Hama Hama Co. v. Shorelines Hearings Bd.

Decision Date05 June 1975
Docket NumberNo. 43357,43357
Citation85 Wn.2d 441,536 P.2d 157
PartiesThe HAMA HAMA COMPANY, Respondent, v. SHORELINES HEARINGS BOARD of the State of Washington et al., Appellants.
CourtWashington Supreme Court

Slade Gorton, Atty. Gen., Charles B. Roe, Jr., Sr., Asst. Atty. Gen., Robert V. Jensen, Asst. Atty. Gen., Olympia, for appellants.

Graham, McCord, Dunn, Moen, Johnston & Rosenquist, W. H. Jaynes, Jr., Clemans H. Barnes, William V. Vetter, Seattle, for respondent.

FINLEY, Associate Justice.

This is a statutory interpretation case. It involves provisions of the Shorelines Management Act (SMA) relating to standing and time limits for appellate review of the granting of a substantial development permit to Hama Hama Co. by Mason County. The granting of the permit was appealed to the Shorelines Hearings Board by the Department of Ecology and the Attorney General. The Board denied motions made by Hama Hama Co. to dismiss the appeal. Thereafter, the superior court for Thurston County issued a writ of certiorari and, subsequently, entered an order directing the Board to dismiss the appeal because (1) the Attorney General lacked standing to appeal, and (2) the Department of Ecology's appeal was untimely. The Attorney General and the Department of Ecology have appealed.

The pertinent facts are as follows: On October 15, 1973, Mason County granted a substantial development permit to the Hama Hama Co. to construct a pier on Hood Canal. The Department of Ecology received a copy of the permit on October 19, 1973. In response, the Department of Ecology and the Attorney General filed a 'Request for Review' with the Shorelines Hearings Board (hereinafter SHB) on November 29, 1973. A copy of this request was in the possession of Mason County officials on December 3, 1973. At the time of issuance of the substantial development permit, Mason County had Not yet adopted a local master program, which is to serve as a guideline for the issuance of such permits.

Several assignments of error and counterarguments have been made, but they involve essentially three issues: (1) whether the Attorney General is a party to the appeal to this court; (2) whether the Attorney General or only the Department of Ecology has standing to appeal to the Shorelines Hearings Board from a decision of a local authority granting a substantial development permit, and what is the time limit as to the Department of Ecology and/or the Attorney General for perfecting such an appeal; and (3) what is the commencement date of the period for appealing to the SHB?

I Parties To This Appeal

Respondent Hama Hama argues that the Attorney General is not a party to this appeal because he did not file a notice of appeal as required by ROA I--33(2) and CAROA 33(2). Hama Hama contends that only the Department of Ecology filed a notice of appeal and that it was never amended to include the Attorney General. We do not so construe the notice of appeal. It is true that in the body of the notice of appeal, reference is made only to the Department of Ecology appealing from the decision of the superior court. However, in the caption in the notice of appeal and in appellants' opening brief to this court, both the Department of Ecology and the Attorney General are referred to as intervenors. Moreover, the signature block on the notice of appeal recited the names of the Attorney General and two Assistant Attorneys General. One of these assistants--the Senior Assistant Attorney General--signed the notice of appeal On behalf of the intervenors which, of course, includes the Attorney General. While this particular notice of appeal is perhaps not a model of clarity, we think that it was sufficient to notify Hama Hama that both the Department of Ecology and the Attorney General were appealing the decision of the superior court. Thus, we hold that the Attorney General is properly a party to this appeal.

II Standing And Time Limit To Appeal To SHB

The SMA inexplicably contains two distinct and conflicting provisions with respect to appeals from a decision of a local authority which grants a substantial development permit. On the one hand, RCW 90.58.140(2)(a) 1 appears to grant only the Department of Ecology standing to take such an appeal to the SHB and the appeal must be taken within 30 days. On the other hand, RCW 90.58.180(2) 2 grants Both the Department of Ecology and the Attorney General standing to appeal to the SHB, and the time limit is 45 days from the filing of the final order granting the substantial development permit. Thus, we are squarely faced with the difficult task of construing Quite ambiguous and conflicting statutory language. In this regard, our paramount duty is to ascertain and give expression to the intent of the legislature.

