The Lands Council, App/cross-resp. v. State Parks And Recreation Commission, Resp./cross-app ( 2013 )

D
COURT OF APPEALS
DIVISJOII II
S' P
c 7 A
IN THE COURT OF APPEALS OF THE STATE OF WAS x2013 Sr 33
DIVISION II Y
TM
THE LANDS COUNCIL, No. 43158 1 II
- -
Appellant Cross -
/ Respondent,
FPM
WASHINGTON STATE PARKS PUBLISHED OPINION
RECREATION COMMISSION,
Respondent/ ross-
C Appellant,
1.
I
MOUNT SPOKANE 2000,
Intervenor.
MORGEN, J. —The Lands Council, a private organization, appeals the superior court's
grant of summary judgment' in favor of the Washington State Parks and Recreation Commission
Commission)on the Lands Council's claim that the Commission improperly classified 279
acres of Mount Spokane State Park without preparing an Environmental Impact Statement (EIS).
The Commission cross appeals the superior court's conclusion that the Lands Council had
standing. We hold that the Lands Council had standing and that the Commission violated the
State Environmental Policy Act ( EPA)by taking this action without preparing an EIS.
S
Accordingly, we affirm in part and reverse in part.
The trial court action that is appealed is denominated an order of dismissal, but its terms make
clear that it is an order of summary judgment.
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Chapter 43. 1C RCW.
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No. 43158-
11- 1
FACTS
A. THE NATURE AND HISTORY OF THE PROPOSAL
The Commission is responsible for managing state park land and using that land to
provide recreation to Washington residents. Mount Spokane State Park encompasses about.
14, 00 acres and supports a variety of year round recreational activities. Mount Spokane 2000
0 -
MS 2000)is a nonprofit ski resort, which has leased 2, acres of land from the state since
300
1951. MS 2000 has developed 1, acres of its leased land as an alpine ski facility, leaving 850
450
undeveloped acres. The undeveloped acres are known as the potential alpine ski expansion area
PASEA).
In 2008, MS 2000 submitted a conceptual plan to develop most of the 850 acres in the
PASEA, but later abandoned that plan. In August 2010, the Commission prepared a facilities
master plan, but because MS 2000 was no longer pursing its 2008 plan,the master plan did not
classify the PASEA. In December 2010, MS 2000 submitted a new conceptual plan for the
PASEA. Under this plan, ski runs would be developed over 279 acres, with the remaining 571
acres in the PASEA left in a natural condition and used for lower impact activities such as
snowshoeing. The Commission agreed to address both the PASEA classification for the 850
acres and MS 2000's development concept for the 279 acres at its May 2011 meeting.
In preparation for the May meeting, commission staff prepared a PASEA management
classification plan, which considered a number of scenarios, including authorizing no
development, authorizing different levels.of low impact activities, and authorizing the proposed
j The Commission uses six land classifications, which either authorize high, medium, or low
intensity recreational activities or limit land to preservation. The six classifications include
recreation, resource recreation, natural, heritage, natural forest, and natural area preserves.
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No. 43158 1 II
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ski run expansion in a portion of the PASEA. The commission staff also provided MS 2000 with
an environmental checklist under SEPA, which incorporated several environmental reports and
analyses from the 2010 master planning process. After the commission staff reviewed the
completed environmental checklist, it determined that a mitigated determination of
MDNS)was appropriate under SEPA for both MS 2000's concept and the
nonsignificance (
management classifications proposed for commission adoption. The MDNS for the conceptual
plan included the condition that MS 2000 prepare an EIS and a Supplemental EIS when it
submitted an actual detailed development proposal. The MDNS also included numerous other,
requirements and restrictions on any actual development.
The Commission held public meetings on the proposal on May 18 and 19, 2011. After
taking public comment,the Commission classified the 279 acre proposed alpine ski area as
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recreation, except that the treed islands between the ski runs were classified Resource
Recreat ion.5 Clerk's Papers (CP)at 367 69.
