Sumas Mountain Comm For Landslide Awareness v. Wa State Forest Practices Brd ( 2018 )

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COURT OF APPEALS DIV
STATE OF WASHINGTON
2018 NOV -5 PH 3:140
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
SUMAS MOUNTAIN COMMUNITY No. 76447-1-1
FOR LANDSLIDE AWARENESS and
PAUL KENNARD,
Appellants, ORDER WITHDRAWING AND
SUBSTITUTING OPINION
WASHINGTON STATE FOREST
PRACTICES BOARD,
and
WASHINGTON STATE FOREST
PROTECTION ASSOCIATION,
Respondent-Intervenor.
On October 29, 2018, the Washington Court of Appeals, Division One,
filed an Unpublished Opinion in the above-captioned case. The panel has
determined that the opinion filed on October 29, 2018 should be withdrawn and a
substitute opinion filed. Now, therefore, it is hereby
ORDERED that the opinion filed on October 29, 2018 shall be withdrawn
and a substitute unpublished opinion shall be filed.
DATED this 6t'ki day of Ito eimi, ,2018.
-f2eciZe,R
FILED
COURT OF APPEALS DIV I
STATE OF WASHINGT014
2018 NOV -5 PH 3:140
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
DIVISION ONE
SUMAS MOUNTAIN COMMUNITY FOR No. 76447-1-1
LANDSLIDE AWARENESS and PAUL
KENNARD,
Appellants,
V.
WASHINGTON STATE FOREST UNPUBLISHED OPINION
PRACTICES BOARD,
Respondent,
and
WASHINGTON STATE FOREST
PROTECTION ASSOCIATION,
Respondent-Intervenor. FILED: November 5, 2018
ANDRUS, J. — A plaintiff may seek judicial review of "agency action,"
including actions that implement or enforce a statute. RCW 34.05.010(3); RCW
34.05.570(4). But an agency's advisory documents are not subject to judicial
review under Washington's Administrative Procedure Act (APA). Wash. Educ.
Ass'n v. Wash. State Pub. Disclosure Comm'n, 150 Wash. 2d 612, 619, 80 P.3d
608 (2003)(WEN. Where an agency issues guidance documents that do not
No. 76447-1-1/2
•
have the force of law, and there is no evidence of enforcement, issuing the
guidance does not amount to agency action. Id. at 621.
Following the Oso landslide in 2014, the Forest Practices Board (the
Board) adopted revisions to Section 16 of its Board Manual, which provides
"Guidelines for Evaluating Potentially Unstable Slopes and Landforms." The
Sumas Mountain Community for Landslide Awareness and Paul Kennard
petitioned for judicial review of the revised manual, arguing that it fails to
adequately implement the Board's rules concerning unstable slopes. The trial
court dismissed the action, ruling that the revision of the manual was not an
"agency action" subject to judicial review under RCW 34.05.010(3) and
34.05.570(4). Because the Board Manual is a guidance document that does not
purport to have the force of law and is not independently enforceable, we affirm.
FACTS
This case concerns the regulation of forestry practices. Forestry activity is
governed by the Forest Practices Act of 1974, chapter 76.09 RCW. The Board
promulgates rules to implement this act. RCW 76.09.040; WAC 222-12-010.
The Department of Natural Resources (DNR) administers the rules by issuing
permits and assessing penalties. RCW 76.09.020(10); RCW 76.09.040(1)(c). At
the Board's direction, DNR also prepares a manual as "an advisory technical
supplement to the forest practices rules." WAC 222-12-090.
Following the Oso landslide, the Board reexamined its rules and guidance
concerning unstable slopes. The forest practices rules provide that, when a party
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No. 76447-1-1/3
applies for a permit to log or conduct other forestry activity on a potentially
unstable slope, the application must be reviewed under the State Environmental
Policy Act (SEPA). WAC 222-16-050(1). The rule defines "potentially unstable
slopes or landforms" to include four specific landforms and a fifth catch-all
category. WAC 222-16-050(1)(d)(i). The rule includes a parenthetical referring
to Section 16 of the Board Manual for more descriptive definitions. WAC 222-16-
050(1)(d)(i).
Section 16 provides photos, diagrams, and academic descriptions of
areas that are "potentially unstable slopes or landforms." Because numerous
factors must be considered in determining whether a site is a potentially unstable
slope, the manual states that the "appropriate investigation process cannot be
defined by the rigid application of a set of procedural rules." Rather, the Board
Manual provides "a general overview of the typical sequence and elements of a
slope-stability assessment." Necessary analyses are to be identified on a site-
by-site basis.
