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Citizens for Safety and En. v. the Dept of Tran

The Court of Appeals of Washington, Division One
Nov 22, 2004
124 Wn. App. 1020 (Wash. Ct. App. 2004)

Opinion

No. 53116-6-I

Filed: November 22, 2004 UNPUBLISHED OPINION

Appeal from Superior Court of King County. Docket No: 03-2-02041-9. Judgment or order under review. Date filed: 08/25/2003. Judge signing: Hon. Dean S Lum.

Counsel for Appellant(s), David Alan Bricklin, Bricklin Newman Dold LLP, 1424 4th Ave Ste 1015, Seattle, WA 98101-2217.

Jennifer A. Dold, Bricklin Newman Dold LLP, 1424 4th Ave Ste 1015, Seattle, WA 98101-2217.

Claudia Macintosh Newman, Bricklin Newman Dold LLP, 1424 4th Ave Ste 1015, Seattle, WA 98101-2217.

Counsel for Respondent(s), Deborah L. Cade, Attorney at Law, 905 Plum St, PO Box 40113, Olympia, WA 98504-0113.

Stephen Raymond Klasinski, Attorney at Law, Offc of Attny General, PO Box 40113, Olympia, WA 98504-0113.

Charles L Cottrell, Attorney at Law, 1191 2nd Ave Fl 18, Seattle, WA 98101-3438.

Stephen Bruce Johnson, Attorney at Law, Garvey Schubert Barer, 1191 2nd Ave Ste 1800, Seattle, WA 98101-2939.


Citizens for Safety and Environment (Citizens) seeks to invalidate a permit issued by the Washington State Department of Transportation (Department) to the Muckleshoot Indian Tribe. The permit allows the Tribe to access its property and the White River Amphitheatre from State Route 164. Citizens' challenge to the agency action is based on allegations of inadequate traffic impact analysis contained in an Environmental Impact Statement (EIS) jointly prepared by the Department and the Bureau of Indian Affairs (BIA). Because a federal court found the EIS to be adequate under the National Environmental Policy Act (NEPA), Citizens is estopped from relitigating the issue in state court. Affirmed.

FACTS

In May 1995, the Muckleshoot Indian Tribe (Tribe), a federally recognized Indian tribe, entered into an agreement with Bill Graham Enterprises, Inc. (Enterprises) to construct and operate the White River Amphitheatre. The Tribe planned to locate the amphitheatre on tribally owned rural land within the Muckleshoot Indian Reservation, northeast of Enumclaw in King County. The amphitheatre site abuts a two-lane state highway, State Route 164, the only direct route to the amphitheatre. The Department is responsible for construction, maintenance, and operation of the State highway system.

The Tribe intended to and eventually sought approval from the BIA to transfer ownership of the amphitheatre property from fee simple to trust. The transfer of property into trust administered by the BIA constitutes a federal agency action, triggering the requirements of NEPA. In anticipation of the transfer, the Tribe submitted a draft environmental assessment to the BIA in 1996. The BIA issued a finding of No Significant Impact in April 1997. Construction of the amphitheatre began. In order for the facility to become operational, it was necessary to improve the existing access from SR 164 to the amphitheatre site. The Tribe has a statutory right to access SR 164 from its property under RCW 47.50.010(3)(b), which provides that `[e]very owner of property which abuts a state highway has a right to reasonable access to that highway' subject to certain conditions that do not apply. The Tribe has a treaty right to access state highways running through its reservation under the Treaty of Medicine Creek. A statute provides that property owners who want access to the state highways must apply to the Department for a permit. RCW 47.01.260. In July 1997, the Tribe applied to the Department for access permits from SR 164 to the amphitheatre parking facilities.

The Treaty provides: `If necessary for the public convenience, roads may be run through their reserves, and, on the other hand, the right of way with free access from the same to the nearest public highway is secured to them.' Treaty of Medicine Creek, December 26, 1854, art. 2, 10 Stat. 1132, 1133.

In November 1997, Citizens, a non-profit corporation whose members live in communities surrounding the amphitheatre, brought an action in the Western District Court of Washington to enjoin construction of the amphitheatre. In April 1998, the federal district court found that NEPA obligated the BIA to prepare an EIS and ordered the BIA to prepare one `as soon as practicable.' Concluding that it did not have jurisdiction over the Tribe, the court refused Citizens' request to enjoin amphitheatre construction.

Clerk's Papers at 775.

