WSR 07-20-045


[ Filed September 26, 2007, 9:16 a.m. ]


RCW 34.05.330(3)

Pursuant to RCW 34.05.330(3), you are hereby notified for publication in the Washington State Register that:

On September 13, 2007, the Governor's Office received an appeal from Mr. Jon Bial relating to the Washington Department of Fish Wildlife's Emergency Rule WAC 232-28-61900U. Governor Gregiore denied the appeal on September 17, 2007.

DATE: September 18, 2007

Richard E. Mitchell

General Counsel to the Governor

September 17, 2007

Jon Bial, Esq.

Law Offices of Jon Bial

1101 Andover Park West, Suite 102

Tukwila, WA 98188

RE: Petition for Review of Department of Fish & Wildlife ("Department")
Emergency Rule - WAC 232-28-61900U

Dear Mr. Bial

This letter is in response to your Petition for Review of the emergency rule that the Director of the Department of Fish and Wildlife issued to modify the fishing season for the Kalama River. The rule is identified in the Washington Administrative Code as WAC 232-28-61900U. In denying your petition, I have decided not to repeal the rule.

RCW 34.05.350(3) specifies that my review must be confined to an analysis of whether the statutory conditions for emergency rule-making are present. In other words, I may only consider whether the rule is necessary for the preservation of the public health, safety, or general welfare and whether the use of normal rule-making requirements would be contrary to the public interest. RCW 34.05.350 (1)(a). The scope your petition touches on other issues which I will endeavor to address in the course of explaining the basis for my decision. However, my decision is based solely upon my conclusion that the emergency rule is needed to preserve the general welfare and that following normal rulemaking time limits would not facilitate that objective.

It is my understanding that the emergency rule was issued to address unforeseen biological impacts to fish populations in the Kalama River. In the early summer months of 2007, the Kalama River experienced low river flows. Spring Chinook and Steelhead were present. Hatchery and wild fish, which are listed under the Endangered Species Act, were mixed together. Consequently, continued fishing activity under these conditions, particularly at night, poses a substantial increase in the likelihood of snagging fish. Not only is there increased potential for unlawful snagging, there is an increased potential that even normal fishing activities will result in snagged fish. Illegal snagging has detrimental biological impacts due to the loss of spawning fish that are illegally kept. Even unintentional snagging has impacts because hooked fish are injured and there is increased mortality. Where ESA-listed fish are present, these concerns are significantly greater.

While low flows may be normal for the Kalama this time of year, it became apparent to Department staff that the number of fish and the amount of snagging was markedly higher than in the past. The Department does not have sufficient enforcement staff to fully address the increased rate of snagging. In addition, as noted above, this is more than just a question of illegal fishing. Fish may be snagged unintentionally in these conditions. Returning an injured fish to the river may have the same detrimental consequences as unlawful harvest.

Recently, ESA-listed fall Chinook and Coho salmon have begun to arrive in the river. The high amount of snagging that was originally observed for spring Chinook and steelhead has passed, but there is a new and independent concern for even higher levels of snagging of fall Chinook and Coho justifying an emergency closure of night time fishing through October. The October 31, 2007, date was chosen on the belief that fall rains will increase river flows and alleviate the immediate concern.

Based upon these considerations, I have concluded that the Department has provided sufficient information to justify the emergency rule to further the general public welfare. Healthy populations of fish, and the protection of ESA-listed fish, are objectives that Washington's citizens care about very deeply. As discussed above, the higher than expected numbers of fish, the presence of ESA-listed fish, and the unanticipated amount of snagging relative to historical trends are exigent circumstances. The normal rule-making timelines would not provide the opportunity to respond to these emergent factors.

The Department has informed me that they are moving forward with the adoption of a permanent rule dealing with the issue of snagging. A permanent rule-making application was filed prior to the adoption of the emergency rule that you referenced and is actively being pursued at this time. A copy of the application is available from Steven Vigg, the Department's Region 5 Fish Program Harvest Manager. Mr. Vigg can be reached at (360) 906-6710. I encourage you to participate in this process.


Christine O. Gregoire


Washington State Code Reviser's Office