Ferry County v. Concerned Friends , 155 Wash. 2d 824 ( 2005 )

¶[32 Chambers, J.

(concurring) — I concur with the majority. I write separately to respond to the dissent. I agree that it is difficult to prove a negative. I am bemused by my learned colleague’s knowledge of “[r]epeated reports of sasquatch sightings.” Dissent at 844. However, I do not agree with the dissent’s implication that we apply a “substantial evidence test” to determine that the “best available science” has been used by those government agencies charged with regulating growth management and making environmental assessments. Dissent at 858; cf. Honesty in Envtl. Analysis & Legislation (HEAL) v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 96 Wn. App. 522, 534, 979 P.2d 864 (1999). We use the substantial evidence test to determine whether relief is appropriate, not whether the best available science was used by the county or the hearing board. RCW 34.05.570(3)(e). While the difference may seem subtle, it is a distinction that makes a difference; adopting the dissent’s position would require us to consistently substitute our judgment for the county and the growth management hearings board. That is not appropriate within our system of divided government.

¶33 I agree with the majority, the Court of Appeals, and the Eastern Washington Growth Management Hearings Board that Ferry County failed to use the best available science in making its listing decisions. Accordingly, I concur.