AN ACT Relating to endangered species; amending RCW 77.08.010, 77.12.020, 77.16.040, 77.16.120, and 77.21.010; adding a new chapter to Title 77 RCW; and prescribing penalties.

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

NEW SECTION. Sec. 1. This chapter shall be known and may be cited as the "endangered species conservation act of 1987."

NEW SECTION. Sec. 2. The legislature finds and declares that:

(1) The native fauna and flora of the state of Washington are an irreplaceable resource enhancing the quality of life for all of Washington's residents. It is the policy of this state to preserve, protect, and enhance such species of animals and plants, and their habitats, to ensure their perpetuation as viable components of their ecosystems for the educational, recreational, aesthetic, spiritual, economic, and scientific benefit of the people of this state;

(2) Species of animals and plants within this state that are endangered, threatened, or sensitive shall be accorded such protection as is necessary to maintain and enhance their numbers;

(3) The state shall assist in the protection of endangered or threatened animal and plant species by prohibiting the taking, processing, sale, offer for sale, barter, trade, transportation, exportation from this state, or shipment within this state of such species without required and valid federal and/or state permits; and

(4) The state's policy regarding disputes arising under this chapter is to encourage their resolution through mediation and alternative dispute resolution methods.

NEW SECTION. Sec. 3. As used in this chapter or in the rules of the commission or department, the following terms have the indicated meaning unless the context clearly requires otherwise:

(1) "Animal" means any native member of the animal kingdom, including any mammal, fish, bird, amphibian, reptile, mollusk, crustacean, arthropod, or other invertebrate, and includes any part, product, egg, or offspring thereof, or the dead body or parts thereof.

(2) "Commercial" means all types of activities, uses, and purposes of an industrial or trade nature including, but not limited to, the buying or selling of commodities and activities conducted for the purpose of such buying or selling and barter and exchange.

(3) "Commission" means the state game commission.

(4) "Conserve", "conserving", and "conservation" mean the use of all methods and procedures that are necessary to bring any animal or plant species and their habitat to the point at which the measures provided under this chapter are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resource management such as regulation, habitat acquisition, maintenance and restoration, research, census, law enforcement, propagation, transplantation, and nursery inspections.

(5) "Department" means the department of natural resources.

(6) "Endangered species" means any animal or plant species:

(a) Native to the state of Washington which is in danger of extinction throughout all or a significant portion of its range within the state, other than a pest whose protection would present an overwhelming and overriding risk to humankind; or

(b) Determined to be an "endangered species" pursuant to the federal endangered species act.

(7) "Federal endangered species act" means the federal endangered species act of 1973, Public Law 93-205 (87 Stat. 884), as amended.

(8) "Landowner" means the real property owner of habitat lands of species protected under this chapter, and includes the state as trustee of state trust lands.

(9) "Listed species" means any endangered or threatened animal or plant species listed by the commission or department as protected under this chapter.

(10) "Person" means an individual, corporation, company, association, society, firm, partnership, joint stock company, and any department or instrumentality of the federal government, of any state or political subdivision thereof, or of any foreign government.

(11) "Plant" means any native member of the plant kingdom, as well as seeds, roots, and other parts thereof. For the purposes of this chapter, the definition shall include fungi.

(12) "Recovery" means when animal or plant populations have achieved a level that can be maintained indefinitely without the intensive management measures provided for under this chapter for listed species.

(13) "Sensitive species" means any plant or animal species that is vulnerable or declining, and could become endangered or threatened in the state without active management or removal of threats.

(14) "Species" includes any species, subspecies, or variety of animal or plant native to the state of Washington.

(15) "Take" with respect to animals means an effort to kill, injure, capture, or harass. "Take" with respect to plants means an effort to collect, cut, damage, destroy, dig, kill, pick, remove, trample, transplant, uproot, or otherwise disturb.

