BEFORE THE POLLUTION CONTROL HEARINGS BOARD

STATE OF WASHINGTON

 

CENTER FOR ENVIRONMENTAL LAW & POLICY

 

                        Appellant,

            v.

STATE OF WASHINGTON, DEPARTMENT OF ECOLOGY; and STEVEN D. and SHARON A. DERUYTER, d/b/a FIVE D FARMS

 

                        Respondents.

PCHB No. 00-090

 

ORDER OF DISMISSAL

 

            This matter comes to the Board on Respondent Department of Ecology’s (Ecology) Motion to Dismiss the Center for Environmental Law and Policy (CELP) Appeal and Motion for Summary Judgment.[1].  The Motion to Dismiss is founded on the allegation that CELP failed to timely file its notice of Appeal with the Board and to timely serve Ecology, and that CELP lacks standing to bring the appeal.

            Oral argument on the Motion was held in the Board’s office in Lacey, Washington, on September 11, 2000.

            The board is composed of Ann Daley, Presiding, James A. Tupper, Jr., and Robert V. Jensen.  In addition to the oral argument, the Board renders this decision after review of the following pleadings, including all attachments thereto:

1.      Respondent Department of Ecology’s Motion to dismiss CELP Appeal and Motion for Summary Judgment,

2.      DeRuyter Motion to Dismiss

3.      DeRuyter Statement of Points and Authorities in Support of Motion to Dismiss CELP Appeal.

4.      CELP’s Response to Motion to Dismiss, Opposition to Motion for Summary Judgment and Motion to Strike,

5.      Respondent Shore Properties, Inc.’s Reply Memorandum in Support of Motion to Dismiss,[2]

6.      DeRuyter Reply to CELP Response, and

7.      Respondent Department of Ecology’s Reply to CELP’s Response.

Based on the foregoing, and being otherwise fully informed, the Board enters the following order.

FACTUAL BACKGROUND

            Chapter 90.80 RCW, enacted in 1997, authorized counties to create water conservancy boards, subject to approval by the Director of Ecology, “for the purpose of expediting voluntary water transfers within the county.”  RCW 90.80.020.  Ecology was authorized to adopt rules to implement the chapter.  RCW 90.80.040.  In response to that authority, Ecology adopted WAC chapter173-153.

            Five D Farms applied to the Franklin County Water Conservancy Board (FCWCB) for an alteration of the purpose of use of its water right, changing from irrigation to agricultural use (dairy, stock watering and irrigation).  The FCWCB held a hearing and investigated the application and issued a Certificate of Conditional Approval and Record of Decision on May 4, 2000.  Ecology reviewed the findings and record from the FCWCB and approved its conditional decision to grant the application.  Ecology mailed its final approval to Five D Farms on May 11, 2000.

            CELP did not participate, provide input, or object to this matter at any time during either the FCWCB’s or Ecology’s review and approval.  However, CELP was mailed a copy of the decision on June 9, 2000, apparently as part of Ecology’s response to CELP’s ongoing requests for public records.

            CELP filed a Notice of Appeal with the Board on June 21, 2000, and a copy was received by Ecology the next day.

ANALYSIS

            It is clear from the record that the Notice of Appeal was filed with the Board more than thirty days from the date Ecology mailed its final approval to Five D Farms.  RCW 43.21B.230 provides:

Any person have received notice of a denial of a petition, a notice

of determination, notice of or an order made by the department may

appeal, within thirty days from the date of the notice of such denial,

order, or determination to the hearings board.

 

The Board lacks jurisdiction over any appeal that is not timely filed.  Colbert Trading Co. v. SCAPCA, PCHB 99-111, Order of Dismissal (1999).  CELP argues, however, that its appeal was filed within thirty days of the date it was mailed a copy of the Five D Farms decision, notwithstanding that Ecology mailed the decision to Five D Farms nearly one month prior to its mailing of the decision to CELP.

            Two questions are presented here: (1) Does the language of RCW 43.21B.230 allow “any person” receiving notice of a departmental decision a unique thirty-day period to appeal the decision from the date the decision was mailed; and (2) was CELP entitled to notice of the decision at the same time that Ecology mailed its decision to Five D Farms?

            These questions were considered thoroughly in Den Beste v. Pollution Control, 81 Wn. App. 330 (1996).  “We do not construe this statute to confer standing on a party simply because they receive notice of a Department decision.”  Den Beste at 339.  The court went on to say,

The statute is limited in its scope to establishing the timeliness

of an appeal.  Thus a person who requests and receives notice of

a departmental decision, but who is not an interested party

aggrieved by that decision, is not conferred standing to challenge

the decision simply because the Department has mailed a notice.

Conversely, an aggrieved party who has participated in an

administrative proceeding is not denied a right to appeal simply

because the Department failed to mail a notice of the decision

to it.  Ibid.

            Thus, the fact that CELP was mailed a copy of the decision on June 9, 2000 does not confer a new thirty-day period for the appeal to be filed with the board.  The Den Beste standard requires that the person receiving notice of a departmental decision has standing to appeal only if that person is an aggrieved party that participated in the administrative proceeding.  CELP has not met its burden in showing itself to be an aggrieved party.  CELP’s appeal does not allege harm resulting from the grant of the application for change.  The appeal is founded primarily on legal arguments about the breadth of authority granted to the WCB’s by the legislature and by Ecology’s rules.  CELP admits it was not a participant in either FCWCB or the Ecology process prior to the decision on the Five D Farm application.  We can find no basis for finding that Ecology erred in not mailing a copy of the decision to CELP at the same time that it mailed its decision to Five D Farms.  Therefore, CELP’s appeal is untimely and CELP lacks standing to bring an untimely appeal.  The Board finds that is has no jurisdiction over this matter and that the appeal should be dismissed.

            Based on the foregoing, the Board enters the following:

ORDER

            Respondent Ecology’s Motion to Dismiss is hereby GRANTED.

            DONE this 13th day of October, 2000.

                                                                        POLLUTION CONTROL HEARINGS BOARD

                                                                        ANN DALEY, Presiding

 

                                                                        ROBERT V. JENSEN, Member

 

                                                                        JAMES A TUPPER, JR., Member


[1] At the time this Motion was filed, this matter was consolidated with PCHB No. 00-089.  That appeal was recently dismissed because CELP withdrew the appeal. 

[2] Shore Properties, Inc. was a Respondent in PCHB 00-089 when it was consolidated with this matter.  As noted in the footnote above, PCHB 00-089 was dismissed previous to this Order.  Shore Properties, Inc.’s Reply was adopted by Ecology in its Reply brief on the issues of timeliness and standing, which are at issue here.