Hillis v. State, Dept. of Ecology
| Decision Date | 06 March 1997 |
| Docket Number | No. 63399-1,63399-1 |
| Citation | 932 P.2d 139,131 Wn.2d 373 |
| Court | Washington Supreme Court |
| Parties | Larry HILLIS and Veralene Hillis, husband and wife, Respondents, v. STATE of Washington, DEPARTMENT OF ECOLOGY; Mary Riveland, Director of the Department of Ecology; and Pat Spurgin, Central Regional Director of the Department of Ecology, Appellants. |
Cairncross & Hempelmann, P.S., Terrance I. Danysh, Patrick D. Brown, Seattle, amicus curiae on behalf of Coordinated Appellate Group.
Christine Gregoire, Attorney General, Jay J. Manning, Asst., Mark C. Jobson, Asst., Olympia, for Appellants.
Lathrop, Winbauer, Harrel & Slothower, F. Steven Lathrop, Ellensburg, for respondents.
The Washington State Department of Ecology asks this Court to reverse a trial court order which orders it to immediately investigate the plaintiffs' applications to appropriate public groundwater. Ecology also challenges the order because it effectively forbids Ecology from conducting assessments of the state's watersheds and because it invalidates certain policy and priority decisions made by that agency. We reverse the order in part and affirm it in part.
Larry and Veralene Hillis (Hillis) plan to build a residential development on 97 acres of land in Kittitas County. The initial subdivision application was approved by the county on the condition that Hillis install a "Group A" water system which requires a groundwater withdrawal permit from the Department of Ecology (Ecology). In 1992, Hillis filed nine applications for water rights. Because of Ecology's delay in processing the applications, the Kittitas County Board of Commissioners allowed Hillis to use two "Group B" 1 community water systems for the first phase of the development until the water right for a Group A system could be obtained. A water right permit is not required for withdrawal of public water in an amount not exceeding 5,000 gallons per day for single or group domestic uses or other specific purposes. RCW 90.44.050. However, the record reflects that the Hillis applications for water seek far in excess of that amount. Hillis still wishes to provide water to the entire development using a Group A water permit.
In October 1994, Hillis sought a writ of mandamus from the superior court asking the court to order Ecology to conduct an investigation and decide whether to issue the water permits. Hillis argued that Ecology had a statutory duty under the water code, RCW 90.03, to conduct investigations on applications for the appropriation of public waters and that it had failed to fulfill that duty in a timely manner.
Ecology replied that the central regional office of the Water Resources Program of the Department of Ecology had over 2,000 pending applications for water rights in that region and that 1,178 of those applications had been filed before the Hillis applications. Statewide, there are about 5,000 applications filed asking for the appropriation of public water. Ecology showed that the 1993 Legislature had cut the budget of the water permitting program by 63 percent and that Ecology had therefore been forced to drastically reduce the number of water permitting staff. Ecology submitted evidence about the complex geohydrologic conditions which exist in the Kittitas Valley and the high degree of prior appropriation of the surface and groundwater in the Yakima River drainage basin. Ecology also presented evidence that many protests had been filed opposing the Hillis applications on the grounds that the Hillis's proposed use of water could have negative impacts on local wells used for domestic water.
The trial court found that, historically, Ecology had processed groundwater right applications generally in the order in which they were received. (This finding of fact is challenged on appeal.) The court found that in the last several years Ecology has faced problems of an increased volume of water right applications, insufficient staff to process the applications, and other factors which caused a tremendous backlog. These factors include a growing recognition of the connection between groundwater and surface water, 10 years of drought conditions, and population growth accentuating the demand for services. The court found that in response to increased demands, Ecology started processing groundwater applications in "batches" grouped together in geographic areas to allow it to conduct one investigation, make one determination of water availability, and then to make a series of permit decisions based on that investigation.
