### FILED JUNE 16, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE CONSERVATIONNORTHWEST; and METHOWVALLEY CITIZENS COUNCIL, Appellants,

v. OKANOGAN COUNTY, Respondent. ) ) ) ) ) ) ) ) ) ) ) No. 33194-6-111

UNPUBLISHED OPINION

FEARING, C.J. -This appeal asks the question, among others, ofwhether Okanogan County sufficiently completed an environmental checklist, underthe State Environmental ProtectionAct (SEPA), chapter43.21C RCW, when adopting an ordinancepermitting all-terrain vehicles (ATV) traffic on county roads in segments with

a speed limit of35 m.p.h. or less. Ourtask is to apply the lawratherthanto choose a side betweenATVriding enthusiasts and environmental groups. In apainfully long opinion necessitatedby extended facts, a lengthyprocedural background, and numerous legalNo. 33194-6-111 ConservationNw. v. Okanogan County issues, we hold that, under SEPA rules, Okanogan County failed to satisfactorilyprepare the environmental checklist. We respect the recreational value ofATVs 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 Countyto the east, and the Cascade Mountains to the west. Only thirty percent ofthe land within Okanogan County lies in private ownership due to state and federal landproprietorship. A portion ofthe Colville Indian Reservation sits in the southeast corner ofthe county. The geographic features ofOkanogan 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 ofsquare miles of cross-country ski trails, snowmobile parks, mountain bikingtrails, and opportunities for snowshoeing, fishing, camping, and hiking. PlaintiffConservation Northwest (CNW) is a nonprofit conservation organization with offices and members in Okanogan County. PlaintiffMethowValley Citizens 2 

# lNo. 33194-6-111 Conservation Nw. v. Okanogan County

Council (MVCC) is a private nonprofit membership organization, established in 1977 to preserve the wildlife, waters, and farmland ofthe Methow Valley. Both CNW and MVCC members visit lands within Okanogan County for aesthetic enjoyment ofnature. The two environmental organizations rely on the same data and forward the same legal arguments in this appeal. Melanie Rowland signed a declaration on behalfofMethowValley 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 ofnative plants and trees. George Wooten signed a declaration on behalfofConservationNorthwest and Methow Valley Citizens Council. Wooten, also a resident ofTwisp, is a staffmember 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 CollegeNorth in Okanogan. Wooten visits conservation trust lands, state wildlife lands, state forest lands, and federal lands and roads in Okanogan County for the activities ofhiking, photography, and observing birds, wildflowers, and native trees and plants. Our statement offacts now moves to a recitation ofrecent law. OnJuly 3, 2013, Washington Governor Jay Inslee signed into law Engrossed Substitute House Bill (ESHB) 1632, an act regulating the use ofoff-road vehicles (ORVs) in Washington. 3No. 33194-6-111 Conservation Nw. v. Okanogan County

LAWS OF 2013, 2d Spec. Sess., ch. 23, at 2865. In enacting ESHB 1632, the legislature found: that off-roadvehicle users have been overwhelmedwithvaried confusing rules, regulations, and ordinances from federal, state, county, and city land managers throughout the state to the extent standardization statewide is needed to maintainpublic safety and good order. LAWS OF 2013, 2d Spec. Sess., ch. 23, 

### § 1(1). Through ESHB 1632, the Washington legislature soughtto: (a) Increase opportunities for safe, legal, and environmentally acceptable motorized recreation; (b) decrease the amount ofunlawful or environmentally harmful motorized recreation; (c) generate funds for use in maintenance, signage, education, and enforcement ofmotorized recreation opportunities; (d) advance a culture ofself-policing and abuse intolerance among motorized recreationists; (e) cause no change inthe policies ofany governmental agency with respect to public land; (t) not change any current ORV usage routes as·authorized in chapter 213, Laws of2005; (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 entertainmentpurposes; 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 ofESHB 1632 opened state highways, with a speed limit ofthirty-five miles perhour orless, to the operation ofwheeled all-terrain vehicles (W ATVs). LA

### ws OF 2013, 2d Spec. Sess., ch. 23, § 6; codifiedatRCW46.09.455(1). Section 6 ofthe enactment also granted counties with a population offifteen thousand or more the authority to open county public roadways for WATVuse. CodifiedatRCW

4No. 33194-6-III Conservation Nw. v. Okanogan County 46.09.455(l)(c)(i). RCW 46.09.455 now reads, in pertinentpart: (1) A person may operate a wheeled all-terrain vehicle upon any public roadway ofthis state, not including nonhighway roads and trails, having a speed limit ofthirty-five miles perhour or less subjectto the following restrictions andrequirements: ( c)(i) A person may not operate a wheeled all-terrain vehicle on a public roadway within the boundaries ofa county, not including nonhighway roads and trails, with a population offifteen thousand or more unless the county by ordinance has approved the operation ofwheeled allterrain vehicles on county roadways, not including nonhighway roads and trails. (iii) Anypublic roadways, not including nonhighway roads and trails, authorized by a legislative body ofa county under ( c)(i) ofthis subsection or designated as unsuitable under (c)(ii) ofthis subsection must be listed publicly and made accessible from the main page ofthe county web site. (e) Anyperson who violates this subsection commits a traffic infraction. (2) Local authorities may not establish requirements for the registration ofwheeled 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-terrainvehicle" or "ATV," but ATVs are a subcategory of ORVs. Under RCW46.04.365, "Off-roadvehicle" or "ORV" means a nonstreetregistered vehicle when used for recreational purposes _on nonhighway roads, trails, or a variety ofother natural terrain. "Off-roadvehicle" or "ORV" includes, but is not limited to, all-terrain vehicles, motorcycles, four-wheel drive 5

## i 

## I 

# I I I I ' 

# I 

# I I i No. 33194-6-111 Conservation Nw. v. Okanogan County 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 orless in width, has a seatheight ofat least twenty inches, weighs less than one thousand five hundred pounds, and has four tires having a diameter ofthirty inches orless, or (b) a utility-type vehicle designed for and capable oftravel over designated roads that travels on four or more low-pressure tires oftwenty psi orless, has a maximum width less than seventy-four inches, has a maximumweight less than two thousand pounds, has a wheelbase ofone hundredten inches or less, and satisfies at least one ofthe following: (i) Has a minimum width of fifty inches; (ii) has a minimum weight ofat least nine hundredpounds; or (iii) has a wheelbase ofover sixty-one inches. On July 29, 2013, the day after implementation ofESHB 1632, the Okanogan County Board ofCounty Commissioners adopted Ordinance 2013-10, which decreed that "all [county] public roadways and rights ofway, or sections thereof, having a speed limit of35 mph or less are approved and opened for the operation ofwheeled all-terrain vehicles." CP at 195. Atthe time, Okanogan County managed 1,266 miles ofroads within its borders, 335.73 miles ofwhich ATVs could already use. Before enacting Ordinance 2013-10, the county did not conduct an environmental review under the SEPA.OnAugust 14, 2013, ConservationNorthwest and the Methow Valley Citizens Coundl sued Okanogan County for declaratory and injunctive relief. The suit challenged 6 

# INo. 33194-6-111 Conservation Nw. v. Okanogan County

the validity ofOrdinance 2013-10 in part because ofthe failure ofOkanogan 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 ofcounty roads, including 165.03 miles ofpaved roads, for ATV use. OnApril 9, 2014, the county's SEPA responsible official, Director ofthe Office ofPlanning and DevelopmentPerry Huston, prepared a SEPA environmental checklist for the proposed ordinance. Environmental checklists assist government agencies in determining, before adoption ofa proposal, whetherthe proposal will accrue "probable significant adverse impacts on the quality ofthe 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 mostprecise information known, or give the best description you can. You must answer each question accurately and carefully, to the best ofyour knowledge. CP at 253.

7No. 33194-6-III Conservation Nw. v. Okanogan County

Because the sufficiency ofthe environmental checklist looms as the principal issue in this appeal, we quote lengthy portions ofthe checklist completed by Perry Huston in Appendix A. When asked to address the environmental impact ofthe ATV ordinance on various features ofthe environment, Huston sometimes answered: "Theproposal involves existing roads located throughout Okanogan County." CP at 258. Huston then completed answers by stating no environmental impactwould occurbecause ATVs would motor onpreexisting roads. When a question asked Hustonto identify environmental informationprepared that relate to the ATV ordinance. Huston responded: There has been no other environmental informationprepared relevant to this proposal. Any additional environmental information will be prepared ifnecessary 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 ofthe ordinance. Huston wrote that the ordinance would cause little, ifany, increase in the use of Okanogan County roadways. Huston failed to list any ofthe principal fauna and fora in the area and omitted any reference to endangered orthreatened species, otherthan to mention that mule deer used the region as a migratory route. Huston attached to the environmental checklist a map ofOkanogan County roads. He also attached twelve pages ofspreadsheets listing the name, speed limit, length, and

8No. 33194-6-111 Conservation Nw. v. Okanogan County

surface type ofsome ofthe roads in the county. Presumably the spreadsheets listed those roads and the mileposts on those roads where the proposed ordinance would permit operation ofATVs. On April 9, 2014, the same day as the completion ofthe environmental checklist, the Okanogan County Office ofPlanning & Development, through DepartmentDirector Perry Huston, issued a SEPA threshold determination ofnonsignificance (DNS). The DNS concluded thatproposed Okanogan County Ordinance 2014-7, the OpeningATV Routes ordinance, would not have a "probable, significant, and adverse environmental impact." CP at 282. Thus, Okanogan County did not intend toprepare an environmental impact statement. On April 15, 2014, the Okanogan County Office ofPlanning & Development notified local government and tribal agencies ofits threshold SEPA determination of nonsignificance and opened a commentperiod to extend through May 2, 2014. The Office ofPlanning & Developmentreceived numerous responses from government agencies and private parties. The Confederated Tribes ofthe Colville Reservation commentedthat some ofthe roads that Okanogan County intended to opento ATVsjoggedthroughtribal land and the Tribe's hunting and fishing grounds. Tribal lawprecludes the riding ofATVs onthe lands and grounds. The Tribe apprised the county that it "vehemently opposes the opening ofany roads for ATVuse within the boundaries ofthe Reservation without 9No. 33194-6-111 ConservationNw. v. Okanogan County

tribal consent." CP at 330. The Town ofTwisp's Planning Commission opposed Ordinance 2014-7 because ofthe potential adverse impacts on law enforcement and emergency services, insufficient regulation ofvehicle maintenance, risk ofincreased 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 ofPlanning & Development, which letter confirmedthe town's opposition. The Town ofWinthrop Planning Commissionpreliminarily questioned the wisdom ofthe ordinance because ofthe lack ofinformation. The Planning Commission wrote to Perry Huston and raised uncertainties about the assiduousness ofthe environmental checklist and encouraged the county to prepare a thorougher checklist. Winthrop criticizedthe checklist as assuming no environmental impactto the proximity ofthe roadways opened to ATVtraffic, omitting any discussion ofATVuse's interaction with otherrecreational activities, and failing to attemptto measure increasedtraffic. The letter emphasized one particular alleged shortcoming ofthe checklist: Since the proposal does not include a network ofroads that connect in a way that creates contiguous routes, we are curious how the ATVs will arrive on these sections ofroad, and ifthere is any consideration ofparking 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

10No. 33194-6-III Conservation Nw. v. Okanogan County jointly submitted to the Okanogan County Office ofPlanning & Development detailed comments that echoed concerns ofthe Cities ofTwisp and Winthrop. The full submittal is attached as Appendix C. The organizations wrote, in part: MVCC and CNWbelieve that in reaching a DNS, the County failed to analyze 1) the likelihood ofsignificant 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, eitherbecause of confusion over where ATVs are and are not allowed, or because the operator wants to traverse an unauthorizedroad segmentwith 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 ATVs are and are not allowed; and 4) the actual traffic impacts of additional vehicles onthe roads that would be opento ATVs underthis proposal. 1. The evidence ofdamage to lands, waters, vegetation, and fish and wildlife habitat from illegal off-road riding is overwhelming, and the County has failed to considerthe significant impacts ofillegal off-road riding that can be anticipated from opening roads in environmentally sensitive areas. In many responses in the SEPA Checklist, the Countypresumes that ATVs are exactly like all other vehicles that are already allowed onthe roads and considers only the impacts to the road itselffrom opening the road to ATVs. Onthe 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 whenthey are riding in a vehicle that was designed and intended for off-road use, evenwhen 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 ofdamage to land from illegal off-road riding ofATVs. In light ofthe overwhelming evidence, it is simply unreasonable and inconsistent with SEPA to ignore the fact that illegal off-road riding is widespread and to assume that all ATV operators will obey all laws. Forexample, under the topic ofEarth on page 3, the checklist asks about steepness ofslopes, kind ofsoils affected, history ofunstable soils, 11No. 33194-6-111 Conservation Nw. v. Okanogan County

likelihood oferosion, 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 ofillegal off-road operation ofATVs. The evidence shows, however, that off-road riding is likely and that it will cause erosion, particularly in areas ofsteep slopes orunstable soils. Consequently, the County must assume some amount ofillegal riding and assess impacts on soils adjacent to roads, especially in areas ofsteep slopes orunstable 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 ofimpacts to vegetation orwildlife adjacentto, or made accessible by, existing roads. Once again, it is incumbent on the County to acknowledge that ATVs are not like most othervehicles in that they are designed and intended for off-roadtravel. The literature is replete with examples ofserious 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.) Otherresponses in the checklist fail to considerthe likelihood of damage from off-road riding. On page 8, the checklist asks: "Has any part ofthe site been classified as an environmentally sensitive area? Ifso, specify." The County's answer is: "Noroadways in this proposal have been classified as sensitive areas." Many miles ofroadways in the proposal travel through, or give access to, Washington Department offish & Wildlife (WDFW) Wildlife Areas or state parklands. (See attachedroad list, AppendixA that shows roads in the proposal that access these public lands in the Methow Valley.) Surely there are environmentally sensitive areas on these lands, butthe County has failed to ascertain the extentto whichthese areas may be adversely affected by off-road riding facilitated by this proposal. WDFW and State Parks prohibitATVs both on and offroad, yetthe proposal would provide ATV access to and through these lands, thus creating an enforcement nightmare for these agencies. Many other miles likely are adjacent to spawning streams ofat least one ofthe County'sthree federally listed threatened or endangered fish 12

# I 

# I l I 

### I I 

# I I ! 

# I ! 

# I I I I I 

### I 

# I 

# I 

# I I No. 33194-6-111 Conservation Nw. v. Okanogan County species, but the County has failed to do any surveying ormapping to determine whatprotected species ortheir habitat may be made vulnerable to ATV access by this proposal. Onpage 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 existingplans?" The County response is: "The county roads are in some cases located next to areas, under shorelineprotection." This is another example ofsensitive areas that may be affected by theproposal. In sum, there is no rational basis for assuming thatthere 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 SEPA analysis on this proposal is that there will be some illegal riding and consequent damage to soils, waterbodies, shorelines, vegetation, wildlife, protected species, and governmentally protected sensitive areas. To reduce the likelihood ofthat 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 considerthe impacts on traffic ofATVs traveling on roads with speed limits over 35 mph, eitherbecause 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 ifthe operator illegally rides on roads that have speed, limits over 35 mph. (See AppendixA for a list ofthese roads in the Methow Valley.) It is likely that some riders will ride on segments orroads with higher speed limits, eitherbecause ofconfusion overwhere ATVs 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 ofshort segments connected only by roads or segments with higher speed limits, all ATVriders 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. 13No. 33194-6-III Conservation Nw. v. Okanogan County

To correct this error, MVCC and CNWrequestthat 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 greaterthan 35 mph. Those segments for the Methow Valley are shown in Appendix A (columns K, L, and N). 3. The County failed to considerthe impacts onpublic services of the need for additional traffic enforcementto keep ATVs from riding offroad and to post signs indicating where ATVs are and are not allowed. Already thin local police and sheriffresources will be neededto enforce the laws governing ATVs

.... 4. The County failed to considerthe 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 ofadditional vehicle trips per day or at peaktimes (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: "Itis not known the total number ofvehicle trips per day generated by this proposal.

. . . Itis 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. Yetthe 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 pointwhere 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 oftraffic generated by opening roads to ATVs, since there are 336 miles ofroads in the County that are already open to ATVs

.... Requested Action MVCC and CNWrequest that you withdraw the DNS and issue a Determination ofSignificance on the proposal. Following that determination, we ask that you either 1) prepare an environmental impact statement for the proposal, or 2) issue a newproposal and prepare a SEPA analysis for the new proposal, including a request for public comment. 14No. 33194-6-111 Conservation Nw. v. Okanogan County

The newproposal should: Remove all roads inAppendixA that are shown in red. (The reason for removing a road from theproposal is shown in the columns following the road name. There maybe more than one reason for removing a particularroad.) Inparticular, we request that roads thattravel through, or give access to, WDFW lands or state parklandsberemoved from this proposal. Inthe alternative, werequestthatthe 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 ofscientific literature addressing the impact ofATV off-roading anywhere and damage particularly caused on national forest lands in Okanogan County. The literatureprovided information about emerging bestpractices for managing ATV recreation in forestlands, the historical impacts ofoff-roadrecreation on wildlife habitats, and the environmental and social effects ofATVs 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 orderto plunge through largepuddles and fling as much mud into the air as possible. CNW and MVCC also enclosed, with its objections, an annotated catalogue ofthe roads identified in Okanogan County's proposed ordinance. The road inventory listed those county roads slated for ATVuse that connectedwith roads with a speed limit of greaterthan thirty-five milesperhour and itemized roads planned for ATVtravel that

15No. 33194-6-111 ConservationNw. v. Okanogan County incorporated segments traversing less than two miles or crossed land managed by Washington's Department ofFish 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 Departmentwrote: The Washington Department ofFish and Wildlife (WDFW) appreciates the opportunity to review and comment on the proposed ordinance to open approximately 597 miles ofexisting roads in Okanogan County to all-terrain vehicles (ATVs). We believe that substantial impacts as discussed below will likely occur ifthe 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 openedthrough Wildlife Area lands. WDFW lands in Okanogan County are not open to ATVuse, with rare exception, and this ordinance will bringATVriders, often unknowingly, into conflict with State law. ATVs are capable ofbeing driven onroad-less terrain and more primitive trails than full sized vehicles. ATVuse onprimitive trails and road-less areas can cause erosion, soil disturbance; newtrailing in unsuitable areas; and spread noxious weeds. ATVs are particularly problematic because they contribute to the spread ofnoxious 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 weedproblem on state and private lands associated with the roads open to ATV use. Some roads and trails are inappropriate for ATVs because ofconflict with otherusers such as horse riders, bikes, and hikers. Increased disturbance to wildlife and livestock can occur. Neighboring landowners have complained about existing ATV riders coming offstate lands, cutting their fences, and leaving gates open. This has resulted in scattered livestock and increased costs for fence repairs and livestock gathering. 16

### No. 33194-6-111 Conservation Nw. v. Okanogan County

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 ofindividuals who will act irresponsibly. Currently, inappropriate off-road uses and using roads and trail that are illegal for ATVs is a commonproblem across the state. The added costs to land management activities and enforcementhave 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 staffassociated with illegal ATVuse 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 ATVs do not . trespass or violate otherregulations, including traffic rules, enforcement, will rarely occur. The increased burden on other enforcement agencies to ensure that ATVusers comply with existing laws will be significant. Therefore, WDFW is asking Okanogan County to delay opening any new roads to ATVs 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 ofworking with WDFW and the SheriffDepartmentto find ways to minimize, or mitigate, for impacts to wildlife, lands, non-motorized users, grazing lease holders, and ourbudget and staffing resources. Also, for the County to provide for enforcementresponse needs, which will be needed as a result ofany new open roads. CP at 

### 367-68. Former WDFW employee Tom McCoy wrote to Okanogan County and urged rejection ofan ATV ordinance. McCoy e-mailedthe Board ofCommissioners:



### 17

## 1 

# I 

# I I 

# l i 

# I No. 33194-6-111 Conservation Nw. v. Okanogan County

I have recently been made aware ofthe SEPA checklistprepared for you[r] intended opening ofunder 35mphroads to ORV's in Okanogan County. I believe there are several glaring deficiencies in that document, mostnotably is the fact that itrelies on voluntary compliance to these new rules. As the former manager ofthe WDFWMethow Wildlife Area I witnessed first handthe result ofyourprior 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 upperBear CreekRd. on their way from Pearrygin State Parkto the WDFW shooting range where they traveled offroad to getbehind 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 ORVuse, both on and off-road, on closed USFS and WDFWproperty. The SEPA checklist appears to assume thatbecause there is a county ordinance that all users will comply. Consideringthat there is a substantial measure ofnon-compliance to well established, posted, and enforced, standard traffic laws by currently street legal vehicles it can be considered nothingbut folly to assume that ORVriders will fully comply with similarrules. Opening roads to ORV users, without due consideration ofnoncompliance and impacts to critical fish and wildlife habitat will have more than "speculative impacts." In fact, non-complying ORVuse is currently having impact critical habitat. To not acknowledge that issue in the SEPA checklist is inappropriate. I am by no means against ORVuse on county roads, far from it, but as elected officials you need to berealistic and objective, and act accordingly in the interest ofall citizens ofOkanogan 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 ofATV trails across Highway 20 in Okanogan County. To support his

18No. 33194-6-111 Conservation Nw. v. Okanogan County claim, Wooten attached aphotograph showing an unauthorizedtrail connecting to a state road, which prohibited ATV use. Wooten also attached a message from a state forester that confirmedthe popularnature ofthe unauthorized ATVtrail. Woatenpresented a photograph ofanother 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 CNWorMVCC, 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 mustprotectunderthe Washington Growth ManagementAct, chapter 36.70ARCW. Soriano mentionedthatATVs have caused wildfires by driving in dry grass. She noted the difficulty ofenforcing 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 ofPlanning & Development. Supporters noted the utility ofATVs in assisting senior citizens in accessing the outdoors and the prospect ofincreased economic growth from ATV tourism. Okanogan County SheriffFrank Rogers expressed no concerns about opening

more county roads to ATVs, but statedthat SheriffDeputy Dave Rodriguez, nothim, enforced ATVrules. Rodriguez did not comment. Three local snowmobile clubs and an ATV club voiced support for the ATV ordinance. A sample ofATV ordinance supporter comments is found in Appendix D. 19No. 33194-6-111 Conservation Nw. v. Okanogan County

OnMay 14, 2014, Okanogan County issued a final DNS andpublishedthe determination in the official county newspaper. On May 29, 2014, CNW and MVCC appealed the SEPA DNS, pursuantto Okanogan County Code 14.04.220, to the Okanogan County Board ofCounty 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 ofwhether: (1) increased ATV travel would damage sensitive lands, waters, and wildlife habitat, (2) ATVs would travel on unopenedroads in orderto access authorized ATVroutes, (3) increased ATVtraffic would require additional public services and law enforcement, and (4) increased ATV use would affect overall traffic patterns and congestion on roads with speed limits of35 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 ofsignificance. 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 ofCounty Commissioners scheduled a public hearing on the appeal for June 16, 2014. During the pendency ofthe appeal before the Okanogan County Board ofCounty Commissioners, CNW and MVCC tendered additional public comments, declarations, and scientific literature related to the proposed ATV ordinance. Much ofthe scientific literature assumed operation ofATVs on dirt trails, which Okanogan County insists will 20

# 1 J i ! 

## 1

J I 

# l 1 

# i 

# I

!

# I I 

# I No. 33194-6-III Conservation Nw. v. Okanogan County

not result from its ATV ordinance. The submitted literature included a dense 2011 compilation by Backcountry Hunters & Anglers ofscientific studies addressing the environmental impact ofATVs. The compilation read in part: Natural resources are affected by ATVuse (Meadows et al. 2008). All-terrain vehicle use affects soil and hydrologic function primarily through soil compaction, increased soil strength, and removal ofthe forest litter layer in temperate environments (Ouren et al. 2007). Soil compaction and the removal ofthe forest litter layer can reduce vegetation growth (Webb et al. 1978) and is aprimary factor in accelerated erosion rates (Megahan 1990)

.... All-terrain vehicle travel increases erosion and sediment concentrations byremoving soil cover and compactingthe soil thus decreasing infiltration. Sediment delivery to streams via erosion is a result ofATVtravel (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 runoffand sedimenttransport can be substantial. Meadows et al. (2008) compared the effects ofATVtraffic 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 TVtrails are highrunoff, high sedimentproducing strips on a low-runoff, low sediment producing landscape."

... Impacts ofATV traffic on water quality and aquatic systems are not limited to increases in suspended stream sediments. ATVtrails funnel waterthat 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 ofemission particulates that are transported in dust migration, settle onto vegetation, and subsequently washed offleafsurfaces by rain and snow and moved by surface water run-off. All-terrain vehicle operation in or near streams and waterways poses a serious waterpollution threat (Havlick 2002). This can have detrimental impacts on populations ofaquatic animals. Garrett (2001) (as cited in Taylor 2006) reported that environmentally sensitive aquatic species (including fish) were absent from OHV impacted sites onthe 21 

# INo. 33194-6-III Conservation Nw. v. Okanogan County

Nueces River in Texas, while unimpacted sites hosted numerous environmentally sensitive species

.... ATV impacts on vegetation are not limited to removal ofvegetative soil cover. Reduced plant growth rates and populations ofnative species coupled with increases in non-native and pioneeringplant species are directly related to ATV travel (Ouren et al. 2007)

.... This review ofthe impact ofATV use on the physical environment suggests that the impacts are not only universal and cumulative, butthat much ofthe damage associated with their operation can be induced by a limited number ofusers over shorttime periods

.... Forexample, 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 ATV use in areas oflow road density is necessary to reduce the spread ofinvasive species and protectthe community structure ofnative 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 offorest birds (Robinson et al. 1995)

.

. . .According to Trombulak and Frissel (2000), animal behavior is modified through five mechanisms: 1. altered movementpatterns 2. changes in home range 3. altered reproductive success 22No. 33194-6-111 Conservation Nw. v. Okanogan County

4. altered escape response 5. altered physiological state The effectofATV travel on elk, and more generally, the effect of roads on elk, has been a focal point for researchers because ofthe documented aversion elkhave 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 significantbull elk) preferentially use areas devoid ofmotorized activity. Elk require large blocks ofnon-motorized habitat for security

.... CP at 73-89. A less abridged version ofthe Backcountry Hunters & Anglers report is attached as Appendix E. MVCC and CNW also profferedto the Okanogan County Board ofCounty Commissioners an annotated bibliographypreparedby a student at the University of Vermont School ofNatural Resources. The paper compiled and cited research related to the environmental and social impact ofATV use onpublic and private land. The bibliography reproduced summaries and citations ofacademic articles, white papers, websites, and organizations studyingthe social and environmental effects ofATVs. Among other observations, the studies notedthatATV use coincided withthe nesting times ofbirds causing nest desertion. CNWprovidedthe Okanogan County Board ofCommissioners a June 7, 2013 release from the Okanogan-Wenatchee National Forest office in Winthrop. Therelease read, in part:

23No. 33194-6-III ConservationNw. v. Okanogan County Mudders, take note: It is against the lawto tearup forest roads and meadows for the fun ofit, and the legal and financial consequences canbe 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 overMemorial Weekend northwest ofBuckLake Campground, near Winthrop Washington. The meadow was tom up by vehicles; here there was green grass, there are now mudpits andtire tracks. The activities that caused this damage are illegal underboth state and federal law. Participants could face charges including malicious mischiefand fines up to and includingpaying for the costs of restoration. Spinningtires onplants destroys the plants, leaving behindbare dirt. Whenplants 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 dependentupon clean water and tourism for survival. When native plants are gone, noxious weeds move in. A meadow ofnative grasses and flowers may soonbecome a field ofthistles 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 waterto move into the ground. Instead, water runs downtire tracks and into creeks and lakes, carrying mud andpollutants with it. Itis hard for plants to grow in compacted soil-imagine tryingto 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 andhiding 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 orplanting and repairing roadbeds costs a lot ofmoney. In situations where the individuals are not caught, every taxpayerhas to pitch in to coverthe restoration costs. When caught, individuals responsible for the damage canbe 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.

