in the superior court of the state of washington...
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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF THURSTON
WILLAPA BAY GILLNETTERSASSOCIATION, a Washingtonnonprofit corporation,
Petitioner,
vs.
WASHINGTON DEPARTMENT OFFISH & WILDLIFE, an agencyof the State of Washington,
Respondent.
))))))))))))))
No. 15-2-02078-34
___________________________________________________________
VERBATIM REPORT OF PROCEEDINGS
BE IT REMEMBERED that on the 19th day of May,
2017, the above-entitled and numbered cause came on for
hearing before the Honorable James J. Dixon, Judge,
Thurston County Superior Court, Olympia, Washington.
Kathryn A. Beehler, CCR No. 2448Certified Realtime Reporter
Thurston County Superior Court2000 Lakeridge Drive S.W.
Building 2, Room 109Olympia, WA 98502
(360) 754-4370
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A P P E A R A N C E S
For the PetitionerWillapa BayGillnetters Assoc:
Ryen L. GodwinAttorney at LawSchwabe Williamson & Wyatt,P.C.1420 5th AvenueSuite 3400Seattle, WA 98101-2339206-622-1711Rgodwin@schwabe.com
For the RespondentState of WA DFW:
For the IntervenorTwin Harbors Fish &Wildlife Advocacy:
Michael S. GrossmannAssistant Attorney GeneralP.O. Box 401001125 Washington Street SEOlympia, WA 98504-0100360-586-3550Mikeg1@atg.wa.gov
Joseph Donald FrawleyAttorney at LawSchefter & Frawley1415 College Street SELacey, WA 98503360-491-6666Joedfrawley@gmail.com
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I N D E X
Description Page Reference
Court Calls Case/Introduction of Parties 4
Discussion re: Motion to Exclude 5
Argument by Mr. Godwin 10
Argument by Mr. Grossman 48
Argument by Mr. Frawley 84
Rebuttal by Mr. Godwin 89
Oral Opinion of the Court 105
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Court Calls Case/Introduction of Parties 4
May 19, 2017 Olympia, Washington
AFTERNOON SESSION
The Honorable Judge James J. Dixon, Presiding
Kathryn A. Beehler, Official Reporter
--o0o--
THE COURT: Be seated, please. The matter
before the court is Willapa Bay Gillnetters
Association vs. Washington State Department of Fish
and Wildlife, Cause Number 15-2-2078-34. The matter
comes before the court on the Petitioners' Petition
for Judicial Review filed November 2, 2015. The
petitioner is present being represented by
Mr. Godwin. Mr. Godwin, good afternoon.
The State Fish and Wildlife is represented by
Mr. Grossman. Mr. Grossman, good afternoon.
MR. GROSSMAN: Good afternoon.
THE COURT: Intervenor respondents appearing
are Twin Harbors Fish and Wildlife Advocacy being
represented by Mr. Frawley. Good afternoon,
Mr. Frawley.
MR. FRAWLEY: Good afternoon, Your Honor.
THE COURT: And Coastal Conservation
Association being represented by -- Mr. Frawley?
MR. FRAWLEY: Mr. Talmadge is not available
today. I'm representing both interveners.
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Discussion re: Mr. Godwin's Motion to Exclude 5
THE COURT: Okay. The court has received and
reviewed the pleadings. The court has reviewed the
entire file, including the record in this case. And
the court intends to hear first from Mr. Godwin
representing his clients. He represents the
Petitioner; the court will then hear from
Mr. Grossman; the court will then hear from
Mr. Frawley. And because Mr. Godwin represents the
moving party, the court will, time allowed, hear
again from Mr. Godwin in rebuttal.
First there's an issue before the court that I
see -- or there was a pleading filed yesterday after
the court had already reviewed the record. It was a
pleading from Mr. Godwin to exclude part of the
record, as I recall. Mr. Godwin, what's that all
about, please?
MR. GODWIN: There was a -- as the process
proceeded, the parties wanted to leave open the
opportunity to supplement the agreed portion of the
record within a time period that everybody could see
it and respond to it as appropriate. That -- there
was a second supplement that I believe was filed on
Monday. Much of that supplement I have no dispute
with. It has been discussed, disclosed; we've
outlined what it would contain. But there were a few
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Discussion re: Mr. Godwin's Motion to Exclude 6
items — let me cite the Bates numbers here — Bates
Numbers 1175 to 1179.
THE COURT: And I don't know what those are.
MR. GODWIN: Well, those were attached to the
Notice of Second Supplemental Rulemaking. And I
don't have -- I had objected to those as part of the
agreed record. I filed a -- rather than try to get
and note motion to strike, I -- well, let me tell you
why I objected. The reason I objected is, I didn't
have any notice of those within the time I would have
been allowed to address them in my briefing.
I'm not saying they're not part of the broader
administrative record, but the point of outlining an
agreed record is, everybody has time to identify the
issues, identify a subset of the administrative
record that is appropriate for the case, and then,
convey that to the court and then all of the parties
so they can address it in the briefing. With those
specific -- with those four pages, that did not
happen. I was notified that they were -- the State
intended to submit them as part of the agreed
administrative record on the day that my reply brief
was filed.
Now, the parties did have an informal agreement —
and I think I've put this a little bit in the
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Discussion re: Mr. Godwin's Motion to Exclude 7
objections — that everybody can supplement the agreed
record, as appropriate, up to the point of which they
would be filing their last brief, so that everybody
had the opportunity to respond to them. And that
just didn't happen. And so I filed an objection.
In my objection, however, I -- after speaking --
Mr. Grossman and I spoke about this before bringing
this to the court. I indicated that what I would do
is, I would file an objection for the court's record
that if he attempted to use it in the proceeding, I
would then raise an objection accordingly in the
proceeding, in here.
THE COURT: Okay. Thanks. And it appears,
more specifically, those documents include a letter
from Mr. Radtke to the chair of the fish and wildlife
commission, a briefing paper.
MR. GODWIN: Your Honor, I just -- I'm sorry
to interrupt. I want to narrow that. It's not --
the supplement, the Radtke letter, that's not part of
the subset that I'm concerned with.
THE COURT: Okay.
MR. GODWIN: It is only that last item, the
Excel spreadsheet printout. But its -- 1174 we had
talked about and was disclosed months before this
hearing.
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Discussion re: Mr. Godwin's Motion to Exclude 8
THE COURT: Okay.
