IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
NATIONAL ASSOCIATION OF VETERINARY TECHNICIANS IN No. 88019-5-I AMERICA; WASHINGTON STATE ASSOCIATION OF VETERINARY DIVISION ONE TECHNICIANS; and WASHINGTON STATE VETERINARY MEDICAL UNPUBLISHED OPINION ASSOCIATION,
Appellants,
v.
THE VETERINARY BOARD OF GOVERNORS; THE DEPARTMENT OF LABOR AND INDUSTRIES, and CASCADE VETERINARY CLINICS, a Washington corporation,
Respondents.
AMERICAN VETERINARY MEDICAL ASSOCIATION; NATIONAL ASSOCIATION OF VETERINARY TECHNICIANS IN AMERICA; WASHINGTON STATE ASSOCIATION OF VETERINARY TECHNICIANS; and WASHINGTON STATE VETERINARY MEDICAL ASSOCIATION,
Petitioners,
THE DEPARTMENT OF LABOR AND INDUSTRIES,
Respondent. No. 88019-5-I/2
BIRK, J. — In this consolidated appeal, professional associations of
veterinarians and veterinary technicians challenge a decision by the Washington
State Apprenticeship and Training Counsel (Apprenticeship Council) refusing an
adjudicatory hearing on their objection to an apprenticeship program to become a
licensed veterinary technician. In a separate lawsuit, they sought declaratory relief
barring planned approval by the state Veterinary Board of Governors (Veterinary
Board) allowing an approved apprenticeship program to serve as a pathway to
licensure as a veterinary technician. We conclude that the associations had
standing to object to the apprenticeship program and we reverse the decision
refusing them an adjudicatory hearing, but we affirm dismissal of their claims for
declaratory relief.
I
Obtaining a veterinary technician license in Washington is governed by
RCW 18.92.128. Until 2010, this statute provided two pathways through which a
person could meet the prerequisites to sit for the licensing examination—one was
by completing a “posthigh school course” approved by the state Veterinary Board,
and the other was to have five years of “practical experience” with a licensed
veterinarian. LAWS OF 2010, ch. 123, § 2. In 2010, the legislature amended RCW
18.92.128 to sunset the practical experience pathway. LAWS OF 2010, ch. 123, §§
1-3. The changes to RCW 18.92.128 permitted individuals already on the practical
experience pathway to complete their five years of practical experience through a
sunset date of July 1, 2015. LAWS OF 2010, ch. 123, § 1. Because five years of
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practical experience was required for veterinary technician licensure, the practical
experience pathway was effectively closed to new entrants on July 1, 2010.
In September 2018, Cascade Veterinary Clinics (Clinic), a Wenatchee area
veterinary care provider, approached the Veterinary Board to discuss a proposed
licensed veterinary technician apprenticeship program. The Veterinary Board
regulates the practice of veterinary medicine in Washington state under chapter
18.92 RCW. RCW 18.92.021. The Veterinary Board is charged with developing,
administering, and approving licensure examinations for the practice of veterinary
medicine, setting standards for the practice of veterinary medicine, and adopting
rules necessary to carry out those purposes. RCW 18.92.030. One license that
the board regulates is the veterinary technician license. RCW 18.92.128.
The Clinic returned to the Veterinary Board in October 2019, and “received
approval to pursue the development of a post-secondary pathway to [veterinary
technician] licensure.” The Clinic received technical assistance from SkillSource1
to develop a registered apprenticeship program for licensing veterinary
technicians. In December 2020, the Veterinary Board reviewed letters from,
among others, the Washington State Association of Veterinary Technicians and
Washington State Veterinary Medical Association (referred to together, along with
the National Association of Veterinary Technicians in America and American
1 SkillSource is a nonprofit agency that provides leadership, administration,
and oversight for programs devoted to the development of a skilled workforce in Chelan, Douglas, Grant, and Adams counties, and contract services in Okanogan county.
3 No. 88019-5-I/4
Veterinary Medical Association, as the “Associations”) discussing their concerns
with the proposed program.2
The Clinic’s proposed apprenticeship program requires 6,000 hours of
structured on the job training plus an additional 766 hours of “postsecondary
[r]elated [s]upplemental [i]nstruction curricula that is graded and proctored.” The
instructional material is provided through courses at Wenatchee Valley College
and at the Clinic, taught by college instructors, licensed doctors of veterinary
medicine, and licensed veterinary technicians. For comparison, the traditional
route to become a licensed veterinary technician is to complete an accredited
college program which typically provides 970 classroom hours and 100 internship
hours.
