CITIZENS FOR RESP. WILDLIFE MGMT. v. State

• Decision Date: 19 June 2003
• Docket Number: No. 72186-6.,72186-6.
• Citation: 71 P.3d 644,149 Wash.2d 622
• Parties: CITIZENS FOR RESPONSIBLE WILDLIFE MANAGEMENT, Fred Blauert, an individual, Karen Awrylo, an individual, Bruce Vandervort, an individual, Michael G. Thornily, Sr., an individual, Robert Rupar, an individual, and George Sovie, an individual, Petitioners, v. STATE of Washington, Respondent, and Protect Pets and Wildlife, American Society for the Prevention of Cruelty to Animals, Doris Day Animal League, the Fund for Animals, the Humane Society of the United States, the International Fund for Animal Welfare, and the Progressive Animal Welfare Society, Intervenor-Respondents.
• Court: Washington Supreme Court

71 P.3d 644

149 Wash.2d 622

CITIZENS FOR RESPONSIBLE WILDLIFE MANAGEMENT, Fred Blauert, an individual, Karen Awrylo, an individual, Bruce Vandervort, an individual, Michael G. Thornily, Sr., an individual, Robert Rupar, an individual, and George Sovie, an individual, Petitioners, v. STATE of Washington, Respondent, and Protect Pets and Wildlife, American Society for the Prevention of Cruelty to Animals, Doris Day Animal League, the Fund for Animals, the Humane Society of the United States, the International Fund for Animal Welfare, and the Progressive Animal Welfare Society, Intervenor-Respondents.

No. 72186-6.

Supreme Court of Washington, En Banc.

Argued November 19, 2002.

Decided June 19, 2003.

Robert Kehoe, Seattle, for Petitioners.

Shawn Newman, Olympia, Jonathan Lovvorn, Washington, DC, Christine Gregoire, Attorney General, Amy MacKenzie, Neil Wise, James Pharris, Assistant Attorneys General, for Respondent.

Daniel Fazio, Olympia, Amicus Curiae on Behalf of Wa. State Farm Bureau.

IRELAND, J.

Citizens for Responsible Wildlife Management, on direct review to this court, claim that Initiative 713 violates Washington Constitution article II, sections 19 and 37. Finding that appellants have not shown, beyond a reasonable doubt, that Initiative 713 violates the constitution, we affirm the superior court's denial of the summary judgment motion.

FACTS

Appellants, Citizens for Responsible Wildlife Management (Citizens), are a coalition of over 400 wildlife conservation, scientific, business, outdoor recreation, farming, timber, nuisance animal control, and wildlife management organizations and individuals who are opposed to Initiative 713 (I-713). Respondents are comprised of the State and defendant-intervenors, a coalition of public interest organizations that sponsored I-713 (Sponsors).

Voters passed I-713 by a 54.61 percent vote on November 7, 2000. The official ballot title reads: "Shall it be a gross misdemeanor to capture an animal with certain body-gripping traps, or to poison an animal with sodium fluoroacetate or sodium cyanide?" State of Washington Voters Pamphlet, General Election 8 (Nov. 7, 2000). Prior to I-713, real property owners and duly licensed recreational and commercial trappers were limited as to the types of traps they could use to trap wild animals by WAC 232-12-141. This section allowed the use of both padded and unpadded foot-hold traps and also provided requirements for padding thickness and jaw face width. See former WAC 232-12-141(4)(a)-(d) (2000). This section disallowed trapping with steel traps with teeth or serrated edges or with neck or body snares attached to a spring pole or other such device. Former WAC 232-12-141(e), (h). Kill traps had to be checked every 72 hours and animals caught in restraining traps had to be removed within 24 hours of capture. Former WAC 232-12-141(f), (g). I-713 references WAC 232-12-141 and Citizens do not contend that I-713 unconstitutionally changes that section's provisions. Even before I-713, sodium fluoroacetate could not be legally used in Washington. Also, as to sodium cyanide, "Wildlife Services, a federal agency responsible for controlling predator damage to livestock, is the only entity authorized to use [that pesticide]. [Its] use is heavily regulated and must be coordinated with the landowner or management agency." Clerk's Papers (CP) at 206-07.

The initiative has now been codified in RCW 77.15.192-.198; the corresponding revised code section will be cited for relevant sections of the initiative throughout this opinion. I-713 basically outlaws the trapping or killing of any mammal with body-gripping traps, sodium fluoroacetate, or sodium cyanide. It is set out below.

77.15.192 Definitions. The definitions in this section apply throughout RCW 77.15.194 through 77.15.198.

(1) "Animal" means any nonhuman vertebrate.

(2) "Body-gripping trap" means a trap that grips an animal's body or body part. Body-gripping trap includes, but is not limited to, steel-jawed leghold traps, padded-jaw leghold traps, Conibear traps, neck snares, and nonstrangling foot snares. Cage and box traps, suitcase-type live beaver traps, and common rat and mouse traps are not considered body-gripping traps.

