Limitations on state's liability for elk and deer damage

WILDLIFE-CLAIMS AGAINST STATE-RISK MANAGEMENT-Limitations on state's liability for elk and deer damage

In allowing claims against the state for damage caused to property by deer or elk, the Legislature has set a maximum limit of $2,000 per claim; this limitation applies both to claims settled and paid by the Department of Wildlife and to claims paid by the Legislature upon recommendation of the Risk Management Office.

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                                                                November 8, 1994

Robert Turner, Director
Department of Fish and Wildlife
600 Capitol Way North, MS 41091
Olympia, WA  98501-1091                                                                

                                                                                                Cite as:  AGO 1994 No. 19

Dear Mr. Turner:

            By letter previously acknowledged, your predecessor at the Department of Wildlife asked for our opinion regarding the proper interpretation of statutes providing for the payment of claims for damages caused by deer or elk.  As noted in Ms. McLain's letter, under RCW 77.12.270-.300 individuals first petition the director of the Department of Fish and Wildlife for payment of such claims.  If the claim is refused by the director or not settled within 120 days of its filing, the claimant or the director may refer the matter to an arbitrator for an advisory opinion.  If the claim is not settled and paid within one year, the claim may be filed under RCW 4.92.040(5), in which case the Risk Management Office shall recommend to the Legislature whether the claim should be approved.

                                                        QUESTION PRESENTED

            The question presented is as follows:

            Does the limit of $2,000 on the amount which may be paid for a claim for damages caused by deer or elk apply only to those claims approved by the director, or does the limit continue to apply when the claim is subsequently processed by the Risk Management Office under RCW 4.92.040(5)?

                                                               BRIEF ANSWER

            For the reasons outlined below, we conclude that the $2,000 limit set forth in RCW 77.12.270 continues to apply to a claim subsequently filed and processed under RCW 4.92.040(5).

                                                                    ANALYSIS       

            The particular statutes at issue are RCW 77.12.270 and .280(1).  RCW 77.12.270 provides:

                        The director may compromise, adjust, settle, and pay claims for damages caused by deer or elk in accordance with RCW 77.12.280 through 77.12.300.  Payments for claims shall not exceed two thousand dollars.  The payment of a claim by the director constitutes full and final payment for the claim.  The director shall advise the commission quarterly of all damage claims paid.

(Emphasis added.)  RCW 77.12.280(1) provides:

                       Claims under RCW 77.12.270 may be filed under RCW 4.92.040(5)^[[1]]if within one year of filing with the director the claim is not settled and paid.  The risk management office shall recommend to the legislature whether the claim should be approved.  If the legislature approves the claim, the department shall pay it from moneys appropriated for that purpose.

(Emphasis added.)

            The question of the proper interpretation of these statutes arises from an ambiguity created by 1986 amendments to RCW 77.12.270 and .280.  Prior to the 1986 amendments, it was clear from the language of RCW 77.12.270 and .280(1) that the dollar limit, then $1,000, applied to claims throughout the process.  The former RCW 77.12.270 provided as follows:

                        The commission^[[2]] may compromise, adjust, settle, and pay claims for damages caused by deer or elk in accordance with RCW 77.12.280 through 77.12.300.  Payments for claims shall not exceed one thousand dollars.  The payment of a claim by the commission constitutes full and final payment for the claim.

Laws of 1980, ch. 78, § 45, p. 204 (emphasis added).  Former RCW 77.12.280(1) provided as follows:

                        Claims under RCW 77.12.270 not exceeding one thousand dollars may be filed with the director of financial management if within one year of filing with the commission the claim is not settled and paid.  Claims shall conform to the tort claim filing requirements in RCW 4.92.100 as now or hereafter amended.  The director of financial management shall recommend to the legislature whether the claims should be approved.  If the legislature approves the claim, the department shall pay it from moneys appropriated for that purpose.

Laws of 1980, ch. 78, § 46, p. 204 (emphasis added).  Thus, the statutes were explicit that the claims filed with the director of financial management were not to exceed the $1,000 limit, and the recommendations of the director of financial management to the Legislature were confined to whether the claims should be approved.[3]

            It is against this background that we consider what substantive changes were effected by the 1986 amendments to RCW 77.12.270 and .280(1).  These amendments are shown in the form adopted by the Legislature, with indication of new and deleted language, as follows:

                        Section 77.12.270 [is] amended to read as follows:

                        The commission may compromise, adjust, settle, and pay claims for damages caused by deer or elk in accordance with RCW 77.12.280 through 77.12.300.  Payments for claims shall not exceed ((one))two thousand dollars.  The payment of a claim by the commission constitutes full and final payment for the claim.

