Opinion
No. 49207-1-I, 49207-1-I
Filed: May 5, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of King County Docket No: 00-2-16841-1 Judgment or order under review Date filed: 08/03/2001
Counsel for Appellant(s), Jeffrey David Thomas, Attorney at Law, 1213 Valley St, P.O. Box 9271, Seattle, WA 98109-0271.
Counsel for Respondent(s), David Clark Hall, Attorney at Law, 1920 E Calhoun St, Seattle, WA 98112-2645.
Sound Transit issued a Final Environmental Impact Statement (FEIS) regarding its plan to build a 30-mile heavy-rail commuter train system between Everett and Seattle. Save Our Shorelines (SOS), a citizens' group, appealed the adequacy of the FEIS to a hearing examiner, who found the FEIS adequate. SOS then appealed the hearing examiner's decision to superior court, which dismissed the appeal based on SOS's failure to assign error to the examiner's findings and conclusions. We conclude that this was an improper basis on which to dismiss the appeal. Nevertheless, because SOS failed to assign error to any of the hearing examiner's findings, we limit our review to whether the findings support the examiner's conclusions, and affirm.
I
Sound Transit proposes to construct a 30-mile heavy-rail commuter passenger train system in the existing Burlington Northern and Santa Fe (BNSF) rail corridor along the waterfront between Everett and Seattle. To evaluate the project's environmental impacts, Sound Transit and the Federal Transit Administration undertook preparation of a joint environmental impact statement (EIS). After extensive study and public participation in the EIS process, Sound Transit issued its FEIS.
The FEIS was reviewed by the Sound Transit Board for the purpose of selecting final station locations and corridor improvements. The Board took action to designate the station locations and improvements by adopting Sound Transit Motion No. M2000-05. SOS filed an administrative appeal challenging the adequacy of the FEIS. SOS argued that Sound Transit misrepresented and concealed the scope and impact of the proposed project. Following a two-day evidentiary hearing, the independent hearing examiner found SOS's claims to be without merit and concluded that the FEIS was adequate. SOS then sought judicial review of the Sound Transit plan under the Washington State Environmental Policy Act (SEPA), alleging 76 separate violations and deficiencies in the FEIS. The superior court concluded that SOS did not appeal the underlying governmental action, a requirement under SEPA. However, the court did not dismiss the appeal on that basis; instead the court dismissed all claims on summary judgment citing SOS's failure to challenge the hearing examiner's findings. This appeal follows.
Ch. 43.21C RCW.
II
As this is a review of a summary judgment decision, our inquiry is the same as the trial court's. Summary judgment is appropriate if the evidence, viewed in the nonmoving party's favor, shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Sound Transit argues that SOS failed to appeal the underlying governmental action and thus the court below lacked jurisdiction to consider SOS's SEPA claims. We disagree. SEPA requires the preparation of an EIS for governmental actions significantly affecting the quality of the environment. SEPA contains detailed requirements for EIS form and content and establishes compressed time limits to commence judicial review of SEPA violations. Importantly, "Judicial review under [SEPA] shall without exception be of the governmental action together with its accompanying environmental determinations. The purposes of this linkage requirement are to "preclude judicial review of SEPA compliance before an agency has taken final action on a proposal, foreclose multiple lawsuits challenging a single agency action and deny the existence of 'orphan' SEPA claims unrelated to any government action." Under the SEPA rules, chapter 197-11 WAC, governmental actions fall within two categories:
Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982).
CR 56(c); Schaaf v. Highfield, 127 Wn.2d 17, 21, 896 P.2d 665 (1995).
RCW 43.21C.075(6)(c) (emphasis added).
State v. Grays Harbor County, 122 Wn.2d 244, 251, 857 P.2d 1039 (1993).
(a) Project actions. A project action involves a decision on a specific project, such as a construction or management activity located in a defined geographic area. Projects include and are limited to agency decisions to: (i) License, fund, or undertake any activity that will directly modify the environment, whether the activity will be conducted by the agency, an applicant, or under contract. . . . (b) Nonproject actions. Nonproject actions involve decisions on policies, plans, or programs.
Sound Transit's adoption of motion No. M2000-05 selecting station locations and corridor improvements to be built for the rail project was a "project action" and the underlying governmental action in this case.
In Boss v. Department of Transportation, the Washington State Department of Transportation argued similarly that the appellant failed to appeal the underlying governmental action. The court disagreed, concluding that the appellant linked "DOT's approval of the bridge project, which is the relevant governmental action, to his 41 challenges to the EIS. Thus, he recognizes that the governmental action took the form of DOT's letter of project approval to United Infrastructure." Here, although SOS does not specifically reference the adoption of the motion in its complaint, it did link the underlying governmental action and SOS's FEIS challenge. Section 5.2 of the complaint reads:
113 Wn. App. 543, 54 P.3d 207 (2002).
Boss, 113 Wn. App. at 549.
This court shall, upon return of the writ, review the actions and decisions of Sound Transit, its board, its Hearing Examiner regarding the various actions and approvals taken in conjunction with the draft and Final EIS for the Seattle to Everett commuter rail project . . . .
This language encompasses the adoption of the motion and therefore is an appeal of the underlying governmental action. Further, dismissing SOS's petition would not further any of the purposes for SEPA's linkage requirement..
See Grays Harbor County, 122 Wn.2d at 251.
We next consider whether the trial court properly dismissed the appeal because SOS failed to challenge any of the hearing examiner's findings and conclusions. An administrative appeal invokes appellate, not general or original superior court jurisdiction. As the challenging party, SOS bears the burden of showing that the record does not support the findings. But "'delay and even the loss of lawsuits [should not be] occasioned by unnecessarily complex and vagrant procedural technicalities [because] substantial compliance with procedural rules is sufficient to invoke the general as well as the RCW 51.52.110 appellate jurisdiction of the superior court.'" The trial court erred in dismissing the appeal on this basis.
