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AGO 1992 No. 4 - March 06, 1992
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

DEPARTMENT OF WILDLIFE--ANIMALS--GAME--ADMINISTRATIVE LAW--Authority of the Department of Wildlife to regulate wildlife and deleterious exotic wildlife brought into Washington

1.  If an individual lawfully acquires wildlife in another state and lawfully brings it into Washington, the wildlife is the property of the individual, not the State.  However, to lawfully bring wildlife into Washington an individual must comply with regulations of the Department of Wildlife and the individual's ownership is subject to the overarching regulatory authority of the State.

2.  The Department of Wildlife has the authority to regulate deleterious exotic wildlife. Regulations adopted by the Department to regulate deleterious exotic wildlife do not conflict with RCW 77.12.010, which provides that nothing contained herein shall be construed to infringe on a private property owner's control over his or her private property.

                                                                    * * * * * * * * * *

                                                                   March 6, 1992

HonorableSteve Fuhrman
State Representative, District 7
414 John L. O'Brien Building, AS-33
Olympia, Washington  98504
                                                                                                                   Cite as:  AGO 1992 No. 4

Dear Representative Fuhrman:

            By letter previously acknowledged, you requested our opinion on the following questions:

            1.         When an individual lawfully acquires a live elk in another state and brings the animal to Washington, is the elk the property of Washington State or the individual?  Would the answer differ if the elk were raised in captivity its entire life?  Would the answer be the same for all wildlife, excepting those protected under specific federal law, such as the Endangered Species Act?

            2.         If in the above situation the elk bore offspring, are the offspring the property of the State or the individual?

            3.         Does WAC 232-12-017, which deals with deleterious exotic wildlife, conflict with RCW 77.12.010?

            We answer Questions 1 and 2 in the manner set forth in our analysis.  We answer Question 3 in the negative.

                                                                BACKGROUND

            Your questions concern two different classifications of species of the animal kingdom.  Questions 1 and 2 deal with "wildlife."

            "Wildlife" is defined in RCW 77.08.010(16) as follows:

                        "Wildlife" means all species of the animal kingdom whose members exist in Washington in a wild state.  This includes but is not limited to mammals, birds, reptiles, amphibians, fish, and invertebrates.  The term "wildlife" does not include feral domestic mammals, the family Muridae of the order Rodentia (old world rats and mice), or those fish, shellfish, and marine invertebrates classified by the director of fisheries.  The term "wildlife" includes all stages of development and the bodily parts of wildlife members.

(Emphasis added.)

            It is long-settled in this State that title to all wildlife belongs to the State in its sovereign capacity, and that the State holds this title in trust for the use and benefit of the people of the State.  It is also well-settled that, since the title to the wildlife is in the State for the common good, the State has the right in the exercise of its police power to control, regulate, or prohibit the taking of wildlife within its borders.  State ex rel. Lopas v. Shagren, 91 Wash. 48, 53, 157 P. 31 (1916); Cawsey v. Brickey, 82 Wash. 653, 657, 144 P. 938 (1914).

            The doctrine of state ownership and control of wildlife derives from the common law.  As the court said in Cawsey:

            Under the common law of England all property right in animals ferae naturae was in the sovereign for the use and benefit of the people.  The killing, taking and use of game was subject to absolute governmental control for the common good.  This absolute power to control and regulate was vested in the colonial governments as a part of the common law.  It passed with the title to game to the several states as an incident of their sovereignty and was retained by the states for the use and benefit of the people of the states, subject only to any applicable provisions of the Federal constitution.

Id.at 656.

            The State's ownership and control of wildlife is codified, inter alia, in RCW 77.12.010, which provides in part:

                        Wildlife is the property of the state.  The department [of wildlife] shall preserve, protect, and perpetuate wildlife.  Game animals, game birds, and game fish may be taken only at times or places, or in manners or quantities as in the judgment of the commission maximizes public recreational opportunities without impairing the supply of wildlife.

(Emphasis added.)

            Question 3 deals with "deleterious exotic wildlife".  RCW 77.08.010(25) defines deleterious exotic wildlife as "species of the animal kingdom not native to Washingtonanddesignated as dangerous to the environment or wildlife of the state."  (Emphasis added.)  Thus, "wildlife" means a species of the animal kingdom that exists in Washington in a wild state and "deleterious exotic wildlife" means a species of the animal kingdom that is not native to Washington and whose members are designated as dangerous.