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The Commission also stated that the classification option it approved " ould allow for
w
the development of the MS 2000 proposal to develop one lift and seven ski runs on the 279 acre
-
developed ski area ...." CP at 367. The Commission's action " redicated"this development
p
on a number of other steps, among which were "[
s] project level environmental review
uccessful
and permitting"and approval by the director of parks and recreation " f the final development
o
plan for expansion of developed alpine skiing into the PASEA."CP at 367. The Commission's
action also specified that the " S 2000 proposal is conceptual in nature and that final
M
4
WAC 197 11 350.
- -
5 The map at Clerk's Papers 371 entitled PASEA Land Classifications, shows the configuration
of these classifications.
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No. 43158 1 II
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development plans will designate the location of the treed ski islands and developed ski runs."
CPat367.
The report by the commission staff on the proposal adopted by the Commission and other
options noted that the PASEA "s known to support sensitive plant associations and habitats
i
suitable for Canada Lynx, Grey Wolf,and Wolverine listed as threatened, endangered, and
candidate species respectively by the US Fish and Wildlife Service."CP at 101. The staff report
stated that:
h] abitat provided in the PASEA retains its. integrity given limited past
disturbance by humans and its connectivity to other functional habitats throughout
the park, Spokane County, and the greater Washington Idaho landscape.
-
CP at 101. As climatic conditions change, the report noted, T] e PASEA ( specially the
"[ h e
highest areas on the mountain) may serve as a critical refuge for migrating and resident wildlife
species."CP at 101. Finally,the report stated:
From a biological perspective, the PASEA's significance is not inherent in its
individual significant natural features, e. .,
g wetlands, old growth trees, or non-
forested meadows, but in the assemblage of all of them, their interdependence,
their undisturbed extent, and the diversity of habitats they create together.
Protecting the most significant individual features and removing those of lesser
significance may undermine their biological integrity by reducing connectivity
and biologically fragmenting one natural system from another. Additional human
presence would also result in impacts to resident wildlife species sensitive to large
numbers of people and intense activity.
CP at 101.
In its comment letter,the Washington Department of Fish and Wildlife stated that the
proposed expansion " ill effectively eliminate nearly 300 acres of old -growth forest habitat and
w
reduce the ecological value and function of the remaining habitat."CP at 126. The Department
took the position that completing the EIS after issuing the MDNS would not effectively mitigate
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No.43158 1 II
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all probable, significant adverse environmental impacts of the proposal. The Department of
Natural Resources took the position that the proposal would adversely impact wildlife habitat.
B. PROCEDURAL BACKGROUND
The Lands Council petitioned for review in superior court, challenging the Commission's
management classification of the PASEA without an EIS. The Lands Council requested relief
through the Administrative Procedure Act,SEPA, the uniform Declaratory Judgments Act,a
statutory writ of certiorari, and a constitutional writ of certiorari.
The Commission and MS 2000 moved for partial summary judgment dismissing the
Lands Council's claims under the Administrative Procedure Act, SEPA,the Uniform
Declaratory Judgments Act and the certiorari statute and ruling that the Lands Council lacked
standing under SEPA. The Lands Council filed a cross motion requesting issuance of a
constitutional writ of certiorari, which the Commission and MS 2000 opposed.
The superior court held that the Lands Council had standing to bring the action and that
the Commission had properly followed SEPA in adopting its classifications in May 2011. On
this basis,the court granted summary judgment to the Commission dismissing with prejudice all
claims by the Lands Council under the Administrative Procedure Act,the uniform Declaratory
Judgments Act,the statutory writ of certiorari, and SEPA. The court also denied the Lands
6
Lands Council did not challenge the Commission's approval of MS 2000's basic concept.
7
Chapter 34. 5 RCW.
0
8
Chapter 7.4 RCW.
