Ferry Cnty. v. Growth Mgmt. Hearings Bd.
| Decision Date | 23 September 2014 |
| Docket Number | No. 31331–0–III.,31331–0–III. |
| Citation | 339 P.3d 478,184 Wash.App. 685 |
| Court | Washington Court of Appeals |
| Parties | FERRY COUNTY, Respondent, v. GROWTH MANAGEMENT HEARINGS BOARD ; Environmental and Land Use Hearings Office; Concerned Friends of Ferry County; David L. Robinson; Futurewise; Scott L. Simmons; Riparian Owners of Ferry County; and Ferry County Cattleman's Association, Inc., Appellants. |
Tim Trohimovich, Futurewise, Seattle, WA, for Appellants.
Liam Michael Golden, Golden Law Office, Colville, WA, for Respondent.
Diane L. McDaniel, Attorney at Law, Olympia, WA, for Other Parties.
¶ 1 We review for the second time the issue of whether, under the Growth Management Act (GMA), Ferry County included best available science (BAS) when failing to identify any important local habitats and species as part of its critical areas ordinance. We also ask whether any departure from best available science by Ferry County was reasonably justified.
¶ 2 In December 2011, the Growth Management Hearings Board (GMHB) found Ferry County noncompliant again with the GMA, while ruling that the county enacted a critical areas ordinance that, without reasonable justification, departed from best available science. Ferry County appealed the GMHB's decision to the superior court, arguing it included best available science in its decision not to designate any species or habitats of local importance, and, if and when it departed from BAS, it did so through a reasoned legislative process. The superior court agreed and reversed the GMHB. Futurewise and Concerned Friends of Ferry County, parties to the GMHB hearing, appeal the superior court decision to this appeals court.
¶ 3 This reviewing court sits in the same position as the superior court and, under the GMA, must bestow limited deference to the GMHB's findings. We hold that the GMHB did not abuse its discretion when ruling Ferry County noncompliant with the GMA. Therefore, we reverse the superior court and affirm the decision of the GMHB.
¶ 4 Ferry County lies in northeastern Washington, bordered on the west by Okanogan County, the east by Stevens County, the south by Lincoln County, and the north by British Columbia. The county was created in 1899 from the western end of Stevens County and is named for Washington's last territorial and first state governor, Elisha P. Ferry.
¶ 5 As of the 2010 census, Ferry County's population was 7,551. 16.7 percent of the county citizens are Native American. The city of Republic, the county's only incorporated community, serves as county seat. The city's population is 1,073. The county comprises 2,257 square miles. Ferry County is the fourth smallest in population of Washington's 39 counties but ranks eighth amongst counties in territory. The county's population density is 3.43 persons per square mile. Only Garfield County, with 3.19 persons per square mile, has a lower population density. By contrast, King County contains 953.3 persons per square mile.
¶ 6 The rugged Kettle River Range covers most of Ferry County and runs from the Canadian Border to the Columbia River, the county's southern edge. Lake Roosevelt, the reservoir created in 1941 by the impoundment of the Columbia River by the Grand Coulee Dam, sits mostly in Ferry County. The Okanogan Highland extends north to south along the western edge of the county. Ferry County boasts the tallest year-round travelable pass in the state—Sherman Pass at 5,575 feet. The south half of Ferry County lies within the boundaries of the Confederated Tribes of the Colville Nation (Colville Tribes) and the north half is largely occupied by the Colville National Forest, leaving only 18 percent of the county's land as taxable.
¶ 7 Ferry County's principal industries are logging and mining, although tourism and recreation are increasing in economic importance. Republic sustains the last operational goldmine in the state. The median income for a household in Ferry County is $36,921. Only Okanogan County, with a median income of $35,161, has a lower income rate. Twenty and one-half percent of the Ferry County population lives below the poverty line.
