Summary
The Washington Court of Appeals, Division One, reviews a challenge to the Washington State Department of Natural Resources’ determination of nonsignificance and approval of the Wishbone Timber Sale. The court holds that the determination was not clearly erroneous and rejects the requirement for a site-specific climate impact assessment, but concludes that DNR must comply with RCW 43.21C.030(2)(e) before approving any future sale. The court reverses in part, affirms in part, and remands.
Topics
Practice areas
Questions Presented
- Whether DNR's determination of nonsignificance was clearly erroneous because it relied on a landscape-level FEIS rather than conducting a site-specific analysis of the Wishbone Timber Sale's climate impacts.
- Whether DNR's reliance on the 2019 FEIS, rather than the 2020 Washington Forest Ecosystem Carbon Inventory and the Hudiburg 2019 letter, was clearly erroneous.
- Whether DNR failed to take a hard look at greenhouse-gas emissions, lost carbon-sequestration capacity, and climate-change vulnerability.
- Whether RCW 43.21C.030(2)(e) required DNR to study, develop, and describe alternatives because the Wishbone Timber Sale involved unresolved conflicts concerning alternative uses of available resources.
- Whether the Coalition was entitled to attorney fees under Washington's Equal Access to Justice Act.
Holdings
- DNR's reliance on the landscape-level climate analysis in the 2019 FEIS, together with its environmental checklist and threshold determination, was not clearly erroneous. SEPA did not require DNR to conduct a separate project-level climate-impact assessment before issuing the DNS.
- The Coalition did not establish that DNR clearly erred by relying on the 2019 FEIS rather than the 2020 carbon inventory or the Hudiburg 2019 letter.
- The Coalition failed to show that DNR did not take the required hard look at greenhouse-gas emissions, carbon-sequestration capacity, or climate-change vulnerability.
- RCW 43.21C.030(2)(e) required DNR to study, develop, and describe appropriate alternatives to the Wishbone Timber Sale because the proposal involved an unresolved conflict between harvesting the subject trees and using them as carbon reserves. An environmental checklist or consideration of mitigation measures alone did not satisfy that obligation.
- The Coalition was not entitled to attorney fees under RCW 4.84.350 because the challenged action was a proprietary decision in the management of public lands and therefore was excluded from the statutory definition of agency action.
Key quotations
“We hold that an alternatives analysis under subsection (2)(e) is required because the Wishbone Timber Sale presents a situation involving a choice between uses.” (86667-2-I/24-25)
“Certainly, cutting down the trees precludes their use as carbon reserves, which is not just a theoretical use.” (86667-2-I/25)
“DNR’s DNS was not clearly erroneous.” (86667-2-I/27)
Factual background
DNR proposed selling timber from approximately 100 acres of state-managed forest land in King County as part of a sustainable harvest-level plan for western Washington trust lands. DNR relied principally on a 2019 Final Environmental Impact Statement addressing climate impacts at the landscape level, issued a determination of nonsignificance, and stated that the site would be replanted after harvest. The environmental organizations argued that DNR was required to conduct site-specific climate analysis, consider newer carbon data, take a hard look at climate impacts, and analyze alternatives including preserving the mature forest as a carbon reserve.
Procedural history
The Department of Natural Resources issued a determination of nonsignificance after reviewing the approximately 100-acre Wishbone Timber Sale under SEPA. The Board authorized the sale, and the environmental organizations appealed under the Public Lands Act and SEPA to King County Superior Court. The superior court reversed and ordered site-specific climate analysis and development of reasonable alternatives. The Court of Appeals reversed in part, affirmed in part, reinstated the DNS, struck the site-specific climate-assessment requirement, and remanded for an alternatives analysis under RCW 43.21C.030(2)(e).
Remand instructions
Reinstate the DNS and strike the superior court's directive requiring a site-specific climate-change assessment. Before the Board may approve the Wishbone Timber Sale, DNR must comply with RCW 43.21C.030(2)(e) by studying, developing, and describing appropriate alternatives, including the Coalition's proposed alternative uses. The court may consider information previously relied on for other purposes when conducting the required alternatives analysis.