Echo Bay v. Dept. of Natural Resources

160 P.3d 1083
CourtCourt of Appeals of Washington
DecidedJune 19, 2007
Docket34883-7-II
StatusPublished
Cited by10 cases

This text of 160 P.3d 1083 (Echo Bay v. Dept. of Natural Resources) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Echo Bay v. Dept. of Natural Resources, 160 P.3d 1083 (Wash. Ct. App. 2007).

Opinion

160 P.3d 1083 (2007)

ECHO BAY COMMUNITY ASSOCIATION, Appellant,
v.
STATE of Washington, DEPARTMENT OF NATURAL RESOURCES; Richard Kaupilla; Andy Blair; Ricky Blair; and F/V Puget LLC, Respondents.

No. 34883-7-II.

Court of Appeals of Washington, Division 2.

June 19, 2007.

David Scott Mann, Gendler & Mann LLP, Seattle, WA, for Appellant.

*1084 Terence Pruit, Attorney General's Office, Olympia, WA, Thomas Henry Oldfield, Oldfield & Helsdon PLLC, University Place, WA, for Respondents.

BRIDGEWATER, P.J.

¶ 1 Echo Bay Community Association appeals from a superior court judgment that the Department of Natural Resources (DNR) may lease bedlands to someone who is not the owner of abutting shorelands or tidelands, i.e., a commercial herring operation. We hold that DNR may lease to a non-abutting person for aquacultural purposes and that herring net pens constitute aquaculture "processing," even though the herring are only held without feeding in order to prepare them for bait. We affirm.

FACTS

¶ 2 In September 2005, DNR leased bedlands,[1] located in Echo Bay off of Fox Island in Pierce County, to F/V Puget LLC, which planned to use the bedlands for herring net pens. F/V Puget's operation plan called for catching herring and depositing the fish into the net pens and holding them for two weeks without food. By starving the herring in the pen, F/V Puget empties the herring's digestive tract of bacteria, making the fish easier to freeze, preserve, and sell as bait. The process also makes the fish more marketable because they are able to better stay on fish hooks. F/V Puget planned to preserve and package the fish at an upland location before sale.

¶ 3 From 1975 until August 2002, the bedlands that F/V Puget's leased were occupied by larger delayed-salmon-release pens operated by the Department of Fish and Wildlife (DFW). When the DFW decided to abandon the salmon pens, F/V Puget began gathering permits to allow it to use the DFW's existing concrete anchors to build and operate herring pens. F/V Puget's pens would occupy a substantially smaller footprint (40 percent smaller) than the DFW's salmon pens.

¶ 4 Before DNR would lease the bedlands to F/V Puget, F/V Puget had to obtain a shoreline substantial development permit from Pierce County. Pierce County granted the shoreline permit in August 2005, subject to several conditions. During this process, Pierce County determined that herring net pens were an aquaculture use for purposes of the Pierce County Code.

¶ 5 Historically, DNR has considered herring pens to be aquaculture. In DNR's 1999 aquaculture handbook, it notes that it has several herring pen leases on public aquatic land. Its March 2000 resource-policy-implementation manual defined aquaculture to include "raising fin fish in floating net pens." AR at 697. And in DNR's July 2004 aquatic resources-program-activity summary, DNR defined primary aquaculture to include net pen aquaculture, including salmon aquaculture and herring operations. In 2004, DNR had five leases covering 4.3 acres dedicated to herring production.

¶ 6 In October 2005, a month after DNR leased the Echo Bay bedlands to F/V Puget, the Echo Bay Community Association, whose members owned tidelands adjacent to Echo Bay, filed an appeal under RCW 79.02.030[2] challenging the lease's validity. Echo Bay argued that DNR had authority to lease bedlands to only adjacent shoreland and tideland owners. In addition, Echo Bay argued that herring pens were not aquaculture.

¶ 7 Following RCW 79.02.030's provisions, the superior court conducted a trial de novo based on the pleading and papers DNR certified as the applicable record. In a letter to counsel, the superior court interpreted the applicable statutes to give DNR authority to lease bedlands to any person for aquaculture purposes. The superior court also interpreted the statutory term "aquaculture" to include herring net pens. CP at 77-79.

*1085 ¶ 8 Echo Bay filed this timely appeal, asking us to interpret the relevant statutes and to reverse the superior court.

ANALYSIS

I. DNR's Authority

¶ 9 Relying on RCW 79.130.010, which is titled "Lease of beds of navigable waters," and provides "the department may lease [bedlands] to the abutting tidelands or shorelands owner or lessee," Echo Bay argues that DNR has authority to lease bedlands only to abutting tidelands or shoreland owners or lessees. Echo Bay asks this court to read RCW 79.130.010 as imposing a "blanket ban on leasing navigable bedlands to non-adjacent tideland owners or lessees."[3] Br. of Appellant at 13.

¶ 10 DNR concedes that F/V Puget does not own or lease abutting tidelands or shorelands, but argues that the lease is valid under RCW 79.135.110, which is titled "Leasing beds of tidal waters for shellfish cultivation or other aquaculture use." Read independently, this statute provides authority to lease bedlands for aquaculture purposes to any person, not just abutting tideland and shoreland owners and lessees. Thus, this case presents us with a question of statutory construction: Does RCW 79.135.110 authorize leases to persons who do not own or lease abutting shorelands or tidelands?

¶ 11 We review issues of statutory interpretation de novo. City of Pasco v. Pub. Employment Relations Comm'n, 119 Wash.2d 504, 507, 833 P.2d 381 (1992). Although our review is de novo, we give substantial weight to an agency's interpretation of statutes and regulations that is implements and enforces. Impecoven v. Dep't of Revenue, 120 Wash.2d 357, 363, 841 P.2d 752 (1992); Cobra Roofing Serv., Inc. v. Dep't of Labor & Indus., 122 Wash.App. 402, 409, 97 P.3d 17 (2004), aff'd, 157 Wash.2d 90, 135 P.3d 913 (2006).

¶ 12 In interpreting a statute, our fundamental duty is to ascertain and implement the legislature's intent. U.S. Tobacco Sales & Mktg. Co. v. Dep't of Revenue, 96 Wash. App. 932, 938, 982 P.2d 652 (1999). We must give meaning to every word and interpret the statute as written. Enter. Leasing, Inc. v. City of Tacoma Fin. Dep't, 139 Wash.2d 546, 552, 988 P.2d 961 (1999). Our first step is to look at the plain meaning of the statutory terms, although we may also look at related statutes that might disclose legislative intent about the specific provision in question. Thurston County v.

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Bluebook (online)
160 P.3d 1083, Counsel Stack Legal Research, https://law.counselstack.com/opinion/echo-bay-v-dept-of-natural-resources-washctapp-2007.