FILED 

JUNE 16, 2016 

In the Office of the Clerk of Court 

WA State Court of Appeals, Division III 

IN THE COURT OF APPEALS OF THE STATE OF WASHING TON 

DIVISION THREE 

CONSERVATION NORTHWEST; and 

METH OW VALLEY CITIZENS 

COUNCIL, 

Appellants, 

v. 

OKANOGAN COUNTY, 

Respondent. 

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No. 33194-6-111 

UNPUBLISHED OPINION 

FEARING, C.J. -This appeal asks the question, among others, of whether 

Okanogan County sufficiently completed an environmental checklist, under the State 

Environmental Protection Act (SEPA), chapter 43.21C RCW, when adopting an 

ordinance permitting all-terrain vehicles (A TV) traffic on county roads in segments with 

a speed limit of 35 m.p.h. or less. Our task is to apply the law rather than to choose a side 

between ATV riding enthusiasts and environmental groups. In a painfully long opinion 

necessitated by extended facts, a lengthy procedural background, and numerous legal 
No. 33194-6-111 

Conservation Nw. v. Okanogan County 

issues, we hold that, under SEP A rules, Okanogan County failed to satisfactorily prepare 

the environmental checklist. We respect the recreational value of A TVs and note that 

Okanogan County may still enact an ATV ordinance, but must complete a thorough 

environmental checklist. 

FACTS 

We first introduce the parties. Defendant Okanogan County, located in north 

central Washington, is the largest Washington county and the fifty-fourth largest United 

States county by area. Okanogan County borders British Columbia to the north, the 

Columbia River to the south, Ferry County to the east, and the Cascade Mountains to the 

west. 

Only thirty percent of the land within Okanogan County lies in private ownership 

due to state and federal land proprietorship. A portion of the Colville Indian Reservation 

sits in the southeast corner of the county. 

The geographic features of Okanogan County include the Cascade Mountains, the 

Columbia River, the Okanogan River, and the Methow Valley. The Methow Valley 

serves as a destination for outdoor enthusiasts and offers hundreds of square miles of 

cross-country ski trails, snowmobile parks, mountain biking trails, and opportunities for 

snowshoeing, fishing, camping, and hiking. 

Plaintiff Conservation Northwest (CNW) is a nonprofit conservation organization 

with offices and members in Okanogan County. PlaintiffMethow Valley Citizens 

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Council (MVCC) is a private nonprofit membership organization, established in 1977 to 

preserve the wildlife, waters, and farmland of the Meth ow Valley. Both CNW and 

MVCC members visit lands within Okanogan County for aesthetic enjoyment of nature. 

The two environmental organizations rely on the same data and forward the same legal 

arguments in this appeal. 

Melanie Rowland signed a declaration on behalf ofMethow Valley Citizens 

Council. Rowland, a MVCC board member and MVCC attorney, resides in Twisp. She 

explores state wildlife and forest lands and federal lands in Okanogan County for hiking, 

photography, bird and wildlife watching, and the study of native plants and trees. 

George Wooten signed a declaration on behalf of Conservation Northwest and 

Meth ow Valley Citizens Council. Wooten, also a resident of Twisp, is a staff member of 

CNW and a member ofMVCC. Wooten is a botanist who contracts with agencies and 

individuals for fuel mapping, plant and animal surveys, and wetland delineation. He also 

teaches biology classes, including botany, at Wenatchee Valley College North in 

Okanogan. Wooten visits conservation trust lands, state wildlife lands, state forest lands, 

and federal lands and roads in Okanogan County for the activities of hiking, photography, 

and observing birds, wildflowers, and native trees and plants. 

Our statement of facts now moves to a recitation of recent law. On July 3, 2013, 

Washington Governor Jay Inslee signed into law Engrossed Substitute House Bill 

(ESHB) 1632, an act regulating the use of off-road vehicles (ORVs) in Washington. 

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Conservation Nw. v. Okanogan County 

LAWS OF 2013, 2d Spec. Sess., ch. 23, at 2865. In enacting ESHB 1632, the legislature 

found: 

that off-road vehicle users have been overwhelmed with varied 

confusing rules, regulations, and ordinances from federal, state, county, and 

city land managers throughout the state to the extent standardization 

statewide is needed to maintain public safety and good order. 

LAWS OF 2013, 2d Spec. Sess., ch. 23, § 1(1). Through ESHB 1632, the Washington 

legislature sought to: 

(a) Increase opportunities for safe, legal, and environmentally 

acceptable motorized recreation; (b) decrease the amount of unlawful or 

environmentally harmful motorized recreation; ( c) generate funds for use in 

maintenance, signage, education, and enforcement of motorized recreation 

opportunities; ( d) advance a culture of self-policing and abuse intolerance 

among motorized recreationists; ( e) cause no change in the policies of any 

governmental agency with respect to public land; (t) not change any current 

ORV usage routes as·authorized in chapter 213, Laws of 2005; 

(g) stimulate rural economies by opening certain roadways to use by 

motorized recreationists which will in tum stimulate economic activity 

through expenditures on gasoline, lodging, food and drink, and other 

entertainment purposes; and (h) require all wheeled all-terrain vehicles to 

obtain a metal tag. 

LAWS OF 2013, 2d Spec. Sess., ch. 23, § 1(2). 

Section 6 of ESHB 1632 opened state highways, with a speed limit of thirty-five 

miles per hour or less, to the operation of wheeled all-terrain vehicles (W ATVs). LA ws 

OF 2013, 2d Spec. Sess., ch. 23, § 6; codified at RCW 46.09.455(1). Section 6 of the 

enactment also granted counties with a population of fifteen thousand or more the 

authority to open county public roadways for WA TV use. Codified at RCW 

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46.09.455(l)(c)(i). RCW 46.09.455 now reads, in pertinent part: 

(1) A person may operate a wheeled all-terrain vehicle upon any 

public roadway of this state, not including nonhighway roads and trails, 

having a speed limit of thirty-five miles per hour or less subject to the 

following restrictions and requirements: 

( c )(i) A person may not operate a wheeled all-terrain vehicle on a 

public roadway within the boundaries of a county, not including 

nonhighway roads and trails, with a population of fifteen thousand or more 

unless the county by ordinance has approved the operation of wheeled allterrain vehicles on county roadways, not including nonhighway roads and 

trails. 

(iii) Any public roadways, not including nonhighway roads and 

trails, authorized by a legislative body of a county under ( c )(i) of this 

subsection or designated as unsuitable under (c)(ii) of this subsection must 

be listed publicly and made accessible from the main page of the county 

web site. 

( e) Any person who violates this subsection commits a traffic 

infraction. 

(2) Local authorities may not establish requirements for the 

registration of wheeled all-terrain vehicles. 

ESHB 1632 took effect on July 28, 2013. FINAL B. REP. ON ENGROSSED SUBSTITUTE 

H.B. 1632, at 6, 63d Leg., 2d Spec. Sess. (Wash. 2013). 

ESHB 1632 employed the term "off-road vehicle" or "ORV" nearly 

synonymously with "all-terrain vehicle" or "ATV," but ATVs are a subcategory of 

ORVs. Under RCW 46.04.365, 

"Off-road vehicle" or "ORV" means a nonstreet registered vehicle 

when used for recreational purposes _on nonhighway roads, trails, or a 

variety of other natural terrain. "Off-road vehicle" or "ORV" includes, but 

is not limited to, all-terrain vehicles, motorcycles, four-wheel drive 

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vehicles, and dune buggies. 

No Washington statute expressly defines "all-terrain vehicle." Nevertheless, ESHB 1632 

introduced and defined the term "wheeled all-terrain vehicle" or "W ATV." RCW 

46. 09 .3 10( 19) now declares: 

"Wheeled all-terrain vehicle" means (a) any motorized nonhighway 

vehicle with handlebars that is fifty inches or less in width, has a seat height 

of at least twenty inches, weighs less than one thousand five hundred 

pounds, and has four tires having a diameter of thirty inches or less, or (b) a 

utility-type vehicle designed for and capable of travel over designated roads 

that travels on four or more low-pressure tires of twenty psi or less, has a 

maximum width less than seventy-four inches, has a maximum weight less 

than two thousand pounds, has a wheelbase of one hundred ten inches or 

less, and satisfies at least one of the following: (i) Has a minimum width of 

fifty inches; (ii) has a minimum weight of at least nine hundred pounds; or 

(iii) has a wheelbase of over sixty-one inches. 

On July 29, 2013, the day after implementation ofESHB 1632, the Okanogan 

County Board of County Commissioners adopted Ordinance 2013-10, which decreed that 

"all [county] public roadways and rights of way, or sections thereof, having a speed limit 

of 35 mph or less are approved and opened for the operation of wheeled all-terrain 

vehicles." CP at 195. At the time, Okanogan County managed 1,266 miles of roads 

within its borders, 335.73 miles of which ATVs could already use. Before enacting 

Ordinance 2013-10, the county did not conduct an environmental review under the 

SEPA. 

On August 14, 2013, Conservation Northwest and the Methow Valley Citizens 

Coundl sued Okanogan County for declaratory and injunctive relief. The suit challenged 

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Conservation Nw. v. Okanogan County 

the validity of Ordinance 2013-10 in part because of the failure of Okanogan County to 

perform an environmental review. After CNW and MVCC moved for summary 

judgment, the county, on March 4, 2014, repealed Ordinance 2013-10, by adopting 

Ordinance 2014-3. The repealing ordinance mistakenly refers to the 2013 ordinance as 

Ordinance 2013-9, not 2013-10. 

In April 2014, Okanogan County prepared a new ordinance, Ordinance 2014-7, 

which proposed to open 597 .23 miles of county roads, including 165 .03 miles of paved 

roads, for ATV use. On April 9, 2014, the county's SEPA responsible official, Director 

of the Office of Planning and Development Perry Huston, prepared a SEP A 

environmental checklist for the proposed ordinance. Environmental checklists assist 

government agencies in determining, before adoption of a proposal, whether the proposal 

will accrue "probable significant adverse impacts on the quality of the environment," thus 

necessitating an environmental impact statement (EIS) under SEPA. WAC 197-11-960; 

see also RCW 43.21C.030(2)(c). The checklist completed by Huston instructed him, in 

part, to: 

Answer the questions briefly, with the most precise information 

known, or give the best description you can. 

You must answer each question accurately and carefully, to the best 

of your knowledge. 

CP at 253. 

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Conservation Nw. v. Okanogan County 

Because the sufficiency of the environmental checklist looms as the principal issue 

in this appeal, we quote lengthy portions of the checklist completed by Perry Huston in 

Appendix A. When asked to address the environmental impact of the A TV ordinance on 

various features of the environment, Huston sometimes answered: "The proposal 

involves existing roads located throughout Okanogan County." CP at 258. Huston then 

completed answers by stating no environmental impact would occur because A TVs 

would motor on preexisting roads. When a question asked Huston to identify 

environmental information prepared that relate to the ATV ordinance. Huston responded: 

There has been no other environmental information prepared 

relevant to this proposal. Any additional environmental information will be 

prepared if necessary to respond to issues identified during the comment 

period. 

CP at 254. 

In the environmental checklist, Perry Huston agreed that Okanogan County 

proposed no measures to reduce the environmental impacts of the ordinance. 

Huston wrote that the ordinance would cause little, if any, increase in the use of 

Okanogan County roadways. Huston failed to list any of the principal fauna and 

fora in the area and omitted any reference to endangered or threatened species, 

other than to mention that mule deer used the region as a migratory route. Huston 

attached to the environmental checklist a map of Okanogan County roads. He also 

attached twelve pages of spreadsheets listing the name, speed limit, length, and 

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surface type of some of the roads in the county. Presumably the spreadsheets 

listed those roads and the mileposts on those roads where the proposed ordinance 

would permit operation of A TVs. 

On April 9, 2014, the same day as the completion of the environmental checklist, 

the Okanogan County Office of Planning & Development, through Department Director 

Perry Huston, issued a SEPA threshold determination of nonsignificance (DNS). The 

DNS concluded that proposed Okanogan County Ordinance 2014-7, the Opening ATV 

Routes ordinance, would not have a "probable, significant, and adverse environmental 

impact." CP at 282. Thus, Okanogan County did not intend to prepare an environmental 

impact statement. 

On April 15, 2014, the Okanogan County Office of Planning & Development 

notified local government and tribal agencies of its threshold SEP A determination of 

nonsignificance and opened a comment period to extend through May 2, 2014. The 

Office of Planning & Development received numerous responses from government 

agencies and private parties. 

The Confederated Tribes of the Colville Reservation commented that some of the 

roads that Okanogan County intended to open to ATVs jogged through tribal land and the 

Tribe's hunting and fishing grounds. Tribal law precludes the riding of ATVs on the 

lands and grounds. The Tribe apprised the county that it "vehemently opposes the 

opening of any roads for A TV use within the boundaries of the Reservation without 

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Conservation Nw. v. Okanogan County 

tribal consent." CP at 330. 

The Town ofTwisp's Planning Commission opposed Ordinance 2014-7 because 

of the potential adverse impacts on law enforcement and emergency services, insufficient 

regulation of vehicle maintenance, risk of increased accidents and death, and evidence 

that ATVs are unsafe when driven on paved surfaces. The Twisp Planning Commission 

wrote a letter to the Okanogan County Office of Planning & Development, which letter 

confirmed the town's opposition. 

The Town of Winthrop Planning Commission preliminarily questioned the 

wisdom of the ordinance because of the lack of information. The Planning Commission 

wrote to Perry Huston and raised uncertainties about the assiduousness of the 

environmental checklist and encouraged the county to prepare a thorougher checklist. 

Winthrop criticized the checklist as assuming no environmental impact to the proximity 

of the roadways opened to ATV traffic, omitting any discussion of ATV use's interaction 

with other recreational activities, and failing to attempt to measure increased traffic. The 

letter emphasized one particular alleged shortcoming of the checklist: 

Since the proposal does not include a network of roads that connect 

in a way that creates contiguous routes, we are curious how the ATVs will 

arrive on these sections of road, and if there is any consideration of parking 

for trucks and trailers. 

CP at 333. The full letter is attached as Appendix B. 

On May 2, 2014, Methow Valley Citizens Council and Conservation Northwest 

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jointly submitted to the Okanogan County Office of Planning & Development detailed 

comments that echoed concerns of the Cities of Twisp and Winthrop. The full submittal 

is attached as Appendix C. The organizations wrote, in part: 

MVCC and CNW believe that in reaching a DNS, the County failed 

to analyze 1) the likelihood of significant impacts on sensitive lands and 

waters, including fish and wildlife habitat, from illegal off-road riding 

facilitated by opening certain roads to ATVs; 2) the impacts on traffic of 

ATVs traveling on roads with speed limits over 35 mph, either because of 

confusion over where A TVs are and are not allowed, or because the 

operator wants to traverse an unauthorized road segment with a higher 

speed limit to access an isolated authorized road segment; 3) the impacts on 

public services from the need for additional traffic patrol and enforcement 

to keep ATVs from riding off-road and the need to post signs indicating 

where A TVs are and are not allowed; and 4) the actual traffic impacts of 

additional vehicles on the roads that would be open to ATVs under this 

proposal. 

1. The evidence of damage to lands, waters, vegetation, and fish and 

wildlife habitat from illegal off-road riding is overwhelming, and the 

County has failed to consider the significant impacts of illegal off-road 

riding that can be anticipated from opening roads in environmentally 

sensitive areas. 

In many responses in the SEP A Checklist, the County presumes that 

A TVs are exactly like all other vehicles that are already allowed on the 

roads and considers only the impacts to the road itself from opening the 

road to ATVs. On the contrary, the very name "all-terrain vehicles" means 

that these vehicles are designed, marketed and intended for off-road use. 

Unfortunately, not all operators stay on the road when they are riding in a 

vehicle that was designed and intended for off-road use, even when offroad use is prohibited. This statement is not speculation; it is established 

fact. In Appendix B we have included references to numerous studies and 

observations of damage to land from illegal off-road riding of ATVs. In 

light of the overwhelming evidence, it is simply unreasonable and 

inconsistent with SEP A to ignore the fact that illegal off-road riding is 

widespread and to assume that all ATV operators will obey all laws. 

For example, under the topic of Earth on page 3, the checklist asks 

about steepness of slopes, kind of soils affected, history of unstable soils, 

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likelihood of erosion, and measures to control erosion. Every response 

asserts that only "already existing roadways" will be affected. This view 

turns a blind eye to the probability of illegal off-road operation of ATVs. 

The evidence shows, however, that off-road riding is likely and that it will 

cause erosion, particularly in areas of steep slopes or unstable soils. 

Consequently, the County must assume some amount of illegal riding and 

assess impacts on soils adjacent to roads, especially in areas of steep slopes 

or unstable soils. 

The checklist continues in the same vein. In responses to questions 

regarding the next two elements - Plants and Animals - the County 

repeatedly asserts that there is no vegetation affected and no animals 

affected because ATV travel will take place on "existing county roadways." 

There is no consideration of impacts to vegetation or wildlife adjacent to, or 

made accessible by, existing roads. Once again, it is incumbent on the 

County to acknowledge that ATVs are not like most other vehicles in that 

they are designed and intended for off-road travel. The literature is replete 

with examples of serious damage to vegetation and, wildlife habitat -

including spawning streams for endangered fish - from illegal off-road 

riding. (See especially studies referenced by Backcountry Hunters & 

Anglers, Appendix B.) 

Other responses in the checklist fail to consider the likelihood of 

damage from off-road riding. On page 8, the checklist asks: "Has any part 

of the site been classified as an environmentally sensitive area? If so, 

specify." The County's answer is: "No roadways in this proposal have 

been classified as sensitive areas." 

Many miles of roadways in the proposal travel through, or give 

access to, Washington Department offish & Wildlife (WDFW) Wildlife 

Areas or state parklands. (See attached road list, Appendix A that shows 

roads in the proposal that access these public lands in the Methow Valley.) 

Surely there are environmentally sensitive areas on these lands, but the 

County has failed to ascertain the extent to which these areas may be 

adversely affected by off-road riding facilitated by this proposal. WDFW 

and State Parks prohibit ATVs both on and off road, yet the proposal would 

provide A TV access to and through these lands, thus creating an 

enforcement nightmare for these agencies. 

Many other miles likely are adjacent to spawning streams of at least 

one of the County's three federally listed threatened or endangered fish 

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species, but the County has failed to do any surveying or mapping to 

determine what protected species or their habitat may be made vulnerable 

to ATV access by this proposal. On page 14, the checklist asks: "How 

would the proposal be likely to affect land and shoreline use, including 

whether it would allow or encourage land or shoreline uses incompatible 

with existing plans?" The County response is: "The county roads are in 

some cases located next to areas, under shoreline protection." This is 

another example of sensitive areas that may be affected by the proposal. 

In sum, there is no rational basis for assuming that there will be no 

damage to adjacent or accessed lands from illegal off-road riding. To the 

contrary, there is ample evidence that the only reasonable assumption in 

conducting a SEP A analysis on this proposal is that there will be some 

illegal riding and consequent damage to soils, water bodies, shorelines, 

vegetation, wildlife, protected species, and governmentally protected 

sensitive areas. To reduce the likelihood of that damage, MVCC and CNW 

request that roads that travel through, or provide access to, WDFW lands or 

state parklands be removed from this proposal. In the alternative, we 

request that the County conduct a comprehensive survey to determine 

where roads give access to sensitive lands, waters, or fish and wildlife 

habitat and remove those roads from the proposal. 

2. The County failed to consider the impacts on traffic of ATVs 

traveling on roads with speed limits over 35 mph, either because of 

confusion over where ATVs are and are not allowed, or because the 

operator wants to cross a segment with a higher speed limit to access an 

isolated open segment. 

The proposal includes many isolated short segments that allow 

longer rides only if the operator illegally rides on roads that have speed, 

limits over 35 mph. (See Appendix A for a list of these roads in the 

Methow Valley.) It is likely that some riders will ride on segments or roads 

with higher speed limits, either because of confusion over where A TVs are 

and are not allowed, or because the operator wants to traverse an 

unauthorized segment with a higher speed limit to access another 

authorized road or segment. The County has not indicated intent to install 

signs to make it clear where ATVs are not allowed, and to do so would be 

prohibitively expensive. The County assumed that despite the disconnected 

patchwork of short segments connected only by roads or segments with 

higher speed limits, all A TV riders would both 1) understand where they 

may and may not ride, and 2) stay only on roads on which ATVs are 

allowed. This is an unsupported and unrealistic assumption. 

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To correct this error, MVCC and CNW request that the County 

remove from the proposal all road segments less than two miles long and 

those loop roads which connect only to roads with speeds greater than 35 

mph. Those segments for the Methow Valley are shown in Appendix A 

( columns K, L, and N). 

3. The County failed to consider the impacts on public services of 

the need for additional traffic enforcement to keep ATVs from riding offroad and to post signs indicating where ATVs are and are not allowed. 

Already thin local police and sheriff resources will be needed to 

enforce the laws governing A TVs .... 

4. The County failed to consider the actual traffic impacts of 

additional vehicles on the roads that would be open to ATVs under this 

proposal. 