(16) "Threatened species" means any animal or plant species:

(a) Native to the state of Washington that could become an endangered species within the state without active management or removal of threats; or

(b) Determined to be a "threatened species" pursuant to the federal endangered species act.

NEW SECTION. Sec. 4. (1) In addition to those animal or plant species determined to be endangered or threatened under the federal endangered species act, the commission shall determine for animal species and the department shall determine for plant species, by rule and in accordance with chapter 34.04 RCW, whether any animal or plant species is an endangered, threatened, or sensitive species as a result of any of the following factors:

(a) The present or threatened destruction, modification, or curtailment of its habitat or range;

(b) Overuse for commercial, recreational, scientific, educational, or private purpose;

(d) The inadequacy of existing regulatory mechanisms affecting its continued existence within the state; or

(e) Other factors, determined by the commission or department by rule, which affect its continued existence within the state.

(2) The commission or department shall make the determinations required by this subsection solely on the basis of the best scientific information available, and after consultation, as appropriate, with federal agencies, other state agencies having a common interest in the species, and interested persons and organizations. In determining whether any species is endangered, threatened, or sensitive, the commission or department shall take into account any actions or proposed actions being performed by the federal government, other state agencies or political subdivisions of the state, or by any other person that may affect the species under consideration.

NEW SECTION. Sec. 5. (1) The commission or department shall conduct investigations of native species to develop information relating to population, distribution, habitat needs, recovery points, limiting factors, and other biological and ecological data, and to determine conservation measures and requirements necessary for their survival.

(2) The commission or department may, at its discretion, withhold from any person information about the distribution, location, or biology of a species if it determines that disclosure of such information may threaten the survival of that or another species.

NEW SECTION. Sec. 6. In order to ensure the protection of sensitive species, the commission or department shall:

(1) Monitor sensitive animal and plant species to develop information relating to population, distribution, habitat needs, limiting factors, and other biological and ecological data;

(2) Establish programs designed to enhance the voluntary protection of sensitive species; and

(3) Conduct educational programs on the need to protect such sensitive species.

NEW SECTION. Sec. 7. (1) By January 1, 1989, the commission or department shall issue rules in accordance with chapter 34.04 RCW containing an initial list of all species within the state that it determines, in accordance with sections 4 through 6 of this act, to be endangered, threatened, or sensitive, and shall periodically revise and amend the list. The list shall refer to the species by scientific name, and common name or names, if any.

(2) In accordance with sections 4 through 6 of this act, the commission or department shall review every five years those species listed as endangered, threatened, or sensitive to determine whether there is any change in the status of any species on the list. Review of species shall, to the maximum extent practicable, be conducted in conjunction with the five- year review process of the United States department of the interior.

(3) Any interested person may petition the commission or department to add, remove, or change the status of a species on the list, except with respect to those species determined to be endangered or threatened under the federal endangered species act. Such petition shall clearly indicate the action sought, and include scientific information about the biological status of the species and the immediacy of the threat, if any, posed to the species. The commission and department shall develop, in accordance with chapter 34.04 RCW, the rules and criteria necessary to implement this process.

(4) Notwithstanding sections 4, 5, and 7 of this act, if the commission or department determines that an emergency situation exists which poses a significant threat to the continued existence of a species, the commission or department shall add such species to the list of endangered or threatened species by emergency rule. Adoption of such emergency rule shall follow the procedures prescribed in the administrative procedure act, chapter 34.04 RCW.

NEW SECTION. Sec. 8. The commission or department may, by rule and in accordance with chapter 34.04 RCW, treat any species as an endangered or threatened species even though it is not listed pursuant to section 7 of this act if it find that:

(1) The unlisted species so closely resembles an endangered or threatened species that enforcement personnel would have substantial difficulty differentiating between the listed and unlisted species; and

(2) Allowing collection of the unlisted species could lead to commercial exploitation of the listed species.