2
9
Chapter 7.6 RCW.
1
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No. 43158 1 II
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Council's petition for a constitutional writ of certiorari, finding no evidence of illegality or
arbitrary and capricious conduct in conjunction with the Commission's challenged actions.
The Lands Council appealed, and,the Commission cross appealed on the issue of
standing. MS 2000 intervened in support of the Commission.
ANALYSIS
A. INTRODUCTION
This appeal turns on two central issues: whether the Lands Council had standing to bring
its action under SEPA and whether the Commission violated SEPA when it reclassified areas for
expansion of alpine skiing in May 2011 without preparing an EIS. The resolution of these
issues, in turn, depends on the nature of the May 2011 action: was it merely the adoption of a
classification that would allow consideration of possible development proposals in the future, as
the Commission urges; or was it the final action of the Commission approving some level of
alpine ski development in the 279 acre expansion area, as the Lands Council argues?A review
-
of the record shows that the Lands Council's characterization is correct.
We begin by examining the nature of the Commission's action and then turn to the
standing and EIS issues.
B. STANDARD OF REVIEW
The Lands Council challenges the classification decision and the MDNS issued for it.
The heart of the challenge is the claim that an EIS should have been prepared for the
classification decision, and not postponed to a later time. Challenges to an_ are reviewed
MDNS
clearly erroneous"standard. Norway Hill Pres. &
under the " Prot. Ass'n v. King County, 87
Wn. d 267, 271, 552 P. d 674 (1976)quoting Ancheta v. Daly, 77 Wn. d 255, 259, 461 P. d
2 2 ( 2 2
Cel
No. 43158 1 II
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531 (1969)).
Under this standard, the court will overturn the agency's determination if,after
reviewing all the evidence, it is left with the definite and firm conviction that the agency
committed a mistake. Norway Hill,87 Wn. d at 274.
2
The superior court decision under review is an.rder of summary judgment dismissing
o
the Lands Council's claims. When reviewing a summary judgment order, we engage in the same
inquiry as the trial court. Reynolds v. Hicks, 134 Wn. d 491, 495, 951 P. d 761 (1998).
2 2
Summary judgment is appropriate when there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. CR 56( ). parties do not argue that there
c The
are genuine issues of material fact. Therefore, we ask whether the Commission was entitled to
judgment as a matter of law,reviewing the MDNS as a whole under the erroneous
standard.
C. THE NATURE OF THE CHALLENGED ACTION
The heart of the Commission's action, as noted above, was to classify the 279 acre area
-
proposed for alpine ski expansion as Recreation, except that the treed islands between the ski
runs were classified Resource Recreation. According to WAC 352 16- 1), classified as
- - 020( areas
Recreation " re suited and/or developed for high-
a intensity outdoor recreational use, conference,
cultural and or educational centers, or other uses serving large numbers of people."Resource
/
Recreation areas, on the other hand, are suited and or developed for natural and or cultural
" / /
resource based medium-
- intensity and low-
intensity outdoor recreational use."
WAC 352 16-
-
020( ).
2
The effect of a classification is spelled out in WAC 352 16- 1), states:
- 030( which
t] director shall develop management guidelines for each land classification
he
listed in WAC 352 16 020. The guidelines shall provide specific direction for
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No. 43158 1 II
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each classification, outlining the philosophy of each classification, its appropriate
physical features, location, allowed and prohibited activities, and allowed and
prohibited developments.
Under this provision, adoption of a classification also fixes which uses are allowed and which are
prohibited within its bounds.
The record does not contain the management guidelines which the director was required
to adopt under WAC 352 16 030. However, the Commission's own action in adopting the
- -
classification made clear that the proposed alpine ski area expansion is an allowed use under the
terms of that action. Immediately following the listing of the classifications, the Commission's
adoption document stated, This option would allow for the development of the MS 2000
"
proposal to develop one lift and seven ski runs on the 279 acre
- developed ski area ...." CP at
367. Thus, whether the management guidelines required under WAC 352 16 030 were in fact in
- -
place, the Commission's own document expressly allowed the proposed ski expansion in the
279 acre area subject to the classification.
