Hamilton v. Pollution Control Hearings Bd., 50567-3-II

• Court: Court of Appeals of Washington
• Writing for the Court: Maxa, C.J.
• Citation: 426 P.3d 281
• Parties: Mike HAMILTON; Hamilton Corner I, LLC, Appellants, v. POLLUTION CONTROL HEARINGS BOARD; Washington State Department of Ecology; City of Napavine, Respondents.
• Docket Number: No. 50567-3-II,50567-3-II
• Decision Date: 05 September 2018

426 P.3d 281

Mike HAMILTON; Hamilton Corner I, LLC, Appellants,
v.
POLLUTION CONTROL HEARINGS BOARD; Washington State Department of Ecology; City of Napavine, Respondents.

No. 50567-3-II

Court of Appeals of Washington, Division 2.

Filed September 5, 2018

Benjamin D. Cushman, Deschutes Law Group, PLLC, 400 Union Ave. Se Ste. 200, Olympia, WA, 98501-2060 for Appellants

Alan Myles Reichman, Office of the Attorney General/Ecology Division, Po Box 40117, Olympia, WA, 98504-0117, Mark Colman Scheibmeir, Hillier Scheibmeir & Kelly PS, Po Box 939, Chehalis, WA, 98532-0939 for Respondents

PUBLISHED OPINION

Maxa, C.J.

¶ 1 This appeal arises out of the Department of Ecology’s (Ecology) approval in 2012 of the City of Napavine’s (the City) application to change the purpose and place of use of groundwater rights it had purchased from Betty Hamilton. Mike Hamilton, Betty’s¹ nephew, claims that he also has an ownership interest in the groundwater rights and that Ecology made errors in processing the application without accounting for his interest.

¶ 2 Hamilton learned of Ecology’s approval of the City’s application for the change of groundwater rights in 2015. He contacted Ecology and claimed that the application had mistakenly identified Betty as the sole owner of the groundwater rights and that those

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rights had been transferred erroneously to the City. Ecology sent Hamilton a letter dated February 5, 2016 noting that Hamilton had not protested the application despite public notice and had not appealed Ecology’s approval of the application. Therefore, Ecology stated that its decision to approve the application was final and would not be changed.

¶ 3 Hamilton filed a petition for review of Ecology’s February 2016 letter with the Pollution Control Hearings Board (the PCHB). The PCHB granted summary judgment in favor of Ecology, ruling that it lacked jurisdiction to hear Hamilton’s petition because the letter was not an appealable agency decision. Hamilton then filed a petition for judicial review of the PCHB’s summary judgment order with the superior court under RCW 34.05.570(3). He also asserted a claim under RCW 34.05.570(4)(b), asserting that Ecology failed to perform a legally required duty by not returning the City’s allegedly defective application for correction. The superior court affirmed the PCHB’s order and denied Hamilton’s RCW 34.05.570(4)(b) claim.

¶ 4 We hold that (1) the PCHB did not err in ruling that it lacked jurisdiction to hear Hamilton’s appeal because the February 2016 letter was not a reviewable agency decision under RCW 43.21B.110(1)(d), and (2) the superior court did not err in rejecting Hamilton’s RCW 34.05.570(4)(b) claim that RCW 90.03.270 required Ecology to return the City’s allegedly defective application because RCW 90.03.270 does not apply after an application is approved.

¶ 5 Accordingly, we affirm the PCHB’s summary judgment dismissal of Hamilton’s petition for review of the February 2016 letter and affirm the superior court’s dismissal of Hamilton’s RCW 34.05.570(4)(b) claim regarding Ecology’s decision not to return the City’s allegedly defective application for correction.

FACTS

¶ 6 In 1954, Ecology issued Certificate of Ground Water Right No. 1726 (GWC 1726) to Frank and Edith Hamilton. GWC 1726 authorized the use of groundwater from three wells on specified property for the purpose of irrigation, stock, and domestic supply. The quantity of groundwater used was limited to an amount actually beneficially used, not to exceed an annual quantity of 114 acre-feet of groundwater per year for the irrigation of 57 acres.²

¶ 7 GWC 1726 provided a legal description of the property to which the groundwater right was appurtenant and the place where the water was put to beneficial use. However, the construction of Interstate 5 bisected Frank and Edith Hamilton’s property. Hamilton claims that he and other heirs, operating as Hamilton Corner I LLC, ultimately inherited the property on the east side of I-5. Hamilton claims that Betty ultimately inherited the property on the west side of I-5.

