Swinomish Indian Tribal Community v. Skagit County
Swinomish Indian Tribal Community v. Skagit County
Opinion of the Court
¶1 The Swinomish Indian Tribal Community (Tribe) sought a declaratory judgment that provisions of the Growth Management Act (GMA), chapter 36.70ARCW, and a memorandum of agreement (MOA) between the Tribe, Skagit County (County), and various other parties preclude the County from permitting water wells that adversely affect minimum instream water flows in the rivers and streams of Skagit basin, and an injunction requiring the County to abide by its statutory and contractual obligations. The superior court dismissed on the grounds that the Tribe lacks standing to seek interpretation and enforcement of the GMA in this manner, and that provisions of the MOA are contrary to public policy and thus unenforceable.
I
¶2 The Skagit River is the third largest river system in the United States. More than 3,000 rivers and streams flow into the Skagit River system, accounting for one-quarter of the fresh water flowing into Puget Sound. It is the only river in the lower 48 states that is home to all five species of Pacific salmon. The Tribe has treaty rights to take fish from the Skagit River Basin.
¶4 The MOA was intended in part to ensure the establishment of instream water flows to protect fisheries resources, to develop a coordinated water delivery system, and to reduce the use of exempt water wells in areas of the county experiencing inadequate instream flows as a result of groundwater withdrawal. An “instream flow” is defined in the MOA as the quantity of flow necessary to maintain sufficient water in a stream to support in harvestable numbers the natural production of food and game fish.
¶5 In a further provision of the MOA, the County agreed to abide by section 63 of the GMA, such that building permits would be issued only if the parcel is served by a public water system or if there is an adequate supply of groundwater that can be withdrawn without adversely affecting Skagit River Basin instream flows.
¶6 The GMA was adopted to combat uncoordinated and unplanned growth.
¶7 Section 63 of the GMA (codified at RCW 19.27.097) mandates that each applicant for a building permit requiring potable water provide evidence of an adequate water supply.
¶9 The Tribe asserts that despite the commitments enshrined in the MOA, the adoption of the Skagit Basin rule, and the requirements of section 63 of the GMA, the County has continued to issue permits for wells that are in hydraulic continuity with the Skagit River Basin, resulting in reductions in water flow below the minimum required under chapter 173-503 WAC and section 63 of the GMA.
¶10 The Tribe filed an action for declaratory judgment and injunctive relief against the County, barring the County from issuing further building permits that rely on wells in the Skagit Basin in violation of the GMA and the MOA. The Tribe asserted a breach of contract claim against the County for violating the MOA, and a Uniform Declaratory Judgments Act, chapter 7.24 RCW, claim against the County for violating RCW 19.27.097 by issuing permits for wells when minimum flow requirements were not met.
¶11 The County moved for dismissal. The superior court ruled that the Tribe lacked standing to seek direct enforcement of RCW 19.27.097 (section 63 of the GMA) but held that it could seek enforcement pursuant to provisions of the MOA.
¶12 Subsequently, the County filed another motion to dismiss and for judgment on the pleadings, asserting that the MOA was contrary to public policy. The superior court dismissed the Tribe’s contract claim without discussion.
II
¶14 Dismissal under CR 12 should be granted sparingly and with care.
¶15 The County asserts that the MOA is contrary to public policy and therefore void and unenforceable. It argues that the County cannot grant away its legislative authority or limit its ability to protect the health, safety, and welfare of its population. It further argues that it is prohibited from contractually limiting its governmental capacity when so doing could prevent it from enacting legislation that may become necessary to protect the welfare of its citizens.
¶16 Counties are authorized by statute to make such contracts as may be necessary to their corporate or administrative powers.
¶18 In City of Redmond v. Kezner,
¶19 Far from being arbitrary and unreasonable, the MOA in the present case has a substantial relation to public
¶20 In King County v. Central Puget Sound Growth Management Hearings Board,
¶21 The MOA directly supports the statutory goals of the GMA of ensuring harmonious land use planning to main
¶22 The Interlocal Cooperation Act, chapter 39.34 RCW, allows public agencies to “make the most efficient use of their powers by enabling them to cooperate with other localities on a basis of mutual advantage.”
¶23 Similarly, the Water Resources Act of 1971, chapter 90.54 RCW, encourages coordination between multiple parties to ensure the proper stewardship of the state’s water 97 resources.
Through a comprehensive planning process that includes the state, Indian tribes, local governments, and interested parties, it is possible to make better use of available water supplies and achieve better management of water resources. Through comprehensive planning, conflicts among water users and interests can be reduced or resolved. It is in the best interests of the state that comprehensive water resource planning be given a high priority so that water resources and associated values can be utilized and enjoyed today and protected for tomorrow.[28]
¶24 The MOA entered into by the Tribe and the County comports squarely with the public policy aims of the GMA,
¶25 We do not reverse the first partial order of dismissal of the Tribe’s request for a declaratory judgment regarding enforcement of RCW 19.27.097. We agree that the County is legally required to follow the dictates of that statute. But the Tribe has other avenues of potential relief available to it regarding this issue, and it is clear, given the recent amendments to the instream flow rule and the asserted forthcoming revision of pertinent county ordinances, that the relative positions of the affected parties are in a state of flux. The Tribe may challenge individual permits via the Land Use Petition Act, chapter 36.70C RCW, appeals, and may seek relief from the Growth Management Hearing’s Board regarding new ordinances adopted by the County to comply with the MOA and GMA, or seek such relief regarding a failure to adopt appropriate ordinances.
¶26 Given our ruling that the Tribe may seek to enforce the MOA provisions, we do not address the County’s appeal, as the issue it raises is likely to be reconsidered in further proceedings on remand.
¶27 Affirmed in part, reversed in part, and remanded.
Agid and Becker, JJ., concur.
See United States v. Washington, 459 F. Supp. 1020, 1049 (W.D. Wash. 1978).
RCW 36.70A.010.
RCW 36.70A.010.
RCW 36.70A.070.
Ch. 173-503 WAC.
WAC 173-503-073(1).
Haberman v. Wash. Pub. Power Supply Sys., 109 Wn.2d 107, 120, 744 P.2d 1032, 750 P.2d 254 (1987).
RCW 36.01.010.
19 Wn.2d 109, 141 P.2d 651 (1943).
Smith, 19 Wn.2d at 112-13.
124 Wn.2d 26, 873 P.2d 498 (1994).
Weyerhaeuser, 124 Wn.2d at 40.
Weyerhaeuser, 124 Wn.2d at 40.
10 Wn. App. 332, 517 P.2d 625 (1973).
Kezner, 10 Wn. App. at 340.
70 Wn.2d 207, 422 P.2d 790 (1967).
Myhre, 70 Wn.2d at 216.
RCW 36.70A.010 (emphasis added).
RCW 36.70A.210.
RCW 36.70A.210.
RCW 36.70A.210(2).
138 Wn.2d 161, 979 P.2d 374 (1999).
King County, 138 Wn.2d at 175-76.
RCW 39.34.010.
RCW 39.34.080.
RCW 39.34.020.
RCW 90.54.010.
28 RCW 90.54.010(l)(b) (emphasis added).
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