### FILED 

### JAN. 15,2014 In the Office ofthe ClerkofCourt W A StateCourt ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE BRUCEM. BEATTY, ) No. 31409-0-111 ) Appellant, ) ) v. ) PUBLISHED OPINION ) WASHINGTONFISH and WILDLIFE ) COMMISSION, WASHINGTON ) DEPARTMENT OF FISH AND ) WILDLIFE, AND POLLUTION ) CONTROLHEARINGS BOARD, ) ) Respondents. ) KNODELL, J:

- BruceBeatty applied for a hydraulic miningpermitto operate a suction dredge onFortune Creek outside ofthe workwindow dates established by the Washington Department ofFish and Wildlife (WDFW)Fish and Gold Pamphlet. The WDFW granted the permit, but included a conditionthat limited suction dredging tothe dates withinthe workwindow. The WDFW informed Mr. Beattythathis request to operate a suction dredge outside the workwindow could still be granted ifhe provided

• Judge John D. Knodell is serving asjudgepro tempore ofthe CourtofAppeals pursuanttoRCW 2.06.150.No. 31409-0-III Beatty

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site specific infonnation that allowed the WDFWto assess the impactto fish life. Mr. Beattyrefused and appealed the pennit decision to thePollution Control Hearings Board (PCHB). ThePCHB upheld thetenns ofthe pennit, concludingthat WDFW's decision
was reasonably designed to protect fish life and not out ofproportion to the proposed dredging activity given the lack ofinfonnationprovided by Mr. Beatty. The superior court upheldthe PCHB's decision. Mr. Beatty appeals. We find no errorwiththe PCHB'sdecision to uphold the pennit. We affinn the decision ofthe superior court. FACTS The WDFW regulates placer mining statewide.! In 2009, the WDFW institutedthe currentplacer mining regulations in the Gold and Fish Pamphlet (Pamphlet). According to the Pamphlet, placer miners are allowedto use certain small handheld tools without restriction. However, miners using motorized equipment, such as suction dredges, are restrictedto specific dates established for individual streams throughout the state. Miners wishingtoprospect outside the allowed miningmethods or dates established in the Pamphlet can apply to the WDFW for an individual hydraulic project approval (HPA) pennit.

I Placer mining involves searching for goldthat has moved away from its original hostrock, migrated downstream, and settled into the streambed sediment. 2

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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. Thetiming ofthe work window for each stream is based on the spawning habits offish speciesresiding in the stream. An important spawning habit is the creation ofnests, calledredds. 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 overthe eggs. The eggs develop in the gravel. Suction dredging mining disturbs gravel in a stream bed, although miners tend to targetpacked gravel as opposed to the loose gravel usedby fish. A suction dredge uses a gas engine and suction hose to remove material from the streambed. The material is then deposited in a sluicebox on a floating platform where the riffle boxcaptures heavier gold. The remaining material is discarded from the unit and returned tothe stream. While operating the suction dredge, the miner is in the waterlying prone on ornearthe streambed with a diving mask, directingthe 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. Typically, the best gold is found nearoronbedrock. Miners using a suction dredge commonly test theproductivity ofan area by creating a sample hole down to the


### 3No. 31409-0-III Beattyv. Fish & Wildlife Comm 'n
bedrock. Ifthere are no viable signs ofgold, 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. Generally, areas ideal for suction mining are not ideal for fish redds. Suction dredge miners generally do not consider loose streambed material favorable for gold deposits. However, bothplacer miners and redd building fish like stream material that collects on the back side oflarge boulders and rocks. Mr. Beatty sought an HPApermit 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 ofthe creek is approximately 2.5 miles, the creek also has a north fork, a south fork, and a number ofsmaller tributaries. The creekpasses through federally owned forest land and is open to recreational fishing. Differentportions ofthe 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 limitednumbers ofbull trout have been observed in Fortune Creek.
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ForFortune Creek, thework window for suction dredging is August 1through August 15. WDFW based the start date on rainbow trout and steel head spawning in similar streams in the vicinity ofFortune Creek. The ending date is based onthe observation ofbull trout redds in the creek. Although discovery ofthe redds occurred in September, WDFW concludedthat the redds were likely constructed in August. InMr. Beatty'sHPA permit, he soughtto use suction dredging andpowered highbanking tools on Fortune Creek anywhere within the Fortune Creekwatershed at any time within the five year period between May 1,2011, and September 30,2016, with suction dredging occurring betweenthe months ofMay and September. Mr. Beatty intended to dredge 60 linear feet ofstream bed each year. Heplanned to use either a three- to four-inch suction intake nozzle, or ifallowed, a six-inch suction intake.nozzle. Like otherminers, 

### Mr. Beatty planned toput down sample holes until he reached a satisfactory site. Ifhe found a deposit, he possiblywould use a highbankerin conjunction with the suction dredge.2 The WDFW issued Mr. Beatty a two year HPA permit and granted his requestto
use a gasoline-powered highbanker outside ofthe work window in the Pamphlet. However, the WDFW limited suction dredging to the two-week work window. In a letter

2A highbankerprocesses material at a mining location away from the stream. 5No.31409-0-II1 Beatty

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to 

### Mr. Beatty, the WDFW explained that it granted the permit for the highbanker but wished to conduct a site visit to evaluate the impact that the prospecting activities had on fish life in the relatively small stream. Italso stated that it could not approve the suction dredging request because Fortune Creekhad both spring and fall spawning fish, and eggs from these fish couldbe found in the gravel before and after the approved work window. Nevertheless, the WDFW said that permit approval for suction dredging was still a possibility for Mr. Beatty in Fortune Creek. The letter continued, '"[I]fyou 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 permitto allow workwith a suction dredge outside ofthe standard work window.'" Clerk's Papers (CP) at 57. Mr. Beatty chose not toprovide 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 permitto protect the fish species spawning in Fortune Creek. Mr. Beatty appealed the decision to the PCHB. An administrative hearing was held on the matter. Mr. Beatty contended thatthe condition restricting suction dredging



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to the work window was unreasonable because it did not serve the purpose ofprotecting fish life as required by RCW 