-
The Commission's approval document also makes clear that adoption of the classification
did not simply make ski areas in general allowed uses, much as a comprehensive plan or zoning
ordinance might. Instead,.
the Commission's approval document stated unambiguously that
approval of the classification " ould allow for the development ofthe MS 2000 proposal to
w
develop one lift and seven ski runs ...." CP at 367 (emphasis added). Similarly,the
Commission's map at CP 371 showing the adopted classifications plainly shows the layout of a
specific ski area. The approval, however, does expressly state that the " S 2000 proposal is
M
conceptual in nature and that final development plans will designate the location of the treed ski
islands and developed ski runs."CP at 367. This wording makes clear that the "
conceptual"
No. 43158 1 II
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element of the action does not extend to whether the Commission approved an alpine ski area of
this size and nature. CP at 367. Instead, it simply recognizes that the final location of the runs
and islands may vary from that shown on the map.
The Commission points out that its approval document predicates the proposed
development on "[
d] approval of the final development plan for expansion of developed
irector
alpine skiing into the PASEA."CP at 367. The Commission argues that this shows that
approval of the expansion will only come at this subsequent stage and that any approval would
be given with the benefit of an EIS that examines the specific changes proposed to the
environment. At oral argument, the Commission stated that the director still could deny the
proposal completely, and the Lands Council stated that the,director could only approve or deny
the single proposal, but.ould not choose any of the other options that were before the
c
Commission.
As shown above, the Commission's action approved the proposal by MS 2000 to expand
its alpine ski resort into the PASEA, subject to a number of reservations. Among those are the
limitations that the final location of the runs and islands may vary and that the director may
approve or deny the final development plans. The only other reference to " inal development
f
plans"in the Commission's approval is in the statement that the proposal is conceptual "and that
final development plans will designate the location of the treed ski islands and developed ski
runs."CP at 367.
Reading these provisions together strongly suggests that the purpose of the director's
review of the final development plan is not to revisit the Commission's decision to approve the
expansion. Rather, the director would review the precise location and configuration of the runs,
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No.43158 1 II
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a review analogous to construction level review of grading plans and similar matters for an
-
already approved development. In land use law generally, the possibility that a proposal could
fail if construction level standards are not met subtracts nothing from the nature of a prior use
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approval for the proposal. Here, similarly,the Commission's May 2011 classification decision,
read in its context, approved the expansion of the alpine ski resort into the PASEA, subject to the
director's review of the precise location of runs, islands, and similar detailed components. The
2011 classification was the agency decision approving the use, even though the proposal could
still conceivably founder if the director could not approve the precise configuration of the runs.
Having determined the nature of the Commission's action to be a use approval, we now
examine the standing issue and the merits.
D. STANDING
The Commission argues that the Lands Council lacks standing under SEPA, because the
classification decision only authorizes the possibility of general land uses for the potential
expansion area. Thus,the Commission argues, any injury to the Lands Council is only
threatened and not the immediate, concrete, and specific injury necessary for standing.
SEPA grants an aggrieved person the right to judicial review of an agency's compliance
with its terms. Harris v. Pierce County, 84 Wn. App. 222,232, 928 P. d 1111 (1996);
2 RCW
075(
43. 1C. A party wishing to challenge actions under SEPA must meet a two part
1).
2 " -
standing test: (1) alleged endangered interest must fall within the zone of interests SEPA
the
protects, and (2) party must allege an injury in fact."
the Kucera v. State, Dep't of Transp.,140
Wn. d 200, 212, 995 P. d 63 (2000).
2 2
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No. 43158 1 II
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Damage to elements of the environment aims at the core of those interests protected by
SEPA. See Kucera, 140 Wn. d at 212 13 (
2 - quoting Snohomish County Prop. Rights Alliance v.
