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Media Advisory: Oral argument tomorrow in BIAW’s suit against the governor and Dept. of Fish & Wildlife

February 22, 2021

OLYMPIA…The Court of Appeals for Division Two will hear oral arguments tomorrow in a case brought by the Building Industry Association of Washington against the Governor and the Department of Fish and Wildlife (DF&W). BIAW alleges the Governor violated the Washington State Constitution when he vetoed a subsection of HB 1579, passed during the 2019 legislative session.

What: Building Industry Association of Washington v. Governor Jay Inslee et al.
When: 9 am, Feb. 23, 2021—TVW stream starts at 9:30 am
Where: Oral arguments in the Division Two Court of Appeals will be streamed on TVW

HB 1579 implemented recommendations from the Southern Resident Killer Whale Task Force, including increasing civil penalties for violations of the statute that regulates coastal construction from $100 per violation to up to $10,000 per violation.

The legislation linked the penalty increases to a provision “directing the Conservation Commission (Commission) to initiate demonstration projects to test river management strategies that protect agricultural lands, fish life, and public infrastructure and recreational access.” The Governor vetoed this subsection.

The Washington State Constitution specifically requires that the governor veto sections in their entirety, rather than subsections. If BIAW prevails, the court could strike down penalty increase. BIAW’s General Counsel Jackson Maynard will handle the argument for BIAW and the Attorney General’s office will represent the state.

“The state constitution is really clear that the governor can’t “partially veto” a bill except in rare instances,” Maynard said. “If the governor wins, he will be able to veto subsections of legislation to fit his agenda whenever he disagrees with the policy in a law—even after it has already passed the Legislature.”

As a result of these illegal actions, Maynard explained, there is confusion about the authority of the DF&W to implement the bill through enforcement and rule-making.

The bill repealed the existing ability of the DF&W to fine for violations and the governor vetoed the new authority. As a result, it is unclear whether and how the department can issue civil fines at all.

“The governor’s actions have raised a number of questions on constitutionality, enforcement and rulemaking authority that need to be cleared up as soon as possible, to give predictability and certainty to the process for our members,” Maynard said. “As it stands, due to this great uncertainty, BIAW members have been forced to put projects on hold or pass them up altogether.”

Legal documents:

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