PROSECUTORS’ MANUAL
FOR
FISH AND WILDLIFE VIOLATIONS
Prepared by:
Office of the Attorney General
Fish, Wildlife and Parks Division
P.O. Box 40100
Olympia, WA 98504-0100
Revised March 2007
TABLE OF CONTENTS
I. OVERVIEW OF THE WASHINGTON state DEPARTMENT OF FISH AND WILDLIFE vi
A. General Statutory Authority vi
B. Organization vi
C. Legal Counsel viii
II. criminal AND CIVIL ENFORCEMENT AUTHORITY viii
A. Generally viii
B. Search and Seizure viii
C. Civil Forfeiture ix
D. License Revocation and Suspension ix
III. HYDRAULIC CODE AUTHORITY xii
A. Background xii
B. HPA Requirements xii
C. Violations of the Hydraulic Code xii
D. Administrative Remedies Related to HPAs xiii
IV. Venue and Jurisdiction xiii
A. Venue xiii
B. Jurisdiction xiv
1. Personal Jurisdiction xiv
2. Columbia River Compact xiv
3. Offshore Waters xv
4. Federal Lands xvi
a. National parks xvi
b. National forests xvi
c. Migratory bird preserves xvi
d. Federally leased or purchased lands. xvi
e. Military bases xvi
V. GENERAL DEFENSES and CHALLENGES xvi
A. Rule Challenge xvi
B. Lack of Mens Rea xviii
C. Preservation of Evidence xix
D. Misdemeanor Presence Rule xx
VI. OFF-RESERVATION INDIAN TREATY FISHING AND HUNTING RIGHTS IN WASHINGTON STATE xxi
VII. APPENDIX xxxvii
A. Unlawful Taking of Endangered Fish or Wildlife xxxvii
1. Elements xxxvii
a. Second degree (gross misdemeanor, mandatory appearance) xxxvii
b. First degree (class C felony, mandatory appearance) xxxvii
2. Related Statutes and Rules xxxviii
B. Unlawful Transportation of Fish, Shellfish, Wildlife or Aquatic Plants xxxviii
1. Elements xxxviii
a. Second degree (misdemeanor) xxxviii
b. First degree (gross misdemeanor, mandatory appearance) xxxviii
c. Transportation of Aquatic Plants (misdemeanor) xxxix
2. Related Statutes and Rules xxxix
C. Unlawful Hydraulic Project Activities xxxix
1. Elements (gross misdemeanor, mandatory appearance) xxxix
2. Related Statutes and Rules xl
D. Fish Guard and Fishway Offenses xl
1. Elements xl
a. Fish guard offense (RCW 77.15.310) (gross misdemeanor, mandatory appearance) xl
b. Fishway offense (RCW 77.15.320) (gross misdemeanor, mandatory appearance) xl
c. Continuing violations (for both the fish guard and fishway offenses, each day the violation continues constitutes a separate offense) xli
2. Related Statutes and Rules xli
E. Recreational Fishing Violations xli
1. Elements xli
a. Second degree (RCW 77.15.380) (misdemeanor) xli
b. First degree (RCW 77.15.370) (gross misdemeanor) xlii
2. Related Statutes and Rules xlii
F. Unlawful Hunting of Big Game xlii
1. Elements xliii
a. Second Degree (gross misdemeanor) xliii
b. First Degree (class C felony, mandatory appearance) xliii
2. Special Penalties xliii
3. Related Statutes and Rules xliv
G. Spotlighting Big Game xliv
1. Elements xliv
a. Second degree (gross misdemeanor) xliv
b. First degree (class C felony, mandatory appearance) xliv
2. Related Statutes and Rules xlv
H. Loaded Firearm in Vehicle and Unlawful Use or Possession of a Firearm xlv
1. Elements xlv
a. Possession in a vehicle (misdemeanor) xlv
b. Unlawful use (misdemeanor) xlv
2. Applicability xlv
3. Related Statutes and Rules xlvi
I. Violation of Commercial Fishing Area or Time xlvi
1. Elements xlvi
a. Second degree (gross misdemeanor) xlvi
b. First degree (class C felony, mandatory appearance) xlvi
2. Related Statutes and Rules xlvii
J. Unlawful Use of a Net to Take Fish xlvii
1. Elements xlvii
a. Second degree (gross misdemeanor, mandatory appearance) xlvii
b. First degree (class C felony, mandatory appearance) xlviii
2. Applicability xlviii
3. Related Statutes and Rules xlviii
I. OVERVIEW OF THE WASHINGTON state DEPARTMENT OF FISH AND WILDLIFE
A. General Statutory Authority