The Associations describe themselves as voluntary associations of
veterinarians and veterinary technicians, with missions to improve veterinary
medicine and promote the interests of their members. Washington law designates
the American Veterinary Medical Association as the organization charged with
accrediting veterinary programs.3 WAC 246-933-250
2 In this consolidated appeal, the American Veterinary Medical Association
is a party in Case No. 23-2-01985-34, the petition for review of administrative agency action, but it is not a party in Case No. 23-2-01986-34, the declaratory judgment action. The other three associations are parties in both cases. 3 The American Veterinary Medical Association is also referenced in chapter
18.92 RCW. For higher education facilities that receive public funds to use dogs or cats for scientific, educational, or research purposes, the facility’s attending veterinarian must assess the health of the animals to determine if they are suitable for adoption consistent with guidelines promulgated by the American Veterinary Medical Association. RCW 18.92.270(1)(a).
4 No. 88019-5-I/5
At its May 5, 2022 special meeting, the Veterinary Board voted five to two
to support the veterinary technician apprenticeship program. Representatives of
the Associations spoke in opposition of the program at the meeting. On May 13,
2022, the Veterinary Board addressed a letter to the Apprenticeship Council,
expressing support for the apprenticeship program and stating that if the
Apprenticeship Council approved the program, the Veterinary Board “intend[ed] to
undertake rulemaking to clarify that completion of a registered apprenticeship
program makes a person eligible to take the required licensing examination.”
The Department of Labor and Industries (L&I) is responsible and
accountable for apprenticeship programs in Washington. RCW 49.04.010(1). The
Apprenticeship Council operates under L&I, and is authorized to approve new
apprenticeship programs and establish necessary program standards. RCW
49.04.010(2).
On September 30, 2022, the Associations formally objected to the Clinic’s
proposed apprenticeship program by sending a notice of contest or objection to
proposed standards of apprenticeship and a letter to the Apprenticeship Council,
arguing that the proposed program did not satisfy the minimum standards
established by Washington law. The Associations requested that the
Apprenticeship Council hold a hearing to address “whether the proposed new
standard is properly aligned with the law, adversely affects the practices of
[licensed veterinary technicians], and promote[s] high standards of care among
animal patients.”
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On October 20, 2022, the Apprenticeship Council voted unanimously that
the Associations did not have standing to object because “their asserted interests
[were] not among those that the Agency was required to consider.” The council
then voted to approve the program’s apprenticeship standards as amended. AR
474-75. On November 21, 2022, the Apprenticeship Council sent the Associations
a letter notifying them that “the Council decided not to conduct an adjudicative
proceeding with regard to [the Associations’] objections to the proposed
apprenticeship standards of [the Clinic] for the occupation of [l]icensed [v]eterinary
[technician].” The Associations appealed the Apprenticeship Council’s decision to
the “L&I Director.”
On May 30, 2023, the L&I Director affirmed the Apprenticeship Council’s
decision to deny the Associations’ request for a hearing on grounds that the
Associations lacked standing. The Director concluded that the Associations were
not “competitors” of the proposed apprenticeship program, as defined in WAC 296-
05-003(15), and were therefore outside the zone of interests that the legislature
intended the Apprenticeship Council to consider.
On June 29, 2023, the Associations filed two actions in superior court, a
petition under the Administrative Procedure Act (APA), ch. 34.05 RCW (APA
petition), and a complaint for declaratory judgment. The Associations sought
judicial review and reversal of L&I’s order, and a declaratory judgment that the
Clinic’s proposed apprenticeship program is unlawful because the 2010
amendment left only what they called a “posthigh school education program” as a
pathway to licensure and eliminated the former “practical experience” pathway.