The County admits that it does not know the number of additional 

vehicle trips per day or at peak times ( e.g., weekends and holidays in 

spring, summer, and fall), and it made no attempt to estimate those 

numbers. (See page 11, response to question 14.f: "It is not known the total 

number of vehicle trips per day generated by this proposal. . . . It is likely 

peak volumes will occur during daylight hours in the spring, summer, and 

fall.") Consequently, the County does not know whether the increase in 

traffic by itself - even without off-road riding - will increase impacts to 

environmental elements such as road surface erosion, dust irritants, 

animal/vehicle collisions, or other environmental elements. Yet the County 

states without evidence that "there is no erosion anticipated as a result of 

this proposal" (page 3, response to question l .f) and that "the number of 

average daily trips is not anticipated to increase to a point where vehicle 

density on the roads will cause a significant increase in animal/vehicle 

collisions." (Page 6, response to question 5 .a, b, and c, and page 13, 

response to question 2) 

Surely there is information available on the amount of traffic 

generated by opening roads to ATVs, since there are 336 miles of roads in 

the County that are already open to ATVs .... 

Requested Action 

MVCC and CNW request that you withdraw the DNS and issue a 

Determination of Significance on the proposal. Following that 

determination, we ask that you either 1) prepare an environmental impact 

statement for the proposal, or 2) issue a new proposal and prepare a SEP A 

analysis for the new proposal, including a request for public comment. 

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The new proposal should: 

Remove all roads in Appendix A that are shown in red. (The reason 

for removing a road from the proposal is shown in the columns following 

the road name. There may be more than one reason for removing a 

particular road.) In particular, we request that roads that travel through, or 

give access to, WDFW lands or state parklands be removed from this 

proposal. In the alternative, we request that the County conduct a 

comprehensive survey to determine where roads give access to sensitive 

lands, waters, or fish and wildlife habitat and remove those roads from the 

proposal. 

CP at 336-40 (footnote omitted). 

With its May 2, 2014 letter, CNW and MVCC submitted a summary of scientific 

literature addressing the impact of A TV off-roading anywhere and damage particularly 

caused on national forest lands in Okanogan County. The literature provided information 

about emerging best practices for managing A TV recreation in forestlands, the historical 

impacts of off-road recreation on wildlife habitats, and the environmental and social 

effects of A TVs in general. A June 7, 2013 article from the United States Forest Service 

website reported the growing instances of "mudding" in the Methow Valley. "Mudding" 

entails ATV operators trekking off-trail in order to plunge through large puddles and 

fling as much mud into the air as possible. 

CNW and MVCC also enclosed, with its objections, an annotated catalogue of the 

roads identified in Okanogan County's proposed ordinance. The road inventory listed 

those county roads slated for A TV use that connected with roads with a speed limit of 

greater than thirty-five miles per hour and itemized roads planned for ATV travel that 

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incorporated segments traversing less than two miles or crossed land managed by 

Washington's Department of Fish and Wildlife (WDFW). The two environmental groups 

proposed opening fewer roads to ATVs than planned by Okanogan County. 

WDFW also submitted comments to Perry Huston. The Department wrote: 

The Washington Department of Fish and Wildlife (WDFW) 

appreciates the opportunity to review and comment on the proposed 

ordinance to open approximately 597 miles of existing roads in Okanogan 

County to all-terrain vehicles (ATVs). We believe that substantial impacts 

as discussed below will likely occur if the ordinance is approved. 

WDFW's comments are based from the experience gained after managing 

lands that were impacted by the original ATV ordinance [2013 ordinance], 

which opened the road through the Sinlahekin Wildlife Area. Our 

comments reflect actual impacts that have been experienced, and are 

continuing. We anticipate these impacts will increase as additional roads as 

proposed are opened through Wildlife Area lands. WDFW lands in 

Okanogan County are not open to A TV use, with rare exception, and this 

ordinance will bring ATV riders, often unknowingly, into conflict with 

State law. 

ATVs are capable of being driven on road-less terrain and more 

primitive trails than full sized vehicles. ATV use on primitive trails and 

road-less areas can cause erosion, soil disturbance; new trailing in 

unsuitable areas; and spread noxious weeds. ATVs are particularly 

problematic because they contribute to the spread of noxious weeds. A 

vehicle used off-road in an area with noxious weeds will transport and 

spread seeds to other areas. Off-road use in a previously weed-free area 

can disturb soil and create an idea situation for transported weed seeds to 

grow and flourish. Noxious weeds on WDFW lands has been a concern 

voiced by Okanogan County; this ordinance will add to the weed problem 

on state and private lands associated with the roads open to ATV use. 

Some roads and trails are inappropriate for A TVs because of conflict 

with other users such as horse riders, bikes, and hikers. Increased 

disturbance to wildlife and livestock can occur. Neighboring landowners 

have complained about existing A TV riders coming off state lands, cutting 

their fences, and leaving gates open. This has resulted in scattered 

livestock and increased costs for fence repairs and livestock gathering. 

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Access to remote and "out-of-sight" areas by ATVs, increases the threat of 

vandalism, theft, youth parties, accidental wildfire ignitions, and other 

undesirable behaviors. 

Access to roads, trails, and landscapes by ATVs will be increased by 

the proposed ordinance. While we acknowledge there are responsible 

individuals in all user groups, there are the minority of individuals who will 

act irresponsibly. Currently, inappropriate off-road uses and using roads 

and trail that are illegal for ATVs is a common problem across the state. 

The added costs to land management activities and enforcement have not 

been mitigated and no such mitigation appears to exist within the. 

Okanogan County proposal. Wider access to private and non-county roads, 

trails, and landscapes will have corresponding increases in illegal uses with 

the negative consequences mentioned above. We are particularly 

concerned with impacts to WDFW owned boat launches, fishing access, 

and Wildlife Areas. Private and non-county landowners adjacent to the 

proposed roads will have increased costs for posting land, gating roads, and 

controlling weeds spread from the roadway. 

The original ordinance placed an increased burden on WDFW 

enforcement staff associated with illegal ATV use on WDFW lands 

adjacent to roads recently opened to ATV use by the county. As there is no 

proposed added enforcement capacity to ensure that these A TVs do not . 

trespass or violate other regulations, including traffic rules, enforcement, 

will rarely occur. The increased burden on other enforcement agencies to 

ensure that A TV users comply with existing laws will be significant. 

Therefore, WDFW is asking Okanogan County to delay opening any new 

roads to A TVs which would cross or contact lands we are charged with 

protecting, based upon our Sinlahekin Road experience. We would further 

ask that this delay be for the purpose of working with WDFW and the 

Sheriff Department to find ways to minimize, or mitigate, for impacts to 

wildlife, lands, non-motorized users, grazing lease holders, and our budget 

and staffing resources. Also, for the County to provide for enforcementresponse needs, which will be needed as a result of any new open roads. 

CP at 367-68. 

Former WDFW employee Tom McCoy wrote to Okanogan County and urged 

rejection of an ATV ordinance. McCoy e-mailed the Board of Commissioners: 

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I have recently been made aware of the SEP A checklist prepared for 

you[r] intended opening of under 35mph roads to ORV's in Okanogan 

County. I believe there are several glaring deficiencies in that document, 

most notably is the fact that it relies on voluntary compliance to these new 

rules. 

As the former manager of the WDFW Methow Wildlife Area I 

witnessed first hand the result of your prior decree [2013 ordinance] to 

open county roads to ORV's. In the first three week following that 

declaration I received more calls about ORV's on non-county roads, 

reckless driving on all roads, driving off-road, and driving on closed roads 

than I had in the previous three years. As an example, last fall, I witnessed 

four individuals on two ORV's spinning 360's on upper Bear Creek Rd. on 

their way from Pearrygin State Park to the WDFW shooting range where 

they traveled off road to get behind the road closure barrier on USFS Rd. 

100 up to Sullivan's Pond. This was not an isolated incident. On multiple 

occasions I have witnessed ORV use, both on and off-road, on closed USFS 

and WDFW property. The SEPA checklist appears to assume that because 

there is a county ordinance that all users will comply. Considering that 

there is a substantial measure of non-compliance to well established, 

posted, and enforced, standard traffic laws by currently street legal vehicles 

it can be considered nothing but folly to assume that ORV riders will fully 

comply with similar rules. 

Opening roads to ORV users, without due consideration of noncompliance and impacts to critical fish and wildlife habitat will have more 

than "speculative impacts." In fact, non-complying ORV use is currently 

having impact critical habitat. To not acknowledge that issue in the SEP A 

checklist is inappropriate. I am by no means against ORV use on county 

roads, far from it, but as elected officials you need to be realistic and 

objective, and act accordingly in the interest of all citizens of Okanogan 

County. 

CP at 363. 

George Wooten sent written comments to the Okanogan County Office of 

Planning & Development. Wooten claimed that the proposed ordinance encouraged 

unlawful use of ATV trails across Highway 20 in Okanogan County. To support his 

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claim, Wooten attached a photograph showing an unauthorized trail connecting to a state 

road, which prohibited ATV use. Wooten also attached a message from a state forester 

that confirmed the popular nature of the unauthorized A TV trail. W oaten presented a 

photograph of another unauthorized trail across a wetland. Finally, Wooten mentioned 

pavement is not a safe surface for ATVs, since ATVs are manufactured for off-road use. 

Other county residents, unaffiliated with CNW or MVCC, also expressed concern 

about Okanogan County's proposed ordinance. Nancy Soriano asked for exclusion of 

seven roads from the ordinance because use would negatively impact sharp-tailed grouse, 

a threatened species that Okanogan County must protect under the Washington Growth 

Management Act, chapter 36.70A RCW. Soriano mentioned that ATVs have caused 

wildfires by driving in dry grass. She noted the difficulty of enforcing laws in rural areas. 

Thirty-four citizens, primarily through succinct e-mail, expressed support for 

Ordinance 2014-7 in comments to the Okanogan County Office of Planning & 

Development. Supporters noted the utility of ATVs in assisting senior citizens in 

accessing the outdoors and the prospect of increased economic growth from A TV 

tourism. Okanogan County Sheriff Frank Rogers expressed no concerns about opening 

more county roads to A TVs, but stated that Sheriff Deputy Dave Rodriguez, not him, 

enforced ATV rules. Rodriguez did not comment. Three local snowmobile clubs and an 

ATV club voiced support for the ATV ordinance. A sample of ATV ordinance supporter 

comments is found in Appendix D. 

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On May 14, 2014, Okanogan County issued a final DNS and published the 

determination in the official county newspaper. On May 29, 2014, CNW and MVCC 

appealed the SEPA DNS, pursuant to Okanogan County Code 14.04.220, to the 

Okanogan County Board of County Commissioners. 

In their appeal to the county commissioners, the two environmental organizations 

contended that, in issuing a DNS, Okanogan County failed to engage in a meaningful 

analysis of whether: (1) increased ATV travel would damage sensitive lands, waters, and 

wildlife habitat, (2) ATVs would travel on unopened roads in order to access authorized 

ATV routes, (3) increased ATV traffic would require additional public services and law 

enforcement, and ( 4) increased A TV use would affect overall traffic patterns and 

congestion on roads with speed limits of 35 m.p.h. or less. CNW asked the Board of 

County Commissioners to find the current DNS clearly erroneous, withdraw it, and issue 

a determination of significance. The duo groups requested that Okanogan County either 

prepare an EIS for Ordinance 2014-7 or propose a new ordinance and prepare another 

environmental checklist. The Okanogan County Board of County Commissioners 

scheduled a public hearing on the appeal for June 16, 2014. 

During the pendency of the appeal before the Okanogan County Board of County 

Commissioners, CNW and MVCC tendered additional public comments, declarations, 

and scientific literature related to the proposed ATV ordinance. Much of the scientific 

literature assumed operation of ATVs on dirt trails, which Okanogan County insists will 

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not result from its A TV ordinance. The submitted literature included a dense 2011 

compilation by Backcountry Hunters & Anglers of scientific studies addressing the 

environmental impact of A TVs. The compilation read in part: 

Natural resources are affected by ATV use (Meadows et al. 2008). 

All-terrain vehicle use affects soil and hydrologic function primarily 

through soil compaction, increased soil strength, and removal of the forest 

litter layer in temperate environments (Ouren et al. 2007). Soil compaction 

and the removal of the forest litter layer can reduce vegetation growth 

(Webb et al. 1978) and is a primary factor in accelerated erosion rates 

(Megahan 1990) .... 

All-terrain vehicle travel increases erosion and sediment 

concentrations by removing soil cover and compacting the soil thus 

decreasing infiltration. Sediment delivery to streams via erosion is a result 

of ATV travel (Misak et al. 2002). Increased sediment loading decreases 

water quality, fish habitat quantity and quality, and fish reproductive 

success (Newcombe and MacDonald 1991). The increase in runoff and 

sediment transport can be substantial. Meadows et al. (2008) compared the 

effects of ATV traffic across seven sites on diverse landscapes ranging 

from the Wenatchee National Forest in Washington State to the Land 

Between the Lakes in Kentucky and concluded that "A TV trails are highrunoff, high sediment producing strips on a low-runoff, low sediment 

producing landscape." ... 

Impacts of A TV traffic on water quality and aquatic systems are not 

limited to increases in suspended stream sediments. ATV trails funnel 

water that dislodges contaminants which end up in streams, rivers and lakes 

(Ouren et al. 2007). Contaminants can also be directly introduced into 

aquatic systems through oil and fuel spills and wind deposition of emission 

particulates that are transported in dust migration, settle onto vegetation, 

and subsequently washed off leaf surfaces by rain and snow and moved by 

surface water run-off. All-terrain vehicle operation in or near streams and 

waterways poses a serious water pollution threat (Havlick 2002). This can 

have detrimental impacts on populations of aquatic animals. Garrett (2001) 

(as cited in Taylor 2006) reported that environmentally sensitive aquatic 

species (including fish) were absent from OHV impacted sites on the 

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Nueces River in Texas, while unimpacted sites hosted numerous 

environmentally sensitive species .... 

A TV impacts on vegetation are not limited to removal of vegetative 

soil cover. Reduced plant growth rates and populations of native species 

coupled with increases in non-native and pioneering plant species are 

directly related to ATV travel (Ouren et al. 2007) .... 

This review of the impact of A TV use on the physical environment 

suggests that the impacts are not only universal and cumulative, but that 

much of the damage associated with their operation can be induced by a 

limited number of users over short time periods .... For example, 

Meadows et al. (2008) asserts that while a meadow may recover from a 

single pass in a relatively short time frame, multiple passes often result in 

damage that natural processes are unable to mitigate .... 

Restricting A TV use in areas of low road density is necessary to 

reduce the spread of invasive species and protect the community structure 

of native species. 

Restoring sites degraded by ATV' s is unfeasible as long as ATV use 

continues. 

All-terrain vehicle travel can have a profound effect on all forms of 

wildlife .... 

. . . Habitat fragmentation can disrupt wildlife movements between 

and within habitats (Forman and Alexander 1998; Jackson and Griffin 

1998), which can have negative consequences for endemic species and may 

encourage non-native and invasive species propagation (Lovallo and 

Anderson 1996; Jackson and Griffin 1998) .... Habitat fragmentation can 

reduce reproductive success among nesting birds and is believed to be the 

main culprit in population reductions in some species of forest birds 

(Robinson et al. 1995) . 

. . . According to Trombulak and Frissel (2000), animal behavior is 

modified through five mechanisms: 

1. altered movement patterns 

2. changes in home range 

3. altered reproductive success 

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4. altered escape response 

5. altered physiological state 

The effect of ATV travel on elk, and more generally, the effect of 

roads on elk, has been a focal point for researchers because of the 

documented aversion elk have to roads open to motorized travel ( Cole et al. 

1997; Rowland et al. 2000), and for their social, economic, and recreational 

importance (Naylor et al. 2009) .... 

Elk ( especially economically and biologically significant bull elk) 

preferentially use areas devoid of motorized activity. 

Elk require large blocks of non-motorized habitat for security .... 

CP at 73-89. A less abridged version of the Backcountry Hunters & Anglers report is 

attached as Appendix E. 

MVCC and CNW also proffered to the Okanogan County Board of County 

Commissioners an annotated bibliography prepared by a student at the University of 

Vermont School of Natural Resources. The paper compiled and cited research related to 

the environmental and social impact of ATV use on public and private land. The 

bibliography reproduced summaries and citations of academic articles, white papers, 

websites, and organizations studying the social and environmental effects of ATVs. 

Among other observations, the studies noted that ATV use coincided with the nesting 

times of birds causing nest desertion. 

CNW provided the Okanogan County Board of Commissioners a June 7, 2013 

release from the Okanogan-Wenatchee National Forest office in Winthrop. The release 

read, in part: 

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Mudders, take note: It is against the law to tear up forest roads and 

meadows for the fun of it, and the legal and financial consequences can be 

steep. Tearing up high-country meadows with four-wheel-drive and offroad vehicles destroys wildlife habitat and ecosystems. 

During a recent investigation, Law Enforcement officers gathered 

information about mudding that occurred over Memorial Weekend 

northwest of Buck Lake Campground, near Winthrop Washington. The 

meadow was tom up by vehicles; here there was green grass, there are now 

mud pits and tire tracks. The activities that caused this damage are illegal 

under both state and federal law. Participants could face charges including 

malicious mischief and fines up to and including paying for the costs of 

restoration. 

Spinning tires on plants destroys the plants, leaving behind bare dirt. 

When plants are gone, there is nothing to stop soil from washing into 

nearby streams and lakes. Muddy streams and lakes are bad for fish, 

wildlife, irrigators, recreationists, and towns dependent upon clean water 

and tourism for survival. When native plants are gone, noxious weeds 

move in. A meadow of native grasses and flowers may soon become a 

field of thistles and knapweed. 

Mudding compacts soil. Healthy soil should bounce a bit when you 

walk on it. Tire tracks create hard, dried up soil. This hard soil doesn't 

allow water to move into the ground. Instead, water runs down tire tracks 

and into creeks and lakes, carrying mud and pollutants with it. It is hard for 

plants to grow in compacted soil-imagine trying to extend your legs 

through a concrete floor. 

Meadows and wetlands provide important breeding, rearing, and 

foraging habitats for many birds and other animals. Tearing-up these areas 

removes nesting and hiding cover, decreases forage, interferes with feeding, 

and pushes animals out into areas where they may not survive. 

Restoring an area damaged by mudding is expensive. Smoothing 

ruts, reseeding or planting and repairing roadbeds costs a lot of money. In 

situations where the individuals are not caught, every taxpayer has to pitch 

in to cover the restoration costs. When caught, individuals responsible for 

the damage can be fined up to $5000. In addition, the U.S. Forest Service 

may bring a civil suit against the individual to pay for the costly restoration. 

CP at 150-51. 

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Okanogan County residents who allegedly observed damage caused by ATVs 

submitted letters and photographs to the Okanogan County Board of County 

Commissioners. The letters are attached as Appendix F. 

CNW and MVCC also provided the Okanogan County Board of County 

Commissioners with releases from ATV trade associations, the U.S. Consumer Product 

Safety Commission, and private safety institutions warning of significant dangers 

associated with operating ATVs on paved road surfaces. The Consumer Product Safety 

Commission explained: 

ATVs should not be driven on paved roads. ATVs on paved roads 

are at risk of being hit by cars and other vehicles. While passenger vehicles 

contain safety features designed to protect occupants from collisions, A TVs 

do not. If struck by other vehicles, A TV riders can be killed or severely 

injured. 

In addition, most ATVs have low pressure tires and a solid rear axle, 

where both wheels tum at the same speed. When making a tum, the A TVs 

inside rear wheel is intended to skid because its path length is less than the 

path length of the outside wheel. ATVs on paved surfaces have much 

better traction, which prevents the necessary skidding. This can make 

turning an ATV on paved surfaces unpredictable and unstable. 

For these reasons, some states and local areas prohibit A TVs and 

other off-road vehicles on public streets and highways. 

CP at 175. 

The Specialty Vehicle Institute of America prepared a position paper in opposition 

to A TV use on roads, which paper the Okanogan County Board of County 

Commissioners received. The paper read, in part: 

The Specialty Vehicle Institute of America (SVIA) is the national 

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not-for-profit trade association representing manufacturers and distributors 

of all-terrain vehicles (ATVs) in the United States. SVIA's major goal is to 

promote the safe and responsible use of ATVs. 

ATVs are designed, manufactured and sold for off-road use only. 

On-road vehicles must be manufactured and certified to comply with U.S. 

Department of Transportation Federal Motor Vehicle Safety Standards 

(FMVSS). These safety standards consist of extensive and detailed 

compliance requirements. Since ATVs are not intended to be used on-road, 

they are not designed, equipped or tested to meet such standards. 

Permitting on-road use of ATVs, including modified A TVs, would be in 

conflict with manufacturers' intentions for their proper use, and would be 

contrary to federal safety requirements. 

SVIA emphasizes that ATVs are not designed, manufactured, or in 

any way intended for use on public streets, roads or highways and urges 

that on-highway use of ATVs be prohibited and that law enforcement 

efforts be strengthened to eliminate this dangerous practice. 

CP at 173-74. 

Fourteen ATV safety and health care professionals urged the Okanogan County 

Board of County Commissioners not to allow ATVs on public roads on public safety 

grounds. A copy of the letter is Appendix G. 

Botanist George Wooten submitted to the Okanogan County Board of County 

Commissioners photos and exact geographic coordinates of purported existing illegal 

A TV routes along Highway 20 and coordinates for other illegal ATV routes loping 

between national forest lands and private property. In the additional records delivered to 

the Okanogan County Board of County Commissioners, county residents related episodes 

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when A TV operators rode in unauthorized areas. Residents reported delayed responses 

by county law enforcement officers to these violations. 

