Mr. Ivan Urnovitz and Mr. Vernon Young
Northwest Mining Association
10 North Post Street, Suite 414
Spokane, Washington 99201-0772
| Re: RCW 34.05.330(3) appeal of the June 26, 2000 denial by the Washington Fish and Wildlife Commission ("Commission") of that certain Petition for Reconsideration to Amend or Repeal Provisions of the "Gold & Fish Rule" to Deregulate Gold Panning Activities and Other Purposes ("Petition"), dated May 12, 2000 |
Thank you for your letter dated July 25, 2000 and received by my
office on July 26, 2000, appealing the Commission's decision to
deny the Petition.
Pursuant to RCW 34.05.330(3), I have fully reviewed your appeal
of the Petition and the relevant statutes and regulations, and
have affirmed the Commission's decision.
It is my policy to intervene in matters presented to me under RCW 34.05.330(3) only when I believe the agency or commission whose
decision is at issue has abused its discretion or acted
arbitrarily or capriciously. It is also my policy not to
second-guess the thoughtful and deliberate decisions of a state
agency or commission, so long as those decisions are well founded
and proper under the law. This is an extremely high standard of
review.
The Commission had a proper basis for is decision to deny the
Petition for the reasons described below. I have responded to
each of your arguments in turn:
1. Hand-held pan exemption: You argued that the Commission
failed respond to your point that hand-held pans are not
regulated by the states of Idaho or Oregon. Whether or not these
states regulate this form of prospecting is immaterial to the
Commission's or the Washington Department of Fish and Wildlife's
("WDFW") authority to do so, and therefore that objection is not
relevant.
I understand that individual gold pans must each have a very
small impact on the environment. However, I am not in a position
to judge the cumulative effect of all small scale panning in a
particular stream. Because RCW 75.20.330 explicitly includes
pans in its definition of methods used for "small scale
prospecting and mining," WDFW is authorized to regulate their
use.
2. Authority to regulate activities above the ordinary high water
line: WDFW is authorized by the former RCW 75.20.100(1)
(recently recodified in Chapter 77 RCW) to review and approve or
deny "any form of hydraulic project or ... other work that will
use, divert, obstruct, or change the natural flow or bed of any
of the salt or fresh waters of the state." The statute does not
limit this authority to areas below ordinary high water or any
other water/land boundary. Accordingly, WDFW is clearly
authorized to regulate activity outside the ordinary high water
line. WDFW is to base its regulatory decisions on "the proper
protection of fish life." It appears from the quoted language in
your letter that you misread the statute.
As with gold panning, applying common sense, I understand your
point that it is difficult to see how one individual working with
a shovel more than 200 feet beyond the ordinary high water line
might affect the natural flow or bed of a stream. Similarly
applying common sense, however, it is also easy to understand how
the cumulative effect of one or several people working along a
stream, over time, could materially affect the flow of sediment
into a stream and affect fish life.
Please note that the Gold and Fish pamphlet allows exceptions to
its restrictions if parties seek a standard Hydraulic Project
Approval; thus, activities in the 200 feet beyond the ordinary
high water line are not precluded but simply require additional
consideration. I urge you to seek an exception if you have an
appropriate project in mind.
3. Adequacy of Small Business Economic Impact Statement
("SBEIS"): The statute requiring an SBEIS, RCW 19.85.040, does
not require agencies to address secondary impacts of regulations.
The SBEIS prepared by WDFW deals with the impacts of the Gold and
Fish rule on small commercial prospecting and mining businesses
and compares those impacts to effects on large prospecting and
mining businesses. The document does not, nor is the agency
required to, address the effects of the rule on those who might
supply equipment to the parties directly affected. The SBEIS
appears to meet the department's legal obligations.
4. Lack of access to documentation justifying rule content: It
is my understanding that WDFW has maintained a complete
rule-making file, as required by RCW 34.05.370, that includes all
materials used or submitted in the course of developing the Gold
and Fish pamphlet. This file is available for public review upon
request.
5. Applicability of rule to activities above ordinary high water
line: As noted above, WDFW is not statutorily limited to
applying the Hydraulic Code only to activities within the
ordinary high water line. WDFW is authorized by the former RCW 75.20.100(1) (recently recodified in Chapter 77 RCW) to review
and approve or deny "any form of hydraulic project or ... other
work that will use, divert, obstruct, or change the natural flow
or bed of any of the salt or fresh waters of the state." WDFW is
to base its decisions on "the proper protection of fish life."
The statute does not limit this authority to areas below ordinary
high water or any other water/land boundary. In its efforts to
"preserve, protect, perpetuate and manage the food fish and
shellfish in state waters and offshore waters" (former RCW 75.08.012) WDFW must exercise judgment in determining whether
excavation activity (which could include situations where groups
are prospecting together and thereby exceed "any individual using
a regular shovel") could affect water flow into a streambed or
watercourse that could change the natural flow or bed. This is
fully within WDFW's jurisdiction.
Thank you for your extensive efforts and profound commitment to
preserving micro-scale mining opportunities for Washington's
citizens. I urge you to pursue mining methods that can be
granted permits or exceptions as provided in the Gold and Fish
pamphlet.
Sincerely,
Gary Locke
Governor
| cc: | Dennis W. Cooper, Code Reviser |
| Tim Martin, Co-Chief Clerk, House of Representatives | |
| Cindy Zehnder, Co-Chief Clerk, House of Representatives | |
| Tony Cook, Secretary of the Senate | |
| Kelly D. White, Chairman, Washington Fish and Wildlife Commission | |
| Jeff Koenings, Director, WDFW |