6146-S2

AN ACT Relating to property damage by wildlife; adding a new chapter to Title 77 RCW; creating new sections; repealing RCW 77.12.265, 77.12.270, 77.12.280, 77.12.290, and 77.12.300; providing an effective date; and providing an expiration date.

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

NEW SECTION. Sec. 1. The legislature finds that:

(1) As the number of people in the state grows and wildlife habitat is altered, people will encounter wildlife more frequently. As a result, conflicts between humans and wildlife will also increase. Wildlife is a public resource of significant value to the people of the state and the responsibility to minimize and resolve these conflicts is shared by all citizens of the state.

(2) In particular, the state recognizes the importance of commercial agricultural and horticultural crop production and the value of healthy deer and elk populations, which can damage such crops. The legislature further finds that damage prevention is key to maintaining healthy deer and elk populations, wildlife-related recreational opportunities, and commercially productive agricultural and horticultural crops, and that the state, participants in wildlife recreation, and private landowners and tenants share the responsibility for damage prevention. Toward this end, the legislature encourages landowners and tenants to contribute through their land management practices to healthy wildlife populations and to provide access for related recreation. It is in the best interests of the state for the department of fish and wildlife to respond quickly to wildlife damage complaints and to work with these landowners and tenants to minimize and/or prevent damages and conflicts while maintaining deer and elk populations for enjoyment by all citizens of the state.

(3) A timely and simplified process for resolving claims for damages caused by deer and elk for commercial agricultural or horticultural products is beneficial to the claimant and the state.

NEW SECTION. Sec. 2. Unless otherwise specified, the following definitions apply throughout this chapter:

(1) "Crop" means a commercially raised horticultural and/or agricultural product and includes growing or harvested product but does not include livestock.

(2) "Emergency" means an unforeseen circumstance beyond the control of the landowner or tenant that presents a real and immediate threat to crops, domestic animals, or fowl.

(3) "Immediate family member" means spouse, brother, sister, grandparent, parent, child, or grandchild.

NEW SECTION. Sec. 3. The department shall work closely with landowners and tenants suffering game damage problems to control damage without killing the animals when practical, to increase the harvest of damage-causing animals in hunting seasons, and to kill the animals when no other practical means of damage control is feasible.

If the department receives recurring complaints regarding property being damaged as described in this section or section 4 of this act from the owner or tenant of real property, or receives such complaints from several such owners or tenants in a locale, the commission shall consider conducting a special hunt or special hunts to reduce the potential for such damage.

NEW SECTION. Sec. 4. (1) Subject to the following limitations and conditions, the owner, the owner's immediate family member, the owner's documented employee, or a tenant of real property may trap or kill on that property, without the licenses required under RCW 77.32.010 or authorization from the director under RCW 77.12.240, wild animals or wild birds that are damaging crops, domestic animals, or fowl:

(a) Threatened or endangered species shall not be hunted, trapped, or killed;

(b) Except in an emergency situation, deer, elk, and protected wildlife shall not be killed without a permit issued and conditioned by the director or the director's designee. In an emergency, the department may give verbal permission followed by written permission to trap or kill any deer, elk, or protected wildlife that is damaging crops, domestic animals, or fowl; and

(c) On privately owned cattle ranching lands, the land owner or lessee may declare an emergency only when the department has not responded within forty-eight hours after having been contacted by the land owner or lessee regarding damage caused by wild animals or wild birds. In such an emergency, the owner or lessee may trap or kill any deer, elk, or other protected wildlife that is causing the damage but deer and elk may only be killed if such lands were open to public hunting during the previous hunting season, or the closure to public hunting was coordinated with the department to protect property and livestock.

(2) Except for coyotes and Columbian ground squirrels, wildlife trapped or killed under this section remain the property of the state, and the person trapping or killing the wildlife shall notify the department immediately. The department shall dispose of wildlife so taken within three days of receiving such a notification and in a manner determined by the director to be in the best interest of the state.

NEW SECTION. Sec. 5. (1) Pursuant to this section, the director or the director's designee may distribute money appropriated to pay claims for damages to crops caused by wild deer or elk in an amount of up to ten thousand dollars per claim. Damages payable under this section are limited to the value of such commercially raised horticultural or agricultural crops, whether growing or harvested, and shall be paid only to the owner of the crop at the time of damage, without assignment. Damages shall not include damage to other real or personal property including other vegetation or animals, damages caused by animals other than wild deer or elk, lost profits, consequential damages, or any other damages whatsoever. These damages shall comprise the exclusive remedy for claims against the state for damages caused by wildlife.

(2) The director may adopt rules for the form of affidavits or proof to be provided in claims under this section. The director may adopt rules to specify the time and method of assessing damage. The burden of proving damages shall be on the claimant. Payment of claims shall remain subject to the other conditions and limits of this chapter.

