HomeMy WebLinkAboutCA-26 Respondents Reply Motion to Dismiss (COUNTY 072925)RESPONDENTS’ REPLY ON MOTION TO
DISMISS
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Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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BEFORE THE JEFFERSON COUNTY
HEARING EXAMINER
MARILYN SHOWALTER and JAN WOLD
Appellants,
vs.
JEFFERSON COUNTY,
Respondent,
and
ROCK ISLAND SHELLFISH; ROBERT
CARSON,
Respondent.
Case No.: 072525
(SDP2024-00006)
RESPONDENTS’ REPLY ON
MOTION TO DISMISS
I.Introduction
Neither Ms. Showalter nor Ms. Wold submitted comments on the
environmental impacts of Rock Island Shellfish’s proposed oyster farm (“Proposal”)
as required by JCC 18.40.330, which specifically defines and limits the ability to
file appeals of a mitigated determination of nonsignificance (“MDNS”). Appellants’
contentions that they nonetheless are entitled to appeal the MDNS are legally and
factually meritless. Thus, Appellants’ MDNS appeal must be dismissed.
II.Authority and Argument
A.Appellants Misconstrue JCC 18.40.330.
Appellants contend JCC 18.40.330 does not bar their MDNS appeal, arguing
CA received 07/29/25
EXHIBIT CA-26
RESPONDENTS’ REPLY ON MOTION TO
DISMISS
Page 2 of 9
Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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this code section is entirely permissive and not restrictive. Appellants’ Response to
County/Applicants’ Motion to Dismiss (“Response”) at 6. Appellants are incorrect.
The first sentence of JCC 18.40.330 makes clear that it is restrictive, not
merely permissive: “In the absence of a specific right of appeal authorized under
this UDC, there shall be no right to administrative appeals.” JCC 18.40.330(3)(a)
specifically authorizes the right to appeal an MDNS and limits it to “the applicant
or anyone commenting on the environmental impacts of the proposal (as further set
forth in JCC 18.40.780).” Even absent the restrictive language in the first sentence,
the explicit listing of specific individuals who have a right to appeal an MDNS in
JCC 18.40.330(3)(a) would operate to exclude all other individuals under expressio
unius est exclusio alterius. State ex rel. Port of Seattle v. Dep’t of Pub. Serv., 1
Wn.2d 102, 113, 95 P.2d 1007 (1939) (where a statute enumerates specific persons
or things to be affected by it, there is an implied exclusion of all others).
Appellants do not dispute that the deadline for commenting on the
environmental impacts of the Proposal as set forth in JCC 18.44.780 was August 9,
2024. Respondents’ Motion to Dismiss (“Motion”) at 3; First Frostholm Decl., Ex. A.
Nor do they dispute that they failed to provide environmental comments on the
Proposal during the comment period. Motion at 3; First Frostholm Decl., ⁋ 10.
Accordingly, they are not authorized to administratively appeal the MDNS, and their appeal
must be dismissed.
B.Appellants Do Not Have a Right to Appeal an MDNS Under
Other Sections of Title 18.
Appellants contend that they have a right to appeal the MDNS pursuant to
other provisions of Title 18, specifically JCC 18.40.810(3) and (6), and JCC
18.10.160(P). Response at 4-6. This contention is legally and factually meritless.
Legally, none of these provisions authorize administrative appeals of an
MDNS. JCC 18.40.810(3) authorizes only administrative appeals of a DNS, not an
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RESPONDENTS’ REPLY ON MOTION TO
DISMISS
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Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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MDNS. JCC 18.40.810(3) (The decision of the responsible official on Type III
permits making a threshold determination of a DNS . . . may be appealed to the
hearing examiner”). These are distinct decisions, and the County knows how to
authorize administrative appeals of an MDNS when it desires and intends to do so.
In fact, it did so in the very preceding subsection, JCC 18.40.810(2), which
authorizes administrative appeals of “[t]he decision of the responsible official on
Type II permits making a threshold determination of a DNS or MDNS …”1 It also
did so in JCC 18.40.330(3)(a), discussed above (authorizing appeals of “[t]he
responsible official’s DNS or MDNS”). Well-established rules of statutory
interpretation prohibit courts from adding words to unambiguous statutes when the
legislature has chosen not to include them, even when courts feel a term was
omitted in error.2 State v. Kintz, 169 Wn.2d 537, 550, 238 P.3d 470 (2010).
