Orion Corp. v. State
| Decision Date | 11 January 1985 |
| Docket Number | No. 49941-1,49941-1 |
| Citation | 103 Wn.2d 441,693 P.2d 1369 |
| Parties | , 22 ERC 1057 The ORION CORPORATION, a Washington Corporation, Respondent, v. STATE of Washington, Ken Eikenberry, in his capacity as Attorney General for the State of Washington; the Department of Ecology, Donald W. Moos, in his capacity as Director of the Department of Ecology; Department of Game; Frank R. Lockard, in his capacity as Director of the Department of Game; Milt Martin, in his capacity as Manager of the Padilla Bay Estuarine Sanctuary Project; Department of Fisheries; Rolland A. Schmitten, in his capacity as Director of the Department of Fisheries; Skagit County; Skagit County Board of Commissioners: Jerry Mansfield, Bud Norris and Howard Miller, in their capacities as County Commissioners for Skagit County, Petitioners. |
| Court | Washington Supreme Court |
Ken Eikenberry, Atty. Gen., Wick Dufford, Asst. Atty. Gen., Charles B. Roe, Jr., Senior Asst. Atty. Gen., Dept. of Ecology, Olympia, for the State.
Keller, Rohrback, Waldo, Hiscock, Butterworth & Fardal, William C. Smart, Henry Elsen, Seattle, C. Thomas Moser, Skagit County Prosecutor, John R. Moffat, Deputy Pros. Atty., Mount Vernon, for Skagit County.
Padilla Bay lies east of Anacortes, Washington. It is an area of approximately 11,000 acres.
The uncontroverted record discloses fascinating details about this tidal land. The bay contains probably the largest and least disturbed stand of eelgrass on the West Coast of the United States with 73 percent of the bay covered by eelgrass beds. It supports the largest known wintering population of peregrine falcons in North America. Bald eagles winter in the area. Raptores are uniquely abundant. Merlin and snowy owls are frequently seen. Approximately 50,000 ducks of 26 species winter there. Over 200 species of birds have been observed, making Padilla Bay one of the most diverse areas for bird life in the state.
Its spring population of brants is the largest on the West Coast of the United States. The bay is the most important spring staging area for the Pacific flyway. The bay is critical because it is here that the brant build premigratory fat reserves before departing on their nonstop flight to Alaska. If Padilla Bay and the rich eelgrass beds it supports were It is an important spawning ground for a variety of fish, including herring, flatfish, various bait fish and salmonids. Harbor seals sport in the bay. Herons feed throughout the bay. The bay is also a nursery for dungeness crabs which are fished commercially.
not available, the Pacific flyway population of brant would be greatly impacted.
In short, the Padilla Bay estuary is recognized as the most diverse, least disturbed, and most biologically productive of all the major estuaries on Puget Sound. In view of the foregoing, it is not surprising that when the state enacted the Shoreline Management Act of 1971, RCW 90.58.010 et seq., the Legislature specifically classified Padilla Bay as one of five shorelines of statewide significance. See RCW 90.58.030(2)(e)(ii)(E).
Eighty percent of the tidelands of Padilla Bay are under the private control of the plaintiff The Orion Corporation (hereinafter Orion). Unfortunately, Orion's plans for their holdings conflicted with the state's plans for Padilla Bay. That conflict led to this lawsuit and appeal.
In 1982, Orion sued the State, a number of state officials, Skagit County and its county commissioners. Plaintiff alleged five causes of action: (1) inverse condemnation; (2) an arbitrary and unreasonable interference with plaintiff's use of property violative of due process; (3) denial of equal protection by imposition of restrictions more burdensome than those upon others similarly situated; (4) a breach of obligation contained in a deed from the state; and (5) a 42 U.S.C. § 1983 violation. Plaintiff also sought attorney's fees under 42 U.S.C. § 1988 and RCW 8.25.075.
The defendants moved for summary judgment, arguing principally that Orion had failed to exhaust available administrative remedies. The trial court denied the defendants' motion, holding that Orion had proven conclusively, by uncontroverted facts, that pursuing the available administrative procedures would be futile and impractical. We granted discretionary review and affirm.
The dispositive issue is whether the plaintiff must first exhaust the available administrative remedies before instituting this action. 1 To decide that issue a rather lengthy factual analysis, drawn from the comprehensive record compiled by Orion, is necessary.
The regulatory process that currently affects Orion's Padilla Bay holdings is complex. The following programs impact any development plans for Padilla Bay:
--Padilla Bay Estuarine Sanctuary
--Coastal Zone Management Act of 1972 (16 U.S.C. § 1461)
-- Shoreline Management Act of 1971 (RCW 90.58)
--Skagit County Shoreline Management Master Program
--Washington State Coastal Zone Management Program.
This list is not exclusive. Pertinent sections of the various programs and the history of this case are summarized below.
In the 1960's Orion began acquiring the second class tidelands in Padilla Bay. Padilla Bay is composed of such tidelands. Ultimately, Orion acquired approximately 5,600 acres in fee and held options on an additional 3,500 acres. Thus, it owned or held options on 80 percent of Padilla Bay. At the time of the initial acquisition, these tidelands were not zoned.
