Makah Indian Tribe, V. Commissioner Of Public Lands Hilary Franz

Filed
Washington State
Court of Appeals
Division Two
May 25, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
MAKAH INDIAN TRIBE, No. 54945-0-II
Appellant
v.
COMMISSIONER OF PUBLIC LAND UNPUBLISHED OPINION
HILARY FRANZ (in her official capacity),
the WASHINGTON STATE DEPTMENT OF
NATURAL RESOURCES, and the
WASHINGTON STATE BOARD OF
NATURAL RESOURCES,
Respondents.
SUTTON, J. — The Makah Indian Tribe appeals the superior court’s order denying a
constitutional writ to block a land exchange proposed by the Department of Natural Resources
(DNR) and approved by the Board of Natural Resources.1 The land exchange, called the
“Peninsula Exchange,” would exchange state forestlands with forestlands owned by a private
timber company, Merrill & Ring. The Peninsula Exchange parcels border tribal lands of a number
of Indian tribes, including the Makah, the Hoh, the Quileute, and the Quinault. The Makah argue
that DNR violated (1) the State Environmental Policy Act (SEPA)2 by failing to conduct a SEPA
1
The Respondents are the Commissioner of Public Lands, Hillary Franz (in her official capacity);
the Washington State DNR, and the Board. Because the Makah’s allegations relate primarily to
DNR’s and the Board’s decisions regarding the land exchange, we refer to respondents collectively
as “DNR” except where indicated otherwise.
2
Ch. 43.21C RCW.
No. 54945-0-II
environmental review prior to approval of the proposal and (2) the public lands management
statute, Title 79 RCW, by insufficiently addressing the Makah’s concerns.
The Hoh, Quileute, and Quinault Tribes (the Amici Tribes) filed a joint amicus curiae brief
requesting dismissal under CR 19, arguing that they are necessary and indispensable parties who
cannot be joined due to their sovereign immunity.3 The Amici Tribes claim that the Peninsula
Exchange parcels are part of their respective treaty hunting areas. The Makah argue that the Amici
Tribes are not necessary and indispensable parties under CR 19 because this appeal can be decided
without a determination of treaty rights of various tribes as the Makah’s claims are procedural
challenges to DNR’s Peninsula Exchange.
Because we resolve this appeal without implicating the treaty rights of the various
interested tribes, we hold that the Amici Tribes are not necessary or indispensable parties.
Accordingly, dismissal of this appeal under CR 19 is not appropriate.
DNR’s interpretation of the SEPA categorical exemption is entitled to substantial weight
and its determination that a land exchange is categorically exempt from SEPA review will be
overturned only if it is clearly erroneous. We hold that DNR properly interpreted and applied the
SEPA categorical exemption for state land exchanges to determine that the Peninsula Exchange
was categorially exempt from SEPA review and that DNR’s finding that the Peninsula Exchange
was exempt from SEPA was not clearly erroneous. Additionally, DNR complied with the public
lands management statute by adequately consulting with the Makah prior to the Board’s approval
of the Peninsula Exchange. Because the superior court’s decision was not manifestly
3
The Amici Tribes were not joined below and they did not seek to intervene.
2
No. 54945-0-II
unreasonable, or exercised on untenable grounds or for untenable reasons, we hold that the superior
court did not abuse its discretion by denying the Makah a constitutional writ. We affirm.4
FACTS
I. BACKGROUND
A. THE PARTIES
The Makah are a sovereign federally recognized Indian tribe. CP at 7. “Members of the
Makah Tribe and their ancestors have resided, fished, hunted[,] and gathered on the northwest
Olympic Peninsula since time immemorial, and continue to rely on the availability and use of
natural resources to sustain their way of life.” Opening Br. of Makah Indian Tribe (Opening Br.
Appellant at 11-12. “Fishing, hunting, and gathering practices are deeply ingrained in the
[Makah’s] subsistence and cultural identity.” Opening Br. Appellant at 12.
DNR manages the state-owned forestlands for the benefit of two public trusts: the common
school trust for the benefit of K-12 public schools, and the state forestland trust for the benefit of
counties. The commissioner of public lands is the administrator of DNR. RCW 43.30.105.
Relevant here, DNR sells timber and other forest products from forest lands for the benefit of the
public trusts. RCW 79.10.320. The Board sets policy and makes land management decisions for
DNR, including approving or denying proposals for land exchanges. RCW 43.30.205; RCW
43.30.215.
4
The court also denied the Makah’s motion for a preliminary injunction. On appeal, the Makah
did not assign error to this decision or argue that the request for preliminary injunction was
improperly denied.
3
No. 54945-0-II
B. THE PENINSULA EXCHANGE PROPOSAL
“The Peninsula Exchange involves eight parcels (approximately 1,001 acres) of state trust
lands, appraised at $5,490,000.” Clerk’s Papers (CP) at 256. DNR’s proposal would exchange
these eight parcels for 19 privately owned parcels (approximately 1,395 acres) of forestlands, also
appraised at $5,490,000, and owned by three Merrill & Ring subsidiaries. The parcels are located
in the counties of Clallam, Jefferson, and Grays Harbor.
The state forestlands in the proposal are “primarily managed to produce income for the
trust beneficiaries through logging.” CP at 230. DNR also manages them for multiple public uses,
including timber harvesting, removal of other valuable materials, hunting, and other public
recreational opportunities. The Peninsula Exchange would consolidate state lands to improve road
access to state lands, reduce DNR’s management costs, benefit fish and wildlife habitats in this
area, and increase the amount of gross acres and net operable forest acres of state lands.
In 2018, DNR and Merrill & Ring began actively negotiating the Peninsula Exchange. The
lead DNR staff for this project, Robert Winslow, considered whether DNR was required to perform
a threshold review under SEPA for the Peninsula Exchange. He concluded that a SEPA
environmental review was not required for the Peninsula Exchange under the regulatory
categorical exemption for state land exchanges, WAC 197-11-800(5)(b). However, SEPA review
would be required for any subsequent timber harvest on the land. WAC 222-16-050.
C. OUTREACH AND COMMUNICATION WITH THE TRIBES
DNR is required to work with impacted tribes and other stakeholders whenever it proposes
a land transaction. RCW 79.17.010(5). Joenne McGerr, DNR’s Director of Tribal Relations,
organized government-to-government meetings between tribal members and DNR management
4
No. 54945-0-II
and staff as required by the public lands management statue. McGerr’s role is to conduct outreach,
negotiate, and ensure appropriate tribal and agency representation in these meetings. She also
advises and reports to the commissioner of public lands on matters of interest or concern to tribal
members and governments about DNR operations, plans, or policies. Because dozens of parcels
were impacted by the proposal, DNR conducted extensive outreach and communicated with
various stakeholders on the peninsula, all of whom had an interest in the proposal.
One or more parcels in the Peninsula Exchange were either in tribal ceded areas or
overlapped the areas that certain tribes indicated were areas of interest. As a result, McGerr
contacted the following tribes: Makah, Hoh, Quileute, Quinault, Jamestown S’Klallam, Port
Gamble S’Klallam, Lower Elwha, and Skokomish. On May 9, 2018, she invited these tribes to
follow-up with her if they desired formal government-to-government meetings and/or consultation
with DNR.
On May 16, DNR formally notified the Makah of the proposal:
[DNR] is considering a land exchange. The properties included are mostly
within Clallam County, with a few located in Jefferson and Grays Harbor Counties.
Please see the attached map for an overview of the parcel layout. If you have
questions concerning any parcels in particular, I would be happy to provide more
detailed map information.
Prior to upcoming public meetings or public hearings, we are notifying you
and offering an opportunity for questions or discussion. We would like feedback
from you by May 31st, though written comments from the general public will be
accepted through two weeks from the public hearing, which has not been scheduled
at this time.
CP at 247.
On June 8, 2018 the chairman of the Makah Tribal Council sent a letter to DNR requesting
a formal government-to-government meeting related to the Peninsula Exchange “to ensure that
5
No. 54945-0-II
[DNR] is aware of and considers the [Makah’s] interests and concerns with the proposed land
exchange before a final decision is made.” CP at 250. This letter expressed concerns that the
Peninsula Exchange could affect their treaty hunting and gathering rights. Specifically, the Makah
expressed concerns over a potential loss of access; diminished capacity to hunt, fish, gather, and
engage in cultural activities, such as the traditional gathering of plants and ceremonial uses of this
land; diminished ability to conduct scientific study and monitoring; and potential impacts to the
Lake Ozette Sockeye salmon. McGerr responded and agreed to meet with the Makah’s chief of
staff on July 23. DNR subsequently considered the cultural and spiritual significance of the
exchange parcels near Lake Ozette.
On July 23, the Makah met with the commissioner of public lands and other DNR staff and
reiterated their concerns regarding the loss of access to public lands subject to the land exchange
proposal. The Makah inquired as to whether they could purchase some of these lands to obtain
exclusive, permanent access, instead of having DNR transfer the forestlands into private
ownership. Because the Makah raised concerns about accessing Merrill & Ring lands, DNR’s
Olympic Region Manager Mona Griswold facilitated a follow-up meeting between the Makah and
Merrill & Ring on October 5, 2018. At this meeting, Merrill & Ring told the Makah that access
to the tracts of land near Lake Ozette would not change from the way DNR provided public access.
On April 5, 2019, DNR advised the Makah in writing that it did not have the authority to
grant their request for exclusive, permanent access to state-owned trust lands because these lands
were located within the ceded area of several other tribes who were parties to the Treaty of Point
No Point. DNR concluded that granting the Makah’s request could violate other tribes’ treaty
6
No. 54945-0-II
rights. DNR expressed a willingness to explore purchase or exchange transactions between DNR
and the Makah of other trust lands.
On September 5, DNR held a public hearing in Port Angeles on the proposal and took
public testimony. Although DNR notified the Makah of the public hearing, no Makah tribal
representatives identified themselves, testified, or provided written comment at the hearing, nor
did the Makah provide DNR with any written comments during the 14-day comment period
following the hearing.
On April 24, 2020, the Makah requested a second government-to-government meeting with
DNR, less than two weeks prior to the Board’s meeting at which the Peninsula Exchange proposal
would be considered. The Makah’s letter requested a “guarantee [of] perpetual hunting access
through a broader easement that would impose continued access for exercise of [t]reaty rights
without specifying a certain [t]ribe.” CP at 221, 244 (internal quotation marks omitted).
On May 4, the second government-to-government meeting occurred with the full Makah
Tribal Council, the commissioner of public lands, and key DNR staff involved in the proposal.
On May 5, the Board met to consider DNR’s proposal. DNR provided the Makah’s April
24 letter for consideration. The Board also considered other stakeholders’ input during DNR’s
consultation process, including the written support for the proposal provided to DNR by the
majority of the other impacted tribes. After deliberations, the Board passed a resolution approving
the Peninsula Exchange.
On May 13, the commissioner of public lands and McGerr spoke with the chairman of the
Makah Tribal Council to express an interest in finding a solution to address their concerns. DNR
agreed to respond in writing and provide details about the exchange process and timeline. DNR
7
No. 54945-0-II
followed up with a letter on May 20 explaining its fiduciary duties and challenges with some of
the Makah’s requests. The commissioner proposed a collaborative process to engage the Makah
and DNR to potentially explore other resolutions.
II. PROCEDURAL HISTORY
On June 3, 2020, the Makah filed an action seeking a constitutional writ of certiorari against
DNR, the commissioner of public lands, and the Board. On June 11, the Makah filed a motion for
a preliminary injunction.
The Makah argued that DNR acted illegally and arbitrarily and capriciously when it
approved the Peninsula Exchange without having conducted a SEPA environmental review and
without having adequately consulted the Makah to address their concerns regarding the proposal
prior to its approval.
DNR responded that SEPA review was not required because the land exchange fit within
a categorical exemption from SEPA review for “real property transactions” by an agency including
the “exchange of any publicly owned real property,” but only if the property is not subject to a
specifically designated and authorized public use established by the public landowner and used by
the public for that purpose. CP at 206-07 (emphasis omitted, citing WAC 197-11-800(5)). DNR
asserted that it did not specifically designate and authorize public uses on the parcels it managed
that were part of the Peninsula Exchange. In support, DNR submitted sworn declarations stating
that the parcels in the Peninsula Exchange were subject to broad general management practices for
forestlands, but the parcels had not been subject to any “specifically designated and authorized for
public use.” CP at 207.
8
No. 54945-0-II
DNR explained that in contrast with the Peninsula Exchange lands, at times, DNR does
“specifically designate[] and authorize[]” public use for certain state lands. CP at 214. Angus
Brodie, the Deputy Supervisor for DNR’s Uplands, declared that such lands include
“campgrounds, parking lots associated with public use, and areas with public restrooms, kiosks,
and signage.” CP at 214. He explained that such parcels are often subject to written use
agreements that compensate the public trusts or generate revenue for them.
Mona Griswold declared that as to the Peninsula Exchange parcels: “Although many uses
are permitted on these parcels, the parcels have not been specifically designated for hunting or any
other recreational use by DNR.” CP at 230.5
On June 19, the superior court issued an oral ruling denying a constitutional writ. On June
24, the Makah appealed and sought an emergency stay due to the “extremely time sensitive nature
of the appeal.” CP at 347. A commissioner of this court granted a temporary stay pending briefing
and hearing on the emergency stay. On July 7, the superior court then entered a written order.6
On July 17, our commissioner ultimately denied the stay, but accelerated review of this
appeal. The Amici Tribes filed an amicus curiae brief arguing that we should dismiss this case
under CR 19 because they are necessary and indispensable parties who cannot be joined due to
their sovereign immunity.
5
The Makah cite the general public use of forestlands and logging on state trust lands as an
example of specifically designated and authorized public use. But DNR correctly points out that
such lands contain easements granted by private landowners that do not allow public use and DNR
has no authority over the logging roads.
6
“A notice of appeal . . . filed after the announcement of a decision but before entry of the decision
will be treated as filed on the day following the entry of the decision.” RAP 5.2(g).
9
No. 54945-0-II
ANALYSIS
I. THE AMICI TRIBES ARE NOT NECESSARY OR INDISPENSABLE PARTIES UNDER CR 19
The Amici Tribes argue that this appeal should be dismissed because they are necessary
and indispensable parties under CR 19 who cannot be joined due to their sovereign immunity.7
Br. of Amici at 12. We can resolve this case without implicating treaty rights. So long as we do
not decide any issue related to treaty rights, the Amici Tribes are not necessary and indispensable
parties under CR 19.8 Thus, dismissal of this appeal under CR 19 is not appropriate.
A. LEGAL PRINCIPLES
“CR 19 addresses when the joinder of [an] absent [party] is needed for a just adjudication.”
Auto. United Trades Org. v. State, 175 Wn.2d 214, 221, 285 P.3d 52 (2012) (AUTO). “Where the
feasibility of joinder is contested, courts engage in a three-step analysis.”9 AUTO, 175 Wn.2d. at
221; Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir. July 31, 1990). “Under CR 19(a),
the court first determines whether [an] absent [party] [is] ‘necessary’ for a just adjudication.”
AUTO, 175 Wn.2d at 221-22; Verity, 910 F.2d at 558. “If the absentee[] [is] ‘necessary,’ the court
determines whether it is feasible to order the absentee[’s] joinder.” AUTO, 175 Wn.2d at 222;
Verity, 910 F.2d at 558. “Joinder is not feasible when tribal sovereign immunity applies.” AUTO,
175 Wn.2d at 222; See Equal Employment Opportunity Comm’n v. Peabody W. Coal Co., 400
7
The Amici Tribes did not participate in the proceedings at the superior court level.
8
DNR takes no position on this issue. Reply Br. of Resp. to Amici at 2.
9
“Because CR 19 is based on and is substantially similar to Fed. R. Civ. P. 19, we may look to the
abundant federal cases interpreting that rule for guidance.” AUTO, 175 Wn.2d at 223.
10
No. 54945-0-II
F.3d 774, 780-81 (9th Cir.2005) (“In many cases in which we have found that an Indian tribe is an
indispensable party, tribal sovereign immunity has required dismissal of the case.”).
“If joining a necessary party is not feasible, the court then considers whether, ‘in equity
and good conscience,’ the action should still proceed without the absentee[] under CR 19(b).”
AUTO, 175 Wn.2d at 222; Verity, 910 F.2d at 558 n.5. CR 19 does not bar resolution of claims if
the claims are “reasonably susceptible to adjudication without the presence of other tribes.” Verity,
910 F.2d at 559. The party urging dismissal has the burden of persuasion. Gildon v. Simon Prop.
Group, Inc., 158 Wn.2d 483, 495, 145 P.3d 1196 (2006).
B. ANALYSIS
The Amici Tribes claim they are necessary parties under CR 19(a)(2) because resolution
of the issues on appeal will implicate their treaty rights. The Makah disagree, arguing that we need
not resolve any issue involving treaty rights. We agree with the Amici Tribes that we cannot
resolve any issue involving their treaty rights without their participation, but we also agree with
the Makah that doing so is not necessary to resolve this case. We hold that the Amici Tribes are
not necessary parties under CR 19.
It is well-established that a court cannot resolve claims involving treaty rights without
participation from all of the tribal entitles whose rights would be impacted. Verity, 910 F.2d at
559; Skokomish Indian Tribe v. Goldmark, 994 F. Supp. 2d 1168, 1187-88 (W.D. Wash. Jan. 13,
2014). However, procedural claims that are not dependent on the resolution of treaty rights can
be adjudicated. Verity, 910 F.2d at 559.
Here, adjudication of the Makah’s procedural claims does not require a judicial
determination of treaty rights among the various interested tribes. The Makah raise only two
11
No. 54945-0-II
procedural challenges: a challenge to DNR’s decision that SEPA review is not warranted and a
challenge regarding sufficient consultation. Resolution of these claims does not depend upon the
resolution of any rights to access the exchange lands for any tribe. No rights of the Amici Tribes
or their members need to be resolved for us to dispose of this case. The Makah’s claims are
“reasonably susceptible to adjudication without the presence of the other tribes.” Verity, 910 F.2d
at 559. Thus, the Amici Tribes are not necessary parties.
Further, resolving the Makah’s procedural claims would not result in a risk of multiple,
inconsistent rulings. Our decision addresses only whether DNR and the Board complied with
SEPA and statutory consultation requirements when they approved the Peninsula Exchange.
If the Amici Tribes are not necessary parties, they are not indispensable parties. Thus,
because we can resolve this case without implicating any of Amici Tribes’ treaty rights, we hold
that the Amici Tribes are not indispensable parties under CR 19.
II. LEGAL PRINCIPLES: CONSTITUTIONAL WRIT10
“The Washington State Constitution recognizes the right to seek discretionary review of
an administrative agency decision under the court’s inherent constitutional power.” Federal Way
Sch. Dist. No. 210 v. Vinson, 172 Wn.2d 756, 769, 261 P.3d 145 (2011). Article IV, section 6 of
the Washington Constitution grants a superior court constitutional authority to review
10
A constitutional writ is not available if there is another avenue for relief; for example, review of
an administrative decision. The parties agreed at oral argument that DNR land exchange decisions
are not subject to review under chapter 34.05 RCW, the Administrative Procedures Act. Wash.
Court of Appeals oral argument, Makah Indian Tribe v. Comm’r of Public Lands., No. 54945-0-II
(Nov. 24, 2020), at 6 min., 20 sec. through 6 min., 30 sec. (on file with court).
12
No. 54945-0-II
administrative decisions for illegal or manifestly arbitrary acts. Saldin Sec., Inc. v. Snohomish
County, 134 Wn.2d 288, 292, 949 P.2d 370 (1998).
“The fundamental purpose of the constitutional writ of certiorari is to enable [the] court
. . . to determine whether the proceedings below were within the lower tribunal’s jurisdiction and
authority.” Saldin, 134 Wn.2d at 292. The party challenging the agency’s decision carries a heavy
burden to demonstrate that the agency’s decision was so clearly illegal that it calls for revision by
a constitutional writ. Vinson, 172 Wn.2d at 769. The scope of court review under the
constitutional writ is “‘very narrow.’” Vinson, 172 Wn.2d at 769, (quoting Pierce County Sheriff
v. Civil Serv. Comm’n of Pierce County, 98 Wn.2d 690, 695, 658 P.2d 648 (1983)).
“[W]e adhere to the long accepted rule that a court may grant a constitutional writ of
certiorari if no other avenue of appeal is available and facts exist that, if verified, indicate the lower
tribunal has acted in an illegal or arbitrary and capricious manner.” Saldin, 134 Wn.2d at 294.
Arbitrary actions in this context are defined as “‘willful and unreasoning action, without
consideration and in disregard of facts and circumstances. Where there is room for two opinions,
action is not arbitrary and capricious even though one may believe an erroneous conclusion has
been reached.’” Pierce County Sheriff, 98 Wn.2d at 695, (quoting State v. Rowe, 93 Wn.2d 277,
284, 609 P.2d 1348 (1980)).
“[I]llegality is a nebulous term.” Vinson, 172 Wn.2d at 770 (alteration in original) (internal
quotation marks omitted). In the context of the constitutional writ of certiorari, “illegality refers
to an agency’s jurisdiction and authority to perform an act.” Vinson, 172 Wn.2d at 770. “‘[A]n
alleged error of law is insufficient to invoke the court’s constitutional power of review.’” Vinson,
172 Wn.2d at 770 (alteration in original) (quoting Wash. Pub. Employees. Ass’n v. Wash. Pers.
13
No. 54945-0-II
Res. Bd., 91 Wn. App. 640, 658, 959 P.2d 143 (1998)). If an agency is within its statutory authority
to issue a decision under state law, its actions are not illegal under the constitutional writ analysis,
and the motion for a constitutional writ is properly denied. Vinson, 172 Wn.2d at 769.
We review a superior court’s decision to deny a constitutional writ of certiorari for an abuse
of discretion. Newman v. Veterinary Bd. of Governors, 156 Wn. App. 132, 142, 231 P.3d 840(2010). A court abuses its discretion only when its decision is manifestly unreasonable, or
exercised on untenable grounds or for untenable reasons. Gildon, 158 Wn.2d at 494.
III. STANDING
We first address below whether the Makah have standing to assert their challenge to DNR’s
SEPA decision absent reliance on arguments that require us to address the treaty rights of various
tribes. We hold that the Makah have standing to assert their procedural challenges to DNR’s
Peninsula Exchange even without reliance on their treaty rights.11
“‘To invoke constitutional certiorari to review actions of an administrative agency, a
petitioner must establish standing to challenge the governmental action.’” Newman, 156 Wn. App.
at 142 (quoting Harris v. Pierce County, 84 Wn. App. 222, 230, 928 P.2d 1111 (1996)). We apply
a two part test to determine whether a person or entity has standing to seek a constitutional writ of
certiorari. Newman, 156 Wn. App. at 142.
“First, the interest that the petitioner seeks to protect must be ‘arguably within the zone of
interests to be protected or regulated by the statute or constitutional guarantee in question.’”
11
The Makah filed this action seeking a constitutional writ of certiorari. The Makah did not sue
under the Uniform Declaratory Judgments Act (UDJA), chapter 7.24 RCW. Accordingly, we
decline to address Amici Tribes’ argument related to the UDJA.
14
No. 54945-0-II
Snohomish County Prop. Rights Alliance v. Snohomish County, 76 Wn. App. 44, 52, 882 P.2d 807(1994) (internal quotation marks omitted) (quoting Trepanier v. City of Everett, 64 Wn. App. 380,
382, 824 P.2d 524 (1992)). “Second, the petitioner must allege an ‘injury in fact,’ i.e., that he or
she will be ‘specifically and perceptibly harmed’ by the proposed action.” Snohomish County
Prop. Rights Alliance, 76 Wn. App. at 53 (internal quotation marks omitted) (quoting Trepanier,
64 Wn. App. at 382).
To establish standing to pursue a claim alleging violation of a procedural right, the standing
requirements are relaxed to some degree. The Makah must “‘identify a constitutional or statutory
procedural right’” that has allegedly been violated, “‘demonstrate a reasonable probability that the
deprivation of the procedural right will threaten a concrete interest’” of the Makah’s, and show
that the Makah’s interest “‘is one protected by the statute.’” Lands Council v. Wash. State Parks
& Recreation Comm’n, 176 Wn. App. 787, 801-02, 309 P.3d 734 (2013) (quoting Five Corners
Family Farmers v. State, 173 Wn.2d 296, 303, 268 P.3d 892 (2011)).
The Makah satisfy these standing requirements. First, the general public use, including the
Makah’s public use, of the Peninsula Exchange parcels is arguably within the zone of interests
protected by SEPA and the statutory tribal consultation requirement. RCW 43.21C.020; RCW
79.17.010(5). Second, the Makah adequately detail an alleged injury in fact because they have
alleged that the proposal poses a threat to limit the general public’s (including the Makah’s) access
to the parcels being exchanged for a wide range of activities, including hunting, gathering, and
other subsistence activities of cultural importance. Both SEPA and the statutory tribal consultation
requirement arguably impose procedural prerequisites to the Peninsula Exchange. Thus, whatever
the outcome on the merits, the Makah have demonstrated “‘reasonable probability that the
15
No. 54945-0-II
deprivation of the procedural right will threaten a concrete interest’” of the Makah’s. Lands
Council, 176 Wn. App. at 802 (quoting Five Corners, 173 Wn.2d at 303). Accordingly, we hold
that the Makah have standing to assert their procedural challenges to DNR’s Peninsula Exchange.
IV. SEPA’S EXEMPTION FOR LAND EXCHANGES APPLIES TO THE PENINSULA EXCHANGE
A. SEPA ENVIRONMENTAL REVIEW: WHEN REQUIRED AND WHEN EXEMPT
SEPA requires governmental agencies to prepare an environmental impact statement (EIS)
for all major actions having a probable significant, adverse environmental impact. RCW
43.21C.031(1). Actions categorically exempt under RCW.43.21C.110(1)(a) and RCW
43.21C.450 do not require environmental review or the preparation of an EIS; these exemptions
include a broad range of government agency actions approving public and private activities. RCW
43.21C.031(1). Our Supreme Court has affirmed that certain government agency actions are
categorically exempt from SEPA under RCW 43.21C.031(1). Dioxin/Organochlorine Ctr. v.
Pollution Control Hearings Bd., 131 Wn.2d 345, 365, 932 P.2d 158 (1997).
The legislature directed the Department of Ecology to adopt uniform rules and guidelines
interpreting and implementing SEPA, including specific authorization to identify “[c]ategories of
governmental actions which are not to be considered as potential major actions significantly
affecting the quality of the environment” requiring an environmental impact statement. RCW
43.21C.110(1)(a); see also WAC 197-11-060. Ecology adopted WAC 197-11-800 through -890
to identify actions which are categorically exempt from SEPA. RCW 43.21C.031(1) expressly
exempts a proposal from the environmental impact statement requirement if its fits within any of
the exemptions in the SEPA regulations that Ecology has adopted.
16
No. 54945-0-II
WAC 197-11-800(5)(b) is one of Ecology’s categorical exemptions. WAC 197-11-
800(5)(b) generally exempts from SEPA the “transfer or exchange of any publicly owned real
property, but only if the property is not subject to a specifically designated and authorized public
use established by the public landowner and used by the public for that purpose.” (Emphasis
added.)
In 2012, the legislature directed Ecology to update WAC 197-11-800(5) to preserve and
expand the scope of SEPA’s categorical exemptions. LAWS OF 2012, 1st Spec. Sess., ch. 1,
§ 301(1). Ecology, citing the legislature’s directive, amended WAC 197-11-800(5) to add the
phrase “specifically designated,” as well as the reference to approval by the public landowner of
the property related to the use of land by the public. Wash. St. Reg. 14-09-026. The amended
regulation requires that when the public landowner has “specifically designated and authorized
public use” on the public lands in a proposed land exchange, the proposal is subject to SEPA
review. Wash. St. Reg. 14-09-026 (emphasis added).
RCW 43.21C.090 states,
In any action involving an attack on a determination by a governmental
agency relative to the requirement or the absence of the requirement, or the
adequacy of a “detailed statement,” the decision of the governmental agency shall
be accorded substantial weight.”
(Emphasis added.) Our supreme court has interpreted this provision to accord substantial
deference to the responsible governmental agency making the determination as to a SEPA
categorical exemption. See Cornelius v. Dep’t of Ecology, 182 Wn.2d 574, 598 n.4, 344 P.3d 199(2015) (the term “responsible agency” means “the agency that seeks to develop or the agency that
is presented with a proposal for development”). Notably, the legislature chose here to defer to
17
No. 54945-0-II
determinations “by a governmental agency,” and did not limit this deference to determinations by
Ecology. As a result, DNR’s determination that an environmental impact statement is not required
for the Peninsula Exchange because this exchange is categorically exempt, is entitled to substantial
weight under RCW 43.21C.090.
The substantial weight requirement directs us to review the responsible agency’s
determination under a “clearly erroneous” standard. Cornelius, 182 Wn.2d at 599. An agency’s
determination is clearly erroneous when, although there is evidence to support it, we are left with
the definite and firm conviction that a mistake has been made. PT Air Watchers v. Dep’t of
Ecology, 179 Wn.2d 919, 926, 319 P.3d 23 (2014).
B. DNR ADOPTED REGULATIONS FOR ITS MANAGED LANDS
In its trust management role, DNR has the discretion to determine whether a given parcel
of trust lands is “authorized” for multiple uses, considering whether multiple uses are “in the best
interests of the state and the general welfare of the citizens.” RCW 79.10.100. The legislature
provided a list of uses that it found to be potentially “compatible with those basic activities
necessary to fulfill the financial obligations of trust management,” and many of these multiple uses
are public uses like recreation, hunting, fishing, and use of the public lands as public rights of way.
RCW 79.10.120.
DNR adopted Public Access and Recreation rules that define the standards applicable to
DNR managed public lands. See WAC 332-52-002. Under WAC 332-52-002(6), DNR may allow
activities, including public use, on DNR managed trust lands so long as that use is consistent with
state statutes and regulations, land management objectives, and trust obligations. Under WAC
332-52-002(6)(d), the activity must also be “authorized or permitted by the department.”
18
No. 54945-0-II
WAC 332-52-010 defines “authorized” as written approval given by DNR. WAC 332-52-
010 defines “designated” as “any facility, trail, or location that has been approved by the
department for public use.”
C. ANALYSIS
1. WAC 197-11-800(5)(b)
To determine the meaning of a regulation, we give effect to the promulgating agency’s
intent by discerning the regulation’s plain meaning. PeaceHealth St. Joseph Med. Ctr. v. Dep’t of
Revenue, 196 Wn.2d 1, 7-8, 468 P.3d 1056 (2020). “To ascertain a regulation’s plain meaning,
we look to the ordinary meaning of its text[,] . . . the context in which the regulation applies, related
regulations and statutes, and the statutory scheme of which the regulation is a part.” Grays Harbor
Energy, LLC v. Grays Harbor County, 175 Wn. App. 578, 584, 307 P.3d 754 (2013). If the
regulation is ambiguous, we apply canons of statutory construction in order to interpret the
regulation, including consideration of the regulation’s history and intent. Grays Harbor Energy,
175 Wn. App. at 584. The legislature’s declaration of purpose is an important guide to
understanding the breadth of authority the Legislature has delegated to a state agency. Armstrong
v. Dep’t of Fisheries, 91 Wn App. 530, 537, 958 P.2d 1010 (1998).
The Makah argue that because DNR has “specifically designated and authorized public
use” on the Peninsula Exchange parcels, the exception to the categorical exemption applies, and
SEPA review is required here. Opening Br. Appellant at 30. DNR argues it has not “specifically
designated and authorized public use” in writing the parcels in the Peninsula Exchange. Opening
Br. of Resp’t at 13. Both parties argue that if we determine that the regulation is ambiguous, then
the rulemaking history supports their interpretation.
19
No. 54945-0-II
WAC 197-11-800(5)(b) states:
The following real property transactions by an agency shall be exempt: . . . The
sale, transfer or exchange of any publicly owned real property, but only if the
property is not subject to a specifically designated and authorized public use
established by the public landowner and used by the public for that purpose.
The regulation makes it clear that the property must be both “specifically designated and
authorized.” But what constitutes “specifically designated” is unclear. We apply the canons of
statutory construction to interpret the regulation, and, because the regulation is ambiguous to some
extent, we also consider the regulation’s history. Grays Harbor Energy, 175 Wn. App. at 584.
Because the regulatory language is ambiguous, we look in part to the rulemaking history.
Here the reference to “specifically designated” was added after legislative direction to expand the
scope of the categorical exemptions. Wash. St. Reg. 14-09-026. This history supports a narrow
reading of the exception to the exemption that gives meaning to the addition of “specifically
designated” as a limitation.
Moreover, under RCW 43.21C.090, DNR’s determination that the Peninsula Exchange is
categorically exempt from SEPA review is entitled to “substantial weight.” Contrary to the
Makah’s argument, the deference afforded under this statute is not limited to Ecology. Instead it
expressly applies to “governmental agency” decisions related to application of SEPA
requirements. RCW 43.21C.090. Thus, DNR is entitled to deference as a governmental agency
under the statute.
This deference to DNR does not conflict with RCW 43.21C.110(1)(a) as the Makah
contend because it does not mean that all land exchanges will be exempt from SEPA review. A
land exchange involving a specific designation for public use would require SEPA review under
20
No. 54945-0-II
DNR’s application of the regulation. Thus, we accord substantial weight to DNR’s application of
the regulation.
2. DNR’s Application of WAC 197-11-800(b)(5)
The Makah argue that DNR has allowed multiple public uses on the 1,001 acres it manages
in the Peninsula Exchange, including hunting, fishing, and the use of a Discover Pass to access
these lands. Based on these public uses on parcels in the Peninsula Exchange, the Makah argue
that DNR has “specifically designated and authorized public use” on these parcels in the Peninsula
Exchange, and thus, SEPA review is required for the Peninsula Exchange. Opening Br. Appellant
at 27-32.
Under DNR’s rules, “authorized” is defined as “written approval given by [DNR].” WAC
332-52-010. DNR defines the term “designated” as “any facility, trail, or location that has been
approved by the department for public use.” WAC 332-52-010. DNR argues that there is no
evidence that it “specifically designated and authorized public use” in writing on the parcels in the
Peninsula Exchange, and thus, SEPA review is not required. Opening Br. of Resp’t at 14-15. DNR
cites declarations explaining that the parcels in the Peninsula Exchange are subject to broad general
management practices for forestlands, but it has not in writing “specifically designated and
authorized public use” on the lands in the Peninsula Exchange.
Angus Brodie, the Deputy Supervisor for DNR’s Uplands, declared that DNR has
“specifically designated and authorized” some state lands for public use. CP at 214. They include
“campgrounds, parking lots associated with public use, and areas with public restrooms, kiosks,
and signage.” CP at 214. He explained that such parcels are often subject to written agreements
that compensate the public trusts for allowing the public use.
21
No. 54945-0-II
Griswold declared that the state lands within the Olympic Peninsula Region, including
those in the Peninsula Exchange, are managed by DNR under the multiple use statutes to provide
for multiple simultaneous uses; some of these uses include timber harvesting, removal of valuable
materials, hunting, and other public recreational opportunities including, hiking, biking and bird
watching. She also explained that “[a]lthough many uses are permitted on these parcels, the
parcels have not been specifically designated for hunting or any other recreational use by DNR.”
CP at 230.12, 13
Griswold further explained that DNR easements were acquired from neighboring
landowners for access to most of the trust lands in the Peninsula Exchange; however, for some
uses, public use of the easement is not permitted and in others, DNR has no roads on certain
parcels, or access easements through private lands. “While the multiple use mandate generally
authorizes many different activities on state-managed trust lands, DNR has not specifically
designated any of the roads on the trust land parcels included in the Peninsula Exchange for public
12
The Makah cite the general public use of forestlands and logging on state trust lands as an
example of specifically designated and authorized public use. But DNR correctly points out that
such lands contain easements granted by private landowners that do not allow public use and DNR
has no authority over the logging roads.
13
The Makah also argue that, assuming they have legitimate treaty rights to the Peninsula
Exchange parcels, that those uses are “public uses” under the exception to the categorical
exemption. The Makah also claim that certain state agency actions recognize their treaty rights to
the parcels in the Peninsula Exchange. As examples, the Makah cite to DNR’s decision to provide
a no-cost equivalent of the “Discover Pass” for tribal members, and Department of Fish and
Wildlife’s recognition of tribal members’ rights to hunt on public lands in this area. However, we
agree with the Amici Tribes that we cannot resolve treaty rights claims without implicating the
treaty rights of other tribes claiming rights in the area. We therefore decline to address these
arguments further.
22
No. 54945-0-II
use, and does not maintain any designated public parking lots on any of the parcels,” nor does
DNR regulate or enforce hunting regulations on any of these parcels.
By way of contrast, DNR has granted a trail easement to Kitsap County in exchange for
$71,160. Because the easement specifically designated and authorized a public recreation trail on
state lands, DNR determined that this exchange was not exempt from SEPA review. This is an
example of a specific designation of a portion of public land–a trail–for public use.
Here, there was no written specific designation and authorization for public use by DNR
on the parcels in the Peninsula Exchange. DNR has reasonably applied the regulation to the facts,
concluding that the land being exchanged had not been specifically designated and authorized for
public use by DNR. After thoroughly reviewing the record, we are not left with a definite and firm
conviction that DNR, as the responsible agency, made a mistake by determining that the parcels
involved in the Peninsula Exchange are categorically exempt from SEPA. Because we are not left
with a definite and firm conviction that a mistake has been made, DNR’s decision was not clearly
erroneous. Because DNR was within its statutory authority as the responsible agency to issue its
decision, its determination that the Peninsula Exchange is exempt from SEPA is not illegal under
the constitutional writ analysis, and the motion for a constitutional writ was properly denied.
Vinson, 172 Wn.2d at 769.
In sum, based on the record, we hold that DNR did not make a written specific designation
and authorized public use on the parcels in the Peninsula Exchange. We also hold that because
DNR’s determination was reasonable, the superior court did not abuse its discretion when it denied
the writ on this basis.
23
No. 54945-0-II
V. DNR PROPERLY CONSIDERED THE PENINSULA EXCHANGE PROPOSAL
WITHOUT POTENTIAL TIMBER SALES
The Makah alternatively argue that because future timber sales may occur on lands
obtained by DNR in the Peninsula Exchange, these future timber sales qualify as “proposals”
subject to SEPA review. They also argue that DNR cannot segment the proposal separating some
actions that are categorically exempt and some that are not. Thus, according to the Makah,
consolidated SEPA review of both the Peninsula Exchange and the timber sales together is
warranted. DNR argues that these timber sales do not qualify as “proposals,” and they are not
sufficiently definite for a meaningful SEPA review. DNR also argues that even if they qualify as
proposals, the timber sales are not “segments” of or connected to the Peninsula Exchange proposal
constituting a “single course of action.” Opening Br. of Resp’t at 31-33. We agree with DNR and
hold that DNR properly determined that the Peninsula Exchange was exempt from SEPA, without
considering potential timber sales as part of the proposed land exchange.
A. TIMBER SALES: PROPOSALS
We first address whether prospective timber sales on parcels that DNR will obtain in the
Peninsula Exchange are “proposals” sufficiently definite under WAC 197-11-305(1)(b)(i) to
require consolidated SEPA review. We hold they are not.
DNR must manage state public trust lands in the best interests of its trust beneficiaries to
include the forestlands in the Peninsula Exchange. Chuckanut Conservancy v. Dep’t of Natural
Res., 156 Wn. App. 274, 287-288, 232 P.3d 1154 (2010). Therefore, DNR must manage the
Peninsula Exchange lands to generate revenue for the public trust, which generally involves selling
24
No. 54945-0-II
harvested timber, managed on a sustainable yield basis. Chuckanut Conservancy, 156 Wn. App.
at 288.
A “proposal” will not qualify for a categorical exemption from SEPA if it is a “segment of
a proposal that includes . . . [a] series of actions, physically or functionally related to each other,
some of which are categorially exempt and some of which are not.” WAC 197-11-305(1)(b)(i).
The Makah argue that SEPA applies to the prospective timber sales within the Peninsula
Exchange “because of the public values associated with public lands” citing WAC 332-41-
833(2)(b). Opening Br. Appellant at 37. They also argue that the names, sizes, approximate
values, and logging techniques for the timber sales have already been determined and that DNR
staff acknowledged that preparation for timber sale auctions would commence “[a]s soon as the
[Peninsula] Exchange closes.” Second Decl. of Mona Griswold at 3 The Makah argue that DNR
has conceded that each element of WAC 197-11-305(1)(b)(i) is met and that the Peninsula
Exchange and timber sales are a “series of actions, physically or functionally related to each other,”
and that DNR acknowledged this direct casual connection when it sought a bond. Opening Br.
Appellant at 37 (citing DNR Resp. on Motion for Stay at 19-20). DNR argues that the Peninsula
Exchange and the prospective timber sales do not constitute a single “proposal” requiring
consolidated SEPA review.14
To determine whether the Peninsula Exchange and the timber sales constitute a single
proposal, we must examine both WAC 197-11-055(2) and WAC 197-11-060(3).
14
DNR first disclosed the prospective timber sales in response to the Makah’s motion for
emergency stay; it did so because the Makah had requested a preliminary injunction and if granted,
any delayed profits from potential timber sales were relevant for the court to determine the
appropriate bond amount.
25
No. 54945-0-II
WAC 197-11-055(2)(a) states in relevant part:
A proposal exists when an agency is presented with an application or has a goal and
is actively preparing to make a decision on one or more alternative means of
accomplishing that goal and the environmental effects can be meaningfully
evaluated.
WAC 197-11-055(2)(a)(i) states:
The fact that proposals may require future agency approvals or environmental
review shall not preclude current consideration, as long as proposed future activities
are specific enough to allow some evaluation of their probable environmental
impacts.
WAC 197-11-060(3) states in relevant part:
Agencies shall make certain that the proposal that is the subject of environmental
review is properly defined.
(Emphasis added.)
Under the plain language of WAC 197-11-055(2)(a)(i), a “proposal” must allow for a
meaningful SEPA review. WAC 197-11-060(3) requires that DNR, as the lead environmental
agency here, must make certain that the proposal, subject to SEPA review, is sufficiently defined.
Here, based on the record, there are specific details of the timber sales which were still
unknown. Timber sales require extensive planning, including timber cruises, appraisals, and the
forest practices application review. See Second Griswold Decl. Unless the timber harvest is an
exempt small sale under WAC 332-41-833, proposed timber sales are subject to independent
SEPA review.15
15
WAC 332-41-833 exempts only small timber sales with harvest units under 20 acres and below
a certain appraisal amount, which do not have a potential for significant impact on the
environment.
26
No. 54945-0-II
We accord substantial weight to DNR’s decision that the anticipated timber sales did not
trigger SEPA review. RCW 43.21C.090. Here, many of the required steps preceding a timber
sale had not occurred because the parcels in the Peninsula Exchange were not yet under DNR’s
management or control. DNR determined that potential timber sales were not sufficiently definite
for meaningful SEPA review at the time of the Peninsula Exchange. Thus, any future timber sales
were not part of a single proposal that included the Peninsula Exchange. Unless exempt under
WAC 332-41-833, sufficiently developed timber sale proposals would independently be subject
to SEPA review.
B. TIMBER SALES: SEGMENTS
We next address whether the timber sales are “segments” of or so closely related to the
Peninsula Exchange as to constitute a single course of action under WAC 197-11-305(1)(b)(i)
requiring consolidated SEPA review.
WAC 197-11-060(3) provides in relevant part:
(b) Proposals or parts of proposals that are related to each other closely
enough to be, in effect, a single course of action shall be evaluated in the same
environmental document. . . . Proposals or parts of proposals are closely related,
and they shall be discussed in the same environmental document, if they:
(i) Cannot or will not proceed unless the other proposals (or parts of
proposals) are implemented simultaneously with them; or
(ii) Are interdependent parts of a large proposal and depend on the larger
proposal as their justification or for their implementation.
(c) (Optional) Agencies may wish to analyze “similar actions” in a single
environmental document. . .
(Emphasis added.) Thus, WAC 197-11-060(3)(b) requires that proposals that are closely related
enough to be a “single course of action” must be evaluated together in the same documents.
27
No. 54945-0-II
The Makah argue that timber sales are segments of or closely connected to the Peninsula
Exchange and together constitute a single course of action warranting SEPA review for both. DNR
argues that even if the timber sales qualify as a proposal for SEPA review, the Peninsula Exchange
can, and likely will, proceed even if the predicted timber sales do not occur. DNR also argues that
the prospective timber sales are not interdependent parts of the Peninsula Exchange and that the
Makah have presented no evidence that DNR would not complete the Peninsula Exchange without
the timber sales.
We agree with DNR that the timber sales are not segments of or closely related to the
Peninsula Exchange under WAC 197-11-060(3)(b). Because there is no evidence in this record
that DNR would not pursue the Peninsula Exchange if it could not engage in timber sales on land
it acquires under the exchange, these are not a single course of action under WAC 197-11-
305(1)(b)(i) requiring consolidated SEPA review.
VI. DNR ADEQUATELY CONSULTED WITH AND CONSIDERED THE MAKAH’S CONCERNS
The Makah lastly argue that DNR failed to adequately consult with them and consider their
concerns related to the Peninsula Exchange, violating the land exchange requirements in the public
lands management statute, RCW 79.17.010. We hold that DNR adequately consulted with the
Makah and considered their concerns.
RCW 79.17.010(5) provides:
Prior to executing an exchange under this section, and in addition to the public
notice requirements set forth in RCW 79.17.050, the department shall consult with
. . . tribes . . . to identify and address cultural resource issues and the potential of
the state lands proposed for exchange to be used for open space, park, school, or
critical habitat purposes.
(Emphasis added.)
28
No. 54945-0-II
RCW 79.17.020(3) similarly provides:
Prior to executing an exchange under this section, and in addition to the public
notice requirements set forth in RCW 79.17.050, [DNR] shall consult with . . .
tribes . . . to identify and address cultural resource issues, and the potential of the
state lands proposed for exchange to be used for open space, park, school, or critical
habitat purposes.
(Emphasis added.)
Here, DNR notified the Makah of the Peninsula Exchange. DNR staff met with and
communicated with the Makah multiple times. Public Lands Commissioner Hillary Franz met
with the Makah to discuss potential acquisition of the land involved and the Makah’s concerns
regarding access to the land being exchanged. DNR facilitated a meeting between the Makah and
Merrill & Ring to address the Makah’s access concerns.
There is ample evidence in this record that DNR complied with RCW 79.17.010(5) and
RCW 79.17.020(3) and consulted with the Makah and considered their concerns prior to the Board
approving the Peninsula Exchange. Because DNR complied with the law regarding consultation,
its decision following that consultation was not illegal under the constitutional writ analysis.
Vinson, 172 Wn.2d at 769. The superior court did not abuse its discretion when it denied the writ.
CONCLUSION
Because we resolve this appeal without implicating any treaty rights of the Amici tribes,
we hold that the Amici Tribes are not necessary or indispensable parties. Accordingly, dismissal
of this appeal under CR 19 is not appropriate. We further hold that DNR’s decision that the
Peninsula Exchange was categorically exempt from SEPA review was not clearly erroneous.
Additionally, DNR complied with the public lands management statute by adequately consulting
with the Makah prior to the Board’s approval of the Peninsula Exchange. Because the superior
29
No. 54945-0-II
court’s decision to deny the writ was not manifestly unreasonable, or exercised on untenable
grounds or for untenable reasons, we hold that the superior court did not abuse its discretion. We
affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
SUTTON, J.
We concur:
GLASGOW, A.C.J.
CRUSER, J.
30