173 Wash. 2d 296 | Wash. | 2011
Lead Opinion
¶1 By statute, the legislature requires a permit to withdraw public groundwater or to construct a well to do so. RCW 90.44.050. The statute also provides exemptions from the permit requirement for certain uses. This case concerns the scope of one of those exemptions. We conclude that, under the plain language of the statute, withdrawals of groundwater for stock-watering purposes are not limited to any particular quantity by RCW 90.44-.050. Accordingly, we affirm the superior court’s grant of summary judgment to the respondents. We also affirm the superior court’s refusal to grant summary judgment against the appellants on the basis of standing and its determination that Easterday Ranches Inc. is not entitled to attorney fees as a result of the change of venue.
FACTS
¶2 Easterday seeks to operate a large cattle feedlot in Franklin County. In order to provide water for the 30,000 head of cattle operation, Easterday drilled a well into the Grande Ronde aquifer. At the suggestion of the Department of Ecology (Department), Easterday acquired water rights from a neighboring farm. This transfer, referred to as the “Pepiot Transfer,” gave Easterday the right to withdraw 316
¶3 Scott Collin, Five Corners Family Farmers, the Center for Environmental Law and Policy (CELP), and the Sierra Club (collectively Appellants) filed a declaratory judgment action against the State of Washington, the Department, and Easterday in Thurston County Superior Court. Appellants sought a declaration that the stock-watering exemption from the permit requirement in RCW 90.44.050 is limited to uses of less than 5,000 gallons per day. Appellants further sought an injunction ordering Easterday to cease groundwater use without a permit. Thurston County Superior Court granted Easterday’s motion to change venue to Franklin County but denied Easterday’s request for attorney fees pursuant to RCW 4.12.090.
¶4 Franklin County Superior Court allowed multiple agricultural organizations to intervene as defendants. The parties filed cross motions for summary judgment. The court concluded that genuine issues of material fact precluded Easterday’s motion for summary judgment on the basis of standing but granted the summary judgment motions of Easterday, the Department, and the intervenors (collectively Respondents) with respect to the interpretation of RCW 90.44.050, which the court held unambiguously provides an exemption from the permit requirement for withdrawal of any amount of groundwater for stock-water
• ISSUES
¶5 1. Do Appellants possess standing to bring this declaratory judgment action?
¶6 2. Is the stock-watering exemption in RCW 90.44.050 limited to 5,000 gallons per day?
¶7 3. Is Easterday entitled to attorney fees under RCW 4.12.090?
ANALYSIS
I. Standing
¶8 Appellants have standing to bring this declaratory judgment action. Standing for purposes of the Uniform Declaratory Judgments Act, chapter 7.24 RCW, is set forth in RCW 7.24.020, which provides, in relevant part, that
[a] person . . . whose rights, status or other legal relations are affected by a statute .. . may have determined any question of construction or validity arising under the . . . statute . . . and obtain a declaration of rights, status or other legal relations thereunder.
In order to establish that a party’s “rights, status or other legal relations are affected by a statute,” id., we employ a two-part standing test:
¶9 Where the injury complained of is procedural in nature, standing requirements are relaxed. Seattle Bldg. & Constr. Trades Council v. Apprenticeship & Training Council, 129 Wn.2d 787, 794-95, 920 P.2d 581 (1996) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)). In order to show a procedural injury, a party must (1) identify a constitutional or statutory procedural right that the government has allegedly violated, (2) demonstrate a reasonable probability that the deprivation of the procedural right will threaten a concrete interest of the party’s, and (3) show that the party’s interest is one protected by the statute or constitution. See Summers v. Earth Island Inst., 555 U.S. 488, 496-97, 129 S. Ct. 1142, 173 L. Ed. 2d 1 (2009); Hall v. Norton, 266 F.3d 969, 977 (9th Cir. 2001); Seattle Bldg. & Constr. Trades Council, 129 Wn.2d at 795. The third element is a specific application of the “zone of interests” component of the standing inquiry.