6 No. 88019-5-I/7
Meanwhile, while the Associations’ appeal to the L&I Director was pending,
the Veterinary Board had filed a preproposal statement of inquiry to update WAC
246-935-060, which sets eligibility to sit for licensed veterinary technician
examinations, to “make it clear that a registered apprenticeship is a board-
approved method for an applicant to become eligible for the veterinary technician
national exam and licensure.” Wash. St. Reg. 23-07-007 (March 1, 2023). After
the Associations had filed their lawsuits, the Veterinary Board continued its
rulemaking process and filed a proposed original notice for updated rule in October
2023. Wash. St. Reg. 23-21-094 (October 18, 2023). The proposed updated rule
would add language to WAC 246-935-060(1), stating, “[c]ompletion of a
Washington state apprenticeship program registered in accordance with chapters
296-05 WAC and 49.04 RCW,” would satisfy the postsecondary educational
program requirement and make one eligible to sit for the veterinary technician
examination. Wash. St. Reg. 23-21-094
In December 2023, the superior court issued an oral ruling dismissing the
Associations’ declaratory judgment action. The superior court reasoned that the
Associations had an available remedy against the Veterinary Board through an
APA challenge to the Veterinary Board’s ongoing rulemaking, and therefore a
declaratory judgment against the Veterinary Board was unavailable. The superior
court dismissed the declaratory judgment action against L&I and the Clinic
because of the pending APA petition. The superior court entered written orders of
dismissal in late January 2024.
7 No. 88019-5-I/8
On February 23, 2024, the Associations appealed the dismissal of their
declaratory judgment action. On March 12, 2024, the superior court, pursuant to
RCW 34.05.518, transferred the APA petition to this court for direct review. This
court consolidated the two appeals.
In April 2024, the Veterinary Board filed a permanent rule, with an effective
date of May 12, 2024. Wash. St. Reg. 24-09-036 (April 24, 2024). The rule added
the earlier proposed language, stating that completion of an apprenticeship
program registered with the Apprenticeship Council would make one eligible to sit
for examination as a veterinary technician. Wash. St. Reg. 24-09-036.
II
The Associations “assert that the [L&I] Director’s [o]rder is invalid agency
action” and that they are entitled to relief under RCW 34.05.570(3)(c), because the
Apprenticeship Council “failed to follow a prescribed procedure,” and under RCW
34.05.570(4) because the “Council has failed to perform a duty that it is required
by law to perform.” The Associations argue that they had standing to request an
adjudicative proceeding, and that their objection is not merely to veterinary
technician licensing, but to the “standards of the apprenticeship program itself.”
The Associations request reversal of the L&I Director’s order and a remand to L&I
to compel the Apprenticeship Council to hold an adjudicative proceeding on the
Associations’ objections.
Judicial review of administrative actions is governed by the APA. Densley
v. Dep’t of Ret. Sys., 162 Wn.2d 210, 216, 173 P.3d 885 (2007). The party seeking
relief bears the burden of proof. Id. at 217. “When reviewing an agency’s
8 No. 88019-5-I/9
interpretation or application of a statute, this court uses the error of law standard
and ‘may substitute its interpretation of the law for the agency’s.’ ” Id. (quoting
Postema v. Pollution Control Hr’g Bd., 142 Wn.2d 68, 77, 11 P.3d 726 (2000)).
Administrative rules must be written within the framework and policy of applicable
statutes, and cannot amend or change legislative enactments. Wash. State Hosp.
Ass’n v. Dep’t of Health, 183 Wn.2d 590, 595, 353 P.3d 1285 (2015).
A
L&I asserts that the “Apprenticeship Council has proceedings to adjudicate
whether to approve program standards for a new proposed apprenticeship
program.” “If a competitor objects to the proposed standards,” it triggers
procedures requiring adjudication by the Apprenticeship Council or the Office of
Administrative Hearings. WAC 296-05-011(2)(c). A “[c]ompetitor” is defined as an
“apprenticeship program providing training in the same or similar occupation as
one already existing in a certain geographic area.” WAC 296-05-003(15). L&I
argues that because the Associations are not apprenticeship programs, they are
not “competitors,” as defined under the rules, so they lacked standing to object
under WAC 296-05-003(15). Alternatively, L&I argues that the Associations lack
standing because their interests “are not among those intended by the Legislature
to support a challenge to the adoption of new apprenticeship programs.” The
Associations respond that whether a party is in the “zone of interests” must be
determined “under the standards of RCW 34.05.530(2), and that case law has held
that “competitor” was “one type of party” that had standing, but not the only type of
9 No. 88019-5-I/10
party that had standing to object to new programs. We agree with the
Associations. The Associations have standing under the APA.
