On Monday, the Supreme Court (in 4-4 decision) affirmed the Ninth Circuit decision in Washington vs. US. Since 2001, the United States, the Western Washington Treaty Tribes (“Tribes”), and the State of Washington (“State”) have been engaged in epic litigation concerning whether State owned culverts, which block fish passage, have violated the Tribes' treaty rights. In 2017, The Ninth Circuit ruled held that the State was and continues to violate the Tribes’ treaty rights by building and maintaining the State’s culverts. Specifically, the Ninth Circuit upheld the District Court’s injunction, which required the State to remove its barrier culverts—costing the State hundreds of millions of dollars.

On June 11, 2018, the United States Supreme Court affirmed the decision by an equally divided court. While the Supreme Court decision itself does not have any precedential value, the Ninth Circuit decision now remains in place. As such, this ruling is likely to have significant implications on the relationships between the Tribes, the State, and the federal government, especially as it relates to resource management and protection.

While the Court’s decision upholds the Ninth Circuit’s ruling, there are now more questions than answers. Specifically, what does this decision mean for the future of land-use in the Pacific Northwest? To help local governments as well as private individuals navigate the potential labyrinth of tribal treaty rights, resource management and protection, and land development, please join us on July 10 for a VNF sponsored CLE, US v. Washington Culvert Subproceeding: Implications on the Regulated Community in the Northwest, to discuss the implications of this case.

Molly Lawrence, Jenna Mandell-Rice, and Joseph Nelson

For more than a decade, the Federal Emergency Management Agency (“FEMA”) has been in a dispute with several environmental groups and unable to reach agreement with the National Marine Fisheries Service (“NMFS”) and the U.S. Fish and Wildlife Service (“FWS”, and collectively with NMFS, the “Services”) regarding the effects of the National Flood Insurance Program (“NFIP”) on Endangered Species Act (“ESA”)-listed species and their designated critical habitat.

Environmental groups have sued FEMA in at least six states, ranging from Washington to Florida, for failing to consult with the Services pursuant to ESA Section 7(a)(2) regarding the effects of FEMA’s implementation of the NFIP on ESA-protected resources. In 2012, FEMA agreed, as part of a settlement of one of those suits, to review the environmental consequences of its implementation of the NFIP nationwide, including potential modifications intended to demonstrate compliance with the ESA.

On May 25, 2018, FEMA issued a “Record of Decision” concluding that review process and announcing FEMA’s decision to modify the NFIP to “demonstrate compliance with the ESA.” Although FEMA has concluded that the NFIP has “no effect” on ESA species or their designated critical habitat, FEMA nevertheless has decided to implement two actions to allay claims that the NFIP negatively affects ESA-listed species and their habitat.

While FEMA has couched these actions as modest “clarifications” of its existing regulations, in fact these actions represent a significant shift in policy and have substantial ramifications for NFIP participating jurisdictions (more than 22,000 cities and counties across the United States) and floodplain property owners. NFIP participating jurisdictions and floodplain property owners will be required to prove the negative – that no other federal or state permits are required – before any floodplain permit may be issued.

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IN BRIEF

On May 21, 2018, several environmental groups filed a lawsuit in federal court seeking to expand permit review by the U.S. Army Corps of Engineers (the “Army Corps”) for projects that would “armor” the shorelines of Puget Sound by adding a new bulkhead or seawall. If successful, the lawsuit would require more bulkhead and seawall proposals, which are already subject to permitting and environmental review by state and local agencies, to also obtain permit approval from the Army Corps. As explained below, it can often be difficult and expensive to obtain such approvals from the Army Corps, adding delays and increasing the cost of a review process that is already onerous for many landowners.

According to the lawsuit, since the 1970s, the Seattle District of the Corps (“Seattle District”) has defined its Clean Water Act (“CWA”) § 404 jurisdiction in Puget Sound to extend only up to the “mean higher high water” mark, which is an average of the higher of the two high water marks each tidal day as observed over a 19 year period. The lawsuit alleges that this approach is inconsistent with regulations implementing the CWA. According to the environmental plaintiffs, the Corps’ regulations extend its jurisdiction to the “high tide line,” which is higher on the shoreline than the “mean higher high water” mark.

While the lawsuit is based on a fairly technical distinction between the “mean higher high water” mark and the “high tide line,” it could have significant consequences for landowners in Puget Sound seeking to add a new bulkhead or seawall. The Corps’ permit process often requires landowners to hire consultants who, at great expense, can assist with complex and time-consuming federal review requirements such as compliance with the National Environmental Policy Act (NEPA) – on top of the already-required compliance with Washington’s State Environmental Policy Act (SEPA) – as well as consultations under the Endangered Species Act (ESA), cultural resources studies, and consultations with Tribes.