MR. GODWIN: It's 1175 through 1179.
THE COURT: Mr. Grossman?
MR. GROSSMAN: Thank you, Your Honor. So the
actual documents or -- it is a single document. It's
an Excel file. And what I included in the record was
the output from that Excel file. It's the Excel file
that's used to do the final rule. And it's what
scientists do to model all the information, come up
with final rule that they're going to propose. And
so it actually contains the rule that's being
challenged.
We did have an agreement, but it related to when
materials were going to be provided, if they were
going to be cited in a brief. These documents
haven't been cited in a brief by them or by us. I
did reference in my brief on -- in my trial brief on
page 13 a process by which the rule is modelled. And
I referenced it. I didn't cite to the thing.
I got to thinking, you know, during oral argument,
it might be nice to have a demonstrative exhibit.
And so if I -- you know, if the issue comes up -- I'm
not even sure it will come up, because it's getting
into the weeds. But it is sometimes -- my experience
has been with these rule cases, that sometimes we do
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Discussion re: Mr. Godwin's Motion to Exclude 9
get into the weeds, and it would be nice to have a
demonstrative exhibit.
Ultimately, my position is, we had an agreement
about when things are cited in a brief. This has not
even been cited in a brief. It is, in fact, part of
the record, the administrative record. The APA
specifically states, "The administrative appeal shall
be based on the administrative record." So there's
not a question of it not being in there.
There is a question of whether or not, when we
agreed to a shortened record, that somehow there
would be prejudice if this issue, which neither of us
cites in our brief, is added to the record -- excuse
me, the agreed shortened record for purposes of a
demonstrative exhibit.
I don't understand how they are prejudiced.
They've had this for over -- well, since we filed the
record -- or since we developed the original record
and shared it over a year ago. This model is on the
agency's website. His clients use the model to come
to the agency --
MR. GODWIN: I'm going to object to that
statement.
MR. GROSSMAN: -- and provide examples of what
they'd like to see in terms of fishing. It's well
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Argument by Mr. Godwin 10
known, and I just don't understand the prejudice to
him.
At the end of the day, I don't think I need it,
but I just wanted it in case we got into the weeds to
use it to demonstrably show what I've described in my
brief on page 13.
THE COURT: I haven't looked at it --
MR. GROSSMAN: Okay.
THE COURT: -- so I think it might be a moot
point.
MR. GROSSMAN: Okay.
THE COURT: But if there is a reference to
intended exhibit which includes the referenced
spreadsheet, then the court will consider an
objection from Mr. Godwin or Mr. Frawley, if
Mr. Frawley wants to object.
Okay. Thanks. Mr. Godwin, I'll hear from you,
please.
MR. GODWIN: The other issue before the court,
just to guide my presentation, Your Honor, is the
State's motion to dismiss the first two claims.
Would you like me to address those, the response to
that, in my presentation?
THE COURT: Whatever makes you feel most
efficient.
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Argument by Mr. Godwin 11
MR. GODWIN: What I'd like to hand up,
Your Honor, is -- the record is quite voluminous
here. I have circulated these to the other parties.
This is Petitioners, just, subset of what we
determined or I determined are really the pertinent
documents for our petition.
THE COURT: Okay.
MR. GODWIN: It is taking it down from, like,
1,200 pages. And I'd like to just hand that up to
the court for -- to track while I'm going through the
presentation.
So like I said, I represent the Willapa Bay
Gillnetters Association. This is a Petition for
Judicial Review of a rulemaking. This is a challenge
to a process. And the question that we are raising
for the court is whether or not the process employed
here meets the legislative delegation to this
agency -- to this state agency. And so the
question of the -- that goes first to what is the --
what is their legislative delegation of authority.
Their statute is generally -- it's Title 77
regarding the Department of Fish and Wildlife.
There, just as an introductory kind of walk through,
this organization -- or this agency is organized in a
fashion where there is kind of an executive branch.
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Argument by Mr. Godwin 12
You have a director and a staff. That's under
77.04.080.
THE COURT: Hang on. I apologize for
interrupting, but I want to make sure that the
world's greatest court reporter can keep up with
you --
MR. GODWIN: I'm sorry about that.
THE COURT: -- and I suspect she's being
challenged.
MR. GODWIN: I have "slow" written on my
notes, and I will follow that.
THE COURT: Thanks. I'll hold you to it.
MR. GODWIN: Separately, there's a legislative
branch in this agency, and that's the Department of
Fish and Wildlife commission. The commission,
however here, unlike our tri-part government at the
federal level and most of the state level, there is
no judicial branch within the agency. That is you,
Your Honor.
You're the one that has to overview, see what's
going on here. And you're, I think, an integral
part of the -- the judiciary is an integral part in
the agency process. Because somebody has to review
whether or not the process that's being undertaken
for these agencies is appropriate and meets what the
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Argument by Mr. Godwin 13
Legislature told them to do. Otherwise, the
Legislature doesn't oversee what's going on on a
day-to-day basis.
That is very important for the delegation of
authority: What is the Legislature telling the
agency that it is permitted to do. And then it steps
away and let's the agency kind of go about its daily
business in a very kind of scientifically detailed
policymaking or rulemaking process. But somebody has
to look at that and say, okay, did that -- did what
you did today meet what the Legislature told you to
do.
In addition here, the agency has authority to do
all kinds of things. They have authority to do some
rulemaking. They have express authority to do a type
of policymaking. And it's outlined in the statute.
They have a number of other actions that they're
permitted to do.
They're permitted to condemn property, to buy
property, to hire people, to pass budgets,
expenditures, things like that, all through a process
that's outlined in enormous detail in that statute,
to give this agency exactly the direction that it
needs in order so that the Legislature can step away
and allow the agency to operate. But the question,
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Argument by Mr. Godwin 14
again, is whether or not that process is being met.
Because if it's not, the agency has -- or the State
here, the agency has stepped aside, outside of its
legislative authority in whether that act is lawful.
In addition to that claim -- that's really relating
to my first two claims for relief.
The other claims deal with whether or not the
substance of the decision was arbitrary and
capricious. That's a very high bar. And I will be
the first to admit that. And I will get into those
specifically later. But I think here you have such a
significant decision made and such -- such
contradicting evidence contained in the record that
at some point they disregarded that evidence. And
it, I believe, leads to an arbitrary and capricious
decisionmaking.
