Conservation Northwest v. Okanogan County ( 2016 )

FILED
JUNE 16, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
CONSERVATION NORTHWEST; and )
METHOW VALLEY CITIZENS ) No. 33194-6-111
COUNCIL, )
)
Appellants, )
)
v. ) UNPUBLISHED OPINION
)
OKANOGAN COUNTY, )
)
Respondent. )
FEARING, C.J. -This appeal asks the question, among others, of whether
Okanogan County sufficiently completed an environmental checklist, under the State
Environmental Protection Act (SEPA), chapter 43.21C RCW, when adopting an
ordinance permitting all-terrain vehicles (ATV) traffic on county roads in segments with
a speed limit of 35 m.p.h. or less. Our task is to apply the law rather than to choose a side
between ATV riding enthusiasts and environmental groups. In a painfully long opinion
necessitated by extended facts, a lengthy procedural background, and numerous legal
No. 33194-6-111
Conservation Nw. v. Okanogan County
issues, we hold that, under SEP A rules, Okanogan County failed to satisfactorily prepare
the environmental checklist. We respect the recreational value of A TVs and note that
Okanogan County may still enact an ATV ordinance, but must complete a thorough
environmental checklist.
FACTS
We first introduce the parties. Defendant Okanogan County, located in north
central Washington, is the largest Washington county and the fifty-fourth largest United
States county by area. Okanogan County borders British Columbia to the north, the
Columbia River to the south, Ferry County to the east, and the Cascade Mountains to the
west.
Only thirty percent of the land within Okanogan County lies in private ownership
due to state and federal land proprietorship. A portion of the Colville Indian Reservation
sits in the southeast corner of the county.
The geographic features of Okanogan County include the Cascade Mountains, the
Columbia River, the Okanogan River, and the Methow Valley. The Methow Valley
serves as a destination for outdoor enthusiasts and offers hundreds of square miles of
cross-country ski trails, snowmobile parks, mountain biking trails, and opportunities for
snowshoeing, fishing, camping, and hiking.
Plaintiff Conservation Northwest (CNW) is a nonprofit conservation organization
with offices and members in Okanogan County. PlaintiffMethow Valley Citizens
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Council (MVCC) is a private nonprofit membership organization, established in 1977 to
preserve the wildlife, waters, and farmland of the Meth ow Valley. Both CNW and
MVCC members visit lands within Okanogan County for aesthetic enjoyment of nature.
The two environmental organizations rely on the same data and forward the same legal
arguments in this appeal.
Melanie Rowland signed a declaration on behalf ofMethow Valley Citizens
Council. Rowland, a MVCC board member and MVCC attorney, resides in Twisp. She
explores state wildlife and forest lands and federal lands in Okanogan County for hiking,
photography, bird and wildlife watching, and the study of native plants and trees.
George Wooten signed a declaration on behalf of Conservation Northwest and
Meth ow Valley Citizens Council. Wooten, also a resident of Twisp, is a staff member of
CNW and a member ofMVCC. Wooten is a botanist who contracts with agencies and
individuals for fuel mapping, plant and animal surveys, and wetland delineation. He also
teaches biology classes, including botany, at Wenatchee Valley College North in
Okanogan. Wooten visits conservation trust lands, state wildlife lands, state forest lands,
and federal lands and roads in Okanogan County for the activities of hiking, photography,
and observing birds, wildflowers, and native trees and plants.
Our statement of facts now moves to a recitation of recent law. On July 3, 2013,
Washington Governor Jay Inslee signed into law Engrossed Substitute House Bill
(ESHB) 1632, an act regulating the use of off-road vehicles (ORVs) in Washington.
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LAWS OF 2013, 2d Spec. Sess., ch. 23, at 2865. In enacting ESHB 1632, the legislature
found:
that off-road vehicle users have been overwhelmed with varied
confusing rules, regulations, and ordinances from federal, state, county, and
city land managers throughout the state to the extent standardization
statewide is needed to maintain public safety and good order.
LAWS OF 2013, 2d Spec. Sess., ch. 23, § 1(1). Through ESHB 1632, the Washington
legislature sought to:
(a) Increase opportunities for safe, legal, and environmentally
acceptable motorized recreation; (b) decrease the amount of unlawful or
environmentally harmful motorized recreation; (c) generate funds for use in
maintenance, signage, education, and enforcement of motorized recreation
opportunities; (d) advance a culture of self-policing and abuse intolerance
among motorized recreationists; (e) cause no change in the policies of any
governmental agency with respect to public land; (t) not change any current
ORV usage routes as·authorized in chapter 213, Laws of 2005;
(g) stimulate rural economies by opening certain roadways to use by
motorized recreationists which will in tum stimulate economic activity
through expenditures on gasoline, lodging, food and drink, and other
entertainment purposes; and (h) require all wheeled all-terrain vehicles to
obtain a metal tag.
LAWS OF 2013, 2d Spec. Sess., ch. 23, § 1(2).
Section 6 of ESHB 1632 opened state highways, with a speed limit of thirty-five
miles per hour or less, to the operation of wheeled all-terrain vehicles (WATVs). LA ws
OF 2013, 2d Spec. Sess., ch. 23, § 6; codified at RCW 46.09.455(1). Section 6 of the
enactment also granted counties with a population of fifteen thousand or more the
authority to open county public roadways for WA TV use. Codified at RCW
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46.09.455(l)(c)(i). RCW 46.09.455 now reads, in pertinent part:
(1) A person may operate a wheeled all-terrain vehicle upon any
public roadway of this state, not including nonhighway roads and trails,
having a speed limit of thirty-five miles per hour or less subject to the
following restrictions and requirements:
(c)(i) A person may not operate a wheeled all-terrain vehicle on a
public roadway within the boundaries of a county, not including
nonhighway roads and trails, with a population of fifteen thousand or more
unless the county by ordinance has approved the operation of wheeled all-
terrain vehicles on county roadways, not including nonhighway roads and
trails.
(iii) Any public roadways, not including nonhighway roads and
trails, authorized by a legislative body of a county under (c)(i) of this
subsection or designated as unsuitable under (c)(ii) of this subsection must
be listed publicly and made accessible from the main page of the county
web site.
(e) Any person who violates this subsection commits a traffic
infraction.
(2) Local authorities may not establish requirements for the
registration of wheeled all-terrain vehicles.
ESHB 1632 took effect on July 28, 2013. FINAL B. REP. ON ENGROSSED SUBSTITUTE
H.B. 1632, at 6, 63d Leg., 2d Spec. Sess. (Wash. 2013).
ESHB 1632 employed the term "off-road vehicle" or "ORV" nearly
synonymously with "all-terrain vehicle" or "ATV," but ATVs are a subcategory of
ORVs. Under RCW 46.04.365,
"Off-road vehicle" or "ORV" means a nonstreet registered vehicle
when used for recreational purposes _on nonhighway roads, trails, or a
variety of other natural terrain. "Off-road vehicle" or "ORV" includes, but
is not limited to, all-terrain vehicles, motorcycles, four-wheel drive
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vehicles, and dune buggies.
i
I No Washington statute expressly defines "all-terrain vehicle." Nevertheless, ESHB 1632
I
II
introduced and defined the term "wheeled all-terrain vehicle" or "WATV." RCW
I
' 46. 09 .3 10( 19) now declares:
I "Wheeled all-terrain vehicle" means (a) any motorized nonhighway
vehicle with handlebars that is fifty inches or less in width, has a seat height
I of at least twenty inches, weighs less than one thousand five hundred
pounds, and has four tires having a diameter of thirty inches or less, or (b) a
utility-type vehicle designed for and capable of travel over designated roads
Ii that travels on four or more low-pressure tires of twenty psi or less, has a
maximum width less than seventy-four inches, has a maximum weight less
than two thousand pounds, has a wheelbase of one hundred ten inches or
less, and satisfies at least one of the following: (i) Has a minimum width of
fifty inches; (ii) has a minimum weight of at least nine hundred pounds; or
(iii) has a wheelbase of over sixty-one inches.
On July 29, 2013, the day after implementation ofESHB 1632, the Okanogan
County Board of County Commissioners adopted Ordinance 2013-10, which decreed that
"all [county] public roadways and rights of way, or sections thereof, having a speed limit
of 35 mph or less are approved and opened for the operation of wheeled all-terrain
vehicles." CP at 195. At the time, Okanogan County managed 1,266 miles of roads
within its borders, 335.73 miles of which ATVs could already use. Before enacting
Ordinance 2013-10, the county did not conduct an environmental review under the
SEPA.
On August 14, 2013, Conservation Northwest and the Methow Valley Citizens
Coundl sued Okanogan County for declaratory and injunctive relief. The suit challenged
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the validity of Ordinance 2013-10 in part because of the failure of Okanogan County to
perform an environmental review. After CNW and MVCC moved for summary
judgment, the county, on March 4, 2014, repealed Ordinance 2013-10, by adopting
Ordinance 2014-3. The repealing ordinance mistakenly refers to the 2013 ordinance as
Ordinance 2013-9, not 2013-10.
In April 2014, Okanogan County prepared a new ordinance, Ordinance 2014-7,
which proposed to open 597 .23 miles of county roads, including 165 .03 miles of paved
roads, for ATV use. On April 9, 2014, the county's SEPA responsible official, Director
of the Office of Planning and Development Perry Huston, prepared a SEPA
environmental checklist for the proposed ordinance. Environmental checklists assist
government agencies in determining, before adoption of a proposal, whether the proposal
will accrue "probable significant adverse impacts on the quality of the environment," thus
necessitating an environmental impact statement (EIS) under SEPA. WAC 197-11-960;
see also RCW 43.21C.030(2)(c). The checklist completed by Huston instructed him, in
part, to:
Answer the questions briefly, with the most precise information
known, or give the best description you can.
You must answer each question accurately and carefully, to the best
of your knowledge.
CP at 253.
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Because the sufficiency of the environmental checklist looms as the principal issue
in this appeal, we quote lengthy portions of the checklist completed by Perry Huston in
Appendix A. When asked to address the environmental impact of the A TV ordinance on
various features of the environment, Huston sometimes answered: "The proposal
involves existing roads located throughout Okanogan County." CP at 258. Huston then
completed answers by stating no environmental impact would occur because A TVs
would motor on preexisting roads. When a question asked Huston to identify
environmental information prepared that relate to the ATV ordinance. Huston responded:
There has been no other environmental information prepared
relevant to this proposal. Any additional environmental information will be
prepared if necessary to respond to issues identified during the comment
period.
CP at 254.
In the environmental checklist, Perry Huston agreed that Okanogan County
proposed no measures to reduce the environmental impacts of the ordinance.
Huston wrote that the ordinance would cause little, if any, increase in the use of
Okanogan County roadways. Huston failed to list any of the principal fauna and
fora in the area and omitted any reference to endangered or threatened species,
other than to mention that mule deer used the region as a migratory route. Huston
attached to the environmental checklist a map of Okanogan County roads. He also
attached twelve pages of spreadsheets listing the name, speed limit, length, and
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surface type of some of the roads in the county. Presumably the spreadsheets
listed those roads and the mileposts on those roads where the proposed ordinance
would permit operation of A TVs.
On April 9, 2014, the same day as the completion of the environmental checklist,
the Okanogan County Office of Planning & Development, through Department Director
Perry Huston, issued a SEPA threshold determination of nonsignificance (DNS). The
DNS concluded that proposed Okanogan County Ordinance 2014-7, the Opening ATV
Routes ordinance, would not have a "probable, significant, and adverse environmental
impact." CP at 282. Thus, Okanogan County did not intend to prepare an environmental
impact statement.
On April 15, 2014, the Okanogan County Office of Planning & Development
notified local government and tribal agencies of its threshold SEPA determination of
nonsignificance and opened a comment period to extend through May 2, 2014. The
Office of Planning & Development received numerous responses from government
agencies and private parties.
The Confederated Tribes of the Colville Reservation commented that some of the
roads that Okanogan County intended to open to ATVs jogged through tribal land and the
Tribe's hunting and fishing grounds. Tribal law precludes the riding of ATVs on the
lands and grounds. The Tribe apprised the county that it "vehemently opposes the
opening of any roads for A TV use within the boundaries of the Reservation without
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tribal consent." CP at 330.
The Town ofTwisp's Planning Commission opposed Ordinance 2014-7 because
of the potential adverse impacts on law enforcement and emergency services, insufficient
regulation of vehicle maintenance, risk of increased accidents and death, and evidence
that ATVs are unsafe when driven on paved surfaces. The Twisp Planning Commission
wrote a letter to the Okanogan County Office of Planning & Development, which letter
confirmed the town's opposition.
The Town of Winthrop Planning Commission preliminarily questioned the
wisdom of the ordinance because of the lack of information. The Planning Commission
wrote to Perry Huston and raised uncertainties about the assiduousness of the
environmental checklist and encouraged the county to prepare a thorougher checklist.
Winthrop criticized the checklist as assuming no environmental impact to the proximity
of the roadways opened to ATV traffic, omitting any discussion of ATV use's interaction
with other recreational activities, and failing to attempt to measure increased traffic. The
letter emphasized one particular alleged shortcoming of the checklist:
Since the proposal does not include a network of roads that connect
in a way that creates contiguous routes, we are curious how the ATVs will
arrive on these sections of road, and if there is any consideration of parking
for trucks and trailers.
CP at 333. The full letter is attached as Appendix B.
On May 2, 2014, Methow Valley Citizens Council and Conservation Northwest
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jointly submitted to the Okanogan County Office of Planning & Development detailed
comments that echoed concerns of the Cities of Twisp and Winthrop. The full submittal
is attached as Appendix C. The organizations wrote, in part:
MVCC and CNW believe that in reaching a DNS, the County failed
to analyze 1) the likelihood of significant impacts on sensitive lands and
waters, including fish and wildlife habitat, from illegal off-road riding
facilitated by opening certain roads to ATVs; 2) the impacts on traffic of
ATVs traveling on roads with speed limits over 35 mph, either because of
confusion over where A TVs are and are not allowed, or because the
operator wants to traverse an unauthorized road segment with a higher
speed limit to access an isolated authorized road segment; 3) the impacts on
public services from the need for additional traffic patrol and enforcement
to keep ATVs from riding off-road and the need to post signs indicating
where ATVs are and are not allowed; and 4) the actual traffic impacts of
additional vehicles on the roads that would be open to ATVs under this
proposal.
1. The evidence of damage to lands, waters, vegetation, and fish and
wildlife habitat from illegal off-road riding is overwhelming, and the
County has failed to consider the significant impacts of illegal off-road
riding that can be anticipated from opening roads in environmentally
sensitive areas.
In many responses in the SEPA Checklist, the County presumes that
A TVs are exactly like all other vehicles that are already allowed on the
roads and considers only the impacts to the road itself from opening the
road to ATVs. On the contrary, the very name "all-terrain vehicles" means
that these vehicles are designed, marketed and intended for off-road use.
Unfortunately, not all operators stay on the road when they are riding in a
vehicle that was designed and intended for off-road use, even when off-
road use is prohibited. This statement is not speculation; it is established
fact. In Appendix B we have included references to numerous studies and
observations of damage to land from illegal off-road riding of ATVs. In
light of the overwhelming evidence, it is simply unreasonable and
inconsistent with SEP A to ignore the fact that illegal off-road riding is
widespread and to assume that all ATV operators will obey all laws.
For example, under the topic of Earth on page 3, the checklist asks
about steepness of slopes, kind of soils affected, history of unstable soils,
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likelihood of erosion, and measures to control erosion. Every response
asserts that only "already existing roadways" will be affected. This view
turns a blind eye to the probability of illegal off-road operation of ATVs.
The evidence shows, however, that off-road riding is likely and that it will
cause erosion, particularly in areas of steep slopes or unstable soils.
Consequently, the County must assume some amount of illegal riding and
assess impacts on soils adjacent to roads, especially in areas of steep slopes
or unstable soils.
The checklist continues in the same vein. In responses to questions
regarding the next two elements - Plants and Animals - the County
repeatedly asserts that there is no vegetation affected and no animals
affected because ATV travel will take place on "existing county roadways."
There is no consideration of impacts to vegetation or wildlife adjacent to, or
made accessible by, existing roads. Once again, it is incumbent on the
County to acknowledge that ATVs are not like most other vehicles in that
they are designed and intended for off-road travel. The literature is replete
with examples of serious damage to vegetation and, wildlife habitat -
including spawning streams for endangered fish - from illegal off-road
riding. (See especially studies referenced by Backcountry Hunters &
Anglers, Appendix B.)
Other responses in the checklist fail to consider the likelihood of
damage from off-road riding. On page 8, the checklist asks: "Has any part
of the site been classified as an environmentally sensitive area? If so,
specify." The County's answer is: "No roadways in this proposal have
been classified as sensitive areas."
Many miles of roadways in the proposal travel through, or give
access to, Washington Department offish & Wildlife (WDFW) Wildlife
Areas or state parklands. (See attached road list, Appendix A that shows
roads in the proposal that access these public lands in the Methow Valley.)
Surely there are environmentally sensitive areas on these lands, but the
County has failed to ascertain the extent to which these areas may be
adversely affected by off-road riding facilitated by this proposal. WDFW
and State Parks prohibit ATVs both on and off road, yet the proposal would
provide A TV access to and through these lands, thus creating an
enforcement nightmare for these agencies.
Many other miles likely are adjacent to spawning streams of at least
one of the County's three federally listed threatened or endangered fish
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I
I!
I species, but the County has failed to do any surveying or mapping to
! determine what protected species or their habitat may be made vulnerable
I to ATV access by this proposal. On page 14, the checklist asks: "How
would the proposal be likely to affect land and shoreline use, including
I
I
whether it would allow or encourage land or shoreline uses incompatible
with existing plans?" The County response is: "The county roads are in
I
I some cases located next to areas, under shoreline protection." This is
I another example of sensitive areas that may be affected by the proposal.
I In sum, there is no rational basis for assuming that there will be no
I damage to adjacent or accessed lands from illegal off-road riding. To the
contrary, there is ample evidence that the only reasonable assumption in
conducting a SEP A analysis on this proposal is that there will be some
I illegal riding and consequent damage to soils, water bodies, shorelines,
vegetation, wildlife, protected species, and governmentally protected
sensitive areas. To reduce the likelihood of that damage, MVCC and CNW
request that roads that travel through, or provide access to, WDFW lands or
I state parklands be removed from this proposal. In the alternative, we
request that the County conduct a comprehensive survey to determine
where roads give access to sensitive lands, waters, or fish and wildlife
habitat and remove those roads from the proposal.
2. The County failed to consider the impacts on traffic of ATVs
traveling on roads with speed limits over 35 mph, either because of
confusion over where ATVs are and are not allowed, or because the
operator wants to cross a segment with a higher speed limit to access an
isolated open segment.
The proposal includes many isolated short segments that allow
longer rides only if the operator illegally rides on roads that have speed,
limits over 35 mph. (See Appendix A for a list of these roads in the
Methow Valley.) It is likely that some riders will ride on segments or roads
with higher speed limits, either because of confusion over where A TVs are
and are not allowed, or because the operator wants to traverse an
unauthorized segment with a higher speed limit to access another
authorized road or segment. The County has not indicated intent to install
signs to make it clear where ATVs are not allowed, and to do so would be
prohibitively expensive. The County assumed that despite the disconnected
patchwork of short segments connected only by roads or segments with
higher speed limits, all ATV riders would both 1) understand where they
may and may not ride, and 2) stay only on roads on which ATVs are
allowed. This is an unsupported and unrealistic assumption.
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To correct this error, MVCC and CNW request that the County
remove from the proposal all road segments less than two miles long and
those loop roads which connect only to roads with speeds greater than 35
mph. Those segments for the Methow Valley are shown in Appendix A
(columns K, L, and N).
3. The County failed to consider the impacts on public services of
the need for additional traffic enforcement to keep ATVs from riding off-
road and to post signs indicating where ATVs are and are not allowed.
Already thin local police and sheriff resources will be needed to
enforce the laws governing A TVs ....
4. The County failed to consider the actual traffic impacts of
additional vehicles on the roads that would be open to ATVs under this
proposal.
The County admits that it does not know the number of additional
vehicle trips per day or at peak times (e.g., weekends and holidays in
spring, summer, and fall), and it made no attempt to estimate those
numbers. (See page 11, response to question 14.f: "It is not known the total
number of vehicle trips per day generated by this proposal. . . . It is likely
peak volumes will occur during daylight hours in the spring, summer, and
fall.") Consequently, the County does not know whether the increase in
traffic by itself - even without off-road riding - will increase impacts to
environmental elements such as road surface erosion, dust irritants,
animal/vehicle collisions, or other environmental elements. Yet the County
states without evidence that "there is no erosion anticipated as a result of
this proposal" (page 3, response to question l .f) and that "the number of
average daily trips is not anticipated to increase to a point where vehicle
density on the roads will cause a significant increase in animal/vehicle
collisions." (Page 6, response to question 5.a, b, and c, and page 13,
response to question 2)
Surely there is information available on the amount of traffic
generated by opening roads to ATVs, since there are 336 miles of roads in
the County that are already open to ATVs ....
