Appeal from SUPERIOR COURT YAKIMA COUNTY. Superior Court No: 93-2-02157-6. Date filed in Superior Court: 3/20/94. Superior Court Judge signing: STEPHEN BROWN.
Philip J. Thompson, Dennis J. Sweeney & Ray E. Munson, concur
THOMPSON, J.-- The Yakima Indian Nation appealed 43 Department of Ecology (Department) decisions to the Pollution Control Hearings Board (PCHB). The decisions permitted various applicants to withdraw groundwater in the Black Rock, Moxee and Rattlesnake Ridge areas around Yakima. Motions by several applicants to dismiss the appeals as untimely were denied by the PCHB and the applicants appealed to Yakima County Superior Court. After the superior court reversed the PCHB, the Yakima Indian Nation commenced this appeal. We reverse the superior court and remand to the PCHB for further proceedings.
With limited exceptions, facts pertinent to the review of administrative proceedings are established at the administrative hearing. RCW 34.05.558; Waste Management
of Seattle Inc. v. Washington Utils. & Transp. Comm'n, 123 Wash. 2d 621, 632-33, 869 P.2d 1034 (1994). Accordingly, the facts relevant to this appeal are taken from the unchallenged PCHB findings of fact.
Between 1980 and 1993, the 43 individual applicants whose decisions are at issue submitted groundwater applications to the Department. In accordance with Department policy, the Yakima Indian Nation was notified of these applications.
The Department did not immediately grant or deny the applications. It undertook to investigate the condition of the groundwater bodies from which the appropriations were sought. It also conducted public meetings and accepted comments from interested parties, including the Yakima Indian Nation. Specifically, the PCHB found the Yakima Indian Nation participated in the administrative proceedings as follows:
On June 4, 1992, representatives of the Yakima Indian Nation attended a public meeting convened by the Department. In early 1993, Thomas E. Ring, a hydrogeologist for the Yakima Indian Nation, prepared a "Review of Literature Pertinent to Impacts of Further Groundwater Development, Black Rock-Moxee Study Area, Washington" (Literature Review). The Literature Review was prepared in response to the Department's "Black Rock-Moxee Valley Groundwater Study."
On March 18, 1993, the Yakima Indian Nation attended another meeting convened by the Department in connection with the applications. On May 28, the technical staffs of the Department and the Yakima Indian Nation met and discussed Black Rock-Moxee hydrogeology and the groundwater applications. On June 4, the Yakima Indian Nation wrote the Department and expressed appreciation for the "frank technical exchange" on May 28. Thirty-seven copies of Mr. Ring's Literature Review were provided for inclusion in the 37 Black Rock-Moxee applications.
Copies of the Department's decisions were requested.*fn1
The groundwater applications at issue were approved by the Department during May, June and July, 1993. The orders of approval were mailed to the applicants on the day of issue, but copies for the Yakima Indian Nation were set aside by the Department for later mailing. When several orders were accumulated, they were sent to the Yakima Indian Nation in one envelope. One envelope was mailed on June 7; another on July 7. The Yakima Indian Nation received the first envelope on June 17 and the second on July 7.
On July 19 the Yakima Indian Nation filed appeals from the orders mailed on June 7 and received on June 17. On July 19, August 4, and August 5, the Yakima Indian Nation filed appeals from those orders mailed on July 7 and received on July 7. The appeals were consolidated. Applicants then moved for dismissal of the appeals as untimely.
The PCHB determined that RCW 43.21B.230 established a 30-day appeal period which commenced on the date the Yakima Indian Nation received copies of the Department's orders. Further, pursuant to administrative rule, in those instances where the 30th day fell on Saturday, both Saturday and Sunday were excluded in computing the appeal period.
The superior court determined the 30-day appeal period established in RCW 43.21B.230 commenced on the date the Department issued its orders, not when the Yakima Indian Nation received them. It further determined the appeal period was not tolled until the orders were mailed to the Yakima Indian Nation because the Yakima Indian Nation was not legally entitled to notice. The superior court remanded the matter to the PCHB with instructions
to dismiss any appeal filed more than 30 days from the date appearing on ...