NEW SECTION. Sec. 9. In carrying out the purposes and requirements of this chapter, the commission and department may enter into agreements with federal agencies, Indian tribes, other states, agencies, or political subdivisions of this state, or with individuals or private organizations for the administration and management of any process established under this chapter or utilized for the protection of listed species.

NEW SECTION. Sec. 10. (1) The commission or department shall protect the habitat of endangered or threatened species and regulate the use of such habitat where necessary for the survival or recovery of a listed species. The commission or department is authorized, for and on behalf of the state, to acquire land or aquatic habitat, or interests therein by gift, devise, purchase, exchange, lease, transfer or purchase of development rights, or any other method of acquiring real property or any right therein. The commission or department may acquire the fee simple interest in an area or any one or more lesser estates, interests and rights therein, including a leasehold estate, a covenant, a license, an easement appurtenant or in gross and granting the state specified rights of use or denying the grantor specified rights of use or both, or any other contractual right. Such acquisition shall only occur with the consent of a willing landowner.

(2) The commission or department may adopt rules pursuant to chapter 34.04 RCW to implement the habitat protection program. The rules shall provide priorities, guidelines, and programs for compensating landowners where implementation of the rules inhibits the reasonable, traditional economic use of the property. The rules shall also provide incentive programs for habitat protection and shall provide adequate notice to landowners of their options under this section.

NEW SECTION. Sec. 11. (1) All state departments and agencies, in consultation with the commission or department, shall:

(a) Utilize their authorities in furtherance of the purposes of this chapter for the protection of endangered or threatened species and their habitats;

(b) Consult with the department or commission to ensure that any action authorized, funded, or carried out by the state department or agency is not likely to jeopardize the continued existence of any listed species or its habitat;

(c) Consult the natural heritage data base and notify the commission or department if any listed species or its habitat will be affected by the state department or agency action; and

(d) Include the information required under this section in the environmental impact analysis required under chapter 43.21C RCW.

The commission or department shall determine whether the proposed agency action could have a significant environmental impact on any listed species or its habitat. The commission or department may issue rules pursuant to chapter 34.04 RCW to carry out the provisions and purposes of this section.

(2) Consultation under this section shall be conducted whenever the commission or department determines that an action of a state department or agency may affect a known location of an endangered or threatened species. If the commission or department finds that the action is likely to jeopardize the survival or recovery of a listed species, the state department or agency proposing the act shall develop, in consultation with the commission or department, reasonable and prudent alternatives to the proposed project that can be implemented and are consistent with conserving the protected species. If a change in land use results from this process, the landowner shall also be consulted. The commission and department shall issue rules pursuant to chapter 34.04 RCW establishing a formal and informal appeals process under this section.

NEW SECTION. Sec. 12. (1) Except as provided in subsections (2),(3), and (4) of this section and by section 13 of this act, it is unlawful for any person to:

(a) Take, possess, process, sell, or offer for sale in this state, interstate, or in foreign commerce, or ship by any means, any endangered or threatened species or products thereof, without required and valid state and/or federal permits and the written permission of the landowner, except, on private lands and state lands leased prior to the effective date of this section to private individuals or companies, when:

(i) The sale is incidental to the possession or sale of the real property upon which an endangered or threatened plant is growing; or

(ii) The endangered or threatened plant grows among a merchantable agricultural crop excluding timber or on land used for grazing purposes; or

(b) Violate any regulation pertaining to any threatened or endangered species or their habitats.

(2) Nothing in this chapter or any regulations promulgated thereunder, with respect to the importation or exportation of, or the interstate or foreign commerce in, any endangered or threatened species, shall:

(a) Prohibit what is authorized pursuant to an exemption or permit provided for by the federal endangered species act or in any rule implementing that act; or

(b) Permit what is prohibited by the federal endangered species act or any rule promulgated thereunder.

(3) Nothing in this chapter or any rules adopted under it may prohibit entry into, or transportation through, the state of any endangered or threatened species in accordance with the terms of any permit issued under the laws of another state.