¶10 Appellants have standing. First, Appellants have identified a procedural injury sufficient to establish an injury in fact. The procedural right Appellants were allegedly denied was to have the Department review a permit application and consider, among other things, whether the withdrawal of groundwater would “impair existing rights or be detrimental to the public welfare.” RCW 90.03.290(3). Appellants have also demonstrated a concrete interest that would be affected by the deprivation of that procedural right.
¶11 Organizations have standing to assert the interests of their members, so long as members of the organization 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. Int’l Ass’n of Firefighters, Local 1789 v. Spokane Airports, 146 Wn.2d 207, 213-14, 45 P.3d 186, 50 P.3d 618 (2002). Collin’s standing and his membership support standing for Five Corners Family Farmers and CELP. Sierra Club has established a genuine issue of material fact as to whether there is a reasonable probability that withdrawals of groundwater will impact its members’ specifically alleged concrete interest in recreational use of surface waters. These issues are all germane to purposes of the organizations seeking standing, and the claims and relief sought do not require participation by individual members.
¶12 Finally, we have little difficulty concluding that Appellants’ interests are within the zone of interests to be protected by the statute. In ascertaining the zone of interests protected by a statute, it is appropriate to look both to the operation of the statute, Branson v. Port of Seattle, 152 Wn.2d 862, 876, 101 P.3d 67 (2004), and to the statute’s
¶13 Accordingly, Appellants all possess standing to challenge the Department’s interpretation of RCW 90.44.050 that allows Easterday to withdraw over 5,000 gallons of water per day without obtaining a permit. The trial court did not err in declining to grant summary judgment on the basis of an absence of standing.
II. RCW 90.44.050 Allows Permit-Exempt Withdrawals of Groundwater of Any Amount for Stock-Watering Purposes
¶14 We now turn to the heart of this declaratory judgment action: the interpretation of RCW 90.44.050. We are guided in this process by familiar rules of statutory construction. Our fundamental objective when interpreting a statute is “to discern and implement the intent of the legislature.” State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003). The surest indication of the legislature’s intent is the plain meaning of the statute, which we glean “from all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question.” Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4. (2002). If the statute is “susceptible to two or more reasonable interpretations,” it is ambiguous. Burton v. Lehman, 153 Wn.2d 416, 423, 103 P.3d 1230 (2005). The fact that two or more interpretations are conceivable does not render a statute ambiguous. Id. If
¶15 The full text of RCW 90.44.050 is as follows:
After June 6,1945, no withdrawal of public groundwaters of the state shall be begun, nor shall any well or other works for such withdrawal be constructed, unless an application to appropriate such waters has been made to the department and a permit has been granted by it as herein provided: EXCEPT, HOWEVER, That any withdrawal of public groundwaters for stock-watering purposes, or for the watering of a lawn or of a noncommercial garden not exceeding one-half acre in area, or for single or group domestic uses in an amount not exceeding five thousand gallons a day, or as provided in RCW 90.44.052, or for an industrial purpose in an amount not exceeding five thousand gallons a day, is and shall be exempt from the provisions of this section, but, to the extent that it is regularly used beneficially, shall be entitled to a right equal to that established by a permit issued under the provisions of this chapter: PROVIDED, HOWEVER, That the department from time to time may require the person or agency making any such small withdrawal to furnish information as to the means for and the quantity of that withdrawal: PROVIDED, FURTHER, That at the option of the party making withdrawals of groundwaters of the state not exceeding five thousand gallons per day, applications under this section or declarations under RCW 90.44.090 may be filed and permits and certificates obtained in the same manner and under the same requirements as is in this chapter provided in the case of withdrawals in excess of five thousand gallons a day.
In effect, the statute prohibits withdrawal of public groundwaters until the Department grants a permit to do so and then sets forth a number of exceptions to this general rule. We refer to the sentence defining the exceptions as the “exemption clause.” The statute also includes two provisos relating to the exemption clause, the first
¶16 The parties propose two competing constructions of the exemption clause. Respondents contend that the exemption clause should be divided into four distinct categories as follows:
[A]ny withdrawal of public groundwaters [(1)] for stock-watering purposes, or
[(2)] for the watering of a lawn or of a noncommercial garden not exceeding one-half acre in area, or
[(3)] for single or group domestic uses in an amount not exceeding five thousand gallons a day, or as provided in RCW
90.44.052, or
[(4)] for an industrial purpose in an amount not exceeding five thousand gallons a day,
is and shall be exempt from the provisions of this section.
RCW 90.44.050. Appellants, on the other hand, contend that the exemption clause breaks down into two categories:
[A]ny withdrawal of public groundwaters
[(1)] for stock-watering purposes, or for the watering of a lawn or of a noncommercial garden not exceeding one-half acre in area, or for single or group domestic uses in an amount not exceeding five thousand gallons a day, or as provided in RCW
90.44.052, or
[(2)] for an industrial purpose in an amount not exceeding five thousand gallons a day,
is and shall be exempt from the provisions of this section.
Id. On the basis of this construction, Appellants argue that the “five thousand gallons a day” id., limitation applies to all three uses included in the first category. In other words, Appellants contend that there are two categories and that the first category is a “bundle” of uses, each use being
¶17 Respondents’ interpretation of the exemption clause is reasonable. The interpretation dividing the clause into four distinct exemptions accounts for each word used by the legislature. The categories are logically divided by the legislature’s consistent use of the term “or for,” which appears three times in the proviso, naturally suggesting four categories. In this way, Respondents’ interpretation recognizes the parallel structure of the statute.
¶18 Respondents further rely on a 2005 formal attorney general opinion interpreting RCW 90.44.050,2005 Op. Att’y Gen. No. 17. Such opinions are generally “entitled to great weight.” Seattle Bldg. & Constr. Trades Council, 129 Wn.2d at 803. A formal attorney general opinion may be persuasive authority for one or more of at least three reasons. First, such opinions represent the considered legal opinion of the constitutionally designated “legal adviser of the state officers.” Wash. Const, art. Ill, § 21; cf. City of Seattle v. McKenna, 172 Wn.2d 551, 556-57, 259 P.3d 1087 (2011) (discussing generally the role of the attorney general under the Washington Constitution). Second, we presume that the legislature is aware of formal opinions issued by the attorney general and a failure to amend the statute in response to the formal opinion may, in appropriate circumstances, be treated as a form of legislative acquiescence in that interpretation. Bowles v. Dep’t of Ret. Sys., 121 Wn.2d 52, 63-64, 847 P.2d 440 (1993). The weight of this factor increases over time and decreases where the opinion is inconsistent with previous formal opinions, administrative interpretations, or court opinions. See Davis v. County of King, 77 Wn.2d 930, 933, 468 P.2d 679 (1970) (addressing inconsistent formal attorney general opinions). Third, where the opinion is issued in close temporal proximity to the passage of the statute in question, it may shed light on the intent of the legislature, keeping in mind, of course, that the attorney general is a member of a separate branch of government.
¶19 In the present case, the formal attorney general opinion that Respondents urge us to rely on was issued 60 years after enactment of the statute in question and is contrary to early administrative interpretations of that statute. See 2005 Op. Att’y Gen. No. 17. Moreover, the legislature cannot be said to have acquiesced in the attorney general’s interpretation because it subsequently established a working group to review the issue. Engrossed Substitute H.B. 1244, § 302(17), 61st Leg., Reg. Sess. (Wash. 2009). As such, the attorney general opinion’s force lies exclusively in the persuasiveness of the reasoning. We find much of the reasoning in the attorney general’s 2005 opinion persuasive and have incorporated it in our analysis.
¶20 Notwithstanding the obvious reasonableness of Respondents’ division of the exemption clause into four independent exemptions, Appellants contend that it is unreasonable in light of related statutory provisions. While consideration of related provisions and statutes is undeniably appropriate, Campbell & Gwinn, 146 Wn.2d at 11, we disagree that such consideration undermines the reasonableness of Respondents’ interpretation.