Requested Action
MVCC and CNW request that you withdraw the DNS and issue a
Determination of Significance on the proposal. Following that
determination, we ask that you either 1) prepare an environmental impact
statement for the proposal, or 2) issue a new proposal and prepare a SEPA
analysis for the new proposal, including a request for public comment.
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The new proposal should:
Remove all roads in Appendix A that are shown in red. (The reason
for removing a road from the proposal is shown in the columns following
the road name. There may be more than one reason for removing a
particular road.) In particular, we request that roads that travel through, or
give access to, WDFW lands or state parklands be removed from this
proposal. In the alternative, we request that the County conduct a
comprehensive survey to determine where roads give access to sensitive
lands, waters, or fish and wildlife habitat and remove those roads from the
proposal.
CP at 336-40 (footnote omitted).
With its May 2, 2014 letter, CNW and MVCC submitted a summary of scientific
literature addressing the impact of A TV off-roading anywhere and damage particularly
caused on national forest lands in Okanogan County. The literature provided information
about emerging best practices for managing A TV recreation in forestlands, the historical
impacts of off-road recreation on wildlife habitats, and the environmental and social
effects of A TVs in general. A June 7, 2013 article from the United States Forest Service
website reported the growing instances of "mudding" in the Methow Valley. "Mudding"
entails ATV operators trekking off-trail in order to plunge through large puddles and
fling as much mud into the air as possible.
CNW and MVCC also enclosed, with its objections, an annotated catalogue of the
roads identified in Okanogan County's proposed ordinance. The road inventory listed
those county roads slated for A TV use that connected with roads with a speed limit of
greater than thirty-five miles per hour and itemized roads planned for ATV travel that
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incorporated segments traversing less than two miles or crossed land managed by
Washington's Department of Fish and Wildlife (WDFW). The two environmental groups
proposed opening fewer roads to ATVs than planned by Okanogan County.
WDFW also submitted comments to Perry Huston. The Department wrote:
The Washington Department of Fish and Wildlife (WDFW)
appreciates the opportunity to review and comment on the proposed
ordinance to open approximately 597 miles of existing roads in Okanogan
County to all-terrain vehicles (ATVs). We believe that substantial impacts
as discussed below will likely occur if the ordinance is approved.
WDFW's comments are based from the experience gained after managing
lands that were impacted by the original ATV ordinance [2013 ordinance],
which opened the road through the Sinlahekin Wildlife Area. Our
comments reflect actual impacts that have been experienced, and are
continuing. We anticipate these impacts will increase as additional roads as
proposed are opened through Wildlife Area lands. WDFW lands in
Okanogan County are not open to A TV use, with rare exception, and this
ordinance will bring ATV riders, often unknowingly, into conflict with
State law.
ATVs are capable of being driven on road-less terrain and more
primitive trails than full sized vehicles. ATV use on primitive trails and
road-less areas can cause erosion, soil disturbance; new trailing in
unsuitable areas; and spread noxious weeds. ATVs are particularly
problematic because they contribute to the spread of noxious weeds. A
vehicle used off-road in an area with noxious weeds will transport and
spread seeds to other areas. Off-road use in a previously weed-free area
can disturb soil and create an idea situation for transported weed seeds to
grow and flourish. Noxious weeds on WDFW lands has been a concern
voiced by Okanogan County; this ordinance will add to the weed problem
on state and private lands associated with the roads open to ATV use.
Some roads and trails are inappropriate for A TVs because of conflict
with other users such as horse riders, bikes, and hikers. Increased
disturbance to wildlife and livestock can occur. Neighboring landowners
have complained about existing A TV riders coming off state lands, cutting
their fences, and leaving gates open. This has resulted in scattered
livestock and increased costs for fence repairs and livestock gathering.
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Access to remote and "out-of-sight" areas by ATVs, increases the threat of
vandalism, theft, youth parties, accidental wildfire ignitions, and other
undesirable behaviors.
Access to roads, trails, and landscapes by ATVs will be increased by
the proposed ordinance. While we acknowledge there are responsible
individuals in all user groups, there are the minority of individuals who will
act irresponsibly. Currently, inappropriate off-road uses and using roads
and trail that are illegal for ATVs is a common problem across the state.
The added costs to land management activities and enforcement have not
been mitigated and no such mitigation appears to exist within the.
Okanogan County proposal. Wider access to private and non-county roads,
trails, and landscapes will have corresponding increases in illegal uses with
the negative consequences mentioned above. We are particularly
concerned with impacts to WDFW owned boat launches, fishing access,
and Wildlife Areas. Private and non-county landowners adjacent to the
proposed roads will have increased costs for posting land, gating roads, and
controlling weeds spread from the roadway.
The original ordinance placed an increased burden on WDFW
enforcement staff associated with illegal ATV use on WDFW lands
adjacent to roads recently opened to ATV use by the county. As there is no
proposed added enforcement capacity to ensure that these A TVs do not .
trespass or violate other regulations, including traffic rules, enforcement,
will rarely occur. The increased burden on other enforcement agencies to
ensure that A TV users comply with existing laws will be significant.
Therefore, WDFW is asking Okanogan County to delay opening any new
roads to A TVs which would cross or contact lands we are charged with
protecting, based upon our Sinlahekin Road experience. We would further
ask that this delay be for the purpose of working with WDFW and the
Sheriff Department to find ways to minimize, or mitigate, for impacts to
wildlife, lands, non-motorized users, grazing lease holders, and our budget
and staffing resources. Also, for the County to provide for enforcement-
response needs, which will be needed as a result of any new open roads.
CP at 367-68.
Former WDFW employee Tom McCoy wrote to Okanogan County and urged
rejection of an ATV ordinance. McCoy e-mailed the Board of Commissioners:
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I have recently been made aware of the SEPA checklist prepared for
1 you[r] intended opening of under 35mph roads to ORV's in Okanogan
I County. I believe there are several glaring deficiencies in that document,
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most notably is the fact that it relies on voluntary compliance to these new
rules.
As the former manager of the WDFW Methow Wildlife Area I
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i witnessed first hand the result of your prior decree [2013 ordinance] to
I open county roads to ORV's. In the first three week following that
declaration I received more calls about ORV's on non-county roads,
reckless driving on all roads, driving off-road, and driving on closed roads
than I had in the previous three years. As an example, last fall, I witnessed
four individuals on two ORV's spinning 360's on upper Bear Creek Rd. on
their way from Pearrygin State Park to the WDFW shooting range where
they traveled off road to get behind the road closure barrier on USFS Rd.
100 up to Sullivan's Pond. This was not an isolated incident. On multiple
occasions I have witnessed ORV use, both on and off-road, on closed USFS
and WDFW property. The SEPA checklist appears to assume that because
there is a county ordinance that all users will comply. Considering that
there is a substantial measure of non-compliance to well established,
posted, and enforced, standard traffic laws by currently street legal vehicles
it can be considered nothing but folly to assume that ORV riders will fully
comply with similar rules.
Opening roads to ORV users, without due consideration of non-
compliance and impacts to critical fish and wildlife habitat will have more
than "speculative impacts." In fact, non-complying ORV use is currently
having impact critical habitat. To not acknowledge that issue in the SEPA
checklist is inappropriate. I am by no means against ORV use on county
roads, far from it, but as elected officials you need to be realistic and
objective, and act accordingly in the interest of all citizens of Okanogan
County.
CP at 363.
George Wooten sent written comments to the Okanogan County Office of
Planning & Development. Wooten claimed that the proposed ordinance encouraged
unlawful use of ATV trails across Highway 20 in Okanogan County. To support his
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claim, Wooten attached a photograph showing an unauthorized trail connecting to a state
road, which prohibited ATV use. Wooten also attached a message from a state forester
that confirmed the popular nature of the unauthorized A TV trail. W oaten presented a
photograph of another unauthorized trail across a wetland. Finally, Wooten mentioned
pavement is not a safe surface for ATVs, since ATVs are manufactured for off-road use.
Other county residents, unaffiliated with CNW or MVCC, also expressed concern
about Okanogan County's proposed ordinance. Nancy Soriano asked for exclusion of
seven roads from the ordinance because use would negatively impact sharp-tailed grouse,
a threatened species that Okanogan County must protect under the Washington Growth
Management Act, chapter 36.70A RCW. Soriano mentioned that ATVs have caused
wildfires by driving in dry grass. She noted the difficulty of enforcing laws in rural areas.
Thirty-four citizens, primarily through succinct e-mail, expressed support for
Ordinance 2014-7 in comments to the Okanogan County Office of Planning &
Development. Supporters noted the utility of ATVs in assisting senior citizens in
accessing the outdoors and the prospect of increased economic growth from A TV
tourism. Okanogan County Sheriff Frank Rogers expressed no concerns about opening
more county roads to A TVs, but stated that Sheriff Deputy Dave Rodriguez, not him,
enforced ATV rules. Rodriguez did not comment. Three local snowmobile clubs and an
ATV club voiced support for the ATV ordinance. A sample of ATV ordinance supporter
comments is found in Appendix D.
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On May 14, 2014, Okanogan County issued a final DNS and published the
determination in the official county newspaper. On May 29, 2014, CNW and MVCC
appealed the SEPA DNS, pursuant to Okanogan County Code 14.04.220, to the
Okanogan County Board of County Commissioners.
In their appeal to the county commissioners, the two environmental organizations
contended that, in issuing a DNS, Okanogan County failed to engage in a meaningful
analysis of whether: (1) increased ATV travel would damage sensitive lands, waters, and
wildlife habitat, (2) ATVs would travel on unopened roads in order to access authorized
ATV routes, (3) increased ATV traffic would require additional public services and law
enforcement, and (4) increased A TV use would affect overall traffic patterns and
congestion on roads with speed limits of 35 m.p.h. or less. CNW asked the Board of
County Commissioners to find the current DNS clearly erroneous, withdraw it, and issue
a determination of significance. The duo groups requested that Okanogan County either
prepare an EIS for Ordinance 2014-7 or propose a new ordinance and prepare another
environmental checklist. The Okanogan County Board of County Commissioners
scheduled a public hearing on the appeal for June 16, 2014.
During the pendency of the appeal before the Okanogan County Board of County
Commissioners, CNW and MVCC tendered additional public comments, declarations,
and scientific literature related to the proposed ATV ordinance. Much of the scientific
literature assumed operation of ATVs on dirt trails, which Okanogan County insists will
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not result from its A TV ordinance. The submitted literature included a dense 2011
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i compilation by Backcountry Hunters & Anglers of scientific studies addressing the
environmental impact of A TVs. The compilation read in part:
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Natural resources are affected by ATV use (Meadows et al. 2008).
All-terrain vehicle use affects soil and hydrologic function primarily
through soil compaction, increased soil strength, and removal of the forest
I litter layer in temperate environments (Ouren et al. 2007). Soil compaction
and the removal of the forest litter layer can reduce vegetation growth
(Webb et al. 1978) and is a primary factor in accelerated erosion rates
I (Megahan 1990) ....
I All-terrain vehicle travel increases erosion and sediment
concentrations by removing soil cover and compacting the soil thus
decreasing infiltration. Sediment delivery to streams via erosion is a result
of ATV travel (Misak et al. 2002). Increased sediment loading decreases
water quality, fish habitat quantity and quality, and fish reproductive
success (Newcombe and MacDonald 1991). The increase in runoff and
sediment transport can be substantial. Meadows et al. (2008) compared the
effects of ATV traffic across seven sites on diverse landscapes ranging
from the Wenatchee National Forest in Washington State to the Land
Between the Lakes in Kentucky and concluded that "ATV trails are high-
runoff, high sediment producing strips on a low-runoff, low sediment
producing landscape." ...
Impacts of A TV traffic on water quality and aquatic systems are not
limited to increases in suspended stream sediments. ATV trails funnel
water that dislodges contaminants which end up in streams, rivers and lakes
(Ouren et al. 2007). Contaminants can also be directly introduced into
aquatic systems through oil and fuel spills and wind deposition of emission
particulates that are transported in dust migration, settle onto vegetation,
I
and subsequently washed off leaf surfaces by rain and snow and moved by
surface water run-off. All-terrain vehicle operation in or near streams and
waterways poses a serious water pollution threat (Havlick 2002). This can
have detrimental impacts on populations of aquatic animals. Garrett (2001)
(as cited in Taylor 2006) reported that environmentally sensitive aquatic
species (including fish) were absent from OHV impacted sites on the
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No. 33194-6-III
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Nueces River in Texas, while unimpacted sites hosted numerous
environmentally sensitive species ....
A TV impacts on vegetation are not limited to removal of vegetative
soil cover. Reduced plant growth rates and populations of native species
coupled with increases in non-native and pioneering plant species are
directly related to ATV travel (Ouren et al. 2007) ....
This review of the impact of A TV use on the physical environment
suggests that the impacts are not only universal and cumulative, but that
much of the damage associated with their operation can be induced by a
limited number of users over short time periods .... For example,
Meadows et al. (2008) asserts that while a meadow may recover from a
single pass in a relatively short time frame, multiple passes often result in
damage that natural processes are unable to mitigate ....
Restricting A TV use in areas of low road density is necessary to
reduce the spread of invasive species and protect the community structure
of native species.
Restoring sites degraded by ATV' s is unfeasible as long as ATV use
continues.
All-terrain vehicle travel can have a profound effect on all forms of
wildlife ....
. . . Habitat fragmentation can disrupt wildlife movements between
and within habitats (Forman and Alexander 1998; Jackson and Griffin
1998), which can have negative consequences for endemic species and may
encourage non-native and invasive species propagation (Lovallo and
Anderson 1996; Jackson and Griffin 1998) .... Habitat fragmentation can
reduce reproductive success among nesting birds and is believed to be the
main culprit in population reductions in some species of forest birds
(Robinson et al. 1995) .
. . . According to Trombulak and Frissel (2000), animal behavior is
modified through five mechanisms:
1. altered movement patterns
2. changes in home range
3. altered reproductive success
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4. altered escape response
5. altered physiological state
The effect of ATV travel on elk, and more generally, the effect of
roads on elk, has been a focal point for researchers because of the
documented aversion elk have to roads open to motorized travel ( Cole et al.
1997; Rowland et al. 2000), and for their social, economic, and recreational
importance (Naylor et al. 2009) ....
Elk ( especially economically and biologically significant bull elk)
preferentially use areas devoid of motorized activity.
Elk require large blocks of non-motorized habitat for security ....
CP at 73-89. A less abridged version of the Backcountry Hunters & Anglers report is
attached as Appendix E.
MVCC and CNW also proffered to the Okanogan County Board of County
Commissioners an annotated bibliography prepared by a student at the University of
Vermont School of Natural Resources. The paper compiled and cited research related to
the environmental and social impact of ATV use on public and private land. The
bibliography reproduced summaries and citations of academic articles, white papers,
websites, and organizations studying the social and environmental effects of ATVs.
Among other observations, the studies noted that ATV use coincided with the nesting
times of birds causing nest desertion.
CNW provided the Okanogan County Board of Commissioners a June 7, 2013
release from the Okanogan-Wenatchee National Forest office in Winthrop. The release
read, in part:
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Mudders, take note: It is against the law to tear up forest roads and
meadows for the fun of it, and the legal and financial consequences can be
steep. Tearing up high-country meadows with four-wheel-drive and off-
road vehicles destroys wildlife habitat and ecosystems.
During a recent investigation, Law Enforcement officers gathered
information about mudding that occurred over Memorial Weekend
northwest of Buck Lake Campground, near Winthrop Washington. The
meadow was tom up by vehicles; here there was green grass, there are now
mud pits and tire tracks. The activities that caused this damage are illegal
under both state and federal law. Participants could face charges including
malicious mischief and fines up to and including paying for the costs of
restoration.
Spinning tires on plants destroys the plants, leaving behind bare dirt.
When plants are gone, there is nothing to stop soil from washing into
nearby streams and lakes. Muddy streams and lakes are bad for fish,
wildlife, irrigators, recreationists, and towns dependent upon clean water
and tourism for survival. When native plants are gone, noxious weeds
move in. A meadow of native grasses and flowers may soon become a
field of thistles and knapweed.
Mudding compacts soil. Healthy soil should bounce a bit when you
walk on it. Tire tracks create hard, dried up soil. This hard soil doesn't
allow water to move into the ground. Instead, water runs down tire tracks
and into creeks and lakes, carrying mud and pollutants with it. It is hard for
plants to grow in compacted soil-imagine trying to extend your legs
through a concrete floor.
Meadows and wetlands provide important breeding, rearing, and
foraging habitats for many birds and other animals. Tearing-up these areas
removes nesting and hiding cover, decreases forage, interferes with feeding,
and pushes animals out into areas where they may not survive.
Restoring an area damaged by mudding is expensive. Smoothing
ruts, reseeding or planting and repairing roadbeds costs a lot of money. In
situations where the individuals are not caught, every taxpayer has to pitch
in to cover the restoration costs. When caught, individuals responsible for
the damage can be fined up to $5000. In addition, the U.S. Forest Service
may bring a civil suit against the individual to pay for the costly restoration.
CP at 150-51.
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Okanogan County residents who allegedly observed damage caused by ATVs
submitted letters and photographs to the Okanogan County Board of County
Commissioners. The letters are attached as Appendix F.
CNW and MVCC also provided the Okanogan County Board of County
Commissioners with releases from ATV trade associations, the U.S. Consumer Product
Safety Commission, and private safety institutions warning of significant dangers
associated with operating ATVs on paved road surfaces. The Consumer Product Safety
Commission explained:
ATVs should not be driven on paved roads. ATVs on paved roads
are at risk of being hit by cars and other vehicles. While passenger vehicles
contain safety features designed to protect occupants from collisions, A TVs
do not. If struck by other vehicles, A TV riders can be killed or severely
injured.
In addition, most ATVs have low pressure tires and a solid rear axle,
where both wheels tum at the same speed. When making a tum, the A TVs
inside rear wheel is intended to skid because its path length is less than the
path length of the outside wheel. ATVs on paved surfaces have much
better traction, which prevents the necessary skidding. This can make
turning an ATV on paved surfaces unpredictable and unstable.
For these reasons, some states and local areas prohibit A TVs and
other off-road vehicles on public streets and highways.
CP at 175.
The Specialty Vehicle Institute of America prepared a position paper in opposition
to A TV use on roads, which paper the Okanogan County Board of County
Commissioners received. The paper read, in part:
The Specialty Vehicle Institute of America (SVIA) is the national
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not-for-profit trade association representing manufacturers and distributors
of all-terrain vehicles (ATVs) in the United States. SVIA's major goal is to
promote the safe and responsible use of ATVs.
ATVs are designed, manufactured and sold for off-road use only.
On-road vehicles must be manufactured and certified to comply with U.S.
Department of Transportation Federal Motor Vehicle Safety Standards
(FMVSS). These safety standards consist of extensive and detailed
compliance requirements. Since ATVs are not intended to be used on-road,
they are not designed, equipped or tested to meet such standards.
Permitting on-road use of ATVs, including modified A TVs, would be in
conflict with manufacturers' intentions for their proper use, and would be
contrary to federal safety requirements.
SVIA emphasizes that ATVs are not designed, manufactured, or in
any way intended for use on public streets, roads or highways and urges
that on-highway use of ATVs be prohibited and that law enforcement
efforts be strengthened to eliminate this dangerous practice.
CP at 173-74.
Fourteen ATV safety and health care professionals urged the Okanogan County
Board of County Commissioners not to allow ATVs on public roads on public safety
grounds. A copy of the letter is Appendix G.
Botanist George Wooten submitted to the Okanogan County Board of County
Commissioners photos and exact geographic coordinates of purported existing illegal
ATV routes along Highway 20 and coordinates for other illegal ATV routes loping
between national forest lands and private property. In the additional records delivered to
the Okanogan County Board of County Commissioners, county residents related episodes
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when A TV operators rode in unauthorized areas. Residents reported delayed responses
by county law enforcement officers to these violations.
In response to CNW's and MVCC's appeal to the Board of County
Commissioners, county SEPA official Perry Huston penned a staff report recommending
that the county commissioners deny the organizations' appeal. The staff report read, in
part:
Most of the issues raised by the appellants [CNW and MVCC] rely
on the assumption that illegal A TV operation will result from the approval
of this proposal which opens existing roads to A TV use. The appellants
rely on this assumption to then assert the County failed to consider the
likelihood that widespread damage to the environment would result from
illegal ATV use. The appellants [then] rely on this assumption to assert
that the County did not conduct an adequate review under SEPA because it
failed to issue a DS and prepare an Environmental Impact Statement to
identify and mitigate probable, significant, and adverse impacts brought
about by illegal A TV use.
