Robert Sudar v. Dept. Of Fish And Wildlife ( 2015 )

FILE
COURT OF APPEALS
IN THE COURT OF APPEALS OF THE STATE OihNGTON
2015 FEB - 3 AM 9: 07
DIVISION II
STATE OF WASHINGTON
ROBERT SUDAR, a Washington resident; No. 453 1. 9- -II
CHRIS DOUMIT, a Washington resident; BY
QE; QTY
JOHN HANSON, a Washington resident;
MICHAEL WULLIGER, a Washington
resident; JIM LONG, a Washington resident,
Appellants,
v.
DEPARTMENT OF FISH AND WILDLIFE UNPUBLISHED OPINION
COMMISSION,
Respondent,
and
COASTAL CONSERVATION
ASSOCIATION,
Intervenor.
MELNICK, J. — Robert Sudar, Chris Doumit, John Hanson, Michael Wulliger, and Jim
Long,' commercial fishers, appeal from a superior court order dismissing their petition for judicial
review of the Washington Fish and Wildlife Commission' s(" Commission ") Columbia River
Basin Salmon Management Policy C -3620. Sudar challenges the trial court' s finding that Policy
Act2 ( "
C -3620 is not a rule defined by the Washington Administrative Procedure APA ") and that
no judicial claim for relief may be asserted. Sudar argues Policy C -3620 is a rule because it is a
directive or regulation of general applicability, and it establishes, alters, or revokes qualifications
For clarity and not intending any disrespect, and because all of the commercial fishers assert the
same positions, the parties will hereafter collectively be referred to as " Sudar."
2
Ch. 34. 05 RCW.
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or requirements relating to the enjoyment of benefits or privileges conferred by law. The
Commission argues that Policy C -3620 reflects its vision for and provides guidance to the
Washington Fish and Wildlife Department ( " Department ") on the salmon management in the
Columbia River Basin. We reject Sudar' s claims and hold that Policy C -3620 is not a rule.
Accordingly, we affirm the trial court' s dismissal.
FACTS
The Commission develops policies that will guide the Department in its management of
state resources. See RCW 77. 04. 013 and RCW 77. 04. 055( 1). Columbia River recreational and
commercial seasons for salmon are established by rules. Some are permanent and some are
temporary. Permanent rules are promulgated through rule -making procedures under the APA.
Fishery season rules are developed annually; however, adjustments are made, as needed, during
the season. Emergency rules, also promulgated through the APA, are utilized to make seasonal
changes in response to real -time data about fish stocks, fishery catch information, and fishery
management needs.
The process for developing fishery rules involves getting input through The North of
Falcon stakeholder consultation process and the Columbia River Compact.3 The North of Falcon
process is a pre- season public process that works with all harvest groups to develop
recommendations for summer and fall fishery seasons. It considers conservation objectives, legal
requirements, individual management policies of states and tribes, and policy objectives. The
3 The Columbia River Compact is the agreement between the states of Washington and Oregon on
fisheries in the Columbia River. RCW 77. 75. 010; RCW 77. 75. 020. In keeping with customary
usage, " compact" is also used in this opinion to refer to Washington and Oregon agency directors
or their representatives acting on behalf of their respective Fish and Wildlife Commissions in the
administration of this agreement.
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Columbia River Compact accepts input from joint staff, other agencies, tribes, and the public, and
it allows Washington and Oregon to develop and adopt concurrent fishery rules. Once Columbia
River Compact participants reach an agreement, an " Action Notice" is published. Clerk' s Papers
CP) at 370. It provides information to the public about management decisions that were reached
and rules that will follow. The actual regulation of fishery activity occurs when each state converts
Columbia River Compact decisions to enforceable fishery rules. Policy objectives guide adoption
of fishery rules.
In January 2013, after a series of public meetings, the Commission adopted Policy C -3620
and filed it with the code reviser as a policy statement. This Policy replaced two prior policy
statements adopted in 2009 and 2011. Policy C -3620 reflects the Commission' s vision for salmon
fisheries in the mainstem of the Columbia River and the Snake River. It provides the Department
a set of guiding principles and a series of actions it may follow to improve the management of
salmon in the Columbia River Basin.