                       . . . Section 77.12.280 [is] amended to read as follows:

                        (1)        Claims under RCW 77.12.270 ((not exceeding one thousand dollars)) may be filed ((with the director of financial management))under RCW 4.92.040(5) if within one year of filing with the commission the claim is not settled and paid.  ((Claims shall conform to the tort claim filing requirements in RCW 4.92.100 as now or hereafter amended.))  The ((director of financial)) risk management office shall recommend to the legislature whether the claim should be approved.  If the legislature approves the claim, the department shall pay it from moneys appropriated for that purpose.

Laws of 1986, ch. 126, §§ 11, 12, p. 427 (bill draft form).

            The deletion of the explicit reference to the dollar limit on claims in RCW 77.12.280(1) raises the question of whether the Legislature intended to eliminate any dollar limit on the filing of claims under RCW 4.92.040(5).

            We start our analysis with the language of the amended statute.  One could reasonably conclude from the language of the statute that the Legislature intended the limit on a claim filed with the director to apply throughout the process.  RCW 77.12.280(1) states that "[c]laims under RCW 77.12.270 may be filed under RCW 4.92.040(5)".  Read in isolation, this reference could be understood either as referring generally to a claim for damages caused by deer or elk, or as referring to the claim which was filed with the director.  Looking at the section and the statutory scheme as a whole, there are indications the latter is the better reading.  References in RCW 77.12.280(1) are to "the claim" and appear to be referring back to the specific claim filed with the director.  RCW 77.12.280(1) provides:

                        Claims under RCW 77.12.270 may be filed under RCW 4.92.040(5) if within one year of filing with the director the claim is not settled and paid.  The risk management office shall recommend to the legislature whether the claim should be approved.  If the legislature approvesthe claim, the department shall pay it from moneys appropriated for that purpose.

(Emphasis added.)  The word "the" is a definite article which is commonly used to refer to a specific item and has been held, in cases construing statutes, to demonstrate a specifying or particularizing effect.  See, e.g.,Stephan v. Pennsylvania Gen. Ins. Co., 621 A.2d 258, 261 (Conn. 1993);Brooks v. Zabka, 450 P.2d 653 (Colo. 1969).

            Additionally, the provision that the claim may be filed with the Risk Management Office only if the claim is not settled by the director within one year, indicates that it is the same claim with the same dollar limit that is being processed.  There would be no logic in allowing claims in excess of the director's authority, but requiring a period of one year to pass before such a claim could be filed under RCW 4.92.040(5).

            However, one could also view the deletion of the reference in RCW 77.12.280(1) to a dollar amount as indicating an intent to remove the limit.  The 1986 amendments changed the opening language of that section from "[c]laims under RCW 77.12.270 not exceeding one thousand dollars may be filed with the director of financial management" to "[c]laims under RCW 77.12.270 may be filed under RCW 4.92.040(5)" if within one year of filing with the director the claim is not settled and paid.  One interpretation could be that the deletion of the reference to a specific dollar amount and the general reference to RCW 4.92.040(5) removed any dollar limit.

            Where the language of a statute is ambiguous and amenable to more than one construction, the courts will look to the legislative history and apply rules of statutory construction to assist in ascertaining the intent of the Legislature.  As noted inKadoranian v. Bellingham Police Dep't, 119 Wn.2d 178, 185, 829 P.2d 1061 (1992):

                        The goal of statutory construction is, of course, to give effect to the intent of the Legislature.  Where the meaning of the statute is clear from the language of the statute alone, there is no room for judicial interpretation.  If the language of the statute is amenable to more than one construction, however, resort to legislative history and other aids to construction is appropriate.

(Footnotes with citations to cases omitted.)

            There are several rules of statutory construction which are relevant in answering your inquiry.  First, a statute should be construed in light of the general object and purpose of the legislation.  Strenge v. Clarke, 89 Wn.2d 23, 29, 569 P.2d 60 (1977).  Second, courts generally will not assume that the Legislature would effect a significant change in legislative policy by mere implication.  State v. Calderon, 102 Wn.2d 348, 351, 684 P.2d 1293 (1984); In re Marriage of Little, 96 Wn.2d 183, 191, 634 P.2d 498 (1981).  Courts will look to the history of actions by the Legislature with regard to a legislative enactment, including sequential versions of bills and legislative reports, for guidance regarding the legislative intent.  Biggs v. Vail, 119 Wn.2d 129, 134, 830 P.2d 350 (1992).

            The amendments to RCW 77.12.270 and .280(1) were enacted as sections of Senate Bill 4693, in the 1986 Legislature.  A review of the legislative history shows the general object and purpose of SB 4693 was to:  (1) transfer responsibility for the tort and sundry claim filings and payment processes from the Office of Financial Management to the Risk Management Office; (2) to make certain changes in these claim filing processes; and (3) to raise the dollar amount for which a non-tortious claim could be administratively approved from $500 to $2,000.  As originally introduced, SB 4693 would have amended chapter 77.12 RCW only by substituting the Risk Management Office for the director of financial management in RCW 77.12.280 to reflect the overall shift of responsibilities.

