BEFORE THE FOREST PRACTICES APPEALS BOARD
KETTLE RANGE CONSERVATION )
GROUP, )
)
and )
)
THE LANDS COUNCIL, )
)
Appellants, ) FPAB NOS. 98-33, 99-18 & 00-006
)
v. ) FINAL FINDINGS OF FACT,
) CONCLUSIONS OF LAW
WASHINGTON STATE
DEAPARTMENT ) AND
ORDER
OF NATURAL RESOURCES, )
)
and )
)
STIMSON LUMBER COMPANY, )
)
Respondents. )
__________________________________________)
This matter came on for hearing before the Forest Practices Board June 26 through June 30, 2000. Written closing arguments in the case were filed August 18, 2000. Administrative Appeals Judge, William A. Harrison presided for the Board during the hearing. The Board was comprised of Dr. Martin R. Kaatz, Chair, Robert E. Quoidbach and Gregory T. Costello. Appellants Kettle Range Conservation Group and The Lands Council were represented by counsel Toby Thaler of the Washington Forest Law Center. Respondent State of Washington, Department of Natural Resources was represented by Assistant Attorney General Kay Brown. Respondent Stimson Lumber Company was represented by counsel Max M. Miller, Jr. and Kathryn Powell Dempsey. The hearing was recorded by Gene Barker & Associates, Olympia, Washington.
The Board received the sworn testimony of witnesses, admitted exhibits and received written closing arguments on behalf of the parties. Having fully considered the record, the Board enters the following:
I.
This case arises in Pend Oreille County in the LeClerc Creek watershed near Usk.
II.
In 1992, the State Forest Practices Board adopted by rule a new process to be known as “Watershed Analysis.” Chapter 222-22 WAC. The purpose of the rule is stated in its policy section as follows:
Public resources may be adversely affected by the interaction of two or more forest practices. The purpose of this rule is to address these cumulative effects of forest practices on the public resources of fish, water and capital improvements of the state or its political subdivisions. The long-term objective of this rule is to protect and restore these public resources and the productive capacity of fish habitat adversely affected by forest practices while maintaining a viable forest products industry.
III.
In 1996, the Plum Creek Timber Company initiated watershed analysis for the LeClerc Creek watershed in Pend Oreille County where it then owned commercial timber lands.
IV.
In 1996, Stimson purchased Plum Creek’s timberland in the watershed. Stimson elected to complete the watershed analysis.
V.
LeClerc Creek empties to the Pend Oreille River. The LeClerc Creek watershed is some 60,000 acres in extent. “Checkerboard” ownership characterizes the watershed. That is, sections of Stimson land alternate with sections of national forest land. Checkerboard ownership originated with congressional policy in the nineteenth century, which granted alternate sections of forests to private railroad companies as an incentive to build railroads into the west. Stimson’s holdings here were originally railroad timberlands.
VI.
Stimson’s watershed analysis for Le Clerc Creek addressed a number of environmental concerns. The concern at issue in this case is “surface erosion.” (Stipulation of the Parties entered July 20, 2000.) Specifically, prescriptions 5,6,11 and 12 concerning fine sediment are at issue. Id.
VII.
After issuing a modified declaration of non-significance, the DNR approved Stimson’s LeClerc Creek Watershed Analysis (hereafter WSA) in 1998. This approval included each of the fine sediment prescriptions at issue here.
VIII.
Stimson must seek access over USFS roads to harvest its timber. Whenever Stimson seeks such access, the USFS asks Stimson to enumerate the future timber harvests for which the access is sought. Stimson has previously provided a list of possible harvests in response to this USFS requirement. However, deciding which timber units to harvest is an on-going process. It is also highly variable. The factors which make this so include: 1) the size of trees, weather and disease, 2) labor and equipment availability, 3) land sales, and, most critically, 4) market conditions and business needs.
IX.
Because estimated lists of future specific harvests are necessarily changeable and non-binding, the DNR did not evaluate future forest practices, by that means, in considering the WSA. Rather, the DNR took future forest practices into account by assuming that landowners will harvest all available timber in a watershed. Stimson does intend to harvest all areas of the watershed, given time. The DNR took future forest practices into account, in approving the WSA.
X.
The LeClerc Creek watershed is an area of erodible soils where sedimentation occurs naturally. In addition, logging in the area dates from the nineteenth century during times pre-dating environmental concerns. Modern forestry must be conducted against this natural and historical background.
