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AGO 1953 No. 474 - February 03, 1953
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Don Eastvold | 1953-1956 | Attorney General of Washington

POLLUTION CONTROL COMMISSION ‑- FISH ‑- GAME, STREAM POLLUTION.

The Pollution Control Commission does not have authority to bring a civil action in the name of the state for damages to fish, game or other resources, arising from pollution.

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                                                                 February 3, 1953 

Honorable E. F. Eldridge
Director and Chief Engineer
Pollution Control Commission
408 Old Capitol Building
Olympia, Washington                                                                                                              Cite as:  AGO 51-53 No. 474

 Dear Sir:

             You have inquired:

             (1) Does the Pollution Control Commission, under chapter 216, Laws of 1945, have jurisdiction to bring a civil action in the name of the state for damages to fish, game, or any other resource arising from pollution?

             (2) If so, is said jurisdiction exclusive?

             Our conclusion to your first inquiry is no.

                                                                     ANALYSIS

             On September 28, 1949, we advised you that chapter 216, Laws of 1945, is constitutional, and that it gave your commission authority to withhold approval of sewer system plans and specifications making inadequate provision to prevent the pollution of waters of the state.  Subsequently, we advised that your commission was within its rule‑making power to require that plans for new sewage systems conform to your reasonable specifications.  More recently we advised that you had authority to make rules and regulations relating to log storage on lakes, if necessary, to prevent or control pollution, and to enforce these rules and regulations by injunction, if necessary.

              [[Orig. Op. Page 2]]

            Careful scrutiny of the act fails to disclose the legislative intent to vest the Pollution Control Commission with authority to institute a civil action for damages to fish, game, or other resources arising from pollution.  Section 1 of chapter 216,supra, declares the public policy of the state is to maintain the highest possible standards to insure the purity of all waters of the state.  Section 10 gives the commission jurisdiction to control and prevent the pollution of state waters.  Sections 12 and 14 authorize the commission to seek injunctive or abatement relief, and to bring any appropriate action at law or in equity in the name of the state to carry out the provisions of this act.  Thus, it appears that the legislative intent was to clothe the commission with preventive and remedial powers to prevent and control pollution of state waters.  There is no provision in the act authorizing the commission to bring a civil action for damages in the name of the state.  It is generally recognized that fish and game are the property of the state.  Wiegardt v. State, 27 Wn. (2d) 1, 175 P. (2d) 969; State v. Tice, 69 Wash. 403, 125 Pac. 168, 41 L.R.A. [N.S.] 469.  RCW 43.10.030, which lists the general powers and duties of the attorney general, reads in part as follows:

             "The attorney general shall:

             "(1) Appear for and represent the state before the courts in all cases in which the state is interested;"

             Thus, we conclude that if your commission has information which leads you to feel that the state has a cause of action for civil damages arising from pollution, the proper procedure is to ask this office to proceed.

 Very truly yours,
DON EASTVOLD
Attorney General 

ANDY ENGEBRETSEN
Assistant Attorney General

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