Finally what the statute in fact tells the agency
to do is, there -- is to follow the APA. It says you
need to follow the Administrative Procedures Act when
you're going through your rulemaking process. And
that process -- and I've actually, just so the court
has it in front of them, I think the Department
attaches an appendix, a very confusing flow chart
that has arrows going everywhere.
There is actually a slide in the record that
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Argument by Mr. Godwin 15
contains a very concise what does the rulemaking
process look like. That's item -- that's Number 13
in my key documents booklet. It's in the record at
451. And it kind of has just a basic flow chart of
what the rulemaking process looks like.
So it says -- so we go to what is the
Legislature's intent. The Legislature says,
Department of Fish and Wildlife, these are the things
you can do. You can do some of the stuff by policy;
you can do some of the stuff on your own; and you can
do -- the rest of it you must do specifically through
rulemaking. And so then we go to what -- and then it
says specifically in there -- in their statute it
says, you must do your rulemaking through the APA.
That is important.
So for purposes of the first two claims for
relief, we're attacking the rule process. So what --
whether or not the agency followed its delegative
authority in conducting the rulemaking that it went
through for these regulations. Now, these
regulations are fishing regulations. They're only in
effect for a period of time for a particular season.
So these are the 2015 rules. Those rules have since
expired.
Your declaration that those rules are invalid
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Argument by Mr. Godwin 16
today has very little practical effect. And now, you
notice that nobody's raising the mootness argument,
because clearly that's capable of repetition every
year that they engage in this type of rulemaking.
So what's important about our request for relief
is, now we're asking, in addition to that declaratory
judgment that says -- telling the agency that you
must disregard the mandatory portion of this policy
in your rulemaking; you are allowed to consider
everything that's presented to you during the
rulemaking process, and you are allowed to diverge
from whatever you're being told to do.
Because -- and that's important, because the APA
provides a rulemaking process that has significant
amounts of public participation. And that public
participation is important from the legislative
perspective, because it provides credibility and
accountability to that action.
So going now to the -- kind of the specifics.
What is the general law behind agency authority.
Well, there's been a body of case law. I think it
starts with the Green River College case in the '70s
or '80s. And it has trended towards a very specific
rule. And that rule is that agencies are limited to
their express legislative authority.
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Argument by Mr. Godwin 17
I can cite a number of cases. And I'd like to
just briefly start with a quotation. It says -- and
this is -- I'm citing Washington Federation of State
Employees vs. State Department, 152 Wn. App. 368. It
says,
"Agencies may exercise only those powers
conferred on them expressly or by necessary
implication. If an enabling statute does not
authorize particular regulation, either expressly
or by necessary implication, that regulation must
be declared invalid whether its for a practical
necessity or appropriate."
It may have a very good reason for doing that, but
if it's not the process that was provided for in the
Legislature -- by the Legislature, then it's per se
invalid. There's no concept that you can -- there's
no just general implied authority; Well, it's not
prohibited, so therefore, we can do it this way.
That's not how agency authority works.
What it is is, you have to look at what is the
express authority of the Legislature, and what are
you expressly permitted to do. There is an
opportunity to fill gaps. Certainly the
Legislature's not going to think of everything. But
when it does speak to something, you have an issue of
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Argument by Mr. Godwin 18
legislative intent.
So how do we interpret the statute? We looked at
the Legislature's intent. We have to determine from
the statutory scheme, what did they mean by this,
what did they mean by that, whether or not there are
provisions that mean something else or that their
authority is already dealt with in another section of
the statute.
So going specifically to the statutory provisions
at issue here -- and I'm talking specifically
about -- what we believe is there are provisions of
this policy that the policy is that Willapa Bay
Salmon Management Policy that directs time and place
and harvest restrictions that are mandatory; telling
the Department's director and staff that they cannot
alter those prescriptions in the subsequent
rulemaking process. So is it -- was that process
that was engaged in at that point truly the public
process that is required by the Administrative
Procedures Act.
THE COURT: Well, I think Mr. Grossman would
take exception with that, and of course, I'll let
Mr. Grossman and/or Mr. Frawley speak for themselves.
But I don't think that they would agree that that is
what the process was. I think their argument would
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Argument by Mr. Godwin 19
be that there is no telling, that it was simply a
recommendation, for lack of a better term.
MR. GODWIN: They would say it's guidance is
what I think their argument is. And so the question
we have there is, where on the record does it suggest
that? What facts do we have? There's a factual
dispute here. That is very clearly a factual dispute
between the parties that has been -- that we have had
numerous discussions about, that significant portions
of the record -- this agreed record deal with that.
And the factual dispute is this: Well first, if you
don't mind, I'd like to go to what is the
legislative -- what does the Legislature say about
this process, so we kind of guide that; what is the
significance of that dispute.
So the statute says very clearly,
"The commission shall establish provisions
regulating food fish and shellfish as provided by
RCW 77.12.047."
Food fish -- there's no dispute here that the
fish that -- the commercial fishing here is food
fish, this type of salmon. That does not come up as
an issue.
So we go to RCW 77.12.047 (4). So what is the
commission permitted to do for regulating food fish.
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Argument by Mr. Godwin 20
77.12.047 says,
"You may adopt, amend, or repeal rules for times
for taking the fish, for places to take the fish, and
for the gear type and the quantities of fish that you
are going to take."
So the question is -- for me is where -- what
other activities can the commission engage in for
this process. Well, their point is, hey, we can do
this by policy and then subsequently go through the
rulemaking process. Well, in 77.04.055 it says what
they can do by policy.
So the Legislature has actually said, this is what
a policy is. This is -- you can have general
guidance, give the Department some sort of direction
as to where you want them to go. This is the -- this
is our intent and those sorts of -- those sorts of
things. These are lofty objectives and goals and
direction. All of that is appropriate in a
policymaking. And this is 77.04.055.
Where it crosses the line is where you prescribe.
Because at that point, those aren't general goals and
objectives. And why I wanted to step back and go to
what does the statute say when we look at where this
dispute exists is that -- is in the statute, if all
of this statute said — this is 77.04.055 — is that
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Argument by Mr. Godwin 21
you may regulate food fish under 77.12.047 and it
didn't -- and there was nothing in the statute -- in
the Department of Fish and Wildlife's statute dealing
with policies, then they'd probably have a pretty
good argument to say, well, it doesn't really say
anything about policies, and policies are permitted;
it's just internal guidance; and that's how -- what
we do. But here the Legislature actually spoke to
it. It said, this is what a policy is supposed to
be; it's supposed to be broader than prescription.
