Beatty v. Wash. Fish & Wildlife Comm'n
| Decision Date | 15 January 2015 |
| Docket Number | No. 31409–0–III.,31409–0–III. |
| Citation | 341 P.3d 291,185 Wash.App. 426 |
| Parties | Bruce M. BEATTY, Appellant, v. WASHINGTON FISH AND WILDLIFE COMMISSION, Washington Department of Fish and Wildlife, and Pollution Control Hearings Board, Respondents. |
| Court | Washington Court of Appeals |
185 Wash.App. 426
341 P.3d 291
Bruce M. BEATTY, Appellant
v.
WASHINGTON FISH AND WILDLIFE COMMISSION, Washington Department of Fish and Wildlife, and Pollution Control Hearings Board, Respondents.
No. 31409–0–III.
Court of Appeals of Washington, Division 3.
Jan. 15, 2015.
James Laurence Buchal, Murphy & Buchal LLP, Portland, OR, for Appellant.
James R. Schwartz, Jessica E. Fogel, Washington Attorney General's Office, Olympia, WA, for Respondent.
Diane L. McDaniel, Attorney at Law, Olympia, WA, for Other Parties.
Opinion
KNODELL, J.*
¶ 1 Bruce Beatty applied for a hydraulic mining permit to operate a suction dredge on Fortune Creek outside of the work window dates established by the Washington Department of Fish and Wildlife (WDFW) Fish and Gold Pamphlet. The WDFW granted the permit, but included a condition that limited suction dredging to the dates within the work window. The WDFW informed Mr. Beatty that his request to operate a suction dredge outside the work window could still be granted if he provided site specific information that allowed the WDFW to assess the impact to fish life. Mr. Beatty refused and appealed the permit decision to the Pollution Control Hearings Board (PCHB). The PCHB upheld the terms of the permit, concluding that WDFW's decision was reasonably designed to protect fish life and not out of proportion to the proposed dredging activity given the lack of information provided by Mr. Beatty. The superior court upheld the PCHB's decision. Mr. Beatty appeals. We find no error with the PCHB's decision to uphold the permit. We affirm the decision of the superior court.
FACTS
¶ 2 The WDFW regulates placer mining statewide.1 In 2009, the WDFW instituted the current placer mining regulations in the Gold and Fish Pamphlet (Pamphlet). According to the Pamphlet, placer miners are allowed to use certain small handheld tools without restriction. However, miners using motorized equipment, such as suction dredges, are restricted to specific dates established for individual streams throughout the state. Miners wishing to prospect outside the allowed mining methods or dates established
in the Pamphlet can apply to the WDFW for an individual hydraulic project approval (HPA) permit.
¶ 3 The specific dates, known as work windows, are developed to protect fish spawning activity and egg development through the emergence of juvenile fish called fry. The timing of the work window for each stream is based on the spawning habits of fish species residing in the stream. An important spawning habit is the creation of nests, called redds. A redd is formed when a spawning female fish excavates a hole in small, loose gravel on the stream bed and deposits eggs. After a male fish fertilizes the eggs, the female pushes gravel over the eggs. The eggs develop in the gravel.
¶ 4 Suction dredging mining disturbs gravel in a stream bed, although miners tend to target packed gravel as opposed to the loose gravel used by fish. A suction dredge uses a gas engine and suction hose to remove material from the stream bed. The material is then deposited in a sluice box on a floating platform where the riffle box captures heavier gold. The remaining material is discarded from the unit and returned to the stream. While operating the suction dredge, the miner is in the water lying prone on or near the stream bed with a diving mask, directing the hose to the desired material. Miners pay close attention to the material entering the hose to prevent items from clogging the flow and slowing the process.
¶ 5 Typically, the best gold is found near or on bedrock. Miners using a suction dredge commonly test the productivity of an area by creating a sample hole down to the bedrock. If there are no viable signs of gold, the miner will move to another location. However, because the dredge equipment is heavy, miners pick a spot that gives them the most opportunities for alternatives.
¶ 6 Generally, areas ideal for suction mining are not ideal for fish redds. Suction dredge miners generally do not consider loose streambed material favorable for gold deposits. However, both placer miners and
redd building fish
like stream material that collects on the back side of large boulders and rocks.