RCW Title 77 confers upon the Fish and Wildlife Commission (“Commission”) and the Department of Fish and Wildlife (“WDFW” or “the Department”) the duty to preserve, protect, perpetuate, and manage wildlife, food fish, game fish, and shellfish in state waters and offshore waters. RCW 77.04.012. The Commission’s and the Department’s authorities encompass all those duties previously divided between the individual Department of Fisheries and Department of Wildlife, which were merged by the Legislature effective March 1994. In general, the Commission sets policy and adopts the basic rules regarding the management of fish, shellfish and wildlife, and governing the time, place, manner and methods for harvesting or taking fish, shellfish and wildlife. RCW 77.12.047. The Department also possesses some limited rulemaking authority. E.g. RCW 77.12.150. Pursuant to these rules, the Department regulates recreational (sport) hunting and fishing, commercial fishing, and hydraulic projects. Rules governing fisheries management and hydraulic projects are found at WAC Title 220, while rules governing wildlife management are at WAC Title 232.
B. Organization
The Department is organized into five programs: Fish, Wildlife, Habitat, Enforcement, and Business Services. The Fish Program includes hatcheries, science, and fish management divisions. The Wildlife Program includes wildlife diversity, game, lands, and science divisions. The Habitat Program is responsible, among other things, for granting or denying Hydraulic Project Approvals (“HPA”). The Licenses Division (responsible for issuing sport and commercial licenses) is part of the Business Services Program. The Enforcement Program consists of Fish and Wildlife enforcement officers who are general authority peace officers. Fish and Wildlife officers are responsible for investigating and citing fish and wildlife enforcement code (RCW 77.15) violators, as well as other general crimes, and for controlling problem wildlife.
The Department’s main administrative office is in Olympia at the Natural Resources Building, and there are six regional offices. Regional program staff include enforcement officers, field and habitat biologists and fish and wildlife managers.
Olympia Office (Main Office)Main Office—physical location: / Natural Resources Building
1111 Washington St. SE
Olympia, Washington 98501
Main Office—mailing address:
Tel. (360) 902-2200
Fax (360) 902-2230, TDD (360) 902-2207 / 600 Capitol Way North
Olympia, WA 98501-1091
Region 1—Eastern Washington
(Asotin, Columbia, Ferry, Garfield, Lincoln, Pend Oreille, Spokane, Stevens, Walla Walla, and Whitman Counties)
8702 North Division Street
Spokane, Washington 99218-1199
(509) 456-4082
Fax (509) 456-4071 / Region 4—North Puget Sound
(Island, King, San Juan, Skagit, Snohomish, and Whatcom Counties)
16018 Mill Creek Boulevard
Mill Creek, Washington 98012-1296
(425) 775-1311
Fax (425) 338-1066
Region 2—North Central Washington
(Adams, Chelan, Douglas, Grant and Okanogan Counties)
1550 Alder Street NW
Ephrata, Washington 98823-9699
(509) 754-4624
Fax (509) 754-5257 / Region 5—Southwest Washington
(Clark, Cowlitz, Klickitat, Lewis, Skamania and Wahkiakum Counties)
2108 Grand Boulevard
Vancouver, Washington 98661-4624
(360) 696-6211
Fax (360) 906-6776
Region 3—South Central Washington
(Benton, Franklin, Kittitas and Yakima Counties)
1701 South 24th Avenue
Yakima, Washington 98902-5720
(509) 575-2740
Fax (509) 575-2474 / Region 6—Coastal Washington
(Clallam, Grays Harbor, Jefferson, Kitsap, Mason, Pacific, Pierce, and Thurston Counties)
48 Devonshire Road
Montesano, Washington 98563-9618
(360) 249-4628
Fax (360) 664-0689
The Enforcement Program staff can assist with officer contacts, and, can provide officers’ reports. Olympia and Regional Enforcement staff can be reached at the following telephone numbers:
Olympia Headquarters (360) 902-2936
Emergency/Incident Hotline 1-800-477-6224
Region 1 (509) 456-4082
Region 2 (509) 754-4624