XI.
The WSA set the objective of reducing delivered road sediment to less than 50 percent above natural erosion rates. (WSA Prescription 5). This was deemed adequate to “prevent or avoid” adverse effect to resource characteristics. Id. See also WAC 222-22-070 (3). The “50 percent standard” is also the minimum level of detectability for change to natural conditions.
XII.
The WSA led to Stimson’s “Road Maintenance and Sediment Reduction Plan” [Exhibit R-110] which was completed in August 1999.
XIII.
With the WSA and its road plan in mind, Stimson identified the “middle branch road” as a place to begin achieving the WSA “50 per cent” goal for reduction of road sediment. The middle branch road lies alongside the middle branch of LeClerc Creek. Its alignment is along an old logging railroad grade. It is likely that the railroad was converted to a vehicle road in the 1920’s or 30’s. In order to reduce the delivery of fine sediment to LeClerc Creek from the middle branch road, Stimson proposed to surface it with gravel and armor its flank with large rock. Because the middle branch road passes alternately over Stimson land and national forest land, Stimson reached a cooperative agreement with the United States Forest Service (USFS) to carry out the road-rocking project. The project was cooperatively carried out and completed in September-October, 1999.
XIV.
The rocking of the middle branch road is likely to advance the objective of the WSA to reduce road sediment. This is so despite the use of the road for log hauling. More sediment would wash from the middle branch road to LeClerc Creek without road-rocking and log-hauling, than with road rocking and log-hauling.
XV.
The fine particles that exist in the road surface gravel serve to cement the gravel with traffic use. The actual level of log-hauling traffic that followed the rocking of the middle branch road (800 trips) was within the contemplated levels of the WSA. The bulk of that log-hauling was conducted under frozen conditions where the risk of sediment transfer is at a minimum.
XVI.
Certain of the armor rock along the flank of the middle branch road was placed by the USFS into the wetted perimeter of LeClerc Creek. There has been insufficient showing that this rock has produced a significant adverse effect upon the creek or fish life either from the release of sediment or otherwise.
XVII.
The cooperative road-rocking of the middle branch road received review from the United States Fish and Wildlife Service (USFWS) in the form of a “Biological Opinion” with particular respect to Bull trout, a federally-listed threatened species. This review was conducted before the road rocking took place. The Biological opinion concluded that:
…it is the
Service’s biological opinion that the continued use and maintenance of the
cost-share road will adversely affect but
is not likely to jeopardize the continued existence of the Columbia River
distinct population segment of Bull trout.
(emphasis added)
Exhibit A-39, at 20.
XVIII.
However, the Biological Opinion went on to state that, “There is a risk of incidental take of the bull trout.” Consequently the Biological Opinion set out mandatory “Terms and Conditions” that must be followed for the USFS to be exempt from the section of the US Endangered Species Act prohibiting the “take” of a threatened species. Among these was the following:
“If there is not
demonstrable progress on the proposed relocation of this road segment within
two years of the date of this BO, or, if there is progress, but the relocation
has not been accomplished in three years, stabilize
the road surface by graveling or other surfacing to reduce erosion.” (emphasis added)
Exhibit A-39 at 22.
XIX.
After the road rocking had taken place, with both the surface gravel and rock armor in place, the USFWS inspected the middle branch road. It then wrote to the USFS, in pertinent part, as follows:
Stimson has put considerable effort into improving this road segment, grading and resurfacing it with a substantial layer of rock. The result is a much improved road surface that, after a first year settling period, can be expected to minimize sediment input to Middle Branch. These improvements meet the intent of those Terms and Conditions in our Biological Opinion on the continued use and maintenance of this segment of Road 1935 (FWS #1-9-99-F01) that apply to stabilizing the road surface.
Exhibit A-38.
XX.
The three forest practices approvals (FPAs) at issue in this appeal were classified as “Class III” by the DNR. While appellants raise concerns for grizzly bears, that species is addressed within the FPAs. FPA No.-4664 provides that “Grizzly bear cover blocks will overlay drainages and wet areas.” FPA No. –5305 provides that Unit 3 is designed to provide cover for grizzly bears from unit 1.” With respect to lynx, Stimson operates under a Lynx Range Management Plan prepared in 1996. The appellant has not shown that the FPAs at issue are likely to have an adverse effect upon grizzly bears, lynx or other wildlife.
