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Beatty v. The Fish and Wildlife Commission

Court of Appeals of Washington, Division 3

January 15, 2015

Bruce M. Beatty, Appellant ,
v.
The Fish and Wildlife Commission et al., Respondents

Oral Argument February 4, 2014.

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Appeal from Kittitas Superior Court. Docket No: 11-2-00544-8. Judge signing: Honorable Frances Paddack Chmelewski. Judgment or order under review. Date filed: 01/07/2013.

James L. Buchal (of Murphy & Buchal LLP ), for appellant.

Robert W. Ferguson, Attorney General, James R. Schwartz, Managing Assistant, and Jessica E. Fogel, Assistant, for respondents.

Authored by John Dietrich Knodell III. Concurring: Kevin M. Korsmo, Laurel H. Siddoway.

OPINION

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[185 Wn.App. 432] John Dietrich Knodell III, 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) Gold and Fish 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 [185 Wn.App. 433] 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 stream bed material favorable for gold deposits. However, both placer miners and

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redd building fish [185 Wn.App. 434] 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 " 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.

[¶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 [185 Wn.App. 435] 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 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 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 sad 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 (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 [185 Wn.App. 436] 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

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in Fortune Creek. Dr. Robert Crittenden, a biometrician and fish biologist, testified that the chance of a suction dredge miner encountering a redd in 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 season. However, he presented a " back of the envelope" calculation of the statistical likelihood of a suction dredge miner encountering a redd in Fortune Creek. CP at 290. Dr. Crittenden's calculation used the size of the entire watershed area, anywhere between 5 and 10 miles, with Mr. Beatty mining 60 feet of stream anywhere in the watershed. By estimating the number of redds and assuming the redds were randomly located, Dr. Crittenden estimated that the probability of encountering a redd was anywhere between one in ten thousand and one in a million. Dr. Crittenden stated that the probability was zero if miners and fish preferred different areas of the creek. Even then, Dr. Crittenden reasoned that harm to fish eggs was of little importance to protecting fish life because the majority of the eggs die of natural causes.

[¶16] Dr. Crittenden admitted that his personal 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 [185 Wn.App. 437] 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 pamphlet 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 dredging 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 [185 Wn.App. 438] 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.

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[¶23] Also, Mr. Meyer testified that a trained biologist would have difficulty spotting redds before they are dug into. He described the redds found in high elevation streams as very tiny eggs, approximately the size of BBs. Mr. Harvester used pictures of redds in streams to demonstrate the difficulty in spotting them.

[¶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 ...


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