WSR 07-08-059

OFFICE OF THE GOVERNOR


[ Filed March 29, 2007, 10:28 a.m. ]


NOTICE OF APPEAL

RCW 34.05.330(3)


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.

Washington State Code Reviser's Office