XXI.
Any Conclusion of Law deemed to be a Finding of Fact is hereby adopted as such. From these Findings of Fact, the Board issues the following:
I.
The issues in this matter address the propriety of both the specific forest practices approvals (FPAs) granted in the watershed to date and the broader WSA. We now address these in turn.
II.
Specific FPAs. One FPA (No. -4464) in particular and, to a lesser extent, the two others (Nos. -5305 and -4448) would use the middle branch road for log-hauling. Appellants assert that the rocking of the middle branch road ought to have been classified as a “Class IV-Special” forest practice. A Class IV-Special forest practice is subject to the State Environmental Policy Act. WAC 222-16-050 (1). Alternatively, appellants urge that the rocking completed on the middle branch road ought to have rendered the harvest FPAs as Class IV-Special. We disagree.
III.
In urging that the road rocking was Class IV-Special, appellants cite the following Class IV-Special rule in effect during the facts of this case:
(k) Salmonids-harvesting, construction of roads, landings, rock quarries, gravel pits, borrow pits, and soil disposal areas aerial applications of pesticides, or site preparation, within the areas on the salmonid listed map in WAC 222-16-088, within 100 feet of a type 1, 2 or 3 water. Road construction means any new construction, reconstruction, or road maintenance activity that is not a Class I forest practice (emphasis added).
WAC 222-16-080 (1) (k).
IV.
The Middle Branch of LeClerc Creek would be a Type 1, 2 or 3 water. The middle branch road is, and has been, within 100 feet of the Creek. Rocking of the road is a maintenance activity that would be road construction under the cited rule. However, the cited rule does not end there. It goes on to provide that such forest practices are Class IV-Special provided that the “road maintenance activity is not a Class I forest practice.” Both legislation and rules must be read so as to give effect to all the provisions, thereby not rendering any passage superfluous. State v. Taylor, 30 Wn. App 844, 846 rev’d on other grounds 97 Wn. 2d 724 (1982).
V.
Giving effect to the proviso of WAC 222-16-080 (1) (k), the road rocking is not a Class IV-Special forest practice. That is because “rocking an existing road” is defined as a Class I forest practice. WAC 222-16-050 (3) (g). In the absence of evidence that the road work performed exceeded that which is normally considered road rocking, we conclude that the road rocking in question was a Class I forest practice. Therefore the DNR classification of the challenged FPAs as Class III was not shown to be erroneous on that account or otherwise.
VI.
In so ruling we are cognizant that the prefatory language in WAC 222-16-050 (3) begins by saying “When the conditions listed in Class IV –Special are not present…” certain forest practices are Class I. And the rule referring to 100 feet of distance from a stream, WAC 222-16-080 (1) (k), supra, is a Class IV-Special rule. However, rules must also be construed to avoid absurd or strained consequences. See State v. Fjermestad, 114 Wn. 2d 828, 835 (1990). Were the prefatory language of WAC 222-16-050 read to embrace all forest practices within the 100 foot zone of WAC 222-16-080 (1) (k), there would be nothing to which the express exemption for Class I forest practices, in WAC 222-16-080 (1) (k), could apply. We decline to make such a strained interpretation of WAC 222-16-050 as it would again render the Class I exemption language of WAC 222-16-080 (1) (k) as surplusage. See State v. Taylor, above.
VII.
Rocking an existing road, a Class I forest practice, requires no prior notification to, nor approval from, the DNR. However, any forest practice, including those in Class I, must comply with forest practices rules implementing the Forest Practices Act:
Where necessary to accomplish the purposes and policies stated in RCW 76.09.010, and to implement the provisions of this chapter, the [forest practices] board shall adopt forest practices rules pursuant to chapter 34.05 RCW and in accordance with the procedures enumerated in this section that:
(a) Establish minimum standards for forest practices;
RCW 76.09.040 [brackets added] [emphasis added]
VIII.
Class I forest practices are subject to a stop work order or notice to comply where there is a potential for material damage to a public resource WAC 222-46-030 and WAC 222-46-040. Public resources include waters and fish. WAC 222-16-010. In this case, it has not been shown that the potential for material harm to a public resource is likely to occur as a result of the rocking of an existing road.
IX.
The appellants have not shown that the FPAs at issue are likely to have an adverse effect upon wildlife.
X.
