[atlas:bill]

AN ACT Relating to wildlife damage claims on rangeland suitable for grazing or browsing of domestic livestock; amending RCW 77.36.005, 77.36.010, 77.36.030, 77.36.040, 77.36.050, and 77.36.080; providing an effective date; and declaring an emergency.

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

Sec. 1. RCW 77.36.005 and 1996 c 54 s 1 are each amended to read as follows:

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, rangeland suitable for grazing or browsing of domestic livestock, 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 rangeland suitable for grazing or browsing of domestic livestock, 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)) products, horticultural products, or rangeland suitable for grazing or browsing of domestic livestock is beneficial to the claimant and the state.

Sec. 2. RCW 77.36.010 and 1996 c 54 s 2 are each amended to read as follows:

((~~Unless otherwise specified,~~)) The ((~~following~~)) definitions in this section apply throughout this chapter((:)) unless the context clearly requires otherwise.

(1) "Crop" means a commercially raised horticultural and/or agricultural product and includes growing or harvested product ((~~but does not include livestock~~)) and rangeland forage on privately owned land or on lands leased from any public agency suitable for grazing or browsing of domestic livestock for at least a portion of the year. For the purposes of this chapter all parts of horticultural trees shall be considered a crop and shall be eligible for claims.

(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.

Sec. 3. RCW 77.36.030 and 1996 c 54 s 4 are each amended to read as follows:

(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 and on lands leased from any public agency suitable for grazing or browsing of domestic livestock, the landowner or lessee may declare an emergency only when the department has not responded within forty-eight hours after having been contacted by the landowner 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.

Sec. 4. RCW 77.36.040 and 1996 c 54 s 5 are each amended to read as follows:

(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:

(a) The value of such commercially raised horticultural or agricultural crops, whether growing or harvested((~~, and~~)); or

(b) Damages to rangeland livestock forage in excess of ten percent of historic use levels for privately owned land or on lands leased from any public agency and fenced ranch or farm units that are specifically limited to hay meadows, pasture meadows, artificially seeded rangelands, and grazing land that is deferred to seasonal use. Historic levels must be expressed in average numbers of deer and elk on the property in question over the previous ten years.

Damages shall be paid only to the owner of the crop or the lessee of rangeland from a public agency 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. Except for rangeland, the burden of proving damages shall be on the claimant. For rangeland, if the director does not agree with the claimant on normal historic levels or any element of a damage settlement, the matter must be submitted to arbitration within ten days of notice by either party. The arbitration panel consists of one arbitrator chosen by the landowner, one arbitrator chosen by the director, and one arbitrator chosen by the other two arbitrators. If the two arbitrators cannot agree within ten days on a third arbitrator, a request by either party must be made to the superior court of the county in which the damage is located for appointment of a third impartial arbitrator. The director and landowner equally share the cost of the use of the third arbitrator. Historic levels or any other element settled by arbitration may be included in an appeal to a court of competent jurisdiction, and the court is not bound by the finding of the arbitration panel. 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 knowledgeable in horticultural or agricultural practices. 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;

((~~(c)~~)) (b) The director has expended all funds appropriated for payment of such claims for the current fiscal year; or

((~~(d)~~)) (c) 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) Except for claims for damages to rangeland livestock forage, 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.

Sec. 5. RCW 77.36.050 and 1996 c 54 s 6 are each amended to read as follows:

Except for claims for damages to rangeland livestock forage, if the claimant does not accept the director's decision under RCW 77.36.040, 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. Claims for damages to rangeland livestock forage must be settled under RCW 77.36.040(2).

Sec. 6. RCW 77.36.080 and 1996 c 54 s 9 are each amended to read as follows:

(1) The department may pay no more than thirty thousand dollars per fiscal year from the general fund for claims under RCW 77.36.040 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 RCW 77.36.040 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, or rangeland forage on privately owned land or on lands leased from any public agency suitable for grazing or browsing of domestic livestock for at least a portion of the year 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 RCW 77.36.040 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 RCW 77.36.040 and the department has expended all funds authorized under RCW 77.36.070 or subsection (1) of this section.

NEW SECTION. Sec. 7. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect July 1, 2001.