It says an establishing policy is to preserve,
protect, or perpetuate fish and wildlife, fish
habitat, the commission shall meet annually with the
governor, review and prescribe objective goals and
objectives related to those policies, review the
performance of the Department in implementing fish
and wildlife policies.
These are very sort of what I would consider the
30,000-foot level sort of objectives. This is --
it's a high level. But then it starts whittling down
on subsection (3) and very specifically says,
however, if you are going to establish a regulation
for food fish, you have to do it by 77.12.047.
And then when we go to 77.12.047, it says,
"The commission may adopt, amend, or repeal rules"
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Argument by Mr. Godwin 22
for the time to take the fish, the place to take the
fish, the gear type, and the quantities. And in
addition to that, Your Honor, I just want to then
point to 77.04.130. And I'll give you a moment to
get there.
This is in the Department of Fish and Wildlife's
enabling statute specifically. It says, if you're
going to go through the rulemaking process, you must
do it thru 34.05. All rules shall be adopted by
34.05. So the prescription in my mind, whether that
policy is prescriptive and how it affects the
rulemaking process is fundamental here. And it is
fundamental because the Legislature says it is. And
it says that if you're going to do something that is
regulatory, mandatory on the public, you have to do
it through this public process under 34.05.
So then we get to your factual dispute, which I
think is significant. So is the policy prescriptive
and did the Department -- so remember, we have two
different -- two different sides to the Department of
Fish and Wildlife. We have sort of the executive
branch, and we have a legislative branch.
So the question is, did the legislative branch
intend it to be prescriptive. They intended the
staff, as they went through the rulemaking process,
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Argument by Mr. Godwin 23
to permit any alteration from those time and place
prescriptions. And then the second question is, what
did the staff think they meant when they went through
that process. Because what they thought they meant
means that it was actually the -- that's actually
what happened as they went through the rulemaking
process.
So we have -- you'll see citations in the record
to a number of transcripts. Because those
transcripts are from the policymaking process, these
hearings that they were holding for with the public
and the Department staff and the commission. And
it's a -- I've kind of excerpted specific transcripts
sections. It's tab 12 in my notebook.
So in tab 12 you have some citations to various
commission members and describing what they're doing.
And, in particular, the comments of
Commissioner Wecker are very instructive at 1145.
That's administrative record Number 1145. At the
bottom of the page, it -- and she says --
Commissioner Wecker, "And I think that's what we're
trying to get at is some degree of in-season
management, to hold the Department accountable,"
to --
THE COURT: "Hold the fleets accountable."
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MR. GODWIN: "Hold the fleets accountable."
They have very specific direction that this is
important. And, in fact, she goes -- at another
location she says,
"We want them to know we mean business."
And I cited that in my briefing. And then there
is a discussion in the policy that talks about what
happens if they exceed the harvest rate, this
20 percent harvest rate. And again, I'm not
attacking that provision as to what -- whether you
exceed it or not. What I'm getting at is, what is
the commission's intent. And she references or uses
the word -- and this is at 1144 when she's describing
the -- Commissioner Wecker is describing kind of what
incentive they're going to implement in the policy to
keep the Department doing what they want it to do.
And she says,
"It could result in a situation where the
commercial fleet which would bear the brunt of this
is penalized by fishing over, you know, as a result
of a lower forecast."
And I'm sorry. I -- that is Commissioner Kehoe
that said that. So they see this as this is an
accountability. There are penalties. And then,
importantly, what does the staff think of this? So
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Argument by Mr. Godwin 25
Thiesfeld was the Region 6 manager, who is the -- in
the executive branch now, the staff member that's
kind of going to implement this process. And he's
taking direction from the commission. And at
AR 1015, he's having a discussion with a couple of
commissioner members. And one commissioner member in
particular, Commissioner Kehoe, is concerned that,
"Well, it doesn't say that you can fish in this
section."
So they're talking about the policy, and so the
policy "doesn't say you can actually fish in this
area of the bay. So how do we know whether or not we
can do this?"
And he says, "Well, but I assure you, I've spend a
lot of time" — and this is at AR 1015, Bates 1015,
starting at line 9 and 10, actually 10,
"But I assure you, I spend a lot of time
responding to folks. That is not explicitly
prohibited in the policy; therefore it can be
allowed."
So there is some prohibition here. There's
something that says very discretely, you can't --
that is prohibited. Regardless of what happens in
the subsequent rulemaking process, we can't change
that. That's what it says right here. And that's
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Argument by Mr. Godwin 26
what Kehoe's concerns are.
And then the Department will step in and say, you
know -- well, let me find it. Commission Wecker
says,
"You know, I think the reason it's not
specifically stated is that this is guidance and
these are like guideposts. You know, we can't let
them go out of those guideposts."
Well that's the kind of prohibition that I think
is specific here. Okay. You put lines on a road so
people don't cross them. Those are prohibited. You
can't just cross a double yellow line. That's a
prohibition. Even if there are guideposts as to a
direction, when you prohibit a time, you cannot fish
at this location at this time and say, Department,
we're going to hold you accountable if you violate
that, that's a prohibition. That's prescriptive. So
that's -- that's the dispute.
Now, the Department points to the policy,
internally in the policy. There's a -- there's sort
of a -- there's a paragraph, an exculpatory -- what I
would call an exculpatory paragraph. That says --
and the policy is contained on -- it's tab 6 in my
key documents binder. And on the -- it's Bates
Number 798. It's the last page in the policy where
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Argument by Mr. Godwin 27
the -- you know, the standard terms are usually
contained in a contract. And it says this is
guidance. It establishes a number of important
conservation allocation principles for the director
and agency staff; that this is -- we don't intend
this policy to be mandatory. And so the State points
to this provision.
Well, just like statutory interpretation, contract
interpretation, what we look at is, is there
ambiguity contained in the document itself. Where
here you have some ambiguity. You have very
prescriptive provisions. Thou shall not fish in
areas 2-T and 2-U prior to September 16th. Thou
shall not fish in areas 2-M, 2-N, 2-P and 2-R until
after September 7th and a number of others that are
mandatory time and place restrictions.
