Quinault Indian Nation v. Imperium Terminal Servs., LLC

• Court: Washington Supreme Court
• Decided: January 12, 2017
• Docket: 92552-6
• Status: Published

Opinion

NOTICE: SLIP OPINION (not the court’s final written decision)

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F'ft:E·~ a00 / I N CLERKS OFFICE This opinion was filed for record .._COURT. . DATE 1111

JAN 12.1817 at ll&\ onlw ~ 21Jin j-1 ' ;_IAAA hAIIA.&t I CHili/' JUSTICE c9 . 8~~c:x.~. SUSAN L. CARLSON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

QUINAULT INDIAN NATION, FRIENDS ) OF GRAYS HARBOR, SIERRA CLUB, ) GRAYS HARBOR AUDUBON, and ) No. 92552-6 CITIZENS FOR A CLEAN HARBOR, ) ) En Bane Petitioners, ) ) v. ) ) Filed __J_A_N_1_2_2_111_7_ IMPERIUM TERMINAL SERVICES, LLC;) CITY OF HOQUIAM; WASHINGTON ) STATE DEPARTMENT OF ECOLOGY; ) WESTWAYTERMINALCOMPANY, ) LLC; and WASHINGTON SHORELINES ) HEARINGS BOARD, ) ) Respondents. ) _________________________)

OWENS, J. - Two companies applied for permits to expand their oil

terminals on the shores of Grays Harbor. The expansion would facilitate the storage

of additional fuel products, which would arrive by train or truck and depart by ocean-

bound ship. The issue here is whether the Ocean Resources Management Act For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Quinault Indian Nation, eta/. v. Imperium Terminal Svcs., eta/. No. 92552-6

(ORMA), chapter 43.143 RCW, applies to these expansion projects. 1 The Shoreline

Hearings Board (Board) and the Court of Appeals held that ORMA does not apply to

these projects based on limited definitions in the Department of Ecology's (DOE)

ORMA implementation regulations. We hold that this interpretation improperly

restricts ORMA, which was enacted to broadly protect against the environmental

dangers of oil and other fossil fuels. The pmties also contest whether these projects

qualify as "ocean uses" or "transportation" under DOE's regulations. We hold that

these projects qualify as both ocean uses and transportation. Finally, though not

discussed by the parties or the Court of Appeals, these projects qualify as "coastal

uses" under DOE's regulations. Accordingly, we reverse the Court of Appeals and

remand for further review under ORMA's provisions.

FACTS

Westway Terminal Company LLC owns a terminal used for storing

petroleum products in the Port of Grays Harbor within the city ofi-Ioquiam. Grays

Harbor and the areas along the rail and ocean vessel route contain many

environmentally sensitive areas including streams, rivers, wetlands, and migratory

bird habitats. Westway applied to the city of Hoquiam and DOE to expand its

1 ORMA was originally passed in 1989 in the wake of the Nestucca and Exxon Valdez oil spills. When the legislature passed the law, it explicitly noted the danger that oil spills pose to the state's marine environment. LAWS OF 1989, 1st Ex. Sess., ch. 2.

2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Quinault Indian Nation, et al. v. Imperium Terminal Svcs., et al. No. 92552-6

existing bulk liquid storage terminal to allow for the receipt of oil trains, storage of

crude oil from those trains, and outbound shipment of oil by vessel and barge. The

crude oil would be shipped from the Port of Grays Harbor to regional refineries.

Westway's expansion project is situated on the shores of both Grays Harbor and

the Chehalis River in the city of Hoquiam. Construction of the proposed project

will be at least 160 feet from the river.

Westway plans to expand its existing facility by constructing four

aboveground storage tanks for storing crude oil. Each tank will have a capacity of

8.4 million gallons, meaning the entire Westway project will have a capacity of

33.6 million gallons. Westway also plans to expand its rail facility from two short

rail spurs to four longer spurs with a total of76loading spots. Westway would

also add a vapor combustion unit and a structural hose support system to

accommodate loading tanker vessels with crude oil. Once complete, Westway's

expanded terminal is estimated to receive 403.2 million gallons of oil per year.

This is equivalent to two "unit train" transits (one loaded and one empty, with 120

railcars each) every three days. Westway's expansion is estimated to increase the

amount of train traffic by up to 243 transits per year. Westway's expansion project

is also estimated to increase ocean vessel traffic by up to 120 transits per year.