LeClerc Creek Watershed Analysis (WSA) Appellants challenge the approval by DNR of the LeClerc Creek Watershed Analysis (WSA) on grounds of alleged non-compliance with the State Environmental Policy Act (SEPA) and the Forest Practices Act. We address these separately.
XI.
The WSA and SEPA. The relation between watershed approval and SEPA has been examined in two cases of the Court of Appeals on review from decisions of this Appeals Board. In the first of these, the Court of appeals held :
Although future forest practices in the watershed analysis unit are concededly likely, neither the watershed analysis nor the SEPA checklist describe specific future forest practices proposed for the watershed unit.
…
(T)here is little if any question that Plum Creek will make application for forest practices in the Alps watershed in the future. The analysis so indicates and it is unlikely that Plum Creek would have gone to the expense of performing the analysis if it did not so intend.
…
Notwithstanding the deference we owe to the agencies’ interpretation of the statutes and regulations they administer, it begs reason to conclude that a Class IV forest practice that would otherwise require threshold SEPA analysis to determine whether an EIS must be prepared can be ignored in the process of threshold SEPA analysis leading to the approval of a watershed analysis by which those same practices will become categorically exempted from SEPA.
…
Plum Creek and the agency appellants take the fallback position that regardless of the FPAB’s stated basis for its ruling, the Alps Watershed Analysis and DNR did consider these future forest practices and the prescriptions contained therein are adequate to avoid or minimize any adverse environmental effects of future forest practices. Those are factual issues…
Alpine Lakes Protection Society v. Plum Creek Timber Co., 102 Wn. App. 1, 979 P. 2d 929, 934, 937 (1999). Hereafter cited as “ALPS II.”
XII.
In the second case, the Court of Appeals held:
Upon approval of a watershed analysis, Class IV forest practices that would otherwise require threshold SEPA review to determine whether an EIS must be prepared are effectively reduced to the level of Class III practices and are exempt from SEPA review by virtue of the watershed analysis. Therefore, we concluded, any future Class IV forest practices that would otherwise require threshold SEPA analysis should not be ignored in the process of deciding whether to approve a watershed analysis by which those same practices would become exempt from SEPA. We remanded the case to the FPAB to determine whether an EIS was required after considering Plum Creek’s future, albeit as yet unproposed, forest practices.
On remand of Alpine Lakes II, the FPAB must evaluate the possible adverse environmental effects of Plum Creek’s road proposal and possible future timber harvests, in determining whether an EIS is required for the watershed analysis. But the FPAB need only evaluate any possible environmental effects upon water, fish and capital improvements. Thus, Alpine Lakes II does not affect the present lawsuit, in which the impacts on aesthetics and recreation are at issue.
Plum Creek Timber Co. v. FPAB, 99 Wn. App 579, 588, 993 P.2d 287, 291-2 (2000). Hereafter cited as “ALPS III.”
XIII.
As a threshold issue, respondents urge that ALPS II is not effective precedent because a) a mandate has not been issued in the case and b) a mandate cannot be issued due to the pendency of a motion for reconsideration filed approximately a year ago. While we recognize the reduced status of an appellate opinion that has no mandate; nevertheless, we must presently resolve issues in this case that are similar to those in the ALPS cases of the Court of Appeals. We will, in doing so, regard those cases as instructive, whether or not binding as precedent.
XIV.
A second threshold issue raised by respondents is the enactment of the following statute by the legislature after the WSA in this matter was approved by DNR:
For purposes of the department’s threshold determination on a watershed analysis, the department shall not make a determination of significance unless the prescriptions themselves, compared to rules or prescriptions in place prior to the analysis, will cause probable significant adverse impact on elements of the environment other than those addressed in the watershed analysis process. Nothing in this subsection shall be construed to affect the outcome of pending litigation regarding the department’s authority in making a threshold determination on a watershed analysis.
1999 1st Special Session, C.4, Section 1201(2): RCW 43.21C.260 (2).
XV.
The last sentence of the above statute exempts from its reach “ pending litigation regarding the department’s authority in making a threshold determination on a watershed analysis.” Once again, we must construe legislation so as to give effect to all the provisions, thereby not rendering any passage superfluous. State v. Taylor, 30 Wn. App 844, 846 rev’d on other grounds 97 Wn. 2d 724 (1982). This case involves the department’s authority in making a threshold determination on a watershed analysis. It was pending before this Appeals Board at the time of enactment of the statute in question. Respondents urge that the exemption for “litigation” does not apply here because ‘this case was on administrative appeal and an administrative appeal is not ‘pending litigation’.” We disagree.
