Beatty v. Fish & Wildlife CommissionBeatty v. Fish & Wildlife Commission
FACTS
¶2 The WDFW regulates placer mining statewide.
|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 grаvel.
¶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.
f 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 stream bed material favorable for gold deposits. However, both placer miners and
f 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 speciеs 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 steelhead 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 application, he sought to use suction dredging and powered “high-banking” 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.
fll 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 high-banker
¶12 The WDFW issued Mr. Beatty a two-year HPA permit and granted his request to use a gasoline-powered high-banker 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 high-banker 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 а suction dredge outside of the standard work window.’ ” Clerk’s Papers (CP) at 57 (quoting Ex. R-6).
¶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
¶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
¶16 Dr. Crittenden admitted that his persоnal observation of the creek was very limited. He stated that he observed the top ford of the creek once but never visited the main stem of the creek. His conclusion that only a small portion of the creek was suitable redd habitat was based on the reports of others.
¶17 Mr. Beatty testified that he would not encounter any redds because he avoids the type of areas where they are located. He said that he had never seen or stumbled across a redd. When asked what a redd looks like, Mr. Beatty gave a description of typical color, size, and location, but could not answer more specific questions. Mr. Beatty said that he works underwater close to the suction nozzle, so if he encountered a redd, he could move the nozzle away and take his equipment elsewhere.
¶18 Mr. Beatty testified that he felt he was discriminated against in connection with the permit because other miners were getting increased work windows for suction dredging in other waterways in Washington. Mr. Beatty said that he was involved with the рamphlet rule-making process and that the process was not smooth and harmonious. He stated that in one meeting, Perry Harvester repeatedly interrupted Mr. Beatty’s wife while she tried to make a comment. Mr. Harvester’s boss apologized for the incident.
¶19 WDFW maintained that the decision on Mr. Beatty’s permit was based on the information that he provided. WDFW biologists William Meyer and Mr. Harvester testified that WDFW refused to extend the work window for suction dredging because of the lack of information about where Mr. Beatty would prospect. Mr. Meyer said that he could not determine the risk to the Fortune Creek area because Mr. Beatty failed to give him the information he needed to calculate quantitative impact.
¶20 Mr. Harvester testified that the purpose of the restriction on Mr. Beatty’s permit was the protection of fish life. Similarly, Mr. Meyer stated that his job was to write a permit that protects fish life, including eggs, fry, and adults. He felt that he accomplished this purpose with Mr. Beatty’s permit. He limited Mr. Beatty to the standard work window for suction drеdging because Mr. Beatty would not discuss other options for the permit. However, he believed that there were areas where Mr. Beatty would have been approved to mine.
¶21 As for fish life in Fortune Creek, Mr. Meyer testified that the creek is a good fish habitat and holds a number of different species of fish. Mr. Meyer personally observed the fish in the river during night snorkels. While he never witnessed a bull trout, he read reports that they were in the creek. The WDFW presented fish surveys of Fortune Creek that noted the presence of bull trout and other fish.
¶22 Mr. Meyer testified that there were several areas on Fortune Creek that were suitable for redds, depending on the size of the fish. These areas include pools on the back side of large boulders suitable for placer mining. Mr. Meyer explained that the fish in Fortune Creek spawn primarily in concentrated areas, which, if hit, would suffer a catastrophic impact.
¶24 The WDFW presented evidence of the impact of running eggs through a suction dredge. Eggs in their first stage of development that are caught in suction have a mortality rate of nearly 100 percent. The mortality rate decreases significantly for eggs in their second stage. However, when eggs develop into sac fry, the mortality rate jumps up again to approximately 83 percent. In addition, eggs that survive the suction dredge are deposited on the stream bed without cover, placing the eggs in extreme danger from predators and in an environment unsuitable for development.
|25 In contrast to Dr. Crittenden’s testimony, Mr. Harvester testified that protecting redds is very important in developing fish populations. Furthermore, protecting redds of later emerging fish is important for genetic reasons. Redds from early producing fish could be wiped out by a single flood event. However, redds produced after the flood event wоuld still have a chance to survive.
f26 Mr. Harvester did not agree that he had a personal conflict with Mr. Beatty, and he asserted that his statements to Mr. Beatty’s wife during the meeting were nothing more than a request for her to sit down if she did not have a question regarding the rules. Mr. Harvester said he played a limited role in processing Mr. Beatty’s permit.
