WSR 00-18-105

OFFICE OF THE GOVERNOR


[ Filed September 6, 2000, 10:21 a.m. ]

September 6, 2000


Mr. Ivan Urnovitz and Mr. Vernon Young

Northwest Mining Association

10 North Post Street, Suite 414

Spokane, Washington 99201-0772


Re: RCW 34.05.330(3) appeal of the June 26, 2000 denial by the Washington Fish and Wildlife Commission ("Commission") of that certain Petition for Reconsideration to Amend or Repeal Provisions of the "Gold & Fish Rule" to Deregulate Gold Panning Activities and Other Purposes ("Petition"), dated May 12, 2000

Dear Mr. Urnovitz and Mr. Young:


Thank you for your letter dated July 25, 2000 and received by my office on July 26, 2000, appealing the Commission's decision to deny the Petition.


Pursuant to RCW 34.05.330(3), I have fully reviewed your appeal of the Petition and the relevant statutes and regulations, and have affirmed the Commission's decision.


It is my policy to intervene in matters presented to me under RCW 34.05.330(3) only when I believe the agency or commission whose decision is at issue has abused its discretion or acted arbitrarily or capriciously. It is also my policy not to second-guess the thoughtful and deliberate decisions of a state agency or commission, so long as those decisions are well founded and proper under the law. This is an extremely high standard of review.


The Commission had a proper basis for is decision to deny the Petition for the reasons described below. I have responded to each of your arguments in turn:


1. Hand-held pan exemption: You argued that the Commission failed respond to your point that hand-held pans are not regulated by the states of Idaho or Oregon. Whether or not these states regulate this form of prospecting is immaterial to the Commission's or the Washington Department of Fish and Wildlife's ("WDFW") authority to do so, and therefore that objection is not relevant.


I understand that individual gold pans must each have a very small impact on the environment. However, I am not in a position to judge the cumulative effect of all small scale panning in a particular stream. Because RCW 75.20.330 explicitly includes pans in its definition of methods used for "small scale prospecting and mining," WDFW is authorized to regulate their use.


2. Authority to regulate activities above the ordinary high water line: WDFW is authorized by the former RCW 75.20.100(1) (recently recodified in Chapter 77 RCW) to review and approve or deny "any form of hydraulic project or ... other work that will use, divert, obstruct, or change the natural flow or bed of any of the salt or fresh waters of the state." The statute does not limit this authority to areas below ordinary high water or any other water/land boundary. Accordingly, WDFW is clearly authorized to regulate activity outside the ordinary high water line. WDFW is to base its regulatory decisions on "the proper protection of fish life." It appears from the quoted language in your letter that you misread the statute.


As with gold panning, applying common sense, I understand your point that it is difficult to see how one individual working with a shovel more than 200 feet beyond the ordinary high water line might affect the natural flow or bed of a stream. Similarly applying common sense, however, it is also easy to understand how the cumulative effect of one or several people working along a stream, over time, could materially affect the flow of sediment into a stream and affect fish life.


Please note that the Gold and Fish pamphlet allows exceptions to its restrictions if parties seek a standard Hydraulic Project Approval; thus, activities in the 200 feet beyond the ordinary high water line are not precluded but simply require additional consideration. I urge you to seek an exception if you have an appropriate project in mind.


3. Adequacy of Small Business Economic Impact Statement ("SBEIS"): The statute requiring an SBEIS, RCW 19.85.040, does not require agencies to address secondary impacts of regulations. The SBEIS prepared by WDFW deals with the impacts of the Gold and Fish rule on small commercial prospecting and mining businesses and compares those impacts to effects on large prospecting and mining businesses. The document does not, nor is the agency required to, address the effects of the rule on those who might supply equipment to the parties directly affected. The SBEIS appears to meet the department's legal obligations.


4. Lack of access to documentation justifying rule content: It is my understanding that WDFW has maintained a complete rule-making file, as required by RCW 34.05.370, that includes all materials used or submitted in the course of developing the Gold and Fish pamphlet. This file is available for public review upon request.


5. Applicability of rule to activities above ordinary high water line: As noted above, WDFW is not statutorily limited to applying the Hydraulic Code only to activities within the ordinary high water line. WDFW is authorized by the former RCW 75.20.100(1) (recently recodified in Chapter 77 RCW) to review and approve or deny "any form of hydraulic project or ... other work that will use, divert, obstruct, or change the natural flow or bed of any of the salt or fresh waters of the state." WDFW is to base its decisions on "the proper protection of fish life." The statute does not limit this authority to areas below ordinary high water or any other water/land boundary. In its efforts to "preserve, protect, perpetuate and manage the food fish and shellfish in state waters and offshore waters" (former RCW 75.08.012) WDFW must exercise judgment in determining whether excavation activity (which could include situations where groups are prospecting together and thereby exceed "any individual using a regular shovel") could affect water flow into a streambed or watercourse that could change the natural flow or bed. This is fully within WDFW's jurisdiction.


Thank you for your extensive efforts and profound commitment to preserving micro-scale mining opportunities for Washington's citizens. I urge you to pursue mining methods that can be granted permits or exceptions as provided in the Gold and Fish pamphlet.


Sincerely,

Gary Locke

Governor

cc: Dennis W. Cooper, Code Reviser
Tim Martin, Co-Chief Clerk, House of Representatives
Cindy Zehnder, Co-Chief Clerk, House of Representatives
Tony Cook, Secretary of the Senate
Kelly D. White, Chairman, Washington Fish and Wildlife Commission
Jeff Koenings, Director, WDFW

Washington State Code Reviser's Office