### 77.55.021. Mr. Beatty presented evidence in an attemptto establish that the restriction was not needed because there was a low likelihood thathis operation would harm fish life in Fortune Creek. Dr. Robert Crittenden, a biometrician and fish biologist, testified thatthe chance ofa suction dredge miner encountering a redd onFortune Creek was miniscule. Dr. Crittenden did not prepare a formal or detailed statistical analysis ofpotential harm to redds orthe likelihood ofencounteringredds during spawning season. However, he presented a "back ofthe envelope" calculation ofthe statisdcallikelihood ofa suction dredge miner encountering a redd on Fortune Creek. CP at 

### 290. Dr. Crittenden's calculation used the size ofthe entire watershed area, anywhere between 5 and 

### 10 miles, with Mr. Beatty mining 60 feet ofstream anywhere in the watershed. By estimating the number ofredds and assumingthe redds were randomly located, Dr. Crittenden estimated that the probability ofencountering a redd was anywhere between one in ten thousand and one in a million. Dr. Crittenden stated thatthe probability was zero ifminers and fish preferred different areas ofthe creek. Even then, Dr. Crittenden reasoned that harm to fish eggs was oflittle importance to protecting fish life because the majority ofthe eggs die under natural causes.
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Dr. Crittenden admitted thathis personal observation ofthe creek was very limited. He stated that he observed the top ford ofthe creek once, butnevervisited the main stem ofthe creek. His conclusion that only a small portion ofthe creekwas suitable redd habitat was based on the reports ofothers. Mr. Beatty testified thathe would not encounter any redds because he avoids the type ofareas that 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 a description oftypical color, size, and location, but could not answer more specific questions. Mr. Beatty said thathe works underwater close to the suction nozzle, so ifheencounters a redd, he could move the nozzle away and take his equipment elsewhere. Mr. Beattytestified that he felt he was discriminated against in connection with the permitbecause other miners were getting increased workwindows for suction dredging in otherwaterways in Washington. Mr. Beatty said thathe was involved with the Pamphlet rule making process, and thatthe process was not smooth and harmonious. He stated that in one meeting, Perry Harvesterrepeatedly interrupted Mr. Beatty's wife while she tried to make a comment. Mr. Harvester's boss apologized for the incident. WDFWmaintained thatthe decision on Mr. Beatty'spermitwas based on the information thathe provided. WDFWbiologists William Meyer and Mr. Harvester
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testified that WDFWrefused to extend the workwindow for suction dredging because of the lack ofinformation aboutwhere Mr. Beatty wouldprospect. Mr. Meyer said thathe could not determinethe risk to the Fortune Creek areabecause Mr. Beatty failed to give him the information he needed to calculate quantitative impact. Mr. Harvestertestified that the purpose ofthe restriction on Mr. Beatty'spermit
was the protection offish life. Similarly, Mr. Meyer stated that hisjob was to write a permit thatprotects fish life, including eggs, fry and adults. He felt thathe accomplished this purpose with Mr. Beatty'spermit. He limited Mr. Beattyto 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. As for fish life in Fortune Creek, Mr. Meyer testified that the creek is a good fish habitat and holds a number ofdifferent species offish. Mr. Meyerpersonally observed the fish in the river during night snorkels. While he never witnessed a bull trout, he read reports that they were in the creek. The WDFWpresented fish surveys ofFortune Creek that noted the presence ofbull trout and other fish. Mr. Meyer testified thatthere were several areas on Fortune Creek that were suitable for redds, depending on the size ofthe fish. These areas include pools on the


### 9No. 31409-0-III Beattyv. Fish & Wildlife Comm 'n
back side oflarge boulders suitable for placermining. 

### Mr. Meyer explained thatthe fish in Fortune Creek spawnprimarily in concentrated areas, which ifhit, would suffer a catastrophic impact. Also, 

### Mr. Meyertestifiedthat a trained biologistwould have difficulty spotting redds beforethey are dug into. He described the redds found in high elevation streams as very tiny eggs, approximately the size ofBBs. Mr. Harvester used pictures ofredds in streams to demonstrate the difficulty in spottingthem. The WDFWpresented evidence ofthe impact ofrunning eggs through a suction dredge. Eggs in their first stage ofdevelopmentthat are caught in suction have a mortality rate ofnearly 100 percent. The mortality rate decreases significantly for eggs in their second stage. However, when eggs develop into sac fry, the mortality ratejumpsup again to approximately 83 percent. In addition, eggs that survive the suction dredge are deposited on the streambed without cover, placingthe eggs in extreme danger from predators and in an environment unsuitable for development. In contrast to Dr. Crittenden's testimony, Mr. Harvester testified thatprotecting redds is very important in developing fish populations. Furthermore, protectingredds of later emerging fish is important for genetic reasons. Redds from early-producing fish

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could be wiped out by a single flood event. However, redds produced after the flood event would still have a chance to survive. Mr. Harvester did not agree that he had apersonal conflict with Mr. Beatty, and that his statements to Mr. Beatty's wife during the meeting were nothing more than a request for her to sit down ifshe did not have a question regarding the rules. Mr. Harvester said he played a limited role in processingMr. Beatty's permit. The PCHB limited review ofMr. Beatty's arguments to those that addressed the WDFW's actions in the permit approval process. The PCHB found the permit review proceeding was not the appropriate vehicle for challengingthe administrative rules the WDFW adopted and incorporated into the Pamphlet. For instance, the PCHB determined that Mr. Beatty's argument that fish protection should only be conducted on the resource level, rather than safeguarding all eggs and fish, is an attack on the regulations governing the work window and not ajustification for an individual extension ofthe rules based on site specific information. The PCHB affirmed the WDFW'spermit decision, concluding that the conditions placed on Mr. Beatty'spermit were reasonably designed to protect fish life and do not impose restrictions unrelated or out ofproportion to the proposed dredging activity.



