CAPR Opposes the Board of Health's new rule language in the Keeping of Animals Rule.
The hearing was held on Wednesday, June 8, at 1:30, 12 people registered to comment and were each limited to 2 minutes of comment. Those who could not wrap up their comments in that time frame were simply cut off and silenced mid sentence. The board seemed almost automatonic in both the presentation of the rule and the response to comments, and in the end were unmoved by for the most part, negative response to the rule by commentors.
The board disregarded suggested improvement and moved to procede through the rule making process to update the rule.
CAPR provided the following testimony to the board. The entire testimony was not heard but the high points regarding property rights and the issues of agricultural damage and harm from elk were heard.
Abandon the rule or work on better, more specific language.
The BOH should consider abandoning this rule when the intent of the original rule has been superseded by rules created by other agencies, especially the Departments of Ecology, of Agriculture. It will interfere with and cause redundant, excessive work for economically strapped local health departments and Conservation Districts who must provide on the ground local direction and support to property owners keeping animals. Because other agencies have existing rules regarding animal waste management this BOH proposed rule is not needed and conflicts with federal and state laws. If the rulemaking is not abandoned, CAPR suggests this specific section 3 language be stricken: Unless a standard is superseded by a more stringent standard in federal, state, or municipal law…and be replaced with this wording, unless in conflict with federal or state law. The board should recognize:
The broadly worded Interference with health is a standard that would create an arbitrary or capricious complaint or enforcement action opening the door to regulatory conditions or extortions in seeking compliance, thus depriving a property owner of the full due process of law and previously established customary land use rights.
Health hazards related to disposal of animal waste is too broad to create a standard and could be read to refer to only the act of disposal.
The exceptions in section 3 are likewise so broadly written as to be unenforceable, conflate distinctly different activities, such as livestock management and trail riding, and will create confusion and arbitrary interpretation with the phrase “and other diffuse sources of domestic animal waste”. Is wildlife management a diffuse source of waste?
In sub section (g) The word nuisance must be eliminated as it is also addressed in existing law making this standard duplicative and unnecessary.
Damage related to domesticated elk.
The glaring omission committed in this rule making is the ignoring of health hazards created by animals managed by the state and other entities when elk intrude upon private farming properties leaving behind excrement and pathogens that damage and destroy both crops and livestock and negate the work and efforts of organic farmers and other farmers. The board has omitted the consideration of the abatement of health hazards and nuisances created by elk. Elk are vectors for tapeworm, hoof rot, and other pathogens and through their trespass and passage onto farms create significant risk and damage to crops intended for human consumption and onto private properties endangering livestock, pets, and people.
The state and entities practicing the harboring and protection of domesticated elk must take ownership of the problems it has caused by creating protected herds of elk and the inevitable domestication of these protected herds. Domestication of these animals have deprived property owners of a means to make a living providing locally grown and produced foods we in Washington depend upon for good health and avoidance of supply chain issues in our food security. The domestication of elk have also derprived the elk of natural grazing and foraging development and of behaviors inherent to the animal's safety and nature, natural conduct, that would have developed in their natural habitat.
Property rights are disregarded in this rule.
Section 4 as related to investigation and enforcement must be stricken and rewritten to read more precisely.
Privacy, proprietary information, liability, and the safety of government agents must be taken into account when the state attempts to authorize a local health officer to enter a property. An attempt to communicate with a property owner is not an adequate standard to protect the interests of all concerned parties.
CAPR suggests this language be added to section 4 of the proposed rule:
A public agency or its agent must coordinate with the property owner prior to accessing a site or property, and the responsible public agency or agent must be authorized by the owner prior to accessing a site or property.
Allow, in cases where an inspection has not been authorized by a property owner, the local health jurisdiction to follow the procedures established for an administrative search warrant.
Forbid local health jurisdictions from requiring private property owners to grant inspection or maintenance easements for future inspection or as a condition to resolution of enforcement actions.
The local health officer must respond to the property owner within thirty days after receiving a notice of compliance from the property owner with the agency inspection requirements.
Forbid an agency or agent to interfere with or limit management or operations on private property as related to all aspects of care of animals and management of waste in the keeping of domestic or livestock animals during the period of time a property owner is attempting to resolve differences or achieve compliance with agency inspection requirements.
Thank you for considering the suggested alternatives or changes to the proposed rule.
Cindy Alia, Citizens' Alliance for Property Rights
June 6, 2022