In response to CNW's and MVCC's appeal to the Board of County 

Commissioners, county SEP A official Perry Huston penned a staff report recommending 

that the county commissioners deny the organizations' appeal. The staff report read, in 

part: 

Most of the issues raised by the appellants [CNW and MVCC] rely 

on the assumption that illegal A TV operation will result from the approval 

of this proposal which opens existing roads to A TV use. The appellants 

rely on this assumption to then assert the County failed to consider the 

likelihood that widespread damage to the environment would result from 

illegal ATV use. The appellants [then] rely on this assumption to assert 

that the County did not conduct an adequate review under SEP A because it 

failed to issue a DS and prepare an Environmental Impact Statement to 

identify and mitigate probable, significant, and adverse impacts brought 

about by illegal A TV use. 

The proposal submitted by the County for environmental review 

would open only existing roadways with a speed limit of 35 mph or less to 

use by licensed operators of licensed ATV' s. No other restrictions are 

repealed or other privileges granted. Based on this proposal the 

environmental checklist was prepared and considered. The DNS under 

appeal was issued based on review of this information and a public 

comment period was conducted to gain additional information for further 

review. 

Information submitted during the SEP A comment period did not 

identify any environmental issues that were not considered or any probable, 

significant, and adverse impacts that would be caused by the proposal. 

Some of the comments received during the comment period that are 

relevant to the question are summarized in the following. All comments 

received were considered and are made part of the record. 

Washington State Fish and Wildlife personnel offered a comment 

stating they had concerns about increased enforcement costs brought about 

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by increased illegal ATV use. The comment offered no specifics other than 

there was an "increase" in illegal ATV use. 

A past manager of WDFW offered a comment that when the roads 

were previously opened last summer there was more illegal A TV use than 

in the "previous three years." Neither activity level was quantified. 

The Confederated [T]ribes of the Colville Reservation offered a 

comment that the reservation was closed to ATV use by non-tribal 

members and illegal use would result in damage to the environment and 

tribal resources. No information regarding the number or frequency of the 

incidents of illegal ATV use was provided. 

The Methow Valley Citizens Council offered a comment that illegal 

A TV use would result in environmental impacts but offered no information 

in terms of the number or frequency of the incidents to which they refer. 

There were other comments offered in a tone similar to those noted 

above. None of the commenters offered specific statistics or other analysis 

quantifying the concerns. 

No information obtained through the public review process 

effectively quantifies the number of additional ATV riders anticipated in 

Okanogan County at any time that would result from the adoption of this 

proposal. Both proponents and opponents of the proposal suggest that there 

may be many but no specific information has been offered. 

The appellants assert that a large influx of riders will come to the 

Okanogan County and a substantial portion of them will operate their 

ATV's in unlawful areas. Further the appellants assert that a significant 

portion of the unlawful use will take place in environmentally sensitive 

areas. There is no information contained in the proposal or gathered during 

the public comment period that would support a conclusion that the 

proposal will likely result in an increase in illegal A TV use or that the 

illegal use will result in probable, significant, and adverse impacts to the 

environment. As noted previously in this report the assertions made by the 

appellants' [sic] are dependent on these two speculative assumptions. 

Further, to reach the conclusion asserted by the appellant's [sic] one would 

have to assume that the illegal A TV operation would take place in a 

significant amount of environmentally sensitive areas such as wetlands or 

nesting sites, etc. 

In addition to the speculative nature of the comments the comments 

received are in conflict. The Okanogan County Sheriff, chief law 

enforcement officer for the County, submitted a comment stating he had no 

concerns with the proposal. Others as noted offered concerns but no 

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specific information. Given the general nature of the comments the 

assertion that illegal ATV use will significantly increase as a result of 

opening existing roads to ATVs is speculative. As this assertion is 

speculative the assertion that illegal ATV use will result in probable, 

significant, and adverse impacts to the environment is speculative as well. 

In addition to the speculative nature of the issues raised by the 

appellants any assessment of environmental impacts that takes the approach 

that any protective regulation or conditions of approval will be ignored 

therefore probable, significant, and adverse impacts will occur is 

problematic. Such an approach would render moot any effort to mitigate 

environmental impacts or reliance on existing regulation to protect the 

environment and promote public health and safety. If a party need only 

assert that no one will obey the law or conditions of approval in the course 

of a project/proposal review than it leaves the only alternative the denial or 

unreasonable curtailment of the project/proposal. The use of SEP A in such 

a manner would render a thoughtful environmental review and subsequent 

conditioning of a project/proposal difficult at best if not impossible to 

conduct. 

As noted in Arthur Gresh v. Okanogan County and Mazama 

Properties L.L.C. Okanogan County Superior Court No 11-2-00491-2 the 

court stated "the court will not speculate that public agencies will not do 

their duty or that property owners will necessarily ignore the plat limits" in 

response to the assertion by the plaintiff that negative impacts will result 

because the (plat) conditions will not be followed and/or will not be 

adequately enforced. In the Amicus brief filed by the Department of 

Ecology for this same case the footnote on page 14 states Ecology 

agrees .... The Superior Court was correct in pronouncing ... that courts 

"may not speculate that public agencies will not do their duty or that 

property owners will not necessarily ignore the plat limits .... ["] 

The discussion by the court in "Gresh" is "on point" here as well. 

The law prohibits unlawful ATV operation and protects critical areas. An 

appeal brought on the premise that these laws will be ignored, but 

apparently the laws that currently close the roads is respected, is 

problematic on its face. 

The proposal if adopted would allow the operation of properly 

licensed/equipped ATV's by properly licensed operators on qualified 

county roads. The concern that the same operators who observe the 

existing road closures would not observe other regulation if the road 

closures were removed is at any rate not an environmental impact to be 

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further analyzed or mitigated. 

Conclusion 

The SEP A process is required to provide a reasonably thorough 

discussion of probable, significant, and adverse impacts brought about by a 

project/proposal. The SEPA review considered the areas of concern 

enumerated on the environmental checklist and the impacts suggested 

during the public comment periods. 

The final decision regarding the proposal has not been made. The 

comments made by the agencies and members of the public are part of the 

record to be considered by the Board of County Commissioners prior to 

approving, amending, or denying the proposal. 

The appellants in their request for relief ask that a DS be issued and 

an Environmental Impact Statement be prepared. They assert the 

responsible Official was clearly erroneous in the decision to issue a final 

DNS for the proposal. The appellants are correct that the standard for 

review is a "clearly erroneous" standard and the definition they provide of 

the meaning of that phrase is accurate as well. However, the conclusion 

that the decision of the SEP A responsible Official is clearly erroneous can 

only be made in view of the entire record and the public policy contained in 

the statute authorizing the decision. As noted earlier the purpose of the 

legislation authorizing counties to adopt ordinances such as the one under 

review was to promote public safety and reduce confusion. The appellant's 

[sic] assertion that in implementing the decision authorized by law; a 

decision authorized for the purpose of enhancing public safety, reducing 

confusion, and enhancing a self-policing approach to ATV operation will in 

fact accomplish the exact opposite is completely contrary to the public 

policy contained in the statute. 

The appellant's [sic] assert that issues enumerated in the 

environmental checklist were not analyzed. Their assertion is incorrect. 

The issues were not analyzed to their satisfaction but the appellant's [sic] 

did not identify any issues that were not considered. Their assertion that an 

EIS must be prepared to consider issues not dealt with in the environmental 

review is without merit. 

To prepare an environmental impact statement as requested by the 

appellant's [sic] three assumptions would have to be made and those 

assumptions quantified in some manner. The necessary assumptions would 

be: 

1) That a significant increase in the number of A TV's and the 

intensity of their use would result from adoption of the proposal. 

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2) That a significant number of the ATV's would be operated in an 

unlawful manner. 

3) That a significant number of unlawful A TV operators would 

leave the roadway and operate the A TV's in a significant number of 

environmentally sensitive areas. 

Preparing an EIS based on the unsubstantiated assertion that the 

above listed speculative occurrences are likely is not required by law. In 

fact the SEPA statutes contain language directed to the specific objective of 

preventing the SEP A process from considering speculative impacts in an 

effort to prevent SEPA from becoming a tool of the obstructionist. The 

preparation of an EIS that attempts to quantify this sort of speculative 

impacts would be a daunting if not impossible task and would clearly be for 

the purpose of rendering the review so cumbersome and/or expensive that 

the proponent would simply abandon the project/proposal as untenable. In 

the end the EIS would impose conditions or cite existing regulation that 

mitigates the feared environmental impacts which brings us back to the 

appellant's [sic] "point of beginning." Attacking the adequacy of an 

environmental review on the basis that no one will honor the law or 

conditions imposed is without merit and contrary to the law. 

In the case of this proposal and subsequent environmental review the 

preparation of an EIS would not add materially to the discussion. The issue 

that unknown impacts have not been identified has not been raised. In fact, 

the issues involved are clearly identified and understood. The issues 

involved have been discussed and the information generated has become 

part of the record. The lack of an EIS has not impaired anybody's ability to 

participate in the process or compromised an understanding of the 

consequences the opponents of the proposal fear. The lack of an EIS has 

not compromised the appellant's [sic] ability to enter their concerns and 

any information that supports their view into the record. 

The appellant's [sic] assertion that the environmental checklist was 

inadequate and/or inaccurate is premised on their assertion that the 

speculative impacts identified are likely. This assertion is premised on the 

assumption that A TV operators will ignore all or most regulation. The 

challenges with this issue have been previously discussed and I will not 

repeat those points here. As their first premise is invalid there is no reason 

to believe the checklist is either inaccurate or inadequate. 

The appellant's [sic] assertion that ATV operators may have to cross 

roadways with a speed limit greater than 3 5 mph is accurate but the 

environmental impact they fear it creates is unclear. Any motor vehicle 

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operator; or non-motorized vehicle operator for that matter, that operate on 

the road system must cross roadways with greater or lesser speed limits 

than the one they are on. The "rules of the road" adopted in statute are 

adopted to govern that type of vehicle operator interaction. In fact the 

statute that authorizes the proposal under review specifically contemplates 

that such a scenario will occur and provides direction on how to deal with 

it. 

The appellant's [sic] request that all paved roads be removed from 

the proposal would seem contrary to their stated desire to reduce 

environmental impacts. The discussion provided by this staff report is 

applicable to this issue so I will not repeat them here. 

All process requirements for environmental review were followed. 

This is not disputed by the appellants. 

The appeal brought by the MVCC and CNW fails to provide any 

compelling evidence that would lead a reasonable person to conclude the 

SEP A Responsible Official made a "clearly erroneous" mistake in 

conducting the SEPA review. The appellant's [sic] have failed to 

demonstrate that any mistake made was an "egregious error" in terms of 

compromising the public's ability to participate in the process or in 

preventing the "reasonable thorough discussion" of environmental impacts 

to occur. 

The appellant's [sic] have failed to overcome the deference given by 

law to the decision of the SEPA Responsible Official that an EIS was not 

necessary for this proposal and that a Final DNS was appropriate. 

The appeal should accordingly be denied. 

CP at 319-23. 

On June 16, 2014, the Okanogan County Board of County Commissioners 

entertained, at a public hearing, CNW's and MVCC's appeal. During the hearing, 

Okanogan County's SEPA official stipulated that the two groups held standing in that 

forum. Members of the organizations appeared at the Board of County Commissioners 

hearing. 

On June 23, 2014, the Okanogan County Board of County Commissioners denied 

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CNW's and MVCC's appeal of the DNS and adopted findings of fact and conclusions of 

law. The county commissioners found, in part: 

12) The Board found that the SEPA process was conducted in 

accordance with the law and provided a reasonably thorough discussion of 

the probable, significant, and adverse impacts caused by the project 

proposal. 

13) The Board found that the decisions made by the SEPA 

Responsible Official were proper and consistent with applicable codes and 

statutes. 

14) The Board determined that decisions made by the responsible 

official were entitled to substantial weight. 

15) The Board found the evidence presented by the appellants failed 

to establish a correlation between the increase in lawful riding opportunities 

for A TV operators and an increase in illegal riding activity. 

16) The Board found that the appellant's [sic] failed to produce 

compelling evidence that established the legislature was wrong in their 

finding that an increase in lawful riding opportunities would decrease the 

amount of unlawful or environmentally harmful riding activity and advance 

a culture of self-policing. 

17) The Board found that the appellant's [sic] failed to produce 

compelling evidence that an increase in lawful riding opportunities would 

be likely to significantly increase the level of unlawful activity and that the 

unlawful activity would take place in a significant amount of 

environmentally sensitive areas. 

18) The Board found that the SEP A Responsible Official decision to 

issue a final determination of non-significance was proper and not "clearly 

erroneous" and that the appellant's [sic] failed to produce compelling 

evidence to the contrary. 

CP at 411. The Board of County Commissioners concluded: 

[T]he SEP A process had been properly conducted and had provided 

a reasonably thorough discussion of any probable, significant, adverse 

impacts caused by the proposal. The Board determined the appellants had 

failed to provide evidence that: 

A) Overcome the deference accorded to the decision of the 

responsible official 

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B) Prove that the decisions made by the SEPA Responsible Official 

were clearly erroneous or that any mistakes, if made, were egregious in 

terms of affecting the opportunities afforded the public to participate in the 

process or in the decision makers access to complete information. 

C) Prove the SEP A process failed to meet the "reasonably 

thorough" standard required by law 

CP at 412. 

On June 23, 2014, the Okanogan County Board of County Commissioners adopted 

its A TV ordinance, Ordinance 2014-7. The ordinance reads, in part: 

An ordinance designating certain roads in Okanogan County open to 

use by wheeled All-Terrain Vehicles. 

WHEREAS: Engrossed Substitute House Bill 1632 states the 

legislature finds that off-road vehicle users have been overwhelmed with 

varied confusing rules, regulations, and ordinances from federal, state, 

county, and city land managers throughout the state to the extent 

standardization statewide is needed to maintain public safety and good 

order, and 

WHEREAS: Engrossed Substitute House Bill 1632 states it is the 

intent of the legislature to: (a) Increase opportunities for safe, legal, and 

environmentally acceptable motorized recreation; (b) decrease the amount 

of unlawful or environmentally harmful motorized recreation; ( c) generate 

funds for use in maintenance, signage, education, and enforcement of 

motorized recreation opportunities; ( d) advance a culture of self-policing 

and abuse intolerance among motorized recreationists; ( e) cause no change 

in the policies of any governmental agency with respect to public land; (f) 

not change any current ORV usage routes as authorized in chapter 213, 

Laws of 2005; (g) stimulate rural economies by opening certain roadways 

to use by motorized recreationists which will in tum stimulate economic 

activity through expenditures on gasoline, lodging, food and drink, and 

other entertainment purposes; (h) and require all wheeled all-terrain 

vehicles to obtain a metal tag, and 

WHEREAS: Consistent with Revised Code of Washington 

46.09.455(c)(i) A person may not operate a wheeled all-terrain vehicle on a 

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public roadway within the boundaries of a county, not including nonhighway roads and trails, with a population of fifteen thousand or more 

unless the county by ordinance has approved the operation of wheeled allterrain vehicles on county roadways, not including non-highway roads and 

trails, and 

WHEREAS: Okanogan County Code IO.IO authorizes the operation 

of off-road vehicles on county roads designated for that purpose; and 

WHEREAS: Okanogan County has conducted a public review on a 

proposal to open certain county roads with a posted speed limit of 35 milesper-hour or less that are not already designated for off road vehicle use, and 

WHEREAS: The SEPA Responsible Official for Okanogan County 

prepared an environmental checklist and conducted a SEP A review on the 

proposal consistent with the requirements ofRCW 43.21c, WAC 197-11, 

and OCC 14.04 and after review of the comments received issued a final 

determination of non-significance which was published in the official 

county newspaper on May 14, 2014, and 

WHEREAS: The Okanogan Board of County Commissioners 

considered the materials presented and testimony received and determined 

it was in the public's interest to designated certain county roads open to use 

by wheeled all-terrain vehicles, be it therefore 

ORDAINED: The following listed county roads are open to use by 

wheeled all-terrain vehicles: 

CP at 424-25 (boldface omitted). The ordinance appended a list of roads with mile posts 

between which one could drive an ATV. 

PROCEDURE 

After being denied relief by the Okanogan County Board of County 

Commissioners, CNW and MVCC again sued Okanogan County in superior court. The 

two groups invoked the trial court's jurisdiction under RCW 2.08.010 (superior court 

original jurisdiction), chapter 7.24 RCW (uniform declaratory relief act), chapter 7.40 

RCW (injunctive relief), and RCW 43.2IC.075 Gudicial review under SEPA). The two 

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entities sought a declaratory judgment that Ordinance 2014-7 violated SEP A and the 

legislative intent ofESHB 1632. They asked for the voidance of the ATV ordinance and 

an injunction precluding the effectiveness of the ordinance. Okanogan County asserted 

five affirmative defenses: (1) CNW and MVCC suffered no injury and thus lacked 

standing under SEP A to challenge the ordinance, (2) the trial court could review 

Ordinance 2014-7 only under the Land Use Petition Act (LUPA), chapter 36.70C RCW, 

a cause of action not pied, (3) because LUPA afforded an adequate remedy, the two 

organizations could not obtain declaratory or injunctive relief, ( 4) the plaintiffs failed to 

file a petition for review within twenty-one days of the county's adoption of Ordinance 

2014-7, as required by LUPA, and thus the trial court lackedjurisdiction to entertain the 

suit, and (5) any review by the superior court must be of the record from the Okanogan 

County Board of County Commissioners' review of the appeal to the Board. 

Okanogan County moved to dismiss CNW's and MVCC's complaint or for the 

grant of summary judgment in its favor. The two groups cross-moved for summary 

judgment. The superior court granted the county's motion to dismiss and denied the 

organizations' motion for summary judgment. The trial court concluded that Okanogan 

County did not violate SEP A and CNW and MVCC failed to establish a justiciable 

controversy sufficient for it to consider whether Ordinance 2014-7 violates ESHB 1632. 

On appeal, Okanogan County contends that the trial court ruled that the environmental 

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groups or their members lacked any injury. The trial court did not address standing or 

subject matter jurisdiction. 

LAW AND ANALYSIS 

CNW and MVCC appeal the trial court's grant of summary judgment to Okanogan 

County and its dismissal of their claims with prejudice. As it did below, Okanogan 

County on appeal contends that the environmental groups lack standing to challenge 

Ordinance 2014-7 and that the trial court lacked subject matter jurisdiction to hear the 

action for declaratory judgment and injunctive relief. 

Superior Court Jurisdiction 

When a defendant raises standing as a defense, the reviewing court usually 

addresses this defense first. We instead first address the question of whether the trial 

court possessed subject matter jurisdiction to hear CNW's and MVCC's challenge. The 

determination of standing may depend on the cause of action or form of action amenable 

to this suit and actually asserted in the case. If the trial court lacked jurisdiction, standing 

becomes moot, and we must reject the appeal. 

Subject matter jurisdiction is the authority to hear and determine the class of 

action to which a case belongs. Bour v. Johnson, 80 Wn. App. 643, 647, 910 P.2d 548 

( 1996). This court reviews jurisdictional issues de novo. Knight v. City of Yelm, 173 

Wn.2d 325,336,267 P.3d 973 (2011). 

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LUPA 

Okanogan County contends the challenge to the county's environmental checklist 

and Ordinance 2014-7 falls within the parameters of either chapter 7 .16 RCW, which 

addresses a statutory writ of review, or the Land Use Petition Act. Okanogan County 

argues that, because one of the alternative procedures provided CNW an adequate 

remedy, CNW could not assert the superior court's general jurisdiction, seek declaratory 

relief, or seek relief under the injunction statutes. When asserting this argument, 

Okanogan County forgets that CNW and MVCC also advanced an appeal under SEPA 

statutes. We disagree that either LUPA or the writ of review procedure applies. We 

address L UP A first. 

LUPA pertains to judicial review of all land use decisions with some exceptions 

noted in the statute. RCW 36.70C.010-030; Chelan County v. Nykreim, 146 Wn.2d 904, 

916, 52 P.3d 1 (2002). In enacting LUPA in 1995, the legislature determined that LUPA 

'" shall be the exclusive means of judicial review ofland use decisions,"' with certain 

specific exceptions. Chelan County v. Nykreim, 146 Wn.2d at 917 (quoting RCW 

36.70C.030(1)). A land use petition is barred, and the court may not grant review, unless 

the petition is timely filed with the court within twenty-one days of the issuance of the 

land use decision. RCW 36.70C.040(3). 

We must decide if Ordinance 2014-7 or the Okanogan County declaration of 

nonsignificance for the environmental impact of Ordinance 2014-7 constitutes a "land 

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use decision" within the meaning ofLUPA. A "land use decision" is: 

a final determination by a local jurisdiction's body or officer with 

the highest level of authority to make the determination, including those 

with authority to hear appeals, on: 

(a) An application for a project permit or other governmental 

approval required by law before real property may be improved, developed, 

modified, sold, transferred, or used ... 

(b) An interpretative or declaratory decision regarding the 

application to a specific property of zoning or other ordinances or rules 

regulating the improvement, development, modification, maintenance, or 

use of real property; and 

( c) The enforcement by a local jurisdiction of ordinances regulating 

the improvement, development, modification, maintenance, or use of real 

property .... 

RCW 36.70C.020(2) (emphasis added). 

