Opinion
Nos. 22741-3-III, 22742-1-III, 22758-8-III
Filed: March 17, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Benton County. Docket No. 03-2-02548-5. Judgment or order under review. Date filed: 01/20/2004. Judge signing: Hon. Robert Victor Jensen.
Counsel for Petitioner(s), Floyd Edwin Ivey, Attorney at Law, 1141 N Edison Ste C, PO Box 6125, Kennewick, WA 99336-0125.
Ronald Francis St. Hilaire, Liebler Ivey Connor PS, 1141 N Edison St Unit C, Kennewick, WA 99336-1434.
Barbara a Markham, Office of Attorney General, PO Box 40117, Olympia, WA 98504-0117.
Alan Myles Reichman, Ofc of the Aty General/Ecology Division, PO Box 40117, Olympia, WA 98504-0117.
Brian James Iller, Attorney at Law, 6725 W Clearwater Ave, Kennewick, WA 99336-1788.
Counsel for Respondent(s), David J. Cummings, Nez Perce Tribe, PO Box 305, Lapwai, ID 83540.
Julie Sobotta Kane, Nez Perce Tribe Legal Counsel, PO Box 305, Lapwai, ID 83540-0305.
Naomi Stacy, Conf Tribes of the Umatilla Indian Res, PO Box 638, Pendleton, OR 97801-0638.
Jeffrey S. Schuster, Attorney at Law, PO Box 31197, Seattle, WA 98103-1197
Amicus Curiae on behalf of Columbia River Inter-Tribal Fish Commission, Rob Roy Smith, Attorney at Law, 801 2nd Ave Ste 1115, Seattle, WA 98104-1509.
Amicus Curiae on behalf of The Center for Environmental Law Policy, Karen Allston, Center for Environmental Law Policy, 2400 N 45th St Ste 101, Seattle, WA 98103-6973.
Shirley Waters Nixon, Center for Environmental Law Policy, 2400 N 45th St Ste 101, Seattle, WA 98103.
Counsel for Other Parties, Bruce L. Turcott, Ofc of The Aty General, 1125 Washington St SE, PO Box 40110, Olympia, WA 98504-0110.
The Department of Ecology (Ecology) approved five applications for surface water rights from the Columbia River. The Confederated Tribes of the Umatilla Indian Reservation (Umatilla Tribes), the Nez Perce Tribe, and the Yakama Nation appealed the approvals to the Pollution Control Hearings Board (PCHB). The PCHB reversed Ecology's approvals, finding it failed to adequately consult with the Indian tribes as required by WAC 173-531A-060 and WAC 173-563-020(4). The applicants, Kennewick Irrigation District (KID), Mercer Ranches (Mercer), and Kennewick Public Hospital District (KPHD), as well as Ecology, appeal. We affirm. During the late 1980s and early 1990s, the Lower Stemilt Irrigation District (LSID), Mercer, KID, and KPHD filed five applications with Ecology for water rights from the Columbia River. Ecology was required to consult with federal, state, and local agencies, and Indian tribes before making a decision on the applications. WAC 173-531A-060 ; WAC 173-563-020(4).
Ecology sent letters to several entities asking them to review the applications and provide information relating to any impacts on fish and existing water rights. On October 30, 1998, Ecology sent a letter to the Columbia River Intertribal Fish Commission (CRITFC) asking it to identify an individual to participate in the consultation on the permit applications. Ecology asked that the individual review the applications within 60 days. CRITFC did not respond until 2001, at which point it asserted it was opposed to approving the applications. Ecology also contacted the Yakama Nation.
Ecology prepared tentative decisions based on its initial evaluation of the applications and distributed draft Reports of Examination to consultees for further comments. CRITFC and the Yakama Nation responded to these drafts by indicating their opposition.
A Report of Examination is the permit.
