Opposition Brief — Goodspeed v. Whitman County

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Suprema Court, U.S

Ign D

MAY 4 1999

No. 98-1602 GFFICE OF THE

In The

Supreme Court of the United States

BRAD M. GOODSPEED and PACWEST PREMIX, INC.,

Petitioners,

WHITMAN COUNTY,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

Davip W. SaAvAceE*

Rosert W. REMBERT

IRWIN, Myk.Lesust, SAVAGE & Brown, PS

P.O. Box 604

Pullman, WA 99163

(509) 332-3502

Counsel for Respondent

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

Gs Sige Sa acne

QUESTIONS PRESENTED FOR REVIEW

Whether Washington’s State Environmental Protec-

tion Act (SEPA), Chapter 43.21C RCW, creates a prop-

erty interest protected by the Fourteenth Amendment

of the United States Constitution in a threshold deter-

mination of environmental non-significance procured

by misrepresentation and/or lack of a material dis-

closure.

Whether the Due Process Clause of the Fourteenth

Amendment is violated when a threshold determina-

tion of environmental non-significance procured by

misrepresentation and/or lack of a material dis-

closure is withdrawn pursuant to a process which

permits subsequent review.

Whether the Ninth Circuit Court of Appeals erred in

affirming the United States District Court’s Order of

Summary Judgment dismissing the Petitioner’s Equal

Protection claim for lack of any evidence that he was

treated differently than others similarly situated.

PARTIES TO THE PROCEEDING

PacWest Premix, Inc. is a Washington corporation

solely owned by Petitioner Brad M. Goodspeed.

Respondent Whitman County is a political subdivi-

sion of the State of Washington. Though the Petitioner’s

Complaint named several defendants, all but Whitman

County were dismissed by agreed order.

lil

TABLE OF CONTENTS

Page

Questions Presented for Review ................... i

Rene SOE SOM PCOS eg oo kv coe cco ees. ii

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SRE TE ERS, Cr a eee ar 7

1. No Compelling Reason Exists to Grant Certior-

0 EAR RRS CETUS RESTS Tae Cee rot I on a ee 7

1.1 The Criteria Established in Supreme Court

Rule 10 and This Court’s Prior Decisions

Show Review Should Not Be Granted ..... 7

1.2 The Constitutional Issues Relevant to This

Case Have Been Clearly Defined by This

ene eee Times... cs a ee oa 11

2. The Court Below Properly Applied Washington

State’s Environmental Policy Act in Concluding

No Constitutionally Protected Interest Existed.. 14

3. Petitioner’s Equal Protection Claim Has No

TABLE OF AUTHORITIES

Page

Cases CITED:

Anderson v. Pierce County, 86 Wash. App. 290, 936

Paik Wen 9907 ao ks viva on Haxshpwe Pew ieana neers 14

Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8

LSU. dtd, OO LAD OED ee R sah eechaia oh i<ee ese eeunal 20

Bd. of Regents of State Colleges v. Roth, 408 U.S. 564,

92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). ....... 9 ae Dae

Christian Gospel Church v. San Francisco, 896 F.2d

1223 (9th Sle. RO os eivcncd mah wateerses ere eeens 19

Comm’r of Internal Revenue v. Est. of Bosch, 387 U.S.

456, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967)........... 8

Delaware v. New York, 507 U.S. 490, 113 S.Ct. 1550,

LES Dee Sek Eee oe chee nn owes 12

Eastlake Community Council v. Roanoke Assoc., Inc.,

G2: Wah. 26 E70, Sis TA FO CAFO) oe se nties xs 16, 17

Gen'l Talking Pictures Corp. v. Western Electric Co.,

304 U.S. 175, 58 S.Ct. 849, 82 L.Ed. 1273 (1938) ..... 8

Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25

A BGe Bie ATO oes os abe es kus whee gee eee es pees 12

Huddleston v. Dwyer, 322 U.S. 232, 64 S.Ct. 1015, 88

Rit S00 CAE cs cc lb anne eos seep a erence xa 8, 9

Indus. Hydraulics v. City of Aberdeen, 27 Wash. App.

£23, GAF Eg St LANES ose saons dbus epeeeack kes 17

] & B Dev. Co., Inc. v. King County, 29 Wash. App.

PEL; GFR: Via TOOe CAFOE SS cs cde esc cey cone ae 17

McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95

LiMRA: dite LOOT Ds CVI ae alo) coe Reareiay mmeneeen 19

Nat'l Union of Marine Cooks & Stewards v. Arnold,

348 U.S. 37, 75 S.Ct. 92, 99 L.Ed. 46 (1954)........ 19

TABLE OF AUTHORITIES - Continued

Page

Nat'l Labor Relations Bd. v . Pittsburgh Steamship Co.

340 U.S. 498, 71 S.Ct. 453, 95 L .Ed. 479 (1951) Sc ae

Nolan v. Blackwell, 123 Wash. 504, 212 P. 1048

PIMPS AiO os eek a re te 16, 17

Nordlinger v. Hahn, 505 U.S. 1. 112 S.Ct. 2326, 120

L.Ed.2d 1 (1992) aula 85 eA Ok -Y ee hb koe ne le es te 19

Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940,

ee EOE ec e, aay ee Se 19

Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47

Lite MO CAGB oy s Be ye A 12

Pease Hill Community Group v. County of Spokane,

62 Wash. App. 800, 816 P.2d 37 (1991)......... 14, 15

Peer v. Griffeth, 445 U.S. 970, 100 S.Ct. 1348, 64

hei Ed. AIRE ARI ih ai aoe ao ee ee act 12, 13

Personnel Adm’r of Massachusetts v . Feeney, 442 U.S.

