FOREST PRACTICE APPEALS BOARD

STATE OF WASHINGTON

 

 

YAKAMA INDIAN NATION,

 

                        Appellant,

 

            v.

 

STATE OF WASHINGTON, DEPARTMENT OF NATURAL RESOURCES,

 

                     Respondents.

 

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FPAB NO. 01-017 & 018

 

ORDER GRANTING SUMMARY JUDGMENT TO BOISE CASCADE AND THE DEPARTMENT OF NATURAL RESOURCES

 

This matter comes before the Board on: (1) Appellant Confederated Tribes and Bands of the Yakama Indian Nation’s (Tribe’s or Yakama Nation’s) Motion for Summary Judgment, (2) Respondent Department of Natural Resources’ (DNR’s) Motion for Summary Judgment, and (3) Respondent Boise Cascade Corporation’s (Boise Cascade’s) Motion for Summary Judgment.  All three motions were filed on November 16, 2001.  The Board, comprised of Robert E. Quoidbach, Tom P. May, and Joel Rupley has reviewed and considered the pleadings and correspondence contained in the Board record, including the following:

1.         Tribe’s Motion and Memorandum in Support of Yakama Nation’s Motion for Summary Judgment plus exhibits 1-5 attached to the memorandum;

2.         DNR’s Motion and Memorandum in Support of Motion for Summary Judgment;

3.         Declaration of Joseph L. Blazek In Support of Respondent State of Washington Department of Natural Resources Motion for Summary;

4.         Declaration of Charles H. McKinney In Support of Respondent State of Washington Department of Natural Resources Motion for Summary;

5.         Boise Cascade’s Motion and Memorandum in Support of Motion for Summary Judgment;

6.         Declaration of David Weeman In Support of Boise Cascade’s Motion for Summary Judgment plus exhibits A and B attached to the declaration;

7.         Yakama Nation’s Memorandum In Response and Opposition to Department of Natural Resources’ Motion for Summary Judgment;

8.         Yakama Nation’s Memorandum in Response and Opposition to Boise Cascade’s Motion for Summary Judgment;

9.         DNR’s Response to Appellant’s Motion for Summary Judgment;

10.       Declaration of Joseph L. Blazek In Support of Respondent State of Washington Department of Natural Resources Response to Appellant’s Motion for Summary Judgment;

11.       Boise Cascade’s Memorandum in Response to Yakama Indian Nation’s Motion for Summary Judgment;

12.       Yakama Nation’s Rebuttal to Department of Natural Resources’ Memorandum in Response to Yakama Nation’s Motion for Summary Judgment;

13.       Yakama Nation’s Rebuttal to Boise Cascade’s Memorandum in Response to Yakama Nation’s Motion for Summary Judgment;

14.       DNR’s Reply in Support of DNR’s Motion for Summary Judgment; and

15.       Reply Brief of Boise Cascade.

 

Based on this review, the Board enters the following order.

Factual Background

            On August 17, 2001, DNR approved Boise Cascade’s Forest Practices Applications (FPAs) 2701788 and 2791789.  The Tribe filed an appeal with this Board on September 17, 2001.  In this appeal, the Tribe contends that the FPA should not have been issued until the Wildlife Reserve Trees (WRTs), Green Recruitment Trees (GRTs), or trees to be felled to meet down wood requirements were marked.[1] 

            A prehearing conference was held on October 26, 2001.  At that time, the parties agreed that the sole issue on appeal is:


            1.  Under the Forest Practices Act or Forest Practices Rules, must wildlife retention or green recruitment trees and trees to be felled to meet down wood requirements be marked on the ground prior to DNR’s approval of a proposed forest practices application?

 

Analysis

A.        Summary Judgment Standards.

 

            Summary judgment is designed to do away with unnecessary trials when there is no genuine issue of material fact.  LaPlante v. State, 85 Wn.2d 154, 531 P.2d 299 (1975). In a summary judgment proceeding, the moving party has the initial burden of showing there is no dispute as to any material fact.  Hiatt v. Walker Chevrolet, 120 Wn.2d 57, 66, 837 P.2d 618 (1992).  A material fact is one upon which the outcome of the litigation depends.  Jacobsen v. State, 89 Wn.2d 104, 569 P.2d 1152 (1977).

