WHETHER STATUTE PROHIBITING VESSELS OR OTHER OBJECTS FROM APPROACHING WITHIN TWO HUNDRED YARDS OF A SOUTHERN RESIDENT ORCA WHALE APPLIES TO DRONES

AGO 2016 No. 8 – Dec 30 2016
Attorney General Bob Ferguson

AIRCRAFT—VESSELS—Whether Statute Prohibiting Vessels Or Other Objects From Approaching Within Two Hundred Yards Of A Southern Resident Orca Whale Applies To Drones

Drones are most likely included within the term “other object” as used in RCW 77.15.740, prohibiting persons from causing vessels or other objects rom approaching within two hundred yards of a resident orca whale.

December 30, 2016

The Honorable Randall K. Gaylord
San Juan County Prosecuting Attorney
350 Court Street
Friday Harbor, WA   98250
Cite As:
AGO 2016 No. 8

Dear Prosecutor Gaylord:

By letter previously acknowledged, you have requested our opinion on two questions that we have paraphrased as follows[1]:

1.         Are unmanned aircraft systems, commonly referred to as drones, included within the term “other object” as used in RCW 77.15.740(1)(a), which prohibits persons from causing vessels or other objects to approach within two hundred yards of a southern resident orca whale?

2.         How should the Washington Department of Fish and Wildlife, the agency charged with enforcement of RCW 77.15.740(1)(a), proceed during this time of changing Federal Aviation Administration regulations?

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BRIEF ANSWERS

            1.         Yes, drones are most likely included within the term “other object” as used in RCW 77.15.740(1)(a).

2.         The Washington Department of Fish and Wildlife should contact its assigned Assistant Attorneys General if agency personnel have questions related to RCW 77.15.740(1)(a).

FACTUAL BACKGROUND

            In 2008, the legislature enacted Second Substitute H.B. 2514, an Act relating to protecting southern resident orca whales from disturbances by vessels. Laws of 2008, ch. 225. This Act established civil penalties for disturbing a population of approximately 80 orcas that spend each summer and fall in Washington’s Puget Sound. In enacting this measure, the legislature found that “the resident population of orca whales in Washington waters . . . [is] enormously significant to the state” and that these whales “are currently in a serious decline.” Laws of 2008, ch. 225, § 1. It went on to declare that the legislature “intends to protect southern resident orca whales from impacts from vessels, and to educate the public on how to reduce he risk of disturbing these important marine mammals.” Laws of 2008, ch. 225, § 1. The Act would later be codified at RCW 77.15.740, where it remains in effect as amended. The Department of Fish and Wildlife (WDFW) is authorized to enforce the provisions of RCW 77.15.740. See RCW 77.15.075.

Your opinion request letter addresses the operation of unmanned aircraft systems, commonly referred to as drones, around the southern resident orca whale population. More specifically, you have asked for an opinion as to whether RCW 77.15.740(1)(a), which prohibits persons from causing a vessel or “other object” to approach in any manner within 200 yards of a southern resident orca whale, would apply to a drone being flown within the proscribed distance of such a whale. You have also requested general advice on how WDFW should proceed in light of changing federal regulations regarding the public’s use of drones. Our analysis of your questions follows.

ANALYSIS

1.         Are unmanned aircraft systems, commonly referred to as drones, included within the term “other object” as used in RCW 77.15.740(1)(a), which prohibits persons from causing vessels or other objects to approach within two hundred yards of a southern resident orca whale?

For the reasons discussed below, we conclude that drones are likely included within the term “other object” as used in RCW 77.15.740(1)(a). Because your question presents an issue of statutory construction, we will begin by discussing the history of the statute prior to analyzing it.