The BIA began preparing an EIS under NEPA in cooperation with the Army Corps of Engineers (Corps) and the Environmental Protection Agency. The Department determined that it would also participate in preparing the EIS and assumed the role of co-lead agency with the BIA. Due to its jurisdiction and expertise, the Department focused on the traffic management aspects of the EIS.

The state and federal agencies afforded the public opportunities to participate throughout the EIS process by soliciting comments at public hearings and accepting comments on the draft EIS. The Department also hired a third-party peer reviewer to perform an independent review of the traffic impacts and mitigation measures contained in the EIS. The BIA and Department issued a lengthy final EIS in March 2002 that analyzed several alternatives for the proposed amphitheatre. The EIS discussed potential traffic problems under each of the proposed alternatives, and proposed mitigation measures.

Relying on the final EIS, the Corps issued a permit to the Tribe to fill approximately one-third acre of wetlands at the amphitheatre site in September 2002. Citizens sought review of the Corps action in federal district court under the federal Administrative Procedures Act (APA). Citizens sought an order declaring the EIS insufficient as a matter of law with respect to its analysis of potential traffic impacts, directing the BIA to prepare a supplemental EIS analyzing potential traffic impacts in greater detail, and rescinding the permit issued by the Corps.

While Citizens' NEPA challenge was pending in federal court, the Department issued the Tribe the access permit allowing the Tribe to access SR 164 at issue in this appeal. The permit, issued in February 2003, also relied upon the final EIS. Citizens filed a second petition for review of the Department action in King County superior court under the Washington APA. This petition also alleged that the traffic impact analysis of the EIS was inadequate. Citizens sought an order declaring the access permit void and directing the Department to rescind the Tribe's authorization to access SR 164.

Before resolution of Citizens' state court claims, the federal district court issued an order in March 2003 finding the EIS' traffic analysis `reasonably thorough' and thus adequate under NEPA.

Clerk's Papers at 499.

Enterprises filed a motion to dismiss the action in state court, arguing among other things that the doctrine of collateral estoppel barred Citizens' action challenging the adequacy of the EIS in state court. The Department filed a motion for summary judgment on similar grounds. Citizens responded by moving for a remand to the Department to conduct further fact-finding.

On August 25, 2003, the superior court entered an omnibus order granting Enterprises' motion to dismiss and the Department's motion for summary judgment. The court granted the respondents relief on several grounds: (1) the Muckleshoot Indian Tribe, as holder of the access permit, is a necessary and indispensable party to the lawsuit; (2) the validity of the access permit had been litigated and resolved in federal court, collaterally estopping Citizens' action challenging the validity of the access permit in state court; and (3) an EIS prepared jointly by state/federal agencies in compliance with NEPA fit within the `previously prepared' exemption of the State Environmental Policy Act (SEPA) and thus was not subject to further review under SEPA. RCW 43.21C.150; Boss v. Washington State Dep't of Trans., 113 Wn. App. 543, 54 P.3d 207 (2002). Citizens appeals.

ANALYSIS

Citizens contends that the trial court erroneously concluded that the federal court's decision upholding the adequacy of the EIS collaterally estops Citizens from challenging the EIS in state court. Whether collateral estoppel applies to bar relitigation of an issue is reviewed de novo. Christensen v. Grant County Hosp. Dist. 1, Wn.2d, 96 P.3d 957 (2004).

Collateral estoppel may be applied to preclude only those issues that have actually been litigated and necessarily determined in the earlier proceeding. Shoemaker v. City of Bremerton, 109 Wn.2d 504, 507, 745 P.2d 858 (1987). Collateral estoppel requires: (1) identical issues; (2) a final judgment on the merits; (3) the party against whom the plea is asserted must have been a party to or in privity with a party to the prior adjudication; and (4) application of the doctrine must not work an injustice on the party against whom the doctrine is asserted. Reninger v. State Dep't of Corr., 134 Wn.2d 437, 449, 951 P.2d 782 (1998).

Citizens does not contest that the second and third elements of collateral estoppel are satisfied. But Citizens claims that there is no identity of issues between the federal court's judgment and their present claims, and that dismissal of their state action is unjust. Citizens' argument that the federal court neither passed upon the validity of the access permit issued by the Department nor on Citizens' claim that the permit violates the Clean Air Act misses the point. The question is not whether the current claims were resolved in the previous litigation, but whether a crucial issue or determinative fact was determined in the previous litigation. Luisi Truck Lines, Inc. v. Washington Util. Trans. Comm'n, 72 Wn.2d 887, 894, 435 P.2d 654 (1967). Collateral estoppel, or issue preclusion, prevents a second litigation of issues between the parties, even though a different claim or cause of action is asserted. Rains v. State, 100 Wn.2d 660, 665, 674 P.2d 165 (1983).