Region 3 (509) 575-2740
Region 4 (425) 775-1311
Region 5 (360) 696-6211 or (360) 906-6700
Region 6 (360) 586-6129 or (360) 249-4628
Statewide Marine Detachment (360) 586-6129 or (360) 249-4628
C. Legal Counsel
The Fish, Wildlife and Parks Division of the Attorney General’s Office (“AGO”) acts as legal counsel to WDFW. Attorneys in the Division may be available to help prosecutors pursue fish and wildlife enforcement code violations in several ways, including consultation, legal research, and briefing, depending on workload. Here is how you can contact the AGO:
Attorney General of Washington
Fish, Wildlife and Parks Division
1125 Washington Street SE
P.O. Box 40100
Olympia, Washington 98504-0100
(360) 753-6200
Fax (360) 586-3454
II. criminal AND CIVIL ENFORCEMENT AUTHORITY
A. Generally
Hunting and fishing (both commercial and recreational) in Washington are closely regulated activities. The Fish and Wildlife Enforcement Code, RCW 77.15, contains the criminal code applicable to fish and wildlife violations, and, license suspension provisions. For many fish and wildlife crimes, the violation of a fish or wildlife rule (a
WAC) is an element of the crime. As indicated above, rules governing recreational and commercial fishing are found at WAC Title 220, while rules governing hunting are at WAC Title 232.
Fish and Wildlife rules are frequently amended by the Department or the Commission to respond to fisheries and wildlife management needs. Therefore, it is important to refer back to the rule and determine which version of the rule was in effect at the time of the violation. This is particularly important in prosecuting violations involving hunting or fishing when the season is designated as closed for that species or area.
The appendix to this manual contains the ten most common fish and wildlife crimes including related rules.
B. Search and Seizure
With the Governor’s signing of Engrossed Substitute Senate Bill 6076 in 2002, WDFW was designated a “general authority Washington law enforcement agency.” WDFW enforcement officers have such police powers and duties as are vested in sheriffs and peace officers generally. RCW 77.15.075. Previously, WDFW enforcement officers were “limited authority peace officers” whose authority was limited to laws governing the subject matter of WDFW, and those general criminal offenses that occurred within an officer’s presence.
WDFW enforcement officers are authorized to stop and inspect persons engaged in hunting and fishing activities, and can request photo identification or signature verification. RCW 77.15.080.[1] Officers may seize evidence without a warrant if they have probable cause to believe that fish, wildlife or shellfish have been taken, transported, or possessed in violation of the law. RCW 77.15.085. While a court must issue search warrants upon a showing of probable cause, fish and wildlife officers may also make a reasonable warrantless search of broadly-defined “receptacles for fish, seaweed, shellfish, and wildlife” that they have reason to believe contain evidence of a violation of fish and wildlife laws or rules. They may also seize evidence as necessary for law enforcement. RCW 77.15.090, .094. WDFW enforcement officers may also inspect without warrant the premises and records of any commercial fisher, fish or fur buyer, fish dealer, taxidermist, shipping agent, or any retail outlet selling fish, shellfish or wildlife. RCW 77.15.096. Any authority granted under RCW 77.15.094 and RCW 77.15.096 does not extend to quarters in a boat, building, or other property used exclusively as a private domicile; does not extend to transitory residences in which a person has a reasonable expectation of privacy; and does not allow search and seizure without a warrant in violation of Article I, section 7 of the State Constitution. RCW 77.15.094, .096.