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Legislative History Of RCW 77.15.740(1)(a)

RCW 77.15.740 was originally enacted as part of Laws of 2008, ch. 225. It established civil penalties for persons who “[c]ause a vessel or other object to approach within three hundred feet” of southern resident orca whales or engage in certain other specified practices unless an exemption recognized by the Act applied. Former RCW 77.15.740(1)(b) (2008). At that time, the legislature defined the term “vessel” to include “aircraft, canoes, fishing vessels, kayaks, personal watercraft, rafts, recreational vessels, tour boats, whale watching boats, vessels engaged in whale watching activities, or other small craft including power boats and sailboats.” Former RCW 77.15.740(4) (2008). The term “other object” was not defined, and remains undefined in the current version of the statute.[2]

The statute has been amended twice since its enactment in 2008, once in 2012 and again in 2014. The 2012 amendments changed the statute’s distance requirements and exemptions to match changes in federal law, and otherwise increased the protection afforded to the southern resident orca population.[3] Laws of 2012, ch. 176, § 37. These amendments shifted former RCW 77.15.740(1)(b) (2008) to RCW 77.15.740(1)(a), doubled the provision’s prohibited approaching distance from 300 feet to 200 yards, and added language making it impermissible to cause a vessel or other object to approach these whales “in any manner.” Former RCW 77.15.740(1)(a) (2012).[4]

The 2014 amendments redefined the term “vessel” as used in RCW 77.15.740 and established a five hundred dollar fine for violations of the statute. Laws of 2014, ch. 48, § 22. The new definition provides that “vessel” includes “aircraft while on the surface of the water, and every description of watercraft on the water that is used or capable of being used as a means of transportation on the water” while specifically excluding from the definition “inner tubes, air mattresses, sailboards, and small rafts, or flotation devices or toys customarily used by

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swimmers.” Engrossed Substitute S.B. 6041, § 22, 63d Leg., Reg. Sess. (Wash. 2014).[5] This definition of “vessel” currently remains in place at RCW 77.15.740(3).

Drones Are “other objects” For Purposes Of RCW 77.15.740(1)(a)

When interpreting a statute, a court’s fundamental objective is to “ascertain and carry out the legislature’s intent.” Arborwood Idaho, L.L.C. v. City of Kennewick, 151 Wn.2d 359, 367, 89 P.3d 217 (2004). If a statute is unambiguous, its meaning is to be derived from the language of the statute alone. In re Eaton, 110 Wn.2d 892, 898, 757 P.2d 961 (1988). If, however, the intent of the statute is not clear from the language of the statute by itself, the court may resort to tools of statutory construction to derive a statute’s meaning. Dep’t of Transp. v. State Emps.’ Ins. Bd., 97 Wn.2d 454, 458, 645 P.2d 1076 (1982).

Starting with the plain language of the statute, RCW 77.15.740(1) states in full that:

Except as provided in subsection (2) of this section, it is unlawful to:

(a)        Cause a vessel or other object to approach, in any manner, within two hundred yards of a southern resident orca whale;

(b)        Position a vessel to be in the path of a southern resident orca whale at any point located within four hundred yards of the whale. This includes intercepting a southern resident orca whale by positioning a vessel so that the prevailing wind or water current carries the vessel into the path of the whale at any point located within four hundred yards of the whale;

(c)        Fail to disengage the transmission of a vessel that is within two hundred yards of a southern resident orca whale; or

(d)       Feed a southern resident orca whale.

RCW 77.15.740(1). The statute goes on to set out a number of statutory exemptions to these prohibitions that are irrelevant to this question, such as scientific research activities conducted pursuant to an appropriate permit. RCW 77.15.740(2).

The language of RCW 77.15.740(1)(a) prohibiting persons from causing a “vessel or other object” to approach within two hundred yards of a southern resident orca whale appears to

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be unambiguous as to the objects prohibited—all of them. What constitutes an “object,” then, besides a vessel? Although this term is not defined by the statute, courts in such cases “may discern the plain meaning of nontechnical statutory terms from their dictionary definitions.” State v. Kintz, 169 Wn.2d 537, 547, 238 P.3d 470 (2010) (quoting State v. Cooper, 156 Wn.2d 475, 480, 128 P.3d 1234 (2006)). Webster’s Third New International Dictionary (2002) defines, on page 1555, the term “object” as “something that is put . . . in the way of some of the senses : a discrete visible or tangible thing[.]” Certainly a drone is a discrete, tangible thing observable by the senses, and should therefore be considered an “object” for purposes of RCW 77.15.740(1)(a).