Ordinance 2014-7 and the environmental checklist and DNS preceding the 

ordinance concerned ATV use of county roads. No one applied for a project permit or 

governmental approval of use of his or her property. CNW challenges the adoption of an 

ordinance, not the enforcement of an ordinance concerning someone's use of property. 

The Board of County Commissioners, on enacting Ordinance 2014-7, did not issue an 

interpretative or declaratory decision. "Land use decisions" are applications, interpretive 

or declaratory decisions, and enforcement of certain ordinances. See Chelan County v. 

Nykreim, 146 Wn.2d at 927 (2002); Samuel's Furniture, Inc. v. Dep't of Ecology, 147 

Wn.2d 440,451, 54 P.3d 1194, 63 P.3d 764 (2002); Brotherton v. Jefferson County, 160 

Wn. App. 699,704,249 P.3d 666 (2011). CNW and MVCC need not have filed suit 

underLUPA. 

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Writ of Review 

RCW 7.16.040 provides: 

A writ of review shall be granted by any court, except a municipal or 

district court, when an inferior tribunal, board or officer, exercising 

judicial functions, has exceeded the jurisdiction of such tribunal, board or 

officer, or one acting illegally, or to correct any erroneous or void 

proceeding, or a proceeding not according to the course of the common 

law, and there is no appeal, nor in the judgment of the court, any plain, 

speedy and adequate remedy at law. 

(Emphasis added.) Statutory writs of review are available for judicial or quasi-judicial 

actions. Harris v. Pierce County, 84 Wn. App. 222, 228, 928 P.2d 1111 (1996). They 

are not available, however, for legislative actions. Raynes v. City of Leavenworth, 118 

Wn.2d 23 7, 244 n.2, 821 P .2d 1204 ( 1992); Leavitt v. Jefferson County, 7 4 Wn. App. 

668, 677, 875 P.2d 681 (1994). We need not address whether the adoption of Ordinance 

2014-7 or the denial of CNW' s appeal of the county SEP A official by the Okanogan 

County Board of County Commissioners constituted a legislative or judicial action. We 

resolve the issue on another ground. 

Okanogan County contends that CNW and MVCC must have sought a writ of 

review if available, rather than seeking superior court jurisdiction on another basis. 

Nevertheless, the opposite is true. RCW 7.16.040 denies an applicant the writ if the 

applicant has another remedy. Because SEPA affords a method of appeal, a statutory 

writ of review under chapter 7 .16 RCW is not available. Raynes v. City of Leavenworth, 

118 Wn.2d at 244; Foster v. King County, 83 Wn. App. 339, 346, 921 P.2d 552 (1996). 

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In Foster v. King County, the court specifically denied the applicant a writ of review in a 

SEP A appeal. 

SEPA Appeal 

Since LUPA does not encompass CNW's and MVCC's challenge and because the 

statutory writ of review does not interfere with this challenge to Okanogan County 

actions, we now ask whether any of the four legal paths, on which the organizations 

sought superior court jurisdiction, sufficed to bestow subject matter jurisdiction. CNW 

and MVCC solicited superior court jurisdiction under four statutes: (1) the superior 

court's broad original jurisdiction afforded under RCW 2.08.010, (2) jurisdiction granted 

under the declaratory relief act, chapter 7 .24 RCW, (3) power bequeathed to issue 

injunctions under chapter 7.40 RCW, and (4) the right to judicial review to determine 

compliance with SEPA under RCW 43.2IC.075. CNW needs to show jurisdiction under 

only one of the four statutory schemes to receive the relief desired. We address SEP A 

jurisdiction and only SEP A jurisdiction. 

SEPA authorizes judicial review of an agency's compliance with its terms. RCW 

43.2IC.075; Lands Council v. Wash. State Parks & Recreation Comm 'n, 176 Wn. App. 

787, 802, 309 P.3d 734 (2013). Therefore, RCW 43.2IC.075 necessarily confers 

jurisdiction on the superior court. 

Okanogan County faults CNW and MVCC for seeking declaratory relief in its 

complaint. The county contends that, since the groups ask for declaratory relief, the 

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superior court and this court is limited to addressing legislative action, and the Board of 

County Commissioners' affirmation of the county SEPA official's preparation of the 

environmental checklist constituted a quasi-judicial, not a legislative, action. According 

to the county, a declaratory judgment action invokes the trial court's original jurisdiction, 

not appellate jurisdiction, and, since CNW and MVCC ask this court to declare the Board 

of County Commissioners' denial of its appeal to be clearly erroneous, they mistakenly 

invoked the superior court's appellate jurisdiction. 

In order to convince this court to reject the appeal for lack of jurisdiction, 

Okanogan County devotes pages to analyzing and characterizing the Board of County 

Commissioners' challenged action as quasi-judicial in nature. We need not engage in a 

similar analysis because the answer to Okanogan County's challenge to subject matter 

jurisdiction lies elsewhere. 

Okanogan County ignores the language in the complaint asserting jurisdiction 

under SEP A. CNW and MVCC may have characterized much of its lawsuit as being in 

the nature of a declaratory judgment action. They asked for a declaration that the 

Okanogan County action was clearly erroneous. They captioned its complaint as one for 

declaratory judgment and injunctive relief. Nevertheless, the organizations also 

specifically sought judicial review under SEP A. Okanogan County cites no authority that 

prevents the request for declaratory relief in the same suit when the plaintiff includes an 

appeal under SEP A. The county cites no authority that captioning a case as one for a 

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declaratory judgment renders null a request in the body of the complaint for SEPA 

review. In its essence, a SEPA appeal requests declaratory relief establishing that 

governmental action is contrary to law, so labeling the SEP A appeal in part as a 

declaratory judgment action creates no harm. 

We note that, consistent with SEP A statutory provisions, CNW sought review of 

both Okanogan County Ordinance 2014-7 and the underlying environmental checklist 

and determination ofnonsignificance by Okanogan County's SEPA official Perry 

Huston. SEP A demands that any "[j]udicial review ... shall without exception be of the 

governmental action together with its accompanying environmental determinations." 

RCW 43.2IC.075(6)(c). This so-called "linkage requirement" is meant to stave off 

judicial review until the underlying governmental action is final, thus preventing "orphan 

SEPA claims." Boss v. Dep 't ofTransp., 113 Wn. App. 543, 549, 54 P.3d 207 (2002). 

SEP A compliance is "' evaluated as an integrated element of government 

decisionmaking,'" rather than an independent cause of action. Foster v. King County, 83 

Wn. App. at 345 ( 1996) ( quoting RICHARD L. SETTLE, THEW ASHING TON ST ATE 

ENVIRONMENTAL POLICY ACT: A LEGAL AND POLICY ANALYSIS§ 20, at 244 (1995)). 

Standing 

We now address whether CNW and MVCC possessed standing to challenge 

Okanogan County's actions under SEPA. The county contends that the organizations 

lack standing to seek judicial review of the county's SEP A determination of 

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nonsignificance. It contends that the organizations alleged no "injury in fact" to one or 

more of its members, but rather alleged only speculative future harm that Ordinance 

2014-7 could potentially cause. The duo groups urge this court, under RAP 5 .1 ( d), not to 

address the county's standing argument. In addition, CNW argues that it has 

organizational standing and that its members have been injured in fact. 

CNW asks this court to ignore Okanogan County's challenge to standing because 

the county never cross appealed the issue. We decline this request. RAP 5 .1 ( d) demands 

that a respondent seeking review of an issue file a notice of appeal timely under RAP 

5.2(f). By raising the issue of standing, Okanogan County seeks no affirmative relief. A 

prevailing party is not required to cross appeal if it seeks no affirmative relief and may 

argue any grounds, supported by the record, to advocate affirming a trial court's decision. 

McGowan v. State, 148 Wn.2d 278, 287-88, 60 P.3d 67 (2002); RAP 5.l(d). A 

respondent may raise the sufficiency of a factual basis to support standing for the first 

time on appeal. RAP 2.5(a)(2); Mitchell v. Doe, 41 Wn. App. 846, 848, 706 P.2d 1100 

(1985). 

We move to the merits of Okanogan County's standing defense. The concept of 

standing asks: who, if anyone, does the law wish to litigate specific claims and issues. 

Courts resolve standing by reviewing the purposes behind the law asserted by the 

plaintiff, measuring the plaintiffs connection to those purposes, and gauging injury to the 

plaintiff. 

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SEP A grants an aggrieved person the right to judicial review of an agency's 

compliance with the statute. RCW 43.21C.075; Lands Council v. Wash. State Parks & 

Recreation Comm 'n, 176 Wn. App. at 799 (2013). The term "person aggrieved" was 

intended to include anyone with standing to sue under existing law. Trepanier v. City of 

Everett, 64 Wn. App. 380,382,824 P.2d 524 (1992) (citing RICHARDL. SETTLE, THE 

WASHINGTON STATE ENVIRONMENTAL POLICY ACT§ 20(b) at 248 (1987)). 

In order to obtain review under SEP A statutes, the petitioner must establish 

standing. Save a Valuable Env 't (SAVE) v. City of Bothell, 89 Wn.2d 862, 866, 576 P.2d 

401 (1978); Harris v. Pierce County, 84 Wn. App. at 232 (1996). The party must allege: 

( 1) his or her endangered interest falls within the zone of interests protected by SEP A, 

and (2) the party has suffered an injury in fact. Kucera v. Dep 't of Transp., 140 Wn.2d 

200,212,995 P.2d 63 (2000); Leavitt v. Jefferson County, 74 Wn. App. at 678-79 (1994). 

The standing of a nonprofit corporation to challenge governmental actions 

threatening environmental damage is firmly established in federal jurisprudence and 

Washington has adopted the federal approach. SA VE v. City of Bothell, 89 Wn.2d at 867; 

Magnolia Neigh. Planning Council v. City of Seattle, 155 Wn. App. 305,312,230 P.3d 

190 (2010). A nonprofit organization may represent its members in a proceeding for 

judicial review so long as it shows that one or more of its members are specifically 

injured by a governmental action. SA VE v. City of Bothell, 89 Wn.2d at 867. 

Organizations have standing to assert the interests of their members, so long as the 

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members would otherwise have standing to sue, the purpose of the organization is 

germane to the issue, and neither the claim nor the relief requires the participation of 

individual members. Five Corners Family Farmers v. State, 173 Wn.2d 296, 304, 268 

P .3d 892 (2011 ); Int 'l Ass 'n of Firefighters, Local 1789 v. Spokane Airports, 146 Wn.2d 

207, 213-14, 45 P.3d 186, 50 P.3d 618 (2002). 

The purposes of SEP A are: 

(1) To declare a state policy which will encourage productive and 

enjoyable harmony between humankind and the environment; (2) to 

promote efforts which will prevent or eliminate damage to the environment 

and biosphere; (3) and [to] stimulate the health and welfare of human 

beings; and ( 4) to enrich the understanding of the ecological systems and 

natural resources important to the state and nation. 

RCW 43.21C.010. Thus, SEP A's "zone of interests" contemplates broad questions of 

environmental impact, identification of unavoidable adverse environmental effects, 

choices between long and short term environmental uses, and identification of the 

commitment of environmental resources. Snohomish County Prop. Rights All. v. 

Snohomish County, 76 Wn. App. 44, 52-53, 882 P.2d 807 (1994). The county concedes 

that CNW's and MVCC's interests in protecting the environment fall within SEPA's 

zone of interests. We agree. 

We also hold that CNW and MVCC allege sufficient injury in fact to establish 

organizational standing to seekjudicial review of the county's SEPA determination. A 

party meets the "injury in fact" prong of standing by showing that the injury will be 

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immediate, concrete, and specific, even though the allegations may be speculative and 

undocumented. Kucera v. Dep 't o/Transp., 140 Wn.2d at 213 (2000); Leavitt v. 

Jefferson County, 74 Wn. App. at 679 (1994). 

In Lands Council v. Washington State Parks & Recreation Commission, 176 Wn. 

App. 787 (2013), this court held that the petitioner held standing to challenge the 

Washington State Parks and Recreational Commission's decision to classify ski resort 

property as recreation land, thus allowing for alpine ski area expansion, despite the 

absence of a planned precise location for the ski runs. The State argued that the Lands 

Council could not show any immediate, concrete and specific injury because the 

commission had yet to map the ski runs. The Lands Council alleged that the ski area 

expansion would jeopardize wildlife and its habitat. The decision mentions little about 

the nature or members of Lands Council other than it was an environmental group. 

We find federal law concerning the National Environmental Protection Act 

(NEPA) supports our conclusion that CNW has standing. Because NEPA is substantially 

similar to SEPA, we may look to federal case law for SEPA interpretation. Int'/ 

Longshore & Warehouse Union, Local 19 v. City a/Seattle, 176 Wn. App. 512,525,309 

P.3d 654 (2013); Pub. Util. Dist. No. 1 a/Clark County v. Pollution Control Hr'gs Bd., 

137 Wn. App. 150, 158, 151 P.3d 1067 (2007). Although standing does not strictly 

involve the interpretation of a statute, the NEPA and SEP A policies coincide such that 

standing rules under both statutory schemes should be similar. Our courts have followed 

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organization standing rules established in federal environmental jurisprudence. SA VE v. 

City of Bothell, 89 Wn.2d at 867; Magnolia Neigh. Planning Council v. City of Seattle, 

155 Wn. App. at 312 (2010). 

Under federal law, an environmental plaintiff adequately alleges injury in fact 

when she avers that she uses the affected area and is an individual 'ror whom the aesthetic 

and recreational values of the area will be lessened by the challenged activity. Friends of 

the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 183, 120 S. Ct. 693, 

145 L. Ed. 2d 610 (2000); Sierra Club v. Morton, 405 U.S. 727, 735, 92 S. Ct. 1361, 31 

L. Ed. 2d 636 ( 1972). Melanie Rowland and George Wooten, members of one or both of 

the plaintiff organizations, attested to hiking, photography, bird and wildlife watching, 

and studying native plants and trees in the Okanogan County wilderness. 

In Sierra Club v. US. Army Corps of Engineers, 645 F.3d 978 (8th Cir. 2011), an 

environmental organization and a hunting club filed suits against the Army Corps of 

Engineers, the Fish and Wildlife Service, and an electric utility, seeking injunctive relief 

because of the federal agencies' grant of a permit to construct a new coal-fired power 

plant. The plaintiffs claimed violations of NEPA, among other environmental statutes. 

The reviewing court agreed that the environmental organization showed adequate injury 

in fact. One club member testified that he lived in the area and enjoyed taking pictures, 

hunting, and studying its history and archaeology. The member was disturbed by the 

mud and siltation from the plant site, the increase in dust caused by traffic on the 

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highway, as well as noise and light pollution comingfrom the plant. Another member 

was an avid bird watcher and nature photographer in the area. He expressed his concern 

that power plant construction would affect one of the most beautiful areas he has visited. 

Closer to home, in National Wildlife Federation v. Espy, 45 F.3d 1337 (9th Cir. 

1995), environmental groups brought action under NEPA against the United States 

Secretary of Agriculture and purchasers of property, alleging that the transfer of property 

without creating easements to protect wetlands violated NEPA. The reviewing court held 

that the complaint sufficiently alleged each element of standing. The allegations that 

several of plaintiffs' members enjoy the aesthetic value of the wetlands and the 

opportunities they afforded for hiking, hunting, and bird-watching, asserted a legally 

protected interest sufficient for standing. 

In challenging CNW's standing, Okanogan County argues that CNW and MVCC 

present no specific studies with regard to harm in Okanogan County, no evidence of how, 

when or where there will be harm to any area by reason of the ATV ordinance, and no 

evidence that any organization member has any interest beyond that of the general public 

in land adjacent to opened roads. Nevertheless, Okanogan County cites no decision that 

requires a study supporting damage to an environment in order that an environmental 

group may gain standing. CNW and MVCC nonetheless presents numerous studies of 

damage to wildlife in various regions by ATVs. The county cites no requirement that an 

environmental group must identify a precise location and time for the potential harm. 

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The organizations anyway forwards direct and specific evidence of damage to the 

Okanogan County environment in precise locations as a result of ATVs. Cases support 

the proposition that a desire to see and value the environment sets an organization or its 

members apart from the general public for purposes of standing under environmental 

laws. 

Finally, Okanogan County maintains that, while CNW and MVCC may show 

damage to the environment by A TV use, the two groups cannot show damage caused by 

opening additional roads to ATV use. We find no case that requires such precision of 

proof as to damage in order to gain standing. Proponents of the ATV ordinance contend 

that the ordinance will attract ATV users to Okanogan County, thereby increasing the use 

of Okanogan County roads. Logically, the additional ATV riders will probably lead to 

some off-road riding and some environmental damage. CNW and MVCC members have 

documented present and ongoing instances of illegal A TV off-roading that increased with 

the opening of an additional 597 miles of county road to ATV traffic. CNW alleges that 

its members will lose recreational space, aesthetic enjoyment, and sensitive wildlife areas 

as a result of increased A TV traffic. 

In arguing that CNW and MVCC lacks standing, the county relies on Harris v. 

Pierce County, 84 Wn. App. 222 (1996). In that case, a citizens group challenged the 

adequacy of Pierce County's final environmental impact statement for the creation of a 

system of multi-purpose trails. The group brought a writ of certiorari and attached 

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declarations from members stating that their property could be condemned by the county 

for the new trail system. We held that the group failed to establish standing because 

economic interests do not fall within the zone of interests protected by SEP A and the 

concern that property might be condemned did not establish an immediate, concrete and 

specific injury. 

Harris does not raise the relatively low bar for environmental standing. CNW and 

MVCC do not rely on economic harm to its members. CNW's interest in protecting the 

environment adjacent to roads newly opened to ATVs in Okanogan County falls within 

SEP A's zone of interests. 

CNW and MVCC also argue that this court could analyze standing under a relaxed 

procedural analysis advocated in Lujan v. Defenders of Wildlife, 504 U.S. 555,572 n.7, 

112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992) and Five Corners Family Farmers v. State, 

173 Wn.2d at 303 (2011) and applied in Lands Council v. Washington State Parks & 

Recreation Commission, 176 Wn. App. 787 (2013). Because we find standing under 

traditional principles of standing, we need not address this alternate grounds for standing. 

ESHB 1632 

Both sides promote the 2013 law, ESHB 1632, as supporting their respective legal 

positions. Okanogan County does not expressly argue that the 2013 bill rid the county of 

the need to prepare an environmental checklist. Nevertheless, the county argues that 

ESHB 1632 established a legislative policy that declares that either ATVs do not harm 

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the environment or the economic benefits of ATV riding prevails over any environmental 

harm. We discern no such legislative pronouncements. 

In enacting ESHB 1632, the legislature found: 

that off-road vehicle users have been overwhelmed with varied 

confusing rules, regulations, and ordinances from federal, state, county, and 

city land managers throughout the state to the extent standardization 

statewide is needed to maintain public safety and good order. 

LAWS OF 2013, 2d Spec. Sess., ch. 23, § 1(1). Through ESHB 1632, the Washington 

legislature sought to: 

(a) Increase opportunities for safe, legal, and environmentally 

acceptable motorized recreation; (b) decrease the amount of unlawful or 

environmentally harmful motorized recreation; ( c) generate funds for use in 

maintenance, signage, education, and enforcement of motorized recreation 

opportunities; ( d) advance a culture of self-policing and abuse intolerance 

among motorized recreationists; ( e) cause no change in the policies of any 

governmental agency with respect to public land; (t) not change any current 

ORV usage routes as authorized in chapter 213, Laws of 2005; 

(g) stimulate rural economies by opening certain roadways to use by 

motorized recreationists which will in tum stimulate economic activity 

through expenditures on gasoline, lodging, food and drink, and other 

entertainment purposes; and (h) require all wheeled all-terrain vehicles to 

obtain a metal tag. 

LAWS OF 2013, 2d Spec. Sess., ch. 23, § 1(2). 

Section 6 of ESHB 1632 opened state highways, with a speed limit of thirty-five 

miles per hour or less, to the operation of wheeled all-terrain vehicles (W ATVs). LA ws 

OF 2013, 2d Spec. Sess., ch. 23, § 6, codified at RCW 46.09.455(1). Section 6 of the 

enactment also granted counties with a population of fifteen thousand or more the 

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authority to open county public roadways for WA TV use. Codified at RCW 

46.09.455(l)(c)(i). Portions of the bill are codified at RCW 46.09.455. 

The preface to ESHB 1632 laments that off-road vehicle users have been 

overwhelmed with varied confusing regulations and ordinances from federal, state, 

county, and city governments. Okanogan County does not suggest that preparation of a 

thorough environmental checklist, before a county adopts an ordinance extending the 

miles of roads for ATV use, instigates confusing regulations or ordinances. The checklist 

does not create any new ordinances or regulations. 

Through ESHB 1632, the Washington Legislature sought to stimulate rural 

economies by opening "certain roadways" to use by motorized recreationists. LA ws OF 

2013, 2d Spec. Sess., ch. 23, § 1. Reference to "certain roadways" suggests the 

legislature was not anticipating a rural county to open all roadways to ATV use, let alone 

all roadways with a speed limit under 35 m.p.h. Also, the legislature's desire to stimulate 

local economies does not equate to a legislative wish to void environmental protections 

and free a local government from complying with SEPA. To the contrary, the legislature 

included in the law the desiderata of increasing "legal and, environmentally acceptable 

motorized recreation" and conversely decreasing "the amount of unlawful or 

environmentally harmful motorized recreation." LAWS OF 2013, 2d Spec. Sess., ch. 23, § 

1(2)(a), (b) (emphasis added). Thus, failing to address the environmental impact of 

opening certain roadways runs contrary to the bill's stated purpose. 

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CNW and MVCC do not seek to preclude the opening of all county roads to ATV 

traffic. Instead, the organizations advocate a selective opening of roads. A county may 

follow both RCW 46.09.455 and SEPA by opening more roads to ATV traffic after 

thoroughly considering the environmental impacts of the action. Statutes are to be read 

together, whenever possible, to achieve a harmonious total statutory scheme, which 

maintains the integrity of the respective statutes. In re Bankr. of Wieber, 182 Wn.2d 919, 

926, 347 P.3d 41 (2015). 

Okanogan County for good reason does not contend that ESHB 1632 partially 

repealed SEPA. We do not favor repeal by implication, and, when potentially conflicting 

acts can be harmonized, we construe each to maintain the integrity of the other. City of 

Spokane v. Rothwell, 166 Wn.2d 872, 877, 215 P .3d 162 (2009); Anderson v. Dep 't of 

Corr., 159 Wn.2d 849, 858-59, 154 P.3d 220 (2007). Implied repeal is disfavored and 

will be found only ( 1) when the later act covers the entire field of the earlier one, is 

complete in itself, and is intended to supersede prior legislation, or (2) when the two acts 

cannot be reconciled and both given effect by a fair and reasonable construction. State v. 

Conte, 159 Wn.2d 797, 815, 154 P.3d 194 (2007); Amalgamated Transit Union Legis. 

Council v. State, 145 Wn.2d 544, 552, 40 P.3d 656 (2002). ESHB 1632 did not cover 

environmental policy. The legislature expressed no intent in the bill to supersede SEPA. 

SEPA and ESHB 1632 can be reconciled. 

In short, RCW 46.09.455(1)(c)(i) authorizes a county to open roadways to ATVs. 

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The statute does not authorize a county to avoid the provisions of SEP A. Therefore, we 

move to the heart of the dispute between the parties: whether the environmental checklist 

prepared by Okanogan County SEP A official Perry Huston satisfied requirements 

imposed by SEP A. 

Environmental Checklist 

The Washington State Legislature adopted the State Environment Policy Act in 

1971 as a means to create a process to identify possible environmental impacts that may 

accompany governmental actions. These actions include issuing permits for private 

projects, constructing public facilities, or adopting ordinances, regulations, policies, or 

plans. Information provided during the SEP A review process enables agencies, 

applicants, and the public to assess how a proposed action will affect the environment. 

The assembled information may lead to a change in a proposal to reduce impacts or to 

condition or deny a proposal because of adverse environmental impacts. 

SEP A recognizes the broad policy "that each person has a fundamental and 

inalienable right to a healthful environment." RCW 43.21C.020(3). State agencies are 

required to use "all practicable means" to achieve the following goals: 

(a) Fulfill the responsibilities of each generation as trustee of the 

environment for succeeding generations; 

(b) Assure for all people of Washington safe, healthful, productive, 

and aesthetically and culturally pleasing surroundings; 

(c) Attain the widest range of beneficial uses of the environment 

without degradation, risk to health or safety, or other undesirable and 

unintended consequences. 

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RCW 43.21C.020(2). Over forty years ago, with the adoption of SEPA, we first read in 

Washington law that each generation is a trustee of the environment for succeeding 

generations. Lands Council v. Wash. State Parks & Recreation Comm 'n, 176 Wn. App. 

at 807-08 (2013). 

Contrary to popular belief, SEP A does not demand a particular substantive result 

in government decision making. Instead, the act ensures that environmental values are 

given appropriate consideration. Stempel v. Dep 't of Water Res., 82 Wn.2d 109, 118, 508 

P.2d 166 (1973); Moss v. City of Bellingham, 109 Wn. App. 6, 14, 31 P.3d 703 (2001). 

SEP A imposes on the government agency a duty to assemble and review full 

environmental information before rendering a decision. Davidson Serles & Assocs. v. 

City of Kirkland, 159 Wn. App. 616, 634-35, 246 P.3d 822 (2011). Briefly stated, the 

procedural provisions of SEP A constitute an environmental full disclosure law. Norway 

Hill Pres. & Prot. Ass 'n v. King County Council, 87 Wn.2d 267, 272, 552 P.2d 674 

(1976). SEPA attempts to shape the state's future environment by deliberation, not 

default. Stempel v. Dep 't of Water Res., 82 Wn.2d at 118; Loveless v. Yantis, 82 Wn.2d 

754, 765-66, 513 P.2d 1023 (1973). In essence, SEPA requires that the "presently 

unquantified environmental amenities and values will be given appropriate consideration 

in decision making along with economic and technical considerations." RCW 

43.21C.030(2)(b); see also Norway Hill, 87 Wn.2d at 272 (1976). 

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RCW 43 .21 C.030(2)( c ), a critical section of SEPA, requires all counties to: 

Include in every recommendation or report on proposals for 

legislation and other major actions significantly affecting the quality of the 

environment, a detailed statement by the responsible official on: 

(i) the environmental impact of the proposed action; 

(ii) any adverse environmental effects which cannot be avoided 

should the proposal be implemented; 

(iii) alternatives to the proposed action; 

(iv) the relationship between local short-term uses of the 

environment and the maintenance and enhancement of long-term 

productivity; and 

(v) any irreversible and irretrievable commitments of resources 

which would be involved in the proposed action should it be implemented. 

Thus, under RCW 43.21C.030(2)(c), major actions significantly affecting the quality of 

the environment require an environmental impact statement. Cheney v. Mountlake 

Terrace, 87 Wn.2d 338, 344, 552 P.2d 184 (1976); Davidson Serles & Assocs. v. City of 

Kirkland, 159 Wn. App. at 634 (2011 ). 

An administrative rule implementing SEP A defines "major action" circularly: 

"Major action" means an action that is likely to have significant 

adverse environmental impacts. "Major" reinforces but does not have a 

meaning independent of "significantly" (WAC 197-11-794 ). 

WAC 197-11-764. WAC 197-11-704, in tum, defines "actions" as: 

( 1) "Actions" include, as further specified below: 

(c) Legislative proposals. 

(2) Actions fall within one of two categories: 

(a) Project actions .... 

(b) Nonproject actions. Nonproject actions involve decisions on 

policies, plans, or programs. 

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(i) The adoption or amendment of legislation, ordinances, rules, or 

regulations that contain standards controlling use or modification of the 

environment; 

(Emphasis added) (Boldface omitted). Okanogan County agrees that its adoption of 

Ordinance 2014-7 constitutes an action within the meaning of SEP A. The county, 

however, contends the ordinance does not significantly impact the environment. 

If SEP A covers a local governmental action, the government next determines if 

the action will "significantly affect" the environment. SEP A does not define 

"significantly affecting." Davidson Serles v. City of Kirkland, 159 Wn. App. at 634. 

WAC 197-11-794 reads: 

( 1) "Significant" as used in SEP A means a reasonable likelihood of 

more than a moderate adverse impact on environmental quality. 

(2) Significance involves context and intensity (WAC 197-11-330) 

and does not lend itself to a formula or quantifiable test. The context may 

vary with the physical setting. Intensity depends on the magnitude and 

duration of an impact. 

The severity of an impact should be weighed along with the 

likelihood of its occurrence. An impact may be significant if its chance of 

occurrence is not great, but the resulting environmental impact would be 

severe if it occurred. 

Under case law, the agency should prepare the environmental impact statement 

whenever more than a moderate effect on the quality of the environment resulting from 

the governmental action is a reasonable probability. King County v. Wash. State 

Boundary Review Ed.for King County, 122 Wn.2d 648,664,860 P.2d 1024 (1993). 

Under SEP A, evaluation of a proposal's environmental impacts requires examination of 

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at least two relevant factors: (1) the extent to which the action will cause adverse 

environmental effects in excess of those created by existing uses in the area, and (2) the 

absolute quantitative adverse environmental effects of the action itself, including the 

cumulative harm that results from its contribution to existing adverse conditions or uses 

in the affected area. Norway Hill, 87 Wn.2d at 277 (1976); Narrowsview Pres. Ass 'n v. 

City a/Tacoma, 84 Wn.2d 416,423, 526 P.2d 897 (1974). 

The decision of whether a governmental action will significantly impact the 

environment is called the threshold determination. Moss v. City of Bellingham, 109 Wn. 

App. at 14 (2001 ). The lead agency must make its threshold determination based on 

information reasonably sufficient to evaluate the environmental impact of a proposal. 

WAC 197-11-335; Moss v. City of Bellingham, 109 Wn. App. at 14. The agency issues a 

determination of nonsignificance if it determines that the project will have no probable 

significant adverse environmental impacts. WAC 197-11-340( 1 ); Lanzce G. Douglass, 

Inc. v. City of Spokane Valley, 154 Wn. App. 408, 422, 225 P.3d 448 (2010). If the local 

government decides that a proposal "may have a probable significant adverse 

environmental impact," the agency issues a determination of significance and identifies 

the areas on which an environmental impact statement must focus. RCW 43 .21 C.031; 

WAC 197-11-360(1); Lanzce G. Douglass, 154 Wn. App. at 422. A determination of 

significance mandates the preparation of a full environmental impact statement. Moss v. 

City of Bellingham, 109 Wn. App. at 15 (2001 ). 

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Before reaching the determination of significance or nonsignificance, the 

government agency reviews an environmental checklist. WAC 197-11-315; Moss v. City 

of Bellingham, 109 Wn. App. at 14 (2001). When the local governmental action 

constitutes the granting of a development permit, the applicant of the permit completes 

the environmental checklist. If the action entails an ordinance, the local government 

prepares and reviews the checklist. This appeal centers on the environmental checklist 

prepared by Okanogan County SEP A official Perry Huston. 

By way of the environmental checklist, the responsible agency must show that it 

considered the relevant environmental factors and that its decision to issue any 

determination of nonsignificance was based on information sufficient to evaluate the 

proposal's environmental impact. RCW 43 .21 C.030(2)( c ); Wenatchee Sportsmen Ass 'n 

v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000). The purpose of the checklist 

is to ensure an agency, at the earliest possible stage, fully discloses and carefully 

considers a proposal's environmental impact before adopting it. Spokane County v. E. 

Wash. Growth Mgmt. Hr 'gs Bd., 176 Wn. App. 555, 579, 309 P.3d 673 (2013), review 

denied, 179 Wn.2d 1015, 318 P.3d 279 (2014). Ifthe checklist does not contain 

sufficient information to make a threshold determination, the preparer may be required to 

submit additional information. WAC 197-11-335(1); Moss v. City of Bellingham, 109 

Wn. App. at 14 (2001 ). This latter rule controls this appeal. 

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CNW and MVCC contend that Okanogan County's DNS was clearly erroneous 

because the environmental checklist it prepared omits sufficient information to evaluate 

the probable environmental impacts on sensitive lands and waters, traffic congestion and 

safety, and public services and enforcement. CNW maintains that the county ignored 

concrete evidence that illegal ATV off-road riding causes significant environmental harm 

and is difficult to prevent because of the remoteness of the activity. CNW argues that the 

county's failure to consider the proven impact of ATV riding rendered meaningless the 

process of preparing a SEP A environmental checklist. CNW asks this court to declare 

Ordinance 2014-7 null and void because the inadequate environmental checklist led to a 

flawed declaration of nonsignificance and a mottled ordinance. 

Okanogan County contends that, throughout the county's SEPA review process, 

CNW and MVCC provided only information on possible harm and never identified a 

specific road section where harm is inevitable. The county argues that we must afford 

substantial weight to the responsible officials in reviewing SEP A cases. Thus, it argues, 

the declaration of nonsignificance was not clearly erroneous and we must uphold 

Ordinance 2014-7. 

We review the decision of the Okanogan County Board of County Commissioners 

under the "clearly erroneous" standard. This standard provides a broader or less 

deferential review than the "arbitrary or capricious" standard because it mandates a 

review of the entire record and all the evidence rather than just a search for substantial 

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evidence to support an administrative finding or decision. Norway Hill, 87 Wn.2d at 274 

( 1976); Ancheta v. Daly, 77 Wn.2d 255, 259-60, 461 P .2d 531 ( 1969). A SEP A 

determination is clearly erroneous "' when although there is evidence to support it, the 

reviewing court on the entire evidence is left with the definite and firm conviction that a 

mistake has been committed.'" Norway Hill v. King County Council, 87 Wn.2d at 274 

(internal quotation marks omitted) (quoting Ancheta, 77 Wn.2d at 259). Judicial review 

under the "clearly erroneous" standard also requires consideration of the "' public policy 

contained in the act of the legislature authorizing the decision."' Norway Hill, 87 Wn.2d 

at 274 (quoting former RCW 34.04.130(6)(e) (1967)). Consequently, that public policy 

is a part of the standard of review. Norway Hill, 87 Wn.2d at 275 (1976); Schuffenhauer 

v. Dep't of Emp't Sec., 86 Wn.2d 233,235,543 P.2d 343 (1975). 

We now address some of the principles forwarded by Okanogan County to sustain 

Ordinance 2014-7. We then mention broad principles violated by the county's 

environmental checklist and list specific defects we find in the checklist. We then end 

with a discussion of the arguments forwarded by Okanogan County to uphold the 

ordinance. 

Okanogan County relies on the rule that, when a proposal changes neither the 

actual current uses to which the land was put nor the impact of continued use on the 

surrounding environment, that action is not a major action significantly affecting the 

environment and an environmental impact statement is not required. Chuckanut 

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Conservancy v. Dep 't of Nat. Res., 156 Wn. App. 274,285,232 P.3d 1154 (2010); 

ASARCO Inc. v. Air Quality Coal., 92 Wn.2d 685, 706, 601 P.2d 501 (1979). We 

recognize the validity of this rule. We also recognize that the local government need not 

identify and evaluate every remote and speculative environmental consequence of an 

action. Cheney v. Mountlake Terrace, 87 Wn.2d at 344. Nevertheless, we consider other 

rules more fitting to our decision. We also disagree with Okanogan County's contention 

that the A TV ordinance merely continues the current use and current impact on the 

environment of its roads. 

Many principles support the position of CNW and MVCC. The government 

decision makers must consider more than the narrow, limited environmental impact of 

the immediate, pending action. Cheney v. Mountlake Terrace, 87 Wn.2d at 344; Lanzce 

G. Douglass, Inc. v. City of Spokane Valley, 154 Wn. App. at 424 (2010). The agency 

cannot close its eyes to the ultimate probable environmental consequences of its current 

action. Cheney v. Mountlake Terrace, 87 Wn.2d at 344; Eastlake Cmty Council v. 

Roanoke Assoc., Inc., 82 Wn.2d 475, 492-93, 513 P.2d 36 (1973); Loveless v. Yantis, 82 

Wn.2d at 765 (1973). To repeat, because NEPA is substantially similar to SEPA, we 

may look to federal case law for SEPA interpretation. Int'/ Longshore & Warehouse 

Union, Local 19 v. City of Seattle, 176 Wn. App. at 525 (2013); Pub. Util. Dist. No. I of 

Clark County, 137 Wn. App. at 158 (2007). Under federal law, simple, conclusory 

statements of "no impact" fail to fulfill an agency's duty when preparing an initial 

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environmental assessment under NEPA. Found. on Econ. Trends v. Weinberger, 610 F. 

Supp. 829, 841 (D.D.C. 1985). An agency must take the requisite "hard look" at the 

environmental concern, and the initial assessment must indicate that the agency has taken 

a searching, realistic look at the potential hazards and, with reasoned thought and 

analysis, candidly and methodically addressed those concerns. Found. on Econ. Trends 

v. Weinberger, 610 F. Supp. at 841. 

Our decision in Spokane County v. Eastern Washington Growth Management 

Hearings Board, 176 Wn. App. 555 (2013), echoes the federal law's mandate of detailed 

information in environmental checklists and the requirement of assessing potential 

environmental damage to areas surrounding the government project. The decision also 

joins federal law in condemning broad generalizations and rote answers in the checklist. 

In Spokane County, this court upheld a growth management hearings board decision to 

invalidate a resolution amending the Spokane County's comprehensive plan and zoning 

maps on the grounds that the resolution violated SEP A. The county prepared an 

inadequate environmental checklist, thus leading it to also issue an erroneous DNS. The 

checklist addressed various amendments with broad generalizations. The checklist did 

not tailor its scope or level of detail to address the probable impacts on environmental 

aspects such as water quality resulting from amendments. Instead, the checklist repeated 

formulaic language postponing environmental analysis to the project review stage and 

assuming compliance with applicable standards. The opinion does not share the 

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generalizations and formulaic language in the checklist. In short, the administrative 

record showed the county failed to fully disclose or carefully consider the environmental 

impact of amendments. 

Okanogan County's environmental checklist contains repetitive, superficial, 

conclusory statements regarding the potential environmental impact of opening nearly 

600 miles of county roads to ATV use. The checklist is almost devoid of specific 

information. 

We conclude that, at a minimum, the Okanogan County environmental checklist 

should list topographic features, soils, fora and fauna and identify endangered species and 

environmentally sensitive areas adjacent to the roads. At a minimum, the checklist 

should also address the following concerns: 

• Increased traffic as a result of the ATV ordinance; 

• Off road use encouraged by the opening of the roads and the usage's 

environmental impacts, including harm to soils, slopes, water, animals, and 

plants; 

• Reported instances of off road use and its damage to environment; 

• Some segments of roads being open to A TV traffic but not connected to 

other roads under 35 m.p.h.; 

• Noise and air pollution resulting from both legal and illegal traffic; 

• Adequacy of facilities, law enforcement, and emergency services to handle 

ATV use; 

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• Impact on threatened and endangered species from both legal and illegal 

traffic; and 

• The applicability of the concerns raised by CNW in the literature provided 

concerning the effects of A TVs on the environment. 

We now address contentions asserted by Okanogan County that would negate the 

need to provide the information we deem necessary for an environmental checklist. 

Okanogan County argues that it need not consider traffic congestions or emergency 

services need for increased ATV use. We disagree. In Lanzce G. Douglass, Inc. v. City 

of Spokane Valley, 154 Wn. App. 408 (2010), this court reversed the city planning 

division's decision to permit a housing development without first requiring an 

environmental impact statement. In so ruling, we noted that the city failed to consider the 

difficulty in evacuating the development in the event of an emergency. A hearing 

examiner had concluded that the development will add a significant volume of traffic to 

the already inadequate community transportation system. 

Despite Okanogan County's stated intent of opening up roads to ATV use in order 

to increase ATV-based tourism and recreation, the county insists that Ordinance 2014-7 

will not result in a substantial increase in A TV traffic. This conclusion belies the 

county's stated goal of the ordinance. 

Okanogan County insists that, when preparing an environmental checklist, it need 

not consider off-road riding of ATVs, since such riding is illegal. The county impliedly 

contends that it need not consider unlawful behavior when considering environmental 

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impacts. No law supports this argument. Instead, the county is to consider all 

environmental impacts, whether resulting from legal or illegal conduct of ATV riders. 

In Center for Biological Diversity v. Blank, 933 F. Supp. 2d 125 (D.D.C. 2013), 

the court held that various government agencies complied with NEPA, but only after 

finding that the government, in its initial assessment akin to a checklist, considered the 

possible impact of illegal bluefin fishing on the ocean environment. The government 

considered scientific reports that addressed illegal fishing when issuing a regulation. 

More on point is Sierra Club v. Bosworth, 352 F. Supp. 2d 909 (D. Minn. 2005). 

An environmental organization challenged the Forest Service's planned sale of Superior 

National Forest timber. Any sale would necessitate the construction of logging roads and 

the later closure of the roads. The organization argued, in part, that the new roads would 

encourage illegal ATV traffic in the forest. The court agreed that the government failed 

to sufficiently analyze possible unlawful conduct of A TV users. The court noted the lack 

of enforcement officers in the national forest and evidence of prior illegal use of forest 

roads. The court ruled that: 

the Forest Service has not provided sufficient analysis to support its 

conclusory statement that "new road building or re-opening closed ones" 

are "not expected to result in any cumulative adverse effects." The analysis 

of this factor favors the necessity of preparing an EIS. 

Sierra Club v. Bosworth, 352 F. Supp. 2d at 924-25. In Greater Yellowstone Coalition v. 

US. Forest Service, 12 F. Supp. 3d 1268 (D. Idaho 2014), the court also ruled that, 

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before opening roads to A TV traffic, the Forest Service must evaluate the impact on the 

environment resulting from illegal A TV use. 

The Okanogan County environmental checklist omits listing of plants and animals 

in the areas adjacent to the roads opened for ATV use. The county justifies this omission 

with the observation that ATVs will only ride on roads. This county argument fails 

because SEP A does not limit the review of environmental impact from governmental 

action to any precise boundaries or the narrow scope of the project. SEPA demands the 

listing and analyzing of all environmental impacts resulting from an ordinance. The 

county's argument again also fails to recognize the possibility of off-road riding of ATVs 

attended to the opening of the roads. 

The federal court, in Greater Yellowstone Coalition v. US. Forest Service, ruled 

that the government must address the impact of ATV use beyond the road on which ATV 

use is permitted. To address that impact, the government must know and list the types of 

soil, animals, and plants that inhabit the area. In Greater Yellowstone Coalition, an 

environmental group challenged the government's assessment of the environmental 

impact resulting from the opening of roads to ATV traffic. The proposed motorized trail 

lay one-half mile from the Caribou Mountain Recommended Wilderness Area. The 

Coalition argued that the Forest Service failed to consider the effects of having an ATV 

trail close to a recommended wilderness area and that the failure amounted to an arbitrary 

and capricious decision that violated NEPA. The court agreed. The Forest Service's 

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initial environmental assessment claimed that the opening of the road would "not affect 

the quality or quantity of wilderness opportunity available now or into the future," and 

that none of the trail construction was within the area. 12 F. Supp. 3d at 1276. The 

Coalition contended that the Forest Service may not simply conclude there is no effect 

but rather must analyze in the assessment the possible effects of the project on the 

wilderness area. The Coalition also argued that the Forest Service should have 

considered the noise impact of the ATVs and possible off-trail use of ATVs. The court 

noted the government's failure to address the noise impact on a wilderness area intended 

for solitude and primitive recreational use. In short, the government failed to take a "hard 

look" at the environmental consequences of opening a road to ATV traffic. Greater 

Yellowstone Coalition, 12 F. Supp. 3d at 1279. 

Okanogan County forgets the nature of ATVs. An ATV is designed as an off-road 

recreational vehicle capable of cross-country travel on land, snow, ice, mud, swampland 

or other natural terrain. An ATV travels on multi-track, multi-wheel and low pressure 

tires for all terrains. 

Okanogan County impliedly argues that the CNW and MVCC must show that 

environmental damage is inevitable at one or more specific locations. We read no such 

requirement into the SEP A process. We also note that the opponent of a governmental 

action holds no burden to show the possibility of environmental damage. Instead, SEP A 

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imposes the burden on the local government of thoroughly exploring and analyzing the 

possibility of environmental harm in an environmental checklist. 

During the comment period, Okanogan County disregarded, as conjectural and 

speculative, numerous substantive statements and documentation from federal, state, 

tribal, and local government entities attesting to the ongoing negative impact of off-road 

A TV use on sensitive areas. Nevertheless, the county received overwhelming evidence 

of negative impacts, including evidence of actual off-road riding that damaged specified 

locations. Photographs confirmed the environmental harm. 

We agree with Okanogan County that it need not consider, in the environmental 

checklist, the safety aspects of riding an A TV on pavement. Environmental policy laws 

direct the government to consider environmental impact, not public safety. Metro. 

Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 772, 103 S. Ct. 1556, 75 L. 

Ed. 2d 534 (1983). An increased risk of accidents is not an impact to the physical 

environment needed to be considered under NEPA. Bicycle Trails Council of Marin v. 

Babbitt, 82 F.3d 1445, 1466-67 (9th Cir. 1996). 

In Norway Hill Preservation and Protection Ass 'n v. King County Council, 87 

Wn.2d at 275, the court ordered that an environmental impact statement be prepared 

because of the county's failure to comply with the SEPA process. We need not go this 

far. We do not order that Okanogan County prepare an environmental impact statement. 

Instead, since SEPA is an informational statute, we hold that Okanogan County, before 

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adopting an ATV ordinance, must prepare an environmental checklist that includes a 

complete disclosure and review of information relevant to the environmental impact to 

the areas surrounding roads opened by the ordinance. 

A SEP A challenge addresses the legal adequacy of the environmental impact 

statement or environmental checklist and the actions taken in reliance of the 

environmental document, typically the enactment of an ordinance. RCW 

43.2IC.075(6)(c); Davidson Serles & Assocs. v. City of Kirkland, 159 Wn. App. at 632 

n. 8 (2011). Local agency authority to act is qualified by the requirements of SEP A, thus 

agency action that does not comply with SEP A is unlawful. State v. Grays Harbor 

County, 122 Wn.2d 244, 256 n.12, 857 P.2d 1039 (1993). We invalidate a county 

ordinance based on a violation of SEPA. Barrie v. Kitsap County, 93 Wn.2d 843,861, 

613 P .2d 1148 ( 1980); Davidson Serles & Assocs. v. City of Kirkland, 159 Wn. App. at 

628 (2011 ). Since the environmental checklist preceding Okanogan County Ordinance 

2014-7 is insufficient, the ordinance is void. 

Return to ESHB 1632 

CNW last contends that Ordinance 2014-7 violates the intent ofESHB 1632. 

Because we void the ordinance on other grounds, we do not entertain this argument. 

CNW does not seek any relief, through its reliance on ESHB 1632, that we do not grant it 

by reason of declaring the environmental checklist insufficient. 

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CONCLUSION 

We reverse the trial court's grant of summary judgment in favor of Okanogan 

County and grant judgment in favor of CNW and MVCC on the ground that Ordinance 

2014-7 violates SEPA. We thus invalidate Ordinance 2014-7. We vacate the award of 

fees and costs awarded by the superior court to Okanogan County against CNW and 

MVCC. Okanogan County is free to enact another ATV ordinance, but only after a 

sufficient environmental checklist. We grant CNW and MVCC fees and costs on appeal. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

I CONCUR: 

d]Unu~,~· Siddoway, J. 

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Appendix 

APPENDIX A 

Environmental checklist Prepared by Perry Huston 

We place in bold print the responses of Huston: 

1. Name of proposed project, if applicable: 

The proposal/project is an ordinance which opens approx. 

597.23 miles of existing county roads to all - terrain- vehicle (ATV) use. 

The county currently manages a road system of 1266 miles. There are 

currently 335. 73 miles of those roads open to ATV use. 

(See attached maps) 

The roads proposed to be opened to use by ATVs are listed on 

the attached spreadsheet. 

(see attachment) 

5. Agency requesting checklist: Okanogan County Planning 

6. Proposed timing or schedule (including phasing, if applicable): 

It is anticipated notice of the proposal and threshold 

determination of non-significance will be published on April 16, 2014. 

A 14 day comment period for the SEPA determination will be 

conducted with review of the comments received immediately 

following. Subsequent determinations and the schedule for a public 

hearing on the proposal will be determined based on review of the 

comments received. If it is adopted the ordinance will be effective 

immediately. 

8. List any environmental information you know about that has been 

prepared, or will be prepared, directly related to this proposal. 

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There has been no other environmental information prepared 

relevant to this proposal. Any additional environmental information 

will be prepared if necessary to respond to issues identified during the 

comment period. 

11. Give brief, complete description of your proposal, including the 

proposed uses and the size of the project and site .... 

The proposal/project is an ordinance which opens 597.23 miles 

of county roads to all-terrain-vehicle (ATV) use. The county currently 

manages a road system of 1266 miles. There are currently 335. 73 miles 

of those roads open to ATV use. 

(See attached maps) 

12. Location of the proposal. Give sufficient information for a 

person to understand the precise location of your proposed project, 

including a street address, if any, and section, township, and range, if 

. known. If a proposal would occur over a range of area, provide the range 

or boundaries of the site(s). Provide a legal description, site plan, vicinity 

trap, and topographic map, if reasonably available. While you should 

submit any plans required by the agency, you are not required to duplicate 

maps or detailed plans submitted with any permit applications related to 

this checklist. 

The proposal will involve opening roads to ATV use throughout 

Okanogan County. 

B. ENVIRONMENTAL ELEMENTS 

1. Earth 

a. General description of the site (circle one): Flat, rolling, hilly, 

steep slopes, mountainous, other .... 

The proposal will involve already existing roadways throughout 

the county which cover a variety of topographical features. See 

attached map for roadways included in the proposal. 

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c. What general types of soils are found on the site (for example, 

clay, sand, gravel, peat, muck)? If you know the classification of 

agricultural soils, specify them and note any prime farmland. 

The proposal involves already existing roadways in Okanogan 

County. The roadways cover a variety of soil types already altered 

through road construction and paving or other surface treatments. 

d .. Are there surface indications or history of unstable soils in the 

immediate vicinity? If so, describe. 

The proposal involves already existing roadways throughout 

Okanogan County. There have been no areas identified as unsuitable 

for the existing roadway due to unstable soils. 

f. Could erosion occur as a result of clearing, construction, or use? 

If so, generally describe. 

There is no construction necessary to implement this proposal. 

The proposal involves already existing roadways in Okanogan County. 

There is no erosion anticipated as a result of this proposal. 

g. About what percent of the site will be covered with impervious 

surfaces after project construction (for example, asphalt or buildings)? 

The proposal will open 597.33 miles of existing roadways to ATV 

use. 165.033 miles of these roads are currently paved. There will be no 

additional pavement installed or other road surfaces altered as a result 

of this proposal. 

h. Proposed measures to reduce or control erosion, or other impacts 

to the earth, if any: 

There are no measures proposed to reduce erosion or other 

impacts to the earth, other than normal roadway maintenance 

activities, as a result of this proposal. 

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a. Air 

a. What types of emissions to the air would result from the proposal 

(i.e., dust, automobile, odors, industrial wood smoke) during construction 

and when the project is completed? If any, generally describe and give 

approximate quantities if known. 

The proposal involves opening roadways in Okanogan County to 

ATV use that are already open to motor vehicle operation. The ATV's 

generate exhaust when in operation. The proposal does not involve 

increasing the number of ATV's in operation for any prescribed period 

of time and does not anticipate a significant increase in automobile 

odors. The roadways in the proposal have low speed limits in place to 

which the ATV's must adhere. There is no increase in dust anticipated 

as a result of this proposal. 

c. Proposed measures to reduce or control emissions or other 

impacts to air, if any: 

There are no proposed measures to control emissions or other 

impacts. 

3. Water 

a. Surface: 

1) Is there any surface water body on or in the immediate vicinity of 

the site (including year -round and seasonal streams, saltwater, lakes, 

ponds, wetlands)? If yes, describe type and provide names. If appropriate, 

state what stream or river it flows into. 

The proposal involves existing county roadways. No new 

roadways will be constructed on or immediately adjacent to water 

bodies. See attached map for roadways included in the proposal. 

5) Does the proposal lie within a 100-year floodplain? If so, note 

location on the site plan. 

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The proposal involves existing county roads some of which lie 

within the 100 year flood plain. No new roadways will result from this 

proposal. See attached map for the location of the roads involved. 

6) Does the proposal involve any discharges of waste materials to 

surface waters? If so, describe the type of waste and anticipated volume of 

discharge. 

There will be no discharge of waste materials to surface waters 

as a result of this proposal. 

b. Ground: 

1) Will ground water be withdrawn, or will water be discharged to 

ground water? Give general description; purpose, and approximate 

quantities if known. 

There will be no groundwater withdrawn as a result of this 

proposal. 

There will be no water discharged to groundwater as a result of 

this proposal. 

c. Water runoff (including stormwater): 

1) Describe the source of runoff (including storm water) and method 

of collection and disposal, if any (include quantities, if known). Where will 

this water flow? Will this water flow into other waters? If so, describe. 

The proposal involves existing county roadways. There will be 

no increase in run -off or any alteration in the method of collection as a 

result of this proposal. 

2) Could waste materials enter ground or surface waters? If so, 

generally describe. 

The proposal involves existing county roadways. There will be 

no increase in run -off or any alteration in the method of collection as a 

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Appendix 

result of this proposal. There will be no increase in waste materials as 

a result of this proposal. 

d. Proposed measures to reduce or control surface, ground, and 

runoff water impacts, if any: 

There are no proposed measures to reduce or control impacts to 

surface, ground, and run -off water as a result of this proposal. 

other 

4. Plants 

a. Check or circle types of vegetation found on the site: 

___ deciduous tree: alder, maple, aspen, other 

___ evergreen tree: fir, cedar, pine, other 

shrubs ---

___ grass 

---pasture 

--- crop or gram 

---wet soil plants: cattail, buttercup, bullrush, skunk cabbage, 

___ water plants: water lily, eelgrass, milfoil, other 

___ other types of vegetation 

The proposal involves existing roads located throughout 

Okanogan County. The roadways are already developed so there will 

be no vegetation removal from or near the road surfaces. 

b. What kind and amount of vegetation will be removed or altered? 

No vegetation will be removed or altered as a result of this 

proposal. 

c. List threatened or endangered species known to be on or near the 

site. 

The proposal involves existing roadways located throughout 

Okanogan County. There is no endangered plant life on the existing 

roadways. 

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d. Proposed landscaping, use of native plants, or other measures to 

preserve or enhance vegetation on the site, if any: 

There will be no landscaping as a result of this proposal. 

5. Animals 

a. Circle any birds and animals which have been observed on or 

new the site or are known to be on or near the site: 

birds: hawk, heron, eagle, songbirds, other: 

mammals: deer, bear, elk, beaver, other: 

fish: bass, salmon, trout, herring, shellfish, other. 

The proposal involves existing roadways located throughout 

Okanogan County. All species with a presence in Okanogan County 

may be at times be new an affected roadway. The proposal does not 

create any new roads or open any roads not currently open to vehicle 

travel. The number of average daily trips is not anticipated to increase 

to a point where vehicle density on the roads will cause a significant 

increase in animal/ vehicle collisions. 

b. List any threatened or endangered species known to be on or near 

the site. 

The proposal involves existing roadways located throughout 

Okanogan County. All endangered or threatened species with a 

presence in Okanogan County may at times be near an affected 

roadway. The proposal does not create any new roads or open any 

roads not currently open to vehicle travel. The number of average 

daily trips is not anticipated to increase to a point where vehicle density 

on the roads will cause a significant increase in animal/vehicle 

collisions. 

c. Is the site part of a migration route? If so, explain. 

The proposal involves existing roadways located throughout 

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Appendix 

Okanogan County. The existing roads cross the mule deer migration 

routes (see attached map). The proposal does not create any new roads 

or open any roads not currently open to vehicle travel. The number of 

average daily trips is not anticipated to increase to a point where 

vehicle density on the roads will cause a significant increase in 

animal/vehicle collisions. 

d. Proposed measures to preserve or enhance wildlife, if any: 

There are no new measures to preserve or enhance wildlife as a 

result of this proposal. 

7. Environmental health. 

a. Are there any environmental health hazards, including exposure 

to toxic chemicals, risk of fire and explosion, spill, or hazardous waste, that 

could occur as a result of this proposal? If so, describe. 

There are no environmental health hazards as a result of this 

proposal. 

1) Describe special emergency services that might be required. 

There are no special or additional emergency services as a result 

of this proposal. 

2) Proposed measures to reduce or control environmental health 

hazards, if any: 

There are no proposed measures to reduce or control 

environmental health hazards. 

b. Noise 

1) What types of noise exist in the area which may affect your 

project (for example: traffic, equipment, operation, other)? 

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The proposal involves county roads already open to vehicle 

travel. The current vehicle noise will not affect this proposal. 

2) What types and levels of noise would be created by or associated 

with the project on a short-term or a long -term basis (for example: traffic, 

construction, operation, other)? Indicate what hours noise would come 

from the site. 

The proposal will result in vehicle noise in areas already open to 

vehicle travel. The number of average daily trips is not anticipated to 

increase to a point where vehicle density on the roads will cause a 

significant increase in vehicle noise. Noise suppression requirements 

are currently regulated through RCW 46.09.457 and RCW 46.09.470. 

3) Proposed measures to reduce or control noise impacts, if any: 

There are no measures proposed to reduce or control noise 

impacts. 

8. Land and shoreline use 

a. What is the current use of the site and adjacent properties? 

The site of this proposal is currently used as county roads. 

b. Has the site been used for agriculture? If so, describe. 

The site has not been used for agriculture since the construction 

of the county roads. 

c. Describe any structures on the site. 

The only structures are paving or road surface treatments, 

guardrails and other traffic safety devices, and regulatory and advisory 

roadway signs. 

f. What is the current comprehensive plan designation of the site? 

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Appendix 

The proposal involves existing county roads which transverse a 

variety of comprehensive plan classifications. 

g. If applicable, what is the current shoreline master program 

designation of the site? 

The proposal involves existing county roads which transverse a 

variety of SMP classifications. 

h. Has any part of the site been classified as an "environmentally 

sensitive" area? If so, specify. 

No roadways in this proposal have been classified as sensitive 

areas. 

1. .Proposed measures to ensure the proposal is compatible with 

existing and projected land uses and plans, if any: 

Public roadways are a compatible and/or permitted use in all 

zones. 

10. Aesthetics 

c. Proposed measures to reduce or control aesthetic impacts, if any: 

There are no proposed measures to control aesthetic impacts. 

11. Light and glare 

a. What type of light or glare will the proposal produce? What time 

of day would it mainly occur? 

Vehicle illumination and marker lights will be used on roadways 

already open to vehicle traffic. 

b. Could light or glare from the finished project be a safety hazard 

or interfere with views? 

This proposal does not create any light or glare beyond the 

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Appendix 

operation of vehicles on existing county roads none of which creates a 

safety hazard or interferes with views. 

c. What existing off -site sources of fight or glare may affect your 

proposal? 

No off -site source of light or glare will affect this proposal. 

d. Proposed measures to reduce or control light and glare impacts, if 

any: 

There are no proposed measures to control lig4t or glare 

impacts. 

12. Recreation 

a. What designated and informal recreational opportunities are in 

the immediate vicinity? 

The proposal involves county roads currently open to vehicle 

traffic. The road system is used for transportation to the recreational 

locations found in Okanogan County. 

b. Would the proposed project displace any existing recreational 

uses? If so, describe. 

The proposal will not displace any recreational uses. 

c. Proposed measures to reduce or control impacts on recreation, 

including recreation opportunities to be provided by the project or 

applicant, if any: 

There are no proposed measures to reduce or control impacts on 

recreational opportunities. 

14. Transportation 

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a. Identify public streets and highways serving the site, and describe 

proposed access to the existing street system Show on site plans, if any. 

The proposal involves existing county roads already open to 

vehicle travel. 

( see attached map) 

f. How many vehicular trips per day would be generated by the 

completed project? If known, indicate when peak volumes would occur. 

It is not known the total number of vehicle trips per day 

generated by this proposal. It is not anticipated that any increase in 

vehicle trips will result in reduced level of service classification for any 

road in the proposal. It is likely peak volumes will occur during 

daylight hours in the spring, summer, and fall. 

g. Proposed measures to reduce or control transportation impacts, if 

any: 

There are no proposed measures to reduce or control 

transportation impacts. 

15. Public services 

a. Would the project result in an increased need for public services 

(for example: fire protection, police protection, health care, schools, other)? 

If so, generally describe. 

The proposal will not result in an increased need for public 

services. 

b. Proposed measures to reduce or control direct impacts on public 

services, if any. 

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There are no proposed measures to reduce or control impacts on 

public services. 

CP at 253-66. 

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APPENDIXB 

Town of Winthrop Planning Commission Letter to Perry Huston 

To date, the Town of Winthrop has declined to take a position on 

ATV use in town, due in large part to the fact that the Town Council would 

like to know how ATV traffic would be accessing Winthrop. In light of 

this fact, the Planning Commission find that the SEP A Checklist provides 

inadequate analysis of the impacts of opening all roads within the speed 

limit range proposed, and does not address the need for contiguous routes. 

We think that a more complete analysis should be performed including the 

following items of concern for us as a local jurisdiction within Okanogan 

County: 

Under Section 8, Land and Shoreline Use, the Checklist states that 

none of the roads are classified as "environmentally sensitive," however it 

does not address whether these roads are in proximity or access areas that 

are environmentally sensitive or "critical areas." This needs to be included 

in the analysis to truly determine the impacts of the proposal. 

Under section 12, Recreation, the checklist states there are no 

impacts to recreation other than to provide another means of transportation 

to recreational locations. We suggest you consider where these routes 

connect to each other and to logical trip beginning and endpoints, whether 

there are adequate parking/trailhead facilities available in key locations, and 

how ATV use will interact with other forms of recreation. 

Under Section 14, Transportation, we suggest you include analysis 

of how the roads being opened connect to local jurisdictions such as 

Winthrop, and how the traffic pattern may be affected around population 

centers of the County. Since the proposal does not include a network of 

roads that connect in a way' that creates contiguous routes, we are curious 

how the A TVs will arrive on these sections of road, and if there is any 

consideration of parking for trucks and trailers. 

Additionally under Transportation, we believe the checklist needs to 

include a reasonable estimate of the amount of traffic that this proposal will 

generate. Further it should describe under Section B.2. Air and Section 13. 

7 .b. Noise any potential impacts based on those traffic generation estimates. 

Under Section 15, Public services, the Checklist concludes there are 

no impacts to public services. We are concerned that enacting this proposal 

without adequate analysis could result in impacts to local law enforcement. 

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Without adequate connections to parking and logical routes, there could be 

trespass and illegal travel across private property to reach desirable 

destinations. This could easily result in increased complaints and response 

time for local law enforcement. 

CP at 333-34. 

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APPENDIXC 

May 2, 2014, Methow Valley Citizens Council and Conservation Northwest Joint 

Submittal to the Okanogan County Office of Planning & Development 

MVCC and CNW believe that in reaching a DNS, the County failed 

to analyze 1) the likelihood of significant impacts on sensitive lands and 

waters, including fish and wildlife habitat, from illegal off-road riding 

facilitated by opening certain roads to ATVs; 2) the impacts on traffic of 

A TVs traveling on roads with speed limits over 3 5 mph, either because of 

confusion over where A TVs are and are not allowed, or because the 

operator wants to traverse an unauthorized road segment with a higher 

speed limit to access an isolated authorized road segment; 3) the impacts on 

public services from the need for additional traffic patrol and enforcement 

to keep ATVs from riding off-road and the need to post signs indicating 

where A TVs are and are not allowed; and 4) the actual traffic impacts of 

additional vehicles on the roads that would be open to ATVs under this 

proposal. 

