Swinomish Indian v. Western Washington

• Decision Date: 13 September 2007
• Docket Number: No. 76339-9.,76339-9.
• Citation: 166 P.3d 1198
• Parties: SWINOMISH INDIAN TRIBAL COMMUNITY and Washington Environmental Council, Petitioners, v. WESTERN WASHINGTON GROWTH MANAGEMENT HEARINGS BOARD; Skagit County, a municipal corporation of the State of Washington; Skagit County Farm Bureau; Skagitonians to Preserve Farmland; Western Washington Agricultural Association; Skagit County Diking District No. 3; Skagit County Diking District No. 12; Skagit County Drainage District No. 17; and Skagit County Consolidated Diking District No. 22, Respondents. Skagit County, a municipal corporation of the State of Washington; Skagit County Farm Bureau; Skagitonians to Preserve Farmland; Western Washington Agricultural Association; Skagit County Diking District No. 3; Skagit County Diking District No. 12; Skagit County Drainage District No. 17; and Skagit County Consolidated Diking District No. 22, Petitioners, v. Western Washington Growth Management Hearings Board, Swinomish Indian Tribal Community, and Washington Environmental Council, Respondents.
• Court: Washington Supreme Court

166 P.3d 1198

SWINOMISH INDIAN TRIBAL COMMUNITY and Washington Environmental Council, Petitioners, v.WESTERN WASHINGTON GROWTH MANAGEMENT HEARINGS BOARD; Skagit County, a municipal corporation of the State of Washington; Skagit County Farm Bureau; Skagitonians to Preserve Farmland; Western Washington

Agricultural Association; Skagit County Diking District No. 3; Skagit County Diking District No. 12; Skagit County Drainage District No. 17; and Skagit County Consolidated Diking District No. 22, RespondentsSkagit County, a municipal corporation of the State of Washington; Skagit County Farm Bureau; Skagitonians to Preserve Farmland; Western Washington Agricultural Association; Skagit County Diking District No. 3; Skagit County Diking District No. 12; Skagit County Drainage District No. 17; and Skagit County Consolidated Diking District No. 22, Petitioners, v.Western Washington Growth Management Hearings Board, Swinomish Indian Tribal Community, and Washington Environmental Council, Respondents.

No. 76339-9.

Supreme Court of Washington, En Banc.

Argued February 7, 2006.

Decided September 13, 2007.

Alix Foster, Ofc. of Tribal Atty., La Conner, WA, David Alan Bricklin, Bricklin Newman Dold LLP, Seattle, WA, Hilary S. Franz, Hilary S. Franz Attorney at Law, Bainbridge Island, WA, for Petitioners.

Sheila Deirdre Lynch, Ofc. of Attorney General, Martha Patricia Lantz, Offc. of Atty. Gen. Lic. & Admin. Law Div., Larry Dean Stout, Attorney at Law, Olympia, WA, Russell Clayton Brooks, Brian Trevor Hodges, Pacific Legal Foundation, Bellevue, WA, Amanda Jones Johnson, Attorney at Law, La Conner, WA, Gary T. Jones, Jones & Smith, Don Le Roy Anderson, Skagit County Pros.Atty. Office, Mount Vernon, WA, Peter L. Buck, The Buck Law Group, Jay Palmer Derr, Tadas A. Kisielius, Samuel Wilmore Plauche, GordonDerr LLP, Seattle, WA, for Respondents.

Clare Melissa Gilbert, Snohomish County Public Defender's Assoc., Everett, WA, John D. Echeverria, Robert Dreher, Georgetown University Law Center, Washington, DC, for Amicus Curiae on behalf of Washington Trout, Amicus Curiae on behalf of Pacific Coast Federation of Fishermen's Associations, Amicus Curiae on behalf of Institute for Fisheries Resources.

Jason Jerome Cummings, Civil Div. Snohomish County Prosecutor's, Everett, WA, for Amicus Curiae on behalf of Snohomish County.

Toby Thaler, Attorney at Law, Seattle, WA, for Amicus Curiae on behalf of James KarrRay WhiteDave MontgomeryKai Lee Stephen Ralph.

Richard Jameson Langabeer, Robert Michael Tull, Langabeer & Tull PS, Bellingham, WA, for Amicus Curiae on behalf of Fish and Farms.

ALEXANDER, C.J.

¶ 1 In this consolidated appeal, we review two separate decisions by the Western Washington Growth Management Hearings Board(Board).Both decisions concern Skagit County's efforts to comply with the critical areas provisions of the Growth Management Act (GMA).In the first decision, Swinomish Indian Tribal Community v. Skagit County,No. 02-2-0012c, 2003 GMHB LEXIS 73(W. Wash. Growth Mgmt. Hr'gs Bd. (WWGMHB)Dec. 8, 2003)(hereinafter 2003 Compliance Order), the Board largely upheld Skagit County's 2003 effort to comply with the GMA.Approval, however, was subject to two exceptions, "the enforcement of watercourse protection measures and the need for more specificity in [the county's] monitoring program and adaptive management process."Id. at *3.Although the Board's 2003 Compliance Order directed the county to correct the deficiencies within 180 days, it concluded in a 2005 order that the county had failed to do so completely.Swinomish Indian Tribal Cmty. v. Skagit County,No. 02-2-0012c, 2005 GMHB LEXIS 2, at *2-3 (WWGMHB Jan. 13, 2005)(hereinafter 2005 Compliance Order).After review, we uphold both of the Board's decisions.

