Confederated Tribes of Yakama Nation v. Okanogan Cnty.

• Decision Date: 02 February 2021
• Docket Number: No. 37129-8-III,37129-8-III
• Parties: CONFEDERATED TRIBES AND BANDS OF THE YAKAMA NATION, Appellant, v. OKANOGAN COUNTY, Respondent.
• Court: Washington Court of Appeals

CONFEDERATED TRIBES AND BANDS OF THE YAKAMA NATION, Appellant, v. OKANOGAN COUNTY, Respondent.

No. 37129-8-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

February 2, 2021

UNPUBLISHED OPINION

FEARING, J. — This appeal concerns one of endless broken promises by American government authorities toward Native Americans. The breach of an agreement in this instance also encompasses a violation of a court order.

The Confederated Tribes and Bands of the Yakama Nation (Yakama Nation) agreed to dismiss a lawsuit against Okanogan County, and, in return, the county agreed to adopt, by December 31, 2018, a new comprehensive plan and zoning ordinance that hopefully addressed the concerns the Nation had about the county's current plan and ordinance. The superior court signed an order of dismissal without prejudice of the lawsuit, which order incorporated the many promises of the parties. When Okanogan County failed to adopt a new plan and ordinance by December 31, 2018 and thereby violated the court order, the Yakama Nation moved to vacate the order of dismissal. The superior court denied the motion to vacate on the alternative grounds that it lacked authority to vacate an order of dismissal without prejudice and that the Nation had no sustainable cause of action against the county for breaching its promises or violating the court order. Because the order of dismissal without prejudice imposed numerous obligations on Okanogan County, some of which it has disobeyed, we rule that the motion to vacate should have been granted. We thus reverse the superior court.

FACTS

Our facts principally cover the procedural history behind a dispute between the Yakama Nation and Okanogan County concerning the legal legitimacy of the county's comprehensive plan and zoning code. On August 15, 2016, the Yakama Nation sued Okanogan County and alleged that the county's comprehensive plan, zoning code, and other actions violated the State Environmental Policy Act (SEPA) chapter 43.21C RCW, the Growth Management Act (GMA) chapter 36.70A RCW, and the Planning Enabling Act of the State of Washington (PEA) chapter 36.70 RCW. This 2016 suit is the case now on appeal.

Less than one year later, the Yakama Nation and Okanogan County reached a resolution of the lawsuit. The county agreed to adopt a new comprehensive plan and zoning ordinance, with input from the Nation, by the end of 2018, and the Nation agreedto dismiss its suit without prejudice. On March 20, 2017, the Yakama Nation and Okanogan County executed a stipulated agreement and order of dismissal without prejudice in the lawsuit. The stipulated agreement read, in part:

1. This Stipulation is made for the dismissal of the above-captioned action, which concerns [Okanogan County's zoning ordinance]. The dismissal is made without prejudice to any future claims or defenses by any Party in any subsequent proceeding that concerns the Zoning Ordinance (either in its present form, or as amended), or any associated environmental review. This includes, without limitation, any future claims based on Okanogan County's ("County") actions or failures to act.

2. Within sixty (60) days from the date of the execution of this Stipulation and associated Order, the County shall take all necessary action(s) to initiate a review of:

a. Okanogan County's Comprehensive Plan. . . ; and

b. Okanogan County's [zoning ordinance] . . . ; and

c. The environmental review of the Comprehensive Plan and the Zoning Ordinance under Washington's State Environmental Policy Act and applicable county ordinances. Such environmental review shall be "ab initio" to the commencement of the environmental review process leading to the adoption of the current Comprehensive Plan and Zoning Ordinance, meaning that any conclusions drawn in prior environmental review documents shall be open to new review in any subsequent proceeding.

3. In conducting its reviews of the Comprehensive Plan and Zoning Ordinance, the County hereby affirms its intention to give serious consideration to all issues raised by the Yakama Nation, along with any issues raised by the general public, other governments, or County staff or officials.

4. During the County's review of its Comprehensive Plan and Zoning Ordinance, the County will continue to process land use permits and other development applications under the applicable County ordinances presently in place, and as amended. Plaintiff reserves any rights it may have to appeal any land use permit or development application determinations made by the County under such ordinances[.] . . . The County agrees to promptly implement an online, public permit tracking system identifying all land use applications as received, and any associated decisions or scheduled hearings.