### 11No. 31409-0-111 Beatty

### v. Fish & Wildlife Comm 'n Citing RCW 77.55.021, the PCHB explained that in order for an applicant to obtain an individual HPApermit extending the duly adopted timing window, the applicant must provide information showing that the requested activity would not harm fish life or habitat based on the conditions specific to the operation or conditions specific to the stream involved. The PCHB concluded that Mr. Beatty, as the applicant, failed to provide the information necessary to fully evaluate the impact ofextending a duly adopted work window. He did not identify practices he would employ to avoid redds or describe any conditions on segments ofFortune Creek that might reduce the prospect of harm to redds. He refused to provide any information to the WDFW about his prospecting plans beyond his desire to suction dredge anywhere in the Fortune Creek watershed between May 1 and September 30 each year. Nor did he make an effort to gather information that wouldjustify special exceptions from the established regulations for his prospecting in Fortune Creek. The PCHB explained that Mr. Beatty cannot expect to obtain approval ofan HPA to relax apreviously adopted regulation for protecting fish without providing any grounds or substantiation for the deviation from the regulation. The PCHB discredited Dr. Crittenden's testimony. It found Dr. Crittenden's statistical approximations were not based on valid assumptions for Fortune Creek. The approximations did not consider site specific operations or stream conditions when
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### v. Fish & Wildlife Comm 'n estimating the harm to fish. The same type ofstatistics applied to any stream with spawning activity. Furthermore, a statistical calculation based on the entire area within the watershed was againjust a further attack on the WDFWpolicy ofestablishing a work window to protect fish and eggs. The PCHB also discredited Mr. Beatty's testimony that he could avoidharm by stopping the dredge immediately ifhe observed a redd. The PCHB found that it was unlikely that 

### Mr. Beatty could see a redd before sucking it up into a dredge. ThePCHB relied on evidence that redds are difficult to identify in a high velocity small stream like Fortune Creek and on evidence of

### Mr. Beatty's inexperience and lack oftraining in identifying eggs. The PCHB also found that stopping the dredge after encountering a redd would not avoidharm to eggs already sucked into the dredge and would decrease the number offish emerging. The PCHB recounted evidence that many ofthe eggs that are sucked into a dredge are killed directly and the ejected eggs are deposited into a setting that does not allow for further development offish. The PCHB also recognized that the Pamphlet already requires miners to stop dredging ifthey encounter a redd. The PCHB reasoned that ifstopping dredging activity when eggs are encountered is adequate protection, then the Pamphlet would not have identified specific work windows at all. The court concludedthat

### Mr. Beatty's argument


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was another improper attack on WDFW regulations ratherthan ajustification for relaxed restrictions based upon the specific conditions on Fortune Creek. In affirmingthe permit condition, the PCHB concludedthat Mr. Beatty failed to show that the condition on his permitwas not reasonably designed toprotect fish life, citing RCW 77.55.021. The dredging dates Mr. Beattyrequested in the permitwere the period oftime that WDFW had determined through the Pamphletrulemaking process that fish redds would be present in Fortune Creek. The PCHB concludedthatwithout any other information from Mr. Beatty on specific plans, the WDFW was not unreasonable in refusingto allow unrestricted suction dredging in Fortune Creek duringthe time periods that encompassed spawning and egg development. The PCHB also concludedthat Mr. Beatty failed to showthat the condition placed
on the permitto optimize fish life was out ofproportion to the impact ofthe proposed project, citingRCW 77.55.231(1). The court found that limiting work to the work window was a method ofavoiding direct harm to fish, rather than a directive to enhance
or improve existing fish habitat. Also, the condition was specially designed to address the harm to redds and eggs posed by the suction dredging activity in question and did not extend to enhancing habitat features orrepairing damage caused by otherpersons orprior activity. Because Mr. Beatty did not include information in his application to support a
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deviation from the work window, the WDFW acted reasonably in limiting suction dredging to the time frame set forth in the Pamphlet. Finally, the PCHB concludedthat the WDFW's decision on the permit was not the result ofpersonal animosity toward Mr. Beatty. ThePCHB determined that Mr. Beatty did not demonstrate that he received unfair treatment when comparedto otherminers. Other miners obtained extensions based on information specific totheir proposed site. The WDFWprovided Mr. Beattythe same opportunity to provide additional site specific information and offered to workwith him to develop limits thatwould protect fish. The PCHB found that the WDFWwas willing to vary the work windowtiming standards based on specific facts. Instead, Mr. Beatty chose to stand on his asserted rightto mine without limitation. Mr. Beatty appealedthe PCHB's decision to the Kittitas County Superior Court.3 The court affirmed the PCHB's final order. The court found that substantial evidence supported the factual findings, thatthe statutory scheme ofWashington's regulations on small scale mineral prospecting and mining is neitherunconstitutionally vague nor preemptedby federal law, and thatthe final order didnot erroneously apply or interpret

3 Mr. Beatty amended his petition for review to add a challenge to the Pamphlet rules. Later, the parties stipulated to bifurcatethe rule challenge. The rule challenge is not a part ofthe appeal before this court. 15No.**31409-0~III** Beatty v. Fish & Wildlife Comm 'n
the law. The court's decision focused on Mr. Beatty'srefusal to provide site specific information despite WDFW's request. The court noted that the most critical fact in the proceedings was Mr. Beatty's refusal to meet and discuss his specific site information. Mr. Beatty appeals the decision ofthe PCHB. He contends that (1) the PCHB misinterpretedthe state hydraulic mining code when imposing the conditions, (2) the PCHB's order is not supported by substantial evidence, (3) the conditions on the permit conflict with federal mining law, (4) the hydraulic mining code is unconstitutionally vague, (5) WDFW discriminated against him when it imposed the condition, and (6) the WDFW relied on an invalidly adopted rule to impose the condition. ANALYSIS The Washington Administrative Procedure Act, chapter 34.05 RCW, provides for judicial review ofPCHB's orders. RCW 34.05.570; Port o/Seattle v. Pollution Control Hearings Bd., 151 Wn.2d 568,587,90P.3d 659 (2004). When reviewing an agency's action, this court sits in the sameposition as the superior court. Tapper 

### v. Emp'tSec. Dep't, 122 Wn.2d 397,402,858P.2d 494 (1993). The party challengingthe agency action has the burden ofdemonstrating the invalidity ofthe action. RCW 34.05.570(1)(a).The challengingparty must show thathe or she has been substantially prejudiced by the agency action. RCW 34.05.570(1)(d). Additionally, reviewing courts
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shall grant reliefonly ifthe challengingparty shows that the agency's order is invalid for
one ormore ofthe grounds enumerated in RCW 34.05.570(3)(a)-(i). We address Mr. Beatty's challenges under RCW 34.05.570(3) individually. Interpretation oftheHvdraulic Code. Mr. Beatty contends thatthe WDFW misinterpreted and misapplied the hydraulic permitting statute. Reliefmay be granted if this court finds that the PCHB has "erroneously interpreted or applied the law." RCW 34.05.570(3)(d). Whether the PCHB has erroneously interpreted orapplied the law is reviewed under the error oflaw standard. Cascade CourtLtd. P'ship v. Noble, 105 Wn. App. 563, 566-67, 20 P.3d 997 (2001). When applying the error oflaw standard, the court may substitute its ownjudgment for that ofthe PCHB, although it must give substantial weight to the agency's view ofthe law it administers. Id. at 567. Regulations that are consistentwith the legislative scheme will be upheld. William Dickson Co. 