The director’s order stated that WAC 296-05-011(2) was modified “by rule
to allow a competitor to object to proposed standards” after Seattle Building &
Construction Trades Council v. Apprenticeship & Training Council, 129 Wn.2d 787,
920 P.2d 581 (1996) (SBCTC). In SBCTC, the Apprenticeship Council approved
standards for the Construction Industry Training Council’s (CITC) apprenticeship
program application for non-union “electrical, carpentry, painting, plumbing,
heating/air conditioning, and sheet metal trades.” 129 Wn.2d at 790-91. Two
union councils, competitors of CITC, “raised a number of concerns about CITC’s
proposed standards” to the Apprenticeship Council, but the council approved
CITC’s program. Id. at 792. The union councils sought review under the APA,
arguing that the Apprenticeship Council was required to hold adjudicatory
proceedings to consider CITC’s application. Id. The court held that the union
councils had standing under the APA to obtain an adjudicatory proceeding. Id. at
804.
There are three requirements that must be met for a party to have standing
under the APA,
(1) [t]he agency has prejudiced or is likely to prejudice that person;
(2) [t]hat person’s asserted interests are among those that the agency was required to consider when it engaged in the agency action challenged; and
10 No. 88019-5-I/11
(3) [a] judgment in favor of that person would substantially eliminate or redress the prejudice to that person caused or likely to be caused by the agency action.
RCW 34.05.530. “The first and third conditions are often called the injury-in-fact
requirement, and the second condition is known as the ‘zone of interest’ test.”
SBCTC, 129 Wn.2d at 793-94. “[T]he United States Supreme Court ‘routinely
recognizes probable economic injury resulting from agency actions that alter
competitive conditions as sufficient to satisfy’ the injury-in-fact requirement.” Id. at
795 (quoting Kenneth Culp Davis & Richard J. Pierce, Jr., Administrative Law
Treatise, § 16.4, at 13, § 16.5, at 30-31 (3d ed. 1994)). The zone of interest test
“serves as an additional filter limiting the group which can obtain judicial review of
an agency decision,” but “ ‘the test is not meant to be especially demanding.’ ” Id.
at 797 (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399, 107 S. Ct. 750, 93
L. Ed. 2d 757 (1987)). The focus of the test is to determine whether the legislature
intended for the agency to protect the party’s interests in the action. Id. In SBCTC,
the Apprenticeship Council was required to consider the interests of competitors
to the proposed program because “the statutory and regulatory schemes
contemplate that new programs must match the standards of existing programs.”
Id. at 798. This was because existing programs “have an interest in contesting
what they believe to be inadequate standards in order to prevent entry of new,
substandard programs into the market.” Id. at 796.
The Associations satisfy the injury-in-fact requirement. The parties in
SBCTC were competing apprenticeship programs, but in its analysis, the court
focused on market competition factors—barriers to new market entrants,
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competition for available work opportunities, and the present and future standards
imposed on market participants. Id. at 796. The same rationale applies here to
the Associations and the proposed apprenticeship program. The Associations’
members will compete with future licensed veterinary technician apprentices for
the same jobs. Changing the barrier of entry for the licensed veterinary technician
market by admitting apprentices could lead to greater competition in the future.
And the changed standards for a licensed veterinary technician could affect the
reputation of all licensed veterinary technicians. As market competitors, the
Associations, and their members, face probable economic injuries akin to those
faced by the unions in SBCTC.4
The Associations satisfy the zone of interest test. A primary objection
expressed by the Associations is that the standards of the proposed
apprenticeship program are inadequate. The Apprenticeship Council was required
to consider the interests of the Associations because the statutory and regulatory
scheme underlying veterinary technician licensure requires that the professional
standards prioritize “the interest of good veterinary health care delivery to the
consuming public.” See RCW 18.92.030(2)(a). And as the accrediting body
recognized under Washington law, the American Veterinary Medical Association
has a strong interest in preventing veterinary technician programs from entering
the market if they have inadequate standards.