Policy C -3620 outlines a number of objectives, including phasing out the use of non-
selective gill nets in non -tribal commercial fisheries in the Columbia River' s mainstem and the
transition of gill net use to off channel
- areas. Additionally, Policy C -3620 envisions a gradual
increase of shares of Endangered Species Act ( ESA) -listed salmon for recreational fishers.
The Commission has authority through the APA to adopt rules regulating the harvest of
fish and wildlife resources and to delegate its powers and duties to the director of the Department.
RCW 77. 04. 055( 2), ( 3), & ( 5); RCW 77. 04. 130; RCW 77. 04. 020. The Commission delegated
authority to the Director to adopt permanent and emergency rules to implement Policy C -3620
objectives. In 2013, the Department adopted a series of fishery rules to implement the adaptive
objectives set forth in Policy C -3620. Generally, the rules adhered to the vision set forth in Policy
45378 -9 -II
C -3620 by apportioning ESA -listed salmon between recreational and commercial fishers and
limiting the use of gill nets. See Emergency Rule -Making Order ( ERMO) WSR 13 - 08 -007
effective Mar. 21, 2013); ERMO WSR 13 - 09 -005 ( effective Apr. 4, 2013); ERMO WSR 13 -09-
015 ( effective Apr. 9, 2013); ERMO WSR 13 - 11 - 055 ( effective
May 14, 2013); ERMO WSR 13-
13 -012 ( effective June 8, 2013); ERMO WSR 13 - 14 -003 ( effective June 19, 2013); ERMO WSR
13 - 15 -047 ( effective July 15, 2013); ERMO WSR 13 - 16 -024 ( effective July 26, 2013); ERMO
WSR 13 - 16 -025 ( effective July 26, 2013). In contrast, some of the rules deviated from Policy C-
3620 by allowing for increased commercial allocation of ESA -listed salmon and the use of large -
net gill net gear. ERMO WSR 13 - 04 -037 ( effective Jan. 31, 2013); ERMO WSR 13- 11- 123
effective May 22, 2013); ERMO WSR 13 - 12 -011 ( effective May 24, 2013); ERMO WSR 13 - 12-
036 ( effective May 29, 2013); ERMO WSR 13 - 13 -027 ( effective June 16, 2013).
PROCEDURAL FACTS
Sudar sought to invalidate Policy C -3620 and filed a petition for judicial review of
administrative rules in Thurston County Superior Court pursuant to RCW 34. 05. 570( 2). He
asserted that under the APA, the policy was, in fact, a rule and he could properly seek judicial
review of it. RCW 34. 05. 570( 2)( c); RCW 34. 05. 010( 16). Sudar characterized Policy C -3620 as
a " Regulation," and alleged the Commission exceeded its statutory authority by adopting Policy
C -3620 without following the APA' s rule -making procedures. Sudar urged the court to invalidate
the " Regulation" because the Commission exceeded its statutory authority by " adopting a rule"
that conflicted with the Commission' s statutory mandate to maintain a stable fishing industry in
the state. CP at 7.
The Commission moved to dismiss pursuant to CR 12( b)( 6). The Commission argued that
be RCW 34. 05. 570( 2) because it did the APA
Policy C -3620 could not challenged under not meet
45378 -9 -II
definition of a rule, it provided guidance for future agency action; it did not have any legally
binding effect on any person outside the agency, and it had no legally enforceable regulatory effect,
thus no justiciable controversy and no claim for relief exist. CP at 24. Coastal Conservation
Association intervened as respondents. It concurred with the Commission' s motion to dismiss,
also arguing that Policy C -3620 does not fit within the definition of a rule as established in the
APA.
The trial court granted the Commission' s motion to dismiss. The trial court concluded that
Policy C -3620 is not a rule as defined in the APA, therefore, no justiciable controversy existed
under RCW 34. 05. 570( 2).
Sudar appeals.
ANALYSIS
I. STANDARD OF REVIEW
Here, the superior court considered all declarations and exhibits the parties submitted in
support of the pleadings. "[ W] hen matters outside the pleadings are presented to, and not excluded
by, the superior court," we treat a CR 12( b)( 6) motion to dismiss as a motion for summary
judgment. Brummett v. Wash. 's Lottery, 171 Wn. App. 664, 673, 288 P. 3d 48 ( 2012); CR 12( c).
As a result, we treat the trial court' s grant of the Commission' s CR 12( b)( 6) motion as a summary
judgment order.