Ecology then revised the draft Reports of Examination based on a settlement with the Columbia-Snake River Irrigators Association and KPHD. The revisions provided the applicants with two options to mitigate the possible effects of their water withdrawal.
On January 15, 2003, Ecology approved the five applications for rights to surface water from the Columbia River. The Yakama Nation, the Umatilla Tribes, and the Nez Perce Tribe appealed to the PCHB, which consolidated the appeals.
The PCHB issued a prehearing order specifying the legal issues it would consider. These are relevant here: (1) whether Ecology had complied with regulations requiring it to consult with the Tribes; (2) whether Ecology evaluated the applications with regard to the impact on fish; and (3) whether the Tribes had standing.
Claiming it lawfully complied with its consultation requirements, Ecology moved for partial summary judgment. The Tribes filed a cross motion for partial summary judgment on the ground that Ecology did not consult with them as required and it violated the law by failing to consider the cumulative effects of the permits, the public interest, and the potential conflict with existing water rights.
On October 31, 2003, the PCHB issued its order granting and denying summary judgment and remanding for further proceedings. The PCHB held that an issue of fact existed regarding the cumulative impacts, impairment, and public interest issues raised by the Tribes and it also determined they had standing.
The PCHB further found that consulting with CRITFC was sufficient to satisfy the requirements of the regulation. But it nevertheless granted summary judgment in favor of the Tribes, finding Ecology violated the regulation by not consulting the Tribes or CRITFC on the revisions in the permits.
Ecology filed a petition for review in Thurston County, while KID and KPHD filed petitions for review in Benton County. Ecology's motion for a change of venue to Benton County was granted.
The Yakama Nation, the Umatilla Tribes, and the Nez Perce Tribe filed a request seeking direct appellate review under RCW 34.05.518. The PCHB issued certificates of appealability. The Tribes then filed motions requesting direct discretionary review in this court. On March 26, 2004, a commissioner granted the Tribes' motion for direct review and consolidated the cases.
Ecology, KID, and KPHD challenge the PCHB decision. We review such a decision and order under the Washington Administrative Procedure Act (WAPA). Port of Seattle v. Pollution Control Hearings Bd., 151 Wn.2d 568, 587, 90 P.3d 659 (2004). Our review is on the record that was before the PCHB. Id. The party asserting the PCHB erred has the burden of showing the error. Id.
We may grant relief from a PCHB order if it is "outside the statutory authority or jurisdiction of the [PCHB]' or if the PCHB has 'erroneously interpreted or applied the law." Id. (quoting RCW 34.05.570(3)(b), (d)). The first issue presented here is whether the PCHB erred when it concluded Ecology did not comply with its consulting requirements under WAC 173-531A-060 and WAC 173-563-020(4).
When the inquiry requires construction of a statute, review is de novo. Port of Seattle, 151 Wn.2d at 587. We review agency regulations as if they were statutes. Cobra Roofing Serv., Inc. v. Dep't of Labor Indus., 122 Wn. App. 402, 409, 97 P.3d 17 (2004). The question is whether Ecology properly consulted with the appropriate Indian tribes. The pertinent wording of the relevant regulations states:
The department will consult with appropriate local, state, and federal agencies, and Indian tribes in making this evaluation. Any permit which is then approved for the use of such waters will be, if deemed necessary, subjected to instream flow protection or mitigation conditions determined on a case-by-case basis through the evaluation conducted with the agencies and tribes.
WAC 173-531A-060 ; WAC 173-563-020(4).
The appellants claim the PCHB should give deference to Ecology's interpretation of these regulations. Deference is given when the issue revolves around the interpretation of an ambiguous statute or regulation. See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 813-14, 828 P.2d 549 (1992). But the regulations at issue are unambiguous. In order for an agency to be entitled to deference, it must show its interpretation is a policy decision that is uniformly applied. Id. at 815. Ecology has done nothing more than argue it met the requirements of the regulations. It points to no agency policy relating to this regulation. In these circumstances, Ecology's interpretation is not entitled to any deference. Ecology, KID, and KPHD assert the PCHB erred when it ruled Ecology was required to consult with the Tribes on the revisions to the applications. We do not reach this issue because we determine the PCHB erred when it concluded consultation with CRITFC was sufficient.