¶27 The PCHB limited review of Mr. Beatty’s arguments to those that addressed the WDFW’s actions in the permit approval process. The PCHB found the permit review proceeding was not the appropriate vehicle for challenging the administrative rules the WDFW adopted and incorporated into the Pamphlet. For instance, the PCHB determined that Mr. Beatty’s argument that fish protection should be conducted only on the resource level, rather than by safeguarding all eggs and fish, is an attack on the regulations governing the work window and not a justification for an individual extension of the rules based on site specific information.
¶28 The PCHB affirmed the WDFW’s permit decision, concluding that the conditions placed on Mr. Beatty’s permit were reasonably designed to protect fish life and do not impose restrictions unrelated or out of proportion to the proposed dredging activity.
¶29 Citing
¶30 The PCHB discredited Dr. Crittenden’s testimony. It found Dr. Crittenden’s statistical approximations were not based on valid assumptions for Fortune Creek. The approximations did not consider site specific operations or stream conditions when estimating the harm to fish. The same type of statistics applied to any stream with spawning activity. Furthermore, a statistical calculation based on the entire area within the watershed was again just a further attack on
¶31 The PCHB also discredited Mr. Beatty’s testimony that he could avoid harm by stopping the dredge immediately if he observed a redd. The PCHB found that it was unlikely that Mr. Beatty could see a redd before sucking it up into a dredge. The PCHB relied on evidence that redds are difficult to identify in a high velocity small stream like Fortune Creek and on evidence of Mr. Beatty’s inexperience and lack of training in identifying eggs. The PCHB also found that stopping the dredge after encountering a redd would not avoid harm to eggs already sucked into the dredge and would decrease the number of fish emerging. The PCHB recounted evidence that many of the eggs that are sucked into a dredge are killed directly and the ejected eggs are deposited into a setting that does not allow for further development of fish.
¶32 The PCHB also recognized that the Pamphlet already requires miners to stop dredging if they encounter a redd. The PCHB reasoned that if stopping dredging activity when eggs are encountered is adequate protection, then the Pamphlet would not have identified specific work windows at all. The court concluded that Mr. Beatty’s argument was another improper attack оn WDFW regulations rather than a justification for relaxed restrictions based on the specific conditions on Fortune Creek.
¶33 In affirming the permit condition, the PCHB concluded that Mr. Beatty failed to show that the condition on his permit was not reasonably designed to protect fish life, citing
¶34 The PCHB also concluded that Mr. Beatty failed to show that the condition placed on the permit to optimize fish life was out of proportion to the impact of the proposed project, citing
¶35 Finally, the PCHB concluded that the WDFW’s decision on the permit was not the result of personal animosity toward Mr. Beatty. The PCHB determined that Mr. Beatty did not demonstrate that he received unfair treatment when compared to other miners. Other miners obtained extensions based on information specific to their proposed site. The WDFW provided Mr. Beatty the same opportunity to provide additional site specific information and offered to work with him to develop limits that would protect fish. The PCHB found that the WDFW was willing to vary the work window timing standards based on specific facts. Instead, Mr. Beatty chose to stand on his asserted right to mine without limitation.
¶36 Mr. Beatty appealed the PCHB’s decision to the Kittitas County Superior Court.