Respondent Hama Hama argues that these statutory provisions are reconcilable because RCW 90.58.140(2) was intended to apply to permits issued Prior to adoption of a local master program, whereas RCW 90.58.180(2) was intended to apply to appeals of permits issued Subsequent to adoption of a local master program. In short, the construction offered by Hama Hama is that prior to adoption of a local master program, only the Department of Ecology has standing to appeal and the time limit is 30 days; but, subsequent to the adoption of a local master program, both the Department of Ecology and the Attorney General have standing to appeal the issuance of a substantial development permit and the time limit is 45 days. In support of this theory, Hama Hama cites the rule that each clause and sentence of a statute should be given effect if possible. It is then argued that only the construction posited by Hama Hama is compatible with this rule because if RCW 90.58.180(2) is held applicable to appeals of permits issued Prior to adoption of a local master program--as the State argues--then RCW 90.58.140(2)(a) will be rendered nugatory.

However, after examining the statute as a whole, we have concluded that the interpretation that most likely reflects the actual intent of the legislature is that RCW 90.58.180 should control the appeal of the issuance of a substantial development permit, whether the permit was issued prior or subsequent to adoption of a local master program. Thus, both the Department of Ecology and the Attorney General have standing to appeal the issuance of such a permit, and the time limit for perfecting the appeal is 45 days from the filing of the order granting the permit. Several factors have convinced us of the propriety of this interpretation.

First, respondent's thesis that effect should be given to all parts of a statute is simply one of many, sometimes useful, but not inevitably controlling 'extrinsic aids' or principles of statutory interpretation. Oftentimes, as in this case, this principle of statutory construction operates inconsistently with itself, and applying it positively but blindly actually produces inconsistent results. Thus, if respondent's thesis is accepted at face value and without considering all implications, RCW 90.58.140(2)(a) would be controlling regarding appeals of permits issued prior to adoption of a master plan. But, it is also true, and inconsistently so, that respondent's thesis would give no effect to RCW 90.58.180(2) regarding appeals as to permits issued prior to the adoption of a master plan. Thus, it becomes obvious that respondent's argument produces inconsistent results and loses its superficial lustre because, if applied blindly, it would also render certain statutory language nugatory in this case.

Second, the Shorelines Management Act itself mandates that it be 'Liberally construed to give full effect to the objectives and purposes for which it was enacted.' RCW 90.58.900. (Italics ours.) The overriding purpose for which the SMA was enacted was to preserve the natural resources of the State and to regulate construction upon the shorelines in accordance with the public interest. See RCW 90.58.010--020. It seems well-nigh irrefutable that these goals and purposes can be effectuated best by giving an expansive rather than a restrictive reading to the appeals provisions of the SMA. If there is inadequate time to review the issuance of a permit and to file an appeal, the policies of the SMA might very well be thwarted. Thus, we believe that the 45-day period to appeal specified in RCW 90.58.180(2) should control over the 30-day appeal period in RCW 90.58.140(2)(a). Similarly, it seems manifest that the policies of the SMA can be effectuated best if the Attorney General--and not solely the Department of Ecology--has standing to appeal. After all, the Attorney General is entrusted with a responsibility of larger dimension than is the Department of Ecology. Moreover, the Attorney General is the public counsel for the State, and since the office is elective, it is the most responsive to the electorate. Thus, by virtue of the mandate of the SMA that it be liberally interpreted to effectuate its policies, we think it most likely that the legislature intended for RCW 90.58.180(2) to accord the Attorney General standing to appeal the issuance of a substantial development permit whether before or after adoption of a master program.

Third, this interpretation is supported by the familiar rule of construction that where there is a conflict between one statutory provision which deals with a subject in a general way and another provision which deals with the same subject in a specific manner, the latter will prevail. Knowles v. Holly, 82 Wash.2d 694, 513 P.2d 18 (1973); State ex rel. Phillips v. State Liquor Control Board, 59 Wash.2d 565, 369 P.2d 844 (1962). Even a perfunctory analysis of RCW 90.58.140 clearly discloses that it essentially deals with the Issuance of permits. The grant of standing to the Department of Ecology and the 30-day time limit to appeal is only incidentally mentioned. In contrast, RCW 90.58.180 is essentially dedicated to prescribing...

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