            Amendments to the bill were offered in the House Ways and Means Committee.  These amendments made certain changes to the claim filing and processing provisions of chapter 4.92 RCW, and also made more extensive changes to RCW 77.12.270 and .280(1).  The amendments proposed to substitute "two thousand dollars" for "one thousand dollars" in RCW 77.12.270, to delete the reference to "one thousand dollars" in RCW 77.12.280(1), and to provide that the deer and elk damage claims are filed under RCW 4.92.040(5) rather than in conformance to the tort claim filing requirements of RCW 4.92.100.  These amendments were adopted by the House Ways and Means Committee and remained in the final legislation as enacted.[4]  The effect of the amendments was described in the House Bill Report for SB 4693 as follows:

            AMENDED BILL COMPARED TO ORIGINAL:  The amended bill modifies the sundry claims procedure by (1) providing annual deadlines for submission of claims; (2) requiring useful information to be submitted along with recommendations, and(3) making the amounts and procedures for game damage claims conform with other sundry claims.

(Emphasis added.)  The 1986 Final Legislative Report summarized the effect of this legislation:

            Tort claimants must file their claims with RMO rather than OFM.  The authority to make payments from the tort claims revolving fund is transferred from OFM to RMO.  In addition, RMO is granted the following responsibilities held by OFM:  1) determining comparative liability responsibility of a tort claim between state agencies; 2) reporting to the Legislature on the status of the tort claims revolving fund; 3) authorizing state agencies to purchase personal indemnity insurance for individuals performing services for the state; and 4) adopting rules and regulations for the payment of tort claims.

            RMO is also granted the authority, formerly held by OFM, to process non-tortious claims.  The dollar amount for which a non-tortious claim can be administratively approved is raised from $500 to $2,000.  All claims over $2,000 continue to require legislative approval.

           . . .

            Claims for damages caused by deer and elk of up to $2,000 may be administratively approved for payment by the state Game Commission.  (The Commission currently has the authority to administratively approve claims of up to $1,000.)  Claims unpaid for more than one year may be submitted to the Legislature with RMO's recommendations.

Final Legislative Report, 49th Legislature (1986), at 207-08.

            Applying the rules of statutory construction in light of this legislative history, we conclude the 1986 amendments were not intended to remove the prior limit on the amount which may be paid for damages caused by deer and elk, but only to raise it from $1,000 to $2,000.  A change from a policy of paying claims of a limited amount to a policy of paying unlimited claims would be a significant change in legislative policy, and one that should not be inferred by implication.  Yet this result could only be reached by implication.  Our review of the available legislative history of this amendment finds no mention of any intent to expand the size of claims which are processed once the claims move into the jurisdiction of the Risk Management Office.[5]

            Additionally, we believe it is significant that RCW 77.12.270 is the only statute which specifically provides for payments to persons whose property is damaged by deer or elk.  Payments to individuals must be based on the liability of the state or on a determination by the Legislature that a public benefit would be gained in return for such payments.  SeeAckerley Communications, Inc. v. Seattle, 92 Wn.2d 905, 602 P.2d 1177 (1979).  The manifest public benefit of the claim statute is to discourage property owners from destroying game animals that are damaging their property.  However, there is no statute other than RCW 77.12.270 that outlines the parameters of claims which the Legislature has determined should be paid to further this public interest.[6]  We note that RCW 4.92.040(5) is not an independent source of liability; rather, that statute requires the Risk Management Office to provide an "analysis of the legal liability, if any, of the state for the alleged loss or damage".  RCW 4.92.040(5)(c).  We believe the courts would be reluctant to find that the Legislature removed the limits and, through implication, determined that the public benefit gained justifies payment of unlimited claims.  Rather, it is likely a court would look to RCW 77.12.270 as the source and the definition of the Legislature's determination of what should be paid for deer and elk damage claims.[7]

            In our opinion, the better interpretation is that the 1986 amendment to RCW 77.12.280(1) was intended to incorporate the dollar limit of RCW 77.12.270 while making the provisions of RCW 77.12.280(1) consistent with the shift of claim processing responsibilities and dollar amounts accomplished by other sections of the bill.  We reach this conclusion by looking to the language of the statute and the general object of the legislation, and by applying the rule of statutory construction that major changes in policy will not ordinarily be found by implication.

            We trust this opinion will be of assistance to you.

                                                                        Very truly yours,

                                                                        CHRISTINE O. GREGOIRE
                                                                        Attorney General

                                                                        NARDA PIERCE
                                                                        Solicitor General

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