¶37 Mr. Beatty appeals the decision of the PCHB. He contends that (1) the PCHB misinterpreted the state hydraulic mining code when imposing the conditions, (2) the PCHB’s order is not supported by substantial evidence, (3) the conditions on the permit conflict with federal mining law, (4) the hydraulic mining code is unconstitutionally vague, (5) WDFW discriminated against him when it imposed the condition, and (6) the WDFW relied on an invalidly adopted rule to impose the condition.
ANALYSIS
|38 The Washington Administrative Procedure Act, chapter 34.05 RCW, provides for judicial review of PCHB’s orders.
¶39 Interpretation of the Hydraulic Code. Mr. Beatty contends that the WDFW misinterpreted and misapplied the hydraulic permitting statute. Relief may be granted if this court finds that the PCHB has “erroneously interpreted or applied the law.”
¶40 Relief can also be granted if the reviewing court finds the agency order is arbitrary and capricious.
¶41 In 1997, the Washington Legislature declared that small scale mineral prospecting and mining
(1) [i]s an important part of the heritage of the state; (2) provides economic benefits to the state; and (3) can be conducted in a manner that is beneficial to fish habitat and fish propagation. Now, therefore, the legislature declares that small scale prospecting and mining shall be regulated in the least burdensome manner that is consistent with the state’s fish mаnagement objectives and the federal endangered species act.
Laws of 1997, ch. 415, § 1.
¶42 The legislature tasked the WDFW to adopt rules applicable to small scale prospecting and mining in cooperation with the recreational mining community and other interested
¶43 For small scale mining, the legislature required WDFW to distribute a pamphlet describing the methods of mineral prospecting consistent with WDFW’s adopted rules.
f 44 A person may request an exception to the Pamphlet by applying for an individual HPA permit.
¶45 The only ground on which approval of a permit may be denied or conditioned is the protection of fish life. Former
¶46 Approval of a permit may not be unreasonably withheld or unreasonably conditioned. Former
¶47 The WDFW mitigation policy provides, “WDFW shall determine the project impact, significance of impact, amount of mitigation required, and amount of mitigation achieved, based on the best available information, including the applicant’s plans and specifications. For large projects with potentially significant impacts, this will be based on review of studies approved by WDFW.” Ex. A-36, at 4. A similar but lengthier definition оf “mitigation” can be found in WAG 220-110-020(66).
¶48 Mr. Beatty makes several challenges to the WDFW’s interpretation of the statutory scheme governing his hydraulic mining permit. First, Mr. Beatty contends that the PCHB misinterpreted the legislative mandate to protect fish life as reflected in
f 49 Contrary to Mr. Beatty’s assertion, protection of every egg is not the interpretation adopted by the WDFW or the PCHB. The WDFW biologists who testified did not advocate for every egg but recognized that protection of eggs must be based on the impact the eggs have on the fish population. As stated by Mr. Harvester, “But the idea was to protect most of the fish most of the time over most of the conditions that we have observed. So the intent was not to protect every fish. We knew that.” CP at 179.
¶51 Second, Mr. Beatty contends the PCHB wrongly applied
f 52 The PCHB did not err in its interpretation or application of
¶53 Furthermore, neither
f54 Next, in a related issue, Mr. Beatty contends that the PCHB and WDFW failed to obey the command of the legislature to utilize the least burdensome form of regulation. Mr. Beatty maintains that the WDFW needed to insert provisions in his permit to minimize impacts rather than denying his request to work outside of the work window.
¶55 While legislative policy advocates for the least burdensome regulations, there is no statutory requirement that the WDFW must insert provisions in his permit that minimize impact. Also, there is no reason to conclude that othеr provisions were available to Mr. Beatty based on the information provided in his permit. Suction dredging in Fortune Creek is harmful to fish life when it occurs outside of the work window. To minimize impact, WDFW prohibited suction dredging during this period. If other less burdensome regulations were available to minimize impacts, they would have been included in the Pamphlet. Therefore, the PCHB did not misinterpret the permitting scheme by failing to require the WDFW to add minimizing impact provisions to Mr. Beatty’s permit.