Olson v. Civil Serv. Comm'n, 43 Wn. App. 812, 815, 719 P.2d 1343 (1986).
Standing Rock Homeowners Ass'n v. Misich, 106 Wn. App. 231, 243, 23 P.3d 520, review denied, 145 Wn.2d 1008 (2001).
Vasquez v. Dep't of Labor Industries, 44 Wn. App. 379, 383, 722 P.2d 854 (1986) (quoting In re Saltis, 94 Wn.2d 889, 896, 621 P.2d 716 (1980).
We turn now to the substantive issues in this case, which address the adequacy of the FEIS. We review the examiner's decision regarding the EIS adequacy, not the decision of the trial court. Although review is de novo, we must give "substantial weight" to the governmental agency's determination that an EIS is adequate under SEPA. Because SOS did not challenge any of the findings, they are verities on appeal. Our review is therefore limited to whether the findings support the examiner's conclusions. SOS argues that the FEIS failed to conform to SEPA form and content requirements. The pertinent unchallenged findings establish that the FEIS complies with most of the formatting requirements, and where it does not comply, the formatting used was not confusing because it gives the public a clear and concise presentation of potential environmental impacts. The findings support the examiner's conclusions that the FEIS conformed to SEPA requirements because it "disclosed and discussed the potential environmental impacts of the proposal and that members of the public, reading the document as a whole, would become informed of the project's potential environmental impacts." SOS next argues that the FEIS is inadequate because it did not treat as a significant impact the possibility of reduced beach access. Margaret Clancy, a wetlands ecologist with 12 years experience, and Mark Stewart, the project manager, testified that there will be minimal beach impact. In Stewart's opinion, people would still be able to walk the entire section of beach SOS claims is at risk. The findings support the conclusion that "the hearing examiner cannot conclude, under the evidence presented, that the FEIS is inadequate in its impact analysis." SOS alleges that the FEIS is inadequate because it failed to identify significant impacts on marine life, beach scour and creosote impacts. But Clancy testified that discussions with three different prospective contractors led to the unanimous conclusion that the corridor improvements can be constructed in such a way to minimize impacts on marine life. She further testified that proposed corridor improvements were developed with the assistance of the State Department of Fish and Wildlife, as well as the National Marine Fisheries, to minimize adverse effects on marine life. With regard to the use of creosote railroad ties, Clancy testified that she reviewed three specific studies on the environmental effects of creosote which indicate that the rate of leaching and migration of creosote is such that it will have no adverse impact on marine life. These findings support the conclusion that there was a "reasonably thorough discussion of the probable environmental consequences of the agency's decisions relating to those impacts in the FEIS." SOS next argues that the analysis of sound and vibration impacts in the FEIS is inadequate because the analyses rely on inappropriate methodologies. But, as noted by the hearing examiner, SOS provided no expert testimony in support of this view. In contrast, Sound Transit offered the expert testimony of Michael Minor, who had 10 years of experience in noise and vibration analysis. The examiner found that Minor offered "credible evidence that the methodology used for this FEIS is often one used in the industry and is a methodology approved by the Federal Transit Administration." The findings support the conclusion that "in this case, without expert testimony to contradict the findings made by the agency's experts, the hearing examiner must defer to the decisions made by the agency in the FEIS relating to those specific environmental impacts . . . the EIS is adequate in its disclosure and evaluation of those impacts." Finally, SOS contends that the FEIS failed to include a thorough evaluation of off-site alternatives. Prior to selection of the BNSF corridor, Sound Transit undertook several environmental reviews of other potential rail routes. The examiner found that the commuter rail project at issue is a project-level EIS intended only to evaluate the impact of the project in the BNSF rail corridor. It evaluated alternative corridor improvements and alternative train stations within the general route along the BNSF corridor identified in the EIS. The examiner also found that previous EISs and study documents had been conducted in order to evaluate the plan-level decisions and reasonable alternatives. SEPA specifically authorizes "phased review." Consistent with SEPA rules, Sound Transit focused its FEIS analysis on impacts and alternatives specific to the project and not analyzed in previous non-project EISs. The plan-level EISs that evaluated non-BNSF alternatives were studied at the plan level and decided years ago.
Klickitat County Citizens Against Imported Waste v. Klickitat County, 122 Wn.2d 619, 633, 860 P.2d 390 (1993), 866 P.2d 1256 (1994).
RCW 43.21C.090; Citizens for Clean Air v. City of Spokane, 114 Wn.2d 20, 34, 785 P.2d 447 (1990).
City of Burien v. Central Puget Sound Growth Management Hearings Bd., 113 Wn. App. 375, 383, 53 P.3d 1028 (2002); Stuewe v. Dep't of Revenue, 98 Wn. App. 947, 950, 991 P.2d 634, review denied, 141 Wn.2d 1015 (2000) (unchallenged findings are verities on appeal).
Holland v. Boeing Co., 90 Wn.2d 384, 390-91, 583 P.2d 621 (1978).
State of South Carolina ex rel. Beasley v. O'Leary, 953 F. Supp. 699, 706 (1996) (as long as the EIS is reasonably clear and concise so that the public has notice of the important facts, the length is not controlling).
The examiner correctly concluded that "Sound Transit did not have to reevaluate alternatives determined to be unfeasible during the non-planning stage.".
We conclude that the hearing examiner's conclusions relating to EIS adequacy are supported by the findings, and affirm.
AFFIRMED.
COLEMAN and BECKER, JJ., concur.