Then you have this statement that says we said
"shall," but we didn't mean it. That creates
ambiguity within the document to me. And to me,
because that's ambiguous, we have to look at what was
the intent. And that's why those comments from the
commissioners and from the staff are important is
that guides, what is the intent behind those
prescriptions, are they, in fact, prescriptive.
And I think that's where this factual dispute lies
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Argument by Mr. Godwin 28
is that you have the State essentially saying, look,
it says "guidance" in the policy; it just says
guidance. We put this in there and that protects us.
Then but what do they really mean? Well, they meant
it to be prohibited. It said that's not prohibited
so it can be allowed. But if it was prohibited, it's
actually prohibited, and it will not happen. And so
that's important from a, how do we interpret this
document? It is, in fact, prescriptive.
So how does the State respond to this analysis?
What is their response, in my view? Their response
is, this is the -- this is the flexibility that we
need in order to do this. They outline, I think,
pages 13 through 15 in the State's brief. It goes
through a very lengthy description of how they went
through the process, why this is important, how they
need flexibility to do this and that. And that's --
that's great.
I think that -- that perhaps that level of
flexibility is necessary. That's a legislative
question; that's not an agency question. And what's
important about their brief on that section, pages 13
through 15, that I think gets to kind of the essence
of this dispute, is they don't cite to a single piece
of statutory authority that says they can do it this
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Argument by Mr. Godwin 29
way. There is not a single citation or piece of --
or there's not a single statute that says go ahead
and do this, to prescribe -- go through the
rulemaking process, but you've already prescribed it,
so it can't be changed through that process.
I want to take a moment to just talk about the
Sudar case, because it's briefed by both the
Interveners and the State. The Sudar case was a
petition on a rule, but what was challenged there was
the policy itself. It wasn't the -- they hadn't
issued the rule yet. And so the petitioners there
challenge the policy as a rule.
The court looked at the definition of what is a
rule in the Administrative Procedures Act and
determined that that policy didn't meet the
definition of a rule, because you couldn't go out and
fish based on the policy. It didn't have any express
effect on the regulated public, because there was
subsequently going to be rules. And that gets a
little bit into the motion to dismiss is what
happened here.
The Petitioners in this case, we filed first in
Pacific County not challenging the policy as a rule.
That had already been dealt with in Sudar. We
challenged it as other agency action. And under the
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Argument by Mr. Godwin 30
federal authority which I have cited in my -- in the
motion to dismiss, other agency action includes those
actions that are nondiscretionary on agency staff and
the public.
So whether -- in contrast, the State -- the
State's case law suggests that only those actions
that have regulatory effect on the public are
actually agency action. It doesn't matter what
happened with the staff. It doesn't matter if it's
prescriptive on the staff. You have to wait until
the rule, until whatever comes out, and then
challenge the whole thing. And, actually, that has
happened in the past.
I want to cite to -- it is -- I believe it's
Puget Sound Crab Association, 174 Wn. App. 572.
Actually, if you read the facts and the procedural
history of that case, they challenge both the policy
and the rule. The court didn't deal with the
justiciability issue in that case, and it went up
through appeals. They ultimately lost on the
arbitrary and capricious analysis. But they
challenged both the policy and the rule.
So what the Gillnetters did is, we challenged the
policy alone in Pacific County. And we argued that,
well, this is nondiscretionary on agency staff, and
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Argument by Mr. Godwin 31
therefore it's justiciable. Well, the court said,
it's not justiciable; you have to wait until the
regulations come out. And that's what's contained in
the order. It's a justiciability issue. And, in
fact, that's what the argument that was made which I
cited in my brief and attached a transcript of this,
as the State was arguing, they can seek everything
they seek today in a rule challenge in
Thurston County.
And so what happened is, the rules came out. We
modified our petition to not -- we're not seeking
relief against the policy anymore. Our relief is
against the rule, to invalidate the 2015 rule and to
direct the staff to go through a rulemaking process
that does not view the policy as prescriptive.
Had I prevailed in the Pacific County case, in my
opinion, I would have altered the actual language of
that policy. This case has nothing to do with that.
We would not -- that policy would remain there. But
I think a direction from this court that says, agency
staff, you can disregard that policy, if appropriate,
in the rulemaking process. It is not mandatory.
That's a different sort of case. That's a different
issue.
So then I want to get now to the -- so just to
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Argument by Mr. Godwin 32
wrap that up, that's what we're seeking in our first
and second claims for relief is that, invalidate the
2015 rules, to get a declaratory judgment that
essentially says, Department, you can disregard the
mandatory provisions of that policy, and they can be
altered in the subsequent rulemaking process for
future years. That's what makes this case not moot
and I think it also makes it justiciable.
Going to the third claim for relief -- just for
purposes of the record, it was voluntarily dismissed.
So going on to the fourth claim for relief, which is
the economic impact analysis. The standard of review
here is arbitrary and capricious, quite high. But we
do have some guidance in this area, and it's
Puget Sound Harvesters Association vs. Department of
Fish and Wildlife.
So what does the "arbitrary and capricious"
standard mean in these sorts of fish cases, where you
do have a certain level of complexity that certainly
would be deferential to the agency? What that case
says is -- well, what happened in that case is that
they allocated fish opportunity equally by days
between two user groups, a purse seine and a gill
netting boat, which are -- without getting into
details, they are just two different types of fishing
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Argument by Mr. Godwin 33
that -- and they have different success rates.
They didn't -- the agency failed to account for
the complexities in the different types of fishing
and the likelihood of success for those two types of
fishermen. And without accounting for that
complexity, one group was significantly -- the rule
was significantly more detrimental to that group than
it was to the other. And they just didn't consider
it. They just said, hey, we're just going to -- we
raise our hands; we're having trouble doing this;
we're going to split it equally between you.
And the court said, while we do defer to you on
these technical matters, you can't go through a
cursory analysis. You must have some substance to
your analysis as to why -- as to why you're making
one decision versus another and why you're applying
some technical rationale as to how to implement these
regulations or how to go through this regulatory
process.
So how does that relate to this case? Well, the
Legislature has a -- what's often cited as a mandate
to the Department of Fish and Wildlife, and that is,
you must preserve the resource, and consistent with
that, you must seek to maintain the stability of the
fish and --
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Argument by Mr. Godwin 34
THE COURT: Economic wellbeing?
MR. GODWIN: -- economic wellbeing. Exactly.
