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September 3, 2020

Currently, BIAW has three active lawsuits pending in state court. Here’s the latest and greatest on their status:

BIAW v. Inslee and Department of Fish and Wildlife (WDFW):

Filed last summer, this lawsuit alleges the governor and Legislature overstepped their constitutional authority in legislation that allows the Washington Department of Fish and Wildlife (WDFW) to create new fines for builders.

The bill repealed the existing ability of WDFW to fine for violations, and the governor vetoed the subsection granting WDFW the new authority to fine. As a result, there is confusion about the authority of WDFW to implement the bill through enforcement and rulemaking. The lawsuit alleges the governor violated the constitution by vetoing a small portion of the bill and the Legislature violated the constitution’s single-subject requirement by passing a bill that had matters not reflected in the title. Although the governor can veto parts of bills, he must veto an entire section rather than a single item or line.

Depending on whether the governor’s veto is upheld, WDFW may assert authority to increase fines for Hydraulic Permit Approval violations to $10,000 per violation. The court heard BIAW’s motions in January; however, the judge found that BIAW lacked standing because no BIAW member had yet been fined. BIAW appealed directly to the Washington Supreme Court, who declined jurisdiction in July.

Status update: The case is awaiting an oral argument date before the Court of Appeals. While this case is pending, BIAW is reviewing the rule that WDFW promulgated to see if it complies with the law.

On a positive note, WDFW listened to BIAW’s previous comments and made changes to its proposed rule that removed its ability to charge the $10,000 fine per day and to charge multiple parties with the same violation.

BIAW v. Labor and Industries | Public Records case:

BIAW sent the Washington State Department of Labor & Industries (L&I) multiple public records requests for Stute violation citations in which a general contractor can be cited for violations of subcontractors. L&I provided inconsistent responses to similar or identical requests, which led BIAW to question whether L&I’s system for tracking these citations and public record requests was functional. BIAW filed suit in February and L&I has agreed to provide BIAW all requested documents, explain discrepancies in previous responses, and also provide search terms to assist with future requests in exchange for a dismissal.

Status: A case status hearing is scheduled for Oct. 30. BIAW will closely review L&I’s pattern of enforcement of these citations to see if it complies with the law.

BIAW v. Labor & Industries | Rule challenge:

BIAW sued L&I under the Administrative Procedures Act (APA) to prevent L&I from implementing an emergency rule that would have allowed L&I to fine businesses $10,000 for violating the governor’s order regarding safe business practices during the current COVID crisis. The court heard BIAW’s arguments in which L&I violated the APA and exceeded its statutory authority because emergency orders can only be enforced with a misdemeanor. The court disregarded BIAW’s motion and ruled on behalf of L&I, because “COVID is an emergency.”

Status: L&I has filed new emergency orders every time the governor has issued a new update to his emergency order. BIAW did not appeal to the judge’s ruling but is closely monitoring L&I’s enforcement of the governor’s orders within the construction industry to look for another opportunity to challenge them.

BIAW Wants to Hear From you:

If you have been fined by L&I for violating the governor’s emergency order, or have any questions about pending cases, please contact BIAW General Counsel Jackson Maynard at or (360) 352-7800 ext. 108.

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