¶21 Appellants first point to the first proviso of RCW 90.44.050, which states that “the department from time to time may require the person or agency making any such small withdrawal to furnish information as to the means for and the quantity of that withdrawal.” Seizing upon the term “any such small withdrawal,” which refers to the four exemptions, Appellants argue that this is evidence that the legislature intended to limit withdrawal to some defined quantity. This is not necessarily so. The legislature may have simply considered stock-watering withdrawals, in the aggregate, small as compared to other agricultural or domestic withdrawals. The term “small withdrawal [s]” is simply a shorthand reference to the four exemptions; it does not independently suggest that permit-exempt stock-water
¶22 Next, Appellants point out that the third proviso to RCW 90.44.050 allows parties “making withdrawals of groundwaters of the state not exceeding five thousand gallons per day” to apply for a permit. This language is clear and unambiguous, granting a certain class of permit-exempt groundwater users the opportunity to apply for a permit. This proviso in no way limits the amount of water that may be withdrawn by permit-exempt users. Appellants suggest that it is indicative of a legislative intent to divide water uses into two categories: (1) uses of 5,000 gallons of water per day or less, which are exempt from permits and (2) uses of more than 5,000 gallons of water per day, which are not exempt from permits. This approach fails for two reasons. First, not all uses of 5,000 gallons of water per day or less are exempt from permit requirements, only those for stock-watering, lawn or noncommercial garden, domestic, or industrial purposes are. RCW 90.44.050. Second, the language plainly does something very different. It identifies only certain uses that are exempt from the permit requirement, places additional limitations on some of those uses, and further allows only some of those certain limited permit-exempt uses to apply for an optional permit. The legislature enacted a sophisticated statute. The legislature’s decision to limit those permit-exempt uses that may apply for an optional permit does not render Respondents’ interpretation unreasonable.
¶23 Finally, Appellants assert that interpreting the exemption clause to allow withdrawal of “unlimited”
¶24 It is conceivable that the legislature intended to allow permit-exempt withdrawals of groundwater for stock-watering purposes without a specified quantity. It may be that, at the time of enactment of RCW 90.44.050, the legislature believed that stock-watering was sufficiently important, and its impact sufficiently slight, that a balancing of interests categorically justified groundwater withdrawals without consideration of other factors.
¶25 In sum, we conclude that Respondents’ interpretation of the RCW 90.44.050 exemption clause is reasonable. This does not end our inquiry; if another interpretation is also reasonable, the statute is ambiguous and we may resort to legislative history and the circumstances surrounding the enactment of the statute.
¶26 Appellants’ interpretation of the exemption clause in RCW 90.44.050 is not reasonable. As discussed above, Appellants contend that the exemption clause should be divided into two categories, the first being a bundle of three purposes and the second being a single purpose. To be reasonable, an interpretation must, at a minimum, account for all the words in a statute. Appellants fail to account for the first “or” in the exemption clause and, as a consequence, fail to give effect to the parallel structure created by the legislature. Simplified, the exemption clause allows withdrawals “for [Purpose A], or for [Purpose B], or for [Purpose C], or for [Purpose D].” RCW 90.44.050. If the legislature had intended to bundle Purposes A through C, we would expect it to read “for [Purpose A], [Purpose B], or [Purpose C], or for [Purpose D]” or “for [Purpose A], for [Purpose B], or for [Purpose C], or for [Purpose D].” Id. Either way, we would not expect a conjunction between the first and second items in a category listing three items. While perhaps conceivable, the “bundle” interpretation is not reasonable. There is simply no basis in the text of the statute to assume that the first three purposes were intended to be considered a single bundle of uses.
¶27 With collapse of the “bundle” interpretation, Appellants’ argument that permit-exempt stock-watering withdrawals are limited to 5,000 gallons per day also fails. Accepting, as the sentence structure makes clear, that the exemption clause contains four distinct categories, it becomes apparent that each category is limited by its own qualifying language and only its own qualifying language.
¶28 In sum, we conclude that there is only one reasonable interpretation of RCW 90.44.050’s exemption clause, as Respondents contend. Accordingly, that interpretation is the plain meaning of the statute. Under this interpretation, the exemption clause breaks down into four categories as follows:
[A]ny withdrawal of public groundwaters [(1)] for stock-watering purposes, or
[(2)] for the watering of a lawn or of a noncommercial garden not exceeding one-half acre in area, or
[(3)] for single or group domestic uses in an amount not exceeding five thousand gallons a day, or as provided in RCW 90.44.052, or
[(4)] for an industrial purpose in an amount not exceeding five thousand gallons a day,
is and shall be exempt from the provisions of this section.
Id. Each category is limited only by the qualifying phrase following it. The stock-watering exemption contains no qualifying phrase. Accordingly, under a plain reading of RCW 90.44.050, groundwater withdrawn without a permit for stock-watering purposes is not limited to 5,000 gallons per day. We affirm the superior court’s grant of summary judgment to Respondents on this basis.
III. Easterday Is Not Entitled to Attorney Fees for the Change of Venue
¶29 The final issue in this case concerns whether Easterday is entitled to attorney fees for changing venue
¶30 It is well established that the “choice of venue lies with the plaintiff in the first instance.’ ” Hatley v. Saberhagen Holdings, Inc., 118 Wn. App. 485, 488-89, 76 P.3d 255 (2003) (quoting Baker v. Hilton, 64 Wn.2d 964, 965, 395 P.2d 486 (1964)). When an action is filed against more-than
CONCLUSION
¶32 We hold that Appellants possessed standing to bring this declaratory judgment action. We further hold that the superior court correctly granted summary judgment to Respondents on the basis that RCW 90.44.050 allows construction of wells and withdrawal of groundwater for stock-watering purposes without a permit and that such withdrawals are not limited to 5,000 gallons per day. Finally, we agree with the superior court that Easterday was not entitled to attorney fees for the change of venue. We affirm the superior court in all respects.
One acre foot is approximately 325,851 gallons.
We also require that there be a “justiciable controversy,” a concept that tends to overlap standing requirements. To-Ro Trade Shows v. Collins, 144 Wn.2d 403, 410-11 & n.5, 27 P.3d 1149 (2001); Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 203, 11 P.3d 762, 27 P.3d 608 (2000). Easterday alleges only that
Appellants’ use of the term “unlimited” is ambiguous. It is accurate insofar as it indicates that use of groundwater for stock-watering purposes without a permit is not limited to a specific quantity by RCW 90.44.050. However, there are other limits to such use. See, e.g., RCW 90.44.050 (limiting use to purpose of stock-watering and requiring that water be “regularly used beneficially”), .130 (permit-exempt use
To the extent this reasoning no longer holds true, it is for the legislature, not this court, to amend the statute.
If RCW 4.12.010 applied, that would raise the troublesome issue of whether that statute is one of jurisdiction, Snyder v. Ingram, 48 Wn.2d 637, 638, 296 P.2d 305 (1956), or one of venue, cf. Young v. Clark, 149 Wn.2d 130, 134, 65 P.3d 1192 (2003) (overruling case law and holding that article IV, section 6 of the Washington Constitution generally prevents the legislature from limiting subject matter jurisdiction “as among superior courts”). Unless we were to overrule Snyder, if RCW 4.12.010 required that this case be filed in Franklin County, the proper remedy would have been dismissal, not transfer. The parties have not briefed this issue, and we decline to address it.
Dissenting Opinion
¶33 (dissenting) — I agree with the majority that appellants Five Corners Family Farmers et al. have
¶34 The purpose of requiring a permit for groundwater use is to protect senior water rights and the public welfare. Before a permit is issued, the Department of Ecology must find that (1) water is available, (2) the proposed use is beneficial, and (3) appropriation will not impair existing rights or (4) be detrimental to the public welfare. RCW 90.03.290(3). If a groundwater use is exempt from permitting requirements, the Department of Ecology does not make these findings before use begins. Thus, any permit-exempt use potentially threatens existing water rights and the public welfare; the larger the exemption, the greater the threat.
