Did Washington wildlife agents need a search warrant to inspect a licensed wildlife business in 1988?

Plain-English summary

In 1988, a state senator asked whether two wildlife-enforcement statutes conflicted. One allowed agents to inspect specified regulated commercial enterprises at reasonable times and in a reasonable manner without a warrant. The other allowed a court to issue a search warrant on a complaint showing probable cause that unlawfully held wildlife was concealed in a place or receptacle. The Attorney General said the provisions served different purposes and could be read together.

The first provision concerned routine administrative inspection of commercial wildlife activity. The second reached a wider range of places and searches for evidence of unlawful activity. In a footnote, the AG expressly declined a separate request to assess the constitutionality of the warrantless-inspection statute. Its statutory answer should not be mistaken for a constitutional ruling.

“Since it is possible to harmonize these two provisions, we conclude that no conflict exists between them.” (Official opinion)

Currency note

This opinion was issued in 1988. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could agents inspect a regulated wildlife business without a warrant under the 1988 statute?
A: The AG described RCW 77.12.095 as allowing inspections of covered commercial enterprises at reasonable times and in a reasonable manner.

Q: Why did a second statute authorize search warrants?
A: RCW 77.12.120 addressed probable-cause searches for unlawfully held wildlife in a wider range of places. The AG found its scope different from the commercial-inspection provision.

Q: Did the AG find the two statutes inconsistent?
A: No. It concluded that both could operate because one was a specific administrative inspection authority and the other a general warrant route.

Q: Did the opinion rule that warrantless inspections were constitutional?
A: No. A footnote expressly declined the constitutional question.

Background and statutory framework

The opinion traced the 1980 revision of Washington's game code and later changes to RCW 77.12.095. It compared that statute's defined commercial-inspection setting with RCW 77.12.120's broader warrant procedure. The AG harmonized the two provisions, while reserving constitutional review for the courts.

Citations and references

The opinion discussed RCW 77.12.095, RCW 77.12.120, and RCW 77.12.010.

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/licenses

Original opinion text

Attorney General Ken Eikenberry

SEARCHES AND SEIZURES—WILDLIFE—LICENSES

There is no conflict between RCW 77.12.095 and RCW 77.12.120, because section 77.12.095 is a specific statute permitting wildlife agents to conduct inspections of certain regulated commercial enterprises without warrants, while section 77.12.120 is a general statute authorizing wildlife agents to obtain warrants to conduct searches or seizures in cases where section 77.12.095 is inapplicable.

December 27, 1988

Honorable Kent Pullen

State Senator, District 47

22844 172nd Avenue S.E.

Kent, WA 98031 Cite as: AGO 1988 No. 31

Dear Senator Pullen,

By letter previously acknowledged, you requested our opinion on the following questions: 1

1. Does a conflict exist between RCW 77.12.095 and RCW 77.12.120?

2. If so, is there a way to reconcile the two statutes?

We answer the first question in the negative for the reasons set forth in our analysis and do not reach the second question.

[Original Page 2]BACKGROUND

In 1980, the Washington Legislature enacted a comprehensive revision of the Game Code of the State of Washington. Laws of 1980, ch. 78. The Legislature stated its intent as follows:

In enacting this 1980 act, it is the intent of the legislature to revise and reorganize the game code of this state to clarify and improve the administration of the state’s game laws.

Laws of 1980, ch. 78, § 1, p. 184.

RCW 77.12.010 provides in part:

Wildlife is the property of the state. The department shall preserve, protect, and perpetuate wildlife.

The Department of Wildlife consists of the State Wildlife Commission and the Director of Wildlife. RCW 77.04.020. The Director is authorized, among other duties, to regulate the collection, importation, and transportation of wildlife. RCW 77.12.030. The Commission is authorized to adopt and enforce reasonable rules governing the time, place, and manner of taking or possessing game animals, game birds, or game fish. The Commission also is responsible for regulating the taking, sale, possession, and distribution of wildlife and deleterious exotic wildlife. RCW 77.12.040.

Title 77 RCW contains provisions regarding game farms 2, prohibited acts and penalties 3, and licenses 4. Wildlife agents are responsible for enforcing the law and rules adopted pursuant to Title 77 RCW. RCW 77.12.070. They are peace officers and may serve and execute warrants and processed issued by the courts. RCW 77.12.055. The enforcement authority of wildlife agents is set forth in RCW 77.12.055-.100.

ANALYSIS

Your first question concerns RCW 77.12.095 and 77.12.120. RCW 77.12.095 states:

Wildlife agents may inspect without warrant at reasonable times and in a reasonable manner the [Original Page 3] premises, wildlife, and records of any commercial enterprise operating under the authority of a license or permit issued by the department or any commercial business that sells, stores, transports, or possesses wildlife.

RCW 77.12.095 was enacted in 1980 as part of the comprehensive revision of the Game Code [5] and was amended in 1982 [6].

Administrative agencies such as the Department of Wildlife have the important responsibilities of protecting the public health, safety, and welfare. One of the devices by which these responsibilities are carried out is administrative inspection. When an industry or business is subject to extensive governmental regulation and frequent unannounced inspections are necessary to insure compliance, warrantless inspections are valid if authorized by a statute that sufficiently delineates the scope, time, and place of inspection. Washington Massage Found. v. Nelson, 87 Wn. 2d 948, 953, 558 P. 2d 231 (1976). “Such inspections are considered to be essential to adequate enforcement of valid governmental regulation.” 87 Wn. 2d at 949.

