Twin Harbors Fish & Wildlife Advocacy v. Wash. Dep't of Fish & Wildlife

• Decision Date: 23 February 2022
• Docket Number: 54849-6-II
• Court: Washington Court of Appeals
• Parties: TWIN HARBORS FISH AND WILDLIFE ADVOCACY, a Washington nonprofit corporation, Appellant, v. WASHINGTON DEPARTMENT OF FISH AND WILDLIFE, an agency of the State of Washington, Respondent.

TWIN HARBORS FISH AND WILDLIFE ADVOCACY, a Washington nonprofit corporation, Appellant, v. WASHINGTON DEPARTMENT OF FISH AND WILDLIFE, an agency of the State of Washington, Respondent.

No. 54849-6-II

Court of Appeals of Washington

February 23, 2022

UNPUBLISHED OPINION

Lee C.J.

Twin Harbors Fish and Wildlife Advocacy appeals the superior court's order dismissing its Public Records Act (PRA)^[1] claims against the Department of Fish and Wildlife (WDFW). Twin Harbors argues that the superior court erred in concluding that Twin Harbors was not denied the opportunity to inspect public records and that the WDFW complied with the prompt response requirement of the PRA. Twin Harbors also argues that it is entitled to PRA penalties and attorney fees. We hold that the superior court did not err and affirm the superior court's order dismissing Twin Harbors' PRA claim.

FACTS

A Background-The North of Falcon Process

In Washington, recreational and commercial fisheries are planned each year through a federal, state, and tribal co-management process known as "North of Falcon." Clerks Papers (CP) at 1266. The areas covered by the North of Falcon process include the Columbia River, coastal Washington, and the Puget Sound.

The North of Falcon process is a series of negotiations between affected states, treaty tribes, and the federal government. Throughout the process, WDFW staff constantly engage with tribal co-managers, fisheries managers from other states federal agency staff, and constituents from Washington through numerous in-person meetings and email communications.

Relevant here, the negotiations between the WDFW and Puget Sound Treaty Tribes culminate into a "List of Agreed Fisheries" (LOAF). CP at 1268. The LOAF is a significant step in the development of the fishing regulations for the Puget Sound each year. The LOAF is subject to approval by the National Marine Fisheries Service and further alteration before being adopted as the final fishing regulations for the season. The WDFW incorporates the North of Falcon negotiations into its final fishing regulations each year which are promulgated under the Washington Administrative Procedure Act (APA).

Policy level decisions and co-management negotiations reflected in the LOAF are based on technical data generated by WDFW staff and exchanged with tribal staff. Communications between WDFW and tribal staff related to pre-season forecast, fish available for harvest, and prior intercept modeling include technical data and communications concerning technical issues.

B. Twin Harbors' PRA Request

On October 23, 2016, Twin Harbors' president, Tim Hamilton, filed a PRA request with the WDFW. Twin Harbors requested that the WDFW provide any and all documents and communications that are related to:

1. The [Harvest Co-Management Proceedings (HCMP)] proceedings for 2016 seasons resulting in the agreed upon seasons contained in the attached agreement between tribal and state Co-Managers titled "2016-17 Co-Managers [LOAF] (May 1, 2016-April 30, 2017)";

2. Any federal rule, policy or guidance that WDFW considered during its interactions with tribal Co-Managers that could result in a federal agency approving tribal fisheries without approving a state sponsored fisheries in Puget Sound in either 2015 or 2016;

3. Any internal WDFW policy or guidance and any understanding(s) between WDFW and a tribal Co-Managers(s) that were used or followed in the HCMP proceedings related to:

a. the location of Co-Management meetings;

b. record keeping of Co-Management meetings;

c. notification to the public of Co-Management meeting locations and times;

d. tribal or nontribal citizens having the ability to attend and observe HCMP meetings in progress; and e. a fishing season agreement(s) reached between Co-Managers will be adopted as a rule (WAC) by WDFW in the [North of Falcon] proceedings.

4. Any internal policy or guidances or external understanding between WDFW and a tribal Co-Managers(s) or a third party wherein seasons agreed to by Co-Managers can deviate from the "50/50 share in common" as set forth in U.S. v-WA (Boldt decision).

CP at 67.

Twin Harbors' PRA request provided a list of definitions for the specific terms used in the request, which in relevant part state:

"Communications" means any mailed, faxed, or electronically transmitted correspondence, including any attachment that accompanied the communication, that were created, transmitted, received or reviewed by WDFW from January 1, 2015 to present including those transmitted internally within WDFW or between WDFW and a third party.