¶35 I conclude that the legislature never intended that RCW 90.44.050 would allow Easterday to use between 450,000 and 600,000 gallons of water per day with no inquiry whatsoever into whether existing rights may be impaired or the public welfare may be harmed. Rather, I believe the legislature enacted an ambiguous statute that is now being read to produce a result contrary to legislative intent.
I. The stock-watering exemption is ambiguous
¶36 We apply ordinary principles of statutory interpretation to determine whether a statute is ambiguous. For a statute to be ambiguous, it must have more than one reasonable interpretation. State v. Keller, 143 Wn.2d 267, 276, 19 P.3d 1030 (2001). A statute’s meaning is derived “from all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question.” Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4 (2002). We must not read any provision in isolation but look at the statute as a whole. Id.
¶38 Under the “unlimited” interpretation, the statute creates four categories of exemption, each of which is subject only to its own limitations:
[A]ny withdrawal of public ground waters
[(1)] for stock-watering purposes, or
[(2)] for the watering of a lawn or of a non-commercial garden not exceeding one-half acre in area, or
[(3)] for single or group domestic uses in an amount not exceeding five thousand (5,000) gallons a day, or
[(4)] for an industrial purpose in an amount not exceeding five-thousand (5,000) gallons a day,
is and shall be exempt from the provisions of this section. . . .
Laws of 1945, ch. 263, § 5. Under this approach, three of the four delineated categories are expressly limited. The third (single or group domestic use) and the fourth (industrial use) are expressly limited to withdrawals of less than 5,000 gallons per day. The second category (watering a lawn or a noncommercial garden) is limited to one-half acre. By contrast, the first category (stock-watering purposes) contains no language limiting the amount of withdrawal.
¶39 Under the second “limited” interpretation, the exemption is divided into two categories, domestic and industrial, and the 5,000 gallon per day limit applies to both:
[A]ny withdrawal of public ground waters
[(1)] for stock-watering purposes, or for the watering of a lawn or of a non-commercial garden not exceeding one-half acre in area, or for single or group domestic uses in an amount not exceeding five thousand (5,000) gallons a day, or
*318 [(2)] for an industrial purpose in an amount not exceeding five thousand (5,000) gallons a day,
is and shall be exempt from the provisions of this section. . . .
Id. (emphasis added).
¶40 Under this view, the first 5,000 gallon limitation applies to the first three exemptions. The second 5,000 gallon limitation applies to industrial use. In other words, every permit-exempt use is limited to 5,000 gallons per day.
¶41 I disagree with the majority’s conclusion that this limited interpretation is not reasonable. I find both the limited and unlimited interpretations reasonable, and for that reason I believe the statute is ambiguous.
¶42 The statute is ambiguous when it is read as a whole. The ambiguity arises from two provisos found at the end of the statute. The first proviso allows the Department of Ecology to request information from the water user about permit-exempt use. In doing so, it refers to all permit exemptions as “small withdrawal [s]”:
PROVIDED, HOWEVER, That the department from time to time may require the person or agency making any such small withdrawal to furnish information as to the means for and the quantity of that withdrawal. . . .
RCW 90.44.050. This reference to “small withdrawal” suggests the legislature intended to exempt only small water uses. This creates dissonance with the unlimited interpretation, which would allow very large permit-exempt withdrawals. This in turn suggests that the limited interpretation is more reasonable. In particular, it seems highly unlikely that the legislature would have used the term “small withdrawal” if it had intended to create a permit exemption that was entirely without limit and could be used to withdraw more than 400,000 gallons of water per day without a permit.
PROVIDED, FURTHER, That at the option of the party making withdrawals of groundwaters of the state not exceeding five thousand gallons per day, applications under this section or declarations under RCW 90.44.090 may be filed and permits and certificates obtained in the same manner and under the same requirements as is in this chapter provided in the case of withdrawals in excess of five thousand gallons a day.
