Alps v. State Forest Practices Bd.
| Decision Date | 10 October 2006 |
| Docket Number | No. 32047-9-II.,No. 33676-6-II.,32047-9-II.,33676-6-II. |
| Citation | 144 P.3d 385,135 Wn. App. 376 |
| Court | Washington Court of Appeals |
| Parties | ALPINE LAKES PROTECTION SOCIETY, Friends of the Loomis Forest, Kettle Range Conservation Group, The Mountaineers, Northwest Ecosystem Alliance, Peninsula Neighborhood Association, Seattle Audubon Society, Washington Environmental Council, Washington Wilderness Coalition, and Whidbey Environmental Action Network, Appellants, v. WASHINGTON STATE FOREST PRACTICES BOARD, Washington Forest Protection Association, Washington State Department of Ecology, and Washington State Department of Natural Resources, Respondents. Alpine Lakes Protection Society, Friends of the Loomis Forest, Kettle Range Conservation Group, The Mountaineers, Northwest Ecosystem Alliance, Peninsula Neighborhood Association, Seattle Audubon Society, Washington Environmental Council, Washington Wilderness Coalition, and Whidbey Environmental Action Network, Appellants, v. Washington State Forest Practices Board, Respondents. |
Peter Robert Goldman, Attorney at Law, Toby Thaler, Attorney at Law, Paul August Kampmeier, Seattle, WA, for Appellants.
Colleen G. Warren, Attorney General's Office, Cheryl Ann Nielson, Attorney at Law, Atty. Gen. Ofc. Nat. Res. Div., Olympia, WA, John William Hempelmann, Cairncross & Hempelmann PS, Richard L. Settle, Foster Pepper PLLC, John Patrick Payseno, Attorney at Law, Seattle, WA, for Respondents.
¶ 1 Alpine Lakes Protection Society and several other conservation organizations (collectively, "ALPS") appeal two administrative actions, one by the Washington Department of Ecology (Ecology) and the other by the Washington Forest Practices Board (Forest Practices Board). We have linked these two appeals.
¶ 2 In the first case, ALPS appeals Ecology's rulemaking amendment of WAC 197-11-800.1 This amendment (1) removed Classes I, II, and III forest practices permits from its list of government actions that are categorically exempt from the State Environmental Policy Act (SEPA)2; and (2) thereby caused Classes I, II, and III forest practices permits to be no longer subject to Ecology's "Rule 305," WAC 197-11-305(b)(ii).3 ALPS argues that (1) Ecology was not required to amend WAC 197-11-800 in this manner because SEPA independently authorizes Ecology to apply Rule 305-type "cumulative effects"4 scrutiny to forest practices permits and (2) therefore, Ecology's amendment of WAC 197-11-800 improperly excluded Classes I, II, and III forest practices from SEPA review of cumulative effects that a forest-practices permit application might create when considered together with other related, though segmented, forest practices permits.
¶ 3 In the second case, ALPS appeals the Forest Practices Board's denial of its petition for rulemaking: ALPS petitioned the Board to promulgate a "catch-all" provision in its Class IV forest practices classification,5 to operate like Ecology's Rule 305, which would subject otherwise exempt, related, segmented proposals to SEPA review for potential, cumulative environmental impacts. ALPS argues that the Forest Practices Board has a statutory duty to promulgate such a provision and that the Board acted outside its statutory authority in failing to do so.
¶ 4 We hold that (1) Ecology did not act improperly in amending WAC 197-11-800 and (2) the Forest Practices Board did not act improperly in denying ALPS' petition to add a "Rule 305-like" "catch all" provision to its Class IV forest practices classification. We affirm.
¶ 5 Plum Creek Timber Company (Plum Creek) owns several thousand acres of land in King and Pierce Counties. Between 1994 and 2001, Plum Creek obtained 25 Department of Natural Resources (DNR) forest practices permits for timber harvest and three permits for road construction in the Carbon River Valley and its surrounding hillside near Mount Rainier National Park. DNR determined that all of these permits were for Class III forest practices,6 which were thereby exempt from environmental review under Washington's State Environmental Policy Act (SEPA).
¶ 6 At issue here is a Class III forest practices permit encompassing a 28-acre piece of Plum Creek land called "Doggone Harvest." In response to environmental concerns raised by the Mountaineers and two individuals (collectively, the "Mountaineers"), Plum Creek voluntarily revised its permit application to incorporate aesthetic changes. DNR approved Plum Creek's application and granted a Class III forest practices permit.
