Here is the latest update on legal issues around the APA / NOF process. For those who follow this read the brief and declaration linked in this post. It is getting interesting!


March 1, 2020 Legal Update #11

Pubic Records Act litigation "Heats Up"

The litigation between Twin Harbors Fish & Wildlife Advocacy and WDFW has "three legs" that challenge WDFW's North of Falcon (NOF) process used to set salmon seasons in WA. The statutes cited are the Open Public Meeting Act (OPMA, Administrative Procedures Act (APA) and the Public Records Act (PRA) that create the state's "sunshine" or transparency protections of the public.

On February 28, 2020, the PRA suit came front and center with the filing of the Advocacy's brief on merits in Thurston County Court. Attached to the Advocacy Brief was a declaration by Advocacy President Tim Hamilton. Unlike the other claims, the process used by the court's to determine PRA liability does not require a trial. Rather, the decision is reached by the judge reviewing the evidence, briefs and declarations filed by both sides (WDFW response forthcoming). As a result, the outcome should be known this spring.

The brief and declaration are both worthy reads. The filings show the frustration many feel when trying to figure out what is going on behind closed doors in co-management meetings behind closed doors when seasons are set. The brief also gives those who have always wondered how NOF actually works a step by step simplification of how seasons are actually set and by whom.

The PRA leg all starts on October 2016 when the Advocacy files a public records request seeking documents and records related to co-management negotiations that resulted in the adoption of the "List of Agreed Fisheries (LOAF) which was then installed as the seasons in Puget Sound earlier that year. By January of 2020, WDFW has responded with 35 document dumps called "Phases" and confirmed this will continue on into the future for an unknown period of time.

Hamilton describes the lengthy process with "As of Phase 35, I have received approximately 10 gigabytes of document production with over 8,100 files ranging in size from 1 page to 1,000 pages each. I estimate that the page count exceeds 155,000 but have not attempted to create an exact count. By my estimation, over 90% of the documents that I have received are not responsive (given the volume produced by WDFW, it is impossible to estimate an exact percentage)."

The brief argues the Department's current practice of requiring the public to file a public records request and wait years to see what happened in NOF is not a substitute for having a rule making file on season setting available to public during the season setting process as required by the APA. Further, dragging out a public record request over a 3 plus year time frame is not "prompt" and that the Department intentionally hit the Advocacy with a "blizzard" of non-responsive records that "...allows WDFW to avoid disclosing documents it may not want to disclose." The Brief further argues "....never completing the records request allows WDFW to keep the discovery request open indefinitely and thereby, in WDFW's opinion, shielding itself from litigation based on WDFW's failure to produce the requested records." In simple terms, the process used by WDFW results in members of the public stuck with an "I can't get there from here" scenario.

A direct link to the Advocacy's PRA Brief is HERE https://drive.google.com/file/d/1Z-GJ6N6TkqYDT013ov6IG6HwiTrz7VHJ/view and a direct link to Hamilton's Declaration is https://drive.google.com/file/d/1J5Ws3vQ-gquo7Cfb9_nnBWR3UvnwkU2A/view