Snohomish County, 76 Wn. App. 44, 52 53,882 P. d 807 (1994));
- 2 RCW 43. 1C.WAC 197-
010;
2
11 030. Here, the Lands Council alleges that the ski area expansion will jeopardize wildlife and
-
its habitat. These interests are plainly within the zone of those protected by SEPA, thus meeting
the first prong of the standing test.
The standing dispute in this appeal revolves around the second requirement, that of injury
in fact. The elements of this requirement have been phrased in differing ways. Our Supreme
Court in Kucera held, The injury in fact element is satisfied when a plaintiff alleges the
"
challenged action will specific
cause ` and perceptible harm. "' Kucera, 140 Wn. d at 213
2
quoting Leavitt, 74 Wn. App. at 679).A sufficient injury in fact is properly pleaded when a
property owner alleges "immediate, concrete, and specific"damage to property, even though the
allegations may be "speculative and undocumented."Kucera, 140 Wn. d at 213 (quoting
2
Leavitt, 74 Wn. App. at 679).Where the plaintiff alleges a threatened injury rather than
" `
existing injury,he or she must also show that the injury will be immediate, concrete, and
specific. "' Harris, 84 Wn.App. at 231 (quoting Leavitt, 74 Wn. App. at 679).
The Commission does not dispute that expansion of the ski area would cause injury in
fact to members of the Lands Council by.limiting or preventing their present use of the area. It
argues, rather, that the classification decision merely authorized the possibility of general land
uses for a potential expansion and that the director will make the actual decision on expansion at
a later time.
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Our discussion above shows that this characterization is incorrect. The decision to
approve expansion of the ski area was made by the Commission in May 2011, subject to the
director's subsequent review of the precise location of the runs and islands. The Commission's
action effectively approved the use.
Land use approvals often proceed in phases. The principal regulatory approval of a
subdivision, preliminary subdivision approval, is followed by final subdivision approval to
ensure that the conditions of the preliminary approval are followed. See RCW 58. 7.The
170.
1
conditional use approval of a shopping center may be followed by grading permits, critical area
permits, and construction permits. None of these implementing permits, though, disguises the
step at which the decision actually allowing the use was taken. Under Kucera, that is the step at
which standing to challenge the use arises, as long as the plaintiff has shown the requisite injury
to itself or its members. See Kucera, 140 Wn. d at 213. As shown above, that step occurred
2
herewith the May 2011 classification decision.
This conclusion is also consistent with other appellate decisions. Harris held that owners
of property along a proposed county trail had not shown injury in fact sufficient for standing.
Harris, 84 Wn. App. at 231. The court observed that the trail would be built only if the county
condemned it and that whether the plaintiff's property would even be subject to eminent domain
appeared to depend on future decisions. Kucera, 140 Wn. d at 231 32. Here, in contrast, the
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decision to allow this ski area to expand into this area has been made. The Commission's
decision has none of the uncertainties present in Harris.
The decision in Magnolia Neighborhood Planning Council v. City ofSeattle, 155 Wn.
App. 305, 230 P. d 190 (2010), more closely on point. In 2008 Seattle adopted the Fort
3 is
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No.43158 1 II
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Lawton Redevelopment Plan (FLRP),
which was required as part of the conveyance of former
federal property to the City. Magnolia, 155 Wn. App. at 310 11. The FLRP included the
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construction of between 108 and 125 market rate housing units, along with other housing for
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homeless persons. Magnolia, 155 Wn. App. at 310. The City argued that the plaintiff, an
organization of nearby property owners, lacked standing because the FLRP is subject to federal
approval and the City's application could be rejected. Magnolia, 155 Wn. App. at 312. The
court rejected this argument, holding that the plaintiff had standing since " t is a party
i
representing interests of those owning property adjacent to a City-
proposed project and who
allege that the project will injure their property without SEPA review."Magnolia, 155 Wn. App.
at 312 13. The Lands Council's claims are no more speculative than these.