The proposal submitted by the County for environmental review
would open only existing roadways with a speed limit of 35 mph or less to
use by licensed operators of licensed ATV' s. No other restrictions are
repealed or other privileges granted. Based on this proposal the
environmental checklist was prepared and considered. The DNS under
appeal was issued based on review of this information and a public
comment period was conducted to gain additional information for further
review.
Information submitted during the SEPA comment period did not
identify any environmental issues that were not considered or any probable,
significant, and adverse impacts that would be caused by the proposal.
Some of the comments received during the comment period that are
relevant to the question are summarized in the following. All comments
received were considered and are made part of the record.
Washington State Fish and Wildlife personnel offered a comment
stating they had concerns about increased enforcement costs brought about
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by increased illegal ATV use. The comment offered no specifics other than
there was an "increase" in illegal ATV use.
A past manager of WDFW offered a comment that when the roads
were previously opened last summer there was more illegal A TV use than
in the "previous three years." Neither activity level was quantified.
The Confederated [T]ribes of the Colville Reservation offered a
comment that the reservation was closed to ATV use by non-tribal
members and illegal use would result in damage to the environment and
tribal resources. No information regarding the number or frequency of the
incidents of illegal ATV use was provided.
The Methow Valley Citizens Council offered a comment that illegal
A TV use would result in environmental impacts but offered no information
in terms of the number or frequency of the incidents to which they refer.
There were other comments offered in a tone similar to those noted
above. None of the commenters offered specific statistics or other analysis
quantifying the concerns.
No information obtained through the public review process
effectively quantifies the number of additional ATV riders anticipated in
Okanogan County at any time that would result from the adoption of this
proposal. Both proponents and opponents of the proposal suggest that there
may be many but no specific information has been offered.
The appellants assert that a large influx of riders will come to the
Okanogan County and a substantial portion of them will operate their
ATV's in unlawful areas. Further the appellants assert that a significant
portion of the unlawful use will take place in environmentally sensitive
areas. There is no information contained in the proposal or gathered during
the public comment period that would support a conclusion that the
proposal will likely result in an increase in illegal A TV use or that the
illegal use will result in probable, significant, and adverse impacts to the
environment. As noted previously in this report the assertions made by the
appellants' [sic] are dependent on these two speculative assumptions.
Further, to reach the conclusion asserted by the appellant's [sic] one would
have to assume that the illegal A TV operation would take place in a
significant amount of environmentally sensitive areas such as wetlands or
nesting sites, etc.
In addition to the speculative nature of the comments the comments
received are in conflict. The Okanogan County Sheriff, chief law
enforcement officer for the County, submitted a comment stating he had no
j
concerns with the proposal. Others as noted offered concerns but no
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No. 33194-6-III
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specific information. Given the general nature of the comments the
assertion that illegal ATV use will significantly increase as a result of
opening existing roads to ATVs is speculative. As this assertion is
speculative the assertion that illegal ATV use will result in probable,
significant, and adverse impacts to the environment is speculative as well.
In addition to the speculative nature of the issues raised by the
appellants any assessment of environmental impacts that takes the approach
that any protective regulation or conditions of approval will be ignored
therefore probable, significant, and adverse impacts will occur is
problematic. Such an approach would render moot any effort to mitigate
environmental impacts or reliance on existing regulation to protect the
environment and promote public health and safety. If a party need only
assert that no one will obey the law or conditions of approval in the course
of a project/proposal review than it leaves the only alternative the denial or
unreasonable curtailment of the project/proposal. The use of SEPA in such
a manner would render a thoughtful environmental review and subsequent
conditioning of a project/proposal difficult at best if not impossible to
conduct.
As noted in Arthur Gresh v. Okanogan County and Mazama
Properties L.L.C. Okanogan County Superior Court No 11-2-00491-2 the
court stated "the court will not speculate that public agencies will not do
their duty or that property owners will necessarily ignore the plat limits" in
response to the assertion by the plaintiff that negative impacts will result
because the (plat) conditions will not be followed and/or will not be
adequately enforced. In the Amicus brief filed by the Department of
Ecology for this same case the footnote on page 14 states Ecology
agrees .... The Superior Court was correct in pronouncing ... that courts
"may not speculate that public agencies will not do their duty or that
property owners will not necessarily ignore the plat limits .... ["]
The discussion by the court in "Gresh" is "on point" here as well.
The law prohibits unlawful ATV operation and protects critical areas. An
appeal brought on the premise that these laws will be ignored, but
apparently the laws that currently close the roads is respected, is
problematic on its face.
The proposal if adopted would allow the operation of properly
licensed/equipped ATV's by properly licensed operators on qualified
county roads. The concern that the same operators who observe the
existing road closures would not observe other regulation if the road
closures were removed is at any rate not an environmental impact to be
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further analyzed or mitigated.
Conclusion
The SEPA process is required to provide a reasonably thorough
discussion of probable, significant, and adverse impacts brought about by a
project/proposal. The SEPA review considered the areas of concern
enumerated on the environmental checklist and the impacts suggested
during the public comment periods.
The final decision regarding the proposal has not been made. The
comments made by the agencies and members of the public are part of the
record to be considered by the Board of County Commissioners prior to
approving, amending, or denying the proposal.
The appellants in their request for relief ask that a DS be issued and
an Environmental Impact Statement be prepared. They assert the
responsible Official was clearly erroneous in the decision to issue a final
DNS for the proposal. The appellants are correct that the standard for
review is a "clearly erroneous" standard and the definition they provide of
the meaning of that phrase is accurate as well. However, the conclusion
that the decision of the SEPA responsible Official is clearly erroneous can
only be made in view of the entire record and the public policy contained in
the statute authorizing the decision. As noted earlier the purpose of the
legislation authorizing counties to adopt ordinances such as the one under
review was to promote public safety and reduce confusion. The appellant's
[sic] assertion that in implementing the decision authorized by law; a
decision authorized for the purpose of enhancing public safety, reducing
confusion, and enhancing a self-policing approach to ATV operation will in
fact accomplish the exact opposite is completely contrary to the public
policy contained in the statute.
The appellant's [sic] assert that issues enumerated in the
environmental checklist were not analyzed. Their assertion is incorrect.
The issues were not analyzed to their satisfaction but the appellant's [sic]
did not identify any issues that were not considered. Their assertion that an
EIS must be prepared to consider issues not dealt with in the environmental
review is without merit.
To prepare an environmental impact statement as requested by the
appellant's [sic] three assumptions would have to be made and those
assumptions quantified in some manner. The necessary assumptions would
be:
1) That a significant increase in the number of A TV's and the
intensity of their use would result from adoption of the proposal.
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2) That a significant number of the ATV's would be operated in an
unlawful manner.
3) That a significant number of unlawful A TV operators would
leave the roadway and operate the A TV's in a significant number of
environmentally sensitive areas.
Preparing an EIS based on the unsubstantiated assertion that the
above listed speculative occurrences are likely is not required by law. In
fact the SEPA statutes contain language directed to the specific objective of
preventing the SEPA process from considering speculative impacts in an
effort to prevent SEPA from becoming a tool of the obstructionist. The
preparation of an EIS that attempts to quantify this sort of speculative
impacts would be a daunting if not impossible task and would clearly be for
the purpose of rendering the review so cumbersome and/or expensive that
the proponent would simply abandon the project/proposal as untenable. In
the end the EIS would impose conditions or cite existing regulation that
mitigates the feared environmental impacts which brings us back to the
appellant's [sic] "point of beginning." Attacking the adequacy of an
environmental review on the basis that no one will honor the law or
conditions imposed is without merit and contrary to the law.
In the case of this proposal and subsequent environmental review the
preparation of an EIS would not add materially to the discussion. The issue
that unknown impacts have not been identified has not been raised. In fact,
the issues involved are clearly identified and understood. The issues
involved have been discussed and the information generated has become
part of the record. The lack of an EIS has not impaired anybody's ability to
participate in the process or compromised an understanding of the
consequences the opponents of the proposal fear. The lack of an EIS has
not compromised the appellant's [sic] ability to enter their concerns and
any information that supports their view into the record.
The appellant's [sic] assertion that the environmental checklist was
inadequate and/or inaccurate is premised on their assertion that the
speculative impacts identified are likely. This assertion is premised on the
assumption that A TV operators will ignore all or most regulation. The
challenges with this issue have been previously discussed and I will not
repeat those points here. As their first premise is invalid there is no reason
to believe the checklist is either inaccurate or inadequate.
The appellant's [sic] assertion that ATV operators may have to cross
roadways with a speed limit greater than 3 5 mph is accurate but the
environmental impact they fear it creates is unclear. Any motor vehicle
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f
t operator; or non-motorized vehicle operator for that matter, that operate on
I the road system must cross roadways with greater or lesser speed limits
than the one they are on. The "rules of the road" adopted in statute are
adopted to govern that type of vehicle operator interaction. In fact the
I statute that authorizes the proposal under review specifically contemplates
that such a scenario will occur and provides direction on how to deal with
II it.
The appellant's [sic] request that all paved roads be removed from
I the proposal would seem contrary to their stated desire to reduce
I
environmental impacts. The discussion provided by this staff report is
I applicable to this issue so I will not repeat them here.
I
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All process requirements for environmental review were followed.
' This is not disputed by the appellants.
The appeal brought by the MVCC and CNW fails to provide any
compelling evidence that would lead a reasonable person to conclude the
SEPA Responsible Official made a "clearly erroneous" mistake in
conducting the SEPA review. The appellant's [sic] have failed to
demonstrate that any mistake made was an "egregious error" in terms of
compromising the public's ability to participate in the process or in
preventing the "reasonable thorough discussion" of environmental impacts
to occur.
The appellant's [sic] have failed to overcome the deference given by
law to the decision of the SEPA Responsible Official that an EIS was not
necessary for this proposal and that a Final DNS was appropriate.
The appeal should accordingly be denied.
CP at 319-23.
On June 16, 2014, the Okanogan County Board of County Commissioners
entertained, at a public hearing, CNW's and MVCC's appeal. During the hearing,
Okanogan County's SEPA official stipulated that the two groups held standing in that
forum. Members of the organizations appeared at the Board of County Commissioners
hearing.
On June 23, 2014, the Okanogan County Board of County Commissioners denied
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CNW's and MVCC's appeal of the DNS and adopted findings of fact and conclusions of
law. The county commissioners found, in part:
12) The Board found that the SEPA process was conducted in
accordance with the law and provided a reasonably thorough discussion of
the probable, significant, and adverse impacts caused by the project
proposal.
13) The Board found that the decisions made by the SEPA
Responsible Official were proper and consistent with applicable codes and
statutes.
14) The Board determined that decisions made by the responsible
official were entitled to substantial weight.
15) The Board found the evidence presented by the appellants failed
to establish a correlation between the increase in lawful riding opportunities
for ATV operators and an increase in illegal riding activity.
16) The Board found that the appellant's [sic] failed to produce
compelling evidence that established the legislature was wrong in their
finding that an increase in lawful riding opportunities would decrease the
amount of unlawful or environmentally harmful riding activity and advance
a culture of self-policing.
17) The Board found that the appellant's [sic] failed to produce
compelling evidence that an increase in lawful riding opportunities would
be likely to significantly increase the level of unlawful activity and that the
unlawful activity would take place in a significant amount of
environmentally sensitive areas.
18) The Board found that the SEPA Responsible Official decision to
issue a final determination of non-significance was proper and not "clearly
erroneous" and that the appellant's [sic] failed to produce compelling
evidence to the contrary.
CP at 411. The Board of County Commissioners concluded:
[T]he SEPA process had been properly conducted and had provided
a reasonably thorough discussion of any probable, significant, adverse
impacts caused by the proposal. The Board determined the appellants had
failed to provide evidence that:
A) Overcome the deference accorded to the decision of the
responsible official
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Conservation Nw. v. Okanogan County
B) Prove that the decisions made by the SEPA Responsible Official
were clearly erroneous or that any mistakes, if made, were egregious in
terms of affecting the opportunities afforded the public to participate in the
process or in the decision makers access to complete information.
C) Prove the SEPA process failed to meet the "reasonably
thorough" standard required by law
CP at 412.
On June 23, 2014, the Okanogan County Board of County Commissioners adopted
its A TV ordinance, Ordinance 2014-7. The ordinance reads, in part:
An ordinance designating certain roads in Okanogan County open to
use by wheeled All-Terrain Vehicles.
WHEREAS: Engrossed Substitute House Bill 1632 states the
legislature finds that off-road vehicle users have been overwhelmed with
varied confusing rules, regulations, and ordinances from federal, state,
county, and city land managers throughout the state to the extent
standardization statewide is needed to maintain public safety and good
order, and
WHEREAS: Engrossed Substitute House Bill 1632 states it is the
intent of the legislature to: (a) Increase opportunities for safe, legal, and
environmentally acceptable motorized recreation; (b) decrease the amount
of unlawful or environmentally harmful motorized recreation; (c) generate
funds for use in maintenance, signage, education, and enforcement of
motorized recreation opportunities; (d) advance a culture of self-policing
and abuse intolerance among motorized recreationists; (e) cause no change
in the policies of any governmental agency with respect to public land; (f)
not change any current ORV usage routes as authorized in chapter 213,
Laws of 2005; (g) stimulate rural economies by opening certain roadways
to use by motorized recreationists which will in tum stimulate economic
activity through expenditures on gasoline, lodging, food and drink, and
other entertainment purposes; (h) and require all wheeled all-terrain
vehicles to obtain a metal tag, and
WHEREAS: Consistent with Revised Code of Washington
46.09.455(c)(i) A person may not operate a wheeled all-terrain vehicle on a
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i
I public roadway within the boundaries of a county, not including non-
highway roads and trails, with a population of fifteen thousand or more
unless the county by ordinance has approved the operation of wheeled all-
terrain vehicles on county roadways, not including non-highway roads and
trails, and
WHEREAS: Okanogan County Code IO.IO authorizes the operation
of off-road vehicles on county roads designated for that purpose; and
WHEREAS: Okanogan County has conducted a public review on a
proposal to open certain county roads with a posted speed limit of 35 miles-
per-hour or less that are not already designated for off road vehicle use, and
WHEREAS: The SEPA Responsible Official for Okanogan County
prepared an environmental checklist and conducted a SEPA review on the
proposal consistent with the requirements ofRCW 43.21c, WAC 197-11,
and OCC 14.04 and after review of the comments received issued a final
determination of non-significance which was published in the official
county newspaper on May 14, 2014, and
WHEREAS: The Okanogan Board of County Commissioners
considered the materials presented and testimony received and determined
it was in the public's interest to designated certain county roads open to use
by wheeled all-terrain vehicles, be it therefore
ORDAINED: The following listed county roads are open to use by
wheeled all-terrain vehicles:
CP at 424-25 (boldface omitted). The ordinance appended a list of roads with mile posts
between which one could drive an ATV.
PROCEDURE
After being denied relief by the Okanogan County Board of County
Commissioners, CNW and MVCC again sued Okanogan County in superior court. The
two groups invoked the trial court's jurisdiction under RCW 2.08.010 (superior court
original jurisdiction), chapter 7.24 RCW (uniform declaratory relief act), chapter 7.40
RCW (injunctive relief), and RCW 43.2IC.075 Gudicial review under SEPA). The two
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No. 33194-6-111
Conservation Nw. v. Okanogan County
entities sought a declaratory judgment that Ordinance 2014-7 violated SEPA and the
legislative intent ofESHB 1632. They asked for the voidance of the ATV ordinance and
an injunction precluding the effectiveness of the ordinance. Okanogan County asserted
five affirmative defenses: (1) CNW and MVCC suffered no injury and thus lacked
standing under SEPA to challenge the ordinance, (2) the trial court could review
Ordinance 2014-7 only under the Land Use Petition Act (LUPA), chapter 36.70C RCW,
a cause of action not pied, (3) because LUPA afforded an adequate remedy, the two
organizations could not obtain declaratory or injunctive relief, (4) the plaintiffs failed to
file a petition for review within twenty-one days of the county's adoption of Ordinance
2014-7, as required by LUPA, and thus the trial court lackedjurisdiction to entertain the
suit, and (5) any review by the superior court must be of the record from the Okanogan
County Board of County Commissioners' review of the appeal to the Board.
Okanogan County moved to dismiss CNW's and MVCC's complaint or for the
grant of summary judgment in its favor. The two groups cross-moved for summary
judgment. The superior court granted the county's motion to dismiss and denied the
organizations' motion for summary judgment. The trial court concluded that Okanogan
County did not violate SEPA and CNW and MVCC failed to establish a justiciable
controversy sufficient for it to consider whether Ordinance 2014-7 violates ESHB 1632.
On appeal, Okanogan County contends that the trial court ruled that the environmental
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No. 33194-6-III
Conservation Nw. v. Okanogan County
groups or their members lacked any injury. The trial court did not address standing or
subject matter jurisdiction.
LAW AND ANALYSIS
CNW and MVCC appeal the trial court's grant of summary judgment to Okanogan
County and its dismissal of their claims with prejudice. As it did below, Okanogan
County on appeal contends that the environmental groups lack standing to challenge
Ordinance 2014-7 and that the trial court lacked subject matter jurisdiction to hear the
action for declaratory judgment and injunctive relief.
Superior Court Jurisdiction
When a defendant raises standing as a defense, the reviewing court usually
addresses this defense first. We instead first address the question of whether the trial
court possessed subject matter jurisdiction to hear CNW's and MVCC's challenge. The
determination of standing may depend on the cause of action or form of action amenable
to this suit and actually asserted in the case. If the trial court lacked jurisdiction, standing
becomes moot, and we must reject the appeal.
Subject matter jurisdiction is the authority to hear and determine the class of
action to which a case belongs. Bour v. Johnson, 80 Wash. App. 643, 647, 910 P.2d 548
( 1996). This court reviews jurisdictional issues de novo. Knight v. City of Yelm, 173
Wn.2d 325,336,267 P.3d 973 (2011).
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Conservation Nw. v. Okanogan County
LUPA
Okanogan County contends the challenge to the county's environmental checklist
and Ordinance 2014-7 falls within the parameters of either chapter 7 .16 RCW, which
addresses a statutory writ of review, or the Land Use Petition Act. Okanogan County
argues that, because one of the alternative procedures provided CNW an adequate
remedy, CNW could not assert the superior court's general jurisdiction, seek declaratory
relief, or seek relief under the injunction statutes. When asserting this argument,
Okanogan County forgets that CNW and MVCC also advanced an appeal under SEPA
statutes. We disagree that either LUPA or the writ of review procedure applies. We
address LUP A first.
LUPA pertains to judicial review of all land use decisions with some exceptions
noted in the statute. RCW 36.70C.010-030; Chelan County v. Nykreim, 146 Wash. 2d 904,
916, 52 P.3d 1 (2002). In enacting LUPA in 1995, the legislature determined that LUPA
'" shall be the exclusive means of judicial review ofland use decisions,"' with certain
specific exceptions. Chelan County v. Nykreim, 146 Wash. 2d at 917 (quoting RCW
36.70C.030(1)). A land use petition is barred, and the court may not grant review, unless
the petition is timely filed with the court within twenty-one days of the issuance of the
land use decision. RCW 36.70C.040(3).
We must decide if Ordinance 2014-7 or the Okanogan County declaration of
nonsignificance for the environmental impact of Ordinance 2014-7 constitutes a "land
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No. 33194-6-III
Conservation Nw. v. Okanogan County
use decision" within the meaning ofLUPA. A "land use decision" is:
a final determination by a local jurisdiction's body or officer with
the highest level of authority to make the determination, including those
with authority to hear appeals, on:
(a) An application for a project permit or other governmental
approval required by law before real property may be improved, developed,
modified, sold, transferred, or used ...
(b) An interpretative or declaratory decision regarding the
application to a specific property of zoning or other ordinances or rules
regulating the improvement, development, modification, maintenance, or
use of real property; and
(c) The enforcement by a local jurisdiction of ordinances regulating
the improvement, development, modification, maintenance, or use of real
property ....
RCW 36.70C.020(2) (emphasis added).
Ordinance 2014-7 and the environmental checklist and DNS preceding the
ordinance concerned ATV use of county roads. No one applied for a project permit or
governmental approval of use of his or her property. CNW challenges the adoption of an
ordinance, not the enforcement of an ordinance concerning someone's use of property.
The Board of County Commissioners, on enacting Ordinance 2014-7, did not issue an
interpretative or declaratory decision. "Land use decisions" are applications, interpretive
or declaratory decisions, and enforcement of certain ordinances. See Chelan County v.
