Northwest Land Matters Update - May 2018

May 3, 2018

IN BRIEF 

Migratory Bird Treaty Act: Trump Administration Limits its Effect, While the Courts Complicate MBTA Permitting Efforts

The Trump Administration continues to limit the reach of the Migratory Bird Treaty Act (MBTA), a 1916 law that makes it a crime, “at any time, by any means or in any manner, to pursue, hunt, take, capture, kill,” or attempt to do so to “any migratory bird, any part, nest, or egg of any such bird….” This prohibition has long been a concern to developers of wind energy projects and other large projects with potential effects on migratory birds, and the Trump Administration’s actions may provide short-term relief from these concerns.

On December 22, 2017, the United States Solicitor issued Memorandum Opinion M-37050 (the “M-Opinion”), which reversed a prior M-Opinion concluding the MBTA prohibited the “incidental take,” or unintentional killing, of migratory birds. The 2017 M-Opinion concluded that the MBTA applies narrowly to intentional acts aimed at the bird. On April 11, 2018, the Principal Deputy Director of the U.S. Fish and Wildlife Service (“FWS”) issued a memorandum offering guidance to FWS on the M-Opinion (the “Guidance Memo”). The Guidance Memo suggests a broad reading of the M-Opinion, stating that FWS should look to the actor’s subjective intent in taking the action in question, and if the actor subjectively took the action for any reason other than to intentionally take a migratory bird, their eggs, or their nest, then the action does not violate the MBTA – even if the actor knows that an action will cause harm.

These interpretations by the Trump Administration offer short-term assurance that FWS’ enforcement of the MBTA’s criminal prohibition on “incidental take” will be limited by the M-Opinion and the Guidance Memo. The Guidance Memo also states that FWS “will not withhold a permit, request, or require mitigation based upon incidental take concerns under the MBTA.” Despite this statement, however, federal agencies might still be bound by [prior authority] Executive Order 13186, which remains in place and could be interpreted as requiring agencies to impose mitigation to avoid incidental take. Moreover, in the long term, it is unclear how long the protection provided by the M-Opinion and the Guidance Memo will last. Just as the Trump Administration reversed the Obama Administrations’ interpretations of the MBTA, the next administration could do the same.

In the meantime, the 9th Circuit Court of Appeals issued a decision that could make it more difficult for project proponents to obtain a permit from FWS in an effort to comply with the MBTA’s take provision. On December 27, 2017, the Court issued a decision in Turtle Island Restoration Network v. United States Dep't of Commerce, 878 F.3d 725 (9th Cir. 2017), holding that the FWS acted arbitrarily and capriciously by issuing a “special purpose permit” to the National Marine Fisheries Service on behalf of a commercial fishery operation, where the permit provided no benefit to migratory birds. The Court ruled that special purpose permits, as authorized by FWS’ regulations, can only be issued for activities that “relate[ ] to migratory birds,” and only upon showing a “compelling justification” – two factors the Court found absent in the case of the commercial fishery operation. If this decision stands, it will block the only regulatory path that FWS has identified to date for the permitting of an “incidental take” under the MBTA. On the other hand, if the Trump Administration’s recent interpretations of the MBTA stand, project developers will probably feel less compelled to seek such a permit, since those interpretations would eliminate the risk of criminal liability for such an incidental take.

Washington Supreme Court Confirms Scope of Recreational Immunity Statute

On April 19, 2018, the Washington Supreme Court issued its decision in Lockner v. Pierce County, which resolved significant uncertainty regarding the scope of the immunity provided by Washington’s recreational use immunity statute, RCW 4.24.200-.210 (the “Immunity Statute”). The Legislature enacted the Immunity Statute in 1967 to encourage “owners and others in lawful possession and control of land and water areas or channels to make them available to the public for recreational purposes.” It sought to achieve this purpose by limiting the landowners’ liability for injuries and other damages sustained by members of the public who enter the land.

As explained in our December 2017 update, the scope of the Immunity Statute was recently called into question when the Court of Appeals issued a decision holding that the Immunity Statute applied only if the land was held open solely for recreational use – and did not apply if the land was held open for recreational use and some other use, such as transportation. That holding raised concerns among public and private stakeholders, including cities, counties, state agencies, and a wide range of nonprofits working in the areas of recreation, land conservation, historic preservation, and agriculture, who submitted amicus briefs to the Supreme Court and argued that the Court of Appeals’ decision would fundamentally undermine the purpose and effect of the Immunity Statute.

In its 2018 Lockner decision, the Washington Supreme Court resolved two issues relating to the scope of recreational use immunity. First, the Court rejected the lower court’s holding that recreational use immunity applies only if the land is open to the public solely for recreational use. The Court held that exclusive recreational use is not required, and that as long as one purpose in opening the land to the public is recreational use, the Immunity Statute precludes landowner liability for unintentional injuries. Second, the Court affirmed the lower court’s holding that the Immunity Statute is not limited to premises liability claims and extends to claims of negligence.