 If a moving party does not sustain its burden, summary judgment should not be granted, regardless of whether the nonmoving party has submitted affidavits or other evidence in opposition to the motion. [citation omitted.]  Only after the moving party has met its burden of producing factual evidence showing that it is entitled to judgment as a matter of law does the burden shift to the nonmoving party to set forth facts showing that there is a genuine issue of material fact.

 

Hash v. Children’s Orthopedic Hosp., 110 Wn.2d 912, 915, 757 P.2d 507 (1988).  At the prehearing conference, the parties agreed that the issue presented in the Tribe’s appeal was purely legal and could be resolved on summary judgment briefing.  In the summary judgment briefing, no party has asserted that material issues of fact are present so as to preclude summary judgment.  The parties concur that this matter should be resolved without need for further trial.  As such, this Board rules on the above issue as a matter of law based on the record submitted in the summary judgment briefing.

B.         This Board Does Have Jurisdiction To Review Whether All Appropriate Conditions Have Been Placed In An FPA.

 

            Boise Cascade asserts that this Board lacks jurisdiction to review DNR’s exercise of its discretion under RCW 76.09.060.  In support of this assertion, Boise Cascade cites to RCW 34.05.570(4)(a) and Snohomish County v. State, 69 Wn.App. 655, 850 P.2d 546 (1993).  Neither RCW 34.05.570(4)(a) nor the Snohomish County case is applicable under the facts of the present case.

RCW 34.05.570(4)(a) merely sets out the cases that superior court has jurisdiction to review under the Administrative Procedures Act.  It does not override or preclude the Board’s exercise of jurisdiction if such jurisdiction has been granted by the legislature.  In the present case, this Board has been granted authority to hear appeals from persons aggrieved as a result of approval or disapproval of a forest practice application by DNR.  RCW 76.09.220.  This necessarily involves the review of a discretionary decision issued by DNR.  If DNR has improperly issued an FPA because it either included improper conditions or failed to include proper conditions, then this Board has jurisdiction to review that matter.   This Board also has jurisdiction to determine if in issuing a FPA, DNR has appropriately exercised its discretion.  The fact that superior court has jurisdiction to review the Board’s discretionary decisions does not remove the Board’s own ability to review FPAs issued by DNR.

The Snohomish County case does not hold otherwise.  In Snohomish, the appellate court held that this Board had exceeded its jurisdiction when it invalidated a rule of the Forest Practices Board.  There is no rule challenge in the present case.  As such, Snohomish is simply


not applicable.

In summary, this Board does have jurisdiction to review whether DNR’s FPAs were appropriately issued, including whether DNR properly exercised its discretion in not requiring the trees at issue to be marked prior to issuing the FPA. 

C.        DNR Properly Issued FPA 2701788 and 2701789.

 

            No party claims that the Forest Practice Act (Act) and its implementing regulations includes express provisions requiring the trees at issue to be marked prior to the issuance of the FPA.  The Tribe, however, asserts that even without such express direction, such a condition is required.  In support of this assertion, the Tribe relies upon a memorandum from DNR Forest Practices Division Manager, Jack Hulsey to Pat McElroy, DNR Deputy Supervisor.  In this memorandum, Mr. Hulsey states: “DNR has the responsibility and the authority to stop actual and prevent potential material damage to a public resource.”  The Tribe asserts that this general duty impliedly requires DNR to require the trees at issue to be marked prior to the issuance of the FPA.  According to the Tribe, “[i]nformation is a crucial element in the Forest Application process” and without that information, DNR cannot ensure the protection of the public’s resources (i.e. prevent potential material damage).  In short, the Tribe asserts that DNR cannot ensure the protection of the public’s resources without requiring the trees at issue to be marked prior to issuing the FPA.

            There are several problems with the above assertions.  First, the internal DNR memorandum provides little to no guidance to this Board.  This Board does not review actions of DNR thru a deferential standard or scope of review – this Board’s review is de novo.  WAC 223-08-177.  As such, it is immaterial what one DNR employee’s opinion is as expressed to another DNR employee.  This is particularly true given that the memorandum is a generic memorandum that may or may not address the marking of the trees at issue in this appeal.

            Second, even assuming that the opinions expressed in the memorandum relied upon by the Tribe (i.e. there is a duty to prevent potential material damage to the public resource) are correct, there is insufficient factual support in the record to conclude that marking of the trees at issue is needed to protect the resource.  Just because a tree has been marked, doesn’t mean it won’t be cut.  It is the cutting of trees that is potentially harmful.  If trees are improperly cut, DNR has ample enforcement tools at its disposal to insure such harm will not continue and to require mitigation of any harm that has occurred.  

            Third, the Tribes’ position is not supported because it unnecessarily restricts the flexibility needed in forest harvests.  The Tribe’s argument implies that once a tree is marked, it must be left standing.  However, this restrictive interpretation ignores the practical realities of logging activities.  For example, the cutting of an adjacent tree may damage a nearby tree.  At that point, it may make more sense to leave the damaged tree rather than a previously marked tree.  If it wasn’t marked prior to logging activities, the Tribe’s argument seems to imply it can’t be left in place of a different marked tree.  By way of further example, sometimes a marked tree is damaged and cannot for safety reasons be left standing.  The Tribe’s restrictive interpretation simply does not make sense in the real world of forestry.  There needs to be more flexibility.  Part of the mandate of the Forest Practices Act is to “[p]romote efficiency by permitting maximum operating freedom consistent with other purposes and policies stated”.  This purpose

would be substantially undercut by the Tribe’s interpretation. 

            This does not mean, however, that DNR is always prohibited from requiring the trees at issue to be marked prior to issuance of the FPA.  There may be facts that warrant DNR’s exercise of discretion in that manner.  For example, if Boise Cascade had a history of non-compliance or if there were unique environmental conditions in the area of harvest, then it may make more sense for DNR to require marking prior to issuance of the FPA.[2]  We believe DNR has discretion to make such determinations. 

            This does not mean that DNR should have exercised its discretion to require marking in the present case.  In the present case, no facts were presented that would support a conclusion that marking prior to issuance of the FPA is warranted.  The facts in this case do not show that Boise Cascade has a history of non-compliance.  No evidence was presented that any endangered species or unique environmental conditions were present on this site.  In short, the record is totally devoid of any reason why the trees needed to be marked prior to issuance of the FPA.[3]  As such, given DNR’s mandate to “permit maximum operating freedom,” any restrictive condition


that is not warranted by the facts should not be lightly disregarded.

            Lastly, it is important to note that the issue identified by the Tribe in its appeal is a generic issue and is not a factually based issue.  The Tribe, in essence, is seeking a ruling of law that will have general applicability.  In the context of this case, this type of ruling should be made by the legislature and/or by the Forest Practices Board through its rulemaking authority rather than by this Board through an appeal of two FPAs. 

            In summary, this Board concludes that DNR properly exercised its discretion in issuing the FPAs without requiring the trees at issue to be marked.  DNR is not prohibited from making such a requirement if the facts of a particular case warrant such a decision.  Under the facts of the present case, DNR’s decision to not require the trees to be marked prior to issuance of the FPA is supported.  This Board affirms the FPAs issued by DNR.   

Order

 

            Summary judgment is granted to DNR and Boise Cascade and denied to the Yakama Nation.  This appeal is dismissed.

            Dated this 31st day of January 2002.

 

FOREST PRACTICES APPEALS BOARD

Tom P. May, Chair

 

Robert E. Quoidbach, Member

 

Joel Rupley, Member



[1] For ease of reference, WRTs, GRTs, or trees to be felled to meet down wood requirements will be referenced in the remaining portions of this opinion as trees at issue.

[2] By listing these two examples, the Board does not mean to restrict the facts that may be relevant to such an inquiry but to simply provide some samples.

[3] The only reason given by the Tribe is its claim that it is unable to assess potential impacts to its resources in its ceded areas if the trees are not marked prior to FPA issuance.  This claim is not supported by any factual evidence but is merely a bold assertion.  The Tribe has as much ability to evaluate the environmental effects as DNR.  The Tribe knows the location and size of the land supporting the harvest, how many trees at issue must be retained, whether the amount of timber on the property will support the harvest, any water sources in or near the property, and the general areas proposed for clumped WRTs and GRTs.  This type of information is sufficient to evaluate any potential harmful effects without overly restricting the logging operations.  This is especially true given that this Board has previously held that material damage to wildlife means damage to a species of wildlife, not to an individual or pair of individuals.  Confederated Tribes and Bands of the Yakama Indian Nation v. DNR and Boise Cascade Corporation, FPAB Nos. 96-38 & 97-11 (1998).  As such, there is simply no need to look at which specific trees would be left.  There is only a need to evaluate whether sufficient trees will be left.