Skokomish Indian Tribe v. Fitzsimmons

• Citation: 982 P.2d 1179,97 Wash.App. 84
• Decision Date: 20 August 1999
• Docket Number: No. 23367-3-II.,23367-3-II.
• Parties: SKOKOMISH INDIAN TRIBE, a federally recognized Indian tribe, Appellant, v. Tom FITZSIMMONS, Director, Washington Department of Ecology; the Washington Department of Ecology; and the State of Washington, Respondents.
• Court: Court of Appeals of Washington

982 P.2d 1179

97 Wash.App. 84

SKOKOMISH INDIAN TRIBE, a federally recognized Indian tribe, Appellant, v. Tom FITZSIMMONS, Director, Washington Department of Ecology; the Washington Department of Ecology; and the State of Washington, Respondents.

No. 23367-3-II.

Court of Appeals of Washington, Division 2.

August 20, 1999.

Jennifer Tanya Barnett, Assistant Atty. Gen., Olympia, for Respondents.

Mason D. Morisset, Morisset, Schlosser, Ayer etc., Seattle, for Appellant.

Richard Andrew Agnew, Van Ness Feldman, Seattle, for Amicus Curiae City of Tacoma.

HUNT, J.

The Skokomish Indian Tribe (Tribe) appeals dismissal of its petition to have declared illegal the Washington State Department of Ecology's (DOE) refusal to object to the City of Tacoma's (City) licensing proposal for its Cushman Dam Project. DOE's statement of compliance or non-compliance was an essential step in the Federal Energy Regulatory Commission's (FERC) processing of this proposal. Although DOE acknowledged that the proposal did not comply with the Washington State Coastal Zone Management Program (CZMP), DOE issued a "no objection" letter. After receiving this letter, FERC issued the license, and the trial court dismissed the Tribe's petition as moot. We reverse because: (1) the Tribe's petition is not moot; and (2) DOE acted arbitrarily and capriciously when it determined that the Project was substantially noncompliant with state law, yet failed to object to FERC.

FACTS

On November 15, 1974, the City of Tacoma applied to the Federal Energy Regulatory Commission (FERC) for licensing of the Cushman Dam Project (Project), which affects the flow of the flood prone Skokomish River. Since then, the Skokomish Indian Tribe has actively participated in the proceedings as an interested party.

As part of the licensing process, FERC is required to determine whether the proposed project comports with the Coastal Zone Management Program (CZMP) of the state in which the project is to be undertaken. 16 U.S.C. § 1456(c)(1)(A). As required by 16 U.S.C. § 1456(c)(3)(A), the City included with its licensing application a "consistency certification" that the proposed licensing of the Cushman Dam Project complied with Washington's federally-approved state CZMP.¹ A copy of this consistency certification was also furnished to the Washington State Department of Ecology (DOE).

Under the federal Coastal Zone Management Act (CZMA), a state or its designated agency has six months within which to concur or to object to a consistency certification. 16 U.S.C. § 1456(c)(3)(A). If the state does not respond, the state's concurrence is conclusively presumed. 16 U.S.C. § 1456(c)(3)(A). Here, DOE had until May 30, 1997, to object to or to concur with the City's consistency certification for the Project.

The Tribe was aware of the approaching deadline and rumors that DOE intended to waive concurrence or objection to the Project's licensing. On May 6, 1997, the Tribe petitioned the Thurston County Superior Court for a writ of mandamus,² seeking to compel DOE to respond formally to the City's consistency certification. The next day, May 7, 1997, the Tribe received a copy of DOE's letter to the City and FERC, which read as follows:

The Washington State Department of Ecology has completed its review of the proposed operation of the Cushman Hydroelectric Facility, and has reached a conclusion regarding project compliance with the enforceable policies of Washington's Coastal Zone Management Program.

We have concluded that the project as proposed by Tacoma does not comply with Washington's Coastal Zone Program, and will not be conducted in a manner consistent with the program requirements. However, we find ourselves in an untenable position in exercising our responsibility to object to Tacoma's certification of consistency because our objection to certification would likely cause the project to be caught in a procedural gridlock, rather than address the substantive issues related to the project. For a project such as Cushman that has already taken an exorbitant amount of time to license, we have determined that the purposes of the Coastal Zone Program will be better met by declining to object.

Therefore, in order to avoid any additional delay to the licensing of this project, Ecology hereby declines its right to take action under its Coastal Zone Management authority with respect to Tacoma's license application pending currently before the Federal Energy Regulatory Commission (FERC).