-
Finally, our Supreme Court in Five Corners Family Farmers v. State, 173 Wn. d 296,
2
303, 268 P. d 892 (2011),
3 held that standing requirements are relaxed where the injury
complained of is procedural in nature. Specifically, to show a procedural injury:
a party must (1)identify a constitutional or statutory procedural right that the
government has allegedly violated, 2)
( demonstrate a reasonable probability that
the deprivation of the procedural right will threaten a concrete interest of the
party's, (3)show that the party's interest is one protected by the statute or
and
constitution.
Five Corners Family Farmers, 173 Wn. d at 303. Whatever the result on the merits,the Lands
2
Council's claims showed a " easonable probability"that the alleged improper timing of the EIS
r
will threaten"a concrete interest of its members. Five Corners Family Farmers, 173 Wn. d at
2
303.
SEPA authorizes judicial review of an agency's compliance with its terms. See Harris,
84 Wn. App. at 232; RCW 43. 1 C.75. Whether judged under the basic test for standing or
2 0
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No.43158 1 II
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under the more relaxed standards for procedural injury, the Lands Council has demonstrated
injury in fact and that it has standing to bring this challenge under SEPA. Because the Lands
Council has standing under SEPA, it is not necessary to address the other statutes under which it
alternatively asserts the same claims. We turn,therefore, to the merits of the challenge under
SEPA.
E. SEPA AND THE TIMING OF EIS PREPARATION
The Lands Council argues that the Commission violated SEPA by not preparing an EIS
before classifying the ski expansion area in May 2011. The Lands Council is correct, because
approval of the classification was effectively the Commission's decision to approve expansion of
the ski area.
The commission staff prepared separate environmental checklists and MDNSs under
SEPA for the land classification and the conceptual plan. The MDNS for the conceptual plan
included the condition that MS 2000 would be required to prepare an EIS prior to any ski area
expansion. The MDNS for the classification decision did not contain such a condition. In its
report to the Commission on both the land classification and conceptual plan decisions, the
commission staff determined that the proposed ski area expansion was likely to have a
significant adverse impact on the environment.
An EIS is required for actions that are not exempt from SEPA and that have a "probable
significant, adverse environmental impact."RCW 43. 1C.1. As noted, the Commission's
032
MDNS on the conceptual plan contains a condition requiring an EIS for the ski area expansion,
representing a determination that the proposed ski area expansion will have a probable
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No.43158 1 II
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significant adverse environmental impact. The question is whether SEPA required the EIS to be
prepared before the May 2011 classification decision.
The timing of environmental review has long vexed the application of SEPA to the
iterative progression of land use approvals. On one hand, review too near the inception of the
process can become a discarded hypothetical exercise as features of the proposal change and
become more specific. On the other hand, our Supreme Court observed that " he risk of
t
postponing environmental review is `a dangerous incrementalism where the obligation to decide
is postponed successively while project momentum builds. "' King County v. Boundary Review
Bd., Wn. d 648, 664, 860 P. d 1024 (1993)quoting William H. Rodgers, The Washington
122 2 2 (
Environmental Policy Act,. WASH. L.REV. 33, 54 (1984)). court recognized that this
60 The
may begin a process of government action which can `snowball' and acquire virtually
unstoppable administrative inertia."
King County, 122 Wn. d at 664. To avoid this,
2
decisionmakers need to be apprised of the environmental consequences before the project picks
up momentum, not after."King County, 122 Wn. d at 664.
2
The SEPA rules and the case law chart the proper navigation between these extremes.
First, WAC 197 11- 2)
- 055( states:
The lead agency shall prepare its threshold determination and environmental impact
statement (EIS), required, at the earliest possible point in the planning and decision -
if
making process, when the principal features of a proposal and its environmental impacts
can be reasonably identified.