256, 99 S.Ct. 2282, 60 L.Ed.2d 870 yt.) SRR ae 19

Phillips et al. v. Washington Legal Foundation, 524

U.S. 156, 118 S.Ct. 1925, 14 L.Ed.2d 174 (1998).... 12

Sisley v. San Juan County, 89 Wash.2d 78, 569 P.2d

712 Bg f CUE TORE ED SNIPE ea LTT Rapes A Re 15

Steele v. Queen City Broadcasting Co., 54 Wash.2d

EL, i tt co ne eg ry We Ys

Victoria Tower Partnership v. ae of Seattle, 49

Wash. App. 755, 745 P.2d 1328 (1987)............. 17

Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48

L.Ed.2d 597 (1976) PKR Kee SAAS EWS aryl 9 Chae cK 19

TABLE OF AUTHORITIES - Continued

Wedges/Ledges of California, Inc. v. City of Phoenix,

Arizona, 24 F.3G SG TF Si Ae), oko soot veskc aces )

Yarnevic v. Brink’s, Inc., 102 F.3d 753 (4th Cir. 1996) .... 18

Rutes Cirep:

S.CUR. 80 oo das cere ee ee eee Ls = Sa ae

S.CUR. BOG) acco ee a ee rats we ones 10

STATUTES, REGULATIONS AND ORDINANCES CITED:

RCW 43.21C.O7SGNMAT Cn es i das, 15

WAC 197-11-S0500MAR te 14

WAC 197-11-330 through WAC 197-11-340........... 14

WAC 197-196380 cob orgs ee eee eee 6, 15, 16

WAC 197-31-34ONQMIY cs oo hs 15

WAC -197-11-SH0CSRMMI Ss ei, 6

Whitman County Ordinance 9.04.080(C) (1979) ...... 15

STATEMENT OF THE CASE

1. Procedural History

On June 16, 1995, the Petitioner, Brad M. Goodspeed,

individually and for PacWest Premix, Inc. (together below

“Mr. Goodspeed”), commenced this action in the United

States District Court, Eastern District of Washington,

alleging that Whitman County had violated his rights to

due process and equal protection under the Fourteenth

Amendment to the United States Constitution by with-

drawing a threshold determination of environmental

non-significance (DNS) with respect to a proposed build-

ing site.

Whitman County withdrew the threshold determina-

tion which it had issued pursuant to Washington’s State

Environmental Protection Act (SEPA), Chapter 43.21C

RCW, after discovering that information contained in Mr.

Goodspeed’s Environmental Checklist was materially

false and/or incomplete.

The Honorable Robert H. Whaley of the United States

District Court, Eastern District of Washington, granted

summary judgment dismissing Mr. Goodspeed’s claims

on January 30, 1997 (order filed January 31, 1997). Judge

Whaley’s decision, in relevant part, held that SEPA did

not confer any constitutionally protected property right

in a “threshold determination” procured by misrepresen-

tation or lack of material disclosure. Judge Whaley also

dismissed Mr. Goodspeed’s equal protection claim, hold-

ing that he had produced no evidence he had been

treated differently than others similarly situated or that

Whitman County’s actions were in any way done with a

“malicious or bad faith intent to injure him.” Order

Granting Summary Judgment, Section 2(d), Appendix

A-12.}

In an unpublished opinion, the Ninth Circuit Court

of Appeals affirmed the decision of the District Court.

Appendix A-15 through A-16.

Nevertheless and despite the fact that he ultimately

completed his project with the benefit of the necessary

permits, Mr. Goodspeed continues to allege that he has a

constitutionally protected interest in the original DNS.

2. Statement of Facts

Anticipating the termination of his lease for the

Idaho site at which he operated a concrete pre-mix plant,

Mr. Goodspeed began a search in June of 1991 for a new

plant location.

Looking to neighboring Whitman County in the State

of Washington, Mr. Goodspeed first identified the so-

called “Ranniger site” which was only zoned for agri-

cultural use, not “heavy industrial,” the zone classifica-

tion required for a cement plant. Order Granting

Summary Judgment, Appendix A-4 through A-5. Conse-

quently, Mr. Goodspeed applied to re-zone the site. Id.

After completing the environmental review process, he

abandoned the Ranniger site and the requested zone

change for it in favor of the so-called “Garrett site” (the

property which gives rise to this lawsuit) which was

already zoned for heavy industrial use. Id.

! Petitioner’s Appendix is designated “A-1 through A-16.”

Respondent’s Appendix is designated “B-1 through B-13.”

Therefore, the parties’ interactions with respect to the

Ranniger site are irrelevant to this lawsuit.

(Though the Petitioner implies that he was effectively

compelled to abandon the Ranniger site because it was

“rumored” he would not be successful in securing the

necessary zone change, he has never made any claim,

constitutional or otherwise, with respect to it. In consid-

ering Whitman County’s Motion for Summary Judgment

and in order to clearly identify the Petitioner’s claims, the

District Court inquired of Mr. Chris A. Johnson, then Mr.

Goodspeed’s counsel,? as follows:

THE COURT: Are you making any claim for

the handling of the Ranniger

site or is this really focused on

the Garrett site?

MR. JOHNSON: Focused on the Garrett site,

Your Honor.

THE COURT: All right. So we can — the Ran-

niger site is background, but

you are not claiming constitu-

tional deprivation with

respect to that site?

MR. JOHNSON: Correct

Transcript of Hearing on Motion for Summary Judgment,

Appendix B-1.

* Though the Petitioner’s initial Complaint was pro se, he

had the benefit of counsel on his Amended Complaint and in all

matters thereafter before the United States District Court,

including the dispositive hearing on Whitman County’s Motion

for Summary Judgment.

Since the courts below were never asked by the Peti-

tioner to, and did not, address any issue relative to the

Ranniger site, this Court’s review should be limited to his

claims as to the Garrett site.)

After purchasing the Garrett site for the cement

plant, on April 27, 1992, Mr. Goodspeed submitted an

Environmental Checklist on it to Whitman County. Order

Granting Summary Judgment, Appendix A-5. Based on

the information contained in it, on April 30, 1992, Mark

Bordsen, the Whitman County Planner, issued a threshold

letermination that the proposed concrete plant would

have no significant environmental impact. Id. A manda-

tory comment period ensued and a deadline to appeal

Mr. Bordsen’s decision was set for June 10, 1992; Mr

Goodspeed was so informed by letter providing

We expect that all parties will have received

this notification and decision by Tuesday, May

Zé 1992, and have therefore set the end of this

ippeal period for June 10, 1992. This decision

allows the applicant to proceed with other per-

mit applications as needed at the applicant's

own risk that the decision could be appealed

and overturned.

emphasis in original). Appendix A-5 through A

During the appeal period, Whitman County received

numerous letters from the public expressing concerns

over the impact oO! Mr. Goodspeed S proposed concrete

5] 14 ; 1: : : ; , . ,

pre-mix plant. ia In addition to the issues identified and

. _ x 1A . ster arm Ory - . ’

considered by Whitman County in reviewing Mr. Good-

y/ apie Pee ae” ee one

speed ; environmental checklist, these letters revealed

two significant issues not previously identified due to the

false and/or incomplete information supplied by Mr.

Goodspeed in his checklist.

First, a question was raised with respect to whether

the proposed plant was located within a 100-year flood

plain. Id., Appendix A-6. In Mr. Goodspeed’s environ-

mental checklist, he had indicated “No” to the question

“Does the proposal lie within a 100-year flood plain?” Id

Subsequent review of the site, however, revealed that the

proposed plant was within a 100-year flood plain estab-

lished by the Flood Insurance Rate Maps published by

the U.S. Department of Housing and Urban Development

which had been incorporated by reference into the

Whitman County Zoning Ordinance. Id., Appendix A-7.

Second, the owners of an adjacent property, Mr. and

Mrs. Wendt, expressed concern as to whether the well

they shared with the Garrett site was capable of produc-

ing sufficient water volume for their residence and the

Proposed pre-mix plant. Id., Appendix A-6. The Environ-

mental Checklist had inquired on the subject as follows:

Will ground water be withdrawn, or will water

be discharged to ground water? Give general

description, purpose, and approximate quan-

tities if known.

Id. In response, Mr. Goodspeed disclosed only the follow-

ing information:

Our present usage as indicated by meters is

4,000 gallons per day. May to October.

Order of Summary Judgment, Appendix A-6, citing, Envi-

ronmental Checklist, at 4, § 3(b)(1).

Nowhere did Mr. Goodspeed disclose that his

intended source of water was off-site and shared.

On June 12, 1992, after Mr. Bordsen raised these

issues with him, Mr. Goodspeed first asserted that he

only intended to use the well shared with the Wendts as a

source for his plant’s domestic water. Order of Summary

Judgment, Appendix A-7. He went on to advise that he

had secured an agreement with another adjacent land-

owner to use yet another off-site well to supply produc-

tion water. Id.

Finding that Mr. Goodspeed had failed to disclose these

issues and that they were material, the Whitman County

Board of Commissioners (Board of Commissioners) with-

drew the DNS pursuant to Washington Administrative Code

(WAC) 197-11-340 which requires withdrawal if:

(iii) The DNS was procured by misrepresen-

tation or lack of material disclosure;.

WAC 197-11-340(3)(a)(ili) (See Appendix B-5); Order

Granting Summary Judgment, Appendix A-7.

Following such a withdrawal, the same regulation

4 by

required Whitman County to complete a new checklist.

WAC 197-11-340(3)(a)(iii).

On July 6, 1992, Whitman County forwarded its envi-

ronmental checklist to Mr. Goodspeed. Order Granting

Summary Judgment, Appendix A-8. Upon review, the

Petitioner decided to accept a Mitigated Determination of

Non-Significance (MDNS), which was issued on July 21,

1992. Id.

Following expiration of the public comment period,

notice of the issuance of the MDNS, together with notice

of the applicable appeal period, was published. Id.

Appeals were filed on September 11, 1992, and a hearing

was held before the Board of Commissioners on October

5, 1992. Id. On November 9, 1992, the Board of Commis-

sioners affirmed issuance of the MDNS and entered Find-

ings of Fact and Conclusions of Law consistent with its

holding. Id.

Thereafter, Mr. Goodspeed constructed and operated

a concrete pre-mix plant at the Garrett site.

4 nbanati

ARGUMENT

1. No Compelling Reason Exists to Grant Certiorari

1.1 The Criteria Established in Supreme Court

Rule 10 and This Court’s Prior Decisions Show

Review Should Not Be Granted

Review on a writ of certiorari is not a matter of right

but, rather, one of judicial discretion. S.Ct.R. 10. While

not controlling the Court’s discretion, Supreme Court

Rule 10 outlines the criteria the Court considers in deter-

mining whether to grant review. Such relief is granted by

the Court only for compelling reasons. S.Ct.R. 10.

A petition for writ of certiorari is rarely granted

when the asserted error consists of erroneous factual

findings or the misapplication of a properly stated rule of

law. S.Ct.R. 10.

Consistent with Rule 10, the Court has held that it is

not its role to correct evidentiary errors or determine

whether evidence supports the judgment of the courts

below. Nat'l Labor Relations Bd. v. Pittsburgh Steamship Co.,

FA eRe ee ORT ON me

340 U.S. 498, 503, 71 S.Ct. 453, 95 L.Ed 479 (1951); Gen’l

Talking Pictures Corp. v. Western Elec. Co., 304 U.S. 175,

178-9, 58 S.Ct. 849, 82 L.Ed. 1273 (1938) (certiorari not

warranted merely to review the evidence or inferences

drawn from it). In Pittsburgh Steamship Co., supra, the

Court said:

This is not the place to review a conflict of

evidence nor to reverse a Court of Appeals

because were we in its place we would find the

record tilting one way rather than the other,

though fair-minded judges could find it tilting

either way. It is not for us to invite review by

this Court of decisions turning solely on evalua-

tion of testimony. . . . In such situations we

should “adhere to the usual rule of non-interfer-

ence where conclusions of Circuit Courts of

Appeals depend on appreciation of circum-

stances which admit of different interpreta-

tions.” Fed. Trade Comm'n v. American Tobacco

Co., 274 U.S. 543, 544, 47 S.Ct. 663, 71 L.Ed. 1193.

Pittsburgh Steamship Co., 340 U.S. at 503.

Similarly, when the issue for review presents a ques-

tion of state law the Court will “ordinarily accept the

determination of local law by the Court of Appeals... ”

Comm’r of Internal Revenue v. Est. of Bosch, 387 U.S. 456,

462, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967) (citations omit-

ted).

In Huddleston v. Dwyer, 322 U.S. 232, 64 S.Ct. 1015, 88

L.Ed. 1246 (1944), the Supreme Court reviewed a deter-

mination of the Tenth Circuit regarding Oklahoma tax

law. Subsequent to the Tenth Circuit’s decision, the Okla-

homa Supreme Court issued opinions raising “such doubt

as to the applicable Oklahoma law as to require its reex-

amination.” Huddleston, 322 U.S. at 236. Rather than

deciding the case, the Supreme Court remanded the case

to the Tenth Circuit, “without passing” on the contentions

of the parties. Id. 322 U.S. at 237. In reaching this conclu-

sion, the Court indicated:

[O]rdinarily we accept and therefore do not

review, save in exceptional cases, the considered

determination of questions of state law by the

intermediate federal appellate courts. When we

are called upon to decide them, the expression

of the views of the judges of those courts, who

are familiar with the intricacies and trends of

local law and practice, if not indispensable, is at

least a highly desirable and important aid to our

determination of state law questions

Id. 322 U.S. at 237 (citations omitted)

n this case, none of the factors in Supreme Court

Rule 10 or the reasons this Court has outlined in its prior

decisions suggest that review is appropriate. Further

more, the issues herein are of a type this Court

traditionally left to the lower federal courts.