The trial court found that in 1994, when the Legislature's mandated budget cuts became effective, Ecology's water right application backlog worsened to 2,000 applications in the central region with the Hillis applications in the approximate middle of that backlog. The court found that Ecology reassessed its ability to deliver services to fulfill its duties after the budget cuts and directed the water resource program to process water right applications by water basin under set priority criteria. Ecology ranked the state's 62 watersheds 2 in order of priority for conducting the watershed assessments. The court found that Ecology will not process or investigate any nonemergency applications in any watershed until a basin assessment is completed, or unless it believes there is sufficient groundwater in an area or there are a number of applications pending within the same hydrogeologic area.
Ecology also set criteria to determine priorities for processing of applications. The Kittitas County Commissioners (at the urging of Hillis) declared a groundwater emergency and requested Ecology to process all applications in that county. Ecology has not acted on that request. The court found that, based on existing funding levels and the priorities for basin assessments, the Hillis applications will not be investigated for another five years, which will be eight years from the date of application. The trial court also found that Ecology had not followed the rule-making process of the Administrative Procedure Act as it pertains to Ecology's duty to investigate pursuant to RCW 90.03.290.
The trial court issued a "writ of mandamus." 3 The writ (1) orders Ecology to "immediately investigate" all of the Hillis's pending water applications and approve or deny them, (2) orders Ecology to consider hydrogeologic information supplied by Hillis, (3) orders Ecology not to undertake any watershed or basin assessments in advance of the investigation and timely processing of all pending groundwater applications, and (4) invalidates all of Ecology's priorities regarding pending applications, the decision to conduct watershed assessments, and the order of conducting those assessments. The writ also denies the Hillis's request for attorney fees.
We granted direct review. Ecology argues that the trial court's order violates the rights of senior water right applicants, intrudes on the funding decisions of the Legislature, and interferes with the administrative discretion of Ecology to implement the water resource statutes. Ecology also assigns error to the trial court's finding of fact 1.4 that Ecology historically processed groundwater applications based on the application date. Ecology also assigns error to the trial court's ruling that certain of its administrative actions constituted "rules" which should have been enacted by rule making in accord with the Administrative Procedure Act, RCW 34.05. Hillis cross appeals, arguing the trial court should have awarded attorney fees.
1. Did the trial court err in ordering Ecology to immediately decide the Hillis applications?
2. Did the trial court err in ordering Ecology not to conduct watershed assessments until all pending water permit applications were decided?
3. Does the record support the trial court's finding that Ecology historically processed applications generally in the order in which they were filed?
4. Did the trial court err in invalidating certain of Ecology's decisions because the agency did not engage in rule-making procedures?
5. Did the trial court err in refusing to award attorney fees to Hillis?
With some limited exceptions not relevant here, the Administrative Procedure Act (APA) provides the exclusive means of judicial review of agency action. RCW 34.05.510; Neah Bay Chamber of Commerce v. Department of Fisheries, 119 Wash.2d 464, 468, 832 P.2d 1310 (1992). The standard of review used to decide if an agency action or inaction is valid is prescribed by the act. RCW 34.05.570(1)(b); Neah Bay, 119 Wash.2d at 468, 832 P.2d 1310. The burden of demonstrating the invalidity of agency action is on the party asserting invalidity. RCW 34.05.570(1)(a). Hillis, therefore, bears this burden.
The APA sets out somewhat different standards for judicial review depending on whether the agency action being reviewed pertains to (1) rules, (2) adjudicative proceeding, or (3) other agency action, including inaction. Agency inaction (such as Ecology's failure to act on the Hillis applications) is judicially reviewed by a petition filed pursuant to RCW 34.05.570(4)(b). Judicial review of rules (such as Hillis's contention that the directives of Ecology amount to rules which must comply with rule-making procedures) is governed by RCW 34.05.570(2). The relevant standards of review are discussed below in the relevant discussions regarding each part of the trial court's order.
Issue One: Did the trial court err in ordering Ecology to immediately decide the Hillis applications?
The trial court ordered Ecology to "immediately investigate and completely process in a timely fashion all of [Hillis's] nine ... applications and render a decision either approving or denying each such application." 4
The APA provides:
A person whose rights are violated by an agency's failure to perform a duty that is required by law to be performed may file a ...
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