4 The Associations argued in their appeal to the L&I Director that the American Veterinary Medical Association is paid “thousands of dollars” in fees by every accredited educational veterinary technician program in Washington. The proliferation of apprenticeship programs, like the one proposed by the Clinic, would likely threaten these fees.
12 No. 88019-5-I/13
The Apprenticeship Council’s regulations cannot exclude parties that are
granted standing under the APA. See Wash. State Hosp. Ass’n, 183 Wn.2d at
595. Under the APA, the Associations had standing to object to the proposed
apprenticeship standards.
B
Because the Associations had standing to object to the proposed
apprenticeship standards, the Associations were entitled to an adjudicatory
proceeding before the Apprenticeship Council.
Under the APA, “applications for licenses that are contested by a person
having standing to contest under the law” must be “conducted as adjudicative
proceedings.” RCW 34.05.422(1)(b). The APA defines “license,” as a “franchise,
permit, certification, approval, registration, charter, or similar form of authorization
required by law.” RCW 34.05.010(9)(a). In SBCTC, approval of the contested
apprenticeship program triggered access to potential benefits under statute,
including workers’ compensation and employment on state public works. 129
Wn.2d at 800-01. The court held that because it is “unlawful to do these things
without agency approval,” i.e., without program approval by the Apprenticeship
Council, an apprenticeship standards application to the Apprenticeship Council is
therefore an application for a “license” under the APA. Id. at 801-02 (when a
“statute or rule required official approval for certain purposes” a “license required
by law” is present). “The APA requires a formal adjudicatory hearing on an
application for Apprenticeship Council approval and registration of an
apprenticeship program under [chapter 49.04 [RCW].” Id. at 804.
13 No. 88019-5-I/14
Failure to hold an adjudicatory proceeding, when it is required under RCW
34.05.422(1)(b) deprives the objector of the “significant procedural safeguards
available in formal adjudicatory proceedings, including testimony taken under oath,
the opportunity for structured cross-examination, and an agency order containing
requisite findings, conclusions, and reasons therefor.” Id. at 804. In SBCTC, after
the court decided that the competitor unions had been deprived of the mandatory
adjudicatory proceeding, the court reversed the Apprenticeship Council’s approval
of the objected to program, and remanded for a formal adjudicatory proceeding.
Id.
The circumstances before us are similar. RCW 18.92.128(2) requires
completion of a “posthigh school course approved by the [Veterinary Board]” for
an individual to be eligible for a veterinary technician license. The Apprenticeship
Council’s approval of the Clinic’s program serves as “official approval for certain
purposes,” under the APA, see SBCTC, 129 Wn.2d at 802, because approval of
the proposed program standards was a prerequisite for the Veterinary Board to
engage in rulemaking to clarify that completion of the apprenticeship program
established eligibility for licensure.5 This requires the Apprenticeship Council’s
approval. WAC 296-05-011(1)(c). As in SBCTC, approval of the proposed
apprenticeship program confers benefits under statute, making program approval
a “license,” which, when objected to by a party with standing, triggers a mandatory
5 Indeed, under the rule promulgated by the Veterinary Board in 2024, for a
veterinary technician apprentice to be eligible to sit for licensure, they must complete a program “registered in accordance with chapters 296-05 WAC and 49.04 RCW,” the rules and chapter for the Apprenticeship Council. WAC 246-935- 060(1)(c).
14 No. 88019-5-I/15
adjudicative proceeding. RCW 34.05.422(1)(b). In denying the Associations’ right
to an adjudicatory proceeding, the Apprenticeship Council failed to follow a
prescribed procedure required under RCW 34.05.570(3)(c), and it failed to perform
a duty required by law under RCW 34.05.570(4). See RCW 34.05.422(1)(b).
We reverse the Apprenticeship Council’s approval of the Clinic’s proposed
apprenticeship program standards, and we remand for the Apprenticeship Council
to hold the required adjudicatory proceeding.
III
The Associations argue that the trial court erred in granting the Veterinary
Board’s motion to dismiss because there was no remedy at law available under
the APA at the time of dismissal. The Veterinary Board contends that the
Associations’ claim fails because the Uniform Declaratory Judgment Act (UDJA),
chapter 7.24 RCW, does not apply to agency rulemaking that is separately
reviewable under the APA. We agree with the Veterinary Board.
