ยถ35 Under the CZMA, project proponents applying to the Federal Energy Regulatory Commission for licensing must include a "consistency certification" that the project complies with the stateโs coastal zone management program. Skokomish Indian Tribe v. Fitzsimmons , 97 Wash. App. 84, 86, 982 P.2d 1179 (1999) ; 16 U.S.C. ยง 1456. The project proponent must submit the certification to the state, and the state can either concur or object to the certification.
Bhatia and Kitsap County v. Dep't of Ecology, S.H.B. No. 95-34, 1996 WL 538822 (1996). 97 Wn. App. 84, 982 P.2d 1179 (1999), review denied, 143 Wn.2d 1018 (2000). The director did not violate subsection (2)(b) of RCW 77.55.100.
City of Tacoma, 84 FERC at 61,546. The Tribe subsequently prevailed in state court litigation challenging the validity, under state law, of Ecology's concurrence. Skokomish Indian Tribe v. Fitzsimmons, 97 Wash.App. 84, 982 P.2d 1179 (1999). The state court held that Ecology had issued its concurrence in violation of state administrative law, id. at 1184-86, though it expressly did not rule on the merits of whether the concurrence was warranted, id. at 1183 n. 3.
However, we do not extend that deference to agency actions that are arbitrary, capricious, and contrary to law. Skokomish Indian Tribe v. Fitzsimmons, 97 Wn.App. 84, 93, 982 P.2d 1179 (1999). Our Supreme Court explained:
The Agencies and the WFPA assert that St. Joseph Hosp. Health Care Ctr. v. Dep't of Health, 125 Wn.2d 733, 887 P.2d 891 (1995), establishes that 570(2) governs a challenge to a rule. Additionally, the Agencies argue that Skokomish Indian Tribe v. Fitzsimmons, 97 Wn. App. 84, 982 P.2d 1179 (1999), establishes that 570(4)(b) does not apply if an agency has acted. Because we decide this case under Rios, we do not address these arguments.