The statute is equally clear that the manner in which an object is caused to approach a southern resident orca whale is irrelevant: “any manner” of approach is prohibited, which would necessarily include approach by air as well as by sea. RCW 77.15.740(1)(a). If the legislature had intended to limit the definition of “other object” to exclude airborne objects, it could have easily said so. Instead it chose to use the broadest possible language in prohibiting persons from causing objects to approach these whales. The fact that objects are precluded from approaching in any manner also compliments a broad reading of the term “other object.”

“A statute is ambiguous when it is susceptible to two or more reasonable interpretations, but a statute is not ambiguous merely because different interpretations are conceivable.” State v. Gray, 174 Wn.2d 920, 927, 280 P.3d 1110 (2012) (internal quotation marks omitted). Differing interpretations “must arise from the language of the statute itself, not from considerations outside the statute.” Cerrillo v. Esparza, 158 Wn.2d 194, 203-04, 142 P.3d 155 (2006). There is little if any room to argue from the statute’s broad language that a drone could not be considered an “object” for purposes of RCW 77.15.740(1)(a), an interpretation that also promotes the legislature’s stated intent of protecting the whales and “reduc[ing] the risk of disturbing these important marine mammals.”[6] Laws of 2008, ch. 225, § 1. The statute should accordingly be read broadly to include drones as potential “other objects” within the scope of the statute.

Even if a court were to find the term “other object” in RCW 77.15.740(1)(a) ambiguous and resort to tools of statutory construction to discern its meaning, it would likely reach the same broad interpretation of the term.

One commonly used canon of construction requires courts to effectuate the purpose of the statute and avoid constructions that would yield unlikely, absurd, or strained consequences in light of that purpose. State v. McDougal, 120 Wn.2d 334, 350, 841 P.2d 1232 (1992). The term “other object,” if limited to objects on the surface of the water only, would lead to bizarre results in light of the statute’s protective purpose; beach balls might be precluded from approaching a whale on the surface of the water, for example, but not a drone flying just above the water, or an underwater device approaching below the surface. The legislature was unlikely to intend an interpretation that afforded incomplete protection to the southern resident orca whale population,

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given its stated intent and chosen language prohibiting persons from causing objects to approach “in any manner.” RCW 77.15.740(1)(a).

A court construing RCW 77.15.740(1)(a) might also consider the canon ejusdem generis (“of the same kind”). Under this canon, “wherever a law lists specific things and then refers to them in general, the general statements apply only to the same kind of things that were specifically listed.” Bowie v. Dep’t of Revenue, 171 Wn.2d 1, 12, 248 P.3d 504 (2011). Typically, this canon is applied to “general and specific words clearly associated in the same sentence in a pattern such as ‘[specific], [specific], or [general]’ or ‘[general], including [specific] and [specific]’.” Sw. Wash. Chapter, Nat’l Elec. Contractors Ass’n v. Pierce County, 100 Wn.2d 109, 116, 667 P.2d 1092 (1983) (alterations in original).

A hasty application of this canon might lead to the conclusion that the general term “other object” in RCW 77.15.740(1)(a) should be constrained to waterborne objects by virtue of how the statute defines the specific term “vessel.” But the phrase “vessel or other object” lacks the requisite pattern of words from which to discern a limiting characteristic, as it contains only one specific term (vessel) and one general term (other object). For this reason, ejusdem generis offers no assistance in such cases. See Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 225, 128 S. Ct. 831, 169 L. Ed. 2d 680 (2008) (concluding that the “structure of the phrase ‘any officer of customs or excise or any other law enforcement officer,’” with its “one specific and one general category,” “does not lend itself to application of the canon”); United States v. Douglas, 634 F.3d 852, 858 (6th Cir. 2011) (refusing to apply the canon to the phrase “money or other thing of value”); Seattle Monorail Servs. v. Affiliated FM Ins. Co., No. C05-1052-MJP, 2005 WL 2333482, at *2 (W.D. Wash. 2005) (“ejusdem generis does not apply to two words linked by an ‘or’”).

