Hama Hama Co. v. Shorelines Hearings Board

Finley, J.

This is a .statutory interpretation case. It involves provisions of the Shoreline Management Act of 1971 (SMA) relating to standing and time limits for appellate review of the granting of a substantial development permit to Hama Hama Co. by Mason County. The granting of the permit was appealed to the Shorelines Hearings Board by the Department of Ecology and the Attorney General. The board denied motions made by Hama Hama Co. to dismiss the appeal. Thereafter, the Superior Court for Thurston County issued a writ of certiorari and, subsequently, entered an order directing the board to dismiss the appeal because (1) the Attorney General lacked standing to appeal, and (2) the Department of Ecology’s appeal was untimely. The Attorney General and the Department of Ecology-have appealed.

The pertinent facts are as follows: On October 15, 1973,; Mason County granted a substantial development permit to the Hama Hama Co. to construct a pier on Hood Canal. The Department of Ecology received a copy of the permit on October 19, 1973. In response, the Department of Ecology and the Attorney General filed a “Request for Review” with the Shorelines Hearings Board (hereinafter SHB) on November 29, 1973. A copy of this request was in the possession of Mason County officials on-December 3, 1973. At the time of issuance of the substantial development permit, Mason County had not yet adopted a local master program, which is to serve as a guideline for the,issuance of such permits.

Several assignments of error and counterarguments have been made, but they involve essentially three issues: (1) whether the Attorney General is a party to the appeal to this court; (2) whether the Attorney General or only the Department of Ecology has standing to appeal to the Shorelines' Hearings Board from a’ decision of a local authority granting a substantial development permit, and what is the time limit as to the Department of Ecology and/or the Attorney General for perfecting such an appeal; and (3). what is the commencement date of the period for appealing to the SHB?

I

Parties to This Appeal

Respondent Hama Hama argues that the Attorney General is not a party to this appeal because he did not file a notice of appeal as required by ROA 1-33 (2) and CAROA 33(2). Hama Hama contends that only the Department of Ecology filed a notice of appeal and that it was never amended.to .include the Attorney General. We do not so construe the notice of appeal. It is true that in the body of the notice of appeal, reference is made only to the Department of Ecology appealing from the decision of the Superior, Court,-However, in the caption in the notice of appeal &nd- in; appellants’ opening brief - to this -court,: both the Department of Ecology and the Attorney General are referred to as intervenors. Moreover, the signature block on the notice of appeal recited the names of the Attorney General and two assistant attorneys general. One of these assistants — the senior assistant attorney general — signed the notice of appeal on behalf of the intervenors which, of course, includes the Attorney General. While this particular notice of appeal is perhaps not a model of clarity, we think that it was sufficient to notify Hama Hama that both the Department of Ecology and the Attorney General were appealing the decision of the Superior Court. Thus, we hoid that the Attorney General is properly a party to this appeal.

II

Standing and Time Limit To Appeal to SHB

The SMA inexplicably contains two distinct and conflicting provisions with respect to appeals from a decision of a local authority which grants a substantial development permit. On the one hand, RCW 90.58.140(2) (a)¹ appears to grant only the Department of Ecology standing to take such an appeal to the SHB and the appeal must be taken within 30 days. On the other hand, RCW 90.58.180 (2)² grants both the Department of Ecology and the Attorney General standing to appeal to the SHB, and the time limit is 45 days from the filing of the final order granting the substantial development permit. Thus, we are squarely faced with the difficult task of construing quite ambiguous and conflicting statutory language. In this regard, our paramount duty is to ascertain and give expression to the intent of the legislature.

Respondent Hama Hama argues that these statutory provisions are reconcilable because RCW 90.58.140(2) was intended to apply to permits issued prior to adoption of a local master program, whereas RCW 90.58.180(2) was intended to apply to appeals of permits issued subsequent to adoption of a local master program. In short, the construction offered by Hama Hama is that prior to adoption of a local master program, only the Department of Ecology has standing to appeal and the time limit is 30 days; but, subsequent to the adoption of a local master program, both the Department of Ecology and the Attorney General have standing to appeal the issuance of a substantial development permit and the time limit is 45 days. In support of this theory, Hama Hama cites the rule that each clause and sentence of a statute should be given effect if possible. It is then argued that only the construction posited by Hama Hama is compatible with this rule because if RCW 90.58.180(2) is held applicable to appeals of permits issued prior to. adoption of a local master program — as :the State argues — then RCW 90.58.140,(2) (a). will be rendered nugatory.