1. The evidence of damage to lands, waters, vegetation, and fish and 

wildlife habitat from illegal off-road riding is overwhelming, and the 

County has failed to consider the significant impacts of Illegal off-road 

riding that can be anticipated from opening roads in environmentally 

sensitive areas. 

In many responses in the SEP A Checklist, the County presumes that 

ATVs are exactly like all other vehicles that are already allowed on the 

roads and considers only the impacts to the road itself from opening the 

road to ATVs. On the contrary, the very name "all-terrain vehicles" means 

that these vehicles are designed, marketed and intended for off-road use. 

Unfortunately, not all operators stay on the road when they are riding in a 

vehicle that was designed and intended for off-road use, even when offroad use is prohibited. This statement is not speculation; it is established 

fact. In Appendix B we have included references to numerous studies and 

observations of damage to land from illegal off-road riding of ATVs. In 

light of the overwhelming evidence, it is simply unreasonable and 

inconsistent with SEP A to ignore the fact that illegal off-road riding is 

widespread and to assume that all ATV operators will obey all laws. 

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For example, under the topic of Earth on page 3, the checklist asks 

about steepness of slopes, kind of soils affected, history of unstable soils, 

likelihood of erosion, and measures to control erosion. Every response 

asserts that only "already existing roadways" will be affected. This view 

turns a blind eye to the probability of illegal off-road operation of ATVs. 

The evidence shows, however, that off-road riding is likely and that it will 

cause erosion, particularly in areas of steep slopes or unstable soils. 

Consequently, the County must assume some amount of illegal riding and 

assess impacts on soils adjacent to roads, especially in areas of steep slopes 

or unstable soils. 

Similarly, in the Environmental Element of Water on page 4, there 

are questions as to whether the proposal is adjacent to or within 200 feet of 

surface water bodies, including "year-round and seasonal' streams, 

saltwater, lakes, ponds, wetlands." The County's stock answer is the same 

as for the element of "Earth:" only "existing county roadways" will be 

affected. Again, this answer ignores the fact that off-road riding can 

adversely affect water bodies either by A TVs riding directly through 

streams or by causing erosion that can end up in streams. 

The checklist continues in the same vein. n responses to questions 

regarding the next two elements - Plants and Animals - the County 

repeatedly asserts that there is no vegetation affected and no animals 

affected because ATV travel will-take place on "existing county 

roadways." There is no consideration of impacts to vegetation or wildlife 

adjacent to, or made accessible by, existing roads. Once again, it is 

incumbent on the County to acknowledge that ATVs are not like most other 

vehicles in that they are designed and intended for off-road travel. The 

literature is replete with examples of serious damage to vegetation and, 

wildlife habitat - including spawning streams for endangered fish - from 

illegal off-road riding. (See especially studies referenced by Backcountry 

Hunters & Anglers, Appendix B.) 

Other responses in the checklist fail to consider the likelihood of 

damage from off-road riding. On page 8, the checklist asks: "Has any part 

of the site been classified as an environmentally sensitive area? If so, 

specify." The County's answer is: "No roadways in this proposal have been 

classified as sensitive areas." Similarly, in response to question 4, page 13, 

the County acknowledges that the roads to be opened to ATV traffic "are in 

some cases located next to areas under regulatory protection or eligible for 

regulatory protection," but that this is not an issue because "the proposal 

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involves existing county roads currently open to vehicle traffic." Off-road 

damage is not mentioned. Finally, in response to question 2, page 13, the 

County states that "the proposal, involves existing county roads already 

open to vehicle travel. There will be no impacts to plants, fish, or marine 

life. The proposal does not create any new roads or open any roads not 

currently open to vehicle travel." 

Many miles of roadways in the proposal travel through, or give 

access to, Washington Department of Fish & Wildlife (WDFW) Wildlife 

Areas or state parklands. (See attached road list, Appendix A that shows 

roads in the proposal that access these public lands in the Methow Valley.) 

Surely there are environmentally sensitive areas on these lands, but the 

County has failed to ascertain the extent to which these areas may be 

adversely affected by off-road riding facilitated by this proposal. WDFW 

and State Parks prohibit ATVs both on and off road, yet the proposal would 

provide A TV access to and through these lands, thus creating an 

enforcement nightmare for these agencies. 

Many other miles likely are adjacent to spawning streams of at least 

one of the County's three federally listed threatened or endangered fish 

species, but the County has failed to do any surveying or mapping to 

determine what protected species or their habitat may be made vulnerable 

to ATV access by this proposal. On page 14, the checklist asks: "How 

would the proposal be likely to affect land and shoreline use, including 

whether it would allow or encourage land or shoreline uses incompatible 

with existing plans?" The County response is: "The county roads are in 

some cases located next to areas, under shoreline protection." This is 

another example of sensitive areas that may be affected by the proposal. 

In sum, there is no rational basis for assuming that there will be.no 

damage to adjacent or accessed lands from illegal off-road riding. To the 

contrary, there is ample evidence that the only reasonable assumption in 

conducting a SEP A analysis on this proposal is that there will be some 

illegal riding and consequent damage to soils, water bodies, shorelines, 

vegetation, wildlife, protected species, and governmentally protected 

sensitive areas. To reduce the likelihood of that damage, MVCC and CNW 

request that roads that travel through, or provide access to, WDFW lands or 

state parklands be removed from this proposal. In the alternative, we 

request that the County conduct a comprehensive survey to determine 

where roads give access to sensitive lands, waters, or fish and wildlife 

habitat and remove those roads from the proposal. 

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2. The County failed to consider the impacts on traffic of ATVs 

traveling on roads with speed limits over 3 5 mph, either because of 

confusion over where A TVs are and are not allowed, or because the 

operator wants to cross a segment with a higher speed limit to access an 

isolated open segment. 

The proposal includes many isolated short segments that allow 

longer rides only if the operator illegally rides on roads that have speed, 

limits over 35 mph. (See Appendix A for a list of these roads in the 

Meth ow Valley.) It is likely that some riders will ride on segments or roads 

with higher speed limits, either because of confusion over where A TVs are 

and are not allowed, or because the operator wants to traverse an 

unauthorized segment with a higher speed limit to access another 

authorized road or segment. The County has not indicated intent to install 

signs to make it clear where ATVs are not allowed, and to do so would be 

prohibitively expensive. The County assumed that despite the disconnected 

patchwork of short segments connected only by roads or segments with 

higher speed limits, all A TV riders would both 1) understand where they 

may and may not ride, and 2) stay only on roads on which ATVs are 

allowed. This is an unsupported and unrealistic assumption. 

In the Methow Valley alone, MVCC and CNW have identified at 

least twenty six (26) road segments, less than one mile long and ten ( 10) 

between one and two miles long. In addition, MVCC has identified other 

road segments longer than two miles which offer no realistic opportunity 

for A TV travel due to being loop roads that begin and end at roads closed 

to ATVs, and no parking for trailers is available. 

To correct this error, MVCC and CNW request that the County 

remove from the proposal all road segments less than two miles long and 

those loop roads which connect only to roads with speeds greater than 35 

mph. Those segments for the Methow Valley are shown in Appendix A 

( columns K, L, and N). 

3. The County failed to consider the impacts on public services of 

the need for additional traffic enforcement to keep ATVs from riding offroad and to post signs indicating where A TVs are and are not allowed. 

Already thin local police and sheriff resources will be needed to 

enforce the laws governing ATVs. These include: licensing, safety 

equipment, underage riders, speeding, and most especially responding to 

complaints about riding on closed roads or off-road. To reduce the impacts 

of off -road riding and riding on roads with speed limits over 35 mph 

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discussed above, the County should, provide additional traffic enforcement 

and post signs indicating where A TVs are and are not allowed. This would 

increase the cost of both police protection and public works. Yet the 

County states that "the proposal will not result in an increased need for 

public services." (Page 12, question 15) Either necessary signage and 

enforcement will be lacking, or there will be an impact on public services 

that must be evaluated and disclosed. 

4. The County failed to consider the actual traffic impacts of 

additional vehicles on the roads that would be open to A TVs under this 

proposal. 

The County admits that it does not know the number of additional 

vehicle trips per day or at peak times ( e.g., weekends and holidays in 

spring, summer, and fall), and it made no attempt to estimate those 

numbers. (See page 11, response to question 14.f: "It is not known the total 

number of vehicle trips per day generated by this proposal. ... It is likely 

peak volumes will occur during daylight hours in the spring, summer, and 

fall.") Consequently, the County does not know whether the increase in 

traffic by itself - even without off-road riding - will increase impacts to 

environmental elements such as road surface erosion, dust irritants, 

animal/vehicle collisions, or other environmental elements. Yet the County 

states without evidence that "there is no erosion anticipated as a result of 

this proposal" (page 3, response to question 1.f) and that "the number of 

average daily trips is not anticipated to increase to a point where vehicle 

density on the roads will cause a significant increase in animal/vehicle 

collisions." (Page 6, response to question 5.a, b, and c, and page 13, 

response to question 2) 

Surely there is information available on the amount of traffic 

generated by opening roads to ATVs, since there are 336 miles of roads in 

the County that are already open to A TVs. This information should be used 

to estimate the increase in traffic - especially at peak times - that can [be] 

expected from this proposal. If this information is not available, it is 

because the County has failed to monitor the impacts of opening roads to 

ATVs, as it should have before opening more miles of roads. Required 

mitigation measures for any proposal opening roads to A TVS should be 1) 

monitoring the increase in vehicle traffic on roads popular with A TVs and 

of animal/vehicle collisions on these roads; 2) increased road maintenance 

where there is significantly more traffic due to the presence of ATVs; and 

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3) closure of roads in which there is an increase in animal/vehicle 

collisions: 

Requested Action 

MVCC and CNW request that you withdraw the DNS and issue a 

Determination of Significance on the proposal. Following that 

determination, we ask that you either 1) prepare an environmental impact 

statement for the proposal, or 2) issue a new proposal and prepare a SEP A 

analysis for the new proposal, including a request for public comment. 

The new proposal should: 

Remove all roads in Appendix A that are shown in red. (The reason 

for removing a road from the proposal is shown in the columns following 

the road name. There may be more than one reason for removing a 

particular road.) In particular, we request that roads that travel through, or 

give access to, WDFW lands or state parklands be removed from this 

proposal. In the alternative, we request that the County conduct a 

comprehensive survey to determine where roads give access to sensitive 

lands, waters, or fish and wildlife habitat and remove those roads from the 

proposal. 

Include a plan with cost estimates for timely installation of signs to 

indicate where A TVs are and are not allowed. 

Include a plan with cost estimates or monitoring increases in vehicle 

traffic on popular A TV routes and performing added maintenance on roads 

with significantly increased traffic. 

Include a plan with cost estimates for monitoring animal/vehicle 

collisions on popular A TV routes and closing roads with a significant 

increase in collisions. 

CP at 336-40 (footnote omitted). 

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APPENDIXD 

A sample of ATV ordinance supporter comments 

I have been riding ATV's in Okanogan County and other counties in 

this state for over 25 years. During that time I estimate I have ridden 

20,000 plus miles on four different ATV's I've owned. Based on this 

experience and my experience as an Okanogan County Deputy Sheriff, I 

believe that it is totally safe and appropriate to open these roads to ATV's 

properly licensed and driven by licensed drivers. 

Thomas Windsor 

Orv's handle the gravel dnr, usfs, and county roads better than cars; 

trucks, and motorcycles. 

Thank you 

Gary L Allard 

My husband and I are senior's [sic] and are hoping our County 

Commissioner's [sic] are able to open all existing County roads with speed 

limits of 35 or under. 

Rodney and Marie Maberry 

I am I 00% in favor of A TVs on ALL county roads no matter what 

the posted speed is. I though[t] this issue has ready been resolved ... 

seems silly to me how some folks like to stir up trouble trying to prevent 

others from recreating. 

Danny M Whisler 

I am a resident of Okanogan County in the Upper Rendezvous near 

Winthrop. I just wanted to comment that the..county is doing a good job in 

offering this proposal. Since there are existing roads throughout the county 

and National Forests that already permit travel by motorized vehicles 

including cars, trucks, dirt bikes, etc., there is no sense or point in 

restricting ATV's, UTV's, SSV's or similar vehicles from using these same 

roads. 

As an avowed environmentalist, I would strongly resist the creation 

of additional roads in these areas. But since these roads already exist AND 

motorized traffic is permitted, then they should be opened to A TV's. The 

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existing laws regarding off-road traffic must be enforced rigorously to 

prevent ruining the beautiful aesthetic qualities of the County. The 

problems, where they do exist, are with the drivers NOT the vehicles. 

Dan McF eeley 

I am a resident of the Meth ow Valley, specifically located on the 

East Chewuch Rd. I watch many trucks with loud exhaust and endless 

motor bikes with no exhaust drive right by my house all day long. I would 

rather hear a little A TV go riding by on their way to spend money in the 

Town of Winthrop. With my Recreation degree from Pacific Lutheran 

University, I know how important recreation is in our lives. Whatever your 

sport is, it is important to have moments in our lives to release stress. 

Hiking, biking, snowmobiling, A TV riding, and even bird watching have 

positive effects. It is really sad to see people of the Methow be so 

prejudice[ d]. Choosing to be a Prejudice Recreationalist is not fa[i]r to the 

people whose sport they are trying to control. Everyone will learn to get 

along. 

I support all ATV Riding in all of Okanogan County. I don't even 

own an ATV. 

Craig Stahl, Winthrop 

We have received a copy of the Notice Packet re: Opening ATV 

Routes in Okanogan County and would like to comment on the SEP A 

Determination of Non-Significance. We ask that our comments be 

included in the official project record. 

Premier Polaris is the largest - stocking Polaris dealership in 

Washington state, representing approximately 10,000 ATV enthusiasts that 

are interested in preserving access to our public lands, increasing 

recreation-based revenue for Washington's rural communities, and 

fostering a new culture of responsible ATV riding. We are members of the 

Sky Valley Chamber of Commerce, the Port-to-Pass Recreational 

Innovation Zone and a statewide collaborative that led to the passage of 

ESHB 1632 (regulating the use of off-road vehicles) in 2013 and HB 2151 

(the Washington State Trails Act) in 2014. 

We would like to offer the following general comments re: the 

above-mentioned ordinance: 

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1. We support the ordinance allowing the operation of All Terrain 

Vehicles (A TVs) on approximately 597 .23 miles of existing county roads 

with a speed limit of 35 mph or less. 

2. With respect to emissions, the U.S. Environmental Protection 

Agency (EPA) long-ago [sic] established emissions standards for off-road 

vehicles (ORVs). All ORVs sold in Washington are required to comply 

with the emissions limits in those standards. By establishing and enforcing 

such standards, the EPA made a policy determination that ORV emissions 

levels are acceptable for the vehicles to be used throughout the United 

States. 

3. Washington state law limits ORV sound to 86 dB(A) when tested 

in accordance with SAE J33 la. By comparison, a vacuum cleaner emits 

sound of 80-89 dB(A). 

4. With respect to alleged damage to existing roads, Washington 

state law limits ORV weight to 2,000lbs. By comparison, a 2014 Jeep 

Wrangler weighs over 3,700 lbs. In addition, ORVs generally have soft, 

low-pressure tires, which may limit surface damage. 

Please include this information in the SEP A analysis and place our 

name on the mailing list of interested parties so that we may be kept 

informed of your progress on this matter. We can be reached at 360 - 794-

8669 or via email info@premierpolaris.com should you have any questions. 

Lisa Driscoll, Owner Randy Driscoll, Owner 

Monroe, WA 

Please log my comments in recognition and agreement with the 

determination of non-significance in regard to allowing the operation of All 

Terrain Vehicles (ATV's) on approx. 597.23 miles of existing county roads 

with a speed limit of 35 mph or less. I am in full support of opening the 

suggested roads to allow A TV's to travel on them. My vacation dollars 

will be spent locally with these roads opening rather than those dollars 

going to Montana or Idaho as they have done for a couple years now! It is 

only common sense that lighter more fuel efficient vehicles allowed on our 

roads is more environmentally conscious, just the opposite of having a 

significant impact on our environment. 

Doug Smith, Puyallup 

The Association of Okanogan County Snowmobile Clubs is 

composed of all of the snowmobile clubs in Okanogan and Ferry Counties 

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plus the Mountain Trails Grooming Association. Many, if not most, of the 

Association Clubs' members are ATV riders as well as snowmobile riders. 

The Association supports the opening of 3 5 MPH County roads to 

ATV use. 

Thomas Windsor 

CP at 370,371,378,385,387,395,398,399,401. 

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APPENDIXE 

2011 compilation by Backcountry Hunters & Anglers of scientific studies 

Natural resources are affected by ATV use (Meadows et al. 2008). 

All-terrain vehicle use affects soil and hydrologic function primarily 

through soil compaction, increased soil strength, and removal of the forest 

litter layer in temperate environments (Ouren et al. 2007). Soil compaction 

and the removal of the forest litter layer can reduce vegetation growth 

(Webb et al. 1978) and is a primary factor in accelerated erosion rates 

(Megahan 1990) .... 

Compaction resulting from ATV travel reduced hydraulic 

conductivity 8% at the MT [Montana] site, 59% on the LA [Louisiana] site, 

and 51 % at the WA [Washington] site (Meadows et al. 2008). The changes 

in soil structure and physical properties described by Meadows et al. (2008) 

highlight the potential for A TV use to result in significant degradation of 

hydrologic function over relatively short time frames. 

All-terrain vehicle travel increases erosion and sediment 

concentrations by removing soil cover and compacting the soil thus 

decreasing infiltration. Sediment delivery to streams via erosion is a result 

of ATV travel (Misak et al. 2002). Increased sediment loading decreases 

water quality, fish habitat quantity and quality, and fish reproductive 

success (Newcombe and MacDonald 1991). The increase in runoff and 

sediment transport can be substantial. Meadows et al. (2008) compared the 

effects of A TV traffic across seven sites on diverse landscapes ranging 

from the Wenatchee National Forest in Washington State to the Land 

Between the Lakes in Kentucky and concluded that "ATV trails are highrunoff, high sediment producing strips on a low-runoff, low sediment 

producing landscape." ... Meadows et al. (2008) reported a decline in soil 

cover from 70% on undisturbed sites adjacent to ATV trails to 1 7 .6% after 

40 A TV passes in Montana. The decline in soil cover at the MT site 

resulted in increased surface runoff and suspended sediment concentrations. 

Suspended sediment concentrations in the runoff increased 50% over predisturbance levels after 40 ATV passes. . . . Suspended stream sediments 

rose approximately 94 X downstream of an A TV trail crossing relative to 

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sediment concentrations above the ATV trail crossing. The results of the 

paired watershed study led the authors to conclude that increases in 

suspended stream sediment were a result of a combination of highly 

erodible silt loam soils (common in the Inland Northwest of the United 

Sates) and A TV trails acting as conduits for suspended sediment (Ricker et 

al. 2008) .... 

Impacts of ATV traffic on water quality and aquatic systems are not 

limited to increases in suspended stream sediments. A TV trails funnel 

water that dislodges contaminants which end up in streams, rivers and lakes 

(Ouren et al. 2007). Contaminants can also be directly introduced into 

aquatic systems through oil and fuel spills and wind deposition of emission 

particulates that are transported in dust migration, settle onto vegetation, 

and subsequently washed off leaf surfaces by rain and snow and moved by 

surface water run-off. All-terrain vehicle operation in or near streams and 

waterways poses a serious water pollution threat (Havlick 2002). This can 

have detrimental impacts on populations of aquatic animals. Garrett (2001) 

(as cited in Taylor 2006) reported that environmentally sensitive aquatic 

species (including fish) were absent from OHV impacted sites on the 

Nueces River in Texas, while unimpacted sites hosted numerous 

environmentally sensitive species. The magnitude of the effect ATV use 

has on water quality is influenced by trail features including trail curvature 

and slope percentage. 

ATV impacts on vegetation are not limited to removal of vegetative 

soil cover. Reduced plant growth rates and populations of native species 

coupled with increases in non-native and pioneering plant species are 

directly related to ATV travel (Ouren et al. 2007). Destruction of 

biological soil crusts in desert environments reduces nitrogen fixing 

organisms that are the dominant source of nitrogen in and ecosystems 

(Belnap 2002). This negatively affects plant performance because nitrogen 

is the element most limiting plant growth in desert environments other than 

water (Romney et al. 1978) ..... 

This review of the impact of ATV use on the physical environment 

suggests that the impacts are not only universal and cumulative, but that 

much of the damage associated with their operation can be induced by a 

limited number of users over short time periods. Several researchers 

suggest the cumulative impacts of A TV use exceed the lands ability to 

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recover naturally, and that recovery to pre-disturbance conditions can take 

generations. Additionally, the effects of A TV traffic on -site result in 

environmental consequences off-site (Ouren et al. 2007), significantly 

increasing the amount of land affected by localized ATV use (Brooks and 

Lair 2005). For example, Meadows et al. (2008) asserts that while a 

meadow may recover from a single pass in a relatively short time frame, 

multiple passes often result in damage that natural processes are unable to 

mitigate. This is supported by Lathrop and Rowlands (1983) who state 

unequivocally that "restoration ( of sites degraded by ORV' s) as a 

management objective is for all practical purposes unattainable as long as 

ORV activity occurs." 

Other critical points on the impacts of ATV use on the physical 

environment are: 

The impacts of ATV use are cumulative, universal, and can be 

achieved by low intensity traffic over short time periods. 

