On September 13, 2007, the Governor's Office received an appeal from Mr. Jon Bial relating to the Washington Department of Fish Wildlife's Emergency Rule WAC 232-28-61900U. Governor Gregiore denied the appeal on September 17, 2007.
DATE: September 18, 2007
Richard E. Mitchell
General Counsel to the Governor
September 17, 2007
Jon Bial, Esq.
Law Offices of Jon Bial
1101 Andover Park West, Suite 102
Tukwila, WA 98188
| RE: | Petition for Review of Department of Fish & Wildlife ("Department") |
| Emergency Rule - WAC 232-28-61900U |
This letter is in response to your Petition for Review of the
emergency rule that the Director of the Department of Fish and
Wildlife issued to modify the fishing season for the Kalama
River. The rule is identified in the Washington
Administrative Code as WAC 232-28-61900U. In denying your
petition, I have decided not to repeal the rule.
RCW 34.05.350(3) specifies that my review must be confined to
an analysis of whether the statutory conditions for emergency
rule-making are present. In other words, I may only consider
whether the rule is necessary for the preservation of the
public health, safety, or general welfare and whether the use
of normal rule-making requirements would be contrary to the
public interest. RCW 34.05.350 (1)(a). The scope your
petition touches on other issues which I will endeavor to
address in the course of explaining the basis for my decision.
However, my decision is based solely upon my conclusion that
the emergency rule is needed to preserve the general welfare
and that following normal rulemaking time limits would not
facilitate that objective.
It is my understanding that the emergency rule was issued to
address unforeseen biological impacts to fish populations in
the Kalama River. In the early summer months of 2007, the
Kalama River experienced low river flows. Spring Chinook and
Steelhead were present. Hatchery and wild fish, which are
listed under the Endangered Species Act, were mixed together.
Consequently, continued fishing activity under these
conditions, particularly at night, poses a substantial
increase in the likelihood of snagging fish. Not only is
there increased potential for unlawful snagging, there is an
increased potential that even normal fishing activities will
result in snagged fish. Illegal snagging has detrimental
biological impacts due to the loss of spawning fish that are
illegally kept. Even unintentional snagging has impacts
because hooked fish are injured and there is increased
mortality. Where ESA-listed fish are present, these concerns
are significantly greater.
While low flows may be normal for the Kalama this time of
year, it became apparent to Department staff that the number
of fish and the amount of snagging was markedly higher than in
the past. The Department does not have sufficient enforcement
staff to fully address the increased rate of snagging. In
addition, as noted above, this is more than just a question of
illegal fishing. Fish may be snagged unintentionally in these
conditions. Returning an injured fish to the river may have
the same detrimental consequences as unlawful harvest.
Recently, ESA-listed fall Chinook and Coho salmon have begun
to arrive in the river. The high amount of snagging that was
originally observed for spring Chinook and steelhead has
passed, but there is a new and independent concern for even
higher levels of snagging of fall Chinook and Coho justifying
an emergency closure of night time fishing through October.
The October 31, 2007, date was chosen on the belief that fall
rains will increase river flows and alleviate the immediate
concern.
Based upon these considerations, I have concluded that the
Department has provided sufficient information to justify the
emergency rule to further the general public welfare. Healthy
populations of fish, and the protection of ESA-listed fish,
are objectives that Washington's citizens care about very
deeply. As discussed above, the higher than expected numbers
of fish, the presence of ESA-listed fish, and the
unanticipated amount of snagging relative to historical trends
are exigent circumstances. The normal rule-making timelines
would not provide the opportunity to respond to these emergent
factors.
The Department has informed me that they are moving forward
with the adoption of a permanent rule dealing with the issue
of snagging. A permanent rule-making application was filed
prior to the adoption of the emergency rule that you
referenced and is actively being pursued at this time. A copy
of the application is available from Steven Vigg, the
Department's Region 5 Fish Program Harvest Manager. Mr. Vigg
can be reached at (360) 906-6710. I encourage you to
participate in this process.
Sincerely,
Christine O. Gregoire
Governor