XVI.
The term “litigation” is not ambiguous in light of Washington State precedent referring to quasi-judicial proceedings as “litigation.” See Weyerhaeuser v. Tacoma-Pierce County Health Dept., PCHB 99-067 et al. (1999); Webster v. Ecology, SHB 98-29 (1999) (“The [shorelines hearings] board is a quasi-judicial body. RCW 90.58.170. Its position is analogous to a superior court. Portage Bay v. Shorelines Hearings Bd., 92 Wn.2d 1, 8-9, 593 P.2d 151 (1979).”); Harris v. Pierce County, 84 Wn.App. 222, 234, 928 P.2d 1111 (1996); Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 115, 829 P.2d 746 (1992); and Keane v. Brygger, 3 Wash. 338, 350, 28 P. 653 (1891). More to the point, this Appeals Board is unlike many other administrative bodies in that it hears and resolves contested cases as its sole function under the law. Its rules of procedure are drawn from the adjudicative proceeding provisions of the State Administrative Procedure Act. These rules guarantee the rights of subpoena and discovery, examination and cross examination, a verbatim record of testimony, testimony under oath, confinement of the decision to the record, full consideration of the rules of evidence, and public proceedings, among other attributes of due process... See Chapter 223-08 WAC. The Appeals Board is the place where witnesses testify in person, subject to appraisal for credibility. Matters within the jurisdiction of the Appeals Board may not be commenced in superior court. RCW 76.09.220 (7). The review conducted by the superior court is appellate in nature, and normally turns upon the transcripts of the testimony. See RCW 34.05.562, -.566 and-.570.
XVII.
Clear and unambiguous statutory language should not be varied by construction. Hines v. Data Lines Systems Inc. 114 Wn. 2d 127, 143 (1990). Kofmehl v. Steelman 63 Wn. App 133, 136 (1991). The statutory term “litigation” in RCW 43.21C.260 (2) is not ambiguous[1], and includes proceedings before this Appeals Board. Because this case was pending before the Appeals Board at the time RCW 43.21C.260 (2) was enacted, that statute, by its own terms, excludes this case.
XVIII.
Because the ALPS cases of the Court of Appeals are instructive, and because they are unaltered in this case by RCW 43.21C.260 (2), we now apply those appellate cases. The key element of the holding in ALPS II was the need for DNR to consider “future forest practices” when reviewing a WSA under SEPA. Whether this was done in any particular case was deemed a factual issue. ALPS II, 979 P. 2d at 937. We have found as fact in this case that the DNR did consider future forest practices within the LeClerc Creek watershed in approving this WSA. (Findings of Fact 8 and 9, above.) The manner of this consideration was to assume the complete logging of the watershed. There are sound policy reasons advanced by the respondents for doing so. As opposed to requiring a list of future specific harvests, which can change in response to market conditions, the assumption that the watershed will be completely logged reveals environmental consequences throughout the watershed. In this way, the environmental effects will drive operator’s plans, not the other way around. Any analysis that relies on changeable specific plans may not accomplish that purpose. Finally, it is important to note that this consideration is of future forest practices as contemplated to occur, on the ground, in compliance with a proposed WSA. This is not the mere assertion that putting ink to paper in the course of writing the WSA will have no environmental effect, rather it contemplates the ensuing forest practices. The DNR considered future forest practices, in a manner consistent with ALPS II, in approving this WSA.
XIX.
In ALPS II, the Court of Appeals pointed out the need to consider the future Class IV forest practices during SEPA review of a WSA:
…it begs reason to conclude that a Class IV forest practice that would otherwise require threshold SEPA analysis to determine whether an EIS must be prepared can be ignored in the process of threshold SEPA analysis leading to the approval of a watershed analysis by which those same practices will become categorically exempted from SEPA.”
Alps II, 979 P. 2d at 937. Because the DNR assumed the complete logging of the watershed, it did not ignore any future forest practice, whether Class IV or otherwise and met the standards of ALPS II.
XX.