The Army Corps has 60 days to provide its initial response to the lawsuit. Other parties may seek to intervene during the early stages of the lawsuit. Van Ness Feldman’s attorneys will continue to monitor this matter, and we are prepared to advise landowners and others in the regulated community about the potential consequences for individual properties or groups of properties.

Knowing where to challenge a local government rezone, whether to court under the Land Use Petition Act (“LUPA”) or to the Washington State Growth Management Hearings Board (the “GMHB”) is critical to preserve one’s rights. The Supreme Court in Schnitzer W., LLC v. City of Puyallup, has provided important clarity that a government-initiated rezone, targeting a single property without an amendment to the city’s comprehensive plan, is a site-specific rezone challengeable in court under LUPA and is not a legislative action appealable to the GMHB.

In Schnitzer, city council members initiated, drafted, and approved an ordinance that rezoned specific parcels owned by Schnitzer West, LLC only. Schnitzer successfully challenged the ordinance in Superior Court under LUPA, but the Court of Appeals reversed, holding that the rezone ordinance was not a “land use decision” under LUPA because the government itself could not be the “applicant” for a government approval.

The Supreme Court reversed, holding that if the city council initiated the rezone it was an applicant for a land use decision as defined by LUPA. In confirming that the action was not legislative, the Court first rejected use of the four-part test in Raynes v. City of Leavenworth, 118, Wn.2d 237 (1992), because Raynes was a writ case and LUPA now controls judicial review of land use decision. The Court then considered the provisions of RCW 36.70C.020(2)(a) which excludes from LUPA review “applications for legislative approvals, such as area-wide rezones and annexations.” Although the phrase “such as” might suggest the list of excluded legislative approvals was not exhaustive, the Court applied the plain meaning test to hold that the legislature intended this list to limit the scope of exclusions under LUPA to actions “similar in nature to area-wide rezones and annexations.” Because the ordinance was confined to Schnitzer’s specific property and was not “area-wide” in coverage, it was not a legislative action.

Under Washington State’s Non-User Statute, public rights-of-way established in the late 1800’s or early 1900’s that have never been “opened” may be subject to a “statutory vacation,” extinguishing all public rights in the land and reverting title to the adjacent private land owners. Property owners may even have rights under this Statute to acquire adjacent alleys and some roads in current use when the historical record can demonstrate that the alley or road was not opened during the relevant time period.

The Non-User Statute, originally passed in 1890, and now codified at RCW 36.87.090, provides:
"Any county road, or part thereof, which remains unopen for public use for a period of five years after the order is made or authority granted for opening it, shall be thereby vacated, and the authority for building it barred by lapse of time… "

Although the Non-User Statute only operates to vacate county roads, roads within city limits may be eligible for statutory vacation if the land was annexed to a city after the relevant 5-year period of non-use.

A significant limitation exists as a result of a 1909 amendment that restricted the Statute’s scope such that rights-of-way dedicated by plat would not be eligible for statutory vacation. Eventually, however, the courts ruled that the Non-User Statute can still operate where the plat dedicating the road was recorded (or signed) before March 11, 1904 (five years before the legislative change).

Lawsuits using the Non-User Statute are generally brought as “quiet title” actions. Unless avoided through settlement and stipulation, a court must conclude, based on the facts presented at trial or in declarations supporting a summary judgment motion, that the right-of-way was never opened in the five year period after the road was dedicated or otherwise established by the County. The difficultly of proving century-old facts may dictate whether the time and expense of bringing such an action is worthwhile. Similarly, the posture of the city or county involved (i.e., whether they will staunchly oppose or merely be indifferent to an action to vacate the street) and the attitude of other surrounding land owners will influence how much effort to devote to the litigation. For this reason, it is often advisable to engage in preliminary discussions with the local government and other neighbors to gauge whether there are opportunities to avoid disputed litigation if there are agreed-upon facts.

A successful lawsuit under the Non-User Statute can also be difficult because it requires proving a negative -- that the right-of-way was never opened. Merely identifying that no open road exists today is insufficient. This becomes more difficult when there is evidence of current or past use of the alley or road, but the claimant seeks to prove that the right-of-way was not opened during the historic statutory time frame.

When evaluating a potential claim under the Non-User Statute, there are numerous sources of evidence to consider including deeds, plat maps, and other historical maps, drawings and photographs that may contain useful notations providing evidence of use or non-use. In some cases, engaging a professional land surveyor to do a field investigation or reviewing satellite imagery can provide testimonial support. Satellite imagery may reveal faint traces of a road that would indicate the road had been opened. In contrast, the presence of large trees might be inconsistent with a road ever having been present. In one recent case, declarations from local residents who lived within a few blocks of the relevant right-of-way supported a successful motion for summary judgment.