AN ACT Relating to geoducks; amending RCW 75.10.140, 79.90.210, 79.90.240, and 79.96.080; adding new sections to chapter 79.96 RCW; adding a new section to chapter 79.01 RCW; and prescribing penalties.

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

NEW SECTION. Sec. 1. The commissioner of public lands shall appoint a geoduck advisory committee to advise the commissioner of public lands and department of natural resources and to make recommendations regarding management of the geoduck program. The commissioner shall ensure that all affected and interested parties are represented on the committee. All meetings of the committee shall be open to the public. The committee shall meet no less than four times per year. Committee members shall receive subsistence and travel expenses reimbursement under RCW 43.03.050 and 43.03.060.

NEW SECTION. Sec. 2. (1) All geoduck catches must be checked by a department of fisheries employee designated to perform such checks.

(2) Fish tickets turned in with a geoduck catch must be supervised by department of fisheries employees and shall be filled out completely.

NEW SECTION. Sec. 3. All geoduck divers must be trained in commercial scuba diving. The department of fisheries shall set standards for training by rule based upon recommendation of the geoduck advisory committee.

NEW SECTION. Sec. 4. (1) If a person wrongfully takes geoducks or causes geoducks to be wrongfully taken from state land and the wrongful taking is intentional and knowing, then the person shall be liable for damages of treble the fair market value of geoducks wrongfully taken. If a person wrongfully takes geoducks from state land in any other circumstances, then the person shall be liable for damages of double the fair market value of the geoducks wrongfully taken. The damages in this subsection shall be for trespass taking of state-owned geoducks.

(2) For purposes of this section, a person "wrongfully takes" geoducks if:

(a) Geoducks harvesting occurs without a harvest agreement;

(b) Geoducks are taken contrary to terms that control harvest in a harvest agreement, or outside the boundaries of a harvest agreement tract, or above the harvest ceiling for a tract;

(d) If geoducks are taken in violation of any other state law, regulation, or contract provision that controls the time, place, or manner of geoduck harvest.

(3) For purposes of the remedies in this section, if a person is found to have wrongfully taken geoducks, then all geoducks in possession or control of that person shall be presumed to have been wrongfully taken.

(4) The remedies is subsection (1) of this section are civil damages and may be proved by a preponderance of the evidence. The department of natural resources shall have the authority to pursue the damages available under this section whether or not the person involved possesses a harvest agreement with the department of natural resources. The department of natural resources shall apply damages recovered under this section in the same manner as it applies moneys received under a geoduck harvest agreement.

(5) Nothing in this section shall change the state's existing power to prosecute any person for theft of geoducks, for other crimes where geoducks are involved, or for regulations of the department of fisheries. If a person is convicted of theft or any other crime or violation, then all elements of the crime or violation are presumed for purposes of the civil remedy in this section.

Sec. 5. Section 7, chapter 141, Laws of 1979 ex. sess. as last amended by section 4, chapter 80, Laws of 1984 and RCW 75.10.140 are each amended to read as follows:

(1) In addition to the penalties prescribed in RCW 75.10.110 and 75.10.120, the director may revoke or refuse to renew geoduck diver licenses or geoduck tract licenses held by a person if:

(a) Within a five-year period that person is convicted or has an unvacated bail forfeiture for two or more violations of this title or rules of the director relating to geoduck licensing or harvesting in all waters of the state of Washington; or

(b) The department of natural resources suspended or canceled the lease or harvesting agreement under RCW 79.96.080.

(2) ((~~When~~)) Any employee of a geoduck tract licensee ((~~permits a~~)) who commits a violation of this title or rules of the director relating to geoduck harvesting resulting in a conviction or unvacated forfeiture of bail, or any person permitted by the licensee to harvest geoducks on ((~~that~~)) the licensee's tract, off of the tract, or at any other location in the waters of Puget Sound, ((~~each~~)) who commits a violation ((~~by that person~~)) of this title or rules of the director relating to geoduck licensing or harvesting resulting in: (a) Conviction or unvacated forfeiture of bail; or (b) suspension or cancellation of the lease or harvesting agreement by the department of natural resources under RCW 79.96.080; shall ((be)) have such conviction, bail, forfeiture, suspension, or cancellation imputed to the tract licensee for the purpose of computing the number of violations by the tract licensee under subsection (1) of this section.

(3) Except as provided in subsection (4) of this section, the director shall not issue a geoduck diver license or geoduck tract license to a person who has had a license revoked. This prohibition is effective for one year after the revocation.

(4) Appeals of revocations or refusals to renew under this section may be taken under the judicial review provisions of chapter ((~~34.04~~)) 34.05 RCW. If the license revocation or refusal to renew is determined to be invalid, the director shall reissue the license to that person.

Sec. 6. Section 27, chapter 21, Laws of 1982 1st ex. sess. and RCW 79.90.210 are each amended to read as follows:

(1) All sales of tidelands and shorelands belonging to the state, otherwise permitted by RCW 79.94.150 to be sold, shall be at public auction and all sales of valuable materials shall be at public auction or by sealed bid to the highest responsible bidder, on the terms prescribed by law and as specified in the notice provided, and no land or materials shall be sold for less than their appraised value: PROVIDED, That when valuable material has been appraised at an amount not exceeding twenty thousand dollars, the department of natural resources, when authorized by the board of natural resources, may arrange for the sale at public auction of said valuable material and for its removal under such terms and conditions as the department may prescribe, after the department shall have caused to be published ten days prior to sale a notice of such sale in a newspaper of general circulation located nearest to the property to be sold: PROVIDED FURTHER, That any sale of valuable material on aquatic lands of an appraised value of one thousand dollars or less may be sold directly to the applicant for cash without notice or advertising.

