman to participate in the taking of fish or shellfish in a treaty Indian fishery, or to be on board a vessel, or associated equipment, operating in a treaty Indian fishery. A violation of this subsection is a gross misdemeanor.

(2) A person who violates subsection (1) of this section with the intent of acting for commercial purposes, including any sale of catch, control of catch, profit from catch, or payment for fishing assistance, is guilty of a class C felony. Upon conviction, the department shall order revocation of any license and a one-year suspension of all commercial fishing privileges requiring a license under chapter 75.28 or 75.30 RCW.

(3)(a) The spouse, forebears, siblings, children, and grandchildren of a treaty Indian fisherman may assist the fisherman in exercising treaty Indian fishing rights when the treaty Indian fisherman is present at the fishing site and the assistance is authorized in writing by the treaty fisherman's tribe.

(b) Other treaty Indian fishermen with off-reservation treaty fishing rights in the same usual and accustomed places, whether or not the fishermen are members of the same tribe or another treaty tribe, may assist a treaty Indian fisherman in exercising treaty Indian fishing rights when the treaty Indian fisherman is present at the fishing site.

(4) For the purposes of this section:

(a) "Treaty Indian fisherman" means a person who may exercise treaty Indian fishing rights as determined under United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), or Sohappy v. Smith, 302 F. Supp. 899 (D. Oregon 1969), and post-trial orders of those courts;

(b) "Treaty Indian fishery" means a fishery open to only treaty Indian fishermen by tribal or federal regulation;

(c) "To participate" and its derivatives mean an effort to operate a vessel or fishing equipment, provide immediate supervision in the operation of a vessel or fishing equipment, or otherwise assist in the fishing operation, to claim possession of a share of the catch, or to represent that the catch was lawfully taken in an Indian fishery.

(5) A violation of this section constitutes illegal fishing and is subject to the suspensions provided for commercial fishing violations.

Sec. 15. RCW 77.15.670 and 1998 c 190 s 60 are each amended to read as follows:

(1) A person is guilty of ((~~unlawful hunting or fishing when~~)) violating a suspension of department privileges ((~~are revoked or suspended~~)) in the second degree if the person ((~~hunts or fishes and the person's privilege to engage in such hunting or fishing~~)) engages in any activity that is licensed by the department and the person's privileges to engage in that activity were revoked or suspended by any court or the department.

(2) A person is guilty of ((~~unlawful hunting or fishing when~~)) violating a suspension of department privileges ((~~are revoked or suspended~~)) in the first degree if the person commits the act described by subsection (1) of this section and:

(a) The suspension of privileges that was violated was a permanent suspension;

(b) The person takes or possesses more than two hundred fifty dollars' worth of unlawfully taken food fish, wildlife, game fish, seaweed, or shellfish; or

(c) The violation involves the hunting, taking, or possession of fish or wildlife classified as endangered or threatened or big game.

(3)(a) ((~~Unlawful hunting or fishing when~~)) Violating a suspension of department privileges ((~~are revoked or suspended~~)) in the second degree is a gross misdemeanor. Upon conviction, the department shall order permanent suspension of the person's privileges to engage in such hunting or fishing activities.

(b) ((~~Unlawful hunting or fishing when~~)) Violating a suspension of department privileges ((~~are revoked or suspended~~)) in the first degree is a class C felony. Upon conviction, the department shall order permanent suspension of all privileges to hunt, fish, trap, or take wildlife, food fish, or shellfish.

(4) As used in this section, hunting includes trapping with a trapping license.

Sec. 16. RCW 77.16.070 and 1980 c 78 s 75 are each amended to read as follows:

((~~It is unlawful to hunt~~)) (1) A person is guilty of hunting while under the influence of intoxicating liquor or drugs if the person hunts wild animals or wild birds while under the influence of intoxicating liquor or drugs.

(2) Hunting while under the influence of intoxicating liquor or drugs is a gross misdemeanor.

NEW SECTION. Sec. 17. RCW 77.16.070 is recodified as a new section in chapter 77.15 RCW.

NEW SECTION. Sec. 18. The following acts or parts of acts are each repealed:

(1) RCW 75.25.160 (Recreational licenses--Penalties) and 1989 c 305 s 15, 1987 c 87 s 8, 1984 c 80 s 10, 1983 1st ex.s. c 46 s 100, & 1977 ex.s. c 327 s 16;

(2) RCW 77.12.101 (Seizure of contraband wildlife and devices--Forfeiture) and 1989 c 314 s 2;

(3) RCW 77.15.200 (Furbearing animal traps--Failure to identify--Penalty) and 1998 c 190 s 23;

(4) RCW 77.16.290 (Law enforcement officers, exemption) and 1994 sp.s. c 7 s 444, 1980 c 78 s 95, & 1955 c 36 s 77.16.290;

(5) RCW 77.21.020 (Revocation of hunting license for big game violation--Subsequent issuance--Appeal) and 1998 c 191 s 35, 1987 c 506 s 70, 1980 c 78 s 124, & 1975 1st ex.s. c 6 s 1;

(6) RCW 77.21.030 (Revocation for shooting person or livestock--Subsequent issuance) and 1998 c 191 s 36, 1987 c 506 s 71, 1980 c 78 s 123, & 1955 c 36 s 77.32.280; and

(7) RCW 77.32.094 (Validity of licenses issued by department of fisheries and department of wildlife) and 1994 c 255 s 14.