Washington Law about Rocking
Attention Small Scale Mineral Prospector and Miner and interested Legislators,
Late last week because of a WDFW Press Release, we found that this Saturday, December 4, 2010, the WDFW Commission will hear a staff report ( see summary) by Enforcement Program Deputy Chief Mike Cenci, proposing amendments to WAC 232-12-251 Removal of minerals, wood and artifacts from department lands. Following this report, the commission will hear public input. The commission will then consider adopting these amendments at their January 7, 2011 meeting.
This is the first instance that anybody from the Small Scale Mineral Prospecting and Mining community had heard of this proposed rule making. The original notification of rule making (CR-101) was filed January 5, 2010, with the subject of "Making changes to permissible activities and use of resources on department-owned and leased property." This is identified on WDFW's Rules Information Center - Current Rule Making Activity website as "Cutting trees and snags on department-owned and leased property." The notice of Proposed Rule Making (CR-102) was filed October 20, 2010. Although the "Title of rule and other identifying information" became "WAC 232-12-251 Removal of minerals, wood and artifacts from department lands", it remains identified as "Cutting trees and snags on department-owned and leased property" on WDFW's Current Rule Making Activity website.
The following is the text of the proposed Amendment;
(1) Except as provided below, it is unlawful to cut down or remove dead standing timber, live trees, wood, soil, petrified wood, minerals, fossils, ((wood products)) plants, mushrooms, berries, or artifacts from department lands unless such ((removal)) activity is authorized by a permit issued by the director.
(a) Downed dead wood for camping on department lands may be collected without a department permit in a quantity not to exceed one-half cord. However, such wood may not be transported from department lands.
(b) Mushrooms or berries may be collected for personal use without a permit in quantities not to exceed the following limits:
(i) For wild edible mushrooms, five United States
(2) Unlawful cutting down or removal of dead standing timber, live trees, wood, soil, petrified wood, minerals, fossils, or plants constitutes theft under chapter 9A.56 RCW.
(3) Unlawful removal or exceeding limits for downed dead wood, mushrooms, or berries is punishable under RCW 77.15.230.
As you can see, there are a few issues with this proposal;
The primary one that effects our activity is that the removal of "soil, petrified wood, minerals, and fossils" constitutes theft under chapter 9A.56 RCW. What this means is; that if you violate this rule, depending on the amount of material in your possession, you may be charged with either a gross Misdemeanor, a Class C felony or a Class B felony. This particular penalty is already allowed in part by Statute (RCW 79.02.310) but WDFW has neglected to use the words "willfully commits any trespass" and appears to be attempting to expand their authority. Another issue is that the regulation's for minerals on state lands fall under RCW 78 and RCW 79.14 which are administered by WDNR. This is echoed in the Statutes that govern WDFW (RCW 77). The department has already this year demonstrated their unwillingness to grant a permit to prospect on "Department Lands" by requiring one group who requested to do so, additional permits and costly requirements, to the point I do not believe they have a permit yet.
The Governor by Executive Order (10-06), Suspended Non-Critical Rule Development and Adoption on November 17, 2010. That same day, the Office of Financial Management issued a memo, Implementation of Executive Order 10-06, to Agency Directors, Statewide Elected Officials, Presidents of Higher Education Institutions, Boards and Commissions which provided guidelines for agencies to use when determining whether rule making should proceed. Regardless, it appears that WDFW is continuing the process.
As the Public Comment period for this proposal ended November 24, 2010, Our only option at this time is to contact the WDFW Commission.
Inform them of your feelings towards the proposed amendments of WAC 232-12-251 and request that they suspend rule making and adoption until 1)January 1, 2012 as directed by the Governors Executive Order and 2) the department has coordinated this proposal with the Small Scale Mineral Prospecting and Mining community.