Pursuant to RCW 34.05.330(3), you are hereby notified for publication in the Washington State Register that:
On February 9, 2007, the Governor received an appeal from the Resources Coalition and Washington Miners' Council relating to the Washington Fish and Wildlife Commission's denial of a petition to adopt new rules regarding small-scale mineral prospecting. The Governor's Office denied the Petition on March 22, 2007.
DATE: March 22, 2007
Richard E. Mitchell
General Counsel to the Governor
March 22, 2007
Mark Erickson, President
Resources Coalition
P.O. Box 2131
Sumner, WA 98390
Bruce Beatty, President
Washington Miners' Council
4602 Alameda Avenue West
University Place, WA 98466
Dear Messrs. Erickson and Beatty:
This letter is in response to your February 9, 2007, petition
(dated Feb. 7, 2007) requesting an appeal of a denied
rulemaking petition filed with the Washington Fish and
Wildlife Commission (Commission). Specifically, your petition
appeals the Commission's January 19, 2007, denial of your July
13, 2006, petition to adopt new rules regarding small-scale
mineral prospecting.
After a careful review of the file relating to your petition,
it appears that the Commission did not conclusively deny your
July 13, 2006, petition within sixty (60) days as required by
RCW 34.05.330. Rather, it commenced rulemaking on alternative
proposed rules, which is reflected in the Commission's August
11, 2006, minutes. Since the Commission's official minutes of
its actions indicate that you (Mr. Beatty), were present at
its meeting where it voted to initiate rulemaking to amend the
existing WACs 220-110-200 through 209, you were aware of its
response to your petition at that time. The Commission first
communicated its actions in writing to you by letter dated
November 21, 2006.
The Commission also wrote to you on the status of your
petition on January 19, 2007. On that date, the Commission
wrote the following: "We are not adopting the miner's
proposed interim rules because we believe they conflict with
RCW 77.55 and would require changing that statute..." It
appears from the Commission's letter that it considered your
petition to concern "interim rules", which we understand to be
new rules, as opposed to amending or rescinding existing
rules.
Under the Administrative Procedures Act, the Governor does not
have jurisdiction to consider petitions where the underlying
agency has not issued a denial, where the petitioner fails to
timely petition within thirty (30) days of the agency denial,
or where the petitioner is petitioning an agency's denial to
adopt a new rule. RCW 34.05.330. For these jurisdictional
reasons, the Governor cannot consider your petition.
Notwithstanding the lack of jurisdiction, given that the
Commission has acted on your petition by commencing the
rulemaking process and created a stakeholder work group, the
Governor encourages you to participate fully in this process.
Your input will help the Commission address concerns over
small-scale mineral prospecting rules to the greatest extent
possible.
Sincerely,
Melynda Campbell
for Richard E. Mitchell
General Counsel
cc: Dr. Jeff Koenings, Director, Department of Fish and Wildlife
Jerry Gutzwiler, Chair, Washington Fish and Wildlife Commission
John Mankowski, Executive Policy Advisor, Governor's Office
Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.