Merkel v. Port of Brownsville, 956--II
| Decision Date | 27 April 1973 |
| Docket Number | No. 956--II,956--II |
| Citation | 509 P.2d 390,8 Wn.App. 844 |
| Parties | John C. MERKEL, Kitsap County Prosecuting Attorney, and Slade Gorton, Washington State Attorney General, Petitioners, v. PORT OF BROWNSVILLE et al., and Robert J. Bryan, Judge of the Superior Court, in and for the County of Kitsap, State of Washington, Respondents. |
| Court | Washington Court of Appeals |
John C. Merkel, Pros. Atty. by W. Daniel Phillips, Deputy Pros. Atty., Port Orchard, for John C. Merkel.
Slade Gorton, Atty. Gen. by Charles B. Roe, Jr., Senior Asst. Atty. Gen., and Robert Jensen, Asst. Atty. Gen., Olympia, for Slade Gorton.
William R. Garland, Bremerton, for respondent.
This is an action instituted by petitioners to enjoin respondent, Port of Brownsville, from proceeding with certain actions preliminary to the redevelopment of a small boat marina along Burke Bay. The Attorney General of the State of Washington and the Prosecuting Attorney of Kitsap County seek review of the trial court's refusal to grant a preliminary injunction prohibiting the Port from cutting timber and clearing and grading the uplands portion of the project.
This case raises important issues under the State Environmental Policy Act of 1971 (SEPA) (RCW 43.21C), and the Shoreline Management Act of 1971 (SMA) (RCW 90.58). All parties agree that the provisions of these acts govern the disposition of this controversy, but do not agree to what degree they affect the present litigation.
The proposed project consists of constructing protected moorage facilities for recreational boats at Brownsville on Puget Sound. Brownsville is an unincorporated town on Burke Bay on the east side of the Kitsap Peninsula. In 1965 the Port of Brownsville contacted the Army Corps of Engineers and requested a survey report on the proposed marina expansion. After the survey was completed a detailed project report was prepared by the corps and finally approved in 1971. The comprehensive plan, with subsequent amendments, provides for the construction of a permanent breakwater, piers and floats which will more than double the present capacity, and for the installation of facilities for the sale and repair of boats, parking areas and other commercial services related to the project. The improvements encompass 12 1/2 acres along Burke Bay and 10 acres of adjacent uplands at the mouth of the Bay. At present this acreage is almost entirely undeveloped and remains heavily forested with Douglas fir trees.
Actual construction under the plan began with the cutting and clearing of timber in the upland portion of the property in September, 1972. After some 50 trees had been felled, petitioners commenced this action to enjoin any further activity by the Port until it had obtained substantial development permits as required by the SMA. Petitioners further alleged that the provisions of SEPA required that an environmental impact statement be filed because the project contemplated by the Port was a 'major action having a substantial impact upon the environment.'
On September 29, 1972, an ex parte restraining order was obtained by petitioners which temporarily restrained the Port from proceeding further with excavation or construction on any portion of the project. Hearing on the order was held on October 6, 1972. The order was continued because the trial court found the impact statement filed by the Port was deficient in that the Port had failed to consult with and obtain comments from local, state and federal agencies having jurisdiction over any portion of the proposed project. The court also found that the uplands development constituted a major action significantly affecting the quality of the environment.
The Port subsequently filed a revised statement. A hearing was held to determine its adequacy. The trial court again found that insufficient time have been given interested agencies to submit their comments to the Port, and continued the restraining order in effect. On December 21, 1972, the Port submitted the third version of its environmental impact statement. No challenge was made to the adequacy of that revised statement. The trial court modified the existing restraining order by limiting its application to the 200 feet 'wetlands' only, and by removing the upland portion of the project from further restraint. Thereupon, petitioners instituted this action for a writ of review and stay of proceedings. Pursuant to CAROA 57(f)(4)(i) we granted the writ of certiorari and temporarily stayed the order of the trial court to the extent that it had dissolved the restraint in the area more than 200 feet inland from the level of ordinary high water.
Broadly stated, the central issue in this case is whether or not the development contemplated by the Port, which is admittedly governed by the provisions of SEPA and SMA, is so interrelated and interdependent that no part of the project can proceed until all provisions of these acts have been fully complied with. Resolution of the issue necessitates an examination of these acts in some detail, as well as their application to the facts of the instant case.
The declared purpose of SEPA is to encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment; to stimulate the health and welfare of man; and to enrich the understanding of the ecological systems and natural resources important to the state and nation. RCW 43.21C.010. To achieve these goals, the act requires all state and local agencies, in performing their respective functions, to be cognizant of and responsive to possible environmental consequences in their actions. The act makes it the continuing responsibility of these agencies 'to use all practicable means and measures,' to carry out the policy of restoring and maintaining a quality environment. See RCW 43.21C.020. To assure that the substantive provisions of the act receive the attention they deserve, RCW 43.21C.030 prescribes certain procedural measures calculated to effectuate this policy. All branches of government in this state are required to:
(a) Utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision making which may have an impact on man's environment;
(b) Identify and develop methods and procedures, in consulation with the department of ecology and the ecological commission, which will insure that presently unquantified environmental amenities and values will be given appropriate consideration in decision making along with economic and technical considerations; . . .
RCW 43.21C.030(2)(a), (b).
SEPA further requires these agencies to include an environmental impact statement within any proposal for a major activity which significantly affects the environment. The detailed statement must contain the environmental impact of the proposed action, any adverse effects by reason of such action, and any alternatives to the proposed action. RCW 43.21C.030(2)(c).
It is clear that the provisions of SEPA are innovative and place new and unusual responsibilities on governmental agencies. Environmental protection has become a mandate to every agency entrusted with its care. Stempel v. Dept. of Water Resources, 82 Wash.2d 109, 508 P.2d 166 (1973). The statutory scheme contemplates that the goals of SEPA are realized by requiring these agencies to assess environmental and by compelling these agencies to follow SEPA procedures prior to initiating major activity. The court's function, minimally, is to insure that these procedures are followed. Greene County Planning Board v. Federal Power Commn., 455 F.2d 412 (2d Cir. 1972); Calvert Cliffs' Coordinating Commn., v. United States Atomic Energy Commn., 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971).
90.58), though dealing with a limited area of the environment, is as vigorous as SEPA in declaring a policy aimed at the preservation of our natural resources. 'Shorelines', as that term applies to this case, includes those 'wetlands' extending landward for 200 feet in all directions as measured on a horizontal plane from the ordinary high water mark. RCW 90.58.030(2)(f).
This act is an acknowledgement that 'the shorelines of the state are among the most valuable and fragile of its natural resources'; that unrestricted construction upon them is not in the best public interest; and, therefore, there...
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