5. No later than December 31, 2018, the County shall take final legislative action(s) to (a) repeal, in their entirety, the current Comprehensive Plan . . . and current Zoning Ordinance . . . , and (b) adopt a new Comprehensive Plan and new Zoning Ordinance. . . . The County's obligation to repeal in full the current Comprehensive Plan and Zoning Ordinance, and to take final legislative action to adopt a new Comprehensive Plan and Zoning Ordinance, is intended by the Parties to avoid any and all prejudice or limitation to the Parties' future claims and defenses; and shall not be interpreted to obligate the County to make any specific changes or updates to the Comprehensive Plan or Zoning Ordinance.

Clerk's Papers (CP) at 37-39 (emphasis added).

The parties appended an order of dismissal without prejudice to the stipulated agreement. The order went beyond the standard order of dismissal and copied much of the language from the stipulated agreement. The order signed by the court read in part:

Pursuant to the foregoing Stipulation and under the authority of Civil Rule 41(A), the Court hereby:

ORDERS that the above-entitled action is DISMISSED in its entirety, without prejudice and without costs as to any party; and

ORDERS that the forgoing Stipulation preserves certain rights to the Parties, which shall be protected for all Parties for all purposes; and

ORDERS that within sixty (60) days from the date of the execution of this Order of Dismissal, the County shall lake all necessary action(s) to initiate a review of:

(1) Okanogan County's Comprehensive Plan; and

(2) Okanogan County Code Title 17A; and

(3) An "ab initio" environmental review of each under Washington's State Environmental Policy Act and applicable County ordinances; and

ORDERS that, no later than December 31, 2018, the County shall take final legislative action(s) to (a) repeal, in their entirety, the current Comprehensive Plan and Zoning Ordinance . . . , and (b) adopt a new Comprehensive Plan and new Zoning Ordinance. . . ; and

ORDERS that the County may continue to process land use permits and development applications under applicable County ordinances, aspresently in place or as may be amended through the legislative process, without prejudice to any associated claims of any Party.

CP at 41 (emphasis added).

Okanogan County failed to adopt a new comprehensive plan and zoning ordinance by December 31, 2018. The County also failed to implement a public tracking system to identify received land use petitions, petition hearing dates, and related decisions as required under the stipulation. The county asserts that it has engaged in good faith efforts to enact a new plan and ordinance.

PROCEDURE

On July 10, 2019 and as a result of Okanogan County's failure to comply with the 2017 agreement's and order of dismissal's deadlines, the Yakama Nation filed a motion, in this 2016 suit, to vacate the March 21, 2017 order of dismissal. The motion also sought to reinstate the 2016 lawsuit, procure a new order requiring compliance with the 2017 stipulated order of dismissal, hold the county in contempt, impose sanctions against Okanogan County, and grant reasonable attorney fees and costs to the Nation. In its motion, the Yakama Nation argued that the stipulated commitments by Okanogan County were essential to the Nation's earlier dismissal of this case. The Nation contended that a party's failure to perform a material condition of an agreement that serves as the basis for an order of dismissal constitutes an extraordinary circumstance that justifies vacature of the order under CR 60(b)(6) and (11).

In response to the Yakama Nation's motion to vacate the order of dismissal and for contempt, Okanogan County emphasized that, although it did not meet the deadlines for adopting a new comprehensive plan and zoning ordinance, the county diligently worked to complete the tasks. Okanogan County, in turn, argued that the Nation lacked a cause of action against the county since no justiciable controversy existed when the county continued to process revisions to its plan and ordinance. The county asked the superior court to deny the motion to vacate because a valid underlying cause of action is a condition for vacation under RCW 4.72.050.

In a declaration opposing the motion to vacate, Perry Huston, former director of the Okanogan County Office of Planning and Development, conceded that the county failed to meet the December 31, 2018 deadline, but he averred the county continued to finish the tasks required in the stipulation agreement. Huston concluded that Okanogan County worked "as quickly as reasonably possible." CP at 104. The declaration is long on the steps taken by Okanogan County, but does not explain why the county could not have completed individual steps quicker. Huston avowed that the county kept the Yakama Nation informed of its progress in adopting a new comprehensive plan and zoning ordinance.

In his declaration, Perry Huston stated that Okanogan County anticipated adopting the new comprehensive plan at the end of 2019 or early 2020. The adoption of the new zoning ordinance would follow shortly thereafter. Okanogan County still has not adopteda new ordinance or plan.

At the conclusion of an August 12, 2019...