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Quinault Indian Nation, eta/. v. Imperium Terminal Svcs., eta/. No. 92552-6

Imperium Terminal Services LLC operates a similar terminal facility next to

Westway's in Grays Harbor, also adjacent to the Chehalis River. Like Westway,

Imperium applied to expand its bulk liquid storage terminal to allow for the

receipt, storage, and shipment of crude oil, biofuels, and other fuel products. This

expanded facility "would be served by three independent modes oftransportation:

water, rail, and truck, each of which would provide pathways for inbound raw

materials or outbound products." Admin. Record (AR) at 228, 524. Imperium's

expansion would include construction of nine additional storage tanks, each with a

storage capacity of3.36 million gallons, for a total capacity of30.24 million

gallons. Approximately 6,100 feet of new track would be constructed to expand

their current railyard. Two new pipes would also be constructed, connecting the

tank farm with a preexisting shipping terminal. Finally, a marine vapor

combustion unit would be installed in order to incinerate vapors displaced during

vessel loading. The unit would overhang the harbor's waters.

Imperium estimated its expansion project would increase terminal operations

up to two unit trains per day (one loaded and one empty), each consisting of 105

tank cars, and would result in up to 200 ships or barges a year. Combined, the

Westway and Imperium expansion projects would increase vessel traffic by 520

transits per year and increase train traffic by 973 transits per year. This would be a

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Quinault Indian Nation, eta!. v. Imperium Terminal Svcs., eta!. No. 92552-6

310 percent increase in vessel transits and a 133 percent increase in train transits

per year through Grays Harbor.

In order to gain permission to begin these expansions, Westway and

Imperium applied for substantial shoreline development permits (SSDPs). DOE

and the city of Hoquiam worked as "co-leads," tasked with making a threshold

determination of nonsignificance, determination of significance, or mitigated

determination ofnonsignificance (MDNS). The co-leads issued an MDNS to both

Westway and Imperium for their proposals and issued SSDPs for both terminals in

April and June 2013. Petitioners 2 appealed the permits and MDNS to the Board,

arguing in part that DOE and the city of Hoquiam failed to consider both the State

Environmental Policy Act (SEPA), chapter 43.21C RCW, and ORMA before

issuing the MDNSs.

Petitioners and respondents 3 all filed motions for partial summary judgment.

Petitioners claimed that respondents violated SEP A because they ignored the

cumulative impact of their own projects, as well as the foreseeable additional

impact of a third, similar project when assessing environmental impact at the

"threshold determination stage." Id. at 1142-52. The Board granted petitioners'

2 Petitioners are Quinault Indian Nation, Friends of Grays Harbor, Sierra Club, Grays Harbor Audubon, and Citizens for a Clean Harbor. 3 Respondents are Imperium, the city of Hoquiam, DOE, Westway, and the Board.

5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Quinault Indian Nation, et al. v. Imperium Terminal Svcs., et al. No. 92552-6

motion for partial summary judgment, holding that respondents' failure to account

for the cumulative impact of all three projects made the issuance of the MDNS

clearly erroneous. Respondents have not challenged this finding before this court. 4

However, the Board also granted respondents' motion for partial summary

judgment, determining that ORMA was not applicable to the proposal. It reasoned

that ORMA only applies to ocean-based projects because of the ORMA

implementing regulation promulgated by DOE, WAC 173-26-360. Using the

definitions from that regulation, it noted that ORMA was designed to regulate

activities in the ocean, such as extraction of oil, gas, and minerals, and concluded

that the proposed Westway terminal did not fall within the definition.

Petitioners appealed this summary judgment order to the Court of Appeals,

which accepted direct review. Quinault Indian Nation v. Imperium Terminal

Servs., LLC, 190 Wn. App. 696, 360 P.3d 949 (2015). The Court of Appeals

affirmed the Board's grant of summary judgment. Id. at 700. It found that the

Westway and Imperium proposals were not subject to ORMA because they are not

"ocean uses" or "transportation uses" under WAC 173-26-360(3) and (12). Id. at

4 Because this third project withdrew its plans for construction, the Court of Appeals determined the issue was moot. Respondents have not further challenged that determination. Quinault Indian Nation v. Imperium Terminal Servs., LLC, 190 Wn. App. 696, 703-04, 360 P.3d 949 (20 15).