¶56 Last, Mr. Beatty contends that the PCHB interpreted an extra obligation into the statutory permit process that requires an applicant to meet with the WDFW
¶57 The PCHB did not add an extra requirement to the permitting process. Mr. Beatty was required to include site specific information in his permit application according to
¶58 Sufficiency of the Evidence. Mr. Beatty contends that the PCHB’s decision to uphold the permit conditions is not supported by the evidence.
f 59 The substantial evidence standard in
¶60 The agency’s legal conclusions receive de novo review under the error of law standard. Stuewe v. Dep’t of Revenue,
¶61 Mr. Beatty asserts that the WDFW failed to present substantial evidence showing impact or risk to fish. And, without any evidence of impact, the PCHB could not uphold the denial of his permit request. Implicit in this argument is the notion the WDFW bears the burden, when denying a permit, of demonstrating some likelihood that Mr. Beatty’s proposed mining operation will endanger fish life.
¶62 As a preliminary note, it is not appropriate under Washington law to shift the burden of proof under these circumstances to the WDFW as Mr. Beatty suggests.
¶63 In his sufficiency of the evidence argument, Mr. Beatty assigns error to several of the PCHB’s findings. First, he challenges the findings that bull trout redds and bull trout have been observed in Fortune Creek. This finding is supported by substantial evidence. The WDFW presented records from night snorkeling surveys conducted
¶64 Second, Mr. Beatty challenges the findings that pertain to his ability to mitigate the damage to fish eggs. He assigns error to the findings that he has no real experience in reсognizing redds and that redds are generally difficult to locate. Also, Mr. Beatty contends that the PCHB should have allowed hearsay declarations from other miners who stated that they had never found fish eggs.
¶65 These findings are also supported by substantial evidence. Mr. Beatty testified that he had never seen a redd. While he gave a description of a redd, the testimony was based on information Mr. Harvester provided at a stakeholder meeting. Mr. Beatty could not answer when asked specific questions about the color of the eggs and the type of gravel where redds may be found. Mr. Harvester, a WDFW biologist, testified to the difficulties in identifying redds. This testimony of Mr. Beatty and Mr. Harvester sufficiently supports the PCHB’s findings. Also, the PCHB did not err by excluding the declarations of the miners. The weight of this evidence would not have had an effect on the PCHB’s findings.
¶66 Next, Mr. Beatty challenges the PCHB’s finding that the WDFW’s decision on the application was not the result of personal animosity toward Mr. Beatty. Mr. Beatty contends that the evidence of an altercation between his wife and Mr. Harvester created a bias against Mr. Beatty and led to the denial of his permit.
¶67 Substantial evidence supports the finding that the decision on the permit was not based on personal animosity or retaliation. While there is evidence of a brief exchange between Mr. Harvester and Mr. Beatty’s wife at a rule-development meeting, there is no evidence that this influenced the permit decision. Mr. Harvester testified that he did not take umbrage against Mr. Beatty. The PCHB found this testimony credible.
¶68 Ultimately, Mr. Beatty contends that the evidence as a whole does not show an impact or risk to fish. Mr. Beatty’s challenge is based largely on Dr. Crittenden’s testimony that there is only a small chance — between one in ten thousand and one in a million — of randomly selecting a spot along the course of the affected river where fish were spawning. Mr. Beatty asserts that on the strength of this testimony there is only an insignificant chance he would mine at the site of a fish habitat. Thus, the WDFW did not demonstrate that his proposed mining operation would likely endanger fish life.
¶69 However, the WDFW was nоt required to find Mr. Beatty’s mining operation was likely to harm fish life in order to deny him his permit. It was required to determine, based on the evidence provided, only whether the potential risk of his proposed operation could be adequately managed. The unavailability of sufficient evidence here resulted from Mr. Beatty’s failure to submit a complete written application specifying each location of his proposed operation as he was required to do. Mr. Beatty was not going to select mining sites at random, as Dr. Crittenden’s testimony suggested. In order to determine the probability that Mr. Beatty would mine at the site of a fish habitat, the WDFW had to know where those sites would be.