Orion acquired this property with a plan to establish a residential Venetian style community, estimated to ultimately have a population of 30,000, with supporting retail, commercial and recreational facilities. Orion completed detailed concept planning and engineering studies to check physical development feasibility. Orion's detailed plans called for a combined dredge and fill operation to create the Before Orion could proceed with its development plans the state enacted the Shoreline Management Act of 1971, Laws of 1971, 1st Ex.Sess., ch. 286, § 1, p. 1496, codified at RCW 90.58.010 et seq. (hereinafter SMA). The SMA mandated that local governments develop master programs for shorelines within their jurisdictions. These programs were subject to Department of Ecology (hereinafter Ecology) approval and, once approved, were to become the regulations for state shorelines. The act authorized Ecology to develop guidelines to serve as interim regulations. Ecology's guidelines were also designed to guide the formation of each local master program. RCW 90.58.050-. 100.
community. Needless to say, such an enterprise would have significantly altered the environmental character of Padilla Bay
The Legislature delineated use preferences to guide the formation of both Ecology guidelines and local master programs. Of particular importance are the legislative declarations for shorelines of statewide significance.
The legislature declares that the interest of all of the people shall be paramount in the management of shorelines of state-wide significance. The department, in adopting guidelines for shorelines of state-wide significance, and local government, in developing master programs for shorelines of state-wide significance, shall give preference to uses in the following order of preference which:
(1) Recognize and protect the state-wide interest over local interest;
(2) Preserve the natural character of the shoreline;
(3) Result in long term over short term benefit;
(4) Protect the resources and ecology of the shoreline;
(5) Increase public access to publicly owned areas of the shorelines;
(6) Increase recreational opportunities for the public in the shoreline;
(7) Provide for any other element as defined in RCW 90.58.100 deemed appropriate or necessary.
(Italics ours.) RCW 90.58.020.
Padilla Bay, as a shoreline of statewide significance, is Ecology's development guidelines/interim regulations applicable to shorelines of statewide significance state:
subject to these seven use preferences. As will become evident, the State has made a policy choice for Padilla Bay that accords with the italicized use preferences: to recognize and protect the statewide interest, preserve the natural character of the bay, and protect its resources and ecology
Because these shorelines are major resources from which all people in the state derive benefit, the guidelines and master programs must give preference to uses which favor public and long-range goals.
WAC 173-16-040(5). The section further provides that areas containing unique or fragile natural resources should be left undeveloped. See WAC 173-16-040(5)(d)(i). General development guidelines for estuaries state:
An estuarine area left untouched by man is rare since historically they have been the sites for major cities and port developments. Because of their importance in the food production chain and their natural beauty, the limited estuarial areas require careful attention in the planning function. Close scrutiny should be given to all plans for development in estuaries which reduce the area of the estuary and interfere with water flow.
(Italics ours.) WAC 173-16-050(5).
Orion abandoned its Venetian style development plans without submitting a permit application. Orion believed these plans were precluded by the passage of the SMA in 1971. Statements by state, county and federal officials supported that belief. In 1973, the then director of the Skagit County planning department, testified that development of Orion's property would be impossible at that time as the SMA would prevent any development. In 1974, the Department of Game opposed the renewal of a private individual's permit to remove sand and gravel from the bed of Padilla Bay. A department official noted that with passage of the environmental acts and the classification of Padilla Bay as a shoreline of statewide significance, it was doubtful that the individual's development plans would be carried out. The official...
To continue reading
Request your trial
-
Washington State Physicians Ins. Exchange & Ass'n v. Fisons Corp.
...Abuse 484-91 (1989).79 ER 702; Comment, ER 704; 5A K. Tegland, Wash.Prac., Evidence § 309, at 479 (3d ed. 1989); Orion Corp. v. State, 103 Wash.2d 441, 461, 693 P.2d 1369 (1985); Hiskey v. Seattle, 44 Wash.App. 110, 113, 720 P.2d 867, review denied, 107 Wash.2d 1001 (1986).80 Report of Proc......
-
Guimont v. Clarke
... ... Chuck CLARKE, Director of the Department of Community ... Development of the State of Washington, Appellant, ... WASHINGTON MANUFACTURED HOUSING ASSOCIATION, a Washington ... 14, 787 P.2d 320 (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435-40, 102 S.Ct. 3164, 3175-78, 73 L.Ed.2d 868 (1982) (holding that law requiring ... 264, 294-96, 101 S.Ct. 2352, 2370-71, 69 L.Ed.2d 1 (1981)); Orion Corp. v. State, 109 Wash.2d 621, 656, 747 P.2d 1062 (1987) (Orion II ), cert. denied, 486 U.S ... ...
-
State v. Quigg
...abuse of discretion. Oliver v. Pacific Northwest Bell Tel. Co., 106 Wash.2d 675, 683, 724 P.2d 1003 (1986); Orion Corp. v. State, 103 Wash.2d 441, 462, 693 P.2d 1369 (1985); State v. Swagerty, 60 Wash.App. 830, 836, 810 P.2d 1 Ms. Cyr's qualifications were established at the outset of her t......
-
Orion Corp. v. State
...the WSCZMP made the state eligible for federal grants, it did not impose any new land-use restrictions or regulations. Orion I, 103 Wash.2d at 449, 693 P.2d 1369. Second, Ecology approved and adopted the SCSMMP as state regulation. WAC 173-19-010; WAC 173-19-370. The SCSMMP became the princ......