[Ihe Petitioner has failed to identify any compelling

t 5

reason for this Court to grant review, essentially utilizing

his Petition to simply reproduce the brief he submitted to

the Ninth Circuit Court of Appeals

Citing only one case from the United States court of

appeals, Wedges/Ledges of California, Inc. v. City of P

Arizona, 24 F.3d 56 (9th Cir. 1994), and no state cases at

any level, the Petitioner has identified no judicial conflict

whether between the circuit courts or between the Ninth

Circuit and either the Washington or United States

Supreme Court. The Respondent knows of no such con-

flict which would have bearing on this case.

The Petitioner's arguments are as follows:

l. As an evidentiary issue, there was no basis

to find he either engaged in misrepresenta-

tion or failed to make a material disclosure.

Petition for Writ of Certiorari, p. 17;

That the courts below incorrectly applied

Washington’s State Environmental Policy

Act (SEPA) in concluding that the law did

not create a protected property interest; see

Petition For Writ of Certiorari, pp. 13-16;

and

Chat Petitioner introduced enough evidence

relevant to his equal protection claim to sur-

vive summary judgment. Petition For Writ

of Certiorari, pp. 19-21.

Note also that each of these contentions fundamen-

tally raise only issues relative to the proper interpretation

of state law and/or the evaluation of evidence. Therefore,

even assuming the courts below were in error, it is not the

role of this Court to correct such matters.

To the extent the lower courts applied federal consti-

tutional law, the constitutional principles at issue have

been thoroughly developed by this Court. There is no

undecided issue of federal law or any need for this Court

to settle any constitutional issue arguably implicated by

the Petition. See, S.Ct.R. 10(c).

rherefore, lacking any compelling reason for review,

this Petition should be denied.

i iG a le ial

1.2 The Constitutional Issues Relevant to This

Case Have Been Clearly Defined by This

Court’s Prior Decisions

Here, the central constitutional question is whether

Mr. Goodspeed had a “property interest” protected by the

Fourteenth Amendment to the United States Constitu

tion. This question was thoroughly addressed by this

Court's decision in Bd. of Regents of State Colleges v. Roth

408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)

In Roth, an untenured assistant professor at Wiscon

sin State University, contended his right to due process

guaranteed under the Fourteenth Amendment was vio-

lated when the university failed to re-hire him after the

expiration of his one-year employment contract. In con

sidering whether Roth had any constitutionally protected

interest, the Court discussed in detail the “attributes” of

property interests protec ted by the Due Process Clause of

the Fourteenth Amendment. Roth, 408 U.S. at 577. There

the Court stated:

[o have a property interest in a benefit, a person

clearly must have more than an abstract need or

desire for it. He must have more than a uni-

lateral expectation of it.

. . Property interests, of course, are not created

by the Constitution. Rather they are created and

their dimensions are defined by existing rules o1

understandings that stem from an independent

source such as state law rules or understandings

that secure certain benefits.

Roth, 408 U.S. at 577.

In the years since Roth was decided, tnis Court has

adhered to the constitutional principles outlined in it. See

Phillips et al. v. Washington Legal Foundation, 524 U.S. 156,

118 S.Ct. 1925, 141 L.Ed.2d 174 (1998); Delaware v. New

York, 507 U.S. 490, 113 S.Ct. 1550, 123 L.Ed.2d 211 (1993);

Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405

(1976) (defamation alone does not give rise to due process

claim without deprivation of some constitutionally pro-

tected interest as outlined in Roth).

In Peer v. Griffeth, 445 U.S. 970, 100 S.Ct. 1348, 64

L.Ed.2d 247 (1980), the Court denied a Petition for Cer-

tiorart wherein the petitioner alleged he was deprived of

due process when his right to state welfare benefits were

denied for failure to meet requirements imposed by state

law. Chiet Justice Rehnquist dissented, indicating, in his

opinion, that the Court of Appeals, Ninth Circuit, had

extended the Court’s decision in Goldberg v. Kelly, 397

U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), not only to

welfare recipients, but also to welfare applicants. In con-

cluding that such an extension of the Court’s ruling mer-

ited plenary review, Justice Rehnquist discussed the

status of Roth, saying:

There has been much decisional law from this

and other courts, and much scholarly commen-

tary as to what is a protected “property” interest

under the Fourteenth Amendment’s Due Pro-

cess Clause, and what procedural guarantees are

necessary under that Clause before one may be

denied such a property interest. See, e.g., Gold-

berg v. Kelly, supra; Bd. of Regents v. Roth, 408 U.S.

964 (1972); Mathews v. Eldridge, 424 U.S. 319

(1976); Greenholtz v. Nebraska Penal Inmates, 442

U.S. 1 (1979); Van Alstyne, Cracks in “The New

—

OG)

Property”: Adjudicative Due Process in the Admin

istrative State, 62 Cornell L.Rev. 445 (1977). Obvi

ously this Court cannot parse every state-law

provision to determine whether it creates a

protected “property interest” under the Due

Process Clause of the Fourteenth Amendment

eer, 445 U.S. at 970 (emphasis added).5

In this case, there is no suggestion that the rule of

law established in Roth is in need of clarification or was

improperly applied by the courts below

Based on the principles in Roth, any constitutional

issue herein turns on interpretation of state law, that is

whether SEPA conferred a property interest on Mr. Good

speed when he received a DNS issued on the basis of

lse and/or incomplete information supplied by him

Granting review would require this Court to “parse”

through the Washington State Environmental Policy Act

applying settled constitutional principl

Review should not be granted; there is no important,

are

undecided federal question presented by this Petition a

there is no conflict between the Ninth Circuit’s decision

herein and those of this Court, any other United States

court of appeals or the Washington State Supreme Court

’ Tustice Rehnquist ultimately concluded that consideration

of whether the Constitution provides protection, independent

of any state law, was particularly important where state law

does not create protected property interests

The Court Below Properly Applied Washington

State’s Environmental Policy Act in Concluding No

Constitutionally Protected Interest Existed

Washington’s SEPA requires that “environmental

amenities and values be given appropriate consideration”

when governmental agencies make land use decisions.

Anderson v. Pierce County, 86 Wash. App. 290, 300, 936

P.2d 432 (1997), citing RCW 43.21C.030(2)(b). A key step

in the SEPA process is making a “threshold determina-

tion” whether the project will have a “probable signifi-

cant adverse environmental impact.” Pease Hill

Community v. County of Spokane, 62 Wash. App. 800, 809,

816 P.2d 37 (1991); see also, WAC 197-11-330 through WAC

197-11-340. At this initial stage, if the project is held to

have a probable significant adverse environmental

impact, an Environmental Impact Statement (EIS) is

required; if not, a Determination of Non-Significance

(DNS) ts issued and no EIS is required. WAC 197-11-330.