(4) The commission or department may grant waivers to the prohibitions contained in subsection (1) of this section if:

(a) An individual demonstrates that compliance with these provisions creates an unusual and unfair burden; and

(b) A waiver will not significantly increase the danger of extinction for any species.

NEW SECTION. Sec. 13. (1) The commission or department may permit any act otherwise prohibited under section 12 of this act if such act is conducted for scientific purposes that will enhance the propagation or survival of the listed species. The commission or department shall develop criteria and permit procedures by rule in accordance with chapter 34.04 RCW.

(2) The commission or department may permit, under such terms and conditions as it shall prescribe, any taking otherwise prohibited by section 12 of this act if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. No permit may be issued unless the applicant submits to the commission or department a conservation plan that specifies:

(a) The impact that will likely result from such taking;

(b) What steps the applicant will take to minimize and mitigate such impacts, and the funding that will be available to implement such steps;

(c) What alternative actions to such taking the applicant considered and the reasons why such alternatives are not being further considered; and

(d) Such other measures that the commission or department may require as being necessary or appropriate for the purposes of the plan.

(3) The commission or department may issue such permit only if it finds that reasonable and prudent alternatives will be implemented so that the proposed action will not appreciably reduce the likelihood of the recovery of the species and if the applicant has obtained the written permission of the landowner upon which the species lives and from any person having a bona fide property interest therein. The commission or department shall:

(a) Specify the impact of such incidental taking on the species;

(b) Specify reasonable and prudent alternative measures that can be implemented so that the proposed action will not appreciably reduce the likelihood of the recovery of the species; and

(c) Set forth the terms and conditions, including but not limited to reporting requirements, which the applicant must comply with to implement the alternative measures specified under (b) of this subsection.

(4) The applicant shall implement such alternative measures through an adequately funded conservation plan, and the commission or department shall revoke any permit issued under this section if it finds that the permittee is not complying with the terms and conditions of the permit.

NEW SECTION. Sec. 14. Any person who violates the provisions of this chapter or any rules adopted thereunder is guilty of a gross misdemeanor under RCW 9A.20.020. The commission of a prohibited act with respect to each plant or animal shall constitute a separate violation. Each subsequent violation within a five-year period shall be prosecuted and punished as a class C felony under RCW 9A.20.020.

NEW SECTION. Sec. 15. (1) Any person may commence a civil suit on the person's own behalf:

(a) To enjoin any state agency which is alleged to be in violation of any provision of this chapter or any rule adopted under it;

(b) To compel the commission or department to apply the prohibitions set forth in section 12(1) of this act with respect to the taking of an endangered or threatened species within the state; or

(c) Against the department or commission where there is an alleged failure of the commission or department to perform any act or duty that is not discretionary under this chapter.

(2) No action may be commenced under this section prior to ten days after the commission or department has received written notice of any alleged violation or alleged failure to enforce the provisions of this chapter or any rule adopted thereunder.

NEW SECTION. Sec. 16. The commission or department or any state or local law enforcement agency, including any natural resource police officer, sheriff, state, county, or municipal police officer, shall have the authority to enforce this chapter and any rule adopted under it. Such enforcement officer may confiscate plants or animals or parts thereof when unlawfully taken, transported, possessed, sold, or otherwise handled in violation of this chapter.

Sec. 17. Section 77.08.010, chapter 36, Laws of 1955 as amended by section 9, chapter 78, Laws of 1980 and RCW 77.08.010 are each amended to read as follows:

As used in this title or rules of the commission, unless the context clearly requires otherwise:

(1) "Director" means the director of game.

(2) "Department" means the department of game.

(3) "Commission" means the state game commission.

(4) "Person" means and includes an individual, a corporation, or a group of two or more individuals acting with a common purpose whether acting in an individual, representative, or official capacity.

