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Harris v. Pierce County

October 4, 1996


Appeal from Superior Court of Pierce County. Docket No: 90-2-09741-8. Date filed: 10/21/94. Judge signing: Hon. Rosanne N. Buckner.

Released for Publication December 6, 1996.

Authored by John E. Turner. Concurring: David H. Armstrong, Carroll C. Bridgewater

The opinion of the court was delivered by: Turner

TURNER, J. -- Citizens Against the Trail (CAT) oppose Pierce

County's (the County) proposal to establish a multi-use trail. On appeal, CAT argues that the trial court erred in dismissing its petition for a writ of review. It further contends that the final environmental impact statement (EIS) is invalid. We hold that the trial court properly dismissed CAT's petition for a writ of review because the County's actions were legislative in nature and because CAT failed to establish standing.

Accordingly, we do not reach the issues regarding the validity of the EIS.

We also hold that the trial court did not abuse its discretion in refusing to review a legal memorandum generated by the County because it was clear that such memorandum was not discoverable. Affirmed.


The Pierce County Comprehensive Park and Recreation Plan (Parks Plan) proposed a system of multi-purpose trails that could be connected to state and national trail systems. The Parks Plan was the product of extensive telephone surveys, public workshops and meetings by a 13 member Planning Advisory Committee, overseen by the Director of the County Parks, Recreation and Community Services Department. This Parks Plan included policies by which to plan and develop future park and recreational facilities within the County. It also included a proposal for the development of a system of multi-purpose trails.

Adopting proposals in the Parks Plan, the Parks Department drafted the Foothills Linear Park/Trail segment of the Nisqually Delta/Mount Rainier Trail Plan (Master Trail Plan). The Master Trail Plan discussed various alternative routes and how to connect such trails to other trails systems to form a continuous trail system from the Nisqually Delta to Mount Rainier. It stated that the preferred alternative was a former Burlington Northern Railroad right-of-way.

In August 1989, the county planning department issued a draft environmental impact statement (DEIS) for the Master Trail Plan. The DEIS examined environmental impacts that would be associated with conversion of either the Burlington Northern Railroad right-of-way or the alternative trail routes. In October 1989, the Planning Department issued the final environmental impact statement (FEIS), which included responses to comments received on the DEIS.

In November 1989, the Pierce County Council adopted the Master Trail Plan. That month, CAT filed an administrative appeal challenging the adequacy of the FEIS. The Hearing Examiner for Pierce County held public hearings on CAT's appeal and ultimately concluded that the FEIS was in compliance with the law. Accordingly, the Hearing Examiner denied CAT's appeal.

CAT appealed the Hearing Examiner's decision to the Pierce County Council challenging the FEIS and the Hearing Examiner's findings on numerous grounds. After another public hearing, the Pierce County Council passed Resolution 90-143, to deny CAT's appeal and affirm the adequacy of the FEIS.

In October 1990, after reviewing the record, the County Council adopted Ordinance (PCO) 90-6, which established the Foothills Linear Park/Trail in East Pierce County. The ordinance authorized the County to acquire, construct and maintain the trail.

On October 18, 1990, CAT filed a Petition for Writ of Certiorari and Judicial Review with the Pierce County Superior Court. CAT claimed that the court had jurisdiction under RCW 7.16.030 et seq. (certiorari) and PCC sec. 17.08.260. This Pierce County Ordinance establishes the County's administrative review procedure and mirrors administrative review under the State Environmental Policy Act (SEPA). CAT claimed that the County Council erred in passing Resolution 90-143, which upheld the FEIS and in passing Ordinance 90-6, which established the Foothills Linear Park/Trail.

After a hearing, the trial court denied CAT's writ of review. The court decided that it did not have authority to review the County Council's legislative actions regarding the trail. It also concluded that: the Trail Plan was a non-project action; that EIS requirements for non-project actions are more flexible; and that the Hearing Examiner's Conclusions regarding the adequacy of the EIS were not clearly erroneous. The trial court also denied CAT's motion to compel disclosure of a memorandum prepared by legal counsel for the County Council. CAT then appealed to this court. ANALYSIS

I. Dismissal of CAT's Petition for Writ of Review.

Because no statute authorizes a direct appeal in this case, the only potential methods of review are: review pursuant to statutory writ of certiorari, under RCW 7.16.040; and discretionary review pursuant to the court's inherent constitutional powers. Kreager v. ...

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