And so, in addition to that, we know that economic
wellbeing is very important, because in a separate
section it actually says, you know, we want the
Department to engage in some sort of process to
ensure that salmon harvest stability for the
commercial industry. Now, that's -- there's no
prescriptive sort of claim there. I wouldn't say
there's no -- no substantive right there. It just
says to the Department, we just want you to go out
and really try to figure out how to do this in order
to maintain that commercial industry.
So in this case, looking at their economic
analysis, they use a report that was prepared in
2008. And it's by an author named Wegge, W-E-G-G-E.
And he uses a couple of indices to figure out what is
the impact of any particular action. One of those is
X vessel value. X vessel value, very simply, is the
amount of money the fisherman gets at the dock for
the fish they catch, on average. For recreational
fishermen, they use angler days; how many days does a
fisherman go out, whether or not they'll have more
days or less days. And that's how they assess the
economic impact of their regulations.
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Argument by Mr. Godwin 35
Well, the gillnetters hired and prepared a report
with Professor -- or Dr. Radtke. And what he says
is -- he looks at this economic analysis that the
Department went through, and he looks at the Wegge
report, and he looks at the publically available
information, and what is their economic analysis.
And he goes, you know, I prepared that data. You
can't use it here. X vessel value doesn't work here.
And in, fact, the Radtke report is Number 11 in my
key documents brief -- the key documents binder. And
he says very specifically at Bates Number 1158,
X vessel value is not representative of the
commercial sector financial stability for several
reasons. He outlines those various reasons. I'm not
going to necessarily repeat them on the record here.
But then he concludes that WDFW should not use
X vessel value at Willapa Bay to assess the
management's policy impact on the fishing industry
statewide.
So what does the Department do with that?
Following the -- one of the important parts of the
APA process or the rulemaking process is the Concise
Explanatory Statement. And this is just stepping
back generally. The Concise Explanatory Statement is
intended to be a statement by the Department as to
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Argument by Mr. Godwin 36
what their agency action was and how they dealt with
each of the comments, what was the -- you need to
give us some explanation as to why you disregarded
certain comments during the rulemaking process and
that sort of thing. It's kind of an -- it's the --
for lack of a better, it's the intent behind the
rule. It's the agency intent versus the Legislature
intent. It tells us kind of what was the analysis
they went to.
And so for the economic analysis, what you find
was that their sole focus was conservation, that they
didn't really go through an economic analysis. And
they gave some reasons why they didn't go through
that analysis. They said it was challenging. And
this is a -- these are all on Bates Number 52 in the
Concise Explanatory Statement. It says it's not
attainable. And they said, really, some of these
factors are outside of our control.
And that's where I think -- that's where our claim
rises is that they expressly say, you know, this is a
conservation measure. We're going through that
conservation measure, and we're putting economics to
the side, despite the fact that their mandate says
that you must consider the economic impact on the
fishing industry. And I acknowledge that it says
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Argument by Mr. Godwin 37
statewide, commercial and recreational. But if they
don't know that, if they've analyzed some data and
somebody says hey, I, prepared that data, I gave it
to that author, it doesn't really apply here, they
can't rely on it. And in that sense it is arbitrary
and capricious. It disregards what are the facts and
circumstances of this case.
And so taking this back to Puget Sound Harvesters
vs. Department of Fish and Wildlife, it's cursory.
It's just saying, you know, this is hard; we can't do
it; and therefore we're just going to go ahead and go
with our conservation analysis. And I think that's
supported by the statute.
I make an argument in our briefing about the
wording of the statute. It says, the first mandate
is conservation; the second says consistent with that
mandate, you must consider the economic impact. And
based on the legislative amendments, you see that the
language in the economic portion has been amended
once that would suggest that maybe economics and
conservation are equal.
Now, there is a case that says, you know,
conservation is paramount. But I want to distinguish
that case. I believe it's the Puget Sound -- it's
actually another Puget Sound Harvesters case, I
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Argument by Mr. Godwin 38
believe. And the situation in that case is, they
were actually running into the -- there was
significant risk that the fish would be gone, that
they were -- there were serious concerns about
whether or not this fishery was going to continue.
And the court correctly said, you know, you need to
make sure that occurs. Because then if the fish are
gone, there is no economic -- there is no economy.
There's no commercial fishing; there's no
recreational fishing. So that is paramount. You
need to make sure that conservation -- that you
conserve the resources.
Well, here it's a little bit different, because we
have the former Region Six Manager, Ron Warren. And
I submitted a -- there's a declaration in the record
where he basically says in 2013, you know, these
fisheries are abundant; they are healthy; they are
not ESA listing. We just want to change what the --
we're thinking of doing here is just changing our
target. Your know, there's lots of fish — don't
worry about that — plenty of fish. We want a
specific type of fish. We want a fish that is
naturally spawning.
And so when you have the -- when you have at its
core that conservation is actually met, that there's
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Argument by Mr. Godwin 39
actually no risk to -- that there's no -- no risk of
there not being any fish, then you really need to put
economics consistent with that conservation
objective. And so I would say here that, right now,
if they don't consider the economics and they just
don't have any economic objectives, that the data
they used is inaccurate or unreliable, then their
economic analysis is inconsistent with their
conservation analysis.
It doesn't -- there's not -- they have not
promoted to -- they have not sought to maintain the
stability or wellbeing of the fishing industry. And
they just don't know whether they have or not,
because they haven't looked at anything reliable
enough to tell them they have. And so, in that
sense, it is arbitrary and capricious.
Finally -- so with that one, our request for
relief is that 2015 rules are invalid and declare --
and a declaration of -- a declaratory judgment
directing them to engage in a process that does seek
to maintain the stability of the fishing industry by
doing a correct analysis -- a correct economic
analysis.
So going next to our fifth claim for relief, that
claim kind of weaves throughout this as kind of what
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Argument by Mr. Godwin 40
happened. You know, what did the agency do.
Originally, Ron Warren testifies in court and says,
you know, this is a healthy fishery; we're meeting
all of our conservation objectives; this is --
there's no ESA listing. And then the -- and that was
in August of 2013. Suddenly, in March of 2014, a
much different picture is painted. And so the
question then becomes, how much information did you
really have within that six-month period to make such
a drastic change? And you have to have a reasoned
analysis for that.
Now, that's important because as of March of 2014,
they only had season. They had one data point
different than what they had in 2013. Now, they
string a series of -- you know, they have all of
these public meetings, and they try to generate as
much information as they can about that change. But
it was all -- but all of that information they put
together is after the fact. Because, really, they've
already made the decision to change in March of 2014.