Under ALPS III, appellants have the right, and burden, on appeal, to show that the retention of SEPA for individual forest practices within the watershed would result in greater protection to water, fish and capital improvements than the WSA. The appellants have failed to do so. There has neither been evidence of a specific, present forest practice, nor of any or all future forest practices, where SEPA would better the resource protection afforded by the WSA. The SEPA procedure used by the DNR in this matter was consistent with ALPS II and III.
XXI.
A threshold determination under SEPA, such as the MDNS made here by the DNR, is subject to review under the “clearly erroneous” standard. RCW 43.21C.090. Indian Hill Property Owners Ass’n v. Spokane, 76 Wn. App. 430, 441 (1994). Under the “clearly erroneous” standard, a threshold determination should not be reversed unless we are “left with the definite and firm conviction that a mistake has been committed.” Applying the “clearly erroneous” test to a DNS, we must determine that “environmental factors were considered in a manner sufficient to amount to prima facie compliance with the procedural requirements of SEPA.” Sisley v. San Juan County, 89 Wn. 2d 78, 84 (1977).
XXII.
The DNR has considered environmental factors in a manner sufficient to amount to prima facie compliance with the procedural requirements of SEPA. It did so by consideration of: (1) the SEPA checklist for the WSA; (2) future forest practices; (3) its understanding of past administration of separate harvests within a watershed under SEPA; and (4) its understanding of the basin-wide body of prescriptions contained within the WSA. The appellants have failed to demonstrate that the threshold determination made by DNR in approving this WSA, a modified determination of non-significance, was clearly erroneous.
XXIII.
The WSA and the Forest Practices Act. The rules implementing the Forest Practices Act provide as follows, in pertinent part, regarding the approval of a watershed analysis:
WAC 222-22-080 (3) (a) and (b):
(3) The department shall approve the draft watershed analysis unless it finds:
(a) For any level 1 assessment or level 2 assessment, that:
(i) The team failed in a material respect to apply the methodology, indices of resource conditions, or checklists set forth in the manual; or
(ii) A team meeting the criteria promulgated by the department and using the defined methodologies, indices of resource conditions, and checklists set forth in the manual could not reasonably have come to the conclusions identified in the draft level 1 or level 2 assessment; and
(b) For the prescriptions, that they will not accomplish the purposes and policies of this chapter and of the Forest Practices Act, chapter 76.09 RCW.
XXIV.
The WSA Assessment and Prescription Teams followed the Manual’s methodology for a level two assessment. Nearly every stream and road in the watershed was viewed in the preparation of this WSA.
XXV.
The manual , Exhibit R-104 at page B-26 states:
During the Start up phase, each
landowner in the WAU is asked to
provide a map of his/her roads, coded according to the type of surfacing and
traffic use that occurs. The traffic
use should reflect an average of use
expected over the next 5 years. If the
future road use is not known, the analysts may
assume that the past five years use rate is a good representation. (emphasis
added).
XXVI.
Appellants correctly point out that Stimson did not furnish the DNR with a traffic count, in truck trips, for the log hauling that followed after rock was placed on the middle branch road. That number, 800 trips, was within the contemplated levels of the WSA with its assumption of future logging. There was no material non-compliance with the manual on this account.
XXVII.
It has not been shown that the Assessment Team failed in a material respect to apply the methodology set forth in the Watershed Analysis Manual.
XXVIII.
It has not been shown that the Assessment Team failed in a material respect to apply the indices of resource condition forth in the Watershed Analysis Manual.
XXIX.
It has not been shown that the Assessment Team failed in a material respect to apply the checklists as required by the Watershed Analysis Manual.
XXX.
It has not been shown that a team meeting the criteria of the department, using correct methodology, could not reasonably have come to the conclusions identified in the draft WSA.
XXXI.
The approval by the DNR of this WSA was not shown to be inconsistent with WAC 222-22-080 (3) (a).
XXXII.
The policy of the Watershed Analysis rules:
“…is to protect and restore these public resources [fish, water and capital improvements of the state or its political subdivisions] and the productive capacity of fish habitat adversely affected by forest practices while maintaining a viable forest products industry.” WAC 222-22-010 (1). [brackets added]
The rules further provide:
“These prescriptions shall be reasonably designed to minimize, or to prevent or avoid…the likelihood of adverse change and deliverability that has the potential to cause a material, adverse effect to resource characteristics…” WAC 222-20-070(3).
XXXIII.