6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Quinault Indian Nation, et al. v. Imperium Terminal Svcs., eta!. No. 92552-6

712-17. The court reasoned that respondents' projects were not "ocean uses"

because the terminals did not constitute a "primary activity occurring on

Washington's coastal waters." Id at 713. The court did not directly address

ORMA's plain language or whether the Board was required to apply it to

respondents' proposals. The court instead noted that ORMA does not contain any

definition of "ocean uses," noted further that neither party had "challenged this

regulation," and declined to analyze the statute further. !d. at 713 n. 8.

Petitioners sought review by this court, which was granted. Quinault Indian

Nation v. City ofHoquiam, 185 Wn.2d 1017, 369 P.3d 500 (2016). We now find

that the Board and Court of Appeals erred when finding that ORMA does not

apply to respondents' proposed projects.

ISSUES

1. Do respondents' proposed projects trigger review under ORMA's

statutory framework, RCW 43.143 .030?

2. Do these proposed projects constitute "[o]cean uses" or

"transportation" under WAC 173-26-360(3) and (12)?

3. Do these proposed projects constitute "coastal uses" under WAC 173-

26-360(6)?

7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Quinault Indian Nation, eta/. v. Imperium Terminal Svcs., eta/. No. 92552-6

STANDARD OF REVIEW

Summary judgment is proper if there is no genuine issue as to any material

fact, the moving party is entitled to judgment as a matter of law, and reasonable

minds could reach only one conclusion from the evidence presented. Bostain v.

Food Express, Inc., 159 Wn.2d 700, 708, 153 P.3d 846 (2007). We review grants

of summary judgment de novo. Michak v. Transnation Title Ins. Co., 148 Wn.2d

788, 794-95, 64 P.3d 22 (2003).

The issue here is whether the Board properly granted summary judgment

when it found that respondents' projects were not subject to review under ORMA.

Interpreting ORMA is an issue of first impression for this court. We interpret

statutes de novo, as a question oflaw. Dep't ofEcology v. Campbell & Gwinn,

LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). When interpreting statutes, our

fundamental purpose is to ascertain and carry out the intent of the legislature, In re

Marriage of Schneider, 173 Wn.2d 353, 363, 268 P.3d 215 (2011). If a statute's

meaning is plain on its face, "then the court must give effect to that plain meaning

as an expression oflegislative intent." Campbell & Gwinn, 146 Wn.2d at 9-10.

8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Quinault Indian Nation, et al. v. Imperium Terminal Svcs., et al. No. 92552-6

ANALYSIS

1. Respondents' Proposed Facility Expansion Projects Trigger Review under ORMA 's Statutory Framework, RCW 43.143.030

The Shoreline Management Act of 1971 is an extensive regulatory scheme

designed to help local governments manage development along shorelines. Ch.

90.58 RCW. ORMA is integrated within this framework. See RCW 90.58.195(2)

(counties, cities, and towns with coastal waters must ensure that their shoreline

master programs "conform with RCW 43.143.010 and 43.143.030 and with the

department of ecology's ocean use guidelines"). The purpose of ORMA is "to

articulate policies and establish guidelines for the exercise of state and local

management authority over Washington's coastal waters, seabed, and shorelines."

RCW 43.143.010(1).

A. ORMA Is a Balancing Tool That Must Be Liberally Construed

ORMA is a balancing tool intended to be used by local governments to

weigh the commercial benefits of coastal development against the State's interest

in protecting coastal habitats and conserving fossil fuels. In its findings section,

the legislature identified the ecological importance of our state's coastal habitats:

"Washington's coastal waters, seabed, and shorelines are among the most valuable

and fragile of its natural resources." RCW 43.143.005(1). The legislature also

emphasized the commercial utility of industries dependent on the ocean and

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shoreline. RCW 43.143 .005(2). While recognizing the importance of commercial

uses, the legislature nonetheless signaled that commercial endeavors may be

prohibited if they are potentially destmctive to the environment. RCW

43.143.005(3) ("Washington's coastal waters, seabed, and shorelines are faced

with conflicting use demands. Some uses may pose unacceptable environmental or

social risks at certain times.").

The purpose of statutory interpretation is to give effect to the intent of the

legislature. Campbell & Gwinn, 146 Wn.2d at 9. We have historically found that

when passing laws that protect Washington's enviromnental interests, the

legislature intended those laws to be broadly construed to achieve the statute's

goals. See, e.g., Kucera v. Dep't ofTransp., 140 Wn.2d 200,212,995 P.2d 63

(2000) (noting that SEPA requires an environmental impact analysis even if a

party's primary motivation for such analysis is economic in nature); Leschi Imp.

Council v. Wash. State Highway Comm., 84 Wn.2d 271,277,525 P.2d 774 (1974)

(plurality opinion) (noting SEPA's application to "broader questions of

environmental impact"). ORMA is designed to address environmental threats to

our coastal waters and specifically addresses the threats posed by increased

expansion of the fossil fuel industry along the Pacific Coast. See RCW

43.143.010. The language of the statute indicates that the legislature intended it to

10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Quinault Indian Nation, et al. v. Imperium Terminal Svcs., et al. No. 92552-6

combat current environmental dangers and to preemptively protect the coastline

from future environmental risks. Because ORMA addresses broad concerns

surrounding the environmental dangers of collecting and transporting oil near our

shores, it requires a liberal construction.

B. Under the Plain Language of the Statute, ORMA Applies to Respondents' Projects

In this case, the Court of Appeals neglected to apply the plain language of

the statute, skipping directly to the definition of "ocean use" in WAC

173-26-360(3). Quinault, 190 Wn. App at 711-12. In so doing, the Court of

Appeals failed to consider the legislature's explicit direction as written in the

statute. In relevant part, RCW 43.143.030 states:

(1) When the state ofWashington and local governments develop plans for the management, conservation, use, or development of natural resources in Washington's coastal waters, the policies in RCW 43.143.010 shall guide the decision-making process.

(2) Uses or activities that require federal, state, or local government permits or other approvals and that will adversely impact renewable resources, marine life, fishing, aquaculture, recreation, navigation, air or water quality, or other existing ocean or coastal uses, may be permitted only if the criteria below are met or exceeded ....

The plain text of this statute includes respondents' terminal expansion

projects. These shoreline management plans include "plans for the management,

conservation, use, or development" of Washington's environment. RCW

11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Quinault Indian Nation, et al. v. Imperium Terminal Svcs., et al. No. 92552-6

43.143.030(1). Further, they make use of"natural resources in Washington's

coastal waters" as defined in the statute. Id. Respondents' projects are designed to

transfer tens of millions of gallons of petroleum products across the threshold of

Washington's coast. The projects thus constitute "[u]ses or activities" that require

government permits and may "adversely impact renewable resources, ...

navigation, ... or other existing ocean or coastal uses" due to the dramatic increase

in both ocean vessel and rail traffic. RCW 43.143.030(2).

Nonetheless, Westway argues that ORMA's review criteria are narrowly

triggered by the "location and nature of the activity." Suppl. Br. ofResp't

Westway at 4. Likewise, Imperium claims respondents' projects are activities on

coastal waters rather than in the water itself. See Suppl. Br. of Resp't Imperium at

10-12. The city of Hoquiam and DOE make similar arguments, indicating that the

statutory language of ORMA shows it applies only to projects that sit "in" coastal

waters. Suppl. Br. ofResp'ts Hoquiam & DOE at 6-14. Thus, according to

respondents, because the bulk of these projects are several feet adjacent to the

coast, and because any additions would be made to already existing facilities in

Grays Harbor, ORMA should not apply. These arguments construe the statute too

narrowly.

12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Quinault Indian Nation, eta!. v. Imperium Terminal Svcs., et al. No. 92552-6

The plain language of RCW 43.143 .030(1) anticipates respondents' projects.

To hold that the statute does not apply to a storage facility transferring oil products

from land transport to sea transport because the project is not literally "in" the

ocean would be an overly narrow reading of the text. As explained above, the

terminal expansion projects involve vast quantities of petroleum products. They

receive petroleum and other fuel products on trains or trucks, transfer the products

to temporary holding tanks, and then pipe the products into waiting vessels for

further transport. The pipes that these products flow through extend from the coast

onto a terminal, a structure located in Grays Harbor. The pipes then deposit the

products onto ocean-bound tankers moored to the terminal. Further, the proposals

include adding new loading arms and a combustion system on an existing dock.

Thus, though the projects themselves are not literally "in" Washington's coastal

waters, they would pump petroleum over those coastal waters, transfer them into

vessels floating in those coastal waters, and require additional transfer installations

on a dock located on those coastal waters. As noted above, we must construe this

statute liberally, Therefore, the transfer of these products into these vessels and the

construction of additional facilities constitute "management, conservation, use, or

development of natural resources in Washington's coastal waters." RCW

43.143 .030(1 ).

13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Quinault Indian Nation, et al. v. Imperium Terminal Svcs., et al. No. 92552-6

C. Other ORMA Provisions Indicate That the Projects Require Review under the Statute

RCW 43.143.030(2) also supports applying ORMA to these projects. It

indicates that uses that (1) require government permits and (2) will adversely

impact renewable resources, navigation, or other existing "ocean or coastal uses"

are subject to ORMA. Respondents' projects require several government permits

before construction can commence. They pose a great risk of adversely impacting

renewable resources with their increased threat of environmental harm. They may

also adversely impact navigation or preexisting ocean or coastal uses in the area by

creating a substantial increase in ocean vessel and rail transits and increased risk of

oil spills on coastal waters and coastline. Because ofthis, the projects are subject

to ORMA review.

The plain language ofRCW 43.143.010(5) further enforces this

interpretation. RCW 43.143.010 explicitly lays out the legislature's policy and

intent when it passed ORMA. Several subsections indicate an intent to regulate

and limit collection and use of fossil fuels off our shores. RCW 43.143.010(1)-(4).

However, subsection (5) demonstrates that the legislature did not intend ORMA to

be restricted to just these causes. In that subsection, the legislature notes that it

was not its current intent to "include recreational uses or currently existing

commercial uses involving fishing or other renewable marine or ocean resources

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within the uses and activities [that require review as] set forth in RCW

43.143.030." RCW 43.143.010(5). However, this language leaves open the

possibility that these other recreational and commercial uses could be covered in

the future. By leaving this opening, the legislature indicated that it considered, and

left available, the possibility of incorporating activities other than offshore drilling

under ORMA. This signals the broad spectrum of activities the legislature

intended the statute to cover. Because of this, RCW 43.143.010(5) indicates that

the legislature did not intend to preclude respondent's projects from undergoing

ORMA review.

The policy encapsulated in ORMA is to carefully review development

projects that involve nonrenewable resources and pose a risk of damage to the

environment in Washington's sensitive coastal waters. Respondents' projects

clearly fall within that broad policy. The projects might pose a threat to the

coastline because of the massive quantities of fuel transferred from land to sea and

the risk of that fuel contaminating our environment.

Therefore, we find that the plain text of the statute expresses the intent that

respondents' projects be reviewed pursuant to ORMA.

15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Quinault Indian Nation, et al. v. Imperium Terminal Svcs., et al. No. 92552-6

2. Respondents' Proposed Facility Expansion Projects QualifY as "Ocean Uses" and "Transportation" under WAC 173-26-360(3) and (12)

Even ifthe statute were ambiguous, we could resolve the issue under DOE's

promulgated rules. If a statute is ambiguous, an agency's promulgated rules help

our interpretation because they '"fill in the gaps' where necessary to the

effectuation of a general statutory scheme." Hama Hama Co. v. Shorelines Hr'gs

Bd., 85 Wn.2d 441, 448, 536 P.2d 157 (1975). We apply our normal rules of

statutory construction to administrative rules and regulations. Cannon v. Dep 't of

Licensing, 147 Wn.2d 41, 56, 50 P.3d 627 (2002). This court further gives rules

and regulations promulgated by administrative bodies a rational and sensible

interpretation. !d. at 57. Here, DOE's own ocean management rules support the

conclusion that ORMA applies to respondents' projects.

A. Respondents' Projects Are "Ocean Uses"

DOE has established a set of ocean management mles that help determine

when ORMA applies to particular projects and proposals. In these rules, DOE

provides definitions for both "ocean uses" and "transportation." WAC 173-26-

360(3), (12). The parties contest whether respondents' projects fall under either

definition. We hold that these projects are contemplated under both definitions.

While we give agencies great deference to their interpretation of mles within

their area of expertise, we may substitute our interpretation of the law for that of an

16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Quinault Indian Nation, eta/. v. Imperium Terminal Svcs., eta/. No. 92552-6

agency. Port of Seattle v. Pollution Control Hr 'gs Bd., 151 Wn.2d 568, 593, 90

P.3d 659 (2004). It is valid for an agency to "fill in the gaps" via statutory

construction as long as the agency does not effectively amend the statute. Hama

Hama, 85 Wn.2d at 448. In this case, DOE improperly contorted the statute when

it reasoned that respondents' projects are not "ocean uses" or "transportation." The

regulation defines "ocean uses" as

activities or developments involving renewable and/or nonrenewable resources that occur on Washington's coastal waters and includes their associated off shore, near shore, inland marine, shoreland, and upland facilities and the supply, service, and distribution activities, such as crew ships, circulating to and between the activities and developments.

WAC 173-26-360(3 ). Here, respondents' construction projects are designed to

increase petroleum storage and transportation through facilities built on the edge of

Grays Harbor. Such projects are precisely "developments involving ...

nonrenewable resources that occur on Washington's coastal waters." Id. DOE's

contrary interpretation incorrectly narrows the definition of"ocean uses," thereby

improperly altering the intent of ORMA.

Likewise, the Court of Appeals' holding that the projects were not ocean uses

was error. Quinault Indian Nation, 190 Wn. App. at 713. The terminals not only sit

as close as 160 feet from the water, but they extend over the water. See AR at 124,

228 (pipelines would connect the tank farms and overhang the water to load

17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Quinault Indian Nation, eta/. v. Imperium Terminal Svcs., eta/. No. 92552-6

vessels in the port); see also id. at 757 (aerial picture of facilities indicating the

same). Because these projects sit on the shores of Grays Harbor and overhang the

water, we find that respondents' projects qualifY as"[ o]cean uses" pursuant to WAC

173-26-360(3). To conclude otherwise would permit DOE's interpretation of

ORMA to effectively amend the statute by substantially narrowing its scope.

Both DOE and the city of Hoquiam argue that the definition of"ocean uses"

does not apply to respondents' projects because these projects do not literally sit on

Washington's coastal waters. As explained above, this argument misreads RCW

43.143.030, which states that uses involving nonrenewable resources on Washington

coastal waters that require permits, and that will adversely impact navigation or other

ocean or coastal uses, must first meet ORMA's review criteria. Further, DOE and

the city's argument ignores DOE's own rule stating that local governments "may

permit ocean or coastal uses and activities as a substantial development . . . only if"

ORMA's criteria are met. WAC 173-26-360(6) (emphasis added). Accordingly,

because these projects are developments that use nonrenewable resources and are

situated on Washington's coast, we find that they qualifY as "ocean uses."

18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Quinault Indian Nation, et al. v. Imperium Terminal Svcs., et al. No. 92552-6

B. Respondents' Projects Are "Transportation"

Respondents' projects also constitute "transportation" under DOE's ocean

management regulations. Under DOE's ocean management framework, "ocean

transportation" includes

such uses as: Shipping, transferring between vessels, and offshore storage of oil and gas; transport of other goods and commodities; and offshore ports and airports. The following guidelines address transportation activities that originate or conclude in Washington's coastal waters or are transporting a nonrenewable resource extracted from the outer continental shelf off Washington.

WAC 173-26-360(12) (emphasis added). In this case, an integral part of

respondents' projects is loading petroleum products onto ocean vessels to be shipped

to refineries. Neither party disputes this fact. This is clearly a transportation activity

that "originate[s] or conclude[s]" in Washington's coastal waters. Id. The activity

must originate or conclude in Washington's waters or include a nonrenewable

resource from Washington's continental shelf; it need not do both. Id. However, the

Court of Appeals held that the projects cannot be "transportation" because they are

not '"ocean use[s]. "' Quinault Indian Nation, 190 Wn. App. at 714.

We find instead that respondents' projects are "ocean uses" and thus also

qualify as "transportation." Once built, these projects will result in an estimated

310 percent increase in vessel traffic through Grays Harbor annually. Indeed, the

expanded facilities would be served by three separate modes of transportation:

19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Quinault Indian Nation, eta/. v. Imperium Terminal Svcs., eta/. No. 92552-6

water, rail, and truck. Therefore, respondents' terminals constitute "transportation"

because they serve no other purpose than to facilitate and increase the movement of

petroleum products across both the ocean via tanker ships and land via rail.

