Opinion
No. 37811-6-II.
February 12, 2009.
Appeal from a judgment of the Superior Court for Thurston County, No. 06-2-02316-9, Gary R. Tabor, J., entered October 17, 2007.
Dismissed by unpublished opinion per Penoyar, A.C.J., concurred in by Bridgewater and QuinnBrintnall, JJ.
The Squaxin Island Tribe (Tribe) appeals the Pollution Control Hearings Board's (PCHB) ruling vacating permits the Department of Ecology (Ecology) granted to Miller Land and Timber, LLC (Miller), to appropriate ground water from Woodland Creek. The Tribe argues that the PCHB was required to order Ecology to deny the permits instead of vacating them. The substantive issue the Tribe raises in this case is whether a proposed withdrawal of ground water in hydraulic continuity with a closed stream must be denied if it is established factually that the withdrawal will have any effect on the flow or level of the closed surface water. Because the permits here have been vacated, we hold that this issue is not ripe for review and we decline to address it at this time.
FACTS
In 2000 and 2003, Miller submitted applications to Ecology for permits to appropriate ground water for two proposed residential developments in the Woodland Creek watershed, just north of Lacey. Woodland Creek is located within the Deschutes River basin, an area that Ecology has classified as a Water Resource Inventory Area. See chapter 173-513 WAC. In 1980, Ecology closed Woodland Creek and its tributaries to further consumptive appropriation after determining that "further consumptive appropriations would harmfully impact instream values." WAC 173-513-040(1). This closure applies "all year," as opposed to seasonally. WAC 173-513-040(1). Chapter 173-513 WAC does not, however, prohibit all ground water withdrawals. WAC 173-513-050 states:
Future ground water withdrawal proposals will not be affected by this chapter unless it is verified that such withdrawal would clearly have an adverse impact upon the surface water system contrary to the intent and objectives of this chapter.
In 2005, Ecology issued permits to Miller after it agreed to mitigate potential stream flow impacts by augmenting stream flows during the summer months. The parties' agreement provided that all mitigation pumping would occur from June through November and would not occur at all during the winter months. Ecology concluded that this augmentation plan would result in "zero impact to surface water." 3 Administrative Record (AR) at 1236.
Ecology initially denied Miller's applications in August 2004. After Miller appealed to the PCHB, however, Ecology and Miller reached a settlement agreement and the PCHB dismissed the appeal.
Subsequently, the Tribe appealed to the PCHB, seeking denial of the permits. The Tribe moved for summary judgment, arguing that Ecology cannot grant a permit where withdrawal would have any adverse impact on stream flows. The PCHB denied the Tribe's motion and held an evidentiary hearing. The PCHB ultimately found that water was not available for mitigation of stream flows during the summer months and therefore this mitigation proposal was not in the public interest. On this basis, the PCHB vacated Ecology's permit decisions. The PCHB noted, however:
The Tribe is a signatory to the Medicine Creek Treaty, which secures the Tribe's "right of taking fish at all usual and accustomed fishing places." Appellant's Br. at 5. The Woodland Creek basin is located within the Tribe's usual and accustomed fishing area; thus, the Tribe has a treaty-protected interest in fish that spawn in the watershed.
[Our] conclusion that water is not available for appropriation and that the proposed withdrawals are not in the public interest based on the evidence submitted in this case does not preclude Ecology from issuing a preliminary permit to allow Miller to further assess the actual [e]ffect of groundwater withdrawals on the Woodland Creek basin.
3 AR at 1227. In its later discussion of the issues raised, the PCHB concluded that the project's unmitigated impacts on flows from December through May were by themselves insufficient to justify denial of the applications because the Tribe had failed to show adverse impacts on fish during the winter.
Both Miller and the Tribe appealed to Thurston County Superior Court, which denied both parties' petitions for review and affirmed the PCHB's decision. The Tribe then appealed to the Washington Supreme Court, which transferred the Tribe's appeal, and Ecology's pending motion to dismiss, to this court. In June 2008, our commissioner denied Ecology's motion, stating:
[The] PCHB's decision, and the subsequent denial of judicial review by the superior court, resulted in Miller Land no longer having permits to withdraw ground water. But by not directing Ecology to deny Miller Land's applications for permits, [the] PCHB left open the possibility of Ecology granting preliminary permits to allow Miller Land to develop additional evidence in support of its applications for permits. The Tribe did not obtain all of the relief it sought from [the] PCHB. Therefore, it is an aggrieved party under RAP 3.1.
Ruling Denying Motion to Dismiss at 2-3. The parties appeared before us for oral argument on October 20, 2008.