Ecology, KID, and KPHD assert that this issue is not properly before us because the Tribes did not cross-appeal. RAP 10.3(h) requires a respondent to assign error to any part of an administrative decision it is challenging. The PCHB specifically held that Ecology could contact CRITFC to meet its requirement of consulting with the tribes as required under the regulations. But the Tribes did not assign error to this finding. They did, however, devote a section of their brief to the issue. By doing so, the Tribes preserved the issue for appeal. See King County v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 91 Wn. App. 1, 21 n. 46, 951 P.2d 1151 (1998), aff'd in part, rev'd in part on other grounds, 138 Wn.2d 161, 979 P.2d 374 (1999).
CRITFC was created in 1977 by the Nez Perce Tribe, the Confederated Tribes of the Umatilla Indian Reservation, the Confederated Tribes of the Warm Springs Reservation of Oregon, and the Yakama Nation. CRITFC is governed by the fish and wildlife committees of the governing Tribes. CRTIFC provides technical and legal support to the Tribes to meet the goals of formulating a broad, general fisheries program. CRITFC is not an Indian tribe.
Ecology does not dispute that the Nez Perce and Umatilla Tribes are appropriate tribes for purposes of the regulation. Ecology also admits it did not contact those tribes during the consultation process. The regulation unambiguously requires Ecology to consult with the Tribes. It did not. The PCHB erred in determining consultation with CRITFC was sufficient.
Ecology contests two factual statements made by PCHB in its orders on summary judgment. But any factual findings in an order of summary judgment are superfluous and have no consequence on appeal. Skimming v. Boxer, 119 Wn. App. 748, 755, 82 P.3d 707, review denied, 152 Wn.2d 1016 (2004). Therefore, we need not address the issue.
KID claims the PCHB could not enter summary judgment because the Tribes did not present any evidence of any harm to fish as a result of the water permits at issue. KID asserts that, without any proof the fish would be harmed, the consultation requirement is not triggered. WAC 173-531A-060 and WAC 173-563-020(4) require Ecology to consult with the Indian tribes in evaluating water permits. There is no requirement of showing harm to fish before this consultation must occur. KID's argument fails.
Furthermore, an issue of fact existed regarding harm to fish. There was concern about the effect new water uses would have on the river flows and fish. Some experts indicated any diversion of water would harm fish, while others stated there would be no impact on fish. There is a question of fact and the PCHB did not err in so finding.
KID next claims the Tribes lacked standing to challenge the water permits. Standing exists if the party asserting standing has an injury in fact and the injury is covered by the regulation in question. SAVE v. City of Bothell, 89 Wn.2d 862, 866, 576 P.2d 401 (1978). An injury in fact exists if the group or one of its members will be harmed by the action at issue. Id.
The Tribes have treaty rights to take fish from the Columbia. They contend the new water permits will impair their rights or injure them. These rights are within the protection of the regulations at issue. The Tribes therefore have standing.
The Tribes request, without argument, attorney fees and costs pursuant to RCW 4.84.350. RCW 4.84.350(1) states that 'a court shall award a qualified party that prevails in a judicial review of an agency action fees and other expenses, including reasonable attorneys' fees, unless the court finds that the agency action was substantially justified or that circumstances make an award unjust.' But the Tribes offer no basis for which they would be entitled to fees under RCW 4.84.350 or whether they meet the definition of a 'qualified party' under the statute. Edelman v. State ex rel. Pub. Disclosure Comm'n, 152 Wn.2d 584, 592, 99 P.3d 386 (2004). The request for fees is denied.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, J. and BROWN, J., Concur.