And what did they have in March of 2014 that they
didn't have in August of 2013? They have just a
single season. And so we object to that in the sense
that it is just simply inadequate information to do
that.
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Argument by Mr. Godwin 41
I want to move now to, more importantly, these
emergency rules. This is the in-season management
that's kind of what's going on here. Because those
emergency rules did not go through notice and public
comment. For our purposes here, rulemaking generally
has a -- and I'll go back to tab 13 of my key
documents binder. There's -- it's actually kind of a
lengthy process, you know, to go through. There's a
45-day period for public comment. There's another
35-day period before a public hearing on the rule.
Then you issue the rule. And then actually not on
here is after the -- along with the rule being
issued, you filed a Concise Explanatory Statement
justifying why you either disregarded or accepted all
that commentary that you received during that
process, which is kind of the accountability piece.
Because we didn't just -- it didn't fall on deaf
ears. We actually heard it, and this is what we
think about it.
Well, that didn't happen in those emergency rules,
because there's an exception to that process for good
cause. What's the -- and for good cause -- this is
34.05.350.
". . . Good cause finds: That immediate
adoption, amendment, or repeal of a rule is
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Argument by Mr. Godwin 42
necessary for the preservation of the public
health, safety, or general welfare, and observing
the time requirements of notice and opportunity
to comment upon adoption of a permanent rule would be
contrary to public interest."
So that's been subsequently interpreted in the
case of State v. MacKenzie. And that case has some
very interesting language about what good cause
means. And it says you need to have a real
emergency. In that case, the regulation didn't have
adequate -- it wasn't adequately written, so that
blood alcohol tests could be admitted in court, so
that people could potentially not be prosecuted for
driving under the influence. That's a serious risk.
That's a serious emergency there that needs to --
then they immediately go back, because they have all
of these cases that are coming up in the -- all of
these DUI cases that are moving through. We need to
amend that regulation. We can't wait three months to
go through a public comment period. This was
intended to be there in the first place, and we need
to do it now.
You also have a similar standard at the federal
level. And I want to point out, Washington's APA
does say that courts should look to federal authority
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Argument by Mr. Godwin 43
so that they're interpreted consistently with each
other, the federal and the State APA. So I cite
to -- in our brief to NRDC vs. Evans. And that's a
fisheries case.
In that case they were issuing emergency rules
based on fluctuating information about the fishery.
And they were having trouble collecting all of the
data, and they wanted to change their approach more
quickly than the APA process and public notice and
public comment would allow. And the court there
said, I understand what you're trying to do, that
makes sense, but generic complexities of data
compilation and the timing are not sufficient
exigency. That is not an exigent circumstance.
That is exactly what you have here. In response
to our petition, the Department of Fish and Wildlife
states very specifically, "Here the emergent
circumstance was the need to respond to new fishery
data within a narrow window."
And that is the generic complexities of timing
that are rejected in NRDC vs. Evans. You need to
have a real -- what is the real risk.
Now, they're going to point to, oh, we were at a
risk of missing that objective that we outlined in
the policy, that 20 percent harvest rate. Well, they
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Argument by Mr. Godwin 44
had gone for years with a much higher percent on the
fishery. And the fish -- over those years, the fish
were abundant. They were healthy. There was no ESA
listing.
I think if there's a real risk of overfishing,
that we're going to deplete this to nonexistence on
this season, this particular moment -- because if
they're looking at subsequent seasons, that's outside
the scope. I mean, they need to go through regular
notice and comment. I mean, okay, we're going to --
this is an impact that's going to -- the fishing this
year is going to impact future seasons, or we want to
limit the scope of fishing every year in this manner,
then that's a different issue. This is -- we're
looking at the fisheries data or the data from
fishing this season, and this season we have a risk
that these fish are going to be depleted
significantly to nonexistence. Then we have a real
emergency, and then you issue the emergency
regulation.
Simply not being able to gather new data --
they're accepting new data as the season progresses,
and they can't adjust the fishery in a way that they
would like to in that time period, that's exactly the
type of sort of complexities in data compilation
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Argument by Mr. Godwin 45
that's just not good cause, and that is why the
emergency regulations are arbitrary and capricious
and should be invalidated.
I think a declaratory judgment in that sense would
direct a them to go through a good cause analysis of
what is an actual emergency, but I think more
importantly, that generic complexities and data
compilation and timing are not good cause and
invalidating those 2015 emergency regulations
accordingly.
I want to just briefly touch again on the motion
to dismiss, the first two claims. The motion to
dismiss, the first two claims, is based on collateral
estoppel, res judicata. It is not a challenge to the
justiciability of this action. It is simply saying
that we already litigated this issue. And that has
categorically been rejected in Ullery vs. Fullerton.
Threshold justiciability issues are not decisions on
the merits -- final decisions on the merits, and
therefore, they are not subject to collateral
estoppel or res judicata.
I also want to point out, they're just different
issues. We attacked the policy directly in Pacific
County; our petition says that. Our agency action
was the policy. We were seeking to invalidate the
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Argument by Mr. Godwin 46
policy. Here we are seeking to invalidate the rules,
because the process was not sufficient.
Our direct attack on the policy would have been --
I mean, that would have been one -- that was
strategically an advantageous approach. We did not
prevail. So we went here to attack the rule. And we
did attack the rule.
Now, the State points out that the rule had been
issued at the time of that decision and that it was
supplemented for the court. And it was. That
doesn't mean that didn't alter the petition, because
the only way we know what the issues and the claims
were in that original case is, what was the petition
containing. The petition at that time was not
challenging those rules.
I hadn't even seen -- I mean, I had seen them, but
it was like three or four days before the hearing.
The briefing was -- to my recollection the briefing
had been done. But besides that, we were challenging
policy directly, and that is a different issue. And
again, the issue there for issue preclusion and the
element at issue is, what is the narrow issue
litigated.
The narrow issue litigated was justiciability, not
the merits of all of the claims. In fact, that's
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Argument by Mr. Godwin 47
what the court decided in the order is that it was
not justiciable and then dismissed the whole
complaint, didn't deal with the arbitrary and
capricious claims, didn't deal with any of the other
claims, didn't deal with anything. It just said, you
know, you're just -- you're premature.