We review an order granting a motion to dismiss under CR 12(b)(6) de
novo. Kinney v. Cook, 159 Wn.2d 837, 842, 154 P.3d 206 (2007). We presume
all facts alleged in the plaintiff’s complaint are true. Id. With exceptions not
relevant here, the APA establishes the exclusive means for judicial review of
agency action. RCW 34.05.510; Lakeside Indus., Inc. v. Dep’t of Revenue, 1
Wn.3d 150, 155, 524 P.3d 639 (2023). This includes judicial review of challenges
to a regulation based on the theory that the implementing agency has exceeded
its statutory authority. See RCW 34.05.570(2)(c), (3)(b), (4)(c)(ii) (courts may grant
15 No. 88019-5-I/16
relief under the APA when an agency rule, order, or other action exceeds the
statutory authority of the agency).
The declaratory judgment action brought by the Associations constituted a
challenge to the validity of a state agency rule. At the time the action was filed, the
Veterinary Board was engaged in formal rulemaking. The Veterinary Board had
already submitted a preproposal statement of inquiry in which it described its intent
to “amend[] the rules to make it clear that a registered apprenticeship is a board-
approved method for an applicant to become eligible for the veterinary technician
national exam and licensure.” Wash. St. Reg 23-07-007, at 1. In their declaratory
judgment action, the Associations requested that the court effectively preempt the
rule proposed by the Veterinary Board. Specifically, the Associations requested
that the court “[e]nter a declaratory judgment holding that . . . an apprenticeship
may not be substituted for the posthigh school educational program required by
law.” Because challenges to agency action may be brought only under the APA,
the Associations failed to state a claim upon which relief could be granted under
the UDJA.
The Associations also argue that the trial court erred in dismissing its
complaint because, at the time of the dismissal, there was no “state agency action”
for the court to review. The UDJA “does not apply to state agency action
reviewable under chapter 34.05 RCW [the APA].” RCW 7.24.146. The
Associations argue that, because no rule was formalized at the time of dismissal,
the Veterinary Board’s actions were not reviewable under the APA and were thus
subject to challenge under the UDJA. The Associations’ argument still violates the
16 No. 88019-5-I/17
principle of APA exclusivity. The Veterinary Board’s rulemaking is governed by
the APA, see RCW 34.05.310.395, and its rulemaking remains “reviewable” under
the APA in the manner that law prescribes. See RCW 34.05.570(2). The
combination of the UDJA’s express exclusion of agency action reviewable under
the APA, the APA’s express declaration that it affords the exclusive means of
challenging agency action, the APA’s comprehensive governance of agency
rulemaking, and the APA’s express provisions for challenging rulemaking together
evince clear legislative intent that the Associations’ challenge to the Board’s
proposed and now adopted rule cannot be brought preemptively under the UDJA
and instead must be brought pursuant to the exclusive provisions of the APA. See
Ass’n of Wash. Spirits & Wine Distribs. v. Wash. State Liquor Control Bd., 182
Wn.2d 342, 350, 340 P.3d 849 (2015) (to discern legislative intent, the court
considers the context of the statute, related provisions, and the statutory scheme
as a whole). This does not change just because such a claim is not yet ripe
according to APA procedure. See Thun v. City of Bonney Lake, 164 Wn. App.
755, 762, 764, 265 P.3d 207 (2011) (“In Washington, ripeness is often called
‘exhaustion of administrative remedies.’ ”); Cost Mgmt. Servs., Inc. v. City of
Lakewood, 178 Wn.2d 635, 642, 310 P.3d 804 (2013) (One purpose underlying
the exhaustion rule is to “insure against premature interruption of the administrative
process.”). The superior court properly dismissed the Associations’ UDJA claim
against the Veterinary Board. And because the Associations do not separately
brief the dismissal of their UDJA claim against L&I, we affirm that dismissal on the
same basis.
17 No. 88019-5-I/18
IV
We reverse the Apprenticeship Council’s approval of the Clinic’s veterinary
technician apprenticeship program standards and remand for an adjudicative
hearing on the proposed apprenticeship program standards before the
Apprenticeship Council. The superior court’s dismissal of the Associations’
declaratory judgment action is affirmed.
WE CONCUR: