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

Opinion

i711.8:0 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filed an Unpublished Opinion in the above-captioned case.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determined that the opinion filed on October 29, 2018 should be withdrawn and a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ORDERED that the opinion filed on October 29, 2018 shall be withdrawn

and a substitute unpublished opinion shall be filed.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WASHINGTON STATE FOREST UNPUBLISHED OPINION PRACTICES BOARD,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 Wn.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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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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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).

4 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

5 No. 76447-1-1/6

Co., 124 Wn.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 Wn.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 Wn.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 Wn.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.

6 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

7 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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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 Wn.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 Wn. 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

Wn. 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)).

9 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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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 Wn.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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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: ( L'Ilt-t(2Au.4) P

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