However, after examining the statute as a whole, we have concluded that the interpretation that most likely reflects . the, actual intent of the legislature is that RCW 90.58.180 should control the appeal of the issuance of a substantial- development permit, whether, the permit: was issued prior or subsequent - to adoption of a local-master-program. Thus, both the Department of Ecology and the Attorney General have standing, to appeal the issuance of such a permit, and the. tipie limit for perfecting the appeal is 45 days, from the -filing of the order granting the permit: Several factors have convinced us of the propriety of this interpretation.

.. First, respondent’s thesis that effect should be given to all .parts-of'.a. statute is -simply one. of. many, sometimes useful, but .not. inevitably controlling .“extrinsic .aids’-’, or principles of statutory interpretation. Oftentimes, as in this case,* this principle of statutory construction operates inconsistently with itself, and applying it positively but. blindly actually produces inconsistent results. .Thus, if respondent’s thesis is accepted at face value and without considering ail, implications, RCW 90.58.140 (2) (a) would be controlling, regarding .appeals of permits issued prior to adoption .of. a master plan. But, it is also, true, and inconsistently so, that, respondent’s thesis would give no éffect to RCW 90.58.180 (2) regarding appeals as to. permits. issued prior to the adoption of a'master plan. Thus, it becomes obvious that respondent’s argument produces inconsistent results and loses its. superficial lustré because, if-.applied blindly, it would also render certain statutory language nugatory in-this case.

Second,- the 'Shoreline. Management Act óf 1971 itself mandates, that it be “liberally .construed to give full effect-to-the objectives-and purposes:for which it was en-.acted.” (Italics ours.) RCW 90.58.900.The overriding purpose for which the SMA was enacted wás to preserve the natural resources of the state and to regulate construction upon the shorelines in accordance with the public interest. See RCW 90.58.010-.020. It seems well-nigh irrefutable that these goals and purposes can be effectuated best by giving an expansive rather than a restrictive reading to the appeals provisions of the SMA. If there is inadequate time to review the issuance of a permit and to file an appeal, the policies of the SMA might very well be thwarted. Thus, we believe that the 45-day period to appeal specified in RCW 90.58.180(2) should control over the 30-day appeal period in RCW 90.58.140(2) (a). Similarly, it seems manifest that the policies of the SMA can be effectuated best if the Attorney General — and not solely the Department of Ecology— has standing to appeal. After all, the Attorney General is entrusted with a responsibility of larger dimension than is the Department of Ecology. Moreover, the Attorney General is the public counsel for the State, and since the office is elective, it is the most responsive to the electorate. Thus, by virtue of the mandate of the SMA that it be liberally interpreted to effectuate its policies, we think it most likely that the legislature intended for RCW 90.58.180(2) to accord the Attorney General standing to appeal the issuance of a substantial development permit whether before or after adoption of a master program.

Third, this interpretation is supported by the familiar rule of construction that where there is a conflict between one statutory provision which deals with a subject in a general way and another provision which deals with the same subject in a specific manner, the latter will prevail. Knowles v. Holly, 82 Wn.2d 694, 513 P.2d 18 (1973); State ex rel. Phillips v. State Liquor Control Bd., 59 Wn.2d 565, 369 P.2d 844 (1962). Even a perfunctory analysis of RCW 90.58.140 clearly discloses that it essentially deals with the issuance of permits. The grant of standing to the Department of Ecology and the 30-day time limit to appeal is only incidentally mentioned. In contrast, RCW 90.58.180 is essentially dedicated to prescribing the appropriate procedures for appeals. Thus, RCW 90.58.180 specifically deals with appeals, and the provisions therein that grant the Attorney General standing to appeal and that allow 45 days to file the appeal should control over any conflicting provisions.

Finally, when a statute is ambiguous — as in the instant case — there is the well known rule of statutory interpretation that the construction placed upon a statute by an administrative agency charged with its administration and enforcement, while not absolutely controlling upon the courts, should be given great weight in determining legislative intent. Bradley v. Department of Labor & Indus., 52 Wn.2d 780, 329 P.2d 196 (1958); White v. State, 49 Wn.2d 716, 306 P.2d 230 (1957). The primary foundation and rationale for this rule is that considerable judicial deference should be accorded to the special expertise of administrative agencies. Such expertise is often a valuable aid in interpreting and applying an ambiguous statute in harmony with the policies and goals the legislature sought to achieve by its enactment. At times, administrative interpretation of a statute may approach “lawmaking,” but we have heretofore recognized that it is an appropriate function for administrative agencies to “fill in the gaps” where necessary to the effectuation of a general statutory scheme. See Barry & Barry, Inc. v. Department of Motor Vehicles, 81 Wn.2d 155, 500 P.2d 540 (1972). It is likewise valid for an administrative agency to “fill in the gaps” via statutory construction — as long as the agency does not purport to “amend” the statute.

In the instant case, the Department of Ecology has interpreted the SMA as providing for a 45-day period in which to file an appeal, whether the permit is granted before or after adoption of a master program. WAC 173-14-120. The SHB has similarly interpreted the SMA. WAC 461-08-070(2). We perceive no compelling considerations indicating this construction is erroneous. In particular, we think it cannot be said convincingly that these agencies have arrogantly overstepped their proper functions by purporting to “amend” the SMA. On the contrary, these agencies have simply interpreted the conflicting provisions of the SMA in harmony with the policy objectives to be effectuated by this legislation. Accordingly, we are convinced that we should exercise reasonable judicial deference and adhere to the interpretation of the SMA rendered by both the Department of Ecology and the SHB.

The alternative is to ignore the interpretation of the SMA by the SHB and the Department of Ecology, and using different but not divine or mandatory rules of interpretation to substitute our judicial notions about the statute for those of SHB and Department of Ecology.

The dissent apparently rejects the applicability of the above rules of construction in this case and prefers to focus solely upon the time sequences of the various drafts of the legislation. The last draft is interpreted in view of the language contained in prior drafts, with the result that the greatest and, indeed, absolute or conclusive weight is given to the last draft and any additions contained therein.

The unstated assumption of such a sequential focus is that each subsequent draft is consciously, deliberately, and meticulously drafted in view of all of the language in each preceding draft. But as a very pragmatic, starkly realistic fact of life, the time constraints and pressures inherent in the legislative process may operate to prevent the legislature from functioning in such a deliberate and conscious fashion. Numerous legal scholars have recognized this and have, therefore, cautioned against over-emphasis and over-reliance upon the fact or happenstance of successive drafts as an absolute determinant, rule, or tool for interpreting a statute. See 2A Sutherland, Statutory Construction § 48.18 (4th ed. C. Sands 1973). This caveat has been stated most eloquently in Radin, Statutory Construction, 43 Harv. L. Rev. 863, 873 (1930):

Successive drafts of a statute are not stages in its development. They are separate things of which we can only say that they followed each other in a definite sequence, and that one was not the other. But that fact gives us little information about the final form, since we never really know why one gave way to any other. There were doubtless many reasons, some of them likely enough to be personal, arbitrary, and capricious — the fondness of the draftsman for a special locution, his repugnance to another, a misconception of the associations of some word, a chance combination, and often enough a mere inadvertence. That is not to say that some conclusions, principally negative ones, can not be drawn from the legislative history of a statute. But in the end, all that we know is that the final form displaced the others, and that fact is not disputed.

(Italics ours.) Many cases have similarly expressed a disapproval of interpreting a statute by relying completely upon the sequence of its original drafts. See, e.g., Trailmobile Co. v. Whirls, 331 U.S. 40, 91 L. Ed. 1328, 67 S. Ct. 982 (1947); Andrews v. Hovey, 124 U.S. 694, 31 L. Ed. 557, 8 S. Ct. 676 (1888). Cf. Vanceburg v. Plummer, 275 Ky. 713, 122 S.W.2d 772 (1938).

