Makah Indian Tribe v. Commissioner of Public Land Hilary Franz

MAKAH INDIAN TRIBE, Appellant v. COMMISSIONER OF PUBLIC LAND HILARY FRANZ (in her official capacity), the WASHINGTON STATE DEPTMENT OF NATURAL RESOURCES, and the WASHFNGTON STATE BOARD OF NATURAL RESOURCES, Respondents.

No. 54945-0-II

Court of Appeals of Washington, Division 2

May 25, 2021

UNPUBLISHED OPINION

Sutton, J.

The Makah Indian Tribe appeals the superior court's order denying a constitutional writ to block a land exchange proposed by the Department of Natural Resources (DNR) and approved by the Board of Natural Resources.^[1] The land exchange, called the "Peninsula Exchange," would exchange state forestlands with forestlands owned by a private timber company, Merrill & Ring. The Peninsula Exchange parcels border tribal lands of a number of Indian tribes, including the Makah, the Hoh, the Quileute, and the Quinault. The Makah argue that DNR violated (1) the State Environmental Policy Act (SEPA)^[2] by failing to conduct a SEPA environmental review prior to approval of the proposal and (2) the public lands management statute, Title 79 RCW, by insufficiently addressing the Makah's concerns.

The Hoh, Quileute, and Quinault Tribes (the Amici Tribes) filed a joint amicus curiae brief requesting dismissal under CR 19 arguing that they are necessary and indispensable parties who cannot be joined due to their sovereign immunity.^[3] The Amici Tribes claim that the Peninsula Exchange parcels are part of their respective treaty hunting areas. The Makah argue that the Amici Tribes are not necessary and indispensable parties under CR 19 because this appeal can be decided without a determination of treaty rights of various tribes as the Makah's claims are procedural challenges to DNR's Peninsula Exchange.

Because we resolve this appeal without implicating the treaty rights of the various interested tribes, we hold that the Amici Tribes are not necessary or indispensable parties. Accordingly, dismissal of this appeal under CR 19 is not appropriate.

DNR's interpretation of the SEPA categorical exemption is entitled to substantial weight and its determination that a land exchange is categorically exempt from SEPA review will be overturned only if it is clearly erroneous. We hold that DNR properly interpreted and applied the SEPA categorical exemption for state land exchanges to determine that the Peninsula Exchange was categorially exempt from SEPA review and that DNR's finding that the Peninsula Exchange was exempt from SEPA was not clearly erroneous. Additionally, DNR complied with the public lands management statute by adequately consulting with the Makah prior to the Board's approval of the Peninsula Exchange. Because the superior court's decision was not manifestly unreasonable, or exercised on untenable grounds or for untenable reasons, we hold that the superior court did not abuse its discretion by denying the Makah a constitutional writ. We affirm.^[4]

FACTS

I. Background

A. The Parties

The Makah are a sovereign federally recognized Indian tribe. CP at 7. "Members of the Makah Tribe and their ancestors have resided, fished, hunted[, ] and gathered on the northwest Olympic Peninsula since time immemorial, and continue to rely on the availability and use of natural resources to sustain their way of life." Opening Br. of Makah Indian Tribe (Opening Br. Appellant at 11-12. "Fishing, hunting, and gathering practices are deeply ingrained in the [Makah's] subsistence and cultural identity." Opening Br. Appellant at 12.

DNR manages the state-owned forestlands for the benefit of two public trusts: the common school trust for the benefit of K-12 public schools, and the state forestland trust for the benefit of counties. The commissioner of public lands is the administrator of DNR. RCW 43.30.105. Relevant here, DNR sells timber and other forest products from forest lands for the benefit of the public trusts. RCW 79.10.320. The Board sets policy and makes land management decisions for DNR, including approving or denying proposals for land exchanges. RCW 43.30.205; RCW 43.30.215.

B. The Peninsula Exchange Proposal

"The Peninsula Exchange involves eight parcels (approximately 1 001 acres) of state trust lands, appraised at $5, 490 000." Clerk's Papers (CP) at 256. DNR's proposal would exchange these eight parcels for 19 privately owned parcels (approximately 1, 395 acres) of forestlands, also appraised at $5, 490, 000, and owned by three Merrill &amp Ring subsidiaries. The parcels are located in the counties of Clallam, Jefferson, and Grays Harbor.