¶ 8 In 2003, the City agreed to purchase GWC 1726 from Betty. Hamilton was not involved with that transaction.

Application for Change of Water Rights

¶ 9 In November 2004, the City filed applications for change/transfer of GWC 1726 with Ecology. The application sought to change the purpose of use to municipal and the place of use to the City’s urban growth area. The application also sought to change the point of withdrawal from wells on Betty’s property to wells on the City’s property. Betty signed the application as the water right holder and the owner of the existing place of use.

¶ 10 The City’s application included detailed records of the historical use of GWC 1726 on and around Betty’s property. These records did not show any ownership interest in or any use of GWC 1726 by Hamilton or Hamilton Corner I LLC.

426 P.3d 284

¶ 11 The City published notice of the change application for GWC 1726 in The Chronicle, a Lewis County newspaper, on December 14 and 21, 2007. The notice omitted the township and range of the legal description of the property to which GWC 1726 was proposed to be transferred. The notice also erroneously stated that 27 irrigated acres were the subject of the application rather than 57 acres.

¶ 12 Ecology received five letters from area citizens regarding the application. Hamilton did not submit any comments on the application.

¶ 13 Ecology determined that the City needed to conduct well testing to determine whether changing the location of use for GWC 1726 would impair other water rights in the area. As a result, in April 2008 Ecology issued a preliminary permit authorizing the City to drill a well and perform well testing with regard to GWC 1726. The preliminary permit allowed the City to withdraw water until 2011. In April 2010, the City’s engineering consultant notified Ecology that well testing was complete and transmitted the well testing results. In May 2011, Ecology sent the City a letter stating that the preliminary permit had expired and had been cancelled.

¶ 14 In March 2012, Ecology prepared a draft decision approving the City’s application, in the form of a Report of Examination (ROE). Ecology posted the draft ROE on its website for 30 days.

¶ 15 In April 2012, Ecology issued a final ROE approving the change of GWC 1726. The ROE authorized the City to use a maximum annual quantity of 105 acre-feet of groundwater per year for municipal water supply purposes. The ROE stated that the City had 30 days to appeal the order. No appeal of the application approval was filed.

Ecology’s February 2016 Letter

¶ 16 In November 2015, a paralegal from the Cushman Law Offices sent an email to Ecology on behalf of Hamilton. The email alleged that the application for a change of GWC 1726 mistakenly identified Betty as the sole owner of the water rights and that the resulting change had affected water rights that actually were held in common by Hamilton and Betty. But Hamilton did not file a petition for review of Ecology’s approval of the City’s application.

¶ 17 On February 5, 2016, Ecology sent a letter to the Cushman Law Offices explaining the process that Ecology had followed in investigating and approving the City’s application. The letter noted that public notice of the application had been provided as required in RCW 90.03.280, that the draft ROE had been posted on its website, and that a formal appeal could have been filed within 30 days after the final ROE was issued under chapter 43.21B RCW. The letter concluded:

When Ecology receives an application, we consider the information submitted by the applicant as being submitted in good faith. The consultant represented that Betty Hamilton and Napavine reached an agreement to purchase water rights. They also submitted information showing the water rights were in good standing. No conflicting information was presented to Ecology’s attention as a result of the public notice or the posting of the draft ROEs. No appeals were filed so Ecology’s decision is final and can no longer be appealed.

90.03.280 and RCW 43.21B provided your client opportunity to bring his concerns to our attention. Since he did not, Ecology’s decision stands. At this point, your client’s dispute is a civil matter between your client and Betty Hamilton.

AR at 6.

PCHB Petition for Review

¶ 18 Hamilton filed a petition for review of the February 2016 letter with the PCHB on March 4, 2016.

¶ 19 Before the PCHB, Ecology filed a summary judgment motion on the issue of jurisdiction. Ecology argued that the PCHB lacked jurisdiction over Hamilton’s appeal because, among other reasons, Hamilton sought review of a letter that was not an appealable agency decision. Hamilton filed a response, which included a cross-motion for summary judgment. He argued that the City’s application was defective because it contained numerous errors and that he had

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not received adequate notice as an alleged co-owner of the water rights at issue.

¶ 20 On July 21, 2016, the PCHB granted...