Stevens County v. Futurewise, Ct. of Appeals Div. III Case No. 26038-1-III (Sept. 4, 2008)

Go to opinion

This opinion was originally posted as "unpublished."  After a petition by Futurewise to the Court of Appeals, the Court decided to publish its fine decision.  Now the opinion will serve as useful precedent for future "critical area" and "best available science" GMA cases.

Summary

Stevens County adopted a critical areas ordinance (CAO) that only designated critical habitat for species listed by the federal government or the State Department of Fish and Wildlife (DFW) as endangered, threatened, or sensitive by statute or formal agency rulemaking.  Data that met this criteria only included "points" - known sitings of listed species - but not "polygons," which indicated the range of listed species based on scientific methods.  "Polygons" were not designated in statute or through formal rulemaking, so these habitats were implicitly left out from protection.  The federal government and DFW recognizes six listed species as inhabiting Stevens County: bald eagle, golden eagle, bull trout, steelhead, common loon, and lynx.  Habitat of both the common loon and lynx were designated by polygons, but as the waterways were already protected for steelhead and bull trout, the lack of the polygon data most affected the lynx.

Futurewise petitioned the Eastern Washington Growth Management Hearings Board for review of Stevens County's adoption of its CAO.  After finding that Futurewise's petition was not barred by claim or issue preclusion (an issue I won't discuss here), the Board found Stevens County's CAO noncompliant with the GMA's critical areas designation requirements.  The County appealed to Superior Court, which upheld the Board.  The County appealed to the Court of Appeals.

The Court of Appeals upheld the Board as well.  The Court found that although "polygon" data was not created by statute or formal rulemaking, it nevertheless constituted the "best available science" under the GMA's definition.  Therefore, the County had failed to protect all critical habitat as required.  Additionally, the County failed to justify its deviation.  The Court concluded, "substantial evidence supports the Board’s conclusion that SCC 13.10.034(3)(C) does not comply with the GMA because it fails to designate all critical habitats and fails to consider the best available science in designating critical habitats."

Commentary

Eastern Washington counties have been especially reluctant in their CAO to protect all functions and values of critical habitat even when supported by the best available science.  The Court's decision will strengthen local citizen's efforts to protect listed species and preserve biological diversity.  Additionally, because the Court of Appeal is considered just one court (even though divided into three divisions), the opinion serves as precedent statewide.