As a challenge to the WSA, appellants point out that the rock armoring of the middle branch road resulted in rock being placed within the wetted perimeter of the middle branch of Le Clerc Creek. The rock does not violate the WSA as it is not “fine sediment” from road erosion as addressed in prescriptions 5,6,11 and 12 at issue. The implication raised by appellants is that the rock was both allowed by the WSA and harmful, therefore the WSA is deficient. However, there has been insufficient evidence that this rock is materially harmful to any element of the environment. Nor, more specifically, that it would have a significant, adverse effect upon the public resources of fish, water, or capital improvements of the state or its political subdivisions., which the WSA was written to protect.
XXXIV.
There is insufficient evidence to establish that the prescriptions at issue will fail to accomplish the purposes and policies of the Forest Practices Act or the Watershed Analysis rules. Thus, the approval by the DNR of this WSA was not shown to be inconsistent with WAC 222-22-080 (3) (b).
XXXV.
Finally, appellants have pointed out that monitoring is not required by forest practices rules once a WSA is approved. We have so held in an earlier phase of this case, citing WAC 222-22-090 (3). (Order on Department of Natural Resources’ and Appellants’ Motion for Summary Judgment entered February 19, 1999, at paragraph 3.8.)
XXXVI.
We also held in the same Order, at paragraph 3.9, that:
“Appellant’s claim that prescriptions 1-8 and 12 are invalid because they do not provide for monitoring is a challenge to the forest practices rules.”
As prescriptions 5,6,11 and 12 remain at issue, we so hold now for prescription 11, the others being addressed above. We do not have jurisdiction to review the validity of forest practice rules. Alpine Lakes Protection Association v. State, FPAB No. 97-4, Order on Motions to Dismiss at Conclusion of Law VI, (1997) citing Snohomish County v. State, 69 Wn. App. 655, 663-64 (1993) and Dioxin/Organochlorine Center v. Boise Cascade Corp., 131 Wn.2d 345 (1997). We would make the observation, however, that watershed analysis is a form of adaptive management. Once a WSA is approved, it shall be revisited not later than 5 years later and revised, if necessary. WAC 222-22-090 (4) (a).
XXXVII.
In summary, the road rocking in this case was properly classified by the DNR as a Class I forest practice. The DNR correctly classified the three FPAs at issue as “Class III.” The decisions of the Court of Appeals in ALPS II and III are instructive and are unaltered by RCW 43.21C.260 (2) in this case. The SEPA procedure used by the DNR in this matter was consistent with ALPS II and III. Appellants failed to show that the threshold determination made by the DNR in approving this WSA, a modified determination of non-significance, was clearly erroneous. DNR’s approval of this WSA was not shown to be inconsistent with WAC 222-22-080 (3) (a) stating the assessment criteria for WSA approval. The approval by the DNR of this WSA was not shown to be inconsistent with WAC 222-22-080 (3) (b) stating the prescription criteria for the WSA approval. Accordingly, the FPAs and WSA in this matter should be affirmed.
XXXVIII.
Any Finding of Fact deemed to be a Conclusion of Law is hereby adopted as such. From the foregoing, the Board issues this:
The forest practices approvals 4448, 4464 and 5305 and the approval of the LeClerc Creek Watershed Analysis are each hereby affirmed.
Done this 14th day of November, 2000.
DR. MARTIN R. KAATZ, Chair
ROBERT E. QUOIDBACH, Member
GREGORY T. COSTELLO, Member
[1] Statutory ambiguities do not exist merely because the parties are able to argue distinct interpretations. State v. Taplin, 55 Wn. App. 668, 670 (1989). Were the term “litigation” ambiguous, which it is not, we would consider a reference in the legislative history as follows:
“Representative
Debbie Regala: Thank you Mr. Speaker.
This is just language clarifying that nothing in this Bill should be
interpreted to hinder litigation that is currently pending in the courts.” (emphasis added).
Black’s Law Dictionary defines the term “court” to include “An agency of the sovereign created by it directly or indirectly under its authority, consisting of one or more officers, established and maintained for the purpose of hearing and determining issues of law and fact regarding legal rights and alleged violations thereof, and of applying the sanctions of the law, authorized to exercise its powers in due course of law at times and places previously determined by lawful authority.” Citing Isbill v. Stovall, Tex. Civ. App., 92 SW. 2d 1067, 1070.
So considering, we would reach the same result as in our conclusions above; namely, that “litigation” includes proceedings before quasi-judicial tribunals such as this Appeals Board.