3. Respondents' Proposed Facility Expansion Projects Are "Coastal Uses" under WAC 173-26-360(6)

While the parties dispute whether the projects are "ocean uses" under the

WAC, neither party has addressed whether the projects qualify as "coastal uses"

under WAC 173-26-360(6). Though no party has discussed this provision in their

briefing, we have the "inherent authority to consider issues not raised by the parties

if necessary to reach a proper decision." Alverado v. Wash. Pub. Power Supply

Sys., 111 Wn.2d 424, 429, 759 P.2d 427 (1988). Here, it is clear that the language

of the regulation, if applied to respondents' proposals, would trigger ORMA

revtew.

DOE's rules read in relevant part, "[l]ocal govermnent and the department

may permit ocean or coastal uses and activities as a substantial development,

variance or conditional use only if the criteria ofRCW 43.143. 030(2) listed below are met. ... " WAC 173-26-360( 6) (emphasis added). "Coastal use" is not defined

in DOE's ocean management rules, nor is it defined in ORMA. To determine the

meaning of an undefined term, we may look to standard English dictionaries.

Kitsap County v. Allstate Ins. Co., 136 Wn.2d 567, 576, 964 P.2d 1173 (1998). In

20 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Quinault Indian Nation, et al. v. Imperium Terminal Svcs., et al. No. 92552-6

standard English, "coast" means "land immediately abutting the sea" and "coastal"

means "of or relating to a coast" or "located on or near a coast." WEBSTER's

THIRD NEW INTERNATIONAL DICTIONARY 433 (2002). In this case, it makes

common sense to conclude that the respondents' proposed terminal expansion

projects on the shores of Grays Harbor constitute "coastal uses" pursuant to WAC

173-26-360(6). Based on the plain meaning of the text, DOE intended ORMA to

be considered before permitting construction projects along Washington's shores

or coasts. Therefore, we hold that the administrative rules clearly intended its

development projects, both ocean and coastal, be reviewed under ORMA.

Respondents' argument that ORMA does not apply to their projects because

they are not "ocean uses" ignores the fact that ORMA does apply to "coastal uses"

under both the statutory and administrative frameworks. Both ORMA and DOE's

promulgated rules for ocean management plainly include coastal uses. The Court

of Appeals erred when finding that ORMA does not apply to respondents' projects

because they are not "ocean uses." In doing this, the Court of Appeals reads

"coastal use" out of the statute entirely. Even if one could find that these projects

do not qualify as "ocean uses" under ORMA, respondents make no argument that

their projects are not "coastal uses" under either the RCWs or WACs.

Respondents cannot argue that their projects are not "ocean uses" and then ignore

21 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Quinault Indian Nation, et al. v. Imperium Terminal Svcs., eta/. No. 92552-6

their qualification as "coastal uses" simply to evade ORMA review. Indeed, the

construction sites sit on the shores of Grays Harbor, as close as 160 feet from the

Chehalis River. Because respondents' projects abut the waters of both Grays

Harbor and the Chehalis River, these projects constitute "coastal uses" pursuant to

WAC 173-26-360(6).

CONCLUSION

The issue here is whether respondents' proposed expansion of fuel storage

terminals on the shores of Grays Harbor require review under ORMA. We hold that

they do.

First, the plain language ofRCW 43.143.030 shows the legislature intended

ORMA to apply in this case. The purpose ofORMA is to carefully review

development projects that involve nonrenewable resources and pose a risk of

damage to the environment in Washington's coastal waters. Because the entire

purpose of respondents' projects is to store and transfer fuel from Washington's coast

to Washington's waters, the projects fit squarely within ORMA's broad reach.

Second, the proposed terminal expansion projects also qualifY as"[ o]cean uses" and

"transportation" as defined in WAC 173-26-360(3) and (12). These projects will

increase transportation of petroleum products over land and sea. To say they do not

constitute ocean uses or transportation would be to improperly narrow the intent of

22 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Quinault Indian Nation, et al. v. Imperium Terminal Svcs., et al. No. 92552-6

the law. Finally, although not addressed by the parties, respondents' proposed

projects qualify as "coastal uses" under WAC 173-26-360(6). A plain reading of the

rule shows respondents' projects constitute coastal uses because they are facilities

situated along the waters of Grays Harbor and involve using the coast to store and

transport fossil fuel products.

Accordingly, we reverse the Court of Appeals and remand the case for further

proceedings consistent with this opinion.

23 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Quinault Indian Nation, et al. v. Imperium Terminal Svcs., et al. No. 92552-6

WE CONCUR: