Darrell De Tienne, V Shorelines Hearings Board
391 P.3d 458
Wash. Ct. App. U2016Background
- Landowner Darrell de Tienne sought a shoreline substantial development permit to operate a 5-acre commercial geoduck farm (0.5 intertidal, 4.5 subtidal) on a 10.74-acre parcel on Henderson Bay that contains a continuous eelgrass bed and is designated a shoreline of statewide significance.
- Prior unauthorized geoduck harvesting in 2001 damaged eelgrass; subsequent surveys (2004, 2009, 2012) delineated eelgrass and informed proposed buffers and monitoring.
- Applicant originally endorsed a State FSEIS 2-foot vertical (≈180-foot horizontal in shallow slope areas) buffer for subtidal harvests; during permitting the parties negotiated smaller buffers: 10-foot shoreward and a 25-foot waterward horizontal buffer, with monitoring and adaptive management.
- Pierce County Hearing Examiner approved the permit with the reduced buffers and monitoring conditions; Coalition to Protect Puget Sound Habitat and others appealed to the Shorelines Hearings Board (SHB).
- SHB held extensive hearings, found the reduced buffers and reliance on monitoring/adaptive management inadequate to protect eelgrass and dependent species (notably herring), and reversed—denying the permit; superior court affirmed. The Court of Appeals affirmed the SHB.
Issues
| Issue | de Tienne (applicant) Argument | Coalition / Pierce County (opposing) Argument | Held |
|---|---|---|---|
| Timeliness of SHB decision | SHB exceeded statutory 180(+30) day limit so decision void | SHB had consolidated petitions and extended for good cause; decision timely | Court: SHB decision timely; no statutory-authority error |
| Substantial evidence of potential adverse impacts to eelgrass | Evidence shows sediment plumes are localized; expert Meaders: 10–25 ft buffers with monitoring are adequate | FSEIS and other experts show harvest causes sedimentation/turbidity that can harm eelgrass; larger buffers needed | Court: Substantial evidence supports SHB finding of potential adverse impacts and inadequacy of small buffers |
| Credibility and weight of experts (Meaders vs. Coalition experts) | Meaders’ testimony relied on recent studies and agency discussions; agencies concurred | SHB found Meaders lacked independent expertise on sediment transport/ eelgrass biology; relied on unpublished/limited studies; Coalition experts persuasive | Court: Defer to SHB credibility determinations; SHB permissibly discounted Meaders and found Coalition experts credible |
| Interpretation of Pierce County Code and SMP (no-net-loss / priority for aquaculture) | PCC prioritizes aquaculture; permit satisfies local code and state interests | SMP requires precluding damage to fragile areas and maintaining highest environmental quality; no-net-loss and shoreline-of-statewide-significance demand stricter protection | Court: SHB correctly interpreted PCC and SMP; reduced buffers conflicted with SMA goals (balancing statewide interests) |
Key Cases Cited
- Buechel v. Dep't of Ecology, 125 Wn.2d 196 (1994) (SHB review is de novo and SHB has specialized shoreline expertise)
- Port of Seattle v. Pollution Control Hr'gs Bd., 151 Wn.2d 568 (2004) (standard for substantial evidence and arbitrary/capricious review)
- Robertson v. May, 153 Wn. App. 57 (2009) (SHB findings must align with record evidence about eelgrass presence)
- Cornelius v. Dep't of Ecology, 182 Wn.2d 574 (2015) (give great weight to SHB interpretation of SMA and SMP when consistent with statute)
- Weyerhaeuser Co. v. King County, 91 Wn.2d 721 (1979) (SHB/SMA interpretive deference; furthering SMA goals supports affirmance)
- Hayes v. Yount, 87 Wn.2d 280 (1976) (legislative intent to control cumulative, piecemeal shoreline development)
- Durand v. San Juan County, 182 Wn.2d 55 (2014) (attorney-fees entitlement under statute when party substantially prevails before SHB and in prior proceedings)