Nykreim, 146 Wash. 2d at 927 (2002); Samuel's Furniture, Inc. v. Dep't ofEcology, 147
Wn.2d 440,451, 54 P.3d 1194, 63 P.3d 764 (2002); Brotherton v. Jefferson County, 160
Wn. App. 699,704,249 P.3d 666 (2011). CNW and MVCC need not have filed suit
underLUPA.
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No. 33194-6-III
Conservation Nw. v. Okanogan County
Writ ofReview
RCW 7.16.040 provides:
A writ of review shall be granted by any court, except a municipal or
district court, when an inferior tribunal, board or officer, exercising
judicial functions, has exceeded the jurisdiction of such tribunal, board or
officer, or one acting illegally, or to correct any erroneous or void
proceeding, or a proceeding not according to the course of the common
law, and there is no appeal, nor in the judgment of the court, any plain,
speedy and adequate remedy at law.
(Emphasis added.) Statutory writs of review are available for judicial or quasi-judicial
actions. Harris v. Pierce County, 84 Wash. App. 222, 228, 928 P.2d 1111 (1996). They
are not available, however, for legislative actions. Raynes v. City of Leavenworth, 118
Wash. 2d 23 7, 244 n.2, 821 P .2d 1204 ( 1992); Leavitt v. Jefferson County, 74 Wash. App.
668, 677, 875 P.2d 681 (1994). We need not address whether the adoption of Ordinance
2014-7 or the denial of CNW' s appeal of the county SEPA official by the Okanogan
County Board of County Commissioners constituted a legislative or judicial action. We
resolve the issue on another ground.
Okanogan County contends that CNW and MVCC must have sought a writ of
review if available, rather than seeking superior court jurisdiction on another basis.
Nevertheless, the opposite is true. RCW 7.16.040 denies an applicant the writ if the
applicant has another remedy. Because SEPA affords a method of appeal, a statutory
writ of review under chapter 7 .16 RCW is not available. Raynes v. City ofLeavenworth,
118 Wash. 2d at 244; Foster v. King County, 83 Wash. App. 339, 346, 921 P.2d 552 (1996).
40
No. 33194-6-111
Conservation Nw. v. Okanogan County
In Foster v. King County, the court specifically denied the applicant a writ of review in a
SEPA appeal.
SEPA Appeal
Since LUPA does not encompass CNW's and MVCC's challenge and because the
statutory writ of review does not interfere with this challenge to Okanogan County
actions, we now ask whether any of the four legal paths, on which the organizations
sought superior court jurisdiction, sufficed to bestow subject matter jurisdiction. CNW
and MVCC solicited superior court jurisdiction under four statutes: (1) the superior
court's broad original jurisdiction afforded under RCW 2.08.010, (2) jurisdiction granted
under the declaratory relief act, chapter 7 .24 RCW, (3) power bequeathed to issue
injunctions under chapter 7.40 RCW, and (4) the right to judicial review to determine
compliance with SEPA under RCW 43.2IC.075. CNW needs to show jurisdiction under
only one of the four statutory schemes to receive the relief desired. We address SEPA
jurisdiction and only SEPA jurisdiction.
SEPA authorizes judicial review of an agency's compliance with its terms. RCW
43.2IC.075; Lands Council v. Wash. State Parks & Recreation Comm 'n, 176 Wash. App.
787, 802, 309 P.3d 734 (2013). Therefore, RCW 43.2IC.075 necessarily confers
jurisdiction on the superior court.
Okanogan County faults CNW and MVCC for seeking declaratory relief in its
complaint. The county contends that, since the groups ask for declaratory relief, the
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No. 33194-6-111
Conservation Nw. v. Okanogan County
superior court and this court is limited to addressing legislative action, and the Board of
County Commissioners' affirmation of the county SEPA official's preparation of the
environmental checklist constituted a quasi-judicial, not a legislative, action. According
to the county, a declaratory judgment action invokes the trial court's original jurisdiction,
not appellate jurisdiction, and, since CNW and MVCC ask this court to declare the Board
of County Commissioners' denial of its appeal to be clearly erroneous, they mistakenly
invoked the superior court's appellate jurisdiction.
In order to convince this court to reject the appeal for lack of jurisdiction,
Okanogan County devotes pages to analyzing and characterizing the Board of County
Commissioners' challenged action as quasi-judicial in nature. We need not engage in a
similar analysis because the answer to Okanogan County's challenge to subject matter
jurisdiction lies elsewhere.
Okanogan County ignores the language in the complaint asserting jurisdiction
under SEP A. CNW and MVCC may have characterized much of its lawsuit as being in
the nature of a declaratory judgment action. They asked for a declaration that the
Okanogan County action was clearly erroneous. They captioned its complaint as one for
declaratory judgment and injunctive relief. Nevertheless, the organizations also
specifically sought judicial review under SEPA. Okanogan County cites no authority that
prevents the request for declaratory relief in the same suit when the plaintiff includes an
appeal under SEPA. The county cites no authority that captioning a case as one for a
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I declaratory judgment renders null a request in the body of the complaint for SEPA
I
review. In its essence, a SEPA appeal requests declaratory relief establishing that
governmental action is contrary to law, so labeling the SEPA appeal in part as a
declaratory judgment action creates no harm.
We note that, consistent with SEPA statutory provisions, CNW sought review of
both Okanogan County Ordinance 2014-7 and the underlying environmental checklist
and determination ofnonsignificance by Okanogan County's SEPA official Perry
Huston. SEPA demands that any "[j]udicial review ... shall without exception be of the
governmental action together with its accompanying environmental determinations."
RCW 43.2IC.075(6)(c). This so-called "linkage requirement" is meant to stave off
judicial review until the underlying governmental action is final, thus preventing "orphan
SEPA claims." Boss v. Dep 't ofTransp., 113 Wash. App. 543, 549, 54 P.3d 207 (2002).
SEPA compliance is "' evaluated as an integrated element of government
decisionmaking,'" rather than an independent cause of action. Foster v. King County, 83
Wash. App. at 345 ( 1996) (quoting RICHARD L. SETTLE, THEWASHINGTON STATE
ENVIRONMENTAL POLICY ACT: A LEGAL AND POLICY ANALYSIS§ 20, at 244 (1995)).
Standing
We now address whether CNW and MVCC possessed standing to challenge
Okanogan County's actions under SEPA. The county contends that the organizations
lack standing to seek judicial review of the county's SEPA determination of
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No. 33194-6-III
Conservation Nw. v. Okanogan County
nonsignificance. It contends that the organizations alleged no "injury in fact" to one or
more of its members, but rather alleged only speculative future harm that Ordinance
2014-7 could potentially cause. The duo groups urge this court, under RAP 5 .1 (d), not to
address the county's standing argument. In addition, CNW argues that it has
organizational standing and that its members have been injured in fact.
CNW asks this court to ignore Okanogan County's challenge to standing because
the county never cross appealed the issue. We decline this request. RAP 5.1 (d) demands
that a respondent seeking review of an issue file a notice of appeal timely under RAP
5.2(f). By raising the issue of standing, Okanogan County seeks no affirmative relief. A
prevailing party is not required to cross appeal if it seeks no affirmative relief and may
argue any grounds, supported by the record, to advocate affirming a trial court's decision.
McGowan v. State, 148 Wash. 2d 278, 287-88, 60 P.3d 67 (2002); RAP 5.l(d). A
respondent may raise the sufficiency of a factual basis to support standing for the first
time on appeal. RAP 2.5(a)(2); Mitchell v. Doe, 41 Wash. App. 846, 848, 706 P.2d 1100
(1985).
We move to the merits of Okanogan County's standing defense. The concept of
standing asks: who, if anyone, does the law wish to litigate specific claims and issues.
Courts resolve standing by reviewing the purposes behind the law asserted by the
plaintiff, measuring the plaintiffs connection to those purposes, and gauging injury to the
plaintiff.
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No. 33194-6-III
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SEP A grants an aggrieved person the right to judicial review of an agency's
compliance with the statute. RCW 43.21C.075; Lands Council v. Wash. State Parks &
Recreation Comm 'n, 176 Wash. App. at 799 (2013). The term "person aggrieved" was
intended to include anyone with standing to sue under existing law. Trepanier v. City of
Everett, 64 Wn. App. 380,382,824 P.2d 524 (1992) (citing RICHARDL. SETTLE, THE
WASHINGTON STATE ENVIRONMENTAL POLICY ACT§ 20(b) at 248 (1987)).
In order to obtain review under SEPA statutes, the petitioner must establish
standing. Save a Valuable Env 't (SAVE) v. City ofBothell, 89 Wash. 2d 862, 866, 576 P.2d
401 (1978); Harris v. Pierce County, 84 Wash. App. at 232 (1996). The party must allege:
( 1) his or her endangered interest falls within the zone of interests protected by SEPA,
and (2) the party has suffered an injury in fact. Kucera v. Dep 't of Transp., 140 Wn.2d
200,212,995 P.2d 63 (2000); Leavitt v. Jefferson County, 74 Wash. App. at 678-79 (1994).
The standing of a nonprofit corporation to challenge governmental actions
threatening environmental damage is firmly established in federal jurisprudence and
Washington has adopted the federal approach. SA VE v. City ofBothell, 89 Wash. 2d at 867;
Magnolia Neigh. Planning Council v. City of Seattle, 155 Wn. App. 305,312,230 P.3d
190 (2010). A nonprofit organization may represent its members in a proceeding for
judicial review so long as it shows that one or more of its members are specifically
injured by a governmental action. SA VE v. City ofBothell, 89 Wash. 2d at 867.
Organizations have standing to assert the interests of their members, so long as the
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No. 33194-6-111
Conservation Nw. v. Okanogan County
members would otherwise have standing to sue, the purpose of the organization is
germane to the issue, and neither the claim nor the relief requires the participation of
individual members. Five Corners Family Farmers v. State, 173 Wash. 2d 296, 304, 268
P .3d 892 (2011 ); Int 'l Ass 'n of Firefighters, Local 1789 v. Spokane Airports, 146 Wash. 2d
207, 213-14, 45 P.3d 186, 50 P.3d 618 (2002).
The purposes of SEPA are:
(1) To declare a state policy which will encourage productive and
enjoyable harmony between humankind and the environment; (2) to
promote efforts which will prevent or eliminate damage to the environment
and biosphere; (3) and [to] stimulate the health and welfare of human
beings; and (4) to enrich the understanding of the ecological systems and
natural resources important to the state and nation.
RCW 43.21C.010. Thus, SEPA's "zone of interests" contemplates broad questions of
environmental impact, identification of unavoidable adverse environmental effects,
choices between long and short term environmental uses, and identification of the
commitment of environmental resources. Snohomish County Prop. Rights All. v.
Snohomish County, 76 Wash. App. 44, 52-53, 882 P.2d 807 (1994). The county concedes
that CNW's and MVCC's interests in protecting the environment fall within SEPA's
zone of interests. We agree.
We also hold that CNW and MVCC allege sufficient injury in fact to establish
organizational standing to seekjudicial review of the county's SEPA determination. A
party meets the "injury in fact" prong of standing by showing that the injury will be
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No. 33194-6-III
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immediate, concrete, and specific, even though the allegations may be speculative and
undocumented. Kucera v. Dep 't o/Transp., 140 Wash. 2d at 213 (2000); Leavitt v.
Jefferson County, 74 Wash. App. at 679 (1994).
In Lands Council v. Washington State Parks & Recreation Commission, 176 Wn.
App. 787 (2013), this court held that the petitioner held standing to challenge the
Washington State Parks and Recreational Commission's decision to classify ski resort
property as recreation land, thus allowing for alpine ski area expansion, despite the
absence of a planned precise location for the ski runs. The State argued that the Lands
Council could not show any immediate, concrete and specific injury because the
commission had yet to map the ski runs. The Lands Council alleged that the ski area
expansion would jeopardize wildlife and its habitat. The decision mentions little about
the nature or members of Lands Council other than it was an environmental group.
We find federal law concerning the National Environmental Protection Act
(NEPA) supports our conclusion that CNW has standing. Because NEPA is substantially
similar to SEPA, we may look to federal case law for SEPA interpretation. Int'/
Longshore & Warehouse Union, Local 19 v. City a/Seattle, 176 Wn. App. 512,525,309
P.3d 654 (2013); Pub. Util. Dist. No. 1 a/Clark County v. Pollution Control Hr'gs Bd.,
137 Wash. App. 150, 158, 151 P.3d 1067 (2007). Although standing does not strictly
involve the interpretation of a statute, the NEPA and SEPA policies coincide such that
standing rules under both statutory schemes should be similar. Our courts have followed
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No. 33194-6-111
Conservation Nw. v. Okanogan County
organization standing rules established in federal environmental jurisprudence. SA VE v.
City of Bothell, 89 Wash. 2d at 867; Magnolia Neigh. Planning Council v. City of Seattle,
155 Wash. App. at 312 (2010).
Under federal law, an environmental plaintiff adequately alleges injury in fact
when she avers that she uses the affected area and is an individual 'ror whom the aesthetic
and recreational values of the area will be lessened by the challenged activity. Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 183, 120 S. Ct. 693,
145 L. Ed. 2d 610 (2000); Sierra Club v. Morton, 405 U.S. 727, 735, 92 S. Ct. 1361, 31
L. Ed. 2d 636 ( 1972). Melanie Rowland and George Wooten, members of one or both of
the plaintiff organizations, attested to hiking, photography, bird and wildlife watching,
and studying native plants and trees in the Okanogan County wilderness.
In Sierra Club v. US. Army Corps ofEngineers, 645 F.3d 978 (8th Cir. 2011), an
environmental organization and a hunting club filed suits against the Army Corps of
Engineers, the Fish and Wildlife Service, and an electric utility, seeking injunctive relief
because of the federal agencies' grant of a permit to construct a new coal-fired power
plant. The plaintiffs claimed violations of NEPA, among other environmental statutes.
The reviewing court agreed that the environmental organization showed adequate injury
in fact. One club member testified that he lived in the area and enjoyed taking pictures,
hunting, and studying its history and archaeology. The member was disturbed by the
mud and siltation from the plant site, the increase in dust caused by traffic on the
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No. 33194-6-III
Conservation Nw. v. Okanogan County
highway, as well as noise and light pollution comingfrom the plant. Another member
was an avid bird watcher and nature photographer in the area. He expressed his concern
that power plant construction would affect one of the most beautiful areas he has visited.
Closer to home, in National Wildlife Federation v. Espy, 45 F.3d 1337 (9th Cir.
1995), environmental groups brought action under NEPA against the United States
Secretary of Agriculture and purchasers of property, alleging that the transfer of property
without creating easements to protect wetlands violated NEPA. The reviewing court held
that the complaint sufficiently alleged each element of standing. The allegations that
several of plaintiffs' members enjoy the aesthetic value of the wetlands and the
opportunities they afforded for hiking, hunting, and bird-watching, asserted a legally
protected interest sufficient for standing.
In challenging CNW's standing, Okanogan County argues that CNW and MVCC
present no specific studies with regard to harm in Okanogan County, no evidence of how,
when or where there will be harm to any area by reason of the ATV ordinance, and no
evidence that any organization member has any interest beyond that of the general public
in land adjacent to opened roads. Nevertheless, Okanogan County cites no decision that
requires a study supporting damage to an environment in order that an environmental
group may gain standing. CNW and MVCC nonetheless presents numerous studies of
damage to wildlife in various regions by ATVs. The county cites no requirement that an
environmental group must identify a precise location and time for the potential harm.
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No. 33194-6-III
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The organizations anyway forwards direct and specific evidence of damage to the
Okanogan County environment in precise locations as a result of ATVs. Cases support
1
I
I
'
!
the proposition that a desire to see and value the environment sets an organization or its
members apart from the general public for purposes of standing under environmental
l
'
laws.
j
Finally, Okanogan County maintains that, while CNW and MVCC may show
!
I damage to the environment by A TV use, the two groups cannot show damage caused by
i opening additional roads to ATV use. We find no case that requires such precision of
proof as to damage in order to gain standing. Proponents of the ATV ordinance contend
that the ordinance will attract ATV users to Okanogan County, thereby increasing the use
of Okanogan County roads. Logically, the additional ATV riders will probably lead to
some off-road riding and some environmental damage. CNW and MVCC members have
documented present and ongoing instances of illegal A TV off-roading that increased with
the opening of an additional 597 miles of county road to ATV traffic. CNW alleges that
its members will lose recreational space, aesthetic enjoyment, and sensitive wildlife areas
as a result of increased A TV traffic.
In arguing that CNW and MVCC lacks standing, the county relies on Harris v.
Pierce County, 84 Wash. App. 222 (1996). In that case, a citizens group challenged the
adequacy of Pierce County's final environmental impact statement for the creation of a
system of multi-purpose trails. The group brought a writ of certiorari and attached
50
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No. 33194-6-111
Conservation Nw. v. Okanogan County
declarations from members stating that their property could be condemned by the county
for the new trail system. We held that the group failed to establish standing because
economic interests do not fall within the zone of interests protected by SEPA and the
concern that property might be condemned did not establish an immediate, concrete and
specific injury.
Harris does not raise the relatively low bar for environmental standing. CNW and
MVCC do not rely on economic harm to its members. CNW's interest in protecting the
environment adjacent to roads newly opened to ATVs in Okanogan County falls within
SEP A's zone of interests.
CNW and MVCC also argue that this court could analyze standing under a relaxed
procedural analysis advocated in Lujan v. Defenders of Wildlife, 504 U.S. 555,572 n.7,
112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992) and Five Corners Family Farmers v. State,
173 Wash. 2d at 303 (2011) and applied in Lands Council v. Washington State Parks &
Recreation Commission, 176 Wash. App. 787 (2013). Because we find standing under
traditional principles of standing, we need not address this alternate grounds for standing.
ESHB 1632
Both sides promote the 2013 law, ESHB 1632, as supporting their respective legal
positions. Okanogan County does not expressly argue that the 2013 bill rid the county of
the need to prepare an environmental checklist. Nevertheless, the county argues that
ESHB 1632 established a legislative policy that declares that either ATVs do not harm
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No. 33194-6-III
Conservation Nw. v. Okanogan County
j
1 the environment or the economic benefits of ATV riding prevails over any environmental
Ij
I harm. We discern no such legislative pronouncements.
l In enacting ESHB 1632, the legislature found:
I
~
i
that off-road vehicle users have been overwhelmed with varied
confusing rules, regulations, and ordinances from federal, state, county, and
city land managers throughout the state to the extent standardization
I
i
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I
statewide is needed to maintain public safety and good order.
LAWS OF 2013, 2d Spec. Sess., ch. 23, § 1(1). Through ESHB 1632, the Washington
legislature sought to:
(a) Increase opportunities for safe, legal, and environmentally
I acceptable motorized recreation; (b) decrease the amount of unlawful or
environmentally harmful motorized recreation; (c) generate funds for use in
I maintenance, signage, education, and enforcement of motorized recreation
opportunities; (d) advance a culture of self-policing and abuse intolerance
among motorized recreationists; ( e) cause no change in the policies of any
governmental agency with respect to public land; (t) not change any current
ORV usage routes as authorized in chapter 213, Laws of 2005;
(g) stimulate rural economies by opening certain roadways to use by
motorized recreationists which will in tum stimulate economic activity
through expenditures on gasoline, lodging, food and drink, and other
entertainment purposes; and (h) require all wheeled all-terrain vehicles to
obtain a metal tag.
LAWS OF 2013, 2d Spec. Sess., ch. 23, § 1(2).
Section 6 of ESHB 1632 opened state highways, with a speed limit of thirty-five
miles per hour or less, to the operation of wheeled all-terrain vehicles (WATVs). LA ws
OF 2013, 2d Spec. Sess., ch. 23, § 6, codified at RCW 46.09.455(1). Section 6 of the
enactment also granted counties with a population of fifteen thousand or more the
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authority to open county public roadways for WA TV use. Codified at RCW
46.09.455(l)(c)(i). Portions of the bill are codified at RCW 46.09.455.
The preface to ESHB 1632 laments that off-road vehicle users have been
overwhelmed with varied confusing regulations and ordinances from federal, state,
county, and city governments. Okanogan County does not suggest that preparation of a
thorough environmental checklist, before a county adopts an ordinance extending the
miles of roads for ATV use, instigates confusing regulations or ordinances. The checklist
does not create any new ordinances or regulations.
