Esses Daman Family, Llc, Res/cross-app. v. Dept Of Natural Resources
76016-5
Wash. Ct. App.Aug 14, 2017Background
- The Forest Practices Act (FPA) and Forest Practices Board (FPB) rules govern locating a Channel Migration Zone (CMZ) to set Riparian Management Zones (RMZs); the FPB Manual is an advisory technical supplement that provides CMZ delineation guidance.
- Sherman Esses and Esses Daman Family LLC (Daman Family) own adjacent parcels near the Quinault River and applied to log; DNR approved permits without completing CMZ/RMZ analysis.
- Quinault Indian Nation appealed; the Pollution Control Hearings Board (PCHB) held an eight-day evidentiary hearing with competing CMZ delineations from five geologists.
- PCHB found DNR’s expert most credible, concluded the river would migrate northward over time but treated South Shore Road as a “permanent dike or levee,” so CMZ stopped at the road and RMZ extended 140 feet onto the parcels; PCHB reversed the permits.
- Superior court reversed the PCHB, holding the PCHB misread the Manual; Daman Family’s separate appeal to superior court was dismissed because it raised an argument not presented to the PCHB.
- Court of Appeals: affirmed dismissal of Daman Family appeal for failure to raise the issue before the agency; reversed PCHB’s CMZ delineation for misinterpreting the Manual and remanded for reconsideration excluding South Shore Road as a permanent dike or levee.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Daman Family may argue on appeal that compliance with the Manual entitles automatic permit approval | Daman Family: if its CMZ complied with Manual, DNR must approve and PCHB must accept its CMZ | DNR/PCHB: PCHB may evaluate competing analyses and choose the most credible | Dismissed Daman Family appeal — issue not preserved before the PCHB; barred from raising on appeal |
| Whether the Manual’s text excludes structures with culverts from qualifying as a “permanent dike or levee” for DMAs | Nation: underlined exception in Manual means perforated structures allowing fish passage are not “permanent dike or levee” | DNR/PCHB: Manual ambiguous; underlined text not limiting the two-part definition, and roads could qualify | Court: Manual unambiguous — underlined text creates an exception; PCHB misinterpreted Manual; error of law |
| Whether PCHB properly found South Shore Road qualifies as a permanent dike or levee under alternative two (public right‑of‑way with regular maintenance) | Nation: road is not structurally sufficient and county armoring in future is speculative | DNR/PCHB: county maintains road and will armor when needed; qualifies under alt. two | Reversed — insufficient evidence that road maintains structural integrity or that future armoring is reasonably certain; finding speculative |
| Standard of review for Manual interpretation | Nation: apply statutory interpretation rules; review legal question de novo | DNR: treat Manual interpretation as fact; defer to agency under substantial-evidence review | Court: apply rules of statutory construction and review PCHB’s interpretation de novo; no deference where language is unambiguous |
Key Cases Cited
- Dep’t of Natural Resources v. Marr, 54 Wn. App. 589 (1989) (FPA background on forest practice regulation)
- Theodoratus, 135 Wn.2d 582 (1998) (agency interpretations and deference principles)
- Port of Seattle v. Pollution Control Hr’gs Bd., 151 Wn.2d 568 (2004) (standard for reviewing agency action and arbitrary-and-capricious analysis)
- Mader v. Health Care Auth., 149 Wn.2d 458 (2003) (applying statutory construction rules to regulations)
- Durland v. San Juan County, 182 Wn.2d 55 (2014) (different terms in same document presumed to have different meanings)