AGO 1971 No. 25 - Aug 12 1971
OFFICES AND OFFICERS ‑- STATE ‑- GAME COMMISSION ‑- REGULATION OF IMPORTATION, BREEDING AND SALE OF WILD ANIMALS
The Washington state game commission has the authority to regulate (a) the importation of and (b) the commercial breeding and sale of "wild animals" as that term is ordinarily understood and defined, even though such animals are not native to this state and are either born or raised in captivity.
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August 12, 1971
Honorable Dave Ceccarelli
State Representative, 34th District
3823 42nd S.W.
Seattle, Washington 98116
Cite as: AGO 1971 No. 25
By letter previously acknowledged you have requested our opinion on a question which you have advised us may properly be paraphrased as follows:
Does the Washington state game commission have the authority to regulate (a) the importation of and (b) the commercial breeding and sale of "wild animals" as that term is ordinarily understood and defined, even though such animals are not native to this state and are either born or raised in captivity?
We answer this question in the affirmative subject to the qualification stated at the conclusion of our analysis.
Two separate sections of our state game code, as codified in Title 77 RCW, are involved in your question. The first of these is RCW 77.12.030, which provides in pertinent part:
"The commission may authorize or prohibit the importation of wild animals, wild birds and game fish, and regulate and license the sale and transportation thereof within the state."
[[Orig. Op. Page 2]]
The second statute to be noted is RCW 77.28.010, (the first section of the code dealing with game farmers) which provides as follows:
"The acquisition, breeding, growing, keeping, and sale of wild animals, wild birds, or game fish, whether living or dead, for commercial purposes shall be unlawful unless such acquisition, breeding, growing, keeping and sale is conducted under a game farmer's license as hereinafter provided and in accordance with rules and regulations of the commission which may be prescribed therefore regarding the species of wild animals, wild birds, or game fish which may be acquired, bred, grown, kept, and sold under this title, the particular areas in this state wherein such activities may be carried on and the manner of conducting all such activities." (Emphasis supplied.)
In both these statutes the legislature has used the term "wild animals" without any qualification or modification such as appears in the contrasting provisions of RCW 77.12.020 ‑ a statute which deals with the classification of wildlife and provides as follows:
"The commission shall, from time to time, investigate and determine the habits and distribution of the various species of wild animals, wild birds, and game fishnative to or capable of being adapted to the climatic conditions of the state, and classify the wild animals as game animals, predatory animals, fur-bearing animals, and protected wildlife, and classify the wild birds as game birds including migratory game birds and upland game birds, predatory birds, nongame birds, and harmless or song birds." (Emphasis supplied.)1/
[[Orig. Op. Page 3]]
Since the qualifying language of RCW 77.12.020 does not appear in connection with the legislature's use of the term "wild animals" in either RCW 77.12.030 or RCW 77.28.010, it follows that the commission's authority with respect to the regulation of importation (RCW 77.12.030) and of commercial breeding and sale (RCW 77.28.010, et seq.) of wild animals is not limited to those animals which are either ". . . native to or capable of being adapted to the climatic conditions of the state, . . ."
The next point to be discerned, then, is the meaning to be given to the term "wild animals" when used in this unmodified manner. As you have pointed out to us, although RCW 77.08.010 contains specific definitions of a large number of terms which are used throughout the game code, it contains no definition of "wild animals." Thus, in order to ascertain the legislature's meaning in using this term in the manner which it has been used in both RCW 77.12.030 and RCW 77.28.010, resort may properly be made to the general rule of statutory construction that where words are used in a statute without further definition by the legislature, they are to be given their plain and ordinary meaning. See,In re City of Kent v. Lamb, 1 Wn. App. 737, 463 P.2d 661 (1969);Crown Zellerbach Corp. v. State, 53 Wn.2d 813, 328 P.2d 884 (1958).
"Wild," as defined in Webster's New International Dictionary (1961), at pate 2614 includes:
"living in a state of nature; not tame or domesticated; being of a kindnot normally subject to domestication." (Emphasis supplied.)
"Wild animals," as a term, is defined in Black's Law Dictionary (4th ed. 1957) at page 1771, as meaning:
"Animals of an untamable disposition; animals in a state of nature."
[[Orig. Op. Page 4]]
3 C.J.S., Animals § 2, states at page 1085 that:
"Wild animals comprehend those wild by nature, which, because of habit, mode of life, or natural instinct, are incapable of being completely domesticated, and require the exercise of art, force, or skill to keep them in subjection."