ANALYSIS
As Ecology noted in its brief, this appeal is unusual because the PCHB ultimately vacated the permit decisions at issue in this case. The Tribe does not appeal the PCHB's ruling, which the Thurston County Superior Court affirmed. Instead, the Tribe asks us to address the larger question of whether Ecology is required to deny a proposed withdrawal of ground water in hydraulic continuity with a closed stream if it is established factually that the withdrawal will have any effect on the flow or level of the closed surface water under the Washington Supreme Court's decision in Postema v. Pollution Control Hearings Board, 142 Wn.2d 68, 11 P.3d 726 (2000).
As an initial matter, we recognize that the substantive issue the Tribe raises is an important one, both in this case and in future water rights cases. In light of the specific context in which the Tribe has raised it, however, we decline to review it at this time. First, we agree with Ecology that the Tribe has essentially requested that we issue an advisory opinion regarding potential future decisions involving mitigation requirements for proposed ground water withdrawals when a stream is closed by rule. We do not, however, issue such opinions. See Walker v. Munro, 124 Wn.2d 402, 414, 879 P.2d 920 (1994) (stating Washington courts do not issue advisory opinions). Second, this appeal is interlocutory in nature. Although the PCHB vacated Ecology's permit decisions, it determined that Ecology could grant Miller a preliminary permit to test the aquifer to determine whether water was available. Thus, if Miller resubmits its applications based on newly-developed information, any subsequent Ecology decisions would be subject to appeal. We discourage piecemeal appeals because they do not promote the orderly administration of justice. See Fox v. Sunmaster Products, Inc., 115 Wn.2d 498, 503-04, 798 P.2d 808 (1990); Doerflinger v. New York Life Ins. Co., 88 Wn.2d 878, 882, 567 P.2d 230 (1977); Burton v. Clark County, 91 Wn. App. 505, 513-14 n. 9, 958 P.2d 343 (1998).
Similarly, this matter is not ripe for review. "The ripeness doctrine exists `to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.'" Asarco, Inc. v. Dep't of Ecology, 145 Wn.2d 750, 759, 43 P.3d 471 (2002) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967)) (holding that a former landowner's preemptive challenge to a possible Ecology enforcement action under the Model Toxics Control Act was not ripe where Ecology had not yet issued a final enforcement order). We cannot predict (1) whether and under what factual circumstances Miller will resubmit its permit applications; (2) whether Ecology will in fact grant Miller permits; or (3) whether the PCHB will affirm, vacate, or deny Ecology's permit decisions. Presently, Miller is not permitted to appropriate ground water from Woodland Creek and has not yet resubmitted its permit applications to Ecology. This issue raises important legal and environmental considerations that warrant careful attention; however, we do not believe that the parties have presented the appropriate factual scenario within which our assessment of these considerations is proper. Although our commissioner denied Ecology's motion to dismiss and neither party requested that we review this ruling, we are not bound by this decision and have authority to consider all issues necessary to fairly review a case. See RAP 7.3, 12.2. In addition, the commissioner's ruling did not address the `advisory opinion' or `ripeness' issues.
Finally, the Tribe's concerns regarding collateral estoppel are unwarranted. In its response to Ecology's motion to dismiss, the Tribe argued that if Ecology eventually grants Miller ground water appropriation permits then there is a substantial risk that the Tribe will be precluded from arguing in a subsequent appeal that Ecology must require mitigation for adverse effects to stream flows occurring during the winter months. Parties are collaterally estopped by judgment where the facts and issues claimed to be conclusive on the parties in the second action have been actually and necessarily litigated and determined in a prior action. Henderson v. Bardahl Int'l Corp., 72 Wn.2d 109, 115, 431 P.2d 961 (1967). The doctrine of collateral estoppel differs from res judicata in that, instead of preventing a second assertion of the same claim or cause of action, collateral estoppel prevents a second litigation of issues between the same parties even in connection with a different claim or cause of action. Bordeaux v. Ingersoll Rand Co., 71 Wn.2d 392, 395-96, 429 P.2d 207 (1967). At oral argument, however, both Miller and Ecology conceded that the Tribe would not be collaterally estopped from raising this issue in a subsequent appeal. Ecology also noted that collateral estoppel does not apply to unappealable determinations or to issues that are immaterial to the judgment below. Thus, the parties conceded that neither Miller nor Ecology may seek to prevent the Tribe from presenting arguments regarding winter month mitigation should the parties appear before the PCHB in a subsequent appeal.
When we asked whether the Tribe would be precluded from arguing this issue in a subsequent appeal, Miller responded that it would not. Ecology also responded that it would be highly unlikely.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, J. and QUINN-BRINTNALL, J., concur.