The state forestlands in the proposal are "primarily managed to produce income for the trust beneficiaries through logging." CP at 230. DNR also manages them for multiple public uses, including timber harvesting, removal of other valuable materials, hunting, and other public recreational opportunities. The Peninsula Exchange would consolidate state lands to improve road access to state lands, reduce DNR's management costs, benefit fish and wildlife habitats in this area, and increase the amount of gross acres and net operable forest acres of state lands.

In 2018, DNR and Merrill & Ring began actively negotiating the Peninsula Exchange. The lead DNR staff for this proj ect, Robert Winslow, considered whether DNR was required to perform a threshold review under SEPA for the Peninsula Exchange. He concluded that a SEPA environmental review was not required for the Peninsula Exchange under the regulatory categorical exemption for state land exchanges, WAC 197-1 l-800(5)(b). However, SEPA review would be required for any subsequent timber harvest on the land. WAC 222-16-050.

C. Outreach and Communication With the Tribes

DNR is required to work with impacted tribes and other stakeholders whenever it proposes a land transaction. RCW 79.17.010(5). Joenne McGerr, DNR's Director of Tribal Relations, organized government-to-government meetings between tribal members and DNR management and staff as required by the public lands management statue. McGerr's role is to conduct outreach, negotiate, and ensure appropriate tribal and agency representation in these meetings. She also advises and reports to the commissioner of public lands on matters of interest or concern to tribal members and governments about DNR operations, plans, or policies. Because dozens of parcels were impacted by the proposal, DNR conducted extensive outreach and communicated with various stakeholders on the peninsula, all of whom had an interest in the proposal.

One or more parcels in the Peninsula Exchange were either in tribal ceded areas or overlapped the areas that certain tribes indicated were areas of interest. As a result, McGerr contacted the following tribes: Makah, Hoh, Quileute, Quinault, Jamestown S'Klallam, Port Gamble S'Klallam, Lower Elwha, and Skokomish. On May 9, 2018, she invited these tribes to follow-up with her if they desired formal government-to-government meetings and/or consultation with DNR.

On May 16, DNR formally notified the Makah of the proposal:

[DNR] is considering a land exchange. The properties included are mostly within Clallam County, with a few located in Jefferson and Grays Harbor Counties. Please see the attached map for an overview of the parcel layout. If you have questions concerning any parcels in particular, I would be happy to provide more detailed map information.

Prior to upcoming public meetings or public hearings, we are notifying you and offering an opportunity for questions or discussion. We would like feedback from you by May 31st, though written comments from the general public will be accepted through two weeks from the public hearing, which has not been scheduled at this time.

CP at 247.

On June 8, 2018 the chairman of the Makah Tribal Council sent a letter to DNR requesting a formal government-to-government meeting related to the Peninsula Exchange "to ensure that [DNR] is aware of and considers the [Makah's] interests and concerns with the proposed land exchange before a final decision is made." CP at 250. This letter expressed concerns that the Peninsula Exchange could affect their treaty hunting and gathering rights. Specifically, the Makah expressed concerns over a potential loss of access; diminished capacity to hunt, fish, gather, and engage in cultural activities, such as the traditional gathering of plants and ceremonial uses of this land; diminished ability to conduct scientific study and monitoring; and potential impacts to the Lake Ozette Sockeye salmon. McGerr responded and agreed to meet with the Makah's chief of staff on July 23. DNR subsequently considered the cultural and spiritual significance of the exchange parcels near Lake Ozette.

On July 23, the Makah met with the commissioner of public lands and other DNR staff and reiterated their concerns regarding the loss of access to public lands subject to the land exchange proposal. The Makah inquired as to whether they could purchase some of these lands to obtain exclusive, permanent access, instead of having DNR transfer the forestlands into private ownership. Because the Makah raised concerns about accessing Merrill & Ring lands, DNR's Olympic Region Manager Mona Griswold facilitated a follow-up meeting between the Makah and Merrill & Ring on October 5, 2018. At this meeting, Merrill & Ring told the Makah that access to the tracts of land near Lake Ozette would not change from the way DNR provided public access.

On April 5, 2019, DNR advised the Makah in writing that it did not have the authority to grant their request for exclusive permanent access to state-owned trust lands because these lands were located within the ceded area of several other tribes who were parties to the Treaty of Point No Point. DNR concluded that granting the Makah's request could violate other tribes' treaty...