The Supreme Court’s decision restores the certainty the Legislature intended to provide to landowners and others in control of land, confirming that immunity will apply as long as the land was opened for a recreational purpose, even if the land is also open to transportation or some other purpose.

New Law Requires Re-written Legal Documents for Condominiums and Plat Communities: Fixes Case Law “glitch.”

On March 29, 2018, the Washington Legislature voted to enact the Washington Uniform Common Interest Ownership Act (WUCIOA). The WUCIOA takes effect on July 1, 2018, and will govern all Common Interest Communities (CIC), including condominiums, plat communities, and cooperatives, created after the effective date. This law, which is intended to harmonize the various provisions of existing laws and provide uniformity among all three forms of common interest ownership, is a comprehensive act that governs the formation, management, and termination of common interest communities including condominiums, planned communities, and cooperatives.

While the uniformity provided by the WUCIOA will provide long-term benefits, the law presents a short-term challenge: developers with pending projects have a short period of time to re-write many of the documents they have used in the past, such as Declarations (CC&Rs), survey/plat maps, HOA Articles of Incorporation, Bylaws, and related documents, Public Offering Statements, construction warranties, and Purchase and Sale Agreements. Van Ness Feldman’s real estate attorneys are prepared to assist with this transition.

One specific issue addressed by the WUCIOA is the development of condominium projects in jurisdictions that have not adopted a local ordinance allowing the use of condominium Binding Site Plan (BSP) pursuant to RCW 58.17.040(7). Prior to WCIOA, development of condominium projects in such jurisdictions had been called into question by two appellate decisions, which many condominium attorneys believed were decided incorrectly because they confused the creation of “lots” within a subdivision with the creation of “units” in a condominium. See Strauss v. City of Sedro-Woolley, 88 Wn. App. 376, 382, 944 P.2d 1088, 1091 (1997) (“Project owners wishing to subdivide property to create legal lots of record for condominiums who wish to avoid the traditional subdivision requirements have no other alternative but to follow the binding site plan procedure.”); Lakeland Estates, LLC v. King Cty., 138 Wn.App. 1060 (2007) ("[I]n order to create a condominium entity, a landowner can bypass the traditional subdivision process by first applying for a BSP and then applying for a condominium entity.”) (citing RCW 58.17.040(7)).

The WUCIOA intends to supersede these decisions by providing an unambiguous statement that condominium projects are not subject to state subdivision law. Section 105(3) of the WUCIOA states as follows: "Chapter 58.17 RCW does not apply to the creation of a condominium or a cooperative." One of the attorneys who helped the Legislature draft the text of WUCIOA has confirmed that the specific purpose of this language was to fix the “glitch” created by these cases.

Pocket Gopher Still Poking Holes in Thurston County Development

The Mazama Pocket Gopher, a threatened species under the Endangered Species Act, has stymied development in the South Puget Sound region since its listing in 2014. In the years since the listing, county and city officials have attempted to develop a comprehensive Habitat Conservation Plan (HCP), which would help facilitate development, but no HCP has been completed. Thurston County has been working on the Prairie HCP, which, if finalized, would provide a countywide framework for the conservation of all federally protected species. Additionally, the Port of Olympia and the City of Tumwater are working on a separate HCP, the Bush Prairie HCP. While neither HCP has been released, Thurston County is working to ease the burden of the pocket gopher in its own review process through various actions, such as potentially expanding the season for site visits to determine whether gophers are present from June through October to April through November. While local government HCPs have not been finalized, the U.S. Fish and Wildlife Service released a draft HCP related to the pocket gopher for a private residential project at a Thurston County development site known as The Preserve. The comment period for this HCP closes on May 3, 2018. Van Ness Feldman will continue to monitor activities related to the pocket gopher.

Puget Sound Officially Designated No Discharge Zone

The Washington State Department of Ecology has designated the Puget Sound as a “No Discharge Zone” (NDZ), which means that the discharge of any type of vessel’s sewage (blackwater), treated or untreated, is officially banned within the Puget Sound. The new rule takes effect May 10 and establishes geographic boundaries, how to close marine sanitation devices, effective dates for certain commercial vessels, and enforcement authority. The NDZ boundaries include all marine waters of Washington State inward from the line between the New Dungeness and Discovery Island lighthouses, to the Canadian border, the fresh waters of Lake Washington, and all the water bodies that connect Lake Washington to Puget Sound. The rule comes after a robust five-year public outreach and evaluation effort, including multiple public comment periods that received more than 40,000 comments in support of Washington’s proposal.

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