In no sense should this decline be construed as a change of position as to what elements are required for Coastal Zone Management Program compliance by Tacoma, or other applicants for federal approval. Neither should this action be construed as a change of position as to the minimum flow regime necessary required for the project to be operated in compliance with state water quality standards. Ecology seeks merely to facilitate the ability of FERC to issue the license so that parties who intend to appeal the license may proceed without delay.

Ecology believes the FERC recommended flow regime of 240 cfs (or natural inflow, whichever is less, during the summer recreation period between Memorial Day and Labor Day), plus sediment flushing flows of 400 cfs for the month of November, is the absolute minimum flow necessary to adequately protect designated uses within the North Fork of the Skokomish River. The critical concern of public health and safety during flood events is the only cause for caution in requiring higher flow levels. We re-emphasize our earlier comments to FERC that an adaptive flow regime with a goal of increasing flows in the river is the appropriate strategy for this project. An adaptive flow regime affords the opportunity to balance the designated uses with public health and safety concerns.

Moreover, in expressing support for an adaptive flow regime, Ecology wishes to notify other parties that it does not object to a goal of higher flow requirements to the extent such higher flows do not result in a violation of water quality standards, otherwise prevent the attainment of designated uses, or increase flood hazards.

Finally, in the course of the licensing proceeding to date, there has been a considerable amount of information submitted regarding the effect of Tacoma's diversion on channel aggradation of the mainstem Skokomish River and the reduced ability of the river to convey instream flow. The extent to which re-introduction of higher flows, by themselves or in conjunction with other actions, would improve channel conveyance capacity and cause addition bedload material to be transported to the Skokomish River estuary is a subject of extensive debate. We support FERC staffs' recommendation that the applicant must commit to participation in a post-licensing evaluation of the effect that higher instream flows have on conveyance capacity in the Skokomish River mainstem. This evaluation will provide information necessary to determine potential strategies to accommodate increase in North Fork flows without cor[o]llary increase in flood threats to public health and safety. Ecology hopes that declining further CZM review on the project proposal before FERC, will allow FERC to proceed with licensing without further delay. This letter constitutes the formal agency action on CZM related to this licensing proceeding. Other issues, including those related to Tacoma's underlying water right for the project will be addressed in other venues.

(Emphasis added.) Because this letter constituted a response by DOE to the City's consistency certification, the trial court denied the Tribe's application for writ of mandamus to compel a response. The Tribe did not appeal.

On May 30, 1997, FERC issued the requested license. On June 5, 1997, in Thurston County Superior Court, the Tribe filed a petition for review of the Department's May 6, 1997, letter. On May 1, 1998, the court dismissed the Tribe's petition for review as moot and requested that an order of dismissal be drafted with no findings or conclusions. The court ruled that even if it had jurisdiction to address the Tribe's claims, the case would be moot because the State's window of opportunity to object to the Project was closed when the six-month period expired and FERC issued the license. The Tribe appealed, and the City filed an amicus brief.

ANALYSIS

We first address whether the Tribe's petition is moot. We next address whether DOE acted arbitrarily and capriciously in declining to object to the City's certification that the Project complied with state law, when DOE explicitly acknowledged that the Project as proposed did not comply with state law.³

I. MOOTNESS

FERC licensing processes are often contingent on legal determinations made outside FERC proceedings. See, e.g., 16 U.S.C. § 802(a)(2) (each license application submitted to FERC must contain evidence that the applicant has complied with certain state laws).

An applicant for a license must show the Commission he has under state law the right to divert the water for the use of which he desires a license. Unless he has that right, we think the Commission cannot lawfully issue a license to him.

Niagara Mohawk Power Corp. v. Federal Power Comm'n, 202 F.2d 190, 207 (D.C.Cir. 1952), aff'd 347 U.S. 239, 74 S.Ct. 487, 98 L.Ed. 666 (1954).

Here, FERC had issued the license before the trial court ruled on the Tribe's petition. DOE essentially argues that because a Washington state court cannot order FERC to rescind the license it issued to the City, a state court cannot order "effective relief" and, therefore, the Tribe's petition is moot. The Tribe counters that, armed with a state court judgment that DOE acted improperly, it could petition FERC and then the federal courts, if necessary, to have FERC reopen the City's application. We agree with the Tribe.

A case is not moot if a court can provide effective relief. Dioxin/Organochlorine Ctr. v. Pollution Control Hearings Bd., 131 Wash.2d...