To help identify this " arliest possible point,"
e WAC 197-11-
a)
055(
2)(
specifies that:
a]proposal exists when an agency is presented with an application or has a goal
and is actively preparing to make a decision on one or more alternative means of
accomplishing that goal and the environmental effects can be meaningfully
evaluated.
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No. 43158 1 II
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In addition, the rules make clear that
t] fact that proposals may require future agency approvals or environmental
he
review shall not preclude current consideration, as long as proposed future
activities are specific enough to allow some evaluation of their probable
environmental impacts.
WAC 197- 055(
11-
a)(i).
2)(
The timing of EIS preparation is more specifically treated in WAC 197 11 406,which
- -
states that an EIS
shall be prepared early enough so it can serve practically as an important
contribution to the decision making process and will not be used to rationalize or
justify decisions already made. EISs may be "phased" in appropriate situations
WAC 197 11- 5)).
- 060(
Subject to these standards, WAC 197-11-
b)
060( )( agencies to phase
5 allows
environmental review " o•
t focus on issues that are ready for decision and exclude from
consideration issues already decided or not yet ready."Among the examples of appropriate
phased review is the sequence "from an environmental document on a specific proposal at an
early stage (such as need and site selection)to a subsequent environmental document at a later
stage (such as sensitive design impacts)."
WAC 197-11-
c)(
060(
ii).
5)( review is
Phased
inappropriate when, among other situations, it would avoid discussion of cumulative impacts.
WAC 197-11-
d)( When an agency knows it is using phased review, it must say so in
060(
ii).
5)(
its environmental document. WAC 197-11-
e). for the classification decision
060(
5)( MDNS
The
stated that it is using phased review.
As concluded above, the May 2011 classification decision approved a ski area expansion
consisting of one lift and seven ski runs in a specific 279 acre area, subject to the director's
-
subsequent approval of the precise location of runs, islands, and similar detailed components. As
No. 43158 1 II
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also shown above, the Commission itself deemed this expansion to require an EIS. At this point,
in May 2011, the principal features of expanding the ski area and its environmental impacts
could be reasonably identified. At this point,the agency was actively preparing to make a
decision on one or more alternative means of accomplishing the expansion. At this point, an EIS
would have made an important contribution to the decision whether the ski area should be
expanded. Thus,under WAC 197 11- 2) WAC 197 11 406 an EIS should have been
- 055( and - -
prepared for the decision to classify the 279 acres in May 2011.
The Commission argues strongly, though, that the most rational and effective time for an
EIS is after the director's final decision, since only then will the actual location, size, and
configuration of the ski runs be known; only then will the precise impacts of the proposal be
known. Our Supreme Court rejected a similar argument in King County, 122 Wn. d at 662.
2
That appeal examined whether a determination of nonsignificance ( NS)issued by Black
D
Diamond for two annexations was flawed because it did not consider the impacts of future
development in the annexed area. Those defending the annexation argued that the DNS was
proper, because consideration of the effects of future development would be both premature and
speculative. King County, 122 Wn. d at 662.
2
The Supreme Court disagreed. Although the environmental checklist made clear that the
properties were " estined for development,"
d King County, 122 Wn. d at 665, no specific
2
development proposals had been submitted and no immediate land use changes would follow
annexation. Even so, the court held that Black Diamond erred by not considering the future
development that is likely after the annexation. King County, 122 Wn. d at 662 63. The court
2 -
based this conclusion on the rule that " n EIS is required if,based on the totality of the
a
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No. 43158 1 II
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circumstances, future development is probable following the action and if that development will
have a significant adverse effect upon the environment."King County, 122 Wn. d at 663.
2
Because the type of development discussed in the environmental checklist would have a
probable significant adverse environmental impact, the court held that an EIS was needed for the
annexation. King County, 122 Wn. d at 665 67.