            The Department of Wildlife is authorized to designate deleterious exotic wildlife.  RCW 77.12.020(7) provides:

                        If the director determines that a species of the animal kingdom, not native to Washington, is dangerous to the environment or wildlife of the state, the director may request its designation as deleterious exotic wildlife.  The commission may designate deleterious exotic wildlife.

            With this background in mind, we turn to your questions.

                                                                    ANALYSIS

            Question 1:

            When an individual lawfully acquires a live elk in another state and brings the animal to Washington, is the elk the property of Washington State or the individual?  Would the answer differ if the elk were raised in captivity its entire life?  Would the answer be the same for all wildlife, excepting those protected under specific federal law, such as the Endangered Species Act?

            The first part of Question 1 concerns the relative property rights in a live elk as between an individual and the State, when the individual lawfully acquires the elk in another state and brings it into Washington.  We start with the definition of "wildlife" in RCW 77.08.010(16) which refers to all "species" of the animal kingdom whose members exist in Washington in a wild state.  Elk is a species of the animal kingdom whose members exist in Washington in a wild state.  See RCW 77.08.030; RCW 77.08.010(21).  As a species, therefore, elk is wildlife. 

            The thrust of Question 1 is whether an individual loses title to "wildlife," such as an elk, lawfully acquired in another state if he or she brings the animal into Washington.  Although RCW 77.12.010 declares that "wildlife is the property of the state", we do not believe that this statute operates to automatically transfer ownership of wildlife brought into Washington from the individual to the state.

            It is a basic rule of statutory construction that an act must be construed as a whole, considering all provisions in relation to each other and, if possible, harmonizing all to insure proper construction of each provision.  In re Piercy, 101 Wn.2d 490, 492, 681 P.2d 223 (1984).  In reviewing all of chapter 77.12 RCW we find provisions that authorize individual ownership of wildlife in certain circumstances.

            RCW 77.12.105 provides:

                        Except as otherwise provided in this title, a person who has lawfully acquired possession of wildlifeand who desires to retain or transfer it may do so in accordance with the rules adopted pursuant to this title.

(Emphasis added.)  Similarly, RCW 77.12.590 authorizes game farmers to give away, sell, or transfer wildlife, pursuant to Department rule.  Both these statutes contemplate the possibility of private property rights in wildlife.

            Based on this statutory authority the Department of Wildlife has adopted rules dealing with private possession of wildlife.  WAC 232-12-064 addresses taking from the wild, importing, possessing, and holding in captivity live wildlife.  It provides, in part:

                        (1)  It is unlawful to take live wild animals, wild birds, or game fish from the wild without a permit provided for by rule of the commission.

                        (2)  It is unlawful to import into the state or to hold live wildlife which were taken, held, possessed or transported contrary to federal or state law, local ordinance or commission rule. . . .

                        (3)  It is unlawful to possess or hold in captivity live wild animals, wild birds, or game fish unless lawfully acquired.  Proof of lawful acquisition must be produced for inspection on request of a department employee.  Such proof shall contain:  (1) Species; (2) age and sex of animal; (3) origin of animal; (4) name of receiving party; (5) source-name and address; (6) invoice/statement date; and (7) documentation of prior transfers.

                   . . . .

                        (7)  All live wildlife possessed or held in captivity, and the area where held, must be open to inspection by department personnel at reasonable times.[1]

            With specific regard to the importation and retention of nonresident wildlife, WAC 232-12-021(1) provides that it is unlawful

            [t]o import or possess wildlife, taken in another state or country, into Washington unless the wildlife was acquired lawfully.  Proof of legal acquisition must be retained during the period of retention of the edible parts.

            We also note that the Department of Wildlife has authority to seize wildlife possessed illegally.  RCW 77.12.101(1) provides that

            [w]ildlife agents . . . may seize . . . wildlife, as defined in RCW 77.08.010(16) they have probable cause to believe have been taken, killed, transported, or possessed in violation of this title or rule of the commission or director.

(Emphasis added.)

            Reading all these provisions together, two conclusions are apparent.  First, if an individual lawfully acquires a live elk in another state and lawfully brings the elk into Washington, the elk is the property of the individual, not the State.  However, to lawfully bring the animal into Washington, the owner must comply with the regulations of the Department of Wildlife.  Indeed, the Department could prohibit an individual from bringing wildlife lawfully acquired in another state into Washington.  If wildlife is not brought into the state legally, it may be seized by the Department.