Id. The language of this second proviso suggests that there are two classes of water use: uses under 5,000 gallons per day that fall under an exemption and uses over 5,000 gallons per day, which always require a permit. This language appears to assume that every permit-exempt withdrawal is limited to 5,000 gallons per day. Indeed, I have a hard time seeing how the second proviso can be read any other way. This second proviso plainly conflicts with the unlimited interpretation, again making the limited interpretation more reasonable in comparison.
¶44 I am not convinced by the majority’s attempt to explain away this inconsistency. See majority at 310. The majority claims the legislature meant to give exempt users the option of obtaining a permit if they use less than 5,000 gallons per day but not if they use more than 5,000 gallons per day. Frankly, this explanation strains credulity. I can think of no possible reason to allow the option of a permit
¶45 These two provisos lead me to believe that both the limited and the unlimited interpretations are reasonable, and therefore the statute is ambiguous. The unlimited interpretation is in patent disharmony with the second proviso, and arguably with the first proviso as well. In contrast, the limited interpretation makes sense in light of both. We should not pretend a statute has a plain meaning when it does not. Instead, we should recognize that RCW 90.44.050 is ambiguous and attempt to decipher its legislative intent.
II. The legislature intended to limit the stock-watering exemption to 5,000 gallons per day
¶46 Our fundamental objective in constructing a statute is to ascertain and carry out the intent of the legislature. Rozner v. City of Bellevue, 116 Wn.2d 342, 347, 804 P.2d 24 (1991). Here, many factors lead me to conclude that the legislature’s intent was to cap all permit exemptions at 5,000 gallons per day, including the stock-watering exemption.
¶47 First, an unlimited interpretation conflicts with the purpose of the 1945 groundwater code. The purpose of the 1945 code was to subject the withdrawal of groundwater to the permitting process in order to protect senior water
¶48 Second, the limited interpretation is consistent with the historical context in which the exemption was enacted.
At the time the Legislature enacted the statute, Washington and the United States Bureau of Reclamation were attempting to populate the Columbia Basin region with family farms [as] part of its plan to “develop the West through the creation of permanent family farms on Federal Reclamation projects.” . . .
For settlement to succeed, every rural settler needed a domestic supply of water at a minimum cost.
Kara Dunn, Got Water? Limiting Washington’s Stock-watering Exemption To Five Thousand Gallons Per Day, 83
A 1945 Bureau of Reclamation report on farm improvement recommended that the supply of domestic water “should be sufficient (1) to satisfy the personal demands of the settlers, including the operation of plumbing facilities; (2) to water livestock; (3) to sprinkle lawns and small gardens occasionally; (4) to process farm products; and (5) to provide some fire protection.” These recommended categories parallel the categories codified in Washington’s groundwater exemption statute in the same year that the Bureau of Reclamation published its report.
Id. at 258-59 (footnote omitted). It was estimated that these farms would use an average of 200 to 1,500 gallons of water per day. Id. It is highly unlikely that the legislature contemplated in 1945 that the stock-watering exemption would apply to an industrial feedlot using between 450,000 and 600,000 gallons of water per day, and we should be wary of any interpretation that allows such a use. In contrast, the limited interpretation is consistent with the concerns of the era in which it was enacted.