2 -
Here, the effects of the 2011 classification decision were much less speculative than those
of Black Diamond's annexation. The Commission knew the proposed number of lifts and runs.
It knew the proposed configuration and location of those runs. The only uncertainty was whether
their precise location would be adjusted by the Director at the final detailed review stage. The
nature of the proposed use, however, expansion of the ski area into these 279 acres, was known
in May 2011. The effects of that expansion, thus, could be determined at that time with every bit
as much specificity as could the effects of Black Diamond's annexation. Furthermore, as shown
by its MDNS,the Commission knew that an EIS was needed for the proposed expansion at some
point. Just as SEPA required an EIS for the Boundary Review Board's annexation decision in
King County, SEPA required the preparation of an EIS for the Commission's management
classification decision here.
The decision in Hayden v. City ofPort Townsend, 93 Wn. d 870, 879, 613 P. d 1164
2 2
1980),
overruled on other grounds by Save a Neighborhood Environment (SANE)v. City of
Seattle, 101 Wn. d 280, 676 P. d 1006 (1984)), not blunt the effect of King County. In
2 2 does
Hayden, the City's SEPA administrator made a negative threshold determination, finding no
significant environmental impacts for a proposed property rezone. Hayden, 93 Wn. d.at 873.
2
The court upheld the City, stating that " onproject rezoning has been held not to require an EIS
n
18
No. 43158 1 II
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as long as the council retains the authority to require such an evaluation at the project permit
stage." Hayden, 93 Wn. d.at 879. Significantly, in taking this position the court relied on the
2
fact that the rezone " arried no specific building project with it."
c Hayden, 93 Wn. d.at 879.
2
Here, in contrast, the classification decision effectively approved a specific proposal. Thus, even
if this holding in Hayden retains any force after King County, it has no application to the facts of
this appeal.
The Commission determined that an EIS was required for expansion of the ski area. The
Commission approved that expansion in May 2011, subject only to the director's subsequent
review of the precise location of the runs. The Commission failed, however, to prepare an EIS
when it approved the use. Instead, it postponed its preparation until the later review of the
precise location of the runs. This approach invites the sort of snowball effect and decision by
administrative inertia condemned by King County, 122 Wn. d at 664. To avoid this, our
2
Supreme Court mandated that decision makers " e apprised of the environmental consequences
b
before the project picks up momentum, not after."King County, 122 Wn. d at 664. Both the
2
holding and the policies of King County show that this point arrived, at the latest, when the
decision to classify the land was made. Under the WAC and the case law,the Commission erred
in neglecting to prepare the EIS for that decision. If the director's subsequent review were to
change any of the environmental impacts of the proposal, supplemental environmental review
could be carried out at that subsequent stage. See WAC 197-11-
a)(
055(
i).
2)(
X
No. 43158 1 II
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F. CONCLUSION
Over 40 years ago, with the adoption of SEPA, we first read in Washington law that each
generation is trustee of the environment for succeeding generations. We read also that it is the
continuing responsibility"of the state and its agencies to act so we may carry out that trust.
RCW 43. 1C. SEPA demands that this trust be more than merely a stirring maxim or
020(
2).
2
artful slogan. Instead, it is the quickening principle in the application of the statute. Consistently
with the statute's purposes, the Commission's failure to prepare an EIS for the 2011
classification decision violated the terms of SEPA and its rules and was contrary to governing
case law.
We affirm the trial court's ruling that the Lands Council had standing under SEPA to
bring this action. We hold that SEPA required the Commission to prepare an EIS for its May
2011 classification decision and, accordingly, we reverse the trial court's summary judgment
order dismissing the Land Council's claims under SEPA. We make no decision on the
alternative claims under the Administrative Procedure Act,uniform Declaratory Judgments Act,
statutory certiorari, and constitutional certiorari.
BJ0 1 /
ITT„
to
RCW 43. 1C.
020.
2
20