The Restatement of Torts, § 506, defines "wild animal" as,
". . . an animal which is not by custom devoted to the service of mankind at the time and in the place in which it is kept."
Notably, none of these dictionary or text definitions of the term "wild animals" contains any exclusion of animals otherwise "wild" which are born or raised in captivity. In other words, in common and ordinary usage, a "wild" animal remains such even though the particular beast may be held in captivity or have been born and raised in a zoo, on a game farm or some similar facility. Accord,Collins v. Otto, 149 Colo. 489, 369 P.2d 564 (1962).
Moreover, a conclusion that the term "wild animals" as used in RCW 77.12.030 and RCW 77.28.010 includes those animals "wild by nature" which are neither native to this state nor born or raised in captivity has ample case support from both an interpretative and constitutional standpoint. See,State v. Miller, 149 Wash. 545, 271 Pac. 826 (1928); People ex rel. Hill v. Hesterberg, 184 N.Y. 126, 76 N.E. 1032 (1906);State v. Weber, 205 Mo. 36, 102 S.W. 955 (1907);Geer v. Connecticut, 161 U.S. 519, 16 S.Ct. 600 (1896). Each of these cases holds that although wild animals imported from other states are the property of the persons owning them, they are, nevertheless, subject to such reasonable state regulations as may be enacted in the exercise of a state's police power.
Of these several cases we note, particularly, State v. Miller, supra, because this case involved a decision of our own state supreme court. In this case, the court was faced with the question of whether this state could regulate "wild" animals raised in captivity and of ancestry not native to this state. The appellant Miller was convicted of violating a statutory provision which required a game [[Orig. Op. Page 5]] farmer's license as a prerequisite to engaging in the business of purchasing, breeding and selling game animals or fur-bearing animals.2/ The facts were that he owned and bred blue and silver foxes which were originally natives of Alaska or Canada. These foxes had been bred and raised in captivity in this state for many years, were registered with a national as well as a northwest fox breeders association, and had been assessed as personal property for a number of years by the Kitsap county treasurer.
In upholding Miller's conviction the state supreme court rejected the argument that his foxes, because of their long captivity and foreign ancestry, were not wild animals subject to regulation by the state. In so holding the supreme court said:
"Contention is also made that foxes of the kind owned by appellant are not native of this state, and that since they were brought here in captivity and have always been so held, the state has acquired no property in them or right to control. Again we are met face to face with the proposition, heretofore argued, that the legislature, in the protection of its own property, may impose a regulation upon other property which never belonged to it, if in its opinion such a regulation is needed." (149 Wash. at 548-549.)
The supreme court disposed of defendant's argument by citing State v. Nelson, 146 Wash. 17, 261 Pac. 796 (1927), a case involving a conviction of a fish dealer for offering for sale a box of trout purchased in Montana, without first reporting the receipt of the fish to the game supervisor for tagging according to law. The supreme court, inNelson, upheld that conviction saying:
". . . For the protection of its own property, the state may regulate the possession and disposition of property of like kind when brought within the state from another jurisdiction. If there be a limitation at all upon its powers in this respect, it is only that the regulation be reasonable, and we [[Orig. Op. Page 6]] find nothing unreasonable in the regulation it has adopted." (146 Wash. at p. 21.)
From the foregoing we conclude that the term "wild animals" as used in RCW 77.12.030 and RCW 77.28.010, supra, should be given its ordinary meaning ‑ and, thereby, should not be construed so as to exclude either (a) animals not native to the state of Washington or (b) "wild" animals which are born or raised in captivity. Accordingly, it follows, in direct answer to your question, that the game commission, in the exercise of its authority under these two statutes, does have the power to regulate the importation and commercial breeding and sale of such wild animals as are referred to therein.
Consistent with this response to your question, we would call your attention to the existing regulations of the game commission in this area. With regard to the activities of persons licensed as game farmers under RCW 77.28.010, WAC 232-12-070 (2) and (3) contain the following pertinent provisions:
"(2) All game farmers hereafter licensed may acquire, propagate, keep or dispose of the following animals, birds and fish:
"(a) Game animals ‑ bullfrog.
"(b) Fur-bearing animals ‑ muskrat and beaver.
"(c) Game birds ‑ Chinese pheasant, wild turkey, Hungarian partridge, quail, chukar partridge, ducks, geese and Brant.
"(d) Game fish ‑ trout.