In order to make this initial determination, the SEPA

process is initiated by the applicant submitting an Envi-

ronmental Checklist which Washington Courts have indi-

cated must

Provide information reasonably sufficient to

evaluate the environmental impact of the pro-

posal.

Anderson v. Pierce County, 86 Wash. App. 290, 301, 936

P.2d 432 (1997). The responsible official must then “thor-

oughly consider a proposal’s potential environmental sig-

nificance as documented in the environmental checklist.”

Id., citing WAC 197-11-315(1)(a).

In making a threshold determination, a governmental

agency must demonstrate that the environmental factors

vere considered in a manner sufficient te amount to

prima facie compliance with the procedural requirements

Of SEPA. Sisley v. San Juan County, 89 Wash.2d 78. 85. 569

P.2d 712 (1977); Pease Hill Community Group v. County of

Spokane, 62 Wash. App. 800, 809-10, 816 P.2d 37 (1991)

Such a threshold determination must be based on a

review reasonably sufficient to determine the enviro

mental impact of a proposal. Pease Hill, 62 Wash. App. at

S10

After the thre sh d 1 te rmin tion i ea if i

requires a mandatory 15-day public comment period

WAC 197-11-340 (1992). Based on these mment

f+] . ’

[t]he responsible official may retain or mod

ify the DNS or, if the responsible official deter

nines that ignificant lve! f npact ire Ke

4 :4 , s,s

WAC LY 11-340(2)(f). Threshold determinat r De

lad i tee 1

ippeaied administratively, if permitted by lo

y tA ek y7c \, 1Oo0” LA hits

procedure IX ¢ vv $3.4 i ( U ) ,a) es - vVnitm

. , sch a 1] Tr } Vhitmar

( ounty provided ucNn ap} ellate proceaures DY vVVhitn }

} ,4 ‘ ; mo

County Ordinance 9.04.080(C) (1979

SEPA regulations require that a ven } ti

di iw DNS if

| ]

i The ré ire ubst ntial I I f tO [ Ops

} } j 1,1 ‘ rt

Oo that the proposal |} LIKELY nm f i

int adverse environmental npact

hh 7 : ‘ y maica

here is Significant new information indicat

: ’ 17 }

ing, Or ON, a proposals probable signif nt

adverse environmental impact; o1

3. The DNS was procured by misrepresenta-

tion or lack of material disclosure.

WAC 197-111-340, Appendix B-5 (emphasis added).

Washington courts have consistently held that land I

use determinations issued based on false information or

in violation of a statute are void at their inception. See,

Eastlake Community Council v. Roanoke Assoc., Inc., 82

Wash.2d 475, 481-4, 513 P.2d 36 (1973). Such a land use

determination confers no rights. Id.

Chis longstanding principle of Washington law was

first discussed by the Washington State Supreme Court in

Nolan v. Blackwell, 123 Wash. 504, 212 P. 1048 (1923)

There, a building permit was issued by the City of Seattle

under the misunderstanding that the building was to be

constructed in the fourth district of the city where such a

building was permitted. In fact, the building was to be

constructed in the second district where such a building

was prohibited.

After the permit was revoked, Mr. Nolan, the land-

owner, brought suit alleging he had a vested right in the

permit. The Washington State Supreme Court rejected

this contention, stating:

The permit being in violation of the ordinance,

and having been issued under a mistake of fact,

it conferred no right upon the respondent.

rhat a building permit was issued in viola-

tion of law or under mistake of fact confers no

rights is well established.

Nolan, 123 Wash. at 506.

Subsequent to Nolan, the Washington courts have

continued to hold that no interest is created in a property

determination based on errors of fact. See, Eastlake Com

munity Council v. Roanoke Assoc., Inc., 82 Wash.2d 475, 484,

913 P.2d 36 (1973); Steele v. Queen City Broadcasting Co., 54

Wash.2d 402, 408, 341 P.2d 499 (1959); Indus. Hydraulics v

City of Aberdeen, 27 Wash. App. 123, 124-5, 619 P.2d 980

(1980); ] & B Dev. Co., Inc. v. King County, 29 Wash. App

942, 631 P.2d 1002 (1981)

\ccordingly, Washington courts have held that build

ing permits issued without compliance with SEPA ar

id ke Comn Cou 82 Wash.2d at 487-99

\ / ri? fii} \ / OF . atti Y

\\ lh App ' 1‘ PId 14/7 ivs/ } este | right 10

trine Ippliie to SEPA)

In this case, the courts below prope rly ip lied Wash

rton law in concluding that a SEPA determination

based on a mistake of fact conferred no rights upon Mr

, ; t |

(;,oodspeed. Whitman County issued the DNS under the

mistaken belief that Mr Goodspeed had accurately re

pre

sented that the project was not in a flood plain and that

its water use would not adversely affect other properties

Mr. Goodspeed’s failure to provide material information

reasonably sufficient to evaluate” the impact of the pro

posal made it impossible for Whitman County to fulfill its

Petitioner's argument that summary judgment was

inappropriate because he did not make any misrepresen

tations or fail to disclose material information is without

merit

In resisting a motion for summary judgment, Mr.

Goodspeed cannot simply rest on conclusory allegations.

See, Yarnevic v. Brink’s, Inc., 102 F.3d 753, 757-8 (4th Cir.

1996) (plaintiffs could not rely on complaint’s unsup-

ported allegations to resist summary judgment). Contrary

to his answer in the Environmental Checklist, Mr. Good-

speed admits that 7% of the project was, in fact, on the

flood plain. Petition for Writ of Certiorari, pp. 7-8 and

17-18. Given this admission, there can be no question that

Judge Whaley’s judgment was correct in concluding that

Mr. Goodspeed made a misrepresentation with respect to

or failed to disclose this circumstance on his Environmen-

tal Checklist.

As the DNS was clearly issued on the basis of false

and/or incomplete information which Whitman County

took to be correct, the DNS was void at its inception.

Accordingly, Mr. Goodspeed never acquired any constitu-

tionally protected property interest under Washington

State law.

In short, the Petition should be denied because the

Ninth Circuit and the District Court properly interpreted

and applied Washington State law and the Petitioner

raised no genuine issue of material fact which precluded

resolution of the case by summary judgment.