JCC 18.40.810(6) also does not authorize appeals of an MDNS, or any other
specific type of SEPA decision for that matter. It simply states that an applicant or
other party of record “may file a SEPA appeal as provided in this article.” JCC
18.40.810(6) (emphasis added). As discussed above, however, Article X of JCC
Chapter 18.40 provides for administrative appeals of a DNS, but not an MDNS,
associated with a Type III permit.
JCC 18.10.160(P) (“Parties of record”) does not authorize appeals of any type
of SEPA decision. It simply defines “Parties of record.” While this definition is
important when Title 18 of the Code authorizes parties of record to appeal an
MDNS for a Type III permit, as just discussed, no provision of Title 18 does so.
1 JCC 18.40.810(2) does not apply, because the Proposal’s SDP is a Type III permit. JCC 18.40.040.
2 There is no indication that the omission of “MDNS” in JCC 18.40.810(3) was in error. Given the
County knew how to, and did, identify an MDNS as an appealable decision elsewhere in Chapter
18.40 JCC, this omission in JCC 18.40.810(3) must be considered deliberate and respected.
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RESPONDENTS’ REPLY ON MOTION TO
DISMISS
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Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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Factually, even if Title 18 authorized parties of record to administratively
appeal an MDNS, which it does not, the record demonstrates that Appellants do not
qualify as parties of record.3 Parties of record are limited to:
[P]ersons or entities who wish to receive a copy of the hearing
examiner’s decision and notice of upcoming hearings. “Parties of
record” includes the applicant, appellant, petitioner, respondent, their
agents and representatives, the county, and persons or entities who:
indicate on a sign-up sheet, at a public hearing, that they wish to
become a party of record; or for public hearings specifically advised the
examiner’s office by individual written letter or electronic mail of their
desire to become a party of record. Persons who only signed petitions or
mechanically produced form letters may be excluded as parties of
record.
JCC 18.10.160(P) (“Parties of record”).
This definition of “parties of record” is very deliberate and specific, striking a
balance between competing interests of allowing members of the public to be
considered parties for a particular project and preventing undue administrative
burdens on the County associated with granting people status as a party of record.
The bare minimum requirement to be considered a party of record is to notify the
County of an interest in a specific project. Even then, not everyone is considered a
party of record; people who sign petitions or mechanically produced letters may be
excluded as parties of record. Id. Rather, only those who request to receive a copy of
the hearing examiner’s decision (e.g., on a sign-up sheet at a public hearing) and
notice of upcoming hearings (by specifically advising the examiner’s office by
individual letter or email) are parties of record. Id.
3 As discussed in Respondents’ Motion, state law (WAC 197-11-545(2)) provides that a member of the
public’s failure to provide timely comments is construed as lack of objection and precludes them from
appealing a SEPA decision. Motion at 4-5. Thus, to prevent a conflict between state and local law
(whereby local law would allow something—appeal of a SEPA decision by someone who failed to
provide comments—that state law forbids), parties of record would also need to provide comments on
the environmental impacts of a proposal in order to file a SEPA appeal. Parkland Light v. Bd. of
Health, 151 Wn.2d 428, 433, 90 P.3d 37 (2004).
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RESPONDENTS’ REPLY ON MOTION TO
DISMISS
Page 5 of 9
Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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The undisputed facts demonstrate that Appellants did not take the required
steps to gain status as a party of record for the Proposal. Appellants admit that Ms.
Wold submitted no requests that would grant her party of record status, Response
at 6, and they identify only one request that purportedly grants Ms. Showalter such
status – an email message from Ms. Showalter to Donna Frostholm within the
County’s Department of Community Development (“DCD”) in which Ms. Showalter
asks “to be notified of any permit processes associated with aquaculture on []
parcels” 965100009, 965100010, and 965100011 , Response at 5, 13.4
This email fails to satisfy the requirements to obtain party of record status
for a particular project. It does not request to receive a copy of the examiner’s
decision on the Proposal or to be notified of public hearings on the Proposal. Id. In
fact, it fails the bare minimum requirement of asking to be notified of anything
specific to the Proposal (or, for that matter, any other particular project). Id. This is
despite the fact that Ms. Showalter knew of Rock Island’s desire to operate the
Proposal, as evidenced by the full text of Ms. Showalter’s November 30 email and
other materials, including the Proposal’s pre-application from. Id. at 10-13.
Ms. Showalter easily could have, but failed to, become a party of record for
the Proposal by submitting a request to be to receive a copy of the examiner’s
decision for the Proposal or to be notified of upcoming hearings for the Proposal (the
latter request, however, would have needed to have been made to the examiner’s
office, not DCD). JCC 18.10.160(P). Instead, she submitted a very general request to
be notified of “any permit processes associated with aquaculture on these parcels.”
Response at 13. This request covers multiple parcels, is not specific to any type of
4 Page 13 corresponds to the PDF page number when viewing Appellants’ Response in electronic
form. This is represented as an email from Ms. Showalter to Ms. Frostholm dated November 30,
2023. There is no exhibit or attachment number asso ciated with this email, nor is it attached to a
declaration stating what it is and that it is a true and accurate copy of the original. Notwit hstanding
these shortcomings, Respondents assume that it is accurate, albeit with some highlighting added,
presumably by Ms. Showalter.
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RESPONDENTS’ REPLY ON MOTION TO
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Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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permit, is not limited to any type of aquaculture project, and has no temporal limit.
Id. If this request suffices to make her a party of record for the Proposal, it would
equally grant her this status for any and all future aquaculture projects at any of
these parcels at any time in the future, including 10, 20, or 30-plus years down the
line. DCD would be required to spend extensive resources keeping track of
managing Ms. Showalter’s perpetual request, not to mention doing the same thing
for additional, subsequent requests submitted to the County once this dangerous
precedent is set for acquiring status as a party of record. This is an absurd and
strained result, is inconsistent with the plain language of JCC 18.10.160(P), and
undermines the balance the County struck in carefully defining “parties of record.”
Fraternal Order of Eagles, Tenino Aerie No. 564 v. Grand Aerie of Fraternal Order
of Eagles, 148 Wn.2d 224, 239, 59 P.3d 655 (2002). It must therefore be rejected.
Because no section of Title 18 grants a “party of record” authority to
administratively appeal the Proposal’s MDNS, and Appellants do not even qualify
as parties of record, their MDNS appeal is unauthorized and must be dismissed.
C.Appellants’ Notice Deficiency Arguments Are Meritless.
Beyond their mistaken arguments that they are entitled to administratively
appeal the MDNS pursuant to JCC 18.40.330, JCC 18.40.810(3) and (6), and JCC
18.10.160(P), Appellants claim public notices for the Proposal were inadequate.
Response at 2-4, 7-8. Given this claim is not specifically tied to compliance with the
foregoing provisions that purportedly authorize Appellants to appeal the MDNS,
this claim is irrelevant and may be disregarded. It also substantively incorrect.
The County’s notice of application (“NOA”) requirements are set forth at
JCC 18.40.210 and consist of (1) publishing the NOA in the official County
newspaper, (2) posting the NOA “on the property,” and (3) mailing the NOA to
property owners within 300 feet of the Property. DCD published, posted, and
mailed the NOA in accordance with JCC 18.40.210. First Frostholm Decl., Ex. C
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RESPONDENTS’ REPLY ON MOTION TO
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Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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(affidavit of publication); First Carson Decl., Ex. A (property posting); First
Frostholm Decl., Ex. B (affidavit of posting); Third Frostholm Decl. ⁋ 5-6; First
Frostholm Decl., Ex. A (certificate of mailing).
Appellants critique the Property posting, Response at 2-4, but fail to prove
noncompliance with the posting requirements, specified at JCC 18.40.210(2)(a)-(e).
The posting (a) consisted of a notice board on the site road frontage, (c) the notice
board was constructed and installed in accordance with normal county practice, (d)
the notice board was in good condition, legible and in place for at least 15 calendar
days, and (e) the affidavit of posting was timely provided as reflected. First
Frostholm Decl., Ex. B; First Carson Decl. Ex. A; Third Frostholm Decl. ⁋ 5-6.
While subsection (b) authorizes DCD to have additional notice boards posted where
a site does not abut a public road, it does not require this, and DCD did not do so in
this case. JCC 18.40.210(2)(b). Contrary to Appellants’ characterization, the road is
not closed to public traffic, and there are no “No Trespassing” or other signs
preventing or directing the public from driving on the road. Response at 2-4.
Appellants’ claim that “no one saw the poster,” Response at 2, is unsupported
speculation. Instead, the sign “was visible from Killapie Beach Road,” Third
Frostholm Decl. ⁋ 5, and there is a good reason for posting the sign at the Property
rather than on Shine Road as Appellants request, Response at 4; doing so ensures
the public is clear where the Proposal would be located. Third Frostholm Decl. ⁋ 6.