¶ 7 Effective September 1, 2003, Ecology amended WAC 197-11-800 to remove Classes I, II, and III forest practices permits from its list of SEPA-exempt government actions. This amendment caused these three classes of forest practices permits no longer to be subject to Ecology's Rule 305, which otherwise could have required SEPA review of "a segment of a proposal" that includes "a series of exempt actions that are physically or functionally related to each other, and that together may have a probable significant adverse environmental impact." WAC 197-11-305(b)(ii).
¶ 8 On February 13, 2003, ALPS petitioned the Forest Practices Board to amend its forest practices classification system to ensure SEPA review of related, though segmented,7 forest-practices applications with potentially substantial, cumulative, environmental effects.8 More specifically, ALPS petitioned the Forest Practices Board to promulgate a "catch-all" provision in its Class IV forest practices classification that would operate like Ecology's Rule 305. ALPS argued that the Forest Practices Board has a statutory duty under SEPA and the Forest Practices Act to adopt forest practice rules that function similarly to Ecology's Rule 305 (WAC 197-11-305).
¶ 9 The Forest Practices Board received written and oral comments on ALPS' rule-making petition. On March 19, 2003, the Forest Practices Board unanimously denied ALPS' petition. By letter, dated April 10, 2003, the Forest Practices Board summarized its ruling, which included the following rationale:
A. Contrary to the petition, the Board has no statutory or other legal "duty" to engage in rule making to adopt a rule similar to or that operates like the "305 Rule" described in the petition.
. . . .
E. As directed by the legislature, the Board has established a short, specific "closed list" of forest practices classed as IV-Special, and thus subject to SEPA analysis on an individual basis. Petitioner's desire for a "catch-all" or openended rule would not be consistent with legislative direction.
¶ 10 The Mountaineers appealed the Doggone Harvest Class III forest practices permit to the Forest Practices Appeals Board (Appeals Board).9 The Appeals Board conducted hearings to consider whether the Doggone Harvest permit was a "segment of a proposal" triggering SEPA review under WAC 197-11-305 (Rule 305). In its March 21, 2002 written decision, the Appeals Board first determined that the forest practices exemption under SEPA, WAC 197-11-800(25)(a) (2003), was potentially subject to SEPA review through WAC 197-11-305. If applicable, Ecology's administrative Rule 305 would function as an exception to the general rule that categorically exempt activities are not subject to SEPA review.10
¶ 11 The Appeals Board next determined, however, that Plum Creek's Doggone Harvest permit was not operationally linked to past, present, or future forest practices and, therefore, Rule 305 would not apply. The Appeals Board denied the Mountaineers' appeal and affirmed the Doggone Harvest Class III forest practices permit.
¶ 12 In response to the Appeals Board's ruling, Plum Creek sought judicial review of WAC 197-11-305 and WAC 197-11-800. Plum Creek argued that Ecology had acted beyond the scope of its legislatively-granted power when it adopted these two rules. Agreeing with Plum Creek, on August 1, 2003, Ecology settled the case by removing forest practices permits from its list of government actions exempt from SEPA review under WAC 197-11-800.
¶ 13 On August 23, 2003, ALPS sought judicial review of Ecology's rule-making amendment of WAC 197-11-800, which removed Class I, II, and III forest practices from its list of SEPA-exempt actions. ALPS argued that Ecology's rule-making (1) was arbitrary and capricious because Ecology misinterpreted SEPA and the amendment conflicted with case law; and (2) violated SEPA because this amendment would lead to significant adverse environmental impacts, thus requiring an environmental impact statement, which was not conducted here.
¶ 14 On July 23, 2004, the superior court dismissed ALPS' petition for judicial review. The court ruled that (1) the Forest Practices Board has sole authority to decide which forest practices are subject to SEPA review; (2) Ecology lacks authority to include Class I, II, and III forest practices permits under WAC 197-11-800 because these forest practices are statutorily exempt from SEPA under RCW 43.21C and, therefore, not subject to WAC 197-11-305; and (3) Ecology's amendment of WAC 197-11-800, to remove these three classes of forest practices, did not require an environmental impact statement because Ecology was merely making its rules consistent with SEPA.
¶ 15 ALPS also filed a petition for judicial review, under the Administrative Procedures Act (APA),11 of the Forest Practices Board's denial of ALPS' petition for rule-making. In this petition, ALPS asked the Forest Practices Board to promulgate forest practice rules that would function similarly to Rule 305's provision for SEPA review...
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