¶ 8 We outline some of the provisions of the GMA so that the underlying facts may be better understood. The GMA requires counties to compose plans to responsibly manage their growth and to enact regulations to effectuate those plans. As part of those plans and regulations, local governments by ordinance must designate and protect the habitat of endangered, threatened, and sensitive species (ETS) of fish and wildlife and species of local importance. RCW 36.70A.020(9), (10) ; RCW 36.70A.060(2) ; RCW 36.70A.170(1) (d) ; WAC 365–190–130(2). When designating and protecting these environmentally critical areas, a local government entity must “include the best available science.” RCW 36.70A.172. The meaning of this statutory clause is the subject of this appeal.
¶ 9 The Washington Department of Fish and Wildlife (DFW) aids local government entities in identifying critical habitats for priority species. The DFW develops lists, categorized by region, of priority fish and wildlife species requiring protective measures and management guidelines. Priority species include species designated as endangered, threatened, or sensitive (state listed species); species that will be reviewed by DFW for possible listing as endangered, threatened, or sensitive (state candidate species); species or groups of animals susceptible to significant population declines within a specific area or statewide by virtue of their inclination to aggregate (vulnerable aggregations); and species of recreational, commercial, and/or tribal importance that are vulnerable. The DFW regional lists are called PHS lists, short for priority habitat and species lists, and are the primary means used by DFW to provide fish, wildlife, and habitat information to local governments, state and federal agencies, landowners, consultants, and tribes for land use planning purposes. DFW produces and distributes over 4,000 copies of the PHS lists annually. DFW's listings include maps of known locations of priority habitats and species. The DFW complies its PHS data through field observations, scientific survey mapping projects, and geographic information system technology. The DFW data is “extensive[ly] peer-review[ed].” Administrative Record (AR) at 658, 690. A county should consult current information on priority habitats and species identified by DFW. WAC 365–190–130(4)(a).
¶ 10 In 1993, pursuant to the GMA, Ferry County adopted its first interim critical areas ordinance, which read, in relevant part, “ ‘The Washington Department of Wildlife Priority Habitats and Species quad overlay maps will be used to identify [areas with which endangered, threatened, and sensitive species have a primary association].’ ” Ferry County v. Concerned Friends of Ferry County (CFFC ), 155 Wash.2d 824, 828, 123 P.3d 102 (2005). In 1997, Ferry County adopted its first amendments to the ordinance.
¶ 11 The legislature created a GMHB to review a county's compliance with the GMA. Under the GMA, a party appearing at a county's GMA proceedings may file a petition with the GMHB to obtain a ruling that the county failed to comply with the law. On August 29, 1997, Concerned Friends of Ferry County (CFFC), in GMHB Case No. 97–1–0019, petitioned the GMHB for review of Ferry County's critical areas ordinance and amendments. In an order dated July 31, 1998, the GMHB found that Ferry County failed to include best available science when evaluating critical areas and thus the county was noncompliant with RCW 36.70A.172. Under the GMA, the Washington governor holds power to fine a county in violation of the GMA, but typically the only remedy for noncompliance is a GMHB order directing the county to amend its ordinances and plans to become compliant by a deadline date. The GMHB imposed the latter remedy with its July 31, 1998, order.
¶ 12 On December 7, 1998, Ferry County adopted more amendments to its comprehensive plan and critical areas ordinance. The 1998 version listed four ETS species in its designation of critical areas:
¶ 13 In response, Kevin Robinette, a DFW habitat biologist, sent a December 16, 1998 letter to Ferry County and others. Robinette wrote that Ferry County's amendments remained weak in several areas. He opined that the county's list of four ETS species was incomplete and omitted at least the bull trout. Based on the PHS list, DFW, through Robinette, recommended that Ferry County list twelve species, in its critical areas ordinance, as ETS:
¶ 14 The GMHB conducted a hearing to determine if Ferry County had complied with the GMA and its July 31, 1998, order. During the hearing, Ferry County agreed it rejected DFW's recommendations. The county contended:
155 Wash.2d at 828–29 n. 3, 123 P.3d 102.
¶ 15 On September 30, 1999, after the compliance hearing, the GMHB issued another noncompliance order. The GMHB found that the record again provided no evidence that Ferry County considered BAS in designating fish and wildlife habitat conservation areas and identification of priority habitats and species. According to the GMHB, the county provided no rationale for excluding species designated by DFW except...
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