(3) "Person" means a human being and, where appropriate, a public or private corporation, an unincorporated association, a partnership, a government, or a governmental instrumentality.

(4) "Raw fur" means a pelt that has not been processed for purposes of retail sale.

(5) "Animal problem" means any animal that threatens or damages timber or private property or threatens or injures livestock or any other domestic animal.

77.15.194 Unlawful traps. (1) It is unlawful to use or authorize the use of any steel-jawed leghold trap, neck snare, or other body-gripping trap to capture any mammal for recreation or commerce in fur.

(2) It is unlawful to knowingly buy, sell, barter, or otherwise exchange, or offer to buy, sell, barter, or otherwise exchange the raw fur of a mammal or a mammal that has been trapped in this state with a steel-jawed leghold trap or any other body-gripping trap, whether or not pursuant to permit.

(3) It is unlawful to use or authorize the use of any steel-jawed leghold trap or any other body-gripping trap to capture any animal, except as provided in subsections (4) and (5) of this section.

(4) Nothing in this section prohibits the use of a Conibear trap in water, a padded leghold trap, or a nonstrangling type foot snare with a special permit granted by [the] director under (a) through (d) of this subsection. Issuance of the special permits shall be governed by rules adopted by the department and in accordance with the requirements of this section. Every person granted a special permit to use a trap or device listed in this subsection shall check the trap or device at least every twenty-four hours.

(a) Nothing in this section prohibits the director, in consultation with the department of social and health services or the United States department of health and human services from granting a permit to use traps listed in this subsection for the purpose of protecting people from threats to their health and safety.

(b) Nothing in this section prohibits the director from granting a special permit to use traps listed in this subsection to a person who applies for such a permit in writing, and who establishes that there exists on a property an animal problem that has not been and cannot be reasonably abated by the use of nonlethal control tools, including but not limited to guard animals, electric fencing, or box and cage traps, or if such nonlethal means cannot be reasonably applied. Upon making a finding in writing that the animal problem has not been and cannot be reasonably abated by nonlethal control tools or if the tools cannot be reasonably applied, the director may authorize the use, setting, placing, or maintenance of the traps for a period not to exceed thirty days.

(c) Nothing in this section prohibits the director from granting a special permit to department employees or agents to use traps listed in this subsection where the use of the traps is the only practical means of protecting threatened or endangered species as designated under RCW 77.08.010.

(d) Nothing in this section prohibits the director from issuing a permit to use traps listed in this subsection, excluding Conibear traps, for the conduct of legitimate wildlife research.

(5) Nothing in this section prohibits the United States fish and wildlife service, its employees or agents, from using a trap listed in subsection (4) of this section where the fish and wildlife service determines, in consultation with the director, that the use of such traps is necessary to protect species listed as threatened or endangered under the federal endangered species act (16 U.S.C. Sec. 1531 et seq.).

77.15.196 Unlawful poison. It is unlawful to poison or attempt to poison any animal using sodium fluoroacetate, also known as compound 1080, or sodium cyanide.

77.15.198 Violation of RCW 77.15.194 or 77.15.196 Penalty. Any person who violates RCW 77.15.194 or 77.15.196 is guilty of a gross misdemeanor.

RCW 77.15.192-.198.

PROCEDURAL HISTORY

In February 2001, Citizens filed an amended complaint seeking declaratory judgment that I-713 violated the Washington Constitution and an injunction barring enforcement of any portion of the initiative. Sponsors intervened on the State's behalf and cross-motioned for summary judgment. The superior court denied Citizens' motion for summary judgment and granted defendants' cross-motion. Citizens appealed; this court granted direct review.

ANALYSIS

Issue

Whether Initiative 713 violates article II, sections 19 and 37 of the Washington Constitution.

Standard of Review

This is an appeal from a summary judgment which is properly granted where there are no material issues of fact and the moving party is entitled to judgment as a matter of law. CR 56(c). When reviewing an order of summary judgment, the appellate court engages in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). The court should grant the motion only if, from all the evidence, reasonable persons could reach but one conclusion. Id. Construction of a statute is a question of law which is reviewed de novo. State v. Ammons, 136 Wash.2d 453, 456, 963 P.2d 812 (1998).

Argument Raised by Amicus

Amicus Curiae Washington State Farm Bureau raises several novel arguments that Citizens did not. However, those arguments will not be discussed as we will not address arguments raised only by amicus. See Sundquist Homes, Inc. v. Snohomish County Pub. Util. Dist. No. 1, 140 Wash.2d 403, 413, 997 P.2d 915 (2000)

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Degree of Deference Given Initiatives

Citizens contend that initiatives should be given less deference than legislatively enacted bills, when reviewing for constitutional infirmities, because initiatives result from a "closed process" where "the...