Northwest v. Okanogan Cnty.
| Decision Date | 16 June 2016 |
| Docket Number | No. 33194-6-III,33194-6-III |
| Court | Washington Court of Appeals |
| Parties | CONSERVATION NORTHWEST; and METHOW VALLEY CITIZENS COUNCIL, Appellants, v. OKANOGAN COUNTY, Respondent. |
FEARING, C.J. — This appeal asks the question, among others, of whether Okanogan County sufficiently completed an environmental checklist, under the State Environmental Protection Act (SEPA), chapter 43.21C RCW, when adopting an ordinance permitting all-terrain vehicles (ATV) traffic on county roads in segments with a speed limit of 35 m.p.h. or less. Our task is to apply the law rather than to choose a side between ATV riding enthusiasts and environmental groups. In a painfully long opinion necessitated by extended facts, a lengthy procedural background, and numerous legal issues, we hold that, under SEPA rules, Okanogan County failed to satisfactorily prepare the environmental checklist. We respect the recreational value of ATVs and note that Okanogan County may still enact an ATV ordinance, but must complete a thorough environmental checklist.
We first introduce the parties. Defendant Okanogan County, located in north central Washington, is the largest Washington county and the fifty-fourth largest United States county by area. Okanogan County borders British Columbia to the north, the Columbia River to the south, Ferry County to the east, and the Cascade Mountains to the west.
Only thirty percent of the land within Okanogan County lies in private ownership due to state and federal land proprietorship. A portion of the Colville Indian Reservation sits in the southeast corner of the county.
The geographic features of Okanogan County include the Cascade Mountains, the Columbia River, the Okanogan River, and the Methow Valley. The Methow Valley serves as a destination for outdoor enthusiasts and offers hundreds of square miles of cross-country ski trails, snowmobile parks, mountain biking trails, and opportunities for snowshoeing, fishing, camping, and hiking.
Plaintiff Conservation Northwest (CNW) is a nonprofit conservation organization with offices and members in Okanogan County. Plaintiff Methow Valley CitizensCouncil (MVCC) is a private nonprofit membership organization, established in 1977 to preserve the wildlife, waters, and farmland of the Methow Valley. Both CNW and MVCC members visit lands within Okanogan County for aesthetic enjoyment of nature. The two environmental organizations rely on the same data and forward the same legal arguments in this appeal.
Melanie Rowland signed a declaration on behalf of Methow Valley Citizens Council. Rowland, a MVCC board member and MVCC attorney, resides in Twisp. She explores state wildlife and forest lands and federal lands in Okanogan County for hiking, photography, bird and wildlife watching, and the study of native plants and trees.
George Wooten signed a declaration on behalf of Conservation Northwest and Methow Valley Citizens Council. Wooten, also a resident of Twisp, is a staff member of CNW and a member of MVCC. Wooten is a botanist who contracts with agencies and individuals for fuel mapping, plant and animal surveys, and wetland delineation. He also teaches biology classes, including botany, at Wenatchee Valley College North in Okanogan. Wooten visits conservation trust lands, state wildlife lands, state forest lands, and federal lands and roads in Okanogan County for the activities of hiking, photography, and observing birds, wildflowers, and native trees and plants.
Our statement of facts now moves to a recitation of recent law. On July 3, 2013, Washington Governor Jay Inslee signed into law Engrossed Substitute House Bill (ESHB) 1632, an act regulating the use of off-road vehicles (ORVs) in Washington.LAWS OF 2013, 2d Spec. Sess., ch. 23, at 2865. In enacting ESHB 1632, the legislature found:
that off-road vehicle users have been overwhelmed with varied confusing rules, regulations, and ordinances from federal, state, county, and city land managers throughout the state to the extent standardization statewide is needed to maintain public safety and good order.