At the Board's direction, DNR convened a panel of experts and held a
series of meetings to review Section 16. During this process, a point of
contention was whether the manual adequately identified and described
potentially unstable slopes. In November 2015, DNR released a draft of the
revised Section 16. Members of the Sumas Mountain Community for Landslide
Awareness, Kennard, and two other geologists objected to the revisions. They
argued that the revisions were inadequate because they used permissive, rather
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No. 76447-1-1/4
than directive, language; did not require the use of a particular landslide
screening tool; and failed to adequately address deep-seated landslides. The
Board adopted the revised section on a temporary basis, directing staff to further
review the identified concerns. The Board also initiated review through the
adaptive management program to determine whether the identified concerns
should be addressed through the rule-making process.' DNR released its final
amendments in April 2016, and the Board adopted them in May.
In June 2016, the Sumas Mountain Community for Landslide Awareness
and Kennard (collectively Sumas Mountain) brought an action in superior court
seeking review of the revised manual. The petition alleged that, because the
revised manual did not include the proposed screening tool, directive language,
or guidance concerning deep-seated landslides, it did not fully implement the
rules. Thus, it was arbitrary and capricious. The Board moved to dismiss the
action under CR 12(b)(6), arguing that adopting the revised manual was not a
reviewable agency action. The Washington Forest Protection Association
(WFPA)intervened and joined the Board's motion to dismiss.
Sumas Mountain submitted several declarations in support of its position
that the Board Manual "implements" the forest practices rules. In these
declarations, Kennard and two other scientists declared that, in their experience,
1 The "adaptive management program" provides "science-based recommendations and
technical information to assist the Board in determining" whether forest practices rules and
guidance should be adjusted. WAC 222-12-045(1). It includes both a science and a policy
component. WAC 222-12-045(2)(b). Following review through this program, a committee makes
recommendations to the Board. WAC 222-12-045(2)(d)(v). Recommendations may include
further research, a rule petition, or revised guidance. WAC 222-12-045(2)(d)(v).
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No. 76447-1-1/5
it is necessary to follow the Board Manual to gain permit approval. Homeowners
Holly Koon and Max Duncan declared that they were personally affected by the
Board Manual because they lived in the Nooksack River valley, where deep-
seated landslides had occurred in the past. They opined that, because of the
manual's inadequate guidance, DNR would likely allow logging near their home,
increasing the risk of a landslide.
The trial court ruled that adopting revisions to the Board Manual was not a
reviewable "agency action" under the APA. The court issued a memorandum
decision in which it stated that the State Supreme Court's opinion in WEA
established a narrow definition of "agency action," and the Board Manual did not
qualify because it was an "advisory technical supplement" that is not
independently enforceable apart from the rules. The court stated that Sumas
Mountain's contentions as to the importance of the Board Manual "may support
an argument that the Manual is so legally significant that it constitutes an invalid
rule, not adopted in accordance with the required rule-making procedures.
However, Sumas does not advance this theory. .. ." The trial court granted the
defendants' motion to dismiss.
ANALYSIS
Sumas Mountain appeals the CR 12(b)(6) dismissal of its APA petition for
judicial review. Dismissal for failure to state a claim is only appropriate if,
presuming the plaintiffs allegations are true, it appears beyond a reasonable
doubt that no facts exist that would justify recovery. Cutler v. Phillips Petroleum
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No. 76447-1-1/6
Co., 124 Wash. 2d 749, 755, 881 P.2d 216 (1994). We review the trial court's
decision de novo.2 Id.
The APA, chapter 34.05 RCW, governs judicial review of agency actions.
It provides for review of an agency's rules, adjudicative orders, and "other agency
action." RCW 34.05.570(2)-(4). The APA defines "agency action" as "licensing,
the implementation or enforcement of a statute, the adoption or application of an
agency rule or order, the imposition of sanctions, or the granting or withholding of
benefits." RCW 34.05.010(3).
Sumas Mountain asserts that the Board Manual is reviewable as "other
agency action" because it "implement[s]" the forest practices rules under RCW
34.05.010(3).3 Sumas Mountain argues that the revised manual fails to fully
implement those rules and is thus arbitrary and capricious. The parties agree
that the court's test set out in WEA, 150 Wash. 2d 612, governs the outcome here.
In WEA, the Public Disclosure Commission (PDC) issued guidelines
interpreting the meaning and application of laws and rules governing the use of
public facilities in campaigns. 150 Wash. 2d at 615-16. Following input from
stakeholder groups and discussion at public meetings, PDC revised the
guidelines to provide an interpretative statement on the application of RCW
2 Sumas Mountain asserts that, because of the declarations submitted below, we review
the trial court's action as a decision on summary judgment. Submitting documents in addition to
the pleadings generally converts a motion to dismiss into a motion for summary judgment. CR
12(b)(6). But where extraneous evidence is immaterial because the plaintiff fails to state a claim
no matter what facts are proven, the motion remains one under CR 12(b)(6). Haberman v. Wash.