Through ESHB 1632, the Washington Legislature sought to stimulate rural
economies by opening "certain roadways" to use by motorized recreationists. LA ws OF
2013, 2d Spec. Sess., ch. 23, § 1. Reference to "certain roadways" suggests the
legislature was not anticipating a rural county to open all roadways to ATV use, let alone
all roadways with a speed limit under 35 m.p.h. Also, the legislature's desire to stimulate
local economies does not equate to a legislative wish to void environmental protections
and free a local government from complying with SEPA. To the contrary, the legislature
included in the law the desiderata of increasing "legal and, environmentally acceptable
motorized recreation" and conversely decreasing "the amount of unlawful or
environmentally harmful motorized recreation." LAWS OF 2013, 2d Spec. Sess., ch. 23, §
1(2)(a), (b) (emphasis added). Thus, failing to address the environmental impact of
opening certain roadways runs contrary to the bill's stated purpose.
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CNW and MVCC do not seek to preclude the opening of all county roads to ATV
traffic. Instead, the organizations advocate a selective opening of roads. A county may
follow both RCW 46.09.455 and SEPA by opening more roads to ATV traffic after
thoroughly considering the environmental impacts of the action. Statutes are to be read
together, whenever possible, to achieve a harmonious total statutory scheme, which
maintains the integrity of the respective statutes. In re Bankr. of Wieber, 182 Wash. 2d 919,
926, 347 P.3d 41 (2015).
Okanogan County for good reason does not contend that ESHB 1632 partially
repealed SEPA. We do not favor repeal by implication, and, when potentially conflicting
acts can be harmonized, we construe each to maintain the integrity of the other. City of
Spokane v. Rothwell, 166 Wash. 2d 872, 877, 215 P .3d 162 (2009); Anderson v. Dep 't of
Corr., 159 Wash. 2d 849, 858-59, 154 P.3d 220 (2007). Implied repeal is disfavored and
will be found only ( 1) when the later act covers the entire field of the earlier one, is
complete in itself, and is intended to supersede prior legislation, or (2) when the two acts
cannot be reconciled and both given effect by a fair and reasonable construction. State v.
Conte, 159 Wash. 2d 797, 815, 154 P.3d 194 (2007); Amalgamated Transit Union Legis.
Council v. State, 145 Wash. 2d 544, 552, 40 P.3d 656 (2002). ESHB 1632 did not cover
environmental policy. The legislature expressed no intent in the bill to supersede SEPA.
SEPA and ESHB 1632 can be reconciled.
In short, RCW 46.09.455(1)(c)(i) authorizes a county to open roadways to ATVs.
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The statute does not authorize a county to avoid the provisions of SEPA. Therefore, we
move to the heart of the dispute between the parties: whether the environmental checklist
prepared by Okanogan County SEPA official Perry Huston satisfied requirements
imposed by SEPA.
Environmental Checklist
The Washington State Legislature adopted the State Environment Policy Act in
1971 as a means to create a process to identify possible environmental impacts that may
accompany governmental actions. These actions include issuing permits for private
projects, constructing public facilities, or adopting ordinances, regulations, policies, or
plans. Information provided during the SEP A review process enables agencies,
applicants, and the public to assess how a proposed action will affect the environment.
The assembled information may lead to a change in a proposal to reduce impacts or to
condition or deny a proposal because of adverse environmental impacts.
SEPA recognizes the broad policy "that each person has a fundamental and
inalienable right to a healthful environment." RCW 43.21C.020(3). State agencies are
required to use "all practicable means" to achieve the following goals:
(a) Fulfill the responsibilities of each generation as trustee of the
environment for succeeding generations;
(b) Assure for all people of Washington safe, healthful, productive,
and aesthetically and culturally pleasing surroundings;
(c) Attain the widest range of beneficial uses of the environment
without degradation, risk to health or safety, or other undesirable and
unintended consequences.
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RCW 43.21C.020(2). Over forty years ago, with the adoption of SEPA, we first read in
Washington law that each generation is a trustee of the environment for succeeding
generations. Lands Council v. Wash. State Parks & Recreation Comm 'n, 176 Wash. App.
at 807-08 (2013).
Contrary to popular belief, SEPA does not demand a particular substantive result
in government decision making. Instead, the act ensures that environmental values are
given appropriate consideration. Stempel v. Dep 't of Water Res., 82 Wash. 2d 109, 118, 508
P.2d 166 (1973); Moss v. City ofBellingham, 109 Wash. App. 6, 14, 31 P.3d 703 (2001).
SEP A imposes on the government agency a duty to assemble and review full
environmental information before rendering a decision. Davidson Serles & Assocs. v.
City of Kirkland, 159 Wash. App. 616, 634-35, 246 P.3d 822 (2011). Briefly stated, the
procedural provisions of SEPA constitute an environmental full disclosure law. Norway
Hill Pres. & Prot. Ass 'n v. King County Council, 87 Wash. 2d 267, 272, 552 P.2d 674
(1976). SEPA attempts to shape the state's future environment by deliberation, not
default. Stempel v. Dep 't of Water Res., 82 Wash. 2d at 118; Loveless v. Yantis, 82 Wash. 2d
754, 765-66, 513 P.2d 1023 (1973). In essence, SEPA requires that the "presently
unquantified environmental amenities and values will be given appropriate consideration
in decision making along with economic and technical considerations." RCW
43.21C.030(2)(b); see also Norway Hill, 87 Wash. 2d at 272 (1976).
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RCW 43 .21 C.030(2)( c), a critical section of SEPA, requires all counties to:
Include in every recommendation or report on proposals for
legislation and other major actions significantly affecting the quality of the
environment, a detailed statement by the responsible official on:
(i) the environmental impact of the proposed action;
(ii) any adverse environmental effects which cannot be avoided
should the proposal be implemented;
(iii) alternatives to the proposed action;
(iv) the relationship between local short-term uses of the
environment and the maintenance and enhancement of long-term
productivity; and
(v) any irreversible and irretrievable commitments of resources
which would be involved in the proposed action should it be implemented.
Thus, under RCW 43.21C.030(2)(c), major actions significantly affecting the quality of
the environment require an environmental impact statement. Cheney v. Mountlake
Terrace, 87 Wash. 2d 338, 344, 552 P.2d 184 (1976); Davidson Serles & Assocs. v. City of
Kirkland, 159 Wash. App. at 634 (2011 ).
An administrative rule implementing SEP A defines "major action" circularly:
"Major action" means an action that is likely to have significant
adverse environmental impacts. "Major" reinforces but does not have a
meaning independent of "significantly" (WAC 197-11-794 ).
WAC 197-11-764. WAC 197-11-704, in tum, defines "actions" as:
( 1) "Actions" include, as further specified below:
(c) Legislative proposals.
(2) Actions fall within one of two categories:
(a) Project actions ....
(b) Nonproject actions. Nonproject actions involve decisions on
policies, plans, or programs.
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(i) The adoption or amendment of legislation, ordinances, rules, or
regulations that contain standards controlling use or modification of the
environment;
(Emphasis added) (Boldface omitted). Okanogan County agrees that its adoption of
Ordinance 2014-7 constitutes an action within the meaning of SEPA. The county,
however, contends the ordinance does not significantly impact the environment.
If SEPA covers a local governmental action, the government next determines if
the action will "significantly affect" the environment. SEPA does not define
"significantly affecting." Davidson Serles v. City of Kirkland, 159 Wash. App. at 634.
WAC 197-11-794 reads:
( 1) "Significant" as used in SEP A means a reasonable likelihood of
more than a moderate adverse impact on environmental quality.
(2) Significance involves context and intensity (WAC 197-11-330)
and does not lend itself to a formula or quantifiable test. The context may
vary with the physical setting. Intensity depends on the magnitude and
duration of an impact.
The severity of an impact should be weighed along with the
likelihood of its occurrence. An impact may be significant if its chance of
occurrence is not great, but the resulting environmental impact would be
severe if it occurred.
Under case law, the agency should prepare the environmental impact statement
whenever more than a moderate effect on the quality of the environment resulting from
the governmental action is a reasonable probability. King County v. Wash. State
Boundary Review Ed.for King County, 122 Wn.2d 648,664,860 P.2d 1024 (1993).
Under SEPA, evaluation of a proposal's environmental impacts requires examination of
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at least two relevant factors: (1) the extent to which the action will cause adverse
environmental effects in excess of those created by existing uses in the area, and (2) the
absolute quantitative adverse environmental effects of the action itself, including the
cumulative harm that results from its contribution to existing adverse conditions or uses
in the affected area. Norway Hill, 87 Wash. 2d at 277 (1976); Narrowsview Pres. Ass 'n v.
City a/Tacoma, 84 Wn.2d 416,423, 526 P.2d 897 (1974).
The decision of whether a governmental action will significantly impact the
environment is called the threshold determination. Moss v. City ofBellingham, 109 Wn.
App. at 14 (2001 ). The lead agency must make its threshold determination based on
information reasonably sufficient to evaluate the environmental impact of a proposal.
WAC 197-11-335; Moss v. City ofBellingham, 109 Wash. App. at 14. The agency issues a
determination of nonsignificance if it determines that the project will have no probable
significant adverse environmental impacts. WAC 197-11-340( 1); Lanzce G. Douglass,
Inc. v. City of Spokane Valley, 154 Wash. App. 408, 422, 225 P.3d 448 (2010). If the local
government decides that a proposal "may have a probable significant adverse
environmental impact," the agency issues a determination of significance and identifies
the areas on which an environmental impact statement must focus. RCW 43 .21 C.031;
WAC 197-11-360(1); Lanzce G. Douglass, 154 Wash. App. at 422. A determination of
significance mandates the preparation of a full environmental impact statement. Moss v.
City ofBellingham, 109 Wash. App. at 15 (2001 ).
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Before reaching the determination of significance or nonsignificance, the
government agency reviews an environmental checklist. WAC 197-11-315; Moss v. City
of Bellingham, 109 Wash. App. at 14 (2001). When the local governmental action
constitutes the granting of a development permit, the applicant of the permit completes
the environmental checklist. If the action entails an ordinance, the local government
prepares and reviews the checklist. This appeal centers on the environmental checklist
prepared by Okanogan County SEPA official Perry Huston.
By way of the environmental checklist, the responsible agency must show that it
considered the relevant environmental factors and that its decision to issue any
determination of nonsignificance was based on information sufficient to evaluate the
proposal's environmental impact. RCW 43 .21 C.030(2)( c); Wenatchee Sportsmen Ass 'n
v. Chelan County, 141 Wash. 2d 169, 176, 4 P.3d 123 (2000). The purpose of the checklist
is to ensure an agency, at the earliest possible stage, fully discloses and carefully
considers a proposal's environmental impact before adopting it. Spokane County v. E.
Wash. Growth Mgmt. Hr 'gs Bd., 176 Wash. App. 555, 579, 309 P.3d 673 (2013), review
denied, 179 Wash. 2d 1015, 318 P.3d 279 (2014). Ifthe checklist does not contain
sufficient information to make a threshold determination, the preparer may be required to
submit additional information. WAC 197-11-335(1); Moss v. City ofBellingham, 109
Wash. App. at 14 (2001 ). This latter rule controls this appeal.
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II CNW and MVCC contend that Okanogan County's DNS was clearly erroneous
I because the environmental checklist it prepared omits sufficient information to evaluate
I
!
the probable environmental impacts on sensitive lands and waters, traffic congestion and
'
safety, and public services and enforcement. CNW maintains that the county ignored
concrete evidence that illegal ATV off-road riding causes significant environmental harm
and is difficult to prevent because of the remoteness of the activity. CNW argues that the
county's failure to consider the proven impact of ATV riding rendered meaningless the
process of preparing a SEPA environmental checklist. CNW asks this court to declare
Ordinance 2014-7 null and void because the inadequate environmental checklist led to a
flawed declaration of nonsignificance and a mottled ordinance.
Okanogan County contends that, throughout the county's SEPA review process,
CNW and MVCC provided only information on possible harm and never identified a
specific road section where harm is inevitable. The county argues that we must afford
substantial weight to the responsible officials in reviewing SEPA cases. Thus, it argues,
the declaration of nonsignificance was not clearly erroneous and we must uphold
Ordinance 2014-7.
We review the decision of the Okanogan County Board of County Commissioners
under the "clearly erroneous" standard. This standard provides a broader or less
deferential review than the "arbitrary or capricious" standard because it mandates a
review of the entire record and all the evidence rather than just a search for substantial
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evidence to support an administrative finding or decision. Norway Hill, 87 Wash. 2d at 274
( 1976); Ancheta v. Daly, 77 Wash. 2d 255, 259-60, 461 P .2d 531 ( 1969). A SEP A
determination is clearly erroneous "' when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.'" Norway Hill v. King County Council, 87 Wash. 2d at 274
(internal quotation marks omitted) (quoting Ancheta, 77 Wash. 2d at 259). Judicial review
under the "clearly erroneous" standard also requires consideration of the "' public policy
contained in the act of the legislature authorizing the decision."' Norway Hill, 87 Wash. 2d
at 274 (quoting former RCW 34.04.130(6)(e) (1967)). Consequently, that public policy
is a part of the standard of review. Norway Hill, 87 Wash. 2d at 275 (1976); Schuffenhauer
v. Dep't ofEmp't Sec., 86 Wn.2d 233,235,543 P.2d 343 (1975).
We now address some of the principles forwarded by Okanogan County to sustain
Ordinance 2014-7. We then mention broad principles violated by the county's
environmental checklist and list specific defects we find in the checklist. We then end
with a discussion of the arguments forwarded by Okanogan County to uphold the
ordinance.
Okanogan County relies on the rule that, when a proposal changes neither the
actual current uses to which the land was put nor the impact of continued use on the
surrounding environment, that action is not a major action significantly affecting the
environment and an environmental impact statement is not required. Chuckanut
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Conservancy v. Dep 't ofNat. Res., 156 Wn. App. 274,285,232 P.3d 1154 (2010);
ASARCO Inc. v. Air Quality Coal., 92 Wash. 2d 685, 706, 601 P.2d 501 (1979). We
recognize the validity of this rule. We also recognize that the local government need not
identify and evaluate every remote and speculative environmental consequence of an
action. Cheney v. Mountlake Terrace, 87 Wash. 2d at 344. Nevertheless, we consider other
rules more fitting to our decision. We also disagree with Okanogan County's contention
that the A TV ordinance merely continues the current use and current impact on the
environment of its roads.
Many principles support the position of CNW and MVCC. The government
decision makers must consider more than the narrow, limited environmental impact of
the immediate, pending action. Cheney v. Mountlake Terrace, 87 Wash. 2d at 344; Lanzce
G. Douglass, Inc. v. City of Spokane Valley, 154 Wash. App. at 424 (2010). The agency
cannot close its eyes to the ultimate probable environmental consequences of its current
action. Cheney v. Mountlake Terrace, 87 Wash. 2d at 344; Eastlake Cmty Council v.
Roanoke Assoc., Inc., 82 Wash. 2d 475, 492-93, 513 P.2d 36 (1973); Loveless v. Yantis, 82
Wash. 2d at 765 (1973). To repeat, because NEPA is substantially similar to SEPA, we
may look to federal case law for SEPA interpretation. Int'/ Longshore & Warehouse
Union, Local 19 v. City of Seattle, 176 Wash. App. at 525 (2013); Pub. Util. Dist. No. I of
Clark County, 137 Wash. App. at 158 (2007). Under federal law, simple, conclusory
statements of "no impact" fail to fulfill an agency's duty when preparing an initial
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environmental assessment under NEPA. Found. on Econ. Trends v. Weinberger, 610 F.
Supp. 829, 841 (D.D.C. 1985). An agency must take the requisite "hard look" at the
environmental concern, and the initial assessment must indicate that the agency has taken
a searching, realistic look at the potential hazards and, with reasoned thought and
analysis, candidly and methodically addressed those concerns. Found. on Econ. Trends
v. Weinberger, 610 F. Supp. at 841.
Our decision in Spokane County v. Eastern Washington Growth Management
Hearings Board, 176 Wash. App. 555 (2013), echoes the federal law's mandate of detailed
information in environmental checklists and the requirement of assessing potential
environmental damage to areas surrounding the government project. The decision also
joins federal law in condemning broad generalizations and rote answers in the checklist.
In Spokane County, this court upheld a growth management hearings board decision to
invalidate a resolution amending the Spokane County's comprehensive plan and zoning
maps on the grounds that the resolution violated SEPA. The county prepared an
inadequate environmental checklist, thus leading it to also issue an erroneous DNS. The
checklist addressed various amendments with broad generalizations. The checklist did
not tailor its scope or level of detail to address the probable impacts on environmental
aspects such as water quality resulting from amendments. Instead, the checklist repeated
formulaic language postponing environmental analysis to the project review stage and
assuming compliance with applicable standards. The opinion does not share the
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generalizations and formulaic language in the checklist. In short, the administrative
record showed the county failed to fully disclose or carefully consider the environmental
impact of amendments.
Okanogan County's environmental checklist contains repetitive, superficial,
conclusory statements regarding the potential environmental impact of opening nearly
600 miles of county roads to ATV use. The checklist is almost devoid of specific
information.
We conclude that, at a minimum, the Okanogan County environmental checklist
should list topographic features, soils, fora and fauna and identify endangered species and
environmentally sensitive areas adjacent to the roads. At a minimum, the checklist
should also address the following concerns:
• Increased traffic as a result of the ATV ordinance;
• Off road use encouraged by the opening of the roads and the usage's
environmental impacts, including harm to soils, slopes, water, animals, and
plants;
• Reported instances of off road use and its damage to environment;
• Some segments of roads being open to A TV traffic but not connected to
other roads under 35 m.p.h.;
• Noise and air pollution resulting from both legal and illegal traffic;
• Adequacy of facilities, law enforcement, and emergency services to handle
ATV use;
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• Impact on threatened and endangered species from both legal and illegal
traffic; and
• The applicability of the concerns raised by CNW in the literature provided
concerning the effects of A TVs on the environment.
We now address contentions asserted by Okanogan County that would negate the
need to provide the information we deem necessary for an environmental checklist.
Okanogan County argues that it need not consider traffic congestions or emergency
services need for increased ATV use. We disagree. In Lanzce G. Douglass, Inc. v. City
of Spokane Valley, 154 Wash. App. 408 (2010), this court reversed the city planning
division's decision to permit a housing development without first requiring an
environmental impact statement. In so ruling, we noted that the city failed to consider the
difficulty in evacuating the development in the event of an emergency. A hearing
examiner had concluded that the development will add a significant volume of traffic to I
the already inadequate community transportation system.
Despite Okanogan County's stated intent of opening up roads to ATV use in order
to increase ATV-based tourism and recreation, the county insists that Ordinance 2014-7
will not result in a substantial increase in A TV traffic. This conclusion belies the
county's stated goal of the ordinance.
Okanogan County insists that, when preparing an environmental checklist, it need
not consider off-road riding of ATVs, since such riding is illegal. The county impliedly
contends that it need not consider unlawful behavior when considering environmental
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impacts. No law supports this argument. Instead, the county is to consider all
environmental impacts, whether resulting from legal or illegal conduct of ATV riders.
In Center for Biological Diversity v. Blank, 933 F. Supp. 2d 125 (D.D.C. 2013),
the court held that various government agencies complied with NEPA, but only after
finding that the government, in its initial assessment akin to a checklist, considered the
possible impact of illegal bluefin fishing on the ocean environment. The government
considered scientific reports that addressed illegal fishing when issuing a regulation.
More on point is Sierra Club v. Bosworth, 352 F. Supp. 2d 909 (D. Minn. 2005).
An environmental organization challenged the Forest Service's planned sale of Superior
National Forest timber. Any sale would necessitate the construction of logging roads and
the later closure of the roads. The organization argued, in part, that the new roads would
encourage illegal ATV traffic in the forest. The court agreed that the government failed
to sufficiently analyze possible unlawful conduct of A TV users. The court noted the lack
of enforcement officers in the national forest and evidence of prior illegal use of forest
roads. The court ruled that:
the Forest Service has not provided sufficient analysis to support its
conclusory statement that "new road building or re-opening closed ones"
are "not expected to result in any cumulative adverse effects." The analysis
of this factor favors the necessity of preparing an EIS.
Sierra Club v. Bosworth, 352 F. Supp. 2d at 924-25. In Greater Yellowstone Coalition v.
US. Forest Service, 12 F. Supp. 3d 1268 (D. Idaho 2014), the court also ruled that,
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before opening roads to A TV traffic, the Forest Service must evaluate the impact on the
environment resulting from illegal A TV use.
The Okanogan County environmental checklist omits listing of plants and animals
in the areas adjacent to the roads opened for ATV use. The county justifies this omission
with the observation that ATVs will only ride on roads. This county argument fails
because SEPA does not limit the review of environmental impact from governmental
action to any precise boundaries or the narrow scope of the project. SEPA demands the
listing and analyzing of all environmental impacts resulting from an ordinance. The
county's argument again also fails to recognize the possibility of off-road riding of ATVs
attended to the opening of the roads.