"(3) Any licensed game farmer may acquire, breed, grow, keep or dispose of wild animals, wild birds or game fish other than those set forth in paragraph (2) of this regulation only when authorized by special permit issued by the director upon approval of the commission.
"Permit may be issued if it appears to the commission that the acquisition, breeding, growing, keeping or disposition of the wild [[Orig. Op. Page 7]] animal, wild bird or game fish will not adversely affect any person or property and cannot conflict with any plan, program or policy of the department or principle of conservation.
"Application for a special permit shall be made to the director on forms supplied by the department. The director shall cause a report to be made to the commission describing the property, the proposed method of operation, the effect upon neighboring waters and areas and providing such other information as may aid the commission in its determination. The commission may request the licensee to appear before the commission before a permit will be issued."
In accordance with our analysis of the statute under which this regulation was promulgated, we would view the special permit requirements of subsection (3) as being applicable to the commercial breeding and sale ofall wild animals ". . . other than those set forth in paragraph (2) . . ." ‑ including species of wild animals which are not native to this state or are otherwise not classified by the commission as game animals, fur-bearing animals, predatory animals or protected wildlife.
Another existing regulation to be noted is WAC 232-12-100 which provides that:
"Any game farm licensed under the provisions set forth in chapter 77.28 RCW may function as a private shooting preserve and dispose of such birds that he may raise, acquire or release, to persons by the act of hunting, and shall be required to abide by the following rules:
". . ."
Under its authority pursuant to RCW 77.18.010 to adopt additional rules and regulations concerning the manner of keeping and selling wild animals, the commission could adopt a similar regulation concerning private hunting of any species of wild animals which it has permitted to be [[Orig. Op. Page 8]] kept on game farms licensed thereunder.
Similarly, the game commission, in our opinion, has the authority pursuant to RCW 77.12.030 to pass additional regulations concerning the importation and sale of such wild animals as are referred to in your question. The present regulation governing this subject, WAC 232-12-050, is limited to the importation of those species of wild animals which have been classified as game animals ‑ for the importation of which it requires the acquisition of an importer's license in the event that such animals are to be sold within the state.3/
However, in conclusion, by way of qualification of our generally affirmative answer to your question, we should [[Orig. Op. Page 9]] add the obvious caveat that any regulations promulgated by the commission under these subject statutes must meet the usual tests of reasonableness ‑ i.e., a demonstrable relationship to the accomplishment of some purpose legitimately within the purview of the game commission's jurisdiction. Accord, AGO 1970 No. 15 [[to Duane Berentson, State Representative on June 25, 1970]](dealing with certain fishing regulations), copy enclosed, as well as the several cases cited and discussed above with respect to the constitutionality of state regulations in this area.
We trust that the foregoing will be of assistance to you.
Very truly yours,
WILLIAM F. LEMKE
Assistant Attorney General
*** FOOTNOTES ***
1/Certain of the provisions of the game code pertain only to animals which have been classified by the commission pursuant to this section as game animals, fur-bearing animals or protected wildlife. For instance, RCW 77.12.040 authorizes the commission to adopt hunting regulations and set seasons only for classified animals. Clearly, the only types of wild animals which may be classified as game animals by the commission, and thereby be subjected to the commission's regulations with respect topublic hunting, are those wild animals which, in the words of RCW 77.12.020,supra, are ". . . native to or capable of being adapted to the climatic conditions of the state, . . ."
2/Rem. Supp. 5931-106 (1927); cf., RCW 77.28.010, supra.
3/WAC 232-12-050 currently reads as follows: "(1) No person shall import game animals, game birds or game fish into this state for sale except under the terms and conditions of an importer's license issued by the director as herein provided.
"(2) Any person residing in this state who desires in good faith to engage in the business of importing for sale game animals, game birds, or game fish, may apply to the director for a game importer's license. The fees for any such license shall be twenty dollars for the first year and ten dollars for each yearly renewal thereof. Such license shall expire on December 31 annually and application for renewal shall be made prior thereto."
To some extent, at least, chapter 166, Laws of 1971, 1st Ex. Sess., may obviate the need for any broadening of this existing game commission regulation. This new act prohibits the importation into this state, or the possession, sale, exchange, etc., in this state, of any ". . . deleterious exotic species of fish and wildlife," or of any endangered species of fish and wildlife, except as may be authorized by permit or license issued by the director of the department of game, or by rule or regulation of the game commission.