¶70 The PCHB correctly found that Dr. Crittenden’s testimony was too general and not meaningful. Dr. Crit-tenden’s testimony was really nothing more than a demonstration of the futility of making any kind of quantification of the risk of harm posed by Mr. Beatty’s proposed operation. In evaluating the kind of evidence presented by Dr. Crittenden, one must ask (1) whether the study was properly designed and (2) whether it was based on sufficient data. The study, a “back of the envelope” calculation on its face, did not answer a relevant question. It addressed only the likelihood of randomly selecting a spot on the river where fish were spawning. The relevant question was whether a mining site designated by the applicant
¶71 Apparently the only datum available to Dr. Crit-tenden was the length of the river. Dr. Crittenden was unable to supply any reliable data establishing even the proportion of the river covered by fish habitat. This, coupled with Mr. Beatty’s failure to disclose the location of his operations, made it impossible to make any meaningful prediction about the likelihood of harm occurring. There was no basis to estimate the degree of possible harm. This lack of data disfavored any kind of statistical proof. Under these сircumstances, the PCHB was entitled both to reject Dr. Crittenden’s attempt to quantify the risk of Mr. Beatty’s proposed operation and to conclude there was no adequate means of managing that risk. Thus, the PCHB’s finding that Dr. Crittenden’s testimony was too general and not meaningful is supported by evidence.
|72 Mr. Beatty’s challenge to the sufficiency of the evidence fails. Mr. Beatty’s application did not include site or operation specific information that would have allowed the WDFW to determine the risks of Mr. Beatty’s operation and whether an exception from the work window was warranted. The PCHB correctly concluded that “the conditions WDFW placed on [Mr. Beatty’s permit] are reasonably designed to protect fish life and do not impose restrictions unrelated to or out of proportion to the proposed dredging activity.” CP at 73-74. The PCHB order affirming the suction dredging condition is supported by substantial evidence.
¶73 Conflict with Federal Mining Laws. Mr. Beatty contends that WDFW’s regulations are preempted by federal law because they materially interfere with mining on his federal mining claim. Mr. Beatty maintains that the condition on his permit essentially prohibits him from exercising his mining rights.
f 74 We may declare an agency rule invalid as applied if it violates constitutional provisions or if it exceeds statutory authority of the agency.
f 75 The supremacy clause in the United States Constitution gives the federal government the power to preempt state law. Arizona v. United States, _U.S. _,
¶76 To determine whether the permit condition is preempted, “we must first determine the purposes and objectives of Congress that are embodied in the [General Mining Act of 1872,
¶77 The General Mining Act provides for the free and open exploration of public lands for valuable mineral deposits.
¶78 Federal forest service regulations, including the General Mining Act and the Multiple Use Mining Act of 1955,
¶79 In Granite Rock, the California Coastal Act of 1976,
¶80 However, the Court limited the scope of its decision to the facial challenge presented. Id. It pointed out that Granite Rock did not argue that the coastal commission placed any particular conditions on the permit that conflicted with federal statutes or regulations. Id. at 579-80. Thus, the Court did not approve any future application of the state permit requirement that conflicted with federal law. Id. at 594.
¶81 This case presents the issue left open in Granite Rock, specifically, whether the condition on Mr. Beatty’s permit conflicts with federal law. As the Court noted in Granite Rock, “[0]ne may hypothesize a state environmental regulation so severe that a particular land use would become commercially impractical.” Id. at 587.