The federal court, in Greater Yellowstone Coalition v. US. Forest Service, ruled
that the government must address the impact of ATV use beyond the road on which ATV
use is permitted. To address that impact, the government must know and list the types of
soil, animals, and plants that inhabit the area. In Greater Yellowstone Coalition, an
environmental group challenged the government's assessment of the environmental
impact resulting from the opening of roads to ATV traffic. The proposed motorized trail
lay one-half mile from the Caribou Mountain Recommended Wilderness Area. The
Coalition argued that the Forest Service failed to consider the effects of having an ATV
trail close to a recommended wilderness area and that the failure amounted to an arbitrary
and capricious decision that violated NEPA. The court agreed. The Forest Service's
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initial environmental assessment claimed that the opening of the road would "not affect
the quality or quantity of wilderness opportunity available now or into the future," and
that none of the trail construction was within the area. 12 F. Supp. 3d at 1276. The
Coalition contended that the Forest Service may not simply conclude there is no effect
but rather must analyze in the assessment the possible effects of the project on the
wilderness area. The Coalition also argued that the Forest Service should have
considered the noise impact of the ATVs and possible off-trail use of ATVs. The court
noted the government's failure to address the noise impact on a wilderness area intended
for solitude and primitive recreational use. In short, the government failed to take a "hard
look" at the environmental consequences of opening a road to ATV traffic. Greater
Yellowstone Coalition, 12 F. Supp. 3d at 1279.
Okanogan County forgets the nature of ATVs. An ATV is designed as an off-road
recreational vehicle capable of cross-country travel on land, snow, ice, mud, swampland
or other natural terrain. An ATV travels on multi-track, multi-wheel and low pressure
tires for all terrains.
Okanogan County impliedly argues that the CNW and MVCC must show that
environmental damage is inevitable at one or more specific locations. We read no such
requirement into the SEPA process. We also note that the opponent of a governmental
action holds no burden to show the possibility of environmental damage. Instead, SEPA
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imposes the burden on the local government of thoroughly exploring and analyzing the
possibility of environmental harm in an environmental checklist.
During the comment period, Okanogan County disregarded, as conjectural and
speculative, numerous substantive statements and documentation from federal, state,
tribal, and local government entities attesting to the ongoing negative impact of off-road
ATV use on sensitive areas. Nevertheless, the county received overwhelming evidence
of negative impacts, including evidence of actual off-road riding that damaged specified
locations. Photographs confirmed the environmental harm.
We agree with Okanogan County that it need not consider, in the environmental
checklist, the safety aspects of riding an A TV on pavement. Environmental policy laws
direct the government to consider environmental impact, not public safety. Metro.
Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 772, 103 S. Ct. 1556, 75 L.
Ed. 2d 534 (1983). An increased risk of accidents is not an impact to the physical
environment needed to be considered under NEPA. Bicycle Trails Council of Marin v.
Babbitt, 82 F.3d 1445, 1466-67 (9th Cir. 1996).
In Norway Hill Preservation and Protection Ass 'n v. King County Council, 87
Wash. 2d at 275, the court ordered that an environmental impact statement be prepared
because of the county's failure to comply with the SEPA process. We need not go this
far. We do not order that Okanogan County prepare an environmental impact statement.
Instead, since SEPA is an informational statute, we hold that Okanogan County, before I
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adopting an ATV ordinance, must prepare an environmental checklist that includes a
complete disclosure and review of information relevant to the environmental impact to
the areas surrounding roads opened by the ordinance.
A SEP A challenge addresses the legal adequacy of the environmental impact
statement or environmental checklist and the actions taken in reliance of the
environmental document, typically the enactment of an ordinance. RCW
43.2IC.075(6)(c); Davidson Serles & Assocs. v. City of Kirkland, 159 Wash. App. at 632
n. 8 (2011). Local agency authority to act is qualified by the requirements of SEP A, thus
agency action that does not comply with SEP A is unlawful. State v. Grays Harbor
County, 122 Wash. 2d 244, 256 n.12, 857 P.2d 1039 (1993). We invalidate a county
ordinance based on a violation of SEPA. Barrie v. Kitsap County, 93 Wn.2d 843,861,
613 P .2d 1148 ( 1980); Davidson Serles & Assocs. v. City of Kirkland, 159 Wash. App. at
628 (2011 ). Since the environmental checklist preceding Okanogan County Ordinance
2014-7 is insufficient, the ordinance is void.
Return to ESHB 1632
CNW last contends that Ordinance 2014-7 violates the intent ofESHB 1632.
Because we void the ordinance on other grounds, we do not entertain this argument.
CNW does not seek any relief, through its reliance on ESHB 1632, that we do not grant it
by reason of declaring the environmental checklist insufficient.
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Conservation Nw. v. Okanogan County
CONCLUSION
We reverse the trial court's grant of summary judgment in favor of Okanogan
County and grant judgment in favor of CNW and MVCC on the ground that Ordinance
2014-7 violates SEPA. We thus invalidate Ordinance 2014-7. We vacate the award of
fees and costs awarded by the superior court to Okanogan County against CNW and
MVCC. Okanogan County is free to enact another ATV ordinance, but only after a
sufficient environmental checklist. We grant CNW and MVCC fees and costs on appeal.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
I CONCUR:
d]Unu~,~·
Siddoway, J.
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APPENDIX A
Environmental checklist Prepared by Perry Huston
We place in bold print the responses of Huston:
1. Name of proposed project, if applicable:
The proposal/project is an ordinance which opens approx.
597.23 miles of existing county roads to all - terrain- vehicle (ATV) use.
The county currently manages a road system of 1266 miles. There are
currently 335. 73 miles of those roads open to ATV use.
(See attached maps)
The roads proposed to be opened to use by ATVs are listed on
the attached spreadsheet.
(see attachment)
5. Agency requesting checklist: Okanogan County Planning
6. Proposed timing or schedule (including phasing, if applicable):
It is anticipated notice of the proposal and threshold
determination of non-significance will be published on April 16, 2014.
A 14 day comment period for the SEPA determination will be
conducted with review of the comments received immediately
following. Subsequent determinations and the schedule for a public
hearing on the proposal will be determined based on review of the
comments received. If it is adopted the ordinance will be effective
immediately.
8. List any environmental information you know about that has been
prepared, or will be prepared, directly related to this proposal.
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There has been no other environmental information prepared
relevant to this proposal. Any additional environmental information
will be prepared if necessary to respond to issues identified during the
comment period.
11. Give brief, complete description of your proposal, including the
proposed uses and the size of the project and site ....
The proposal/project is an ordinance which opens 597.23 miles
of county roads to all-terrain-vehicle (ATV) use. The county currently
manages a road system of 1266 miles. There are currently 335. 73 miles
of those roads open to ATV use.
(See attached maps)
12. Location of the proposal. Give sufficient information for a
person to understand the precise location of your proposed project,
including a street address, if any, and section, township, and range, if
.known. If a proposal would occur over a range of area, provide the range
or boundaries of the site(s). Provide a legal description, site plan, vicinity
trap, and topographic map, if reasonably available. While you should
submit any plans required by the agency, you are not required to duplicate
maps or detailed plans submitted with any permit applications related to
this checklist.
The proposal will involve opening roads to ATV use throughout
Okanogan County.
B. ENVIRONMENTAL ELEMENTS
1. Earth
a. General description of the site (circle one): Flat, rolling, hilly,
steep slopes, mountainous, other ....
The proposal will involve already existing roadways throughout
the county which cover a variety of topographical features. See
attached map for roadways included in the proposal.
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c. What general types of soils are found on the site (for example,
clay, sand, gravel, peat, muck)? If you know the classification of
agricultural soils, specify them and note any prime farmland.
The proposal involves already existing roadways in Okanogan
County. The roadways cover a variety of soil types already altered
through road construction and paving or other surface treatments.
d .. Are there surface indications or history of unstable soils in the
immediate vicinity? If so, describe.
The proposal involves already existing roadways throughout
Okanogan County. There have been no areas identified as unsuitable
for the existing roadway due to unstable soils.
f. Could erosion occur as a result of clearing, construction, or use?
If so, generally describe.
There is no construction necessary to implement this proposal.
The proposal involves already existing roadways in Okanogan County.
There is no erosion anticipated as a result of this proposal.
g. About what percent of the site will be covered with impervious
surfaces after project construction (for example, asphalt or buildings)?
The proposal will open 597.33 miles of existing roadways to ATV
use. 165.033 miles of these roads are currently paved. There will be no
additional pavement installed or other road surfaces altered as a result
of this proposal.
h. Proposed measures to reduce or control erosion, or other impacts
to the earth, if any:
There are no measures proposed to reduce erosion or other
impacts to the earth, other than normal roadway maintenance
activities, as a result of this proposal.
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a. Air
a. What types of emissions to the air would result from the proposal
(i.e., dust, automobile, odors, industrial wood smoke) during construction
and when the project is completed? If any, generally describe and give
approximate quantities if known.
The proposal involves opening roadways in Okanogan County to
ATV use that are already open to motor vehicle operation. The ATV's
generate exhaust when in operation. The proposal does not involve
increasing the number of ATV's in operation for any prescribed period
of time and does not anticipate a significant increase in automobile
odors. The roadways in the proposal have low speed limits in place to
which the ATV's must adhere. There is no increase in dust anticipated
as a result of this proposal.
c. Proposed measures to reduce or control emissions or other
impacts to air, if any:
There are no proposed measures to control emissions or other
impacts.
3. Water
a. Surface:
1) Is there any surface water body on or in the immediate vicinity of
the site (including year -round and seasonal streams, saltwater, lakes,
ponds, wetlands)? If yes, describe type and provide names. If appropriate,
state what stream or river it flows into.
The proposal involves existing county roadways. No new
roadways will be constructed on or immediately adjacent to water
bodies. See attached map for roadways included in the proposal.
5) Does the proposal lie within a 100-year floodplain? If so, note
location on the site plan.
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The proposal involves existing county roads some of which lie
within the 100 year flood plain. No new roadways will result from this
proposal. See attached map for the location of the roads involved.
6) Does the proposal involve any discharges of waste materials to
surface waters? If so, describe the type of waste and anticipated volume of
discharge.
There will be no discharge of waste materials to surface waters
as a result of this proposal.
b. Ground:
1) Will ground water be withdrawn, or will water be discharged to
ground water? Give general description; purpose, and approximate
quantities if known.
There will be no groundwater withdrawn as a result of this
proposal.
There will be no water discharged to groundwater as a result of
this proposal.
c. Water runoff (including stormwater):
1) Describe the source of runoff (including storm water) and method
of collection and disposal, if any (include quantities, if known). Where will
this water flow? Will this water flow into other waters? If so, describe.
The proposal involves existing county roadways. There will be
no increase in run -off or any alteration in the method of collection as a
result of this proposal.
2) Could waste materials enter ground or surface waters? If so,
generally describe.
The proposal involves existing county roadways. There will be
no increase in run -off or any alteration in the method of collection as a
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result of this proposal. There will be no increase in waste materials as
a result of this proposal.
d. Proposed measures to reduce or control surface, ground, and
runoff water impacts, if any:
There are no proposed measures to reduce or control impacts to
surface, ground, and run -off water as a result of this proposal.
4. Plants
a. Check or circle types of vegetation found on the site:
_ _ _ deciduous tree: alder, maple, aspen, other
_ _ _ evergreen tree: fir, cedar, pine, other
---
shrubs
_ _ _ grass
- - - pasture
- - - crop or gram
- - - wet soil plants: cattail, buttercup, bullrush, skunk cabbage,
other
_ _ _ water plants: water lily, eelgrass, milfoil, other
_ _ _ other types of vegetation
The proposal involves existing roads located throughout
Okanogan County. The roadways are already developed so there will
be no vegetation removal from or near the road surfaces.
b. What kind and amount of vegetation will be removed or altered?
No vegetation will be removed or altered as a result of this
proposal.
c. List threatened or endangered species known to be on or near the
site.
The proposal involves existing roadways located throughout
Okanogan County. There is no endangered plant life on the existing
roadways.
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d. Proposed landscaping, use of native plants, or other measures to
preserve or enhance vegetation on the site, if any:
There will be no landscaping as a result of this proposal.
5. Animals
a. Circle any birds and animals which have been observed on or
new the site or are known to be on or near the site:
birds: hawk, heron, eagle, songbirds, other:
mammals: deer, bear, elk, beaver, other:
fish: bass, salmon, trout, herring, shellfish, other.
The proposal involves existing roadways located throughout
Okanogan County. All species with a presence in Okanogan County
may be at times be new an affected roadway. The proposal does not
create any new roads or open any roads not currently open to vehicle
travel. The number of average daily trips is not anticipated to increase
to a point where vehicle density on the roads will cause a significant
increase in animal/ vehicle collisions.
b. List any threatened or endangered species known to be on or near
the site.
The proposal involves existing roadways located throughout
Okanogan County. All endangered or threatened species with a
presence in Okanogan County may at times be near an affected
roadway. The proposal does not create any new roads or open any
roads not currently open to vehicle travel. The number of average
daily trips is not anticipated to increase to a point where vehicle density
on the roads will cause a significant increase in animal/vehicle
collisions.
c. Is the site part of a migration route? If so, explain.
The proposal involves existing roadways located throughout
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Okanogan County. The existing roads cross the mule deer migration
routes (see attached map). The proposal does not create any new roads
or open any roads not currently open to vehicle travel. The number of
average daily trips is not anticipated to increase to a point where
vehicle density on the roads will cause a significant increase in
animal/vehicle collisions.
d. Proposed measures to preserve or enhance wildlife, if any:
There are no new measures to preserve or enhance wildlife as a
result of this proposal.
7. Environmental health.
a. Are there any environmental health hazards, including exposure
to toxic chemicals, risk of fire and explosion, spill, or hazardous waste, that
could occur as a result of this proposal? If so, describe.
There are no environmental health hazards as a result of this
proposal.
1) Describe special emergency services that might be required.
There are no special or additional emergency services as a result
of this proposal.
2) Proposed measures to reduce or control environmental health
hazards, if any:
There are no proposed measures to reduce or control
environmental health hazards.
b. Noise
1) What types of noise exist in the area which may affect your
project (for example: traffic, equipment, operation, other)?
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The proposal involves county roads already open to vehicle
travel. The current vehicle noise will not affect this proposal.
2) What types and levels of noise would be created by or associated
with the project on a short-term or a long -term basis (for example: traffic,
construction, operation, other)? Indicate what hours noise would come
from the site.
The proposal will result in vehicle noise in areas already open to
vehicle travel. The number of average daily trips is not anticipated to
increase to a point where vehicle density on the roads will cause a
significant increase in vehicle noise. Noise suppression requirements
are currently regulated through RCW 46.09.457 and RCW 46.09.470.
3) Proposed measures to reduce or control noise impacts, if any:
There are no measures proposed to reduce or control noise
impacts.
8. Land and shoreline use
a. What is the current use of the site and adjacent properties?
The site of this proposal is currently used as county roads.
b. Has the site been used for agriculture? If so, describe.
The site has not been used for agriculture since the construction
of the county roads.
c. Describe any structures on the site.
The only structures are paving or road surface treatments,
guardrails and other traffic safety devices, and regulatory and advisory
roadway signs.
f. What is the current comprehensive plan designation of the site?
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The proposal involves existing county roads which transverse a
variety of comprehensive plan classifications.
g. If applicable, what is the current shoreline master program
designation of the site?
The proposal involves existing county roads which transverse a
variety of SMP classifications.
h. Has any part of the site been classified as an "environmentally
sensitive" area? If so, specify.
No roadways in this proposal have been classified as sensitive
areas.
1. .Proposed measures to ensure the proposal is compatible with
existing and projected land uses and plans, if any:
Public roadways are a compatible and/or permitted use in all
zones.
10. Aesthetics
c. Proposed measures to reduce or control aesthetic impacts, if any:
There are no proposed measures to control aesthetic impacts.
11. Light and glare
a. What type of light or glare will the proposal produce? What time
of day would it mainly occur?
Vehicle illumination and marker lights will be used on roadways
already open to vehicle traffic.
b. Could light or glare from the finished project be a safety hazard
or interfere with views?
This proposal does not create any light or glare beyond the
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operation of vehicles on existing county roads none of which creates a
safety hazard or interferes with views.
c. What existing off -site sources of fight or glare may affect your
proposal?
No off -site source of light or glare will affect this proposal.
d. Proposed measures to reduce or control light and glare impacts, if
any:
There are no proposed measures to control lig4t or glare
impacts.
12. Recreation
a. What designated and informal recreational opportunities are in
the immediate vicinity?
The proposal involves county roads currently open to vehicle
traffic. The road system is used for transportation to the recreational
locations found in Okanogan County.
b. Would the proposed project displace any existing recreational
uses? If so, describe.
The proposal will not displace any recreational uses.
c. Proposed measures to reduce or control impacts on recreation,
including recreation opportunities to be provided by the project or
applicant, if any:
There are no proposed measures to reduce or control impacts on
recreational opportunities.
14. Transportation
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I a. Identify public streets and highways serving the site, and describe
'
i
f
proposed access to the existing street system Show on site plans, if any.
The proposal involves existing county roads already open to
vehicle travel.
I
I (see attached map)
f. How many vehicular trips per day would be generated by the
completed project? If known, indicate when peak volumes would occur.
It is not known the total number of vehicle trips per day
generated by this proposal. It is not anticipated that any increase in
vehicle trips will result in reduced level of service classification for any
road in the proposal. It is likely peak volumes will occur during
daylight hours in the spring, summer, and fall.
g. Proposed measures to reduce or control transportation impacts, if
any:
There are no proposed measures to reduce or control
transportation impacts.
15. Public services
a. Would the project result in an increased need for public services
(for example: fire protection, police protection, health care, schools, other)?
If so, generally describe.
The proposal will not result in an increased need for public
services.
b. Proposed measures to reduce or control direct impacts on public
services, if any.
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There are no proposed measures to reduce or control impacts on
public services.
CP at 253-66.
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APPENDIXB
Town of Winthrop Planning Commission Letter to Perry Huston
To date, the Town of Winthrop has declined to take a position on
ATV use in town, due in large part to the fact that the Town Council would
like to know how ATV traffic would be accessing Winthrop. In light of
this fact, the Planning Commission find that the SEPA Checklist provides
inadequate analysis of the impacts of opening all roads within the speed
limit range proposed, and does not address the need for contiguous routes.
We think that a more complete analysis should be performed including the
following items of concern for us as a local jurisdiction within Okanogan
County:
Under Section 8, Land and Shoreline Use, the Checklist states that
none of the roads are classified as "environmentally sensitive," however it
does not address whether these roads are in proximity or access areas that
are environmentally sensitive or "critical areas." This needs to be included
in the analysis to truly determine the impacts of the proposal.
Under section 12, Recreation, the checklist states there are no
impacts to recreation other than to provide another means of transportation
to recreational locations. We suggest you consider where these routes
connect to each other and to logical trip beginning and endpoints, whether
there are adequate parking/trailhead facilities available in key locations, and
how ATV use will interact with other forms of recreation.
Under Section 14, Transportation, we suggest you include analysis
of how the roads being opened connect to local jurisdictions such as
Winthrop, and how the traffic pattern may be affected around population
centers of the County. Since the proposal does not include a network of
roads that connect in a way' that creates contiguous routes, we are curious
how the A TVs will arrive on these sections of road, and if there is any
consideration of parking for trucks and trailers.
Additionally under Transportation, we believe the checklist needs to
include a reasonable estimate of the amount of traffic that this proposal will
generate. Further it should describe under Section B.2. Air and Section 13.
7 .b. Noise any potential impacts based on those traffic generation estimates.
Under Section 15, Public services, the Checklist concludes there are
no impacts to public services. We are concerned that enacting this proposal
without adequate analysis could result in impacts to local law enforcement.
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Without adequate connections to parking and logical routes, there could be
trespass and illegal travel across private property to reach desirable
destinations. This could easily result in increased complaints and response
time for local law enforcement.
CP at 333-34.
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APPENDIXC
May 2, 2014, Methow Valley Citizens Council and Conservation Northwest Joint
Submittal to the Okanogan County Office of Planning & Development
MVCC and CNW believe that in reaching a DNS, the County failed
to analyze 1) the likelihood of significant impacts on sensitive lands and
waters, including fish and wildlife habitat, from illegal off-road riding
facilitated by opening certain roads to ATVs; 2) the impacts on traffic of
A TVs traveling on roads with speed limits over 3 5 mph, either because of
confusion over where A TVs are and are not allowed, or because the
operator wants to traverse an unauthorized road segment with a higher
speed limit to access an isolated authorized road segment; 3) the impacts on
public services from the need for additional traffic patrol and enforcement
to keep ATVs from riding off-road and the need to post signs indicating
where A TVs are and are not allowed; and 4) the actual traffic impacts of
additional vehicles on the roads that would be open to ATVs under this
proposal.
