Gaylord, 123016 WAAGO, AGO 2016-8

Docket Nº:AGO 2016-8
Case Date:December 30, 2016
Court:Washington
 
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The Honorable Randall K. Gaylord
AGO 2016-8
No. 2016-8
Washington Attorney General Opinions
Attorney General of Washington
December 30 2016
         The Honorable Randall K. Gaylord          San Juan County Prosecuting Attorney          350 Court Street          Friday Harbor, WA 98250          Dear Prosecutor Gaylord:          By letter previously acknowledged, you have requested our opinion on two questions that we have paraphrased as follows[1]:
1. Are unmanned aircraft systems, commonly referred to as drones, included within the term "other object" as used in RCW 77.15.740(1)(a), which prohibits persons from causing vessels or other objects to approach within two hundred yards of a southern resident orca whale?
2. How should the Washington Department of Fish and Wildlife, the agency charged with enforcement of RCW 77.15.740(1)(a), proceed during this time of changing Federal Aviation Administration regulations?
         BRIEF ANSWERS          1. Yes, drones are most likely included within the term "other object" as used in RCW 77.15.740(1)(a).          2. The Washington Department of Fish and Wildlife should contact its assigned Assistant Attorneys General if agency personnel have questions related to RCW 77.15.740(1)(a).          FACTUAL BACKGROUND          In 2008, the legislature enacted Second Substitute H.B. 2514, an Act relating to protecting southern resident orca whales from disturbances by vessels. Laws of 2008, ch. 225. This Act established civil penalties for disturbing a population of approximately 80 orcas that spend each summer and fall in Washington's Puget Sound. In enacting this measure, the legislature found that "the resident population of orca whales in Washington waters . . . [is] enormously significant to the state" and that these whales "are currently in a serious decline." Laws of 2008, ch. 225, § 1. It went on to declare that the legislature "intends to protect southern resident orca whales from impacts from vessels, and to educate the public on how to reduce he risk of disturbing these important marine mammals." Laws of 2008, ch. 225, § 1. The Act would later be codified at RCW 77.15.740, where it remains in effect as amended. The Department of Fish and Wildlife (WDFW) is authorized to enforce the provisions of RCW 77.15.740. See RCW 77.15.075.          Your opinion request letter addresses the operation of unmanned aircraft systems, commonly referred to as drones, around the southern resident orca whale population. More specifically, you have asked for an opinion as to whether RCW 77.15.740(1)(a), which prohibits persons from causing a vessel or "other object" to approach in any manner within 200 yards of a southern resident orca whale, would apply to a drone being flown within the proscribed distance of such a whale. Yo u have also requested general advice on how WDFW should proceed in light of changing federal regulations regarding the public's use of drones. Our analysis of your questions follows.          ANALYSIS          1. Are unmanned aircraft systems, commonly referred to as drones, included within the term "other object" as used in RCW 77.15.740(1)(a), which prohibits persons from causing vessels or other objects to approach within two hundred yards of a southern resident orca whale?          For the reasons discussed below, we conclude that drones are likely included within the term "other object" as used in RCW 77.15.740(1)(a). Because your question presents an issue of statutory construction, we will begin by discussing the history of the statute prior to analyzing it.          Legislative History Of RCW 77.15.740(1)(a)          RCW 77.15.740 was originally enacted as part of Laws of 2008, ch. 225. It established civil penalties for persons who "[c]ause a vessel or other object to approach within three hundred feet" of southern resident orca whales or engage in certain other specified practices unless an exemption recognized by the Act applied. Former RCW 77.15.740(1)(b) (2008). At that time, the legislature defined the term "vessel" to include "aircraft, canoes, fishing vessels, kayaks, personal watercraft, rafts, recreational vessels, tour boats, whale watching boats, vessels engaged in whale...

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