Pub. Power Supply Sys., 109 Wash. 2d 107, 121, 744 P.2d 1032(1987).
3 Sumas Mountain does not argue that the Board's adoption of the manual constitutes
the adopting of an agency rule under this provision.
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No. 76447-1-1/7
42.17.130 to school districts and their employees. Id. at 616. A voluntary labor
organization, WEA, sought judicial review under RCW 34.05.570(4). Id. The
issue before the court was whether the guidelines were reviewable agency
action. Id. at 614-15. PDC argued the guidelines were advisory and could not
be violated or enforced. Id. Additionally, PDC asserted that in challenging the
guidelines, WEA did not present an actual controversy but sought an advisory
opinion. Id.
The WEA court drew a distinction between legally enforceable rules or
orders and advisory agency documents. Id. at 618-19. The court noted that the
legislature encourages agencies to issue interpretative statements advising the
public of their "current opinions, approaches, and likely courses of action," as
these assist the public in complying with statutes and rules. Id. (quoting RCW
34.05.230(1) and RCW 43.05.005). But, it ruled that an agency's written
expression of its interpretation of the law is advisory only. Id. (citing RCW
34.05.230(1)). If a person does not follow a provision of such an advisory
document, that conduct would not subject her to a penalty or other administrative
sanction. Id. at 619. Thus,"an agency's written expression of its interpretation of
the law does not implement or enforce that law." Id.
To determine whether the challenged guidelines were reviewable agency
action, the WEA court considered the manner in which the document was
adopted, its purpose, its language, and any attempt by the agency to enforce the
provisions of the document. Id. at 620-22. In that case, the guidelines were
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No. 76447-1-1/8
adopted without formal procedures. Id. at 621. The stated purpose of the
guidelines was to assist school districts in complying with statutes and
regulations concerning election campaigns. Id. at 620. The guidelines included
a list of considerations to aid readers in determining whether a specific action
was permissible under the law. Id. at 621. The text indicated that the guidelines
had to be read in conjunction with the laws and rules. Id. There was no
evidence that PDC had acted to enforce the guidelines. Id. at 622. The WEA
court held that under these circumstances, the guidelines did not amount to
agency action and WEA failed to present a justiciable controversy:
In this case, whether the guidelines are a correct or incorrect
interpretation of the law presents nothing more than an academic or
hypothetical question. The guidelines have no legal or regulatory
effect, and the PDC's issuance of the guidelines does not implicate
actual or direct legal interests of the WEA. The WEA has not
alleged an actual, present, existing dispute, or the seeds of a
mature one and its claims are not justiciable.
Id. at 623.
In this case, as in WEA the Board adopted revisions to its technical
manual without following formal rule-making procedures. The Board Manual
uses advisory, rather than directive, language. Section 16 states that it is "an
advisory technical supplement" to the rules and "contains guidelines to evaluate
potentially unstable slopes and landforms on forest lands." The section includes
illustrations, photographs, diagrams, and technical descriptions to aid in
determining whether a specific area is an unstable slope or landform within the
meaning of the rules. The text of the Board Manual states that it must be read in
conjunction with the forest practices rules. WAC 222-16.050(1)(d)(i). And, as to
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No. 76447-1-1/9
enforceability, the parties agree that the agency can take no enforcement action
based on the manual.
Like the guidelines in WEA the Board Manual is a guidance document
that does not purport to have the force of law and is not independently
enforceable. 150 Wash. 2d at 622. We conclude that revision of the Board Manual
is not "agency action" within the meaning of RCW 34.05.570(4). And, because
the manual has no legal effect, revision of the Board Manual does not present a
justiciable controversy. See Içj. at 623.
Sumas Mountain attempts to distinguish the Board Manual from the
guidelines in WEA on several grounds. First, it argues that the manual is the
same type of "other agency action" that this court reviewed in Muckleshoot Indian
Tribe v. Dep't of Ecology, 112 Wash. App. 712, 50 P.3d 668 (2002). The argument
is without merit.
Muckleshoot concerned an lnterstream Flow Agreement (IFA) between
the City of Seattle and several state and federal agencies. Muckleshoot, 112
Wash. App. at 716. The Department of Ecology entered into the IFA, agreeing not
to use its regulatory authority to alter water flow requirements for the life of the
agreement. Id. at 718. The issue on appeal was whether Ecology's participation
in the IFA was reviewable under the APA or whether it was excluded from review
as a "sale, lease, contract, or other proprietary decision in the management of
public lands." Id. at 719 (internal quotation marks omitted) (quoting RCW
34.05.010(3)).
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No. 76447-1-1/10
The Board Manual in this case is not like the IFA in Muckleshoot. The
manual is not an agreement that restricts the Board from exercising regulatory
authority. And there is no dispute, in this case, that the manual is exempt from
review as a proprietary decision.