1. The evidence of damage to lands, waters, vegetation, and fish and
wildlife habitat from illegal off-road riding is overwhelming, and the
County has failed to consider the significant impacts of Illegal off-road
riding that can be anticipated from opening roads in environmentally
sensitive areas.
In many responses in the SEPA Checklist, the County presumes that
ATVs are exactly like all other vehicles that are already allowed on the
roads and considers only the impacts to the road itself from opening the
road to ATVs. On the contrary, the very name "all-terrain vehicles" means
that these vehicles are designed, marketed and intended for off-road use.
Unfortunately, not all operators stay on the road when they are riding in a
vehicle that was designed and intended for off-road use, even when off-
road use is prohibited. This statement is not speculation; it is established
fact. In Appendix B we have included references to numerous studies and
observations of damage to land from illegal off-road riding of ATVs. In
light of the overwhelming evidence, it is simply unreasonable and
inconsistent with SEPA to ignore the fact that illegal off-road riding is
widespread and to assume that all ATV operators will obey all laws.
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For example, under the topic of Earth on page 3, the checklist asks
about steepness of slopes, kind of soils affected, history of unstable soils,
likelihood of erosion, and measures to control erosion. Every response
asserts that only "already existing roadways" will be affected. This view
turns a blind eye to the probability of illegal off-road operation of ATVs.
The evidence shows, however, that off-road riding is likely and that it will
cause erosion, particularly in areas of steep slopes or unstable soils.
Consequently, the County must assume some amount of illegal riding and
assess impacts on soils adjacent to roads, especially in areas of steep slopes
or unstable soils.
Similarly, in the Environmental Element of Water on page 4, there
are questions as to whether the proposal is adjacent to or within 200 feet of
surface water bodies, including "year-round and seasonal' streams,
saltwater, lakes, ponds, wetlands." The County's stock answer is the same
as for the element of "Earth:" only "existing county roadways" will be
affected. Again, this answer ignores the fact that off-road riding can
adversely affect water bodies either by A TVs riding directly through
streams or by causing erosion that can end up in streams.
The checklist continues in the same vein. n responses to questions
regarding the next two elements - Plants and Animals - the County
repeatedly asserts that there is no vegetation affected and no animals
affected because ATV travel will-take place on "existing county
roadways." There is no consideration of impacts to vegetation or wildlife
adjacent to, or made accessible by, existing roads. Once again, it is
incumbent on the County to acknowledge that ATVs are not like most other
vehicles in that they are designed and intended for off-road travel. The
literature is replete with examples of serious damage to vegetation and,
wildlife habitat - including spawning streams for endangered fish - from
illegal off-road riding. (See especially studies referenced by Backcountry
Hunters & Anglers, Appendix B.)
Other responses in the checklist fail to consider the likelihood of
damage from off-road riding. On page 8, the checklist asks: "Has any part
of the site been classified as an environmentally sensitive area? If so,
specify." The County's answer is: "No roadways in this proposal have been
classified as sensitive areas." Similarly, in response to question 4, page 13,
the County acknowledges that the roads to be opened to ATV traffic "are in
some cases located next to areas under regulatory protection or eligible for
regulatory protection," but that this is not an issue because "the proposal
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involves existing county roads currently open to vehicle traffic." Off-road
damage is not mentioned. Finally, in response to question 2, page 13, the
County states that "the proposal, involves existing county roads already
open to vehicle travel. There will be no impacts to plants, fish, or marine
life. The proposal does not create any new roads or open any roads not
currently open to vehicle travel."
Many miles of roadways in the proposal travel through, or give
access to, Washington Department of Fish & Wildlife (WDFW) Wildlife
Areas or state parklands. (See attached road list, Appendix A that shows
roads in the proposal that access these public lands in the Methow Valley.)
Surely there are environmentally sensitive areas on these lands, but the
County has failed to ascertain the extent to which these areas may be
adversely affected by off-road riding facilitated by this proposal. WDFW
and State Parks prohibit ATVs both on and off road, yet the proposal would
provide A TV access to and through these lands, thus creating an
enforcement nightmare for these agencies.
Many other miles likely are adjacent to spawning streams of at least
one of the County's three federally listed threatened or endangered fish
species, but the County has failed to do any surveying or mapping to
determine what protected species or their habitat may be made vulnerable
to ATV access by this proposal. On page 14, the checklist asks: "How
would the proposal be likely to affect land and shoreline use, including
whether it would allow or encourage land or shoreline uses incompatible
with existing plans?" The County response is: "The county roads are in
some cases located next to areas, under shoreline protection." This is
another example of sensitive areas that may be affected by the proposal.
In sum, there is no rational basis for assuming that there will be.no
damage to adjacent or accessed lands from illegal off-road riding. To the
contrary, there is ample evidence that the only reasonable assumption in
conducting a SEP A analysis on this proposal is that there will be some
illegal riding and consequent damage to soils, water bodies, shorelines,
vegetation, wildlife, protected species, and governmentally protected
sensitive areas. To reduce the likelihood of that damage, MVCC and CNW
request that roads that travel through, or provide access to, WDFW lands or
state parklands be removed from this proposal. In the alternative, we
request that the County conduct a comprehensive survey to determine
where roads give access to sensitive lands, waters, or fish and wildlife
habitat and remove those roads from the proposal.
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2. The County failed to consider the impacts on traffic of ATVs
traveling on roads with speed limits over 3 5 mph, either because of
confusion over where A TVs are and are not allowed, or because the
operator wants to cross a segment with a higher speed limit to access an
isolated open segment.
The proposal includes many isolated short segments that allow
longer rides only if the operator illegally rides on roads that have speed,
limits over 35 mph. (See Appendix A for a list of these roads in the
Meth ow Valley.) It is likely that some riders will ride on segments or roads
with higher speed limits, either because of confusion over where A TVs are
and are not allowed, or because the operator wants to traverse an
unauthorized segment with a higher speed limit to access another
authorized road or segment. The County has not indicated intent to install
signs to make it clear where ATVs are not allowed, and to do so would be
prohibitively expensive. The County assumed that despite the disconnected
patchwork of short segments connected only by roads or segments with
higher speed limits, all A TV riders would both 1) understand where they
may and may not ride, and 2) stay only on roads on which ATVs are
allowed. This is an unsupported and unrealistic assumption.
In the Methow Valley alone, MVCC and CNW have identified at
least twenty six (26) road segments, less than one mile long and ten ( 10)
between one and two miles long. In addition, MVCC has identified other
road segments longer than two miles which offer no realistic opportunity
for ATV travel due to being loop roads that begin and end at roads closed
to ATVs, and no parking for trailers is available.
To correct this error, MVCC and CNW request that the County
remove from the proposal all road segments less than two miles long and
those loop roads which connect only to roads with speeds greater than 35
mph. Those segments for the Methow Valley are shown in Appendix A
(columns K, L, and N).
3. The County failed to consider the impacts on public services of
the need for additional traffic enforcement to keep ATVs from riding off-
road and to post signs indicating where A TVs are and are not allowed.
Already thin local police and sheriff resources will be needed to
enforce the laws governing ATVs. These include: licensing, safety
equipment, underage riders, speeding, and most especially responding to
complaints about riding on closed roads or off-road. To reduce the impacts
of off -road riding and riding on roads with speed limits over 35 mph
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discussed above, the County should, provide additional traffic enforcement
and post signs indicating where A TVs are and are not allowed. This would
increase the cost of both police protection and public works. Yet the
County states that "the proposal will not result in an increased need for
public services." (Page 12, question 15) Either necessary signage and
enforcement will be lacking, or there will be an impact on public services
that must be evaluated and disclosed.
4. The County failed to consider the actual traffic impacts of
additional vehicles on the roads that would be open to A TVs under this
proposal.
The County admits that it does not know the number of additional
vehicle trips per day or at peak times (e.g., weekends and holidays in
spring, summer, and fall), and it made no attempt to estimate those
numbers. (See page 11, response to question 14.f: "It is not known the total
number of vehicle trips per day generated by this proposal. ... It is likely
peak volumes will occur during daylight hours in the spring, summer, and
fall.") Consequently, the County does not know whether the increase in
traffic by itself - even without off-road riding - will increase impacts to
environmental elements such as road surface erosion, dust irritants,
animal/vehicle collisions, or other environmental elements. Yet the County
states without evidence that "there is no erosion anticipated as a result of
this proposal" (page 3, response to question 1.f) and that "the number of
average daily trips is not anticipated to increase to a point where vehicle
density on the roads will cause a significant increase in animal/vehicle
collisions." (Page 6, response to question 5.a, b, and c, and page 13,
response to question 2)
Surely there is information available on the amount of traffic
generated by opening roads to ATVs, since there are 336 miles of roads in
the County that are already open to A TVs. This information should be used
to estimate the increase in traffic - especially at peak times - that can [be]
expected from this proposal. If this information is not available, it is
because the County has failed to monitor the impacts of opening roads to
ATVs, as it should have before opening more miles of roads. Required
mitigation measures for any proposal opening roads to A TVS should be 1)
monitoring the increase in vehicle traffic on roads popular with A TVs and
of animal/vehicle collisions on these roads; 2) increased road maintenance
where there is significantly more traffic due to the presence of ATVs; and
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I 3) closure of roads in which there is an increase in animal/vehicle
collisions:
Requested Action
MVCC and CNW request that you withdraw the DNS and issue a
Determination of Significance on the proposal. Following that
determination, we ask that you either 1) prepare an environmental impact
statement for the proposal, or 2) issue a new proposal and prepare a SEPA
analysis for the new proposal, including a request for public comment.
The new proposal should:
Remove all roads in Appendix A that are shown in red. (The reason
for removing a road from the proposal is shown in the columns following
the road name. There may be more than one reason for removing a
particular road.) In particular, we request that roads that travel through, or
give access to, WDFW lands or state parklands be removed from this
proposal. In the alternative, we request that the County conduct a
comprehensive survey to determine where roads give access to sensitive
lands, waters, or fish and wildlife habitat and remove those roads from the
proposal.
Include a plan with cost estimates for timely installation of signs to
indicate where A TVs are and are not allowed.
Include a plan with cost estimates or monitoring increases in vehicle
traffic on popular A TV routes and performing added maintenance on roads
with significantly increased traffic.
Include a plan with cost estimates for monitoring animal/vehicle
collisions on popular A TV routes and closing roads with a significant
increase in collisions.
CP at 336-40 (footnote omitted).
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APPENDIXD
A sample of ATV ordinance supporter comments
I have been riding ATV's in Okanogan County and other counties in
this state for over 25 years. During that time I estimate I have ridden
20,000 plus miles on four different ATV's I've owned. Based on this
experience and my experience as an Okanogan County Deputy Sheriff, I
believe that it is totally safe and appropriate to open these roads to ATV's
properly licensed and driven by licensed drivers.
Thomas Windsor
Orv's handle the gravel dnr, usfs, and county roads better than cars;
trucks, and motorcycles.
Thank you
Gary L Allard
My husband and I are senior's [sic] and are hoping our County
Commissioner's [sic] are able to open all existing County roads with speed
limits of 35 or under.
Rodney and Marie Maberry
I am I 00% in favor of A TVs on ALL county roads no matter what
the posted speed is. I though[t] this issue has ready been resolved ...
seems silly to me how some folks like to stir up trouble trying to prevent
others from recreating.
Danny M Whisler
I am a resident of Okanogan County in the Upper Rendezvous near
Winthrop. I just wanted to comment that the..county is doing a good job in
offering this proposal. Since there are existing roads throughout the county
and National Forests that already permit travel by motorized vehicles
including cars, trucks, dirt bikes, etc., there is no sense or point in
restricting ATV's, UTV's, SSV's or similar vehicles from using these same
roads.
As an avowed environmentalist, I would strongly resist the creation
of additional roads in these areas. But since these roads already exist AND
motorized traffic is permitted, then they should be opened to A TV's. The
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existing laws regarding off-road traffic must be enforced rigorously to
prevent ruining the beautiful aesthetic qualities of the County. The
problems, where they do exist, are with the drivers NOT the vehicles.
Dan McF eeley
I am a resident of the Meth ow Valley, specifically located on the
East Chewuch Rd. I watch many trucks with loud exhaust and endless
motor bikes with no exhaust drive right by my house all day long. I would
rather hear a little A TV go riding by on their way to spend money in the
Town of Winthrop. With my Recreation degree from Pacific Lutheran
University, I know how important recreation is in our lives. Whatever your
sport is, it is important to have moments in our lives to release stress.
Hiking, biking, snowmobiling, A TV riding, and even bird watching have
positive effects. It is really sad to see people of the Methow be so
prejudice[ d]. Choosing to be a Prejudice Recreationalist is not fa[i]r to the
people whose sport they are trying to control. Everyone will learn to get
along.
I support all ATV Riding in all of Okanogan County. I don't even
own an ATV.
Craig Stahl, Winthrop
We have received a copy of the Notice Packet re: Opening ATV
Routes in Okanogan County and would like to comment on the SEP A
Determination of Non-Significance. We ask that our comments be
included in the official project record.
Premier Polaris is the largest - stocking Polaris dealership in
Washington state, representing approximately 10,000 ATV enthusiasts that
are interested in preserving access to our public lands, increasing
recreation-based revenue for Washington's rural communities, and
fostering a new culture of responsible ATV riding. We are members of the
Sky Valley Chamber of Commerce, the Port-to-Pass Recreational
Innovation Zone and a statewide collaborative that led to the passage of
ESHB 1632 (regulating the use of off-road vehicles) in 2013 and HB 2151
(the Washington State Trails Act) in 2014.
We would like to offer the following general comments re: the
above-mentioned ordinance:
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1. We support the ordinance allowing the operation of All Terrain
Vehicles (A TVs) on approximately 597 .23 miles of existing county roads
with a speed limit of 35 mph or less.
2. With respect to emissions, the U.S. Environmental Protection
Agency (EPA) long-ago [sic] established emissions standards for off-road
vehicles (ORVs). All ORVs sold in Washington are required to comply
with the emissions limits in those standards. By establishing and enforcing
such standards, the EPA made a policy determination that ORV emissions
levels are acceptable for the vehicles to be used throughout the United
States.
3. Washington state law limits ORV sound to 86 dB(A) when tested
in accordance with SAE J33 la. By comparison, a vacuum cleaner emits
sound of 80-89 dB(A).
4. With respect to alleged damage to existing roads, Washington
state law limits ORV weight to 2,000lbs. By comparison, a 2014 Jeep
Wrangler weighs over 3,700 lbs. In addition, ORVs generally have soft,
low-pressure tires, which may limit surface damage.
Please include this information in the SEPA analysis and place our
name on the mailing list of interested parties so that we may be kept
informed of your progress on this matter. We can be reached at 360 - 794-
8669 or via email info@premierpolaris.com should you have any questions.
Lisa Driscoll, Owner Randy Driscoll, Owner
Monroe, WA
Please log my comments in recognition and agreement with the
determination of non-significance in regard to allowing the operation of All
Terrain Vehicles (ATV's) on approx. 597.23 miles of existing county roads
with a speed limit of 35 mph or less. I am in full support of opening the
suggested roads to allow A TV's to travel on them. My vacation dollars
will be spent locally with these roads opening rather than those dollars
going to Montana or Idaho as they have done for a couple years now! It is
only common sense that lighter more fuel efficient vehicles allowed on our
roads is more environmentally conscious, just the opposite of having a
significant impact on our environment.
Doug Smith, Puyallup
The Association of Okanogan County Snowmobile Clubs is
composed of all of the snowmobile clubs in Okanogan and Ferry Counties
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plus the Mountain Trails Grooming Association. Many, if not most, of the
Association Clubs' members are ATV riders as well as snowmobile riders.
The Association supports the opening of 3 5 MPH County roads to
ATV use.
Thomas Windsor
CP at 370,371,378,385,387,395,398,399,401.
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APPENDIXE
2011 compilation by Backcountry Hunters & Anglers of scientific studies
Natural resources are affected by ATV use (Meadows et al. 2008).
All-terrain vehicle use affects soil and hydrologic function primarily
through soil compaction, increased soil strength, and removal of the forest
litter layer in temperate environments (Ouren et al. 2007). Soil compaction
and the removal of the forest litter layer can reduce vegetation growth
(Webb et al. 1978) and is a primary factor in accelerated erosion rates
(Megahan 1990) ....
Compaction resulting from ATV travel reduced hydraulic
conductivity 8% at the MT [Montana] site, 59% on the LA [Louisiana] site,
and 51 % at the WA [Washington] site (Meadows et al. 2008). The changes
in soil structure and physical properties described by Meadows et al. (2008)
highlight the potential for A TV use to result in significant degradation of
hydrologic function over relatively short time frames.
All-terrain vehicle travel increases erosion and sediment
concentrations by removing soil cover and compacting the soil thus
decreasing infiltration. Sediment delivery to streams via erosion is a result
of ATV travel (Misak et al. 2002). Increased sediment loading decreases
water quality, fish habitat quantity and quality, and fish reproductive
success (Newcombe and MacDonald 1991). The increase in runoff and
sediment transport can be substantial. Meadows et al. (2008) compared the
effects of A TV traffic across seven sites on diverse landscapes ranging
from the Wenatchee National Forest in Washington State to the Land
Between the Lakes in Kentucky and concluded that "ATV trails are high-
runoff, high sediment producing strips on a low-runoff, low sediment
producing landscape." ... Meadows et al. (2008) reported a decline in soil
cover from 70% on undisturbed sites adjacent to ATV trails to 17 .6% after
40 A TV passes in Montana. The decline in soil cover at the MT site
resulted in increased surface runoff and suspended sediment concentrations.
Suspended sediment concentrations in the runoff increased 50% over pre-
disturbance levels after 40 ATV passes. . . . Suspended stream sediments
rose approximately 94 X downstream of an A TV trail crossing relative to
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sediment concentrations above the ATV trail crossing. The results of the
paired watershed study led the authors to conclude that increases in
suspended stream sediment were a result of a combination of highly
erodible silt loam soils (common in the Inland Northwest of the United
Sates) and A TV trails acting as conduits for suspended sediment (Ricker et
al. 2008) ....
Impacts of ATV traffic on water quality and aquatic systems are not
limited to increases in suspended stream sediments. A TV trails funnel
water that dislodges contaminants which end up in streams, rivers and lakes
(Ouren et al. 2007). Contaminants can also be directly introduced into
aquatic systems through oil and fuel spills and wind deposition of emission
particulates that are transported in dust migration, settle onto vegetation,
and subsequently washed off leaf surfaces by rain and snow and moved by
surface water run-off. All-terrain vehicle operation in or near streams and
waterways poses a serious water pollution threat (Havlick 2002). This can
have detrimental impacts on populations of aquatic animals. Garrett (2001)
(as cited in Taylor 2006) reported that environmentally sensitive aquatic
species (including fish) were absent from OHV impacted sites on the
Nueces River in Texas, while unimpacted sites hosted numerous
environmentally sensitive species. The magnitude of the effect ATV use
has on water quality is influenced by trail features including trail curvature
and slope percentage.
ATV impacts on vegetation are not limited to removal of vegetative
soil cover. Reduced plant growth rates and populations of native species
coupled with increases in non-native and pioneering plant species are
directly related to ATV travel (Ouren et al. 2007). Destruction of
biological soil crusts in desert environments reduces nitrogen fixing
organisms that are the dominant source of nitrogen in and ecosystems
(Belnap 2002). This negatively affects plant performance because nitrogen
is the element most limiting plant growth in desert environments other than
water (Romney et al. 1978) .....
This review of the impact of ATV use on the physical environment
suggests that the impacts are not only universal and cumulative, but that
much of the damage associated with their operation can be induced by a
limited number of users over short time periods. Several researchers
suggest the cumulative impacts of A TV use exceed the lands ability to
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recover naturally, and that recovery to pre-disturbance conditions can take
generations. Additionally, the effects of A TV traffic on -site result in
environmental consequences off-site (Ouren et al. 2007), significantly
increasing the amount of land affected by localized ATV use (Brooks and
Lair 2005). For example, Meadows et al. (2008) asserts that while a
meadow may recover from a single pass in a relatively short time frame,
multiple passes often result in damage that natural processes are unable to
mitigate. This is supported by Lathrop and Rowlands (1983) who state
unequivocally that "restoration (of sites degraded by ORV' s) as a
management objective is for all practical purposes unattainable as long as
ORV activity occurs."
Other critical points on the impacts of ATV use on the physical
environment are:
The impacts of ATV use are cumulative, universal, and can be
achieved by low intensity traffic over short time periods.