LAWS OF 2013, 2d Spec. Sess., ch. 23, § 1(1). Through ESHB 1632, the Washington legislature sought to:
(a) Increase opportunities for safe, legal, and environmentally acceptable motorized recreation; (b) decrease the amount of unlawful or environmentally harmful motorized recreation; (c) generate funds for use in maintenance, signage, education, and enforcement of motorized recreation opportunities; (d) advance a culture of self-policing and abuse intolerance among motorized recreationists; (e) cause no change in the policies of any governmental agency with respect to public land; (f) not change any current ORV usage routes as authorized in chapter 213, Laws of 2005; (g) stimulate rural economies by opening certain roadways to use by motorized recreationists which will in turn stimulate economic activity through expenditures on gasoline, lodging, food and drink, and other entertainment purposes; and (h) require all wheeled all-terrain vehicles to obtain a metal tag.
LAWS OF 2013, 2d Spec. Sess., ch. 23, § 1(2).
Section 6 of ESHB 1632 opened state highways, with a speed limit of thirty-five miles per hour or less, to the operation of wheeled all-terrain vehicles (WATVs). LAWS OF 2013, 2d Spec. Sess., ch. 23, § 6; codified at RCW 46.09.455(1). Section 6 of the enactment also granted counties with a population of fifteen thousand or more the authority to open county public roadways for WATV use. Codified at RCW46.09.455(1)(c)(i). RCW 46.09.455 now reads, in pertinent part:
ESHB 1632 took effect on July 28, 2013. FINAL B. REP. ON ENGROSSED SUBSTITUTE H.B. 1632, at 6, 63d Leg., 2d Spec. Sess. (Wash. 2013).
No Washington statute expressly defines "all-terrain vehicle." Nevertheless, ESHB 1632 introduced and defined the term "wheeled all-terrain vehicle" or "WATV." RCW 46.09.310(19) now declares:
"Wheeled all-terrain vehicle" means (a) any motorized nonhighway vehicle with handlebars that is fifty inches or less in width, has a seat height of at least twenty inches, weighs less than one thousand five hundred pounds, and has four tires having a diameter of thirty inches or less, or (b) a utility-type vehicle designed for and capable of travel over designated roads that travels on four or more low-pressure tires of twenty psi or less, has a maximum width less than seventy-four inches, has a maximum weight less than two thousand pounds, has a wheelbase of one hundred ten inches or less, and satisfies at least one of the following: (i) Has a minimum width of fifty inches; (ii) has a minimum weight of at least nine hundred pounds; or (iii) has a wheelbase of over sixty-one inches.
On July 29, 2013, the day after implementation of ESHB 1632, the Okanogan County Board of County Commissioners adopted Ordinance 2013-10, which decreed that "all [county] public roadways and rights of way, or sections thereof, having a speed limit of 35 mph or less are approved and opened for the operation of wheeled all-terrain vehicles." CP at 195. At the time, Okanogan County managed 1,266 miles of roads within its borders, 335.73 miles of which ATVs could already use. Before enacting Ordinance 2013-10, the county did not conduct an environmental review under the SEPA.
On August 14, 2013, Conservation Northwest and the Methow Valley Citizens Council sued Okanogan County for declaratory and injunctive relief. The suit challengedthe validity of Ordinance 2013-10 in part because of the failure of Okanogan County to perform an environmental review. After CNW and MVCC moved for summary judgment, the county, on March 4, 2014, repealed Ordinance 2013-10, by adopting Ordinance 2014-3. The repealing ordinance mistakenly refers to the 2013 ordinance as Ordinance 2013-9, not 2013-10.
In April 2014, Okanogan County prepared a new ordinance, Ordinance 2014-7, which proposed to open 597.23 miles of county roads, including 165.03 miles of paved roads, for ATV use. On April 9, 2014, the county's SEPA responsible official, Director of the Office of Planning and Development Perry Huston, prepared a SEPA environmental checklist for the proposed ordinance. Environmental checklists assist government agencies in determining, before adoption of a proposal, whether the proposal will accrue "probable significant adverse impacts on the quality of the environment," thus necessitating an...
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