A TV use effects soil and hydrologic function primarily through soil 

compaction, increased soil strength, removal of the forest litter layer, and 

destruction of soil crusts. 

These changes in soil properties increase erosion and stream 

sediment deposition and decrease plant productivity. 

Seasonal restrictions on ATV use are necessary to limit the impact of 

ATV use on soils, vegetation, and watersheds. 

Restricting A TV use in areas of low road density is necessary to 

reduce the spread of invasive species and protect the community structure 

of native species. 

A TV impacts on the environment are similar regardless of the type 

of A TV. Recovery from the impacts of A TV use to pre-disturbance 

conditions can take generations. 

Restoring sites degraded by A TV's is unfeasible as long as ATV use 

continues. 

All-terrain vehicle travel can have a profound effect on all forms of 

wildlife. Concerns about the effect of off-highway travel on wildlife 

include: direct mortality (Bury et al. 1977; Bury et al. 2002), habitat 

fragmentation (Ouren et al. 2007) and reductions in habitat patch size the 

size of an unfragmented "patch" of land that supports at least one 

population of wildlife (Reed et al. 1996; Forman et al. 2003), increases in 

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the edge: interior habitat ratio (reductions in animal populations at the edge 

of forest habitats referred to as the "edge effect"), and alteration of animal 

behavior (Canfield et al. 1999; Rowland et al. 2000; Wisdom et al. 2004a). 

Although direct mortality of ungulates resulting from collisions with 

ATV' s is low, mortality of several species of reptiles have been 

documented due to off-highway travel (Brooks 1999; Grant 2005) . 

. . . Habitat fragmentation can disrupt wildlife movements between 

and within habitats (Forman and Alexander 1998; Jackson and Griffin 

1998), which can have negative consequences for endemic species and may 

encourage non-native and invasive species propagation (Lovallo and 

Anderson 1996; Jackson and Griffin 1998). . . . Habitat fragmentation can 

reduce reproductive success among nesting birds and is believed to be the 

main culprit in population reductions in some species of forest birds 

· (Robinson et al. 1995). 

Alteration of animal behavior resulting from disturbance (motorized 

or non - motorized) ranges from immediate, short term temporary 

displacement to permanent abandonment of favored feeding areas (Geist 

1978). According to Trombulak and Frissel (2000), animal behavior is 

modified through five mechanisms: 

1. altered movement patterns 

2. changes in home range 

3. altered reproductive success 

4. altered escape response 

5. altered physiological state ... 

The effect of ATV travel on elk, and more generally, the effect of 

roads on elk, has been a focal point for researchers because of the 

documented aversion elk have to roads open to motorized travel ( Cole et al. 

1997; Rowland et al. 2000), and for their social, economic, and recreational 

importance (Naylor et al. 2009) .... 

Elk ( especially economically and biologically significant bull elk) 

preferentially use areas devoid of motorized activity. 

Elk require large blocks of non-motorized habitat for security. 

CP at 73-89. 

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APPENDIXF 

Letters and Declarations from Okanogan County Residents to the Board of County 

Commissioners 

On June 11, 2014, Pearl and Howard Cherrington sent the Board of County 

Commissioners photographs taken near Twisp River Rd that showed damage caused by 

off road vehicles. The speed limit in the location of damage was 40 m.p.h. The 

Cherringtons alleged that operation of ATVs in unlawful areas was a continuous problem 

and that, despite reporting the illegality to authorities, riders leave the area before police 

arrive. 

John Olson, of Winthrop, wrote to the Okanogan County Commissioner about a 

new neighbor: 

As we all know, ATVs have the capability of travelling across most 

landscapes, hence the term "all terrain." Manufacturers actually discourage 

ATV use on paved roads while extolling their abilities on all other surfaces. 

I have personally witnessed ATV abuses on public lands in southern 

Idaho where I lived and worked for 27years, but I will also describe to you 

our recent experiences with illegal A TV use and impacts in Okanogan 

County. 

New neighbors recently moved into a rental house along the Methow 

River near our home and property. They are surrounded by private 

property and roads (Wolf Creek Road) closed to ATV use. In May of this 

year, we found them riding their ATVs on our property and damaging 

vegetation within the river corridor. They subsequently used a private road 

to access Wolf Creek Road and rode their A TVs on that road to a location 

unknown to us. I reported that incident to the Okanogan County Sheriffs 

Department and was told that they did not know if ATV use on Wolf Creek 

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Road was legal or not. They said they would check with the County 

Commissioners, but I never heard from them again. 

After this episode, our new neighbors then used their A TVs to travel 

on the Methow Valley Sport Trails Association (MYST A) ski trail. This 

trail is closed to motorized use and, again, is located on private property 

where owners have granted an easement to MVSTA for non-motorized use. 

A particularly galling aspect of these incidents is the attitude of these 

A TV users to disregard any private property rights and just charge ahead 

with travelling over any terrain accessible to them. They never even had the 

decency to ask permission before cruising the private properties on their 

machines. 

This is just one example of the impacts that are reasonably certain to 

occur with expanded ATV use in Okanogan County. Any reasonable 

person would recognize that such impacts will occur and need to be 

considered in the environmental evaluation of such expanded A TV use. 

The infringement on property rights, the impact to natural resources, and 

the limited ability of law enforcement personnel to respond to violations are 

all legitimate reasons to more fully evaluate the impacts of expanded ATV 

use in Okanogan County 

CP at 157. 

Lawrence David Hooper, a sixty-five-year-old resident of Twisp, submitted a 

declaration. Hooper averred: 

On Saturday, May 25th, 2013, my wife, Erika Stephens, and my 

stepdaughter, Rachel, returned from dinner in Winthrop at approximately 

7: 15 pm. Rachel and I went down into the house and Erika stayed outside 

to feed the chickens. Five minutes later, Erika ran into the house saying 

that there were two men on an A TV who had driven right up onto our lawn, 

who were demanding to recover another ATV. She asked them to leave, 

having no idea what they were talking about, and they responded by calling 

her a "bitch." I called 911 and went up to see what was going on. 

I was met by two men (last name Volvotny, ifl remember correctly), 

one sitting on his ATV, glowering, and, the other, a younger man, 

approached me, and told me that he and his father, (referring to the man on 

the A TV) were in the Coast Guard, and he asked, "You do respect the 

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Military don't you?" I responded that I did not understand how the issue of 

my respecting or not respecting the military had any bearing on their 

trespassing on our land. Both men appeared to be drunk. While this is 

going on, I am simultaneously talking with the dispatcher from the 

Okanogan Sheriffs Department. She encouraged me to ask the two men to 

leave our property and wait for the Sherriff at the bottom of our driveway. 

This I did repeatedly, only to be met with hostile glares. At one point in 

this exchange, when Erika had come back up to our lawn, the father said, 

"We're in the Coast Guard. If you don't help us, we won't help you when 

you need the Coast Guard." Finally the younger one said, "We just want to 

retrieve our other ATV," and he pointed up the hill. "I mean, accidents 

happen!" he said. There, about 100 feet from one of our buildings, was a 

ruined ATV. It was explained to me that they had lost control of it on the 

top of the hill, which is also our property. The father claimed he had seen 

other ATVs on my land in the past (not to my knowledge, or to the 

knowledge of my neighbors who can see the side of my property not visible 

from our house). At this point the father and son, hoping to find a way to 

retrieve their wrecked A TV drove out my driveway, went back upon the 

hillside in back of our buildings, supposedly to survey away of approaching 

the wrecked ATV, in spite ofmy having explained to them that by doing so 

they would still be trespassing. At this time their two friends showed up 

below my house with a small flatbed trailer. And Deputy Ottis Buzzard 

and an officer from Twisp approached them. The father and the son seeing 

the officers went down the back side of my hill and drove down Balky Hill 

to the flatbed trailer and their friends, who were the actual owners of the 

wrecked, brand new ATV. 

Deputy Buzzard came up to our home and we rain him through the 

details of our encounter. He explained to us that we were legally obligated 

to let them take their ruined vehicle away. The two young men who o~ned 

the vehicle approached us and I explained very specifically how to 

approach the A TV to be retrieved. . . . I was hoping to minimize any 

damage to the land and vegetation by their 'having to drag the wrecked 

ATV. 

Erika and Rachel and I went back into the house and Deputy 

Buzzard left. It was dark when they finally drove up the hill with the 

Volvotny's ATV, but instead of following my instruction drove up within 

sixty feet of the house and dragged the wrecked vehicle down the hill, not 

on the fire break but however they found most convenient. 

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I was encouraged to contact Stephen King of the Conconully A TV 

club. I was told that he was very vocal about the need for ATVers to police 

themselves and act responsibly. I do not recall if I e-mail[ed] him or called 

and left a phone message. I received no response. A few days later my 

wife called him, and left a message; she never heard from him either. 

I suspect that the vast majority of ATVers are responsible and 

considerate people. We don't need to worry about them. We need to worry 

and clearly have reason to worry about those who are not considerate or 

responsible. ATVs are meant for off road travel. There will be damage to 

private property, there will be trespasses, there will be accidents that result 

in injuries, and possibly deaths. These all need to be given careful and 

clearheaded consideration when decisions are made about opening up roads 

to the use of ATVs. 

CP at 158-62. Hooper inserted a photograph of the damage to his land from dragging the 

ATV. CP at 61. 

Philip Millam also proffered a declaration to the Board of County Commissioners. 

Millam declared: 

I am a full time resident of the Meth ow Valley residing at ... 

Winthrop. I live close to lands managed by the Washington State 

Department of Fish and Wildlife (WDFW). 

In the summer of 2008 I was working on my former property on 

Lonesome Grouse Road near Winthrop when I heard noise from ATVs 

coming from WDFW land. The land is part of the Methow Wildlife Area, 

known as Little Cub Creek. The land lies between the Cub Creek Road and 

the Rendezvous Road. The land includes both riparian and shrub steppe. I 

walked to a vantage point, and saw four ATVs on WDFW land riding 

uphill toward my land. On one occasion they stopped and appeared to be 

cutting a wire fence separating the WDFW land from private land. As they 

approached my land, I fired two black powder blanks in the air from my 12 

gauge over and under shotgun. This appeared to get their attention. At no 

time did I point my gun in their immediate direction or threaten them. The 

A TVs departed my land forthwith, heading back in the direction from 

which they came. 

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In September or October of 2013 I was returning from the gun range 

near Perrygin State Park when I observed two ATVs riding on grassy lands 

belonging to WDFW,just off the Upper Bear Creek Road. They were 

doing "doughnuts" on the field, and leaving deep tire impressions. I 

stopped my truck, and politely informed the young riders that they were 

riding illegally on public land. Their reply was that they had heard that" ... 

it was OK to ride anywhere in Okanogan County." I assured them that that 

was not the case. They asked where they could ride legally, and I said I did 

not know, but that riding off-road on public lands was not legal. I then left 

the area, but as I looked back the ATVs continued to ride on WDFW lands. 

It is my belief, based on my experience with ATVs riding illegally 

on public land, that opening additional county roads to ATVs will only 

increase illegal riding and increase confusion among those ATV riders who 

would otherwise choose to ride legally. 

CP at 169-70. 

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APPENDIXG 

Letter from A TV Safety and Health Care Professionals to Board of Commissioners 

As individuals and organizations dedicated to reducing deaths and 

injuries caused by All-Terrain Vehicles (ATVs), we urge you to oppose 

efforts to allow recreational riding of ATVs on county roads. 

The proposed ordinance would open approximately 597 miles of 

county roads with a speed limit of 35 mph or less to ATVs. This expansion 

of ATV access to roads is contrary to public safety and puts the operator 

and others at risk of severe injury or death. 

ATVs should not be driven on public roads because driving ATVs 

on public roads is more dangerous than operating them off-road, ATVs are 

not designed for roadway use, and A TV manufacturers have policy 

statements strongly urging consumers not to operate their vehicles on 

public roads. 

ATV roadway crashes account for over 60% of deaths and over 30% 

of serious injuries. Roadway crashes are more likely to involve multiple 

fatalities, carrying passengers, collisions and head injuries. Victims in 

roadway crashes were less likely to be wearing protective gear such as 

helmets and were more likely to be carrying passengers. 

Most importantly, A TVs are not designed to operate on paved or 

public roads. An ATVs narrow wheelbase and high clearance are designed 

for riding in pastures, fields and wooded areas. The high center of gravity 

increases the risk of rollovers, particularly at roadway speeds. In addition, 

ATV's knobby, low- pressure tires allow for operation on a variety of 

surfaces, but they do not grip roadway surfaces well (paved or unpaved). 

As tire - surface interaction deteriorates with increasing speed, the operator 

can lose control of the vehicle, endangering not only the ATV rider but also 

occupants of other vehicles, pedestrians, and bicyclists. In addition, many 

A TVs lack a rear differential which can compound on-road handling 

challenges. The lack of a rear differential results in the wheels on both the 

inside and outside of a tum rotating at the same speed even though the 

wheels on the outside of the tum cover more distance. This design problem 

is mitigated on off-road surfaces like dirt and grass but makes the machine 

much more difficult to control on-road. 

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... In addition, the mandatory rules for A TVs require that all ATVs 

have a label indicating that ATVs should not be operated on paved roads or 

on public roads .... 

We urge you to oppose this expansion of ATV use on public roads 

because it places the public including ATV operators, pedestrians, 

bicyclists, and all motor vehicle drivers and their passengers at unnecessary 

risk. 

Rachel Weintraub, Legislative Director and Senior Counsel 

Consumer Federation of America 

Sue DeLoretto-Rabe, Co-Founder Concerned Families for ATV 

Safety 

Gerene Denning, PhD Emergency Medicine University of Iowa, 

Iowa ATV Injury Prevention Task Force 

Benjamin Hoffman MD FAAP Professor of Pediatrics Medical 

Director, Doembecher, Children's Safety Center Portland, OR 

Katie Kearney Concerned Families for ATV safety Member 

Massachusetts· Safety Advocate 

Mary Aitken, MD MPH Director, Injury Prevention Center at 

Arkansas Children's Hospital 

Jamie Schaefer-Wilson, Executive Director The Safety Institute 

Michael Best, Policy Advocate Consumer Federation of America 

Carolyn Anderson, Co-Founder Concerned Families for ATV Safety 

Charles Jennissen, MD Emergency Medicine University of Iowa, 

Iowa ATV Injury Prevention Task Force 

Ben Kelley, Director, Injury Control Policy The Trauma Foundation 

San Francisco General Hospital San Francisco, CA 

Robin D. Schier, DNP, APRN, CPNP AC/PC Pediatric Emergency 

Medicine Texas Children's Hospital Houston, Texas 

Gary A. Smith, MD, DrPH President, Child Injury Prevention 

Alliance 

Gordon S. Smith, MD (MB.ChB, Otago), MPH Professor 

Department of Epidemiology & Public Health, University of Maryland 

School of Medicine Charles "McC." Mathias National Study Center for 

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Conservation Nw. v. Okanogan County 

Appendix 

Trauma and EMS Shock, Trauma and Anesthesiology Research. -

Organized Research Center. 

CP at 176-78. 

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3 3 194-6-III 

KORSMO, J. (dissenting)-There is a total disconnection between the county 

ordinance and the appellants' claim of harm. Okanogan County does not have to account 

for the possibility that some wheeled all-terrain vehicle (W ATV) riders may comply with 

the new law in order to disobey other laws. The county gave that pitifully weak 

argument more than sufficient consideration and, unsurprisingly, rejected it. We should 

be affirming that determination. 1 The county properly issued its determination of nonsignificance (DNS). 

Following the lead of state law, the county ordinance opens up thousands of miles 

of county roadway to use by licensed and inspected W ATVs that are required to have 

numerous vehicle safety features. LA ws OF 2013, 2d Spec. Sess., ch. 23, § 7 (Engrossed 

Substitute H.B. (ESHB) 1632). The WATVs are a subclass of the off-road vehicle 

(ORV) scourge that appellants seek to restrict. RCW 46.09.360(2). The State 

Environmental Policy Act, ch. 43 .21 C RCW, challenge here, however, is not a winning 

argument because this ordinance, and the statute on which it is based, neither address nor 

contribute to the problems caused by off-road operation of any vehicle. 

1 With the exception of the merits of the State Environmental Policy Act, ch. 

43.21C RCW, claim, I concur in the result of the majority's other rulings. 

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The only changes required by the new ordinance will be in the printing and 

posting of the new road ordinance and, perhaps, a few new road signs. No new asphalt or 

gravel will be poured. No dirt will be paved and no trees will be felled. A certain 

subclass of OR Vs will be permitted lawfully to drive on existing roadways alongside 

more traditional vehicles. Those are the only changes wrought by the ordinance. The 

county understandably looked at these minimal changes to the existing order, considered 

those changes in light of the environmental checklist, and reasonably determined that no 

significant environmental concerns were created by letting WA TVs share the county 

roads with cars and trucks. Many of the commentators properly focused their challenges 

to the ordinance due to its opening of the existing roadways to W ATV travel. The 

Confederated Tribes of the Colville Reservation pointed out that county roadways within 

its jurisdiction could not be opened to W ATV travel. The county responded by repealing 

its first ordinance and removing the roadways on the tribal lands from the next iteration. 

The towns of Twisp and Winthrop objected to the potential for increased emergency 

services resulting from vehicle-WA TV collisions. Those complaints did not fare as well. 

Nonetheless, they were considered. 

However, appellants (and the majority) fault the county for not considering in 

more detail actions that the ordinance neither authorizes nor pretends to authorize. The 

ordinance does not authorize W ATVs ( or other vehicles) to leave the roadway and travel 

in ditches or other off-road locations. It does not encourage WATVs to leave the 

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roadway to desecrate sensitive lands or scare farmer McDonald's cow. It no more 

facilitates crimes against the environment than granting a building permit for a new bank 

facilitates bank robberies. There will always be people who violate the laws, but we do 

not measure the environmental impacts of a new regulation by looking to the conduct of 

those who violate other laws. 

In a more perfect world ORVs would not have been invented. In a more 

enlightened jurisdiction, the pestilential devices would be banned. However, we live in 

neither locale. The policy of this state is to encourage responsible use of our beautiful 

environment by all comers in differing manners, even though not all uses are compatible. 

To that end we permit ORVs and attempt to manage them by allowing them to be used in 

places that do not cause significant environmental damage. ESHB 1632 is the most 

recent compromise related to ORV usage. It encourages use by licensed operators of 

road-worthy W ATVs on existing roads, at the discretion of local authorities, if those 

vehicles have passed an inspection and obtained a vehicle tag. By providing additional 

legal and safe places to drive W ATVs, the bill diverts them from the off-road areas and, 

hopefully, lessens improper use of the devices in more sensitive areas. By bringing the 

local ordinance into conformity with state law, the county acted consistent with the policy 

ofESHB 1632 to end the varying and confusing laws governing use ofWATVs. LAWS 

OF 2013, 2d Spec. Sess., ch. 23, § 1. 

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No. 33194-6-III 

Conservation Nw. v. Okanogan County (Dissent) 

Not satisfied with the political compromise reflected in ESHB 1632, the appellants 

maintain a guerilla war against irresponsible ORV operators by attacking their innocent 

brethren, the responsible W ATV owners who are willing to comply with state law in 

order to lawfully use existing roadways. However, evidence of irresponsible off-road use 

of ORV s is irrelevant to assessing the environmental impact of allowing regulated 

WATVs to use existing roadways alongside other responsible, licensed vehicle 

operators.2 It is not even an apples and oranges comparison. The county understandably 

noted the lack of relevance of the appellants' argument to the ordinance at hand. It 

properly focused on the impact of lawful uses permitted by its ordinance and discounted 

the impact of unlawful behavior not regulated by the ordinance. It properly issued the 

DNS. 

2 The ludicrous premise of appellants' argument is that W ATVs will go to the 

expense of making their vehicles road-worthy, undergo inspection, obtain both an 

operator's license and a vehicle license that identifies the operator, and then use their 

ability to share the road legally with cars in order to facilitate illegal off-road activities 

even while (apparently) obeying current strictures against using ORVs on county roads. 

This premise also ignores the fact that these ORV scofflaws currently could lawfully 

carry their ORVs on trailers on the county roads to facilitate the feared off-road damage. 

Appellants offer no evidence that the road usage changes will bring about such 

behavioral changes. The county gave the argument much more thoughtful consideration 

than it needed to give. 

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There are many good policy reasons not to have automobiles and WATVs share 

the same road. 3 Those concerns were heard, but the county decided to follow the state's 

lead and permit the WATVs on its roads. However, the county should not have to 

consider the environmental costs of behavior unrelated to its road usage ordinance. Only 

the environmental costs imposed by adding WA TVs to the traffic mix on county roads 

were relevant. What those riders might do in violation of other laws, whether by riding 

off-road or conducting a drive-by shooting, was irrelevant. This was a simple calculus 

problem of measuring the change brought about by the new ordinance and did not require 

the county to account for the potential sins of all ORV users. We would not countenance 

the police profiling ORV users in such a manner and we should not permit appellants to 

do it here. 

The county did its job and properly issued the DNS. Because the majority 

reverses that decision on an irrelevant basis, I dissent. 

3 When a road has a speed limit of 35 m.p.h. or less, it typically means that either 

traffic congestion or road conditions requires the lower limit. Mixing in the WATVs on 

these types of roads, even where the speeds of a W ATV would not impede other traffic, 

will only worsen the problem at hand. 

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