Seizures or forfeitures of property by the Washington Department of Fish and Wildlife (WDFW) are on the increase in Washington State. The motives of WDFW seem to be: 1) revenue generation, 2) increasing punishments beyond what the legislature will approve, and 3) punishing sportsmen who “hamper” investigations by exercising their right to remain silent. Either way, the law isn’t being applied fairly.

WDFW forfeiture Law

Department of Fish and Wildlife Forfeitures are governed by RCW 77.15.070. This statute provides that Fish and Wildlife agents may seize boats, airplanes, vehicles, and other articles they have probable cause to believe have been used to violate fish and game rules and regulations.

Fish and Wildlife agents are increasingly seizing the vehicles from sportsmen for minor violations of the Washington fish and game code.

The statute does not apply to “inadvertent” violations. This statute comes to a surprise to many sportsmen, and if the statute is read literally, the Fish and Wildlife Department could seize a yacht for someone fishing without a correct license. Unfortunately this is just the kind of overreaching criminal defense lawyers are seeing around Washington State.

Who is targeted by WDFW

As a lawyer defending WDFW violations in eastern Washington, I have seen good people lose their pickup trucks and boats for minor violations. The game agents do not seize all such vehicles.  For now it is usually just  few select cases. If the matter is a minor violation and the person is cooperative usually their property is not seized or forfeited. Unfortunately, in the mind of WDFW agents, being “cooperative” means waiving your right to remain silent, ratting out your friends and family members, and allowing the agents to search your vehicle or home without a warrant. Being an outspoken critic of the Washington State Department of Fish and Wildlife certainly doesn’t help either.

Entrapment and undercover agents

When we think of undercover investigations we normally think of the FBI or DEA investigating major criminal networks. However, the Dept. of Fish and Wildlife has increasingly used this tactic to investigate even minor violations of the Fish and Game code in RCW title 77. More disturbingly, many of these investigations are what we call “reverse stings.” A reverse sting operation is when the government agents approach a citizen and offer them money to commit a crime.  The department claims they are narrowing in on people they believe are already breaking the law. In my experience defending people accused of fish and wildlife violations, the undercover agents will go to great lengths to pose as a law-breaker, often breaking the law right in front of the citizen to try to seem convincing. For example, I have cases where an WDFW agent will drive up with an open container of beer in his car. Some of the behavior amounts to entrapment.

Fighting a forfeiture or seizure

Fighting a forfeiture usually means hiring an attorney. Often times the game department will not follow the correct procedure when seizing the property and a person can fight the forfeiture on technical grounds.  The lawyer for the game department is the Attorney General’s office.  Through emails I have received through public records requests, it appears that WDFW has to pay for the time of the attorney general that assists with the forfeiture, and this can be a lot of money.  However, the game department will usually spend large amounts of money to wear down the owner of the property.  This is a common theme in WDFW cases.  The department seems to have limitless resources even when investigating a misdemeanor.  When an defense attorney is hired, he or she will usually request that the matter be heard in a court of law rather than have the matter heard by a WDFW administrative law judge.  If an attorney prevails on a forfeiture case, the citizen can seek to have his or her attorney’s fees reimbursed if the court finds that the seizure was not “substantially justified.”

Although a fish and wildlife attorney may help in individual cases, it may be that the state legislature should address this matter.  Should the state legislature in Olympia try to curtail the power of the Washington Department of Fish and Wildlife to seize property?  What do you think?  For further information see here and here.