¶49 Third, the limited interpretation is more consistent with our canons of statutory construction. It is well established that “words grouped in a list should be given related meaning.” Third Nat’l Bank in Nashville v. Impac Ltd., Inc., 432 U.S. 312, 322-23, 97 S. Ct. 2307, 53 L. Ed. 2d 368 (1977). In Washington, this is enshrined in the principle of noscitur a sociis, which roughly translates to “words are known by the company they keep.” See State v. Roggenkamp, 153 Wn.2d 614, 623, 106 P.3d 196 (2005). Here, three of the exemptions in RCW 90.44.050 are indisputably limited in some way: the single- or group-domestic and industrial exemptions are limited to 5,000 gallons a day, and the
¶50 Fourth, as discussed above, the two provisos in the statute suggest a legislative intent to limit the exemption to 5.000 gallons per day. The reference to “any such small withdrawal” in the first proviso is particularly suggestive of legislative intent in light of the fact that two of the exemptions to which it refers are unquestionably limited to 5.000 gallons per day, and the other to one-half acre of lawn. In this context, it is illogical to consider 450,000 to 600,000 gallons per day to be a “small withdrawal.” As for the second proviso, as discussed above, only the limited interpretation is consistent with this proviso, suggesting the legislature intended this interpretation and not an unlimited one. In short, both provisos support the limited interpretation and undermine an unlimited interpretation.
¶51 Finally, we should be guided by Department of Ecology's long standing interpretation of the exemption. We accord great weight to the contemporaneous construction placed on a statute by officials charged with its enforcement, especially where the legislature has silently acquiesced in that construction over a long period of time. In re Sehome Park Care Ctr., Inc., 127 Wn.2d 774, 780, 903 P.2d 443 (1995) (citing Bennett v. Hardy, 113 Wn.2d 912, 928, 784 P.2d 1258 (1990)). Until 2005, the agency responsible for enforcement of the groundwater code (initially the Department of Conservation and then the Department of Ecology) followed the limited interpretation. The most recent example of this is the 2001 DeVries litigation. DeVries v. State, PCHB 01-073, 2001 WA ENV LEXIS 46 (Wash. Pollution Control Hr’gs Bd. Sept. 27, 2001) (limiting the
¶52 The legislature may have drafted an ambiguous stock-watering exemption, but its purpose is sufficiently clear. We should hold that the exemption is limited to 5,000 gallons per day.
¶53 I dissent.
I use the statute as originally passed in 1945 for this analysis. See Laws of 1945, ch. 263, § 5 (codified as amended at RCW 90.44.050).
The majority suggests that “[t]he legislature may have simply considered stock-watering withdrawals, in the aggregate, small as compared to other agri
The second proviso was added to the statute in 1947, but that does not mean we cannot rely on it to ascertain legislative intent. “[W]here a former statute is amended, such amendment is strong evidence of legislative intent of the first statute.” Waggoner v. Ace Hardware Corp., 134 Wn.2d 748, 755-56, 953 P.2d 88 (1998) (citing 2B Norman J. Singer, Sutherland Statutory Construction § 49.11, at 83 (5th ed. 1992); Cowiche Growers, Inc. v. Bates, 10 Wn.2d 585, 604, 117 P.2d 624 (1941); Groves v. Meyers, 35 Wn.2d 403, 408, 213 P.2d 483 (1950)).
See Wash. State Nurses Ass’n v. Bd. of Med. Exam’rs, 93 Wn.2d 117, 121, 605 P.2d 1269 (1980) (“[Legislative purpose] can be found by examining the historical context in which a statute was passed to identify the problem that the statute was intended to solve.” (citing Pearce v. G.R. Kirk Co., 92 Wn.2d 869, 872, 602 P.2d 357 (1979))).
The legislature has not acquiesced in the unlimited interpretation of 2005 Op. Att’y Gen. No. 17. Instead, the legislature has convened a task force to study how to deal with the stock-watering exception. Engrossed Substitute H.B. 1244, § 302(17)(a)-(c), at 107, 61st Leg., Reg. Sess. (Wash. 2009). At the end of 2009, the task force reported to the legislature that it had studied the issue but had not decided on any recommendation. Dep’t of Ecology, Stock Water Working Group Report, available at http://www.ecy.wa.gov/programs/wr/hq/pdi/swtr/ 011010_stockwater_workingroup _finalreport.pdf (Jan. 11,2010). Some members questioned the wisdom of proceeding with any recommendations while this case is pending before us. Id. at 6 (“I think it makes much more sense for this work group to meet after the courts have weighed in on this issue.”).