### v. PugetSoundAirPollution ControlAgency, 81 Wn. App. 403, 407, 914 P.2d 750 (1996) (quotingASARCO, Inc. v. PugetSoundAirPollution ControlAgency, 112 Wn.2d 314, 321, 771 P.2d 335 (1989)). Reliefcan also be granted ifthe reviewing court finds the agency order is arbitrary and capricious. RCW 34.05.570(3)(i). An agency order is arbitrary or capricious ifit is willful and unreasoning and disregards ordoes notconsiderthe facts and circumstances
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### v. Fish & Wildlife Comm 'n underlying the decision. AlphaKappa Lambda Fraternity v. Wash. State Univ., 152 Wn. App. 401, 421, 216 P.3d 451 (2009) (quotingBowers 

### v. Pollution Control Hearings Bd., 103 Wn. App. 587, 596, 13 P.3d 1076 (2000». A decision is not arbitrary orcapricious if there is room for more than one opinion andthe decision is based on honest and due consideration, even ifwe disagree with it. Id. at 421-22 (quotingBowers, 103 Wn. App. at 596). In 1997, the Washington legislature declared that small scale mineral prospecting and mining (1) [i]s an important part ofthe heritage ofthe state; (2) provides economic benefits to the state; and (3) can be conducted in a matterthat is beneficial to fish habitat and fish propagation. Now, therefore, the legislature declares that small scale prospecting andmining shall be regulated in the least burdensome mannerthat is consistent with the state's fish management objectives and the federal endangered species act. LAWS OF 1997, ch. 415, 

### §l. The legislature tasked the WDFWto adopt rules applicable to small scale prospecting and mining in cooperation with the recreational mining community and other interested parties. RCW 77.55.091(2). The WDFW includedthese regulations on mineral prospecting as part ofthe hydraulic code rules, WAC 220-110. See WAC 220-110-200 to -206. The hydraulic codeprovides protection for fish life through the development ofa statewide system ofrules for hydraulicprojects or otherwork that 18No.31409-0-III Beatty

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will use, divert, obstruct, or change the natural flow orbed ofstate waters. WAC 220­ 110-010. Implementation ofthe hydraulic code rules is necessary to minimize project specific and cumulative impacts to fish life. WAC 220-110-010. For small scale mining, the legislature required WDFW to distribute a pamphlet describing the methods ofmineral prospecting consistent with WDFW's adopted rules. RCW 77.55.091(3). "Thepamphlet shall be written to clearly indicate the prospecting methods that require apermitunderthis chapter andprospecting methods that require compliance with the pamphlet." RCW 77.55.091(3). The Pamphlet contains regulations that aperson must follow when mineral prospecting and placer mining. WAC 220-110­ 200(1). A person may request an exception to the Pamphletby applying for an individual HPApermit. WAC 220-110-200(2). To obtain an individual permit, a person must submit a written application containing general plans for the overall project, complete plans and specifications for the proposed construction orwork within the ordinaryhigh water line in freshwater, and complete plans and specifications for the proper protection offish life, among otherrequirements. WAC 220-110-030; see also RCW 77.55.021(2)(a)-(c).

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The only ground upon which approval ofa permit may be denied or conditioned is the protection offish life. Former RCW 77.55.021(3)(a) (2010). Ifthe WDFW denies approval ofapermit, it shall provide the applicant with a written statement ofthe specific
reasons why and how the proposed project would adversely affect fish life. Former RCW 77.55.021(4). "AnHPA shall be denied when, in thejudgment ofthe [WDFW], the project will result in direct or indirect harm to fish life, unless adequate mitigation can be assured by conditioning the HPA or modifying the proposal." WAC 220-110-030(14). Approval ofapermit may not be unreasonably withheld or unreasonably conditioned. Former RCW 77.55.021(3)(a). "Conditions imposed upon apermit must be reasonably related to the project. The permit conditions must ensure that the project provides proper protection for fish life, but the department may not impose conditions that attempt to optimize conditions for fish life that are out ofproportion to the impact of the proposed project." RCW 77.55.231(1). The WDFW mitigation policyprovides, "WDFW shall determine the project impact, significance ofimpact, amount ofmitigation required, and amount ofmitigation achieved, based on the best available information, including the applicant's plans and specifications. For large projects with potentially significant impacts, this will be based
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on review ofstudies approved by WDFW." Ex. A-36 at 4. A similarbut lengthier definition of"mitigation" can be found in WAC 220-110-020(66). 

### Mr. Beatty makes several challenges to the WDFW's interpretation ofthe statutory scheme governing his hydraulic mining permit. First, Mr. Beatty contends that the PCHB misinterpreted the legislative mandate to protect fish life as reflected in RCW 77.55.021. He contends that the WDFW interpreted the mandate to mean that every fish egg must be protected when issuing apermitunder the hydraulic code, and used this interpretation as a basis to deny his request to suction dredge outside the work window. Contrary to Mr. Beatty's assertion, protection ofevery egg is notthe interpretation adopted by the WDFW orthe PCHB. The WDFWbiologists who testified did not advocate for every egg, butrecognized thatprotection ofeggs must be based onthe impact the eggs have on the fish population. As stated by Mr. Harvester, "Butthe idea
was to protectmost ofthe fish most ofthe time over most ofthe conditions that wehave observed. So the intent was not to protect every fish. We knew that." CP at 179. WDFW'spolicy to protect fish life in general is reflected in the creation ofwork windows for mining. Work windows protect fish life by identifying the fish residing in each ofhundreds ofwatercourses throughout the state and calculating the incubation periods necessary toprotectthe redds and eggs developing through emergence. The
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establishment ofa work window contemplates some harm to fish eggs and fish life that develop outside ofthe specified dates. The workwindowprovides a baseline measure of protection without any need for further regulatory control and does not contemplate protection ofevery egg. Thus, limiting Mr. Beatty to the workwindow did not evidence
an interpretation by WDFW orPCHB that every egg mustbe protected. Second, Mr. Beatty contends the PCHB wrongly applied RCW 