(5) "Wildlife agent" means a person appointed and commissioned by the director, with authority to enforce laws of this title, rules of the commission, and other statutes as prescribed by the legislature.

(6) "Ex officio wildlife agent" means a commissioned officer of a municipal, county, state, or federal agency having as its primary function the enforcement of criminal laws in general, while the officer is in the appropriate jurisdiction. The term "ex officio wildlife agent" includes fisheries patrol officers, special agents of the national marine fisheries commission, state parks commissioned officers, United States fish and wildlife special agents, department of natural resources enforcement officers, and United States forest service officers, while the agents and officers are within their respective jurisdictions.

(7) "To hunt" and its derivatives means an effort to kill, injure, capture, or harass a wild animal or wild bird.

(8) "To trap" and its derivatives means a method of hunting using devices to capture wild animals or wild birds.

(9) "To fish" and its derivatives means an effort to kill, injure, harass, or catch a game fish.

(10) "Open season" means those times, manners of taking, and areas or waters established by rule of the commission for the lawful hunting, fishing, or possession of game animals, game birds, or game fish. "Open season" includes the first and last days of the established time.

(11) "Closed season" means all times, manners of taking, and areas or waters other than those established as an open season.

(12) "Closed area" means a place where the commission has prohibited by rule the hunting of some species of wild animals or wild birds.

(13) "Closed waters" means all or part of a lake, river, stream, or other body of water, where the commission has prohibited by rule fishing for game fish.

(14) "Game reserve" means a closed area where the commission has prohibited by rule hunting for all wild animals and wild birds.

(15) "Bag limit" means the maximum number of game animals, game birds, or game fish which may be taken, caught, killed, or possessed by a person, as specified by rule of the commission for a particular period of time, or as to size, sex, or species.

(16) "Wildlife" means all species of the animal kingdom whose members exist in Washington in a wild state. This includes but is not limited to mammals, birds, reptiles, amphibians, fish, and invertebrates. The term "wildlife" does not include feral domestic mammals, the family Muridae of the order Rodentia (old world rats and mice), or those fish, shellfish, and marine invertebrates classified by the director of fisheries. The term "wildlife" includes all stages of development and the bodily parts of wildlife members.

(17) "Wild animals" means those species of the class Mammalia whose members exist in Washington in a wild state and the species Rana catesbeiana (bullfrog). The term "wild animal" does not include feral domestic mammals or the family Muridae of the order Rodentia (old world rats and mice).

(18) "Wild birds" means those species of the class Aves whose members exist in Washington in a wild state.

(19) "Protected wildlife" means wildlife designated by rule of the commission that shall not be hunted or fished.

(20) ((~~"Endangered species" means wildlife designated by rule of the commission as seriously threatened with extinction.~~

~~(21)~~)) "Game animals" means wild animals that shall not be hunted except as authorized by rule of the commission.

((~~(22)~~)) (21) "Fur-bearing animals" means game animals that shall not be trapped except as authorized by rule of the commission.

((~~(23)~~)) (22) "Game birds" means wild birds that shall not be hunted except as authorized by rule of the commission.

((~~(24)~~)) (23) "Predatory birds" means wild birds that may be hunted throughout the year as authorized by rule of the commission.

((~~(25)~~)) (24) "Deleterious exotic wildlife" means species of the animal kingdom not native to Washington and designated by rule of the commission as dangerous to the environment or wildlife of the state.

((~~(26)~~)) (25) "Game farm" means property on which wildlife is held or raised for commercial purposes, trade, or gift. The term "game farm" does not include publicly owned facilities.

Sec. 18. Section 77.12.020, chapter 36, Laws of 1955 as last amended by section 13, chapter 78, Laws of 1980 and RCW 77.12.020 are each amended to read as follows:

(1) The commission shall investigate the habits and distribution of the various species of wildlife native to or adaptable to the habitats of the state. The commission shall determine whether a species should be managed by the department and, if so, classify it under this section.