"Document" means any presentation, work product, analysis, briefing materials, conversation notes, meeting minutes or electronic recordings, meeting notices, outlines, or documentation of any kind (whether produced by WDFW or a third party), that came into WDFW's possession in the period from January 1, 2015 to present.

. . . .

"North of Falcon" or "NOF" means the proceedings used to adopt state sponsored fishing seasons in Puget Sound wherein WDFW holds public meetings or hearing processes following the [APA] that results in the adoption of a WAC or rule containing harvest seasons.

"Harvest Co-Management Proceedings" or "HCMP" means communications, discussions or meetings occurring between representatives of WDFW, a tribe(s), or a federal agency conducted outside the view of the general public and the topics includes [sic] a tribal or state fishing harvest season. As clarification, HCMP does not mean those public processes held by WDFW in the NOF proceedings as defined above. Additionally, interactions between technical staff within WDFW and tribal Co-Managers wherein harvest season(s) is not a topic are excluded from this definition.

CP at 66-67.

Twin Harbors directed the WDFW to liberally construe the above terms.

C. The WDFW's Initial Response & Clarification Attempts

The WDFW responded to Twin Harbors' PRA request on October 28, which was within five business days of receiving the request. In its response, the WDFW acknowledged receipt of the PRA request; advised Hamilton that the WDFW would be contacting him to clarify the request; and stated that, pending clarification, the WDFW would be able to respond to the request by November 22, 2016.

On October 28, Kelly Cunningham, the director for the WDFW's Fish Program, met with Hamilton to clarify the scope of Twin Harbors' PRA request. At the meeting, Cunningham explained that voluminous communications are exchanged during the North of Falcon process because technical staff must finalize the previous year's return data and develop pre-season forecasts for the upcoming season. Hamilton stated that he was not interested in those technical exchanges.

On October 29, Hamilton sent an email to the WDFW, stating that the October 28 meeting "should not be considered [as] a modification of the written text contained in [the PRA request]. Any modifications would need to come in the form of a written amendment transmitted to the [WDFW] by [Twin Harbors]." CP at 1453.

On October 31, Cunningham followed up with Hamilton through email. Cunningham's comments memorialized the WDFW's meeting with Hamilton and stated that Twin Harbors was not "requesting records from technical staff to include communications between technical staff." CP at 1325. Hamilton responded on the same day and stated that "I previously transmitted that the text of [the PRA request] remains unamended by our conversations in Olympia. I'd add the same holds true for this or future email communications." CP at 1325. Hamilton also stated that "communications between technical staff that are related to co-management discussions on an upcoming season would be included in the scope [of the PRA request]. Examples would be preseason forecast, fish available for harvest, prior intercept modeling, etc." CP at 1325.

On November 8, the WDFW emailed to Hamilton an item-by-item interpretation of Twin Harbors' PRA request. On November 9, Hamilton responded and stated that he was not seeking communications between technical staff simply relaying technical information, but that he was seeking communications related to co-management discussions on an upcoming season, such as pre-season forecasts. "This clarification did little to narrow the scope of [the PRA request] in light of the large volume of communications exchanged during the pre-season forecast process." CP at 1316.

On November 22, the WDFW sent an email to Hamilton informing him that the WDFW needed additional time to respond to Twin Harbors' PRA request. The WDFW stated that it would respond to the request by December 6.

On December 6, Theresa Gibbs, the WDFW's public records officer at the time, disclosed to Twin Harbors the first installment of responsive records via email. Gibbs advised Twin Harbors that the second installment of responsive records would be available no later than January 5, 2017. In the same email, Gibbs also attached the WDFW's formal interpretation of Twin Harbors' PRA request. Hamilton acknowledged receipt of Gibbs' email and did not object to the WDFW's interpretation of Twin Harbors' PRA request.

D. The WDFW's Response Process to Twin Harbors' PRA Request

Anne Masias is the WDFW's public records officer. According to Masias, the WDFW consists of multiple programs, one of which is the Fish Program. Each program has a designated public records coordinator. Masias receives and reviews all of the WDFW's public records requests, then either assumes responsibility or assigns a public records analyst to respond. Once a request is reviewed, Masias or a public records analyst would then reach out to the program that may be the potential holders of responsive records.

At the time of Twin Harbors' PRA request, Robin...