### 77.55.231, which requires the WDFW to develop permit conditions in proportion to the impact ofthe proposedproject. Mr. Beatty argues that the WDFW was required to determine the specific impact ofhis projectbefore imposing conditions. Instead offollowing the statute and policy, Mr. Beatty contends that PCHB allowed the WDFW to forego presenting testimony on the proposed impact and instead concluded that Mr. Beatty was responsible for providing the information. The PCHB did not err in its interpretation or application ofRCW 

### 77.55.231 when deciding that WDFW'spermit decision was correct. RCW

### 77.55.231 states that the WDFW is responsible for assuring that permit conditions that attempt to optimize conditions for fish life are not out ofproportion to the impact ofthe proposedproject. The WFDW presented testimony at the hearingjustifyingthe imposition ofthe condition. The WDFWjudgedthe impact ofMr. Beatty'sprojectby considering the specifications


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for the proposed construction and the properprotection offish life. See RCW 77.55.021(2). Mr. Beatty'srequest was to suction dredge outside ofthe work window in Fortune Creek with notime orplace restrictions. The WDFW detennined that dredging outside ofthe work window was hannful for fish life when itdevelopedthe Pamphlet. Thus, without infonnation in Mr. Beatty's application explaining why he would qualifY for an exception to the work window, imposing a pennit condition in accordance with the Pamphlet is not out ofproportion to the impact ofthe project. Furthennore, neither RCW 77.55.231, northe pennitapplication process in RCW 77.55.021, northe hydraulic mining code in WAC 220-110 require the WDFW to quantifY the precise likelihood ofimpacts to fish life before imposing conditions. Instead, Mr. Harvestertestified thatrisk outside the work window is based on a biologist's observations in conjunction with specific site and operation infonnation providedto the WDFW. Again, Mr. Beattyprovided no specific site infonnationto the WDFW, so there
was no basis to impose conditions other than those adopted in the Pamphlet. There is no misinterpretation ofRCW 77.55.231. Next, in a related issue, Mr. Beatty contends thatthe PCHB and WDFW failed to obey the command ofthe legislature to utilize the least burdensome fonn ofregulation.

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Mr. Beatty maintains that the WDFW needed to insertprovisions in his permit to minimize impacts rather than denying his request to work outside ofthe work window. While legislative policy advocates for the least burdensome regulations, there is no statutory requirement that the WDFW must insertprovisions in his permit that minimize impact. Also, there is no reason to conclude that otherprovisions were available to Mr. Beattybased on the information provided in his permit. Suction dredging in Fortune Creek is harmful to fish life when it occurs outside ofthe work window. To minimize impact, WDFWprohibited suction dredging during this period. Ifother less burdensome regulations were available to minimize impacts, they would have been included in the Pamphlet. Therefore, the PCHB did not misinterpret the permitting scheme by failing to require the WDFW to add minimizing impact provisions to Mr. Beatty'spermit. Last, Mr. Beatty contends that the PCHB interpreted an extra obligation into the statutory permitprocess that requires an applicant to meet with the WDFW and provide
more information before a decision can be granted. The PCHB did not add an extra requirement to the permittingprocess. Mr. Beatty
was required to include site specific information in his permit application according to WAC 220-110-030. The PCHB acknowledged the reason for the denial ofMr. Beatty's permit was his lack ofinformation to substantiate a deviation from the adopted work
24No. 31409-0-III Beatty

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windowregulations. The WDFW offeredto meet withMr. Beatty to help gatherthe information neededto assess the application, butdid notrequire the visit. The PCHB's determination thatMr. Beatty neededtoprovidemore informationto qualifY for an exception to the Pamphletwas not a misinterpretation ofthe law. The PCHB correctly interpreted the hydraulic code when it affirmed the conditions on Mr. Beatty'spermit. Sufficiency aftheEvidence. Mr. Beatty contends thatthe PCHB's decision to upholdthe permit conditions is not supported by the evidence. The substantial evidence standard inRCW 34.05.570(3)(e) allows this courtto grant reliefifthe agency's decision "is not supported by evidence that is substantial when viewed in light ofthe whole record beforethe court." Evidence is substantial ifitis in sufficient quantum to persuade a fair-minded person ofthe truth ofthe declaredpremise. Heinmiller v. Dep'ta/Health, 127 Wn.2d 595, 607, 903 P.2d433 (1995) (quoting Thieu LenhNghiem 

### v. State, 73 Wn. App. 405,412,869 P.2d 1086 (1994)). This standard is highly deferential tothe agency fact finder. ARCaProds. Co. 

### v. Uti/so & Transp. Comm 'n, 125 Wn.2d 805, 812, 888 P.2d 728 (1995). When reviewing the evidence, the court should give substantial deference to the agency's determinations, which are based heavily on factual matters, especially whenthe factual matters are complex, technical, and close tothe heart ofthe agency's expertise. Hillis 

### v. Dep't

## 0/ Ecology, 131 Wn.2d 373,
25No. 31409-0-III Beatty v. Fish 

### & Wildlife Comm 'n 396,932 P.2d 139 (1997). Reviewing courts do not substitute theirjudgment for that of the decision makerwithregard to the credibility ofwitnesses orthe weight granted to conflicting evidence. William Dickson Co., 81 Wn. App. at 411 (quoting State ex rei. Lige & William B. Dickson Co. v. County

## 0/ Pierce, 65 Wn. App. 614, 618, 829 P.2d 217 (1992». The agency's legal conclusions receive de novo review under the error oflaw standard. Stuewe v. Dep'to/Revenue, 98 Wn. App. 947, 949, 991 P.2d 634 (2000). Mr. Beatty asserts that the WDFW failed to present substantial evidence showing impact orrisk to fish. And, without any evidence ofimpact, the PCHB could not uphold the denial ofhis permit request. Implicit in this argument is the notion the WDFWbears the burden, when denying a permit, ofdemonstrating some likelihood his proposed mining operation will endanger fish life. As a preliminary note, itis not appropriate under Washington lawto shiftthe burden ofproofunderthese circumstances to the WDFW as Mr. Beatty suggests. WAC 371-08-485 placedthe burden onMr. Beatty in the administrative hearing and RCW 34.05.570(1)(a) places the burden on Mr. Beatty in this appeal. Furthermore, "[w]hen information necessary to proof'is exclusively within the knowledge ofone or the other ofthe parties, the burden would be upon the party possessed ofthat knowledge to
26No.31409-0-III Beatty