In Ullery vs. Fullerton — I think I'm pronouncing
that correctly — quoting the -- in a quote it
actually references "immature claims." It says one
of the things that is -- that applies or that is a
justiciability determination that is not subject to
collateral estoppel or res judicata is a claim that's
not mature. And that is exactly what happened here.
It has subsequently matured, and we filed a new
petition based on that maturity. And so I think that
the motion should be denied on that basis.
Oh, and then there's the -- finally, I -- and
before I jump into the judicial estoppel argument, I
have dealt with Mike Grossman for four years. I
think he's an excellent lawyer. I'm not doing this
to throw him under the proverbial bus. I'm just
saying, he made an argument before the court,
basically, that they could do anything they wanted to
do in a rule challenge in Thurston County. That's
clearly in the record, and that's what was adopted by
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Argument by Mr. Grossman 48
the court. And now we're here in Thurston County
saying, yeah, you can't come to Thurston County.
That is by a -- I think that is judicial estoppel,
and I think they should be estopped.
There's an equitable component to -- if you read
all of the cases, it's kind of an equitable analysis
for collateral estoppel and res judicata. It's,
really, what do -- how do we retain the -- constrain
the flow on the courts, and we don't need to keep
relitigating the issues that have already been
decided.
So with that equitable component, I think there's
a matter of equity in whether or not it is
appropriate to apply. And I think that piece of it
makes it inequitable to apply here, even if you
determine that there was a final judgment, even if
you determine that the issues were the same, which I
don't think the -- I think you could deny that motion
on both of those grounds. In addition to that,
there's this equitable components that makes it
inappropriate here. So I think the motion should be
denied.
THE COURT: Thank you.
Mr. Grossman.
MR. GROSSMAN: Good afternoon, Judge Dixon.
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Argument by Mr. Grossman 49
THE COURT: Good afternoon.
MR. GROSSMAN: For the record, Mike Grossman
representing the State of Washington Department of
Fish and Wildlife.
I'll briefly go through the motion to dismiss, and
then I'll pivot pretty quickly into the two claims
and the merits for those claims, assuming that we're
going to resolve the issue of the motion to dismiss,
perhaps, after we've litigated everything today.
Our position is that there -- collateral estoppel
and res judicata do apply. The elements are issues
identical to the prior litigation, a prior final
judgment, the parties in privity, and application of
collateral estoppel wouldn't work a prejudice or an
injustice.
Here there are identical issues and claims in the
first two claims. The response from the Petitioners
didn't even try to distinguish the nature of the
claims. The essence is to say you can't, commission,
do policies that are specific and that have time,
place, and manner kinds of prescriptions.
And I think we heard today from Mr. Godwin that
the relief they seek is an order from this court
saying that staff, you can ignore the policy, because
policies can't have that kind of stuff in it, and
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Argument by Mr. Grossman 50
they can't have mandatory language. And there's also
a claim that the end of the policy which says this is
strong guidance, and you can set that aside if you
need to; you just need to come back and talk to that;
ignore that; that was somehow just some sort of head
fake that the commission put in there.
The point is that in Pacific County, just like in
Sudar, they came to the court and said, the agency
did something unlawful when it adopted policies that
had strong guidance, used the words "shall"
or "will," and set a strong path forward. Well,
that's what the folks in Sudar tried down in the
Columbia River in a policy that's very similar to the
Willapa policy, and they lost on it.
And that's what the gillnetters tried to do in
Pacific County, and Judge Sullivan said, no, I think
this is an effort to try and go after the policy as
unlawful rulemaking. It's not a rule. It doesn't
have mandatory effect. And just like what the court
said in Sudar, that is now a Court of Appeals
decision, and I'm bound by it. And he dismissed
their case.
THE COURT: Well, what about the argument that
the sole issue or the sole decision reached in
Pacific County was the issue of justiciability?
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Argument by Mr. Grossman 51
MR. GROSSMAN: It is -- the issue was, is
policymaking a justiciable controversy under the APA.
And Sudar says clearly, it is not. And that's the
basis on which Judge Sullivan dismissed their claim
in Pacific County.
Now, Mr. Godwin says, well, take a look at Ullery.
Ullery says, if you've got justiciability issues and
that's what makes it go away, then you haven't met
the part of collateral estoppel, res judicata, that
says you have a full litigation of the issues and a
judgment. But if you look -- but it doesn't actually
say "justiciability."
The Ullery case says, when cases are dismissed
based on prudential issues, things like failure to
join a party, lack of standing, wrong venue, things
that are curable, then you haven't had an
adjudication of the claim or issue that's a part of
what you want to get to litigate.
Well, they've told you what the heart of the issue
is that they want to get at here on the policy. They
want you to conclude that the commission has no
lawful authority to develop policies that have a
strong component to it and that set a presumptive
path forward and that have things in it that look
like time, place, and manner components that
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Argument by Mr. Grossman 52
eventually make their way into a rule.
But the Sudar case took that issue head on. And
if you take a look at Sudar — I cited to it in our
brief — starting at page 33, they say, "no
justiciable controversy may be alleged." It's not
that a -- there's nothing to cure here. The
question -- if what you're going to do as a litigant
is say there's agency action when you do policymaking
that I can create a controversy or allege a
controversy over and bring that to the court for
judicial review, that's what Sudar said you can't do.
And that's what they tried to do in Pacific County;
that's what their first two claims here have tried to
do.
So our position is, this meets all of the tests
for what is a preexisting claim or issue that was
pled, that was examined by the court as a matter of
law, and that was then resolved to a conclusion. And
here you have Judge Sullivan saying in his order, you
can't raise this issue. He doesn't say this is a
prudential issue. He says policymaking is not a
justiciable controversy. Now, I --
THE COURT: What about challenging the policy?
In that case Mr. Godwin argues that the challenge in
the instant case is a challenge to the rule.
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Argument by Mr. Grossman 53
MR. GROSSMAN: Ultimately, they want to
challenge the rule, but how do they get to the
challenge to the rule? By getting you to go back to
the policy --
THE COURT: All right.
MR. GROSSMAN: -- and say you can't -- I mean,
look at the relief he asked you for today. And in
fact, if you take a look at paragraphs 4.7 and 5.7 of
their Amended Petition for Review, or paragraph 2 on
the last page that asks for the relief, what do they
say? They say you can't have policies that have
these time, place, and manner components.
And what they say on the last page of their
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