Beyond the notice requirements in JCC 18.40.210, JCC 18.40.780(1)(a)
provides one additional, limited requirement, stating the NOA and SEPA checklist
must be sent to “anyone requesting a copy of the environmental checklist for the
specific proposal.” Appellants could have easily submitted such a request, but as
forth above, they submitted no requests specific to the Proposal, including requests
for the environmental checklist. Supra § II.B; Third Frostholm Decl. ⁋ 7.
Appellants also argue reasonable notice was not provided pursuant to WAC
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RESPONDENTS’ REPLY ON MOTION TO
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Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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197-11-545(2), contending it was unreasonable not to send notice to Ms. Showalter
given her general information request. Response at 7 -8. But WAC 197-11-545(2)
and WAC 197-11-510 (which is cross-referenced in -545) simply list notifying
interested individual as an example of a reasonable notification method. Such
notice is not required, and regardless Appellants failed to a request information
specific to the Proposal. Supra § II.B. Further, WAC 197-11-510(2) requires each
agency to specify its method of public notice in its SEPA procedures. The County
did so at JCC 18.40.210, and DCD complied with them.
Finally, Appellants complain that the NOA has missing or incorrect
information. Response at 8. As set forth in Respondents’ response to Appellants’
motion to dismiss, Appellants failed to demonstrate that any error was committed;
any errors that were made were inconsequential and harmless; and many alleged
errors do not relate to SEPA compliance. Respondents’ Response to Appellants’
Motion to Dismiss at 4-7. Importantly, Appellants do not contend (let alone
substantiate) that they were in fact confused or misled by the alleged errors in the
NOA. Response at 2-4, 7-8. Rather, their concerns are premised on potential or
hypothetical confusion and broader grievances with the County’s notification
process. The County’s processes, however, comply with state law and even provide
opportunities for Appellants and other members of the public to obtain specialized
notice of the Proposal. JCC 18.40.210; JCC 18.40.780(2)(a); WAC 197 -11-510.
Appellants failed to avail themselves of these opportunities, however, or
demonstrate that the County did not comply with its established procedures.
D.Appellants’ Request to Dismiss on the Basis of Appellants’
Motion is Baseless.
Last, Appellants contend that the MDNS and SEPA appeal are “moot” on
the basis that the NOA is flawed. Response at 1-4. Appellants’ argument appears
to be that the Hearing Examiner can reverse and remand the MDNS due to
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RESPONDENTS’ REPLY ON MOTION TO
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Page 9 of 9
Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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Appellants’ claims that the NOA had errors, even if Appellants do not have
authority to administratively appeal the MDNS. Id. at 1-2.
Appellants’ argument is baseless. As set forth in Respondents’ Motion to
Dismiss, dismissal of Appellants’ MDNS appeal is the only appropriate remedy
given they are not authorized to administratively appeal the MDNS. Respondents’
Motion to Dismiss at 5; Kaiser Aluminum & Chem. Corp. v. Dep’t of Labor &
Indus., 121 Wn.2d 776, 787, 854 P.2d 611 (1993); ZDI Gaming, Inc. v. Wash. State
Gambling Comm’n, 173 Wn.2d 608, 631, 268 P.3d 929 (2012).5 Thus, Appellants’
lack of authority to bring the MDNS appeal cannot be ignored or disregarded, and
their MDNS appeal must be dismissed.
III.Conclusion
For the reasons set forth above and in Respondents’ Motion to Dismiss, the
Hearing Examiner should dismiss Appellants’ appeal and affirm the MDNS.
RESPECTFULLY SUMBITTED this 29th day of July, 2025.
JAMES KENNEDY
Jefferson County Prosecuting Attorney
______________________________
Ariel Speser, WSBA #44125
Civil Deputy Prosecuting Attorney
Jefferson County
PLAUCHÉ & CARR LLP
By: /s/Jesse DeNike
Jesse DeNike, WSBA #39526
1218 Third Avenue, Suite 2000
Seattle, WA 98101
Phone: 206-588-4188
Email: jesse@plauchecarr.com
Attorney for Rock Island
Shellfish
5 For reasons set forth in Respondents’ Response to Appellants’ Motion to Dismiss and above,
Appellants’ contentions in their Motion to Dismiss fail on substantive and other grounds, and hence
their Motion to Dismiss should be denied even if they were authorized to bring an administrative
appeal of the MDNS, which they are not.
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