### v. Fish 

### & Wildlife Comm 'n
make the proof.'" Cedar River Water 

### &SewerDist. 

### v. King County, 178 Wn.2d 763, 779,315 P.3d 1065 (2013) (quotingJoUY.]e v. N. Pac. R.R., 52 Wash. 433, 436,100P. 977 (1909». Only 

### Mr. Beattyknows the locations ofFortune Creek where he proposes to suction dredge. The burden ofproofcannot shift to WDFW. WDFW does not have
access to site specific location information of

### Mr. Beatty's suction dredging as he did not supply it with his initial application or after WDFW requested it. In his sufficiency ofthe evidence argument, Mr. Beatty assigns errorto several of thePCHB's findings. First, he challenges the findings that bull trout redds and bull trout have been observed in Fortune Creek. This finding is supported by substantial evidence. The WDFWpresentedrecords from night snorkeling surveys conducted in July 2000 that documented buH trout in Fortune Creek. Also, the WDFW submitted a draft ofa 2000 study by the United States Fish and Wildlife Service that found at least 11 bull troutredds in Fortune Creek. The PCHB relied on these studies in its findings. These studies supportthePCHB's finding ofbull trout in Fortune Creek. Second, 

### Mr. Beatty challenges the findings thatpertain to his ability to mitigate the damage to fish eggs. He assigns errorto the findings that he hadno real experience in recognizing redds and that redds were generally difficult to locate. Also, Mr. Beatty

27No. 31409-0-111 Beatty v. Fish 

### & Wildlife Comm 'n
contends that the PCHB should have allowed hearsay declarations from other miners who stated that they never found fish eggs. These findings are also supported by substantial evidence. Mr. Beatty testified that he had never seen a redd. While he gave a description ofa redd, the testimony was based
on information Mr. Harvester provided at a stakeholder meeting. Mr. Beatty could not
answer when asked specific questions about the color ofthe eggs and the type ofgravel where redds may be found. Mr. Harvester, a WDFW biologist, testified to the difficulties in identifying redds. This testimony ofMr. Beatty and Mr. Harvester sufficiently supports the PCHB's findings. Also, the PCHB did not err by excluding the declarations ofthe miners. The weight ofthis evidence would not have had an effect on the PCHB's findings. Next, Mr. Beatty challenges the PCHB's finding that the WDFW's decision on the application was not the result ofpersonal animosity toward Mr. Beatty. Mr. Beatty contends that the evidence ofan altercation between his wife and Mr. Harvester created a bias against Mr. Beatty and led to the denial ofhis permit. Substantial evidence supports the finding that the decision on the permitwas not based on personal animosity or retaliation. While there is evidence ofa briefexchange between Mr. Harvester and Mr. Beatty's wife at a rule development meeting, there is no


### 28No. 31409-0-III Beatty v. Fish 

### & Wildlife Comm 'n
evidence that this influenced the permit decision. Mr. Harvester testified that he did not take umbrage againstMr. Beatty. The PCHB found this testimony credible. Ultimately, Mr. Beatty contends that the evidence as a whole does not show an impact orriskto fish. Mr. Beatty's challenge is based largely on Dr. Crittenden's testimony thatthere is only a small chance-betweenone inten thousand and one in a million-ofrandomly selecting a spot along the course ofthe affected river where fish
were spawning. Mr. Beatty asserts that on the strength ofthis testimony there is only an insignificant chance he would mine at the site ofa fish habitat. Thus, the WDFW did not demonstrate that his proposed mining operation would likely endanger fish life. However, the WDFW was not required to find Mr. Beatty's mining operationwas likely to harm fish life in order to deny him his permit. It was required to determine, based onthe evidence provided, only whetherthe potential risk ofhis proposed operation could be adequately managed. The unavailability ofsufficient evidence here resulted from Mr. Beatty's failure to submit a complete written application specifying each location ofhis proposed operation as he was required to do. Mr. Beatty was not goingto select mining sites atrandom, as Dr. Crittenden's testimony suggested. In orderto determine the probability that Mr. Beattywould mine atthe site ofa fish habitat, the WDFW had to know where those sites would be. 

### 29

### No. 31409-0-111 Beatty 

### v. Fish & Wildlife Camm 'n
ThePCHB correctly found that Dr. Crittenden'stestimony was too general and not meaningful. Dr. Crittenden'stestimony was really nothing more than a demonstration of the futility ofmaking any kind ofquantification ofthe risk ofharmposed by 

### Mr. Beatty's proposed operation. In evaluating the kind ofevidencepresentedby Dr. Crittenden, one must ask whether (1) the study was properly designed and (2) whether it was based on sufficient data. The study, a "back ofthe envelope" calculation on its face did not answer
arelevant question. Itaddressed onlythe likelihood ofrandomly selecting a spot on the riverwhere fish were spawning. The relevant question was whether a mining site designated by the applicant (not randomly selected) would coincide with a fish habitat site. Additionally, Dr. Crittenden failed to employ any generally accepted hypothesis testing required to evaluatethe significance ofhis conclusions. See D.H. Kaye, Is Proof of StatisticalSignificance Relevant?, 

### 61 WASH. 

### L. 

### REv. 1333 (1986). Apparently the only datum available to Dr. Crittenden was the length ofthe river. Dr. Crittenden was unableto supply any reliable data establishing even the proportion of the river covered by fish habitat. This, coupledwith 

### Mr. Beatty's failure to disclosethe location ofhis operations made it impossible to make any meaningful prediction about the likelihood ofharm occurring. There was no basis to estimate the degree ofpossible harm. This lack ofdata disfavored any kind ofstatistical proof. Underthese circumstances, the


### 30No. 31409-0-II1 Beatty v. Fish & Wildlife Comm 'n
PCHB was entitledboth to reject Dr. Crittenden's attempt to quantifY the risk ofMr. Beatty'sproposed operation and to conclude there was no adequate means ofmanaging that risk. Thus, the PCHB's finding that Dr. Crittenden's testimony was too general and not meaningful is supported by evidence. Mr. Beatty's challenge to the sufficiency ofthe evidence fails. Mr. Beatty's application did not include site or operation specific information that would have allowed the WDFW to determine the risks ofMr. Beatty's operation and whether an exception
was warranted from the workwindow. The PCHB correctly concluded that "the conditions WDFWplaced on [Mr. Beatty'spermit] are reasonably designedto protect fish life and do not impose restrictions unrelatedto orout ofproportion to the proposed dredging activity." CP at 73-74. The PCHB order affirming the suction dredging condition is supported by substantial evidence. Conflict with FederalMiningLaws. Mr. Beatty contends that WDFW's regulations are preempted by federal law because they materially interfere with mining on his federal mining claim. Mr. Beatty maintains thatthe condition on his permit essentially prohibits him from exercisinghis mining rights. We may declare an agency rule invalid as applied ifitviolates constitutional provisions or ifitexceeds statutory authority ofthe agency. RCW 34.05.570(3)(a), (b);
31No. 31409-0-II1 Beatty 

