Francis J. Walker
Attorney at Law
2723 Hillsdale Drive
Olympia, Washington 98501
Re: Appeal of the January 16, 2001 denial by the Department
of Fish and Wildlife (the "Department") of that certain
Petition for Adoption, Amendment, or Repeal of a State
Administrative Rule, dated June 16, 2000, filed by Kevin G.
Byrd on behalf of the Association for the Protection of
Hammersly, Eld & Totten Inlets (APHETI) with respect to WAC 220-77-040 and WAC 220-77-020(11) (the "Petition")
Dear Mr. Walker:
Pursuant to RCW 34.05.330(3), I have fully reviewed your appeal
of the Petition. It is my policy to intervene in matters
presented to me under RCW 34.05.330(3) only when I believe the
administrative agency 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, so long as those decisions are well
founded and proper under the law. This is an extremely high
standard of review.
After reviewing the record of the Department's actions and the
arguments offered in your appeal, I have determined that the
Department had a good-faith basis for its decision not to amend
or repeal the regulations. The Department did not abuse its
discretion or act arbitrarily or capriciously. Accordingly, I
have denied your appeal.
Pursuant to RCW 77.12.047 and RCW 77.115.010, the Department has
statutory authority to adopt rules regulating the prevention and
suppression of diseases and pests affecting shellfish, and, with
Department of Agriculture, to protect the aquaculture industry
from aquatic diseases or maladies.
Based on that authority, the Department adopted a comprehensive
group of aquaculture disease control rules (WAC 220-77). The
rules include a definition of "established species" which is a
species that has been propagated through aquaculture for at least
ten years or a species naturally reproducing in Washington (WAC 220-77-020(11)). The rules state that "established species from
existing import areas with current disease free tissue
certification from areas of origin free of Class A shellfish
diseases are eligible for continued importation" (WAC 220-77-040(3)).
Your argument appears to be that the Department has no authority
to make this rule because it confers an exemption from disease
control measures, relating to the importation of shellfish,
"based solely on the time it has been commercially harvested or
reproduced in Washington State."
The Department clearly has rule making authority relating to
"regulating the prevention and suppression of diseases and pests
affecting...shellfish" (RCW 77.12.047), and to the development of a
program of disease inspection and control for aquatic farmers,
and that the program may include import and transfer requirements
(RCW 77.115.010).
Accordingly, the Department has created a category of
aquaculture, "established species" that may be imported into
Washington, provided that the imported species meet the disease
control conditions specified in 220-77-040(3). The Department
acted consistently with its statutory responsibilities. The
determining factor in regulating a species is not time, but
certification that the species in question comes from a disease
free area.
For these reasons I must deny your appeal. Thank you for your
extensive efforts to protect the indigenous species of marine
life in Puget Sound, and your and profound commitment to the
environment of our state.
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
Jeff Koenigs, Department of Fish and Wildlife
Reviser's note: The spelling error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.