(2) The commission may classify by rule wild animals as game animals and game animals as fur-bearing animals.

(3) The commission may classify by rule wild birds as game birds or predatory birds. All wild birds not otherwise classified are protected wildlife.

(4) In addition to those species listed in RCW 77.08.020, the commission may classify by rule as game fish other species of the class Osteichthyes that are commonly found in fresh water except those classified as food fish by the director of fisheries.

(5) If the commission determines that a species of wildlife should not be hunted or fished, the commission may designate it protected wildlife by rule.

(6) ((~~If the commission determines that a species of wildlife is seriously threatened with extinction in the state of Washington, the commission may designate it an endangered species by rule.~~

~~(7)~~)) If the commission determines that a species of the animal kingdom not native to Washington is dangerous to the environment or wildlife of the state, the commission may designate it deleterious exotic wildlife by rule.

Sec. 19. Section 77.16.040, chapter 36, Laws of 1955 as last amended by section 72, chapter 78, Laws of 1980 and RCW 77.16.040 are each amended to read as follows:

Except as authorized by law or rule of the commission, it is unlawful to bring into this state, offer for sale, sell, possess, exchange, buy, transport, or ship wildlife ((~~or articles made from an endangered species~~)). It is unlawful for a common or contract carrier knowingly to ship or receive for shipment wildlife ((~~or articles made from an endangered species~~)).

Sec. 20. Section 77.16.120, chapter 36, Laws of 1955 as amended by section 81, chapter 78, Laws of 1980 and RCW 77.16.120 are each amended to read as follows:

Except as authorized by rule of the commission, it is unlawful to hunt, fish for, possess, or control protected wildlife, or ((~~endangered species or~~)) to destroy or possess the nests or eggs of game birds or protected wildlife.

Sec. 21. Section 77.16.240, chapter 36, Laws of 1955 as last amended by section 1, chapter 31, Laws of 1982 and RCW 77.21.010 are each amended to read as follows:

(1) A person violating RCW 77.16.040, 77.16.050, 77.16.060, 77.16.080, 77.16.210, 77.16.220, 77.16.310, 77.16.320, or 77.32.211, or committing a violation of RCW 77.16.020 or 77.16.120 involving big game ((~~or an endangered species~~)) is guilty of a gross misdemeanor and shall be punished by a fine of not less than two hundred fifty dollars and not more than one thousand dollars or by imprisonment in the county jail for not less than thirty days and not more than one year or by both the fine and imprisonment. Each subsequent violation within a five-year period of RCW 77.16.040, 77.16.050, or 77.16.060, or of RCW 77.16.020 or 77.16.120 involving big game ((~~or an endangered species,~~)) as defined by the Washington state game commission under the authority of RCW 77.04.090, shall be prosecuted and punished as a class C felony as defined in RCW 9A.20.020. In connection with each such felony prosecution, the director shall provide the court with an inventory of all articles or devices seized under this title in connection with the violation. Inventoried articles or devices shall be disposed of pursuant to RCW 77.21.040.

(2) A person violating or failing to comply with this title or a rule of the commission for which no penalty is otherwise provided is guilty of a misdemeanor and shall be punished for each offense by a fine of not less than twenty-five dollars or by imprisonment for not more than ninety days in the county jail or by both the fine and imprisonment.

(3) Persons convicted of a violation shall pay the costs of prosecution and the penalty assessment in addition to the fine or imprisonment.

(4) The unlawful killing, taking, or possession of each wildlife member constitutes a separate offense.

(5) District courts have jurisdiction concurrent with the superior courts of misdemeanors and gross misdemeanors committed in violation of this title or rules of the commission and may impose the punishment provided for these offenses. Superior courts have jurisdiction over felonies committed in violation of this title.

NEW SECTION. Sec. 22. Sections 1 through 16 of this act shall constitute a new chapter in Title 77 RCW.