### v. Fish & Wildlife Comm 'n
Ass 'n of Wash. Bus. 

### v. Dep'tof Revenue, 155 Wn.2d 430, 437, 120 P.3d 46 (2005). The validity ofan agency rule is reviewed de novo. Ass 'n ofWash. Bus., 155 Wn.2d at 437. Similarly, denovo review applies to questions offederal preemption. Robertson v. Wash. State Liquor ControlBd., 102 Wn. App. 848, 853, 10 P.3d 1079 (2000). The Supremacy Clause in the United States Constitution gives the federal government the powertopreempt state law. Arizona v. UnitedStates,
_ U.S. _, 132 S. Ct. 2492, 2500-01,183 L. Ed. 2d 351 (2012). Preemption can occur in three ways: express preemption, field preemption, and conflictpreemption. 

### Id. Express preemption
occurs when Congress expressly withdraws specifiedpowers from a state through a statutory provision. 

### Id. Field preemption occurs when Congress determines that a field ofconductmust be regulated by its exclusive governance. 

### Id. Conflictpreemption
occurs when federal and state laws conflict making compliance with both a physical impossibility, orwhen the challenged state law stands '" as an obstacle to the accomplishment and execution ofthe full purposes and objectives ofCongress.'" 

### Id. at 2495 (quotingHines 

### v. Davidowitz, 312 U.S. 52, 67, 61 S. Ct. 399, 85 L. Ed. 581 (1941)). Conflictpreemption is at issue here, specifically, whetherthepermit conditions imposed by the WDFW and upheldbythe PCHB stand as an obstacle to the purpose ofthe federal mining laws.
32No. 31409-0-III Beatty v. Fish & Wildlife Comm 'n
To determine whether thepermit condition is preempted, "we must first determine the purposes and objectives ofCongress that are embodied in the [Federal Mining Act of 1872,30U.S.C. 

### §§ 21-26]. Second, we must determine whether the [condition] stands as
an obstacle to the accomplishment ofthese Congressional purposes. H South Dakota MiningAss'n v. Lawrence County, 155 F.3d 1005, 1009 (8th Cir. 1998). The Federal Mining Act provides for the free and open exploration ofpublic lands for valuable mineral deposits. 30 U.S.C. 

### §22. Generally, the purpose offederal mining regulations is for "the encouragement ofexploration for mining ofvaluable minerals located on federal lands, providing federal regulation ofmining to protectthe physical environmentwhile allowing the efficient and economical extraction and use ofminerals, and allowing state and local regulation ofmining so long as such regulation is consistent with federal mining law." South DakotaMining, 

### ISS F.3d at 1010. Federal forest service regulations, including the Federal MiningAct and the Multiple Use MiningAct, 30 U.S.c. 

### § 601, do notpreempt a general state environmental regulation requiring apermit for operating a mining claim on federal land. California Coastal Comm 'n v. GraniteRock Co., 480 U.S. 572, 582-95, 107 S. Ct. 1419,941.Ed. 2d 577 (1987).

33No. 31409-0-III Beatty

### v. Fish & Wildlife Comm 'n
In GraniteRock, the California Coastal Act, California

### Public Resources 

### § 30000, required any person undertaking development in the state's coastal zone to obtain a permit from the coastal commission, including those wishing to exercise federal mining rights. 

### Id. at 576. Granite Rockrefused to obtain a permit for its limestone mining operation on federal land within the coastal zone. 

### Id. at 576-77. Instead, Granite Rock challenged the permitrequirement in federal court, contending that the state lawpermit requirement was preempted by federal law. 

### Id. at 577. The United States Supreme Court concluded that the state lawpermitrequirement, as a means ofimposing reasonable environmental regulations on mining operations, was not in conflict with federal law and
was notpreempted on its face. 

### Id. at 594. However, the Court limited the scope ofits decision to the facial challenge presented. 

### Id. 

### It pointed outthat Granite Rock did not argue that the coastal commission placed any particular conditions on thepermitthat conflicted with federal statutes or regulations. Id. at 579-80. Thus, the Court did not approve any future application ofthe statepermitrequirementthat conflicted with federal law. 

### Id. at 594. This casepresents the issue left open in Granite Rock. Specifically, whetherthe condition on Mr. Beatty'spermitconflicts with federal law. As the court noted in

34No. 31409-0-III Beatty v. Fish & Wildllft Comm 'n
Granite Rock, "one may hypothesize a state environmental regulation so severe that a particular land use would become commercially impractical." 

### Id. at 587. The condition onMr. Beatty's permit and the state regulations supporting the condition do not stand as an obstacle to the accomplishment ofthe federal mining laws. The general environmental mining regulations imposed in the Pamphlet still allow Mr. Beatty to exercise his federal mining rights, albeit with restrictions. The mining restrictions and permit conditions are designed to protectthe physical environment for the development offish life, which is consistent with the Federal Mining Act. The restrictions in the Pamphlet do not act as a de facto ban on mining. Ifthe allowable mining methods 

### in the Pamphlet are not suitable or economically viable, a miner may request relaxed mining regulations by completing an application with site specific information and specifications for the properprotection offish life. See WAC 220-110-030. As another layer ofprotection, any conditionplaced on the permit to optimize fish life cannot be out ofproportion to the proposed project. RCW 77.55.231(1). This provision limits the burden that the WDFW canplace on exploration for mining valuable minerals. As applied to Mr. Beatty, he may provide the information needed to obtain an exception from the Pamphletregulations and modify the

35No. 31409-0-III Beatty

### v. Fish & Wildlife Comm 'n
conditions imposed on his pennit. The miningregulations and the modifiable condition
on hispennit do not stand as an obstacle to Mr. Beatty's rightto mine. In sum, the condition on Mr. Beatty's pennitdoes not conflict with federal regulations on mineral prospecting. The condition allows for the exploration ofpublic lands for valuable mineral deposits while protecting the physical environment. Furthennore, the efficient and economical extraction ofminerals is not obstructed. Mr. Beatty may apply for an exceptionto the pennitconditions and propose a site specific plan that increases his mineral production while protecting fish life. Constitutional Challenges. Mr. Beattymakes two constitutional challenges tothe PCHB's approval ofthe pennit. 