C. Civil Forfeiture
Boats, airplanes, vehicles, motorized implements, conveyances, gear, appliances or other articles may be subject to civil forfeiture regardless of whether they have been seized as evidence. WDFW enforcement officers may seize these items without warrant if they have probable cause to believe the items were held with intent to violate, or were used in violation of RCW Title 77 or the Department’s rules. RCW 77.15.070. A conviction is not required for this type of civil forfeiture.
The Legislature intended civil forfeiture to be a remedial civil sanction. Civil forfeiture does not constitute “punishment” for purposes of the double jeopardy clause of either the Washington or U.S. Constitutions[2]. Thus, double jeopardy does not preclude criminal prosecution for the same offense that triggered the civil forfeiture.
Property seized is subject to forfeiture to the state regardless of ownership. Persons claiming rights of ownership or possession of seized property are entitled to an administrative hearing to contest forfeiture. However, if the aggregate value of the property seized is more than five thousand dollars, the claimant may remove the matter from the administrative tribunal to “a court of competent jurisdiction,” RCW 77.15.070(4), which is the county superior court. RCW 4.92.010.
At a hearing to contest forfeiture, the burden is on WDFW to demonstrate that it had reason to believe the property was held with intent to violate or used in violation of fish and wildlife laws. Persons contesting forfeiture have the burden of proof by a preponderance of evidence that they own or have a right to possess the property, and (a) that the property was not held with intent to violate or used in violation of RCW Title 77; or (b) if the property is a boat, airplane, or vehicle, that the illegal use or planned illegal use of the boat, airplane, or vehicle occurred without the owner’s knowledge or consent, and that the owner acted reasonably to prevent illegal uses of such boat, airplane, or vehicle. RCW 77.15.070(5). Because these are civil proceedings, the AGO represents WDFW if necessary.
D. License Revocation and Suspension
RCW 77.15.680(2) states that a court may order suspension of fishing and hunting privileges only if grounds are provided by statute. Conversely, RCW 77.15.680(1) and (3) mandate that WDFW revoke and suspend privileges when a statute so provides or upon conviction of any crime punishable by suspension. The revocation and suspension of privileges is a civil sanction imposed by the agency. As with the administrative suspension of driving privileges in a DUI case, WDFW suspensions and revocations cannot be waived or reduced as part of the criminal case. The following is a list of statutory provisions that require WDFW to revoke and/or suspend privileges.
1. RCW 77.15.120 (3)(b) (The Department shall revoke any licenses or tags used in connection with the crime of unlawful taking of endangered fish or wildlife in the first degree and shall order suspension of the person’s privileges to hunt, fish, trap, or obtain licenses under RCW Title 77 for two years.)
2. RCW 77.15.170(3)(b) (Upon conviction for waste of fish and wildlife in the first degree, the Department shall revoke any license or tag used in the crime and shall order suspension of the person’s privileges to engage in the activity in which the person committed the crime for a period of one year.)
3. RCW 77.15.198 (The Director shall revoke the trapping license of any person convicted of a violation of RCW 77.15.194 (unlawful use of traps or sale of raw fur of a mammal unlawfully trapped) or RCW 77.15.196 (unlawful use of poison) and shall not issue the violator a trapping license for five years following the revocation. For a subsequent conviction for a violation of RCW 77.15.194 or 77.15.196, the Director shall not issue a trapping license to the person at any time.)
4. RCW 77.15.245(4) (The Department shall revoke the hunting license of a person who violates RCW 77.15.245(1) or (2) (prohibiting the baiting of black bear or the use of dogs to hunt black bear, cougar, bobcat, or lynx) and order the suspension of wildlife hunting privileges for a period of five years following the revocation. For a subsequent violation, a hunting license shall not be issued at any time.)