Introduction
Background
To fulfill requirements of a 2022 operating budget proviso (SB 5693, 2022 p. 549), which reads as follows:
(49) $852,000 of the general fund—state appropriation for fiscal year 2023 is provided solely for the department to provide additional capacity to the attorney general's office to prosecute environmental crimes. The department must provide an annual report by December 1st of each year, to the appropriate committees of the legislature, on the progress made in prosecuting environmental crimes.
History
In 1890, Gov. Ferry appointed the first Washington Fish Commissioner In this Third Annual Report, Commissioner Crawford highlighted the need for the Fish Commission to more fully carry out the detection and punishment of law violators made for the protection of the food fish in our state. As clearly identified in 1892, the need to detect and hold accountable those individuals who violated and thereby negatively impacted our state natural resources was and continues to be a vital part of fish and wildlife management. This sentiment may be even more important today, as the population of the state has expanded to more than 7.5 million people, resulting in environmental impacts to native species and habitat loss. The people of Washington place a high value upon our natural resources and have expressed an expectation such resources will be justly protected.
For 130 years, there have been many changes to the laws, regulations, and procedures associated with enforcing fish and wildlife regulations as well as the state’s judicial system. These changes were intended to streamline processes or to ensure that the proper legal processes are in place. Prior to 2012, most of the fish and wildlife legal code consisted of criminal offenses which were bail forfeitable. A bail forfeiture signifies that an offender is willing to pay the bail amount as the penalty for the offense without admitting any guilt. With many individuals either making an error in judgement or failing to be informed of the regulations, the bail forfeiture process worked well and very few cases resulted in anything more than a bench trial.
Once this process was changed as a matter of due process, accused violators were subject to the full criminal judicial process. In many places, prosecutors were ill-prepared for this and lacked the subject expertise to handle the influx of these cases. In response, the Washington Department of Fish and Wildlife (WDFW) requested the adoption of a large code revision which changed many lower criminal offenses to infractions. The agency wanted to hold accountable those individuals whose actions were egregious or had a greater impact on management objectives, such as overharvest and closed season harvest, or who violated ethical and safety concerns, such as spotlighting big game. These changes to lower-level violations appeared to address the increase in criminal cases from Fish and Wildlife Officers and eased the burden on county courts and county prosecutors.
In 2017, the agency began to see a troubling trend of fish and wildlife related cases not being prosecuted in a growing number of counties. There were a variety of reasons why this was occurring. Several common themes noted were that prosecutors were becoming overwhelmed with other criminal cases, there was a desire for prosecutors to focus on crimes against individuals versus crimes against wildlife, and continual turn-over in senior staff which resulted in a decrease in subject matter expertise.
There was also a failure by some prosecutors to fully understand the potential impacts to both the local and state economy when fish and wildlife violators were not held accountable.
In response, the agency in 2020 requested changes to the criminal code to further reduce more criminal offenses to infractions. The remaining criminal code represents those violations which the agency feels are most important and necessary to retain. This is very similar to the changes which occurred to the traffic statue in 1981.
The COVID-19 pandemic and the accompanying law enforcement and judicial reforms have had large and continuing impacts on the agency’s ability to pursue criminal prosecution of fish and wildlife violators. The agency examined their record management system (RMS) to identify the number of criminal citations issued or filed with the courts along with those referred to prosecutors for the three-year period between 2020 through 2022. The agency then requested district court records concerning wildlife case dispositions for the same period. This information was compiled to break down violation types, county of filing, and disposition amongst other data points. Two primary violation types were closely examined. These were fishing violations under RCW 77.15.380 and big game violations under RCW 77.15.410.
Fishing Related Violations
For fishing related criminal violations (RCW 77.15.380), the agency’s RMS system noted 2,241 charges have been filed with the courts or referred to the county prosecutor. District court records showed that only 720 criminal charges were filed with the courts during the 2020-2022 time period by the officers directly or through the prosecutor’s office. These 720 charges resulted in 438 being dismissed, 33 were deferred (then dismissed), 129 were amended to another charge or reduced to an infraction, 115 were found or plead guilty, and one was found not guilty or acquitted. The remaining cases are still pending.
Big Game Related Violations
For big game (elk, deer, bear, cougar) related criminal violations (RCW 77.15.410), there were 895 charges filed or referred, however, only 266 were charged in district courts, by the officers directly, or through the prosecutor’s office. Of these 266 charges, 133 were dismissed, 56 were amended to another charge/infraction, 35 were deferred or entered into a diversion, 41 were found or plead guilty, and one was found not guilty or acquitted.
Low Conviction Rate
The low conviction rate should not be interpreted as a reflection of poor case preparation. Fish and Wildlife Officers take great pride in their cases because of the extraordinary amount of time invested into an investigation. When charges are referred it is because the officer has identified those as the most appropriate based on the totality of the circumstance and facts known at the time. Cases are well put together and detail the events to a level seen in many felony-based investigations. When prosecutors decide to amend, defer, or dismiss fish and wildlife charges, there are implications to agency administrative procedures such as license suspensions for continued and/or repeated violations, forfeiture of property used in the commission of the crime, and the wildlife civil penalties associated with the harvest and/or take of certain species of wildlife.
There are instances when the cases can severely impact fish and wildlife management objectives. For example, when an individual is suspected of committing a commercial fishing related violation, involving the illegal take of a species worth thousands of dollars to a fish buyer, and the resulting fine is $150, the potential of a large payday far outweighs the risk. This does not even consider the biological, economical, and co-management impacts that such violations have for the state of Washington. If there is no threat of being held accountable, there is no deterrence to a growing number of individuals.