I.FACTUAL AND PROCEDURAL HISTORY

¶ 2 In 1990, the legislature adopted the GMA, chapter 36.70A RCW.One section of that act, RCW 36.70A.060(2), required local governments to enact development regulations protecting so called "critical areas" by September 1, 1991."Critical areas" are defined as "(a) Wetlands; (b) areas with a critical recharging effect on aquifers used for potable water; (c) fish and wildlife habitat conservation areas; (d) frequently flooded areas; and (e) geologically hazardous areas."RCW 36.70A.030(5).The requirement to "protect" critical areas is a part of the GMA's larger purpose of requiring comprehensive land use planning within the state of Washington.SeeRCW 36.70A.020(10)(providing that local governments will "[p]rotect the environment");RCW 36.70A.010(describing the legislature's intent in adopting the GMA to provide for "comprehensive land use planning").

¶ 3The legislature created three regional boards to review compliance with the GMA by the cities and counties that are located within each board's jurisdictional boundaries.SeeRCW 36.70A.250-.350.One of the boards, the Western Washington Growth Management Hearings Board, is responsible for reviewing Skagit County's compliance with the GMA.

¶ 4 Since 1996, Skagit County has made several efforts to comply with the GMA's critical areas mandate.¹In 2002, the Board held that the county's then-current critical areas ordinance did not comply with the GMA because there was "no mandatory, fallback approach in place to ensure the protection of CAs [critical areas] and anadromous fish."Swinomish Indian Tribal Cmty. v. Skagit County,No. 02-2-0012c, 2002 GMHB LEXIS 67, at *13 (WWGMHB Dec. 30, 2002).Consequently, the Board ordered the county to "adopt an alternative that . . . must include the adoption of mandatory development regulations for agriculture as necessary to comply with RCW 36.70A.060(2) and .172(1)."Id.Whether Skagit County complied with this directive is the primary issue in this consolidated appeal.

¶ 5 In 2003, following the Board's 2002 finding of noncompliance, Skagit County adopted Ordinance 020030020, which contained a "no harm" standard for protecting anadromous fish habitat in agricultural areas.The Swinomish Indian Tribal Community (Tribe) and the Washington Environmental Council(WEC) challenged the ordinance's "no harm" standard, alleging that it failed to protect critical areas, as required by RCW 36.70A.060(2).After reviewing the challenge, the Board upheld the ordinance, concluding that the county was "in compliance with the [GMA] except for the enforcement of watercourse protection measures and the need for more specificity in its monitoring program and adaptive management process."2003 Compliance Order, 2003 GMHB LEXIS 73, at *3.

¶ 6 The Tribe and the WEC each petitioned the Thurston County Superior Court to review the Board's decision.The petitions were consolidated by the superior court.Thereafter, all three parties(Skagit County, the Tribe, and the WEC) requested, pursuant to the provisions of chapter 34.05 RCW, that the Board certify its decision for direct review by Division Two of the Court of Appeals.The Board agreed that the standard for direct review had been met and, consequently, it granted the motion.Division Two of the Court of Appeals then granted direct review.

¶ 7 In 2004, while appellate review was pending, Skagit County adopted Ordinance 020040011.It responded to the Board's directions regarding the need for enforcement of watercourse protection measures and greater specificity in its monitoring and adaptive management program.The Tribe and WEC argued to the Board that the 2004 ordinance did not bring the county into full compliance with the GMA.The Board agreed.See2005 Compliance Order, 2005 GMHB LEXIS 2.The county then petitioned Division Two of the Court of Appeals to directly review the Board's decision, alleging that the Board failed to give proper deference to its interpretation of adaptive management and that the Board used improper procedures in reaching its decision.The Court of Appeals accepted direct review and consolidated the appeal with the pending appeal of the 2003 Compliance Order.We subsequently accepted the Tribe's motion to transfer the consolidated appeal from the Court of Appeals to this court.We now review the decisions of the Board that Skagit County's 2003 Ordinance, with two exceptions, complied with the GMA and its decision that the county's 2004 ordinance did not fully comply with the GMA.

II.STANDARD OF REVIEW

¶ 8 The Board is charged with determining compliance with the GMA and, when necessary, invalidating noncomplying comprehensive plans and development regulations.King County v. Cent. Puget Sound Growth Mgmt. Hr'gs Bd.,142 Wash.2d 543, 552, 14 P.3d 133(2000)(citingRCW 36.70A.280, .302).The Board "shall find compliance unless it determines that the action by the state agency, county, or city is clearly erroneous in view of the entire record before the board and in light of the goals and requirements of [the GMA]."RCW 36.70A.320(3).An action is "`clearly erroneous'" if the Board is "`left with the firm and definite conviction that a mistake has been committed.'"Cent. Puget Sound Hr'gs Bd.,142 Wash.2d at 552, 14 P.3d 133(quotingDep't of Ecology v. Pub. Util. Dist. No. 1,121 Wash.2d 179, 201, 849 P.2d 646(1993))."[C]omprehensive plans and development regulations [under the GMA] are presumed valid upon adoption."RCW 36.70A.320(1).Although RCW 36.70A.3201 requires the Board to give deference to a county, the county's actions must be consistent with the goals and requirements of the GMA.Cent. Puget Sound Hr'gs Bd.,142 Wash.2d at 561, 14 P.3d 133.

¶ 9This court, in turn, reviews the Board's decisions pursuant to the Administrative Procedure Act (APA), chapter 34.05 RCW.RCW 34.05.570(3).The Board's legal conclusions are reviewed "de novo, giving substantial weight to the Board's interpretation of the statute it administers."Cent. Puget Sound Hr'gs Bd.,142 Wash.2d at 553, 14 P.3d 133.If the Board's findings of fact are reviewed, the substantial evidence test is used.Id.

III.ANALYSIS

A....