Finally, the rule of lenity would also likely be inapplicable to resolving any ambiguity in RCW 77.15.740(1)(a). Although this rule, which requires the construction of an ambiguous statute in favor of the person allegedly in violation of it, could potentially apply in this context,[7]  it is to be employed only as a last resort when legislative intent cannot be determined.[8] Because both the plain language and tools of statutory construction suggest that the term “other object” should be broadly construed, a court would be unlikely to employ the rule of lenity.

Based upon the foregoing, we conclude that the legislature most likely intended to include objects such as drones within the term “other object” as used in RCW 77.15.740(1)(a), even if they approach through the air. The language of the statute and its legislative history offer no principled reason to constrain the term “other object” to certain non-vessel objects and not others; they instead suggest that the statute was intended to afford broad protection to southern resident orca whales.

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2.         How should the Washington Department of Fish and Wildlife, the agency charged with enforcement of RCW 77.15.740(1)(a), proceed during this time of changing Federal Aviation Administration regulations?

As a state agency, WDFW is represented and advised by the Washington State Attorney General’s Office. RCW 43.10.040. If WDFW personnel have legal questions regarding their agency’s enforcement of RCW 77.15.740, they may contact their assigned Assistant Attorneys General for advice.

We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON

Attorney General

 

GREGORY K. ZISER

Assistant Attorney General


[1] By letter dated April 22, 2016, Deputy Solicitor General Jeffrey Even informed you that, consistent with our office’s longstanding practice to avoid issuing Attorney General Opinions that comment on the validity of Washington statutes, our office would decline to address your other two questions regarding whether federal law preempts RCW 77.15.740(1)(a). This opinion will likewise not address the viability of other legal challenges to the validity of the statute.

[2] Although we do not construe federal law in this opinion, it is worth noting that a federal regulation that addresses whales also uses the phrase “vessel or other object.” 50 C.F.R. § 224.103(ii) (making it unlawful to “[c]ause a vessel or other object to approach within 100 yards (91.4 m) of a humpback whale”). We found no authority construing the phrase in its federal context, but the similarity in language could become important if construed in the future.

[3] For example, the 2012 amendments added language making it unlawful to “[p]osition a vessel to be in the path of a southern resident orca whale at any point located within four hundred yards of the whale,” to include “intercepting a . . . whale by positioning a vessel so that the prevailing wind or water current carries the vessel into the path of the whale at any point located within four hundred yards of the whale[.]” Former RCW 77.15.740(1)(b) (2012). Prior to the 2012 amendments, the statute prohibited intercepting a southern resident orca whale by “plac[ing] a vessel or allow[ing] a vessel to remain in the path of a whale and the whale approaches within three hundred feet of that vessel[.]” Former RCW 77.15.740(1)(c) (2008).

[4] In full, former RCW 77.15.740(1)(a) (2012) made it unlawful to “[c]ause a vessel or other object to approach, in any manner, within two hundred yards of a southern resident orca whale.”

[5] The 2014 amendments clarified that the term “vessel” includes “aircraft on the surface of the water,” while the former definition of the term included “aircraft” without limitations. While this amendment presumably means that aircraft not “on the surface of the water” would no longer qualify as “vessels,” there is no indication that by amending the definition of “vessel” in this manner the legislature intended to narrow the overall coverage of RCW 77.15.740(1)(a). The term “other object” has not been similarly constrained to objects on the water, and the intent of the amendments was to “clarif[y] and strengthen[]” the definitions used in WDFW enforcement statutes. Final Bill Report on Engrossed Substitute S.B. 6041, 63d Leg., Reg. Sess. (Wash. 2014).

[6] See G-P Gypsum Corp. v. Dep’t of Revenue, 169 Wn.2d 304, 310, 237 P.3d 256 (2010) (“[A]n enacted statement of legislative purpose is included in a plain reading of a statute.”).

[7] See Kahler v. Kernes, 42 Wn. App. 303, 308, 711 P.2d 1043 (1985) (applying the rule of lenity to civil statute imposing a penal sanction).

[8] State v. Hirschfelder, 170 Wn.2d 536, 546, 242 P.3d 876 (2010) (recognizing that lenity requires interpretation of an ambiguous statute in favor of the defendant absent legislative intent to the contrary).

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