            Second, although it is lawful for an individual to possess a live elk, such possession is subject to the overarching regulatory authority of the State.  The State's regulatory authority over wildlife imported from other states was confirmed in State v. Nelson, 146 Wash. 17, 261 P. 796 (1927), a case involving the conviction of a fish dealer for offering for sale a box of trout purchased in Montana, without first reporting the receipt of the fish to the game supervisor for tagging in accordance with the law.  The Supreme Court upheld the regulation on which the conviction was based:

                        The regulation is within the constitutional powers of the legislature.  The game within the state belongs to the people of the state, and the legislature may prohibit absolutely its destruction, possession, or taking if it so chooses.  Having this power, it may regulate its destruction, possession, or taking in any manner short of absolute prohibition.

                        The appellant, however, seems to contend further that, while the legislature may have this power with respect to the game of the state, it does not have such power with respect to game lawfully acquired without the state and brought within the state.  But if this be his meaning, the contention is unsound.  For the protection of its own property, the state may regulate the possession and disposition of property of like kind when brought within the state from another jurisdiction.  If there be a limitation at all upon its powers in this respect, it is only that the regulation be reasonable, and we find nothing unreasonable in the regulation it has adopted.

Id.at 21 (emphasis added); accord AGO 1971 No. 25 and cases cited therein at page 4.

            The second part of Question 1 asks whether the answer would differ if the elk were raised in captivity its entire life.  The answer is no.  Provided the live elk was "lawfully acquired," it would be the property of the individual who acquired it, rather than the State.  This is true whether the elk was raised in captivity or in the wild.  See RCW 77.12.105; WAC 232-12-064(3).  Similarly, the State's regulatory authority over wildlife in private possession extends equally to wildlife raised in captivity.  State v. Miller, 149 Wash. 545, 271 P. 826 (1928).

            In Miller, the defendant Miller was convicted of violating a statutory provision which required a game farmer's license to purchase, breed, and sell game or fur-bearing animals.  Miller owned and bred blue and silver foxes originally native to Alaska and Canada.  The foxes had been bred and raised in captivity in this State for many years, were registered with national and local fox breeder associations, and were assessed as personal property for tax purposes.  Miller argued that his foxes, because of their long captivity and non-native ancestry were no longer wild animals subject to State regulation.  The court disagreed:

                        Contention is also made that foxes of the kind owned by appellant are not native of this state, and that since they were brought here in captivity and have always been so held, the state has acquired no property in them or right to control.  Again we are met face to face with the proposition, heretofore argued, that the legislature, in the protection of its own property, may impose a regulation upon other property which never belonged to it, if in its opinion such a regulation is needed.

Id.at 548-49; accord AGO 1971 No. 25.

            The last part of Question 1 asks whether the answer would be the same for all wildlife, except those protected under specific federal law, such as the Endangered Species Act.  The answer is yes.  The foregoing general rules concerning private property rights in wildlife and the State's regulatory authority over such wildlife appear to be the same for all species of wildlife, except those otherwise protected.

            Question 2:

            If in the above situation the elk bore offspring, are the offspring the property of the State or the individual?

            Under the common law, ownership of the offspring of privately possessed wildlife depends on whether the offspring are also held in captivity.  So long as the offspring are not released back into the wild, the offspring belong to the owner of the parents (and, generally speaking, to the owner of the mother).  4 Am. Jur. 2d, Animals, § 10 (1962), at 257.  It bears repeating, however, that the State's regulatory authority over privately held wildlife also extends to the progeny of such wildlife.  SeeMiller, 149 Wash. 545; AGO 1971 No. 25; see also WAC 232-12-064(5) ("Live wild animals, wild birds or game fish held in captivity or their progeny or parts thereof may not be sold or otherwise commercialized on except as provided by rule of the commission.").

            Question 3:

            Does WAC 232-12-017, which deals with deleterious exotic wildlife, conflict with RCW 77.12.010?

            Question 3 deals with deleterious exotic wildlife.  As we pointed out in our background discussion, this is a category distinct from wildlife.  You have asked about WAC 232-12-017 (Amended by Order 482, filed January 17, 1991) which concerns "deleterious exotic wildlife."  It provides in relevant part:

                        WAC 232-12-017  DELETERIOUS EXOTIC WILDLIFE.  Deleterious exotic wildlife includes:

                     . . . .