This is not to imply that the sequential approach is per se an improper method of construction. On the contrary, it may serve as a useful tool under the appropriate circumstances, but even then its value should not be considered conclusive. In the instant case, the sequential approach is particularly of dubious value because the assumption on which the validity of the approach must rest — total legislative awareness of prior drafts — is negated by the fact that the SMA is replete with inconsistencies, errors, and apparent oversights. For instance, Laws of 1971, 1st Ex. Sess., ch. 286, § 2 (RCW 90.58.020) contained an inexplicable reference to section 11 (RCW 90.58.110). The apparent intent was to refer to section 10 (RCW 90.58.100). This oversight was subsequently corrected by the code reviser. Second, RCW 90.58.140(6) contains a reference to RCW 90.58.160(1) which, unfortunately, does not exist. Finally, RCW 90.58.180(1) refers to “rescinding a permit pursuant to RCW 90.58.150.” However, RCW 90.58.150 regulates timber cutting and not rescission of permits. Rescission of permits is regulated by RCW 90.58.140 (7).

These inconsistencies and oversights convince us that we should not place great faith in the assumption necessary to the validity of the dissent’s sequential focus — that subsequent drafts of the SMA were made with complete understanding and total awareness of the subleties of prior drafts. At best, the addition contained in the last draft can be characterized only as inconsistent surplusage which need not be accorded any overriding significance.

The dissent’s approach might have greater validity if legislative history disclosed floor comments or committee notes explaining the changes in the drafts, but even this as an extrinsic aid is not absolute. In any event, in the absence of any explanation for the changes, it is not a proper judicial function for us to speculate and attribute controlling meaning to an unexplained change that is just as likely to have occurred through happenstance. Under the circumstances surrounding the drafting and enactment of the SMA, we are convinced that we are on much safer and more reliable ground if we give greater credence to the administrative interpretation of this rather complex statute.

In sum, we hold that RCW 90.58.180(2) controls the disposition of this case. Both the Department of Ecology and the Attorney General have standing to appeal the issuance of a substantial development permit to the SHB with the time limit being 45 days from the filing of the final order granting the permit. If this holding rests upon any misconception of the legislative intent, the legislature, of course, may alter the result by appropriate action.

Ill

Commencement Date Of Appeal

We have held that RCW 90.58.180 (2) governs this appeal from the issuance of a substantial development permit; this provision requires the request for review to be filed “within forty-five days from the date the final order was filed as provided in subsection (5) of RCW 90.58.140.” (Italics ours.) Thus, the commencement date of the 45-day period is at the time the final order granting the permit is “filed.” It is thus necessary to determine what constitutes the “filing” of the final order that granted the permit.

Respondent Hama Hama argues that the final order should be deemed “filed” on the date shown by the post office cancellation mark stamped on the envelope. From the evidence, it could be inferred that the final order or a copy thereof was mailed on October 18, 1973, or earlier. The appeal to the SHB was finally perfected on December 3, 1973. The time span from October 18 to December 3 is 46 days, and hence, Hama Hama argues that the appeal was untimely even if RCW 90.58.180(2) governs the disposition of this case. Reliance is placed upon RCW 1.12.070, which provides in part:

1.12.070 Reports, claims, tax returns, remittances, etc. —Filing. Except as otherwise specifically provided by law hereafter:

(1) Any report, claim, tax return, statement or other document required to be filed with, or any payment made to the state or to any political subdivision thereof, which is (a) transmitted through the United States mail, shall be deemed filed and received by the state or political subdivision on the date shown by the post office cancellation mark stamped upon the envelope or other appropriate wrapper containing it; or (b) mailed but not received by the state or political subdivision, or where received and the cancellation mark is illegible, erroneous, or omitted, shall be deemed filed and received on the date it was mailed if the sender establishes by competent evidence that the report, claim, tax return, statement, remittance, or other document was deposited in the United States mail on or before the date due for filing; and in cases of such nonreceipt of a report, tax return, statement, remittance, or other document required by law to be filed, the sender files with the state or political subdivision a duplicate within ten days after written notification is given to the sender by the state or political subdivision of its nonreceipt of such report, tax return, statement, remittance, or other document.