Generally, a search and seizure is not constitutionally reasonable under the Fourth Amendment to the United States Constitution unless it is conducted pursuant to a valid warrant based upon probable cause to believe that a violation of law has occurred. SeeNew Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985). There are a few specific exceptions to the warrant requirement. One such exception is administrative inspections in pervasively regulated industries. Colonade Catering Corp. v. United States, 397 U.S. 72, 90 S. Ct. 774, 25 L. Ed. 2d 60 (1970). In addition, “[b]ecause routine inspections are often essential to adequate enforcement of valid government regulation, probably cause is not required.” Alverado v. Washington Pub. Power Supply Sys., 111 Wn. 2d 424, 435, 759 P. 2d 427 (1988).

[Original Page 4] RCW 77.12.095 in its current and original forms authorizes the warrantless inspection of commercial enterprises or businesses that are licensed or regulated under the Game Code. The enterprises subject to inspection under RCW 77.12.095 include game farms, taxidermists and fur dealers licensed under RCW 77.32.211. The 1982 amendments had the apparent primary purpose of extending warrantless inspections to steelhead buyers. See Senate Journal, 47th Legislature (1982), at 775; Final Legislative Report, 47th Legislature (1982), at 156 (Senate Bill 4466).

Title 77 RCW and Title 232 WAC contain extensive provisions regulating the taking, possession, transportation, and importation of wildlife and game. Wildlife agents may make periodic physical inspections of the regulated businesses to determine whether a violation of the Game Code of the rules adopted by the Department of Wildlife has occurred. Frequent unannounced inspections are necessary to insure compliance with the Game Code and rules of the Department of Wildlife.

Turning to the other statutory provision which is the subject of your inquiry, RCW 77.12.120 provides:

Upon complaint showing probably cause for believing that wildlife unlawfully caught, taken, killed, controlled, possessed, or transported, is concealed or kept in a game basket, game coat, package, or other receptacle for wildlife, or at a business place, vehicle, or other place, the court shall issue a search warrant and have the place searched for wildlife. The court may have a building, enclosure, vehicle, or receptacle opened or entered the contents examined.

Unlike RCW 77.12.095, RCW 77.12.120 is not limited to commercial businesses licensed or regulated under Title 77 RCW. RCW 77.12.120 instead applies to any receptacle, business place, vehicle, or place in which may be concealed wildlife unlawfully caught, taken, killed, controlled, possessed, or transported 7.

[Original Page 5] In comparing the applicability and scope of these two provisions, RCW 77.12.095 is a specific law that deals with the effective enforcement of a pervasive regulatory scheme, i.e., the Game Code and the rules adopted by the Department of Wildlife. In contrast, RCW 77.12.120 applies generally to a search for evidence of criminal activity, such as items believed to be unlawfully caught, killed, or possessed in any place where such wildlife may be concealed or kept. See RCW 77.21.010 [8]. The search is not limited to businesses regulated or licensed by the Department of Wildlife. Thus, these two statutory provisions are different in scope, purpose, and protection afforded.

Each statutory provision must be viewed in relation to other provisions and harmonized if at all possible to insure proper construction of every provision. Adelman v. Board of Prison Terms & Paroles, 107 Wn. 2d 503, 509, 730 P. 2d 1327 (1986). Since it is possible to harmonize these two provisions, we conclude that no conflict exists between them.

In answering your first question, we have provided also an answer to your second question.

We trust the foregoing will be of assistance to you.

Very truly yours,

KENNETH O. EIKENBERRY

Attorney General

NOELLA HASHIMOTO

Assistant Attorney General

NH/psb

1 You also asked whether the provisions of RCW 77.12.095 violate the United States or Washington State constitutions as authorizing unreasonable searches. It is the longstanding policy of this office to decline to render an opinion as to the constitutionality of our statutes except where the answer is glaringly obvious and in the negative; further we routinely presume a statute to be constitutional as passed by the Legislature and will move to defend the same in our courts which are the appropriate body for resolving claims as to constitutionality. This opinion therefore addresses only the questions stated above.

2 RCW 77.12.570-.600

3 RCW 77.16.

4 RCW 77.32.

5 It originally provided:

Wildlife agents may inspect without warrant at reasonable times and in a reasonable manner the premises of a game farm licensed under RCW 77.32.211 and the records of the game farmer or a taxidermist or fur dealer licensed under RCW 77.32.211.

Laws of 1980, ch. 78, § 22, p. 194.

6 Laws of 1982, ch. 152, § 1, p. 623.

7 The requirement of probable cause for the issuance of a search warrant is based on constitutional search and seizure principles. A search or seizure is not constitutionally reasonable under the Fourth Amendment unless it is conducted pursuant to a valid warrant based up probable cause to believe that a violation of law has occurred or unless it falls within one of the exceptions to this requirement. Alverado v. Washington Pub. Power Supply Sys., 111 Wn. 2d at 435.

8 It is possible that evidence of criminal activity also may be discovered during an administrative inspection. Normally, such evidence may be used in a criminal prosecution, despite the different purpose of the administrative inspection. SeeState v. Mach, 23 Wn. App. 113, 594 P.2d 1361 (1979).