Sumas Mountain next argues that the Board Manual is agency action
because it is required by rule and by statute. Sumas Mountain relies on WAC
222-12-090, which directs DNR to prepare revisions to the Board Manual,
describes the manual as "an advisory technical supplement" to the rules, and
specifies that the manual "shall include . . . Guidelines for evaluating potentially
unstable slopes and landforms." WAC 222-12-090(16). Sumas Mountain also
relies on RCW 76.09.040(3)(c), which directs the Board to provide technical
guidance concerning fish protection in the manual. But neither the rule nor the
statute indicates that the manual has any legal effect. Rather, these refer to the
manual as "guidelines" and "guidance." Sumas Mountain provides no support for
the proposition that, when a rule directs the agency to propound a guidance
document, the resulting document constitutes "agency action."
Next, Sumas Mountain contends the Board Manual is agency action
because the rules and the manual operate in tandem so that the rules cannot be
enforced without reference to the Board Manual.4 We find little support in law or
the record for this argument. Under RCW 76.09.050(5), when DNR denies a
4 At oral argument, Sumas Mountain argued that the manual modifies the forest practice
rules relating to the types of landslides subject to SEPA review. We find no support in the record
for this contention.
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No. 76447-1-1/11
forest practices application, it must notify the applicant of the specific provisions
of the statute or the forest practice regulations with which the applicant has failed
to comply. There is nothing to suggest that DNR must evaluate the application
based on any provision within the Board Manual.
WAC 222-16-050 defines the classes of forest practices that may trigger
SEPA review. Each geologic term discussed in WAG 222-16-050(1)(d), the rule
relating to timber harvesting on potentially unstable slopes, has a rule-based
definition in WAG 222-16-010. This rule refers the reader to the Board Manual
for "more descriptive definitions," but the Board Manual contains "general
background information for all readers on how to recognize the various landslide
types in Washington State (Part 2), how slope form affects slope stability (Part 3),
and how to recognize potentially unstable slopes and landforms (Part 4)." CP 49.
Pictures, diagrams and figures have been included to help the reader understand
the basic geological concepts the Manual describes. Other parts of the Manual
describe typical procedures and available resources "for conducting reviews and
assessments of potentially unstable areas," and "guidance to the work of
qualified experts" in conducting reviews and field assessments and preparing
geotechnical reports. CP 49, 75. The language of the Manual is descriptive,
rather than prescriptive, in nature.
While there is a glossary of geologic terms at the end of Section 16, there
is no suggestion that the regulatory definitions of WAG 222-16-010 are
unenforceable unless read in tandem with the Manual's glossary. Sumas
No. 76447-1-1/12
Mountain has not demonstrated that DNR must refer to or rely on any material in
the Board Manual to fully implement any of the forest practice regulations.
Sumas Mountain also relies on administrative decisions, arguing that
these demonstrate that DNR is bound by the Board Manual. But, these
administrative decisions concern review of a permitting decision. They do not
establish that the manual is independently enforceable or that revision of the
manual is an agency action. See, e.g., Pacific Denkmann Co. dba Pilchuck Tree
Farm v. DNR, 2006 WL 2679656, *2-4, *8 (Wash. Forest. App. Bd. Sept. 12,
2006)(rejecting a challenge to a permit denial where the applicant did not submit
a proposal to change a water type determination and did not provide survey
information prepared by a qualified person using scientific methodology, as
outlined in the Board Manual); Tucker Trading, Inc., v. Dep't of Nat. Res., 1994
WL 905452 (Wash. Forest App. Bd. April 20, 1994) (quoting a rule that
references the manual).
Finally, Sumas Mountain argues that judicial review should be available as
a matter of policy. Sumas Mountain asserts that, without judicial review, the
Board may circumvent rulemaking and effectively regulate forestry activity
through a judicially-immune manual. We reject the argument.
An agency document that has regulatory force may be challenged as a
rule under the APA "despite bearing some other label." McGee Guest Home
Inc., v. Dep't of Social and Health Services, 142 Wash. 2d 316, 322, 12 P.3d 144
(2000). A de facto rule is thus not immune from judicial review. In this case, as
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No. 76447-1-1/13
the trial court noted, Sumas Mountain chose not to advance the theory that the
Board Manual is a de facto rule and hence invalid. Instead, Sumas Mountain's
theory is that the manual is not sufficiently rule-like. Sumas Mountain objects to
the Board Manual's use of advisory language, its failure to impose a specific
landslide screening tool, and its inclusion of several landslide analyses as
optional, rather than mandatory, steps.
We conclude that the revision of the Board Manual was not "agency
action" within the meaning of RCW 34.05.010(3). Because of our resolution of
this issue, we do not address the parties' arguments as to justiciability.
Affirmed.
WE CONCUR:
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