### Mr. Beatty contends that the hydraulic mining pennit statute, RCW 77.55.021, is unconstitutionally vague becausethe statute fails to givethe WDFW any guidance ontheproper scope ofreview for a pennit application. He also contends thathe was subjectto unconstitutional discrimination. 

### Mr. Beatty is incorrect. The hydraulic mining pennit statute is not unconstitutionally vague. The statute provides an identifiable standard for denying a pennit. FonnerRCW 77.55.021(3)(a) directs the WDFWthat protection offish life is the only grounds upon which approval ofa pennitmay be denied. The WDFW defined fish
as all fish species, including food fish and game fish, at all stages ofdevelopment ofthose
36No. 31409-0-III Beatty

### v. Fish 

### & Wildlife Comm 'n species. FonnerRCW 77.08.01O( 17) (2009). "Protection offish life" is defined as "prevention ofloss or injury to fish or shellfish, and protection ofthe habitatthat supports fish and shellfish populations." WAC 220-110-020(79). The statute and definitions provide suitable guidance for the WDFW to deny a pennit on the grounds that it endangers the fish population. Furthennore, the court in State 

### v. Crown Zellerbach Corp., 92 Wn.2d 894, 900-01, 602 P.2d 1172 (1979) held thatthe statute delegating authority to WDFW was constitutionally enforceable underthe delegation ofpowers principle. The court found the general standards given in the statute were adequate, "particularly in light ofour stated view that environmental factors are not readily subject to standardization or quantification." Id. at 900. There is no evidence in therecord thatwould support a conclusion that RCW 77.55.021 was unconstitutional as applied to Mr. Beatty. Mr. Beatty's relies onAnderson v. City of Issaquah, 70 Wn. App. 64, 851 P.2d 744 (1993) as authority that a precise standard is needed in the environmental context. Mr. Beatty's reliance is misplaced. Anderson is not persuasive. The building code regulations inAnderson are not comparable to the hydraulic mining code in WAC 220-110. The words used in Issaquah's building code were not technical words

37No. 31409-0-111 Beattyv. Fish & Wildlife Comm 'n commonly understood within the industry. Anderson, 70 Wn. App. at 77. Nor did the regulations involve environmental factors not subject to standardization. Mr. Beatty contends thatthe WDFW unconstitutionally discriminated against him because he was not treated the same as other miners downstream who received permits. 

### Mr. Beatty fails to cite legal authority for his argument. Citations to legal authority and reference to relevantportions ofthe record must be included in support ofissues raised on appeal. RAP 10.3(a)(5). "Without adequate, cogent argument and briefing, this court should not consider an issue on appeal." Schmidt v. Cornerstone Inv., Inc., 115 Wn.2d 148, 160, 795 P.2d 1143 (1990). In any case, there is no evidence ofdisparate treatment. The miners downstream are not similarly situated to Mr. Beatty because they provided site specific information to WDFW to obtain work window extensions. The WDFW offered Mr. Beatty the same opportunity to explore a site specific solution to obtain a permit extension, but

### Mr. Beatty refused. Mr. Beatty's discrimination claim fails. The hydraulic miningpermit statute is notunconstitutionallyvague. Nor did the WDFW discriminate againstMr. Beatty. Adoption ofWDFW'sMitigation Policy' Mr. Beatty contends thatthe mitigation policy adopted by the WDFW is a "rule" as defined by RCW 34.05.010(16) in

38No. 31409-0-111 Beattyv. Fish & Wildlife Comm 'n Washington's Administrative Procedure Act, and that the WDFW did not follow prescribedrule-making procedures in adopting a rule. An agency action constitutes a rule only ifit meets the requisite elements in RCW 34.05.010(16). The action must be an agency order, directive, orregulation of general applicability and meet one ofthe five expressed qualifiers in the definition. RCW 34.05.010(16). As stated earlier, the WDFW mitigation policyprovides, "WDFW shall determine the project impact, significance ofimpact, amount ofmitigation required, and amount of mitigation achieved, based on the best available information, including the applicant's plans and specifications. Forlarge projects with potentially significant impacts, this will be based on review ofstudies approved by WDFW." Ex. A-36 at 4. Similarly, "mitigation" in hydraulic permits is defined by rule in WAC 220-110­ 020(66) and means "actionsthat shall be required as provisions ofthe HPA to avoid or compensate for impacts to fish life resulting from the proposed project activity." The definition lists the types ofmitigation to be considered and implemented, where feasible, in the following sequential order ofpreference:

39No. 31409-0-III Beatty v. Fish & Wildlife Comm 'n (a) Avoidingthe impact altogether by nottaking a certain action or parts ofan action; (b) Minimizing impacts by limiting the degree ormagnitude ofthe action and its implementation; (c) RectifYing the impact by repairing, rehabilitating, or restoring the affected environment; (d) Reducing oreliminating the impact over time by preservation and maintenance operations during the life ofthe action; (e) Compensating for the impactby replacing or providing substitute resources or environments; or (f) Monitoring the impact and taking appropriate corrective measures to achieve the identified goal. WAC 220-110-020(66). Mr. Beatty neglected to address which ofthe qualifiers in RCW 34.05.010(16) apply to the WDFW's action in order to classifY the internal mitigation policy as arule. Still, it is clearthatthe internal mitigationpolicy is not a new directive to the agency to considermitigation. The internal policy is a simplifiedrestatement ofWAC 220-110­ 020(66). The much shorter internal mitigation policy simply reiterates the mitigation rule and reminds persons in the WDFWto follow the rule. In any case, the mitigation policy did not affect Mr. Beatty. The WDFW did not considermitigation because Mr. Beatty did not submit a mitigation planto the WDFW or work with themto develop a mitigation plan. Without an influence onthe decision, there is no violation.

40No. 31409-0-II1 Beattyv. Fish & Wildlife Comm 'n
In conclusion, we find no errorwith the PCHB's decision on Mr. Beatty'spermit. We affirm the decision ofthe superior court.

WE CONCUR:

41