¶82 The condition on Mr. Beatty’s permit and the state regulations supporting the condition do not stand as an obstacle to the accomplishment of the federal mining laws. The general environmental mining regulations imposed in the Pamphlet still allow Mr. Beatty to exercise his federal mining rights, albeit with restrictions. The mining restrictions and permit conditions are designed to protect the physical environment for the development of fish life, which is consistent with the General Mining Act.
¶83 The restrictions in the Pamphlet do not act as a de facto ban on mining. If the allowable mining methods in the Pamphlet are not suitable or economically viable, a miner may request relaxed mining regulations by completing an application with site specific information and specifications for the proper protection of fish life. See WAG 220-110-030. As another layer of protection, any condition placed on the permit to optimize fish life cannot be out of proportion to the proposed project.
¶84 In sum, the condition on Mr. Beatty’s permit does not conflict with federal regulations on mineral prospecting. The condition allows for the exploration of public lands for valuable mineral deposits while protecting the physical environment. Furthermore, the
¶85 Constitutional Challenges. Mr. Beatty makes two constitutional challenges to the PCHB’s approval of the permit. Mr. Beatty contends that the hydraulic mining permit statute,
¶86 Mr. Beatty is incorrect. The hydraulic mining permit statute is not unconstitutionally vague. The statute provides an identifiable standаrd for denying a permit. Former
¶87 Furthermore, the court in State v. Crown Zellerbach Corp.,
¶88 Mr. Beatty relies on Anderson v. City of Issaquah,
f 89 Mr. Beatty contends that the WDFW unconstitutionally discriminated against him because he was not treated the same as other miners downstream who received permits. Mr. Beatty fails to cite legal authority for his argument. Citations to legal authority and reference to relevant portions of the record must be included in support of issues raised on appeal. RAP 10.3(a)(5). “Without adequate, cogent argument and briefing, this court should not consider an issue on appeal.” Schmidt v. Cornerstone Inv., Inc.,
¶90 The hydraulic mining permit statute is not unconstitutionally vague. Nor did the WDFW discriminate against Mr. Beatty.
¶91 Adoption of WDFW’s Mitigation Policy. Mr. Beatty contends that the mitigation policy adopted by the WDFW is a “rule” as defined by
f 92 An agency action constitutes a rule only if it meets the requisite elements in
¶93 As stated earlier, the WDFW mitigation policy provides, “WDFW shall determine the project impact, significance of impact, amount of mitigation required, and amount of mitigation achieved, based on the best available information, including the applicant’s plans and specifications. For large projects with potentially significant impacts, this will be based on review of studies approved by WDFW.” Ex. A-36, at 4.
¶94 Similarly, “mitigation” in hydraulic permits is defined by rule in
(a) Avoiding the impact altogether by not taking a certain action or parts of an action;
(b) Minimizing impacts by limiting the degree or magnitude of the action and its implementation;
(c) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment;
(d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action;
(e) Compensating for the impact by replacing or providing substitute resources or environments; or
(f) Monitoring the impact and taking appropriate corrective measures to achieve the identified goal.
¶95 Mr. Beatty neglected to address which of the qualifiers in
¶96 In any case, the mitigation policy did not affect Mr. Beatty. The WDFW did not consider mitigation because Mr. Beatty did not submit a mitigation plan to the WDFW or work with them to develop a mitigation plan. Without an influence on the decision, there is no violation.
¶97 In conclusion, we find no error with the PCHB’s decision on Mr. Beatty’s permit. We affirm the decision of the superior court.
Siddoway, C.J., and Koksmo, J., concur.
Review denied at
Notes
Judge John D. Knodell is serving as judge pro tempore of the Court of Appeals pursuant to
Placer mining involves searching for gold that has moved away from its original host rock, migrated downstream, and settled into the stream bed sediment.
A “high-banker” processes material at a mining location away from the stream.
Mr. Beatty amended his petition for review to add a challenge to the pamphlet rules. Later, the parties stipulated to bifurcate the rule challenge. The rule challenge is not a part of the appeal before this court.