We review a summary judgment order de novo. Loeffelholz v. Univ. of Wash., 175 Wn.2d
264, 271, 285 P. 3d 854 ( 2012). Summary judgment is appropriate where, viewing the evidence in
the light most favorable to the nonmoving party, there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Loeffelholz, 175 Wn.2d at 271. " A genuine
issue of material fact exists where reasonable minds could differ on the facts controlling the
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outcome of the litigation." Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P. 3d 8862008). If reasonable minds could reach but one conclusion, the issue may be determined on
summary judgment. SentinelC3, Inc. v. Hunt, 181 Wn.2d 127, 140, 331 P. 3d 40, 46 ( 2014).
II. THE POLICY IS NOT A RULE
Sudar appeals the trial court' s legal conclusion that Policy C -3620 is not a rule as defined
by RCW 34. 05. 010( 16). We hold that Policy C -3620 is not a rule subject to review under the APA
because it is not a directive or regulation of general applicability, and it does not establish, alter,
or revoke qualifications or requirements relating to the enjoyment of benefits or privileges
conferred by law.4
Statutory interpretation is a question of law we review de novo. State v. Franklin, 172
Wn.2d 831, 835, 263 P. 3d 585 ( 2011). We give effect to the plain meaning of the statute. Dep 't
of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9 -10, 43 P. 3d 4 ( 2002). We discern plain
meaning from the ordinary meaning of the language at issue, the context of the statute in which
that provision is found, related provisions, and the statutory scheme as a whole. State v. Engel,
166 Wn.2d 572, 578, 210 P. 3d 1007 ( 2009). When a statutory term is undefined, it is given its
ordinary meaning, which may be discerned from the dictionary. Estate ofHaselwood v. Bremerton
Ice Arena, Inc., 166 Wn.2d 489, 498, 210 P. 3d 308 ( 2009). If, after this inquiry, the statute is
4 As an initial matter, Sudar failed to provide corresponding issue statements to the assignment of
error as RAP 10. 3( a)( 4) Additionally, Sudar assigned error only to the trial court' s
requires.
findings, not the summary judgment order. We waive Sudar' s technical violations of the appellate
rules to reach the merits of this case because Sudar' s briefing makes the nature of the challenge
clear, the violation is minor, there is no prejudice to the opposing party, and there is minimal
inconvenience to the appellate court. Union Elevator & Warehouse Co., Inc. v. State ex rel. Dept
of Transp., 144 Wn. App. 593, 601, 183 P. 3d 1097 ( 2008) ( citing State v. Neeley, 113 Wn. App.
100, 105, 52 P. 3d 539 ( 2002)); RAP 1. 2( a).
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susceptible to more than one meaning, we may look to aids of construction and legislative history.
Campbell & Gwinn, LLC, 146 Wn.2d at 12.
The statute in dispute, RCW 34. 05. 010( 16), states in relevant part:
Rule" means any agency order, directive, or regulation of general applicability (a)
the violation of which subjects a person to a penalty or administrative sanction; ( b)
which establishes, alters, or revokes any procedure, practice, or requirement
relating to agency hearings; ( c) which establishes, alters, or revokes any
qualification or requirement relating to the enjoyment of benefits or privileges
conferred by law; ( d) which establishes, alters, or revokes any qualifications or
standards for the issuance, suspension, or revocation of licenses to pursue any
commercial activity, trade, or profession; or (e) which establishes, alters, or revokes
any mandatory standards for any product or material which must be met before
distribution or sale. The term includes the amendment or repeal of a prior rule, but
does not include ( i) statements concerning only the internal management of an
agency and not affecting private rights or procedures available to the public.
As a preliminary matter, this definition of "rule" necessarily includes one of the five above -
listed categories, regardless of whether a directive is at issue. State v. Straka, 116 Wn.2d 859, 868,
810 P. 2d 888 ( 1991); McGee Guest Home, Inc. v. Dep' t of Soc. & Health Servs., 142 Wn.2d 316,
322, 12 P. 3d 144 ( 2000); Failor' s Pharmacy v. Dep' t of Soc. & Health Servs., 125 Wn.2d 488,
493 -94, 886 P. 2d 147 ( 1994). In this case, Sudar argues that the applicable category is contained
in RCW 34. 05. 010( 16)( c). Therefore, the issues are whether Policy C -3620 is one of general
applicability and whether it alters qualifications or requirements relating to the enjoyment of
benefits or privileges conferred by law.