                        (4)  Mammals

                        (a)  In the family Viverridae, the mongoose (all members of the genus Herpestes)
                        (b)  In the family Suidae, the wild boar (Sus scrofa and all wild hybrids)
                        (c)  In the family Tayassuidae, the collared peccary (javelina) (Tayassu tajacu)
                        (d)  In the family Bovidae, all members and hybrids of the following genera - Rupicapra (Chamois); Hemitragus (Tahr); Capra (goats, ibexes except domestic goat Capra (hircus); Ammotragus (Barbary Sheep or Aoudad); and Ovis (only mouflon species - Ovis musimon)
                        (e)  In the family Cervidae, the european red deer (Cervus elaphus), all non-native subspecies, and all hybrids with North American elk.
                        (5)  It is unlawful to import into the state, hold, possess, propagate, sell, transfer, or release live specimens of deleterious exotic wildlife except as provided under (6) or (7) below.
                        (6)  Scientific research or display:  The director may authorize a person to import into the state, hold, or possess live specimens of deleterious exotic wildlife for scientific research or for display by zoos or aquariums . . . .
                        (7)  Retention or Disposal of Existing Specimens in Captivity:  A person holding exotic wildlife specimens in captivity which are classified by the Wildlife Commission as deleterious exotic wildlife may retain the specimens he/she lawfully possesses prior to January 18, 1991 provided:  (a) the person reports to the director in writing by March 18, 1991 the species, number and location of the specimens, (b) the specimens are confined to a secure facility at the location reported, and (c) live specimens are not propagated, sold, transferred, or released, except for transfer or sale to locations outside the state of Washington, except federally listed endangered or threatened species may be transferred to AAZPA facilities with written Director approval.

WSR 91-03-082 (Feb. 6, 1991) (emphasis added).

            WAC 232-12-017(5) bans the import, possession, sale or transfer of deleterious exotic wildlife.  It should be noted that this rule does not apply to wildlife (e.g., the elk discussed in Question 1).  You have asked whether this rule conflicts with RCW 77.12.010 and you have specifically drawn our attention to the last paragraph of the statute underlined below.  RCW 77.12.010 provides:

                        Wildlife is the property of the state.  The department shall preserve, protect, and perpetuate wildlife.  Game animals, game birds, and game fish may be taken only at times or places, or in manners or quantities as in the judgment of the commission maximizes public recreational opportunities without impairing the supply of wildlife.

                        The commission shall not adopt rules that categorically prohibit fishing with bait or artificial lures in streams, rivers, beaver ponds, and lakes except that the commission may adopt rules and regulations restricting fishing methods upon a determination by the director that an individual body of water or part thereof clearly requires a fishing method prohibition to conserve or enhance the fisheries resource or to provide selected fishing alternatives.  The commission shall attempt to maximize the public recreational fishing opportunities of all citizens, particularly juvenile, handicapped, and senior citizens.

                        Nothing contained herein shall be construed to infringe on the right of a private property owner to control the owner's private property.

(Emphasis added.)

            The thrust of Question 3 is whether the restrictions on deleterious exotic wildlife in WAC 232-12-017 conflict with the statement in RCW 77.12.010 regarding the right of a private property owner to control his or her own property.  A regulation is invalid if it is in conflict with a statute.  See, e.g., Winans v. W.A.S., Inc., 52 Wn. App. 89, 93, 758 P.2d 503 (1988).  However, in the case we find no conflict for two reasons.

            First, the legislative history of the last paragraph of RCW 77.12.010 reveals a relatively narrow intent.  The provision was added to RCW 77.12.010 in 1977 as part of a bill to enlarge the authority of the Game Commission (now Wildlife Commission) by authorizing it to individually regulate and restrict certain types of hunting and fishing methods (e.g., designating flyfishing only lakes and hunting by bow and arrow only areas) so as to maximize public recreational opportunities.  Final Legislative Report, 45th Legislature (1977), at 25.  The bill originated in the House as House Bill 262.  House Journal, 44th Legislature (1977), at 77.  The language that is now the last paragraph of RCW 77.12.010 was added in the Senate.  Senate Journal, 45th Legislature (1977), at 658.  The intent of the Senate amendment was explained by Senator Rasmussen:

            The intent of my amendment is to retain the right of private land owners to control trespass over and across their lands, and to protect their property against abuse or damage.  This provision specifically relating to wildlife is covered in the game code under RCW 77.16.230.  I simply want to reaffirm this individual right.

Id.at 706 (emphasis added).  Although members of the House considered the language surplusage, the House accepted the Senate's amendment.  House Journal, supra at 548.  According to this legislative history, the last paragraph of RCW 77.12.010 is simply a reaffirmation of the right of a private landowner to control and protect his or her real property from trespass or other abuse or damage.

            WAC 232-12-017 deals with "deleterious exotic wildlife," which are defined as "species of the animal kingdom not native to Washington and designated as dangerous to the environment or wildlife of the state."  RCW 77.08.010(25).  WAC 232-12-017(1)-(4) designates a variety of fish, amphibians, birds, and mammals as deleterious exotic wildlife.  It makes it unlawful to import, possess, propagate, sell, transfer, or release live specimens of deleterious exotic wildlife except within limited purposes of scientific research or display.  WAC 232-12-017(6).  It also provides that persons holding exotic wildlife specimens which are classified as deleterious exotic wildlife may retain the specimens lawfully possessed prior to January 18, 1991, provided the specimens are reported to the Department of Wildlife; confined to a secure facility; and not propagated, sold, transferred, or released, except for transfer or sale outside the State or, in certain limited cases, to approved zoos and aquariums.  WAC 232-12-017(7).

            By its terms, WAC 232-12-017 does not infringe, impact, or intrude upon the right of a private landowner to control and protect his or her land from trespass.  It does not, therefore, violate the intent of the last paragraph of RCW 77.12.010.

            The second reason for our conclusion is that statutes relating to the same subject matter must be read together and the provisions harmonized to give force and effect to each.  Piercy, 101 Wn.2d at 492.  Here, the last paragraph of RCW 77.12.010 affirming the right of private property owners to control their private property must be read together with the rest of Title 77.  As previously discussed, the Wildlife Commission and the Department of Wildlife have broad authority under that title to preserve, protect, and perpetuate wildlife and wildlife habitat.  RCW 77.04.055; RCW 77.12.010.  Moreover, as we pointed out in our background discussion, they have specific authority with regard to deleterious exotic wildlife.

            First, RCW 77.12.020(7) provides:

                        If the director determines that a species of the animal kingdom, not native to Washington, is dangerous to the environment or wildlife of the state, the director may request its designation as deleterious exotic wildlife.  The commission may designate deleterious exotic wildlife.

(Emphasis added.)  The last paragraph of RCW 77.12.010 must be read in conjunction with this provision which clearly authorizes the designation of deleterious exotic wildlife contained in WAC 242-12-017 at sections (1)-(4).

            In addition, RCW 77.12.040 specifically authorizes the Department of Wildlife to regulate in this area.  RCW 77.12.040 provides in part:  "The commission shall regulate the taking, sale, possession, and distribution of wildlife and deleterious exotic wildlife."  (Emphasis added.)  The last paragraph of RCW 77.12.010 must be read in conjunction with this provision which clearly authorizes the regulations on the importation, holding, possession, propagation, sale, transfer, and release of live specimens of deleterious exotic wildlife contained in WAC 232-12-017 at sections (5)-(7).

            Although Question 3 does not precisely address the issue, it is evident from your letter that your principal concern with WAC 232-12-017 is that it designates and regulates certain domesticated wild animals, such as certain elk hybrids (WAC 232-12-017(4)(e)), as deleterious exotic wildlife, notwithstanding the fact that such animals are privately owned.  As we have noted throughout this opinion, the authority of the State to regulate wild animals raised in captivity and of ancestry not native to the State is beyond dispute.  The only limit on the State's power to regulate in this area is that the regulation be reasonable, i.e., that it rationally relate to the accomplishment of some purpose legitimately within the purview of the Department's jurisdiction.  See AGO 1971 No. 25.

            Although it appears from your letter that you question the wisdom of the regulation at issue, there are insufficient facts in your letter for us to determine, as a matter of law, that in amending WAC 232-12-017, the Department has acted unreasonably or has exceeded its statutory authority to designate and regulate deleterious exotic wildlife.

            We trust this opinion will be of assistance to you.

                                    Very truly yours,

                                    KENNETH O. EIKENBERRY
                                    Attorney General

                                    MARK S. GREEN
                                    Assistant Attorney General

MSG:aj


    [1]      See also WAC 232-12-034 which provides that a "game farmer may acquire wildlife only from a licensed game farm or other lawful source."

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