3. Petitioner’s Equal Protection Claim Has No Merit

The Equal Protection Clause of the Fourteenth

Amendment, § 1, provides that no state shall “deny to

any person within its jurisdiction equal protection of the

laws.” The Equal Protection Clause does not forbid classi-

fications; instead, it:

[Slimply keeps governmental. decisionmakers

from treating differently persons who are in all

relevant respects alike.

Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 2331, 120

L.Ed.2d 1 (1992).

In order to prevail on an equal protection claim, the

claimant must show that the state acted with some dis-

criminatory purpose. Washington v. Davis, 426 U.S. 229,

239-40, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976);

McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d

262 (1987), reh’g denied, 482 U.S. 920. In Personnel Adm’r of

Massachusetts v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282,

2296, 60 L.Ed.2d 870 (1979), the Court explained:

“Discriminatory purpose,” however, implies

more than intent as volition or intent as aware-

ness of consequences. It implies that the deci-

sionmaker, in this case a state legislature,

selected or reaffirmed a particular course of

action at least in part “because of,” not merely

“in spite of,” its adverse effects upon an identi-

fiable group.

Feeney, 442 U.S. at 279 (citation and footnote omitted).

No equal protection claim exists where no showing is

made that anyone comparably situated has been treated

differently than the petitioner. Nordlinger, 505 U.S. at 10;

Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d

438 (1971); Christian Gospel Church v. San Francisco, 896

F.2d 1221 (9th Cir. 1990). Accordingly, the Court has

dismissed equal protection claims where the petitioner

has not identified any disparate treatment. Nat'l Union of

Marine Cooks & Stewards v. Arnold, 348 U.S. 37, 41, 75 S.Ct.

92, 99 L.Ed. 46 (1954) (no difficulty with Equal Protection

Clause claim because “no showing has been made that

anyone comparably situated has been treated differently

from petitioner.”)

In Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8

L.Ed.2d 98 (1962), the Court considered whether a crimi-

nal defendant’s equal protection interests were violated

when the state courts failed to provide him procedural

safeguards ordinarily afforded others. The Court held

that misapplication of state law, without a showing of

invidious discrimination, does not violate the Equal Pro-

tection Clause. Id. at 554. In reaching this conclusion, the

Court said:

[T]he petitioner’s argument comes down to a

contention that Washington law was misapplied.

Such misapplication cannot be shown to be an

invidious discrimination. We have said time and

again that the Fourteenth Amendment does not

“assure uniformity of judicial decisions

... [or] immunity from judicial error. ...” Were

it otherwise, every alleged misapplication of

state law would constitute a federal constitu-

tional question.

Beck, 369 U.S. at 554-5 (citation and internal quotations

omitted).

Here, the Petitioner has not argued below that he was

treated differently than anyone “similarly situated” or

that he was discriminated against because of his member-

ship in any class. For these reasons alone, Mr. Good-

speed’s claim must fail.

Even if there was disparate treatment, however,

Mr. Goodspeed must show that it was the result of

purposeful discrimination against him. He has made no

such showing.

Accordingly, the Petitioner’s equal protection claim

does not present any important issue of federal law for

resolution. See S.Ct.R. 10. Therefore, any review of this

claim would necessarily and simply involve evaluating

the evidence and affirming the clearly correct rulings

below. Review for such purpose should not be granted.

CONCLUSION

The Petition discloses no compelling reason to grant

it. It implicates no important unresolved federal question

nor any decisional conflict requiring this Court’s review.

The decision of the Ninth Circuit Court of Appeals was

the product of proper jurisprudence and a proper appli-

cation of Washington State law.

Therefore, Respondent requests that the Court deny

this Petition for Writ of Certiorari.

DATED: May 4, 1999.

Respectfully submitted,

Davip W. SAvVAGE*

Rosert W. REMBERT

IRWIN, MyxLesust, SAVAGE &

Brown, P.S.

1230 SE Bishop Blvd.

P. O. Box 604

Pullman, WA 99163

509 /332-3502

Counsel for Respondent

Whitman County

*Counsel of Record

IT.

APPENDIX B

Page

RELEVANT EXCEPTIONS OF RECORD

Excerpt of Transcript of Hearing on Motion

FOr: Se SIMI cc oh eb isasa do maesaies B-1

STATUTES, REGULATIONS AND ORDINANCES

WAC 197-11-315 (1992). Environmental check-

OE os a a a 6 ia o's PR ae aCe ER oes B-2

WAC 197-11-330 (1992). Threshold determina-

CO I 0s a oa kee de cKE See ha Chae Oneness a's B-2

WAC 197-111-340 (1992). Determination of

CAIs ew tnsecand bes decnen es B-5

Oe MA, EP PED CAUOES 6 wiaveo Kc kw cea eb oteen B-8

Whitman County Ordinance 9.04.080(c)

CRORE cia he Pare Rees ees hae is CALLA Choe bs B-12

Appendix B-1

Excerpt of the Hearing on Motion for Summary Judgment

and Motion for Dismissal of January 24, 1997, p. 18:

THE COURT: Are you making any claim for the

handling of the Ranniger site or is this really focused on

the Garrett site?

MR. JOHNSON: Focused on the Garrett site,

Your Honor.

THE COURT: All right. So we can — the Ran-

niger site is background, but you are not claiming consti-

tutional deprivation with respect to that site?

MR. JOHNSON: Correct, it is important that of

what process was put into place at that time, however. At

the Garrett site a SEPA checklist was submitted again.

Appendix B-2

WAC 197-11-315. Environmental checklist.

(1) Agencies:

(a) Shall use the environmental checklist sub-

stantially in the form found in WAC 197-11-960 to assist

in making threshold determinations for proposals, except

for: Public proposals on which the lead agency has

decided to prepare its own EIS, or proposals on which the

lead agency and applicant agree an EIS will be prepared.

(b) May use an environmental checklist when-

ever it would assist in their planning and decisionmak-

ing, but shall not require an applicant to prepare a

checklist under SEPA, unless a checklist is required by

(1)(a) of this section.

(2) The lead agency shall prepare the checklist or

require an applicant to prepare the checklist.

(3) The items in the environmental checklist are not

weighted. The mention of one or many adverse environ-

mental impacts does not necessarily mean that the

impacts are significant. Conversely, a probable significant

adverse impact on the environment may result in the

need for an EIS.

WAC 197-11-330. Threshold determination process.

An EIS is required for proposals for legislation and

other major actions significantly affecting the quality of

the environment. The lead agency decides whether an EIS

is required in the threshold determination process, as

described below.