¶ 7 Mr. Beatty sought an HPA permit to operate a suction dredge on Fortune Creek outside the work window. Fortune Creek is a high elevation, high velocity tributary to the Cle Elum River. While the main stem of the creek is approximately 2.5 miles, the creek also has a north fork, a south fork, and a number of smaller tributaries. The creek passes through federally owned forest land and is open to recreational fishing.
¶ 8 Different portions of the Fortune Creek system exhibit distinct habitat characteristics for fish. Some areas have boulders with limited spawning areas, and other areas have more gravel and less velocity, creating a better spawning environment. Several species are known to reside in the creek, including spring cutthroat trout, rainbow trout, fall brook trout, and whitefish. Additionally, bull trout redds and limited numbers of bull trout have been observed in Fortune Creek.
¶ 9 For Fortune Creek, the work window for suction dredging is August 1 through August 15. WDFW based the start date on rainbow trout and steel head spawning in similar streams in the vicinity of Fortune Creek. The ending date is based on the observation of bull trout redds in the creek. Although discovery of the redds occurred in September, WDFW concluded that the redds were likely constructed in August.
¶ 10 In Mr. Beatty's HPA permit, he sought to use suction dredging and powered highbanking tools on Fortune Creek anywhere within the Fortune Creek watershed at any time within the five year period between May 1, 2011, and September 30, 2016, with suction dredging occurring between the months of May and September.
¶ 11 Mr. Beatty intended to dredge 60 linear feet of stream bed each year. He planned to use either a three- to four-inch suction intake nozzle, or if allowed, a six-inch
suction intake nozzle. Like other miners, Mr. Beatty planned to put down sample holes until he reached a satisfactory site. If he found a deposit, he possibly would use a highbanker in conjunction with the suction dredge.2
¶ 12 The WDFW issued Mr. Beatty a two year HPA permit and granted his request to use a gasoline-powered highbanker outside of the work window in the Pamphlet. However, the WDFW limited suction dredging to the two-week work window. In a letter to Mr. Beatty, the WDFW explained that it granted the permit for the highbanker but wished to conduct a site visit to evaluate the impact that the prospecting activities had on fish life in the relatively small stream. It also stated that it could not approve the suction dredging request because Fortune Creek had both spring and fall spawning fish, and eggs from these fish could be found in the gravel before and after the approved work window. Nevertheless, the WDFW said that permit approval for suction dredging was still a possibility for Mr. Beatty in Fortune Creek. The letter continued, “ ‘[I]f you were to provide us with site specific information where we can conduct a site assessment regarding the impacts to fish life, we may be able to issue a permit to allow work with a suction dredge outside of the standard work window.’ ” Clerk's Papers (CP) at 57.
¶ 13 Mr. Beatty chose not to provide site specific information to WDFW after receipt of the letter. He did not believe that identifying particular dredging locations on the stream would be meaningful because conditions change each year. He also declined WDFW's offer to make a site visit and discuss measures that could be added to the permit to protect the fish species spawning in Fortune Creek.
¶ 14 Mr. Beatty appealed the decision to the PCHB. An administrative hearing was held on the matter. Mr. Beatty contended that the condition restricting suction dredging to
the work window was unreasonable because it did not serve the purpose of protecting fish life as required by RCW 77.55.021.
¶ 15 Mr. Beatty presented evidence in an attempt to establish that the restriction was not needed because there was a low likelihood that his operation would harm fish life
in Fortune Creek. Dr. Robert Crittenden, a biometrician and fish biologist, testified that the chance of a suction dredge miner encountering a redd on Fortune Creek was miniscule. Dr. Crittenden did not prepare a formal or detailed statistical analysis of potential harm to redds or the likelihood of encountering redds during spawning...
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Beatty v. Wash. Fish & Wildlife Comm'n
...185 Wash.App. 426341 P.3d 291Bruce M. BEATTY, Appellant,v.WASHINGTON FISH AND WILDLIFE COMMISSION, Washington Department of Fish and Wildlife, and Pollution Control Hearings Board, Respondents.No. 31409–0–III. Court of Appeals of Washington,Division 3.Jan. 15, Affirmed. [341 P.3d 295] James......