(Italics ours.)

However, the inapplicability of this statute to the SMA is most aptly demonstrated by the egregious results that its application could cause. If the final order were mailed but lost while in transit, then the Attorney General and/or the Department of Ecology could be totally deprived of notice of the granting of the substantial development permit. At the least, such notice to these state agencies could be prejudicially delayed if the final order were temporarily lost while in transit. Thus, if the 45-day period to file an appeal begins to run on the date the final order granting the permit is mailed or on the date shown by the cancellation mark stamped on the envelope, then the 45-day time limit in which to seek review could be substantially or totally eliminated if the final order were mailed but lost while in transit. We do not believe that the legislature intended RCW 1.12.070 to lead to such an anomalous result. Rather, the statute was intended to apply to a rather narrow category of documents required by law to be filed, e.g., tax returns. The underlying purpose of RCW 1.12.070 is to prevent penalties from accruing to citizens who rely on the mails in filing documents that are required by law to be filed and which the government periodically expects to receive. See Governor’s Item Veto, Laws of 1967, ch. 222. The SMA prescribes no time limits for filing the final order that grants the substantial development permit nor does it prescribe penalties for failure to promptly file the final order. Thus, the underlying purpose of RCW 1.12.070 does not call for its application to the SMA, and it will not be so applied.

Rather, the general rule that a document is “filed” when it is actually received by the proper authority should be applied in the instant case. Mackey v. Champlin, 68 Wn.2d 398, 413 P.2d 340 (1966). Thus, the 45-day period commences on the date the final order granting the permit is received. In this case, receipt was on October 19 and the appeal was perfected on December 3. Since this constitutes a period of 45 days, the appeal was timely.

In sum, we hold (1) that the Attorney General is a proper party to this appeal; (2) that the Attorney General as well as the Department of Ecology has standing to appeal to the SHB from the granting of a substantial development permit, whether the permit was issued prior or subsequent to the adoption of a local master program; (3) that the time limit for such an appeal by the Attorney General and/or the Department of Ecology is 45 days from the filing of the final order granting the permit, whether the permit was issued prior or subsequent to the adoption of a local master program; and (4) that the commencement date of the 45-day appeal period is when the final order or a copy thereof is received by the proper authorities.

For the foregoing reasons, the decision of the Superior Court should be reversed and the case remanded to the Superior Court for Thurston County for further proceedings consistent herewith. It is so ordered.

Stafford, C.J., and Rosellini, Hunter, Hamilton, Wright, and Brachtenbach, JJ., concur.

1 “90.58.140 Development permits — Grounds for granting — Departmental appeal on issuance — Administration by local government, conditions — Rescission—When permits not required — Approval when permit for variance or conditional use. (1) No development shall be undertaken on the shorelines of the state except those which are consistent with the policy of this chapter and, after adoption or approval, as appropriate, the applicable guidelines, regulations or master program.

“(2) No substantial development shall be undertaken on shorelines of the state without first obtaining a permit from the government entity having administrative jurisdiction under this chapter.

“A permit shall be granted:

“(a) From June 1, 1971 until such time as an applicable master program has become effective, only when the development proposed is consistent with: (i) The policy of RCW 90.58.020; and (ii) after their adoption, the guidelines and regulations of the department; and (iii) so far as can be ascertained, the master program being developed for the area. In the event the department is of the opinion that any permit granted under this subsection is inconsistent with the policy declared in RCW 90.58.020 or is otherwise not authorized by this section, the department may appeal the issuance of such permit within thirty days to the hearings board upon written notice to the local government' and the permittee;” (Italics ours.)

2 “90.58.180 Appeals from granting, denying or rescinding permits, procedure — Board to act, when — Local government appeals to board— Grounds for declaring master program invalid — Appeals to court, procedure.

“(2) The department or the attorney general may obtain review of any final order granting a permit, or granting or denying an. application for a permit issued by a local government by filing a written request with the shorelines appeals board and the appropriate local government within forty-five days from the date the final order was filed as provided in subsection (5) of RCW 90.58.140.” (Italics ours.)