(2) Whenever there is reason to believe that the highest acceptable bid is not the highest price obtainable because of suspected collusion of its bidder, all bids may be rejected and the department may call for new bids.

(3)(a) The department may reject the bid of any bidder who the department determines has defaulted within the last three years or is currently in default in the performance of a contract with the state, or who the department determines has violated, within the last three years, any law or regulation relating to the sale or lease of public land or to the sale, lease, or harvest of natural resources. Further, if the bidder is a partnership or corporation, the department may also reject the bid if the bidder is controlled or managed by any person who would individually be disqualified from bidding under this section or who has controlled or managed any other partnership or corporation which would otherwise be disqualified.

(b) A decision to reject a bid may be appealed under the procedures contained in RCW 79.01.500 for court review of actions.

Sec. 7. Section 30, chapter 21, Laws of 1982 1st ex. sess. and RCW 79.90.240 are each amended to read as follows:

If no affidavit showing that the interest of the state in such sale was injuriously affected by fraud or collusion, ((~~shall be~~)) is filed with the commissioner of public lands within ten days from the receipt of the report of the auctioneer conducting the sale of any tidelands or shorelands belonging to the state, otherwise permitted by RCW 79.94.150 to be sold, or valuable materials located within or upon any aquatic lands, and it ((~~shall~~)) appears from such report that the sale was fairly conducted, that the purchaser was the highest responsible bidder at such sale, ((~~and~~)) that ((~~his~~)) the bid was not less than the appraised value of the property sold((. If the commissioner shall be satisfied that the lands, or material, sold would not, upon being readvertised and offered for sale, sell for at least ten percent more than the price at which it shall have been sold, and)), that there is no reason to believe that the highest acceptable bid is not the highest price obtainable, that the payment required by law to be made at the time of making the sale, has been made, and that the best interests of the state may be subserved thereby, the commissioner shall enter upon ((~~his~~)) the records a confirmation of sale and thereupon issue to the purchaser a contract of sale or bill of sale as the case may be, as is provided for in this chapter.

Sec. 8. Section 141, chapter 21, Laws of 1982 1st ex. sess. and RCW 79.96.080 are each amended to read as follows:

(1) Geoducks shall be sold through competitive bidding to the highest responsible bidder. After determining the highest responsible bidder under RCW 79.90.210, the department of natural resources may enter into ((~~leases or~~)) a harvesting agreement((s)) with that bidder for the harvesting of geoducks. The harvesting agreement may take whatever form the department deems appropriate, including a contract for harvest or a real property conveyance. The department of natural resources may place terms and conditions in the ((~~leases or~~)) harvesting agreements as the department deems necessary. The department of natural resources may enforce the provisions of any ((~~lease or~~)) harvesting agreement by suspending or canceling the ((~~lease or~~)) harvesting agreement or through any other means contained in the ((~~lease or~~)) harvesting agreement. The department of natural resources may cancel any ((~~lease or~~)) harvesting agreement upon receiving a report from the department of fisheries of the person's second violation of the geoduck licensing or harvesting provisions under Title 75 RCW. Any ((~~lessee~~)) geoduck harvester may terminate ((~~a lease~~)) an agreement entered into pursuant to this subsection if actions of a governmental agency, beyond the control of the ((~~lessee~~)) harvester, its agents, or its employees, prohibit harvesting, for a period exceeding thirty days, during the term of the harvesting agreement. Upon termination of the ((~~lease~~)) agreement, the ((~~lessee~~)) harvester shall be reimbursed by the ((~~lessor~~)) department for the cost paid on the ((~~lease~~)) agreement less the value of the harvest already accomplished by the ((~~lessee on the leasehold~~)) harvester under the agreement.

(2) After May 8, 1979, ((~~all leases or~~)) harvesting agreements under this title for the purpose of harvesting geoduck clams shall require the ((~~lessee~~)) harvester and the ((~~lessee's~~)) harvester's agent or representatives to comply with all applicable commercial diving safety standards and regulations promulgated and implemented by the federal occupational safety and health administration established under the federal occupational safety and health act of 1970 as such law exists on July 1, 1983 (84 Stat. 1590 et seq.; 29 U.S.C. Sec. 651 et seq.): PROVIDED, That for the purposes of this section and RCW 75.24.100 as now or hereafter amended, all persons who dive for geoducks are deemed to be employees as defined by the federal occupational safety and health act. All ((~~leases~~)) harvesting agreements shall provide that failure to comply with these standards is cause for suspension or cancellation of the ((~~lease~~)) harvesting agreement: PROVIDED FURTHER, That for the purposes of this subsection if the ((~~lessee~~)) harvester is the holder of a tract license and contracts with another entity for the harvesting of geoducks, the ((~~lease~~)) harvesting agreement shall not be suspended or canceled if the ((~~lessee~~)) harvester terminates its business relationship with such entity until compliance with the subsection is secured.

NEW SECTION. Sec. 9. A new section is added to chapter 79.01 RCW to read as follows:

The department of natural resources is authorized to offer and pay a reward not to exceed one thousand dollars in each case for reliable information regarding violations of RCW 79.90.210, 79.90.240, 79.96.080, or any statute or rule adopted pursuant to any statute relating to the state's public lands, natural resources, or any proprietary or regulatory function of the commissioner of public lands or the department of natural resources, including but not limited to Titles 75, 76, 78, and 79 RCW, and any rule adopted pursuant thereto. No reward shall be paid to federal, state, or local government or agency employees for information obtained by them in the normal course of their employment duties. The commissioner shall have the authority to determine the appropriate account or fund from which to pay the reward and no appropriation shall be required for disbursement.

NEW SECTION. Sec. 10. Sections 1 through 4 of this act are each added to chapter 79.96 RCW.