All of Citizens' claims asserted in state court rest upon allegations that the traffic impact studies and conclusions contained in the EIS were inadequate. Citizens' federal court claims relied upon the same basic alleged deficiencies in the traffic impact analysis. Like its state counterpart, NEPA requires federal agencies to create and file an EIS before beginning `major Federal actions significantly affecting the quality of the human environment.' 42 U.S.C. sec. 4332(2)(C). The federal APA authorizes a court to set aside an agency action that is `arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law' or agency action taken `without observance of procedure required by law.' 5 U.S.C. sec.sec. 706(2)(A), (D) (2002). Applying this standard, the federal district court concluded that the disputed EIS `contains a reasonably thorough discussion of the significant aspects of probable environmental consequences of the proposed White River Amphitheatre.' Thus, the Corps action was not `unreasonable, arbitrary, capricious, or an abuse of discretion.'

See Citizens' Petition for Review, Clerk's Papers at 9-12.

Clerk's Papers at 501.

Clerk's Papers at 501.

The Washington APA provides that in a judicial review of an agency action, `[t]he burden of demonstrating the invalidity of agency action is on the party asserting invalidity' and the `validity of agency action shall be determined in accordance with the standards of review provided in this section, as applied to the agency action at the time it was taken.' RCW 34.05.570(1)(a), (b). The statute sets forth the standard of review for an action other than an agency adjudication as follows:

Relief for persons aggrieved by the performance of an agency action, including the exercise of discretion . . . can be granted only if the court determines that the action is:

(i) Unconstitutional;

(ii) Outside the statutory authority of the agency or the authority conferred by a provision of law;

(iii) Arbitrary or capricious; or

(iv) Taken by persons who were not properly constituted as agency officials lawfully entitled to take such action.

Here, Citizens does not allege that the Department's action is unconstitutional. Nor does Citizens contend that the action was taken by persons `who were not properly constituted as agency officials lawfully entitled to take such action.' RCW 34.05.570(4)(c)(iv). The action is clearly within the statutory authority of the Department. Accordingly, Citizens could only obtain relief if it sustained its burden of demonstrating that the agency action was arbitrary and capricious. This is the same standard applied by the federal court.

Further, a state court reviews a challenged EIS to determine if it contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences of the agency's decision. Cheney v. Mountlake Terrace, 87 Wn.2d 338, 344-45, 552 P.2d 184 (1976). The federal court determined that the EIS in fact, specifically with respect to the traffic analysis, `contains a reasonably thorough discussion of the significant aspects of probable environmental consequences of the proposed White River Amphitheatre.' We conclude that the issue upon which all of Citizens' claims rest — whether the jointly prepared and issued EIS traffic impact analysis was adequate — is a crucial issue or determinative fact that was previously litigated and decided in federal court.

Clerk's Papers at 501.

To determine whether the application of the doctrine will result in an injustice, the court will consider whether the party against whom estoppel is asserted had sufficient interests at stake in the first action to fully litigate the issue. Hadley v. Maxwell, 144 Wn.2d 306, 312, 27 P.3d 600 (2001). Citizens does not dispute that it had a full and fair opportunity to argue the alleged defects of the EIS' traffic impact analysis in federal court, only that it did not have a full and fair hearing on its state claims. But because Citizens has litigated the adequacy of the EIS traffic impact analysis to judgment in federal court, we cannot conclude that dismissal of its state claims will work an injustice.

In sum, the EIS traffic impact analysis was challenged, fully litigated, and found adequate by a federal court on the same grounds and utilizing the same standards applicable in state court under SEPA. We conclude that the doctrine of collateral estoppel bars Citizens' state claims. Because the collateral estoppel issue is dispositive, we do not address the remaining contentions of the parties.

Affirmed.

ELLINGTON, A.C.J. and BECKER, J., concur.


Summaries of

Citizens for Safety and En. v. the Dept of Tran

The Court of Appeals of Washington, Division One
Nov 22, 2004
124 Wn. App. 1020 (Wash. Ct. App. 2004)
Case details for

Citizens for Safety and En. v. the Dept of Tran

Case Details

Full title:CITIZENS FOR SAFETY ENVIRONMENT, Appellant, v. WASHINGTON STATE DEPARTMENT…

Court:The Court of Appeals of Washington, Division One

Date published: Nov 22, 2004

Citations

124 Wn. App. 1020 (Wash. Ct. App. 2004)
124 Wash. App. 1020