Appendix B-3

(1) In making a threshold determination, the

responsible official shall:

(a) Review the environmental checklist, if used:

(i) Independently evaluating the responses of

any applicant and indicating the result of its evaluation in

the DS, in the DNS, or on the checklist; and

(ii) Conducting its initial review of the environ-

mental checklist and any supporting documents without

requiring additional information from the applicant.

(b) Determine if the proposal is likely to have a

probable significant adverse environmental impact, based

on the proposed action, the information in the checklist

(WAC 197-11-960), and any additional information fur-

nished under WAC 197-11-335 and 197-11-350; and

or the applicant will implement as part of the proposal.

(2) In making a threshold determination, the

responsible official should determine whether:

(a) All or part of the proposal, alternatives, or

impacts have been analyzed in a previously prepared

environmental document, which can be adopted or incor-

porated by reference (see Part Six).

(b) Environmental analysis would be more useful or

appropriate in the future in which case, the agency shall

commit to timely, subsequent environmental review, con-

sistent with WAC 197-11-055 through 197-11-070 and Part

Six.

Appendix B-4

(3) In determining an impact’s significance (WAC

197-11-794), the responsible official shall take into

account the following, that:

(a) The same proposal may have a significant

adverse impact in one location but not in another loca-

tion;

(b) The absolute quantitative effects of a proposal

are also important, and may result in a significant

adverse impact regardless of the nature of the existing

environment;

together may result in a significant adverse impact;

(d) For some proposals, it may be impossible to

forecast the environmental impacts with precision, often

because some variables cannot be predicted or values

cannot be quantified.

(e) A proposal may to a significant degree:

(i) Adversely affect environmentally sensitive

or special areas, such as loss or destruction of histeric,

scientific, and cultural resources, parks, prime farmlands,

wetlands, wild and scenic rivers, or wilderness;

(ii) Adversely affect endangered or threatened

species or their habitat;

(iii) Conflict with local, state, or federal laws or

requirements for the protection of the environment; and

(iv) Establish a precedent for future actions

with significant effects, involves unique and unknown

risks to the environment, or may affect public health or

safety.

WO ha erth Sata oe BE chat min eal

ose

Appendix B-5

(4) If after following WAC 197-11-080 and

197-11-335 the lead agency reasonably believes that a

proposal may have a significant adverse impact, an EIS is

requi red.

(5) A threshold determination shall not balance

whether the beneficial aspects of a proposal outweigh its

adverse impacts, but rather, shall consider whether a

proposal has any probable significant adverse environ-

mental impacts under the rules stated in this section. For

example, proposals designed to improve the environ-

ment, such as sewage treatment plants or pollution con-

trol requirements, may also have significant adverse

environmental impacts.

WAC 197-11-340. Determination of nonsignificance

(DNS).

(1) If the responsible official determines there will

be no probable significant adverse environmental impacts

from a proposal, the lead agency shall prepare and issue a

determination of nonsignificance (DNS) substantially in

the form provided in WAC 197-11-970. If an agency

adopts another environmental document in support of a

threshold determination (Part Six), the notice of adoption

(WAC 197-11-965) and the DNS skal! be combined or

attached to each other.

(2) When a DNS is issued for any of the proposals

listed in (2)(a), the requirements in this subsection shall

be met.

Appendix B-6

(a) An agency shall not act upon a proposal for

fifteen days after the date of issuance of a DNS if the

proposal involves:

(i) Another agency with jurisdiction;

(ii) Demolition of any structure or facility not

exempted by WAC 197-11-800 (2)(f) or 197-11-880;

(ili) Issuance of clearing or grading permits not

exempted in Part Nine of these rules; or

(iv) A DNS under WAC 197-11-350 (2), (3) or

197-11-360(4).

(b) The responsible official shall send the DNS and

environmental checklist to agencies with jurisdiction, the

department of ecology, and affected tribes, and each local

agency or political subdivision whose public services

would be changed as a result of implementation of the

proposal, and shall give notice under WAC 197-11-510.

mit comments to the lead agency within fifteen days of

the date of issuance of the DNS.

(d) The date of issue for the DNS is the date the

DNS is sent to the department of ecology and agencies

with jurisdiction and is made publicly available.

(e) An agency with jurisdiction may assume lead

agency status only within this fifteen-day period (WAC

197-11-948).

(f) The responsible official shall reconsider the DNS

based on timely comments and may retain or modify the

DNS or, if the responsible official determines that signifi-

cant adverse impacts are likely, withdraw the DNS or

we <& Ne a A he

Appendix B-7

supporting documents. When a DNS is modified, the lead

agency shall send the modified DNS to agencies with

jurisdiction.

(3)(a) The lead agency shall withdraw a DNS if:

(i) There are substantial changes to a proposal

so that the proposal is likely to have significant adverse

environmental impacts;

(ii) There is significant new information indi-

cating, or on, a proposal’s probable significant adverse

environmental! impacts; or

(iii) The DNS was procured by misrepresenta-

tion or lack of material disclosure; if such DNS resulted

from the actions of an applicant, any subsequent environ-

mental checklist on the proposal shall be prepared

directly by the lead agency or its consultant at the

expense of the applicant

(b) Subsection (3)(a)(ii) shall not apply when anon

‘

exempt license has been issued on a private project

shall make a new threshold determination and notify

other agencies with jurisdiction of the withdrawal and

new threshold determination. If a DS is issued, each

gency with jurisdiction shall commence action to sus

pend, modify, or revoke any approvals until the nec«

sary environmental review has occurred (see also WA(¢

197-11-070)

Appendix B-8

RCW 43.21C.075. Appeals.

(1) Because a major purpose of this chapter is to

combine environmental considerations with public deci-

sions, any appeal brought under this chapter shall be

linked to a specific governmental action. The State Envi-

ronmental Policy Act provides a basis for challenging

whether governmental action is in compliance with the

substantive and procedural provisions of this chapter.

The State Environmental Policy Act is not intended to

create a cause of action unrelated to a specific govern-

mental action.

(2) Unless otherwise provided by this section:

(a) Appeals under this chapter shall be of the gov-

ernmental action together with its accompanying envi-

ronmental determinations.

(b) Appeals of environmental determinations made

(or lacking) under this chapter shall be commenced

within the time required to appeal the governmental

action which is subject to environmental review.