A. Directive or Regulation of General Applicability
Sudar first argues that Policy C -3620 is a rule because it is a directive that provides
authoritative instructions and specific orders as to how fish are allocated among commercial and
recreational fishers, gear types that may be used, and fishery openings. Sudar further argues that
Policy C -3620 is a rule of general applicability because it has been applied uniformly to all
commercial fishers on the Columbia River. We disagree. Because Policy C -3620 is the
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Department' s vision statement written to guide agency staff and not the public, we hold that the
policy is not a rule of general applicability.
Agency policy is of general applicability when it applies to all participants in.a program.
Failor's Pharmacy, 125 Wn.2d at 495; Hillis v. Dep' t ofEcology, 131 Wn.2d 373, 398, 932 P.2d
139 ( 1997). In the present case, we reject Sudar' s argument that Policy C -3620 provides
authoritative instructions and specific orders. Instead, upon examination of Policy C -3620, we
agree with the Department and hold that it is a directive to agency staff, not the public. Its purpose
is to guide agency staff who are tasked with promulgating rules to regulate; however, it has no
legally enforceable regulatory effect on fishers. As Coastal Conservation Association states,
Policy C -3620 is only a vision for fishery management and thus is not an agency action of general
applicability.
Sudar relies on Simpson Tacoma Kraft Co. v. Department ofEcology, 119 Wn.2d 640, 648,
835 P. 2d 1030 ( 1992), to support his position. In that case, the court held that the Department of
Ecology' s standard for numeric water quality was in fact a rule because it was " an agency directive
which would subject the respondents to punishment if they do not comply with the standard."
Simpson Tacoma Kraft Co., 119 Wn.2d at 647. Additionally, Ecology applied the formula
uniformly to an entire class of entities. Simpson Tacoma Kraft Co., 119 Wn.2d at 647 -48.
In contrast, the vision outlined in Policy C -3620 is unenforceable until and unless the
Department promulgates rules which can be enforced on violators. A fisher cannot be penalized
for violating Policy C -3620. Sudar mischaracterizes Policy C -3620 as providing authoritative
instructions and specific orders applied directly to fishers. Instead, the policy provides only a
presumptive management framework the Department will consider along with other factors. It
provides guidance in implementing a future vision for. fishery management through adaptive
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management. Because Policy C -3620 does not require strict adherence to its objectives and
reaches only agency staff, it is not of general applicability to commercial fishermen.
B. Policy C -3620 does not Establish, Alter, or Revoke Qualifications or Requirements
Relating to the Enjoyment of Benefits or Privileges Conferred by Law
Sudar next argues that Policy C -3620 establishes new qualifications or requirements
relating to the enjoyment of commercial fishing by changing the zones in which commercial
fishers may harvest salmon and requiring the use of certain gear types. RCW 34. 05. 010( 16)( c).
Because Policy C -3620 does not operate with the force of law and does not preclude commercial
fishers' continued use of salmon harvesting licenses, it does not establish new qualifications or
requirements relating to the benefit of commercial fishing.
An agency policy is subject to challenge as a rule pursuant to RCW 34. 05. 570(2) only
when it imposes an independent regulatory mechanism that operates with the force of law. Budget
Rent A Car of Licensing, 144 Wn.2d 889, 898, 31 P. 3d 1174 ( 2001).
When an
Corp. v. Dep' t
agency directive does not add any qualifications to the statutory basis for obtaining a benefit, it
does not constitute a rule. Budget RentA Car, 144 Wn.2d at 898. No justiciable controversy may
be alleged when agency action has no legal or regulatory effect or implicates no one' s legal
interests. Wash. Educ. Ass' n v. Wash. Pub. Disclosure Comm' n, 150 Wn.2d 612, 622, 80 P. 3d
608 ( 2003). Policy C -3620 does not qualify or restrict the ability to hold or obtain a commercial
fishing license. While it contains objectives that include phasing out the use of non -selective gill
nets and reallocated shares of salmon between recreational and commercial fishers, the Policy does
not regulate the time, manner, and method of fishing. The Policy does not place actual restrictions
on commercial fishers. Rather, implementing rules must be adopted to manifest any type of
restraint on persons outside the Department.
