Spokane Cnty. v. Wash. Dep't of Fish & Wildlife

• Decision Date: 06 December 2018
• Docket Number: No. 95029-6,95029-6
• Citation: 430 P.3d 655
• Parties: SPOKANE COUNTY, a Political Subdivision of the State of Washington; Pierce County, a Political Subdivision of the State of Washington; Douglas County, a Political Subdivision of the State of Washington; Lewis County, a Political Subdivision of the State of Washington; and Kitsap County, a Political Subdivision of the State of Washington, Appellants, Mason County, a Political Subdivision of the State of Washington; Chelan County, a Political Subdivision of the State of Washington; and City of Spokane, a Political Subdivision of the State of Washington Plaintiffs, v. State of Washington DEPARTMENT OF FISH AND WILDLIFE, Respondent.
• Court: Washington Supreme Court

430 P.3d 655

SPOKANE COUNTY, a Political Subdivision of the State of Washington; Pierce County, a Political Subdivision of the State of Washington; Douglas County, a Political Subdivision of the State of Washington; Lewis County, a Political Subdivision of the State of Washington; and Kitsap County, a Political Subdivision of the State of Washington, Appellants,

Mason County, a Political Subdivision of the State of Washington; Chelan County, a Political Subdivision of the State of Washington; and City of Spokane, a Political Subdivision of the State of Washington Plaintiffs,
v.
State of Washington DEPARTMENT OF FISH AND WILDLIFE, Respondent.

No. 95029-6

Supreme Court of Washington.

Argued September 20, 2018
Filed December 06, 2018

John Craig Bjorkman, James M. Lynch, Gabrielle Elizabeth Thompson, K & L Gates LLP, 925 4th Avenue, Suite 2900, Seattle, WA 98104-1158, for Appellants.

Martha Ffrost Wehling, Joseph Vincent Panesko, Attorney General's Office, 1125 Washington Street SE, P.O. Box 40100, Olympia, WA 98504-0100, for Respondents.

Ethan Jones, Marcus Mustafa Shirzad, Shona Marie Voelckers, Yakama Nation Office of Legal Counsel, P.O. Box 150, 401 Fort Road, Toppenish, WA 98948-0150, for Amicus Curiae Confederated Tribes and Bands of the Yakama Nation.

Emily Rae Hutchinson Haley, Weston Lemay, Attorney at Law, Swinomish Indian Tribal Community, 11404 Moorage Way, LA Conner, WA 98257-9450, for Amici Curiae Nisqually Indian Tribe, Sauk-Suittle Indian Tribe, Skokomish Indian Tribe, Stillaguamish Tribe of Indians, and Swinomish Indian Tribal Community.

Sharon llene Haensly, Kevin R. Lyon, Squaxin Island Legal Department, 3711 SE Old Olympic Hwy., Shelton, WA 98584-7734, for Amicus Curiae Squaxin Island Tribe.

OWENS, J.

430 P.3d 657

¶ 1 This case asks us to determine the geographic scope of permitting authority delegated to the State of Washington Department of Fish and Wildlife (Department) over hydraulic projects. A "hydraulic project" is defined as "the construction or performance of work that will use, divert, obstruct, or change the natural flow or bed of any of the salt or freshwaters of the state." RCW 77.55.011(11). Entities seeking to undertake hydraulic projects must apply for and obtain permits from the Department before commencing work. RCW 77.55.021. In this case, a coalition of Washington State counties (Counties) challenge the Department’s statutory authority to regulate the construction or performance of work that will occur exclusively above the ordinary high-water line.

¶ 2 We hold that the plain language of the statute looks to the reasonably certain effects of hydraulic projects on waters of the state in determining the scope of the Department’s permitting authority, and we conclude that at least some projects above the ordinary high-water line are reasonably certain to affect those waters. An examination of relevant legislative history confirms that the legislature intended the Department’s regulatory jurisdiction to include projects above the ordinary high-water line that affect state waters. We affirm the trial court.

PROCEDURAL AND FACTUAL HISTORY

¶ 3 Chapter 77.55 RCW, construction projects in state waters, hereinafter referred to as the "Hydraulic Code," was first enacted in 1943. See LAWS OF 1943, ch. 40, § 1. From its outset, the Hydraulic Code was intended to protect fish life. Id. The Hydraulic Code requires anyone planning to undertake a hydraulic project to obtain a preconstruction approval permit from the Department to ensure "the adequacy of the means proposed for the protection of fish life." RCW 77.55.021(1). The Department can deny or condition a permit only for the purpose of protecting fish life. RCW 77.55.021(7)(a). The Department’s regulatory authority encompasses hydraulic projects, which are defined based on their effects on waters of the state rather than their location relative to those waters. See RCW 77.55.011(11).