(3) If an agency has a procedure for appeals of

agency environmental determinations made under this

chapter, such procedure:

(a) Shall not allow more than one agency appeal

proceeding on a procedural determination (the adequacy

of a determination of significance/nonsignificance or of a

final environmental impact statement), consistent with

any state statutory requirements for appeals to local leg-

islative bodies. The appeal proceeding on a determination

of significance/nonsignificance may occur before the

agency’s final decision on a proposed action. Such an

Appendix B-9

appeal shall also be allowed for a determination of signif-

icance/ nonsignificance which may be issued by the

agency after supplemental review;

(b) Shall consolidate appeal of procedural issues

and of substantive determinations made under this chap-

ter (such as a decision to require particular mitigation

measures or to deny a proposal) by providing for simul-

taneous appeal of an agency decision on a proposal and

any environmental determinations made under this chap-

ter, with the exception of the threshold determination

appeal as provided in (a) of this subsection or an appeal

to the local legislative authority under RCW 43.21C.060

or other applicable state statutes;

use in any subsequent appeal proceedings, and shall pro-

vide for any subsequent appeal proceedings to be con-

ducted on the record, consistent with other applicable

law. An adequate record consists of findings and conclu-

sions, testimony under oath, and taped or written tran-

script. An electronically recorded transcript will suffice

for purposes of review under this paragraph; and

(d) Shall provide that procedural determinations

made by the responsible official shall be entitled to sub-

stantial weight.

(4) If a person aggrieved by an agency action has

the right to judicial appeal and if an agency has an appeal

procedure, such person shall, prior to seeking any judicial

review, use such procedure if any such procedure is avail-

able, unless expressly provided otherwise by state stat-

ute.

Appendix B-10

(5) RCW 43.21C.080 establishes an optional “notice

of action” procedure which, if used, imposes a time

period for appealing decisions under this chapter. Some

statutes and ordinances contain time periods for chal-

lenging governmental actions which are subject to review

under this chapter, such as various local land use

approvals (the “underlying governmental action”). This

section does not modify any such time periods. This

section governs when a judicial appeal must be brought

under this chapter where a “notice of action” is used,

and/or where there is another time period which is

required by statute or ordinance for challenging the

underlying governmental action. In this subsection, the

term “appeal” refers to a judicial appeal only.

(a) If there is a time period for appealing the under-

lying governmental action, appeals under this chapter

shall be commenced within thirty days. The agency shall

give official notice stating the date and place for com-

mencing an appeal. If there is an agency proceeding

under subsection (3) of this section, the appellant shall,

prior to commencing a judicial appeal, submit to the

responsible official a notice of intent to commence a

judicial appeal. The notice of intent shall be given within

the time period for commencing a judicial appeal on the

underlying governmental action.

(b) A notice of action under RCW 43.21C.080 may

be used. If a notice of action is used, judicial appeals shall

be commenced within the time period specified by RCW

43.21C.080, unless there is a time period for appealing the

underlying governmental action in which case (a) of this

subsection shall apply.

Appendix B-11

a time period for appealing the underlying governmental

action, a notice of action may be published within such

time period.

(6)(a) Judicial review of an appeal decision made by

an agency under RCW 43.21C.075(5) shall be on the

record, consistent with other applicable law.

(b) A taped or written transcript may be used. If a

taped transcript is to be reviewed, a record shall identify

the location on the taped transcript of testimony and

evidence to be reviewed. Parties are encouraged to desig-

nate only those portions of the testimony necessary to

present the issues raised on review, but if a party alleges

that a finding of fact is not supported by evidence, the

party should include in the record all evidence relevant to

the disputed finding. Any other party may designate

additional portions of the taped transcript relating to

issues raised on review. A party may provide a written

transcript of portions of the testimony at the party’s own

expense or apply to that court for an order requiring the

party seeking review to pay for additional portions of the

written transcript.

exception be of the governmental action together with its

accompanying environmental determinations.

(7) Jurisdiction over the review of determinations

under this chapter in an appeal before an agency or

superior court shall upon consent of the parties be trans-

ferred in whole or part to the shorelines hearings board.

The shorelines hearings board shall hear the matter and

sign the final order expeditiously. The superior court

ne ee

Appendix B-12

shall certify the final order of the shorelines hearings

board and said certified final order may only be appealed

to an appellate court.

(8) For purposes of this section and RCW

43.21C.080, the words “action”, “decision”, and “deter-

mination” mean substantive agency action including any

accompanying procedural determinations under this

chapter (except where the word “action” means “appeal”

in RCW 43.21C.080(2) and (3)). The word “action” in this

section and RCW 43.21C.080 does not mean a procedural

determination by itself made under this chapter. The

word “determination” includes any environmental docu-

ment required by this chapter and state or local imple-

menting rules. The word “agency” refers to any state or

local unit of government. The word “appeal” refers to

administrative, legislative, or judicial appeals.

(9) The court in its discretion may award reasonable

attorneys’ fees of up to one thousand dollars in the aggre-

gate to the prevailing party, including a governmental

agency, on issues arising out of this chapter if the court

makes specific findings that the legal position of a party

is frivolous and without reasonable basis.

Whitman County Ordinance 9.04.080 Environmental

checklist.

A. Except as provided in WAC 197-10-300(2), a com-

pleted environmental checklist, or a copy thereof, sub-

stantially in the form provided in WAC 197-10-365, shall

be filed at the same time as an application for a permit,

~— ae ‘

Sa ee Sa AMOR Mt

Appendix B-13

license, certificate, or other entitlement for use not speci-

fically exempted herein. This checklist shall be the basis

for a determination by the county as to lead agency status

and, if the county is determined to be the lead agency,

then for the threshold determination.

B. For all proposals for which the county is the lead

agency, the responsible official of the county shall make

the threshold determination pursuant to the criteria and

procedures of WAC 197-10-300 through 197-10-365.

C. An individual has the right to appeal the thresh-

old determinations made by the responsible official. Such

appeal must be made in writing by letter to the board of

county commissioners and said letter must be filed with

the county auditor within fifteen days of the issuance of

the initial threshold determination by the responsible

official. In the event of an appeal, the appeal shall be

heard at a regular meeting of the board of county com-

missioners within thirty days of the filing of the letter of

appeal. The date of hearing said appeal shall be set by the

chairman of the board of county commissioners. The

threshold determination shall be reviewed and may be

either upheld or modified by a majority decision of the

board of county commissioners. The county auditor shall,

at least ten days prior to said meeting, mail notice of the

meeting to the appellant, at the appellant’s last known

address or to the address stated in the letter of appeal.

There shall be no right of appeal from a threshold deter-

mination made by the responsible official in response to a

directive of the board of county commissioners where the

directive is the result of an appeal pursuant to this para-

graph. (Ord. 31939 §8, 1978).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.