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The Lands Council v. The Washington State Parks and Recreation Commission

Court of Appeals of Washington, Division 2

September 17, 2013

The Lands Council, Appellant,
v.
The Washington State Parks and Recreation Commission, Respondent

Page 735

Appeal from Thurston Superior Court. Docket No: 11-2-01340-2. Date filed: 02/03/2012. Judge signing: Honorable Christine A. Pomeroy.

David A. Bricklin (of Bricklin & Newman LLP ), for appellant.

Robert W. Ferguson, Attorney General, James R. Schwartz, Senior Counsel, and Jessica E. Fogel, Assistant, for respondent.

AUTHOR: Thomas R. Bjorgen, J. We concur: Joel Penoyar, J., Lisa Worswick, C.J.

OPINION

Page 736

[176 Wn.App. 790] Bjorgen, J. --

¶ 1 The Lands Council, a private organization, appeals the superior court's grant of summary judgment [1] in favor of the Washington State Parks and Recreation Commission (Commission) on the Lands Council's claim that the Commission improperly classified 279 acres of Mount Spokane State Park without preparing an environmental impact statement (EIS). The Commission cross appeals the superior court's conclusion that the Lands Council had standing. We hold that the Lands Council had standing and that the Commission violated the State Environmental Policy Act (SEPA) [2] by taking this action without [176 Wn.App. 791] preparing an EIS. Accordingly, we affirm in part and reverse in part.

FACTS

A. The Nature and History of the Proposal

¶ 2 The Commission is responsible for managing state park land and using that land to provide recreation to Washington residents. Mount Spokane State Park encompasses about 14,000 acres and supports a variety of year-round recreational activities. Mount Spokane 2000 (MS 2000) is a nonprofit ski resort, which has leased 2,300 acres of land from the state since 1951. MS 2000 has developed 1,450 acres of its leased land as an alpine ski facility, leaving 850 undeveloped acres. The undeveloped acres are known as the potential alpine ski expansion area (PASEA).

¶ 3 In 2008, MS 2000 submitted a conceptual plan to develop most of the 850 acres in the PASEA but later abandoned that plan. In August 2010, the Commission prepared a facilities master plan, but because MS 2000 was no longer pursuing its 2008 plan, the master plan did not classify the PASEA. [3] In

Page 737

December 2010, MS 2000 submitted a new conceptual plan for the PASEA. Under this plan, ski runs would be developed over 279 acres, with the remaining 571 acres in the PASEA left in a natural condition and used for lower impact activities such as snowshoeing. The Commission agreed to address both the PASEA classification for the 850 acres and MS 2000's development concept for the 279 acres at its May 2011 meeting.

¶ 4 In preparation for the May meeting, commission staff prepared a PASEA management classification plan, which considered a number of scenarios, including authorizing no development, authorizing different levels of low impact [176 Wn.App. 792] activities, and authorizing the proposed ski run expansion in a portion of the PASEA. The commission staff also provided MS 2000 with an environmental checklist under SEPA, which incorporated several environmental reports and analyses from the 2010 master planning process. After the commission staff reviewed the completed environmental checklist, it determined that a mitigated determination of nonsignificance (MDNS) [4] was appropriate under SEPA for both MS 2000's concept and the management classifications proposed for commission adoption. The MDNS for the conceptual plan included the condition that MS 2000 prepare an EIS and a supplemental EIS when it submitted an actual detailed development proposal. The MDNS also included numerous other requirements and restrictions on any actual development.

¶ 5 The Commission held public meetings on the proposal on May 18 and 19, 2011. After taking public comment, the Commission classified the 279-acre proposed alpine ski area as " Recreation," except that the treed islands between the ski runs were classified " Resource Recreation." [5] Clerk's Papers (CP) at 367-69.

¶ 6 The Commission also stated that the classification option it approved " would allow for the development of the MS 2000 proposal to develop one lift and seven ski runs on the 279-acre developed ski area ... ." CP at 367. The Commission's action " predicated" this development on a number of other steps, among which were " [s]uccessful project level environmental review and permitting" and approval by the director of parks and recreation " of the final development plan for expansion of developed alpine skiing into the PASEA." CP at 367. The Commission's action also specified that the " MS 2000 proposal is conceptual in nature and that final development plans will designate the [176 Wn.App. 793] location of the treed ski islands and developed ski runs." CP at 367.

¶ 7 The report by the commission staff on the proposal adopted by the Commission and other options noted that the PASEA " is known to support sensitive plant associations and habitats suitable for Canada Lynx, Grey Wolf, and Wolverine listed as threatened, endangered, and candidate species respectively by the U.S. Fish and Wildlife Service." CP at 101. The staff report stated that

[h]abitat provided in the PASEA retains its integrity given limited past disturbance by humans and its connectivity to other functional habitats throughout the park, Spokane County, and the greater Washington-Idaho landscape.

CP at 101. As climatic conditions change, the report noted, " [T]he PASEA (especially the highest areas on the mountain) may serve as a critical refuge for migrating and resident wildlife species." CP at 101. Finally, the report stated:

From a biological perspective, the PASEA's significance is not inherent in its individual significant natural features, e.g., wetlands, old growth trees, or non-forested meadows, but in the assemblage of all of them, their interdependence, their undisturbed extent, and the diversity of habitats they create together. Protecting the most significant individual features and removing those of lesser significance may undermine their biological integrity by reducing connectivity and biologically fragmenting one natural system from another. Additional human presence would also result in impacts to resident wildlife species sensitive

Page 738

to large numbers of people and intense activity.

CP at 101.

¶ 8 In its comment letter, the Washington Department of Fish and Wildlife stated that the proposed expansion " will effectively eliminate nearly 300 acres of old-growth forest habitat and reduce the ecological value and function of the remaining habitat." CP at 126. The Department took the [176 Wn.App. 794] position that completing the EIS after issuing the MDNS would not effectively mitigate all probable, significant adverse environmental impacts of the proposal. The Department of Natural Resources took the position that the proposal would adversely impact wildlife habitat.

B. Procedural Background

¶ 9 The Lands Council petitioned for review in superior court, challenging the Commission's management classification [6] of the PASEA without an EIS. The Lands Council requested relief through the Administrative Procedure Act, [7] SEPA, the uniform Declaratory Judgments Act, [8] a statutory writ of certiorari, [9] and a constitutional writ of certiorari.

¶ 10 The Commission and MS 2000 moved for partial summary judgment dismissing the Lands Council's claims under the Administrative Procedure Act, SEPA, the Uniform Declaratory Judgments Act, and the certiorari statute and ruling that the Lands Council lacked standing under SEPA. The Lands Council filed a cross motion requesting issuance of a constitutional writ of certiorari, which the Commission and MS 2000 opposed.

¶ 11 The superior court held that the Lands Council had standing to bring the action and that the Commission had properly followed SEPA in adopting its classifications in May 2011. On this basis, the court granted summary judgment to the Commission dismissing with prejudice all claims by the Lands Council under the Administrative Procedure Act, the Uniform Declaratory Judgments Act, the statutory writ of certiorari, and SEPA. The court also denied the Lands Council's petition for a constitutional writ [176 Wn.App. 795] of certiorari, finding no evidence of illegality or arbitrary and capricious conduct in conjunction with the Commission's challenged actions.

¶ 12 The Lands Council appealed, and the Commission cross appealed on the issue of standing. MS 2000 intervened in ...


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