¶ 4 The Counties primarily take issue with rules promulgated by the Department in 2015, chapter 220-660 WAC (2015 Rules). The 2015 Rules specify that a permit is required for bridge maintenance and construction, even if the work to be performed will occur above the ordinary high-water line:

An HPA [hydraulic project approval] is required for all construction or repair/replacement of any structure that crosses a stream, river, or other water body regardless of the location of the proposed work relative to the [ordinary high-water level] of state waters. An HPA is also required for bridge painting and other maintenance where there is potential for paint, sandblasting material, sediments, or bridge parts to fall into the water.

WAC 220-660-190. The Counties seek an exemption from the permitting requirement for work that takes place entirely above the ordinary high-water line, hereinafter referred to as "upland projects."

¶ 5 The Counties first sought an exemption for upland projects during the notice and comment process for the 2015 Rules. After the 2015 Rules were promulgated, the Counties filed their concerns with the attorney general. Thereafter, the attorney general issued a formal legal opinion directly answering the question presented in this case. 2016 Op. Att’y Gen. No. 6. The attorney general opined that the statute is unambiguous and that the Department’s permitting jurisdiction extends to all work that will use, divert, obstruct, or change the natural flow or bed of any of the salt or freshwaters of the state, regardless of whether the activity is above or below ordinary high-water lines. Id. at 5-7.

¶ 6 The Counties next brought this legal action, seeking a declaratory judgment and injunction under Washington’s Administrative Procedure Act, chapter 34.05 RCW. RCW 34.05.570(2)(c). The trial court found that "[t]he Hydraulic Code, [chapter] 77.55, is not ambiguous regarding the extent of [the Department’s] Hydraulic Project Approval permitting and/or regulatory authority" and that "[s]uch permitting and/or regulatory authority

430 P.3d 658

is not limited to activities taking place at or below the Ordinary High-water Line." Clerk’s Papers at 147. The Counties sought this court’s direct review of the trial court’s decision, which we granted. The court also granted the motions of multiple sovereign tribes to submit amicus briefs, which primarily stressed the need to regulate upland projects in order to protect fish.

ISSUE

¶ 7 Did the legislature intend to limit the Department’s permitting and regulatory authority to cover only projects that take place at least partially at or below the ordinary high-water line?

ANALYSIS

¶ 8 The Counties challenge the 2015 Rules under the Administrative Procedure Act, arguing that the rule should be struck down as "[o]utside the statutory authority of the agency." RCW 34.05.570(4)(c)(ii). The 2015 Rules are presumptively valid, and the Counties bear the burden of showing that the Department exceeded its statutory authority in promulgating them. Wash. Pub. Ports Ass’n v. Dep’t of Revenue , 148 Wash.2d 637, 645, 62 P.3d 462 (2003).

¶ 9 This case thus requires us to engage in statutory interpretation, which is an issue of law that we review de novo. State v. Velasquez , 176 Wash.2d 333, 336, 292 P.3d 92 (2013). "Our starting point must always be ‘the statute’s plain language and ordinary meaning.’ " State v. J.P. , 149 Wash.2d 444, 450, 69 P.3d 318 (2003) (quoting Nat’l Elec. Contractors Ass’n v. Riveland , 138 Wash.2d 9, 19, 978 P.2d 481 (1999) ). "Statutes must be interpreted and construed so that all the language used is given effect, with no portion rendered meaningless or superfluous." Whatcom County v. City of Bellingham , 128 Wash.2d 537, 546, 909 P.2d 1303 (1996). When the plain language is unambiguous, subject to only one reasonable interpretation, our inquiry ends. Velasquez , 176 Wash.2d at 336, 292 P.3d 92. Additionally, "a reading that results in absurd results must be avoided because it will not be presumed that the legislature intended absurd results." State v. Delgado , 148 Wash.2d 723, 733, 63 P.3d 792 (2003). We need not utilize interpretive tools such as legislative history when statutory language is unambiguous. Velasquez , 176 Wash.2d at 336, 292 P.3d 92.

¶ 10 To prevail, the Counties must show two things to be true. First, as a matter of statutory interpretation, they must show that the word "will," as used in RCW 77.55.011(11), was intended to limit the Department’s permitting and regulatory authority to cover only projects that are absolutely certain to "use, divert, obstruct, or change the natural flow or bed of any of the salt or freshwaters of the state." RCW 77.55.011(11). Second, they must show that only projects that take place at least partially at or below the ordinary high-water line meet that level of certainty. As a matter of statutory interpretation, we hold that the Counties are wrong on the former contention. As a matter of common sense and practical experience, we find the latter is not true. Although the statute is unambiguous, we conclude the legislative history and context of the Hydraulic Code supports the Department’s authority to regulate upland projects that affect waterways and fish.

I. RCW 77.55.011(11) Does Not Require Preordained Certainty as a Condition of Department Regulation or Permitting

¶ 11 The Department has the...