(3) If funds are limited, payments of claims shall be prioritized in the order that the claims are received. No claim may be processed if:

(a) The claimant did not notify the department within ten days of discovery of the damage. If the claimant intends to take steps that prevent determination of damages, such as harvest of damaged crops, then the claimant shall notify the department as soon as reasonably possible after discovery so that the department has an opportunity to document the damage and take steps to prevent additional damage; or

(b) The claimant did not present a complete, written claim within sixty days after the damage, or the last day of damaging if the damage was of a continuing nature.

(4) The director or the director's designee may examine and assess the damage upon notice. The department and claimant may agree to an assessment of damages by a neutral person or persons. The department and claimant shall share equally in the costs of such third party examination and assessment of damage.

(5) There shall be no payment for damages if:

(a) The crops are on lands leased from any public agency;

(b) The landowner or claimant failed to use or maintain applicable damage prevention materials or methods furnished by the department, or failed to comply with a wildlife damage prevention agreement under RCW 77.12.260;

(d) The damages are covered by insurance. The claimant shall notify the department at the time of claim of insurance coverage in the manner required by the director. Insurance coverage shall cover all damages prior to any payment under this chapter.

(6) When there is a determination of claim by the director or the director's designee pursuant to this section, the claimant has sixty days to accept the claim or it is deemed rejected.

NEW SECTION. Sec. 6. If the claimant does not accept the director's decision under section 5 of this act, or if the claim exceeds ten thousand dollars, then the claim may be filed with the office of risk management under RCW 4.92.040(5). The office of risk management shall recommend to the legislature whether the claim should be paid. If the legislature approves the claim, the director shall pay it from moneys appropriated for that purpose. No funds shall be expended for damages under this chapter except as appropriated by the legislature.

NEW SECTION. Sec. 7. The director may refuse to consider and pay claims of persons who have posted the property against hunting or who have in any way not allowed public hunting during the season prior to the occurrence of the damages.

NEW SECTION. Sec. 8. The department may pay no more than one hundred twenty thousand dollars per fiscal year from the wildlife fund for claims under section 5 of this act and for assessment costs and compromise of claims. Such money shall be used to pay animal damage claims only if the claim meets the conditions of section 5 of this act and the damage occurred in a place where the opportunity to hunt was not restricted or prohibited by a county, municipality, or other public entity during the season prior to the occurrence of the damage.

NEW SECTION. Sec. 9. (1) The department may pay no more than thirty thousand dollars per fiscal year from the general fund for claims under section 5 of this act and for assessment costs and compromise of claims unless the legislature declares an emergency. Such money shall be used to pay animal damage claims only if the claim meets the conditions of section 5 of this act and the damage occurred in a place where the opportunity to hunt was restricted or prohibited by a county, municipality, or other public entity during the season prior to the occurrence of the damage.

(2) The legislature may declare an emergency, defined for the purposes of this section as any happening arising from weather, other natural conditions, or fire that causes unusually great damage to commercially raised agricultural or horticultural crops by deer or elk. In an emergency, the department may pay as much as may be subsequently appropriated, in addition to the funds authorized under subsection (1) of this section, for claims under section 5 of this act and for assessment and compromise of claims. Such money shall be used to pay animal damage claims only if the claim meets the conditions of section 5 of this act and the department has expended all funds authorized under section 8 of this act or subsection (1) of this section.

NEW SECTION. Sec. 10. This act applies prospectively only and not retroactively. It applies only to claims that arise on or after the effective date of this act.

NEW SECTION. Sec. 11. Sections 1 through 9 of this act shall constitute a new chapter in Title 77 RCW.

NEW SECTION. Sec. 12. The following acts or parts of acts are each repealed:

(1) RCW 77.12.265 and 1995 c 210 s 1, 1987 c 506 s 35, 1985 c 355 s 1, 1980 c 78 s 91, & 1955 c 36 s 77.16.230;

(2) RCW 77.12.270 and 1987 c 506 s 36, 1986 c 126 s 11, 1980 c 78 s 45, 1963 c 177 s 8, & 1955 c 36 s 77.12.270;

(3) RCW 77.12.280 and 1987 c 506 s 37, 1986 c 126 s 12, 1980 c 78 s 46, 1979 c 151 s 176, 1977 ASCE c 144 s 8, 1957 c 177 s 1, & 1955 c 36 s 77.12.280;

(4) RCW 77.12.290 and 1987 c 506 s 38, 1980 c 78 s 47 1963 c 177 s 9, 1957 c 177 s 2, & 1955 c 36 s 77.12.290; and

(5) RCW 77.12.300 and 1987 c 506 s 39, 1980 c 78 s 48, 1957 c 177 s 3, & 1955 c 36 s 77.12.300.

NEW SECTION. Sec. 13. Sections 1 through 12 of this act shall take effect July 1, 1996.

NEW SECTION. Sec. 14. (1) Notwithstanding any repeal, until July 1, 1996, claims exceeding two thousand dollars that have been filed under RCW 77.12.280(1) and that have been submitted to the legislature under RCW 4.92.040(5) by the risk management office may be paid by the department from moneys appropriated for payment of such claims.

(2) This section shall expire June 30, 1996.