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Policy C -3620 acts as a guide for the management of fishing activity on the Columbia
River, but the Policy itself is not applicable outside of the Department. Nor is Policy C -3620
binding or dispositive on the Department. The Department developed and will continue to develop
implementing rules based on the objectives of Policy C -3620 and evaluation of facts and data
relevant to fishery management. Policy C -3620 does not impose an independent regulatory
mechanism that operates with the force of law. Thus, it does not establish, alter, or revoke
qualifications or requirements relating to the enjoyment of benefits or privileges conferred by law.
C. Implementing Rules Not Insulated from Judicial Review
Sudar contends that because the rules adopted to implement Policy C -3620 conform to the
guidance provided by the Policy, the Commission and Department may implement the Policy free
of judicial review unless Policy C -3620 is challengeable as a rule under the APA. We reject this
argument because treating Policy C -3620 as a rule subject to challenge requires a court to second
guess agency policy determinations. Because we establish Policy -3620 is not a rule, and avenues
of judicial review are available to challenge Department rules, we do not conduct a review of the
policy determinations of the Commission in Policy C -3620.
Sudar argues the legal distinction between Policy C -3620 and the Department' s
implementing rules is " largely meaningless." Br. of Appellant at 13. This argument is
unpersuasive. The Commission has separate policy and rule -making functions. RCW
77. 04. 055( 1); . 055( 2) & ( 5). The APA encourages agencies to adopt policy statements to " advise
the public of its current opinions, approaches, and likely courses of action." RCW 34. 05. 230( 1);
Wash. Educ. Ass' n, 150 Wn.2d at 618 -19. RCW 34. 05. 010( 15) defines " policy statement" as
A] written description of the current approach of an agency, entitled a policy
statement by the agency head or its designee, to implementation of a statute or other
provision of law, of a court decision, or of an agency order, including where
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appropriate the agency' s current practice, procedure, or method of action based
upon that approach.
Policy C -3620 fits squarely within the APA definition of a policy statement: it describes the current
approach of the Commission to Columbia River salmon management, provides the Department a
set of guiding principles to progressively implement, and prescribes the department' s method of
action based upon its management approach. Thus, Policy C -3620 is a policy exempt from judicial
review under RCW 34. 05. 570( 2).
We recognize that avenues of legal challenge to the Department' s rules promulgated to
implement Policy C -3620 are available. Sudar maintains that a challenge to the Department' s
implementing rules is not possible due to the short term nature of the emergency rules, arguing
that emergency rules are not reviewable under RCW 34. 05. 720( 2)( c). Sudar provides no citation
in support of this argument. Despite the emergency rules' short term nature, they are not
necessarily insulated from judicial review on the basis that the justiciable controversy is mooted
by expiration of the rule. We apply the principle of mootness with some flexibility, and if the
matter is one of significant public interest, courts may review a rule pursuant to RCW 34.05. 570( 2)
even if it is technically moot. In re Marriage ofHorner, 151 Wn.2d 884, 891, 93 P. 3d 124 ( 2004)
a court may review a moot case if it presents issues of continuing and substantial public interest);
Puget Sound Harvesters Assn v. Dep' t of Fish & Wildlife, 157 Wn. App. 935, 938, 944, 239 P. 3d
1140 ( 2010) ( this court affirmed the trial court' s invalidation of two Department rules that were
Tacoma News, Inc. Cayce, 172 Wn. 2d 58, 64, 256 P. 3d 1179 ( 2011). In
technically moot); v.
addition to remedies available under RCW 34. 05. 350( 3), courts may review emergency rules to
determine whether such actions are contrary to law or arbitrary and capricious. State v. MacKenzie,
114 Wn. App. 687, 698 -99, 60 P. 3d 607 ( 2002). Therefore, the Department' s rules are not
insulated from judicial review.
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II. MOTION TO DISMISS
The trial court did not err by granting the Commission' s motion to dismiss. RCW
34. 05. 570( 2) provides for judicial review of agency rules. The trial court may grant a CR 12( b)( 6)
motion when no facts exist that would justify recovery. Cutler v. Phillips Petroleum Co., 124
Wn.2d 749, 755, 881 P. 2d 216 ( 1994). Because Policy C -3620 is not a rule as defined by the APA,
it is not subject to judicial review under RCW 34. 05. 570( 2). Thus, no justiciable controversy
exists. Accordingly, we affirm the trial court' s dismissal.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,
it is so ordered.
We concur:
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