A TV use effects soil and hydrologic function primarily through soil
compaction, increased soil strength, removal of the forest litter layer, and
destruction of soil crusts.
These changes in soil properties increase erosion and stream
sediment deposition and decrease plant productivity.
Seasonal restrictions on ATV use are necessary to limit the impact of
ATV use on soils, vegetation, and watersheds.
Restricting A TV use in areas of low road density is necessary to
reduce the spread of invasive species and protect the community structure
of native species.
A TV impacts on the environment are similar regardless of the type
of A TV. Recovery from the impacts of A TV use to pre-disturbance
conditions can take generations.
Restoring sites degraded by A TV's is unfeasible as long as ATV use
continues.
All-terrain vehicle travel can have a profound effect on all forms of
wildlife. Concerns about the effect of off-highway travel on wildlife
include: direct mortality (Bury et al. 1977; Bury et al. 2002), habitat
fragmentation (Ouren et al. 2007) and reductions in habitat patch size the
size of an unfragmented "patch" of land that supports at least one
population of wildlife (Reed et al. 1996; Forman et al. 2003), increases in
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the edge: interior habitat ratio (reductions in animal populations at the edge
of forest habitats referred to as the "edge effect"), and alteration of animal
behavior (Canfield et al. 1999; Rowland et al. 2000; Wisdom et al. 2004a).
Although direct mortality of ungulates resulting from collisions with
ATV' s is low, mortality of several species of reptiles have been
documented due to off-highway travel (Brooks 1999; Grant 2005) .
. . . Habitat fragmentation can disrupt wildlife movements between
and within habitats (Forman and Alexander 1998; Jackson and Griffin
1998), which can have negative consequences for endemic species and may
encourage non-native and invasive species propagation (Lovallo and
Anderson 1996; Jackson and Griffin 1998). . . . Habitat fragmentation can
reduce reproductive success among nesting birds and is believed to be the
main culprit in population reductions in some species of forest birds
· (Robinson et al. 1995).
Alteration of animal behavior resulting from disturbance (motorized
or non - motorized) ranges from immediate, short term temporary
displacement to permanent abandonment of favored feeding areas (Geist
1978). According to Trombulak and Frissel (2000), animal behavior is
modified through five mechanisms:
1. altered movement patterns
2. changes in home range
3. altered reproductive success
4. altered escape response
5. altered physiological state ...
The effect of ATV travel on elk, and more generally, the effect of
roads on elk, has been a focal point for researchers because of the
documented aversion elk have to roads open to motorized travel ( Cole et al.
1997; Rowland et al. 2000), and for their social, economic, and recreational
importance (Naylor et al. 2009) ....
Elk (especially economically and biologically significant bull elk)
preferentially use areas devoid of motorized activity.
Elk require large blocks of non-motorized habitat for security.
CP at 73-89.
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APPENDIXF
Letters and Declarations from Okanogan County Residents to the Board of County
Commissioners
On June 11, 2014, Pearl and Howard Cherrington sent the Board of County
Commissioners photographs taken near Twisp River Rd that showed damage caused by
off road vehicles. The speed limit in the location of damage was 40 m.p.h. The
Cherringtons alleged that operation of ATVs in unlawful areas was a continuous problem
and that, despite reporting the illegality to authorities, riders leave the area before police
arrive.
John Olson, of Winthrop, wrote to the Okanogan County Commissioner about a
new neighbor:
As we all know, ATVs have the capability of travelling across most
landscapes, hence the term "all terrain." Manufacturers actually discourage
ATV use on paved roads while extolling their abilities on all other surfaces.
I have personally witnessed ATV abuses on public lands in southern
Idaho where I lived and worked for 27years, but I will also describe to you
our recent experiences with illegal A TV use and impacts in Okanogan
County.
New neighbors recently moved into a rental house along the Methow
River near our home and property. They are surrounded by private
property and roads (Wolf Creek Road) closed to ATV use. In May of this
year, we found them riding their ATVs on our property and damaging
vegetation within the river corridor. They subsequently used a private road
to access Wolf Creek Road and rode their A TVs on that road to a location
unknown to us. I reported that incident to the Okanogan County Sheriffs
Department and was told that they did not know if ATV use on Wolf Creek
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Road was legal or not. They said they would check with the County
Commissioners, but I never heard from them again.
After this episode, our new neighbors then used their A TVs to travel
on the Methow Valley Sport Trails Association (MYSTA) ski trail. This
trail is closed to motorized use and, again, is located on private property
where owners have granted an easement to MVSTA for non-motorized use.
A particularly galling aspect of these incidents is the attitude of these
A TV users to disregard any private property rights and just charge ahead
with travelling over any terrain accessible to them. They never even had the
decency to ask permission before cruising the private properties on their
machines.
This is just one example of the impacts that are reasonably certain to
occur with expanded ATV use in Okanogan County. Any reasonable
person would recognize that such impacts will occur and need to be
considered in the environmental evaluation of such expanded A TV use.
The infringement on property rights, the impact to natural resources, and
the limited ability of law enforcement personnel to respond to violations are
all legitimate reasons to more fully evaluate the impacts of expanded ATV
use in Okanogan County
CP at 157.
Lawrence David Hooper, a sixty-five-year-old resident of Twisp, submitted a
declaration. Hooper averred:
On Saturday, May 25th, 2013, my wife, Erika Stephens, and my
stepdaughter, Rachel, returned from dinner in Winthrop at approximately
7: 15 pm. Rachel and I went down into the house and Erika stayed outside
to feed the chickens. Five minutes later, Erika ran into the house saying
that there were two men on an A TV who had driven right up onto our lawn,
who were demanding to recover another ATV. She asked them to leave,
having no idea what they were talking about, and they responded by calling
her a "bitch." I called 911 and went up to see what was going on.
I was met by two men (last name Volvotny, ifl remember correctly),
one sitting on his ATV, glowering, and, the other, a younger man,
approached me, and told me that he and his father, (referring to the man on
the A TV) were in the Coast Guard, and he asked, "You do respect the
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Military don't you?" I responded that I did not understand how the issue of
my respecting or not respecting the military had any bearing on their
trespassing on our land. Both men appeared to be drunk. While this is
going on, I am simultaneously talking with the dispatcher from the
Okanogan Sheriffs Department. She encouraged me to ask the two men to
leave our property and wait for the Sherriff at the bottom of our driveway.
This I did repeatedly, only to be met with hostile glares. At one point in
this exchange, when Erika had come back up to our lawn, the father said,
"We're in the Coast Guard. If you don't help us, we won't help you when
you need the Coast Guard." Finally the younger one said, "We just want to
retrieve our other ATV," and he pointed up the hill. "I mean, accidents
happen!" he said. There, about 100 feet from one of our buildings, was a
ruined ATV. It was explained to me that they had lost control of it on the
top of the hill, which is also our property. The father claimed he had seen
other ATVs on my land in the past (not to my knowledge, or to the
knowledge of my neighbors who can see the side of my property not visible
from our house). At this point the father and son, hoping to find a way to
retrieve their wrecked ATV drove out my driveway, went back upon the
hillside in back of our buildings, supposedly to survey away of approaching
the wrecked ATV, in spite ofmy having explained to them that by doing so
they would still be trespassing. At this time their two friends showed up
below my house with a small flatbed trailer. And Deputy Ottis Buzzard
and an officer from Twisp approached them. The father and the son seeing
the officers went down the back side of my hill and drove down Balky Hill
to the flatbed trailer and their friends, who were the actual owners of the
wrecked, brand new ATV.
Deputy Buzzard came up to our home and we rain him through the
details of our encounter. He explained to us that we were legally obligated
to let them take their ruined vehicle away. The two young men who o~ned
the vehicle approached us and I explained very specifically how to
approach the ATV to be retrieved. . . . I was hoping to minimize any
damage to the land and vegetation by their 'having to drag the wrecked
ATV.
Erika and Rachel and I went back into the house and Deputy
Buzzard left. It was dark when they finally drove up the hill with the
Volvotny's ATV, but instead of following my instruction drove up within
sixty feet of the house and dragged the wrecked vehicle down the hill, not
on the fire break but however they found most convenient.
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I was encouraged to contact Stephen King of the Conconully A TV
club. I was told that he was very vocal about the need for ATVers to police
themselves and act responsibly. I do not recall if I e-mail[ed] him or called
and left a phone message. I received no response. A few days later my
wife called him, and left a message; she never heard from him either.
I suspect that the vast majority of ATVers are responsible and
considerate people. We don't need to worry about them. We need to worry
and clearly have reason to worry about those who are not considerate or
responsible. ATVs are meant for off road travel. There will be damage to
private property, there will be trespasses, there will be accidents that result
in injuries, and possibly deaths. These all need to be given careful and
clearheaded consideration when decisions are made about opening up roads
to the use of ATVs.
CP at 158-62. Hooper inserted a photograph of the damage to his land from dragging the
ATV. CP at 61.
Philip Millam also proffered a declaration to the Board of County Commissioners.
Millam declared:
I am a full time resident of the Meth ow Valley residing at ...
Winthrop. I live close to lands managed by the Washington State
Department of Fish and Wildlife (WDFW).
In the summer of 2008 I was working on my former property on
Lonesome Grouse Road near Winthrop when I heard noise from ATVs
coming from WDFW land. The land is part of the Methow Wildlife Area,
known as Little Cub Creek. The land lies between the Cub Creek Road and
the Rendezvous Road. The land includes both riparian and shrub steppe. I
walked to a vantage point, and saw four ATVs on WDFW land riding
uphill toward my land. On one occasion they stopped and appeared to be
cutting a wire fence separating the WDFW land from private land. As they
approached my land, I fired two black powder blanks in the air from my 12
gauge over and under shotgun. This appeared to get their attention. At no
time did I point my gun in their immediate direction or threaten them. The
A TVs departed my land forthwith, heading back in the direction from
which they came.
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In September or October of 2013 I was returning from the gun range
near Perrygin State Park when I observed two ATVs riding on grassy lands
belonging to WDFW,just off the Upper Bear Creek Road. They were
doing "doughnuts" on the field, and leaving deep tire impressions. I
stopped my truck, and politely informed the young riders that they were
riding illegally on public land. Their reply was that they had heard that" ...
it was OK to ride anywhere in Okanogan County." I assured them that that
was not the case. They asked where they could ride legally, and I said I did
not know, but that riding off-road on public lands was not legal. I then left
the area, but as I looked back the ATVs continued to ride on WDFW lands.
It is my belief, based on my experience with ATVs riding illegally
on public land, that opening additional county roads to ATVs will only
increase illegal riding and increase confusion among those ATV riders who
would otherwise choose to ride legally.
CP at 169-70.
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APPENDIXG
Letter from A TV Safety and Health Care Professionals to Board of Commissioners
As individuals and organizations dedicated to reducing deaths and
injuries caused by All-Terrain Vehicles (ATVs), we urge you to oppose
efforts to allow recreational riding of ATVs on county roads.
The proposed ordinance would open approximately 597 miles of
county roads with a speed limit of 35 mph or less to ATVs. This expansion
of ATV access to roads is contrary to public safety and puts the operator
and others at risk of severe injury or death.
ATVs should not be driven on public roads because driving ATVs
on public roads is more dangerous than operating them off-road, ATVs are
not designed for roadway use, and A TV manufacturers have policy
statements strongly urging consumers not to operate their vehicles on
public roads.
ATV roadway crashes account for over 60% of deaths and over 30%
of serious injuries. Roadway crashes are more likely to involve multiple
fatalities, carrying passengers, collisions and head injuries. Victims in
roadway crashes were less likely to be wearing protective gear such as
helmets and were more likely to be carrying passengers.
Most importantly, A TVs are not designed to operate on paved or
public roads. An ATVs narrow wheelbase and high clearance are designed
for riding in pastures, fields and wooded areas. The high center of gravity
increases the risk of rollovers, particularly at roadway speeds. In addition,
ATV's knobby, low- pressure tires allow for operation on a variety of
surfaces, but they do not grip roadway surfaces well (paved or unpaved).
As tire - surface interaction deteriorates with increasing speed, the operator
can lose control of the vehicle, endangering not only the ATV rider but also
occupants of other vehicles, pedestrians, and bicyclists. In addition, many
A TVs lack a rear differential which can compound on-road handling
challenges. The lack of a rear differential results in the wheels on both the
inside and outside of a tum rotating at the same speed even though the
wheels on the outside of the tum cover more distance. This design problem
is mitigated on off-road surfaces like dirt and grass but makes the machine
much more difficult to control on-road.
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... In addition, the mandatory rules for A TVs require that all ATVs
have a label indicating that ATVs should not be operated on paved roads or
on public roads ....
We urge you to oppose this expansion of ATV use on public roads
because it places the public including ATV operators, pedestrians,
bicyclists, and all motor vehicle drivers and their passengers at unnecessary
risk.
Rachel Weintraub, Legislative Director and Senior Counsel
Consumer Federation of America
Sue DeLoretto-Rabe, Co-Founder Concerned Families for ATV
Safety
Gerene Denning, PhD Emergency Medicine University of Iowa,
Iowa ATV Injury Prevention Task Force
Benjamin Hoffman MD FAAP Professor of Pediatrics Medical
Director, Doembecher, Children's Safety Center Portland, OR
Katie Kearney Concerned Families for ATV safety Member
Massachusetts· Safety Advocate
Mary Aitken, MD MPH Director, Injury Prevention Center at
Arkansas Children's Hospital
Jamie Schaefer-Wilson, Executive Director The Safety Institute
Michael Best, Policy Advocate Consumer Federation of America
Carolyn Anderson, Co-Founder Concerned Families for ATV Safety
Charles Jennissen, MD Emergency Medicine University of Iowa,
Iowa ATV Injury Prevention Task Force
Ben Kelley, Director, Injury Control Policy The Trauma Foundation
San Francisco General Hospital San Francisco, CA
Robin D. Schier, DNP, APRN, CPNP AC/PC Pediatric Emergency
Medicine Texas Children's Hospital Houston, Texas
Gary A. Smith, MD, DrPH President, Child Injury Prevention
Alliance
Gordon S. Smith, MD (MB.ChB, Otago), MPH Professor
Department of Epidemiology & Public Health, University of Maryland
School of Medicine Charles "McC." Mathias National Study Center for
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No. 33194-6-111
Conservation Nw. v. Okanogan County
Appendix
Trauma and EMS Shock, Trauma and Anesthesiology Research. -
Organized Research Center.
CP at 176-78.
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3 3 194-6-III
KORSMO, J. (dissenting)-There is a total disconnection between the county
ordinance and the appellants' claim of harm. Okanogan County does not have to account
for the possibility that some wheeled all-terrain vehicle (WATV) riders may comply with
the new law in order to disobey other laws. The county gave that pitifully weak
argument more than sufficient consideration and, unsurprisingly, rejected it. We should
be affirming that determination. 1 The county properly issued its determination of non-
significance (DNS).
Following the lead of state law, the county ordinance opens up thousands of miles
of county roadway to use by licensed and inspected WATVs that are required to have
numerous vehicle safety features. LA ws OF 2013, 2d Spec. Sess., ch. 23, § 7 (Engrossed
Substitute H.B. (ESHB) 1632). The WATVs are a subclass of the off-road vehicle
(ORV) scourge that appellants seek to restrict. RCW 46.09.360(2). The State
Environmental Policy Act, ch. 43 .21 C RCW, challenge here, however, is not a winning
argument because this ordinance, and the statute on which it is based, neither address nor
contribute to the problems caused by off-road operation of any vehicle. \
1
With the exception of the merits of the State Environmental Policy Act, ch.
43.21C RCW, claim, I concur in the result of the majority's other rulings.
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No. 33194-6-III
l Conservation Nw. v. Okanogan County (Dissent)
The only changes required by the new ordinance will be in the printing and
posting of the new road ordinance and, perhaps, a few new road signs. No new asphalt or
gravel will be poured. No dirt will be paved and no trees will be felled. A certain
subclass of ORVs will be permitted lawfully to drive on existing roadways alongside
more traditional vehicles. Those are the only changes wrought by the ordinance. The
county understandably looked at these minimal changes to the existing order, considered
those changes in light of the environmental checklist, and reasonably determined that no
significant environmental concerns were created by letting WATVs share the county
roads with cars and trucks. Many of the commentators properly focused their challenges
to the ordinance due to its opening of the existing roadways to W ATV travel. The
Confederated Tribes of the Colville Reservation pointed out that county roadways within
its jurisdiction could not be opened to WATV travel. The county responded by repealing
its first ordinance and removing the roadways on the tribal lands from the next iteration.
The towns of Twisp and Winthrop objected to the potential for increased emergency
services resulting from vehicle-WA TV collisions. Those complaints did not fare as well.
Nonetheless, they were considered.
However, appellants (and the majority) fault the county for not considering in
more detail actions that the ordinance neither authorizes nor pretends to authorize. The
ordinance does not authorize WATVs (or other vehicles) to leave the roadway and travel
in ditches or other off-road locations. It does not encourage WATVs to leave the
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No. 33194-6-III
Conservation Nw. v. Okanogan County (Dissent)
roadway to desecrate sensitive lands or scare farmer McDonald's cow. It no more
facilitates crimes against the environment than granting a building permit for a new bank
facilitates bank robberies. There will always be people who violate the laws, but we do
not measure the environmental impacts of a new regulation by looking to the conduct of
those who violate other laws.
In a more perfect world ORVs would not have been invented. In a more
enlightened jurisdiction, the pestilential devices would be banned. However, we live in
neither locale. The policy of this state is to encourage responsible use of our beautiful
environment by all comers in differing manners, even though not all uses are compatible.
To that end we permit ORVs and attempt to manage them by allowing them to be used in
places that do not cause significant environmental damage. ESHB 1632 is the most
recent compromise related to ORV usage. It encourages use by licensed operators of
road-worthy WATVs on existing roads, at the discretion of local authorities, if those
vehicles have passed an inspection and obtained a vehicle tag. By providing additional
legal and safe places to drive WATVs, the bill diverts them from the off-road areas and,
hopefully, lessens improper use of the devices in more sensitive areas. By bringing the
local ordinance into conformity with state law, the county acted consistent with the policy
ofESHB 1632 to end the varying and confusing laws governing use ofWATVs. LAWS
OF 2013, 2d Spec. Sess., ch. 23, § 1.
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No. 33194-6-III
Conservation Nw. v. Okanogan County (Dissent)
Not satisfied with the political compromise reflected in ESHB 1632, the appellants
maintain a guerilla war against irresponsible ORV operators by attacking their innocent
brethren, the responsible W ATV owners who are willing to comply with state law in
order to lawfully use existing roadways. However, evidence of irresponsible off-road use
of ORV s is irrelevant to assessing the environmental impact of allowing regulated
WATVs to use existing roadways alongside other responsible, licensed vehicle
operators. 2 It is not even an apples and oranges comparison. The county understandably
noted the lack of relevance of the appellants' argument to the ordinance at hand. It
properly focused on the impact of lawful uses permitted by its ordinance and discounted
the impact of unlawful behavior not regulated by the ordinance. It properly issued the
DNS.
2
The ludicrous premise of appellants' argument is that WATVs will go to the
expense of making their vehicles road-worthy, undergo inspection, obtain both an
operator's license and a vehicle license that identifies the operator, and then use their
ability to share the road legally with cars in order to facilitate illegal off-road activities
even while (apparently) obeying current strictures against using ORVs on county roads.
This premise also ignores the fact that these ORV scofflaws currently could lawfully
carry their ORVs on trailers on the county roads to facilitate the feared off-road damage.
Appellants offer no evidence that the road usage changes will bring about such
behavioral changes. The county gave the argument much more thoughtful consideration
than it needed to give.
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No. 33194-6-III
Conservation Nw. v. Okanogan County (Dissent)
There are many good policy reasons not to have automobiles and WATVs share
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f the same road. 3 Those concerns were heard, but the county decided to follow the state's
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lead and permit the WATVs on its roads. However, the county should not have to
consider the environmental costs of behavior unrelated to its road usage ordinance. Only
the environmental costs imposed by adding WA TVs to the traffic mix on county roads
were relevant. What those riders might do in violation of other laws, whether by riding
off-road or conducting a drive-by shooting, was irrelevant. This was a simple calculus
problem of measuring the change brought about by the new ordinance and did not require
the county to account for the potential sins of all ORV users. We would not countenance
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the police profiling ORV users in such a manner and we should not permit appellants to
do it here.
The county did its job and properly issued the DNS. Because the majority
reverses that decision on an irrelevant basis, I dissent.
3
When a road has a speed limit of 35 m.p.h. or less, it typically means that either
traffic congestion or road conditions requires the lower limit. Mixing in the WATVs on
these types of roads, even where the speeds of a WATV would not impede other traffic,
will only worsen the problem at hand.
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