24No. 33194-6-III ConservationNw. v. Okanogan County Okanogan County residents who allegedly observed damage caused by ATVs submitted letters and photographs to the Okanogan County Board ofCounty Commissioners. The letters are attached as Appendix F. CNW and MVCC also providedthe Okanogan County Board ofCounty Commissioners with releases from ATVtrade associations, the U.S. ConsumerProduct Safety Commission, andprivate safety institutions warning ofsignificant dangers associated with operating ATVs onpaved road surfaces. The Consumer Product Safety Commission explained: ATVs should not be driven onpavedroads. ATVs onpavedroads are at risk ofbeing hit by cars and other vehicles. While passengervehicles contain safety features designed to protect occupants from collisions, ATVs do not. Ifstruckby other vehicles, ATVriders can bekilled or severely injured. In addition, most ATVs have lowpressure tires and a solid rear axle, where both wheels tum at the same speed. When making a tum, the ATVs inside rear wheel is intendedto skid because its path length is less than the path length ofthe outside wheel. ATVs onpaved surfaces have much bettertraction, whichprevents the necessary skidding. This can make turning an ATV onpaved surfaces unpredictable and unstable. Forthese reasons, some states and local areas prohibitATVs and other off-road vehicles onpublic streets and highways. CP at 175. The Specialty Vehicle Institute ofAmerica prepared apositionpaper in opposition to ATV use on roads, whichpaperthe Okanogan County Board ofCounty Commissioners received. The paperread, in part: The Specialty Vehicle Institute ofAmerica (SVIA) is the national 25No. 33194-6-111 Conservation Nw. v. Okanogan County not-for-profit trade association representing manufacturers and distributors ofall-terrain vehicles (ATVs) in the United States. SVIA's major goal is to promote the safe and responsible use ofATVs. ATVs are designed, manufactured and sold for off-road use only. On-road vehicles must be manufactured and certifiedto comply with U.S. Department ofTransportation Federal Motor Vehicle Safety Standards (FMVSS). These safety standards consist ofextensive 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 ofATVs, including modified ATVs, would be in conflict with manufacturers' intentions for theirproperuse, and wouldbe contrary to federal safety requirements. SVIA emphasizes that ATVs are not designed, manufactured, or in any way intended for use onpublic streets, roads or highways and urges that on-highway use ofATVs be prohibited and that law enforcement efforts be strengthened to eliminate this dangerous practice. CP at 173-74. FourteenATV safety and health care professionals urged the Okanogan County Board ofCounty Commissioners not to allow ATVs onpublic roads onpublic safety grounds. A copy ofthe letter is Appendix G. Botanist George Wooten submitted to the Okanogan County Board ofCounty Commissioners photos and exact geographic coordinates ofpurported existing illegal ATV routes along Highway 20 and coordinates for other illegal ATVroutes loping between national forest lands and private property. In the additional records delivered to the Okanogan County Board ofCounty Commissioners, county residents related episodes



### 26No. 33194-6-111 ConservationNw. v. Okanogan County

when ATV 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 ofCounty Commissioners, county SEPA official Perry Hustonpenned a staffreportrecommending that the county commissioners deny the organizations' appeal. The staffreportread, in part: Most ofthe issues raised by the appellants [CNW and MVCC] rely on the assumption that illegal ATV operation will result from the approval ofthis proposal which opens existing roads to ATVuse. The appellants rely onthis assumption to then assert the County failed to considerthe likelihood that widespread damage to the environmentwouldresult from illegal ATVuse. The appellants [then] rely onthis assumption to assert that the County did not conduct an adequate review under SEPA because it failed to issue a DS and prepare an Environmental Impact Statementto identify and mitigateprobable, significant, and adverse impacts brought about by illegal ATVuse. The proposal submitted by the County for environmental review would open only existing roadways with a speed limit of35 mph orless to use by licensed operators oflicensed ATV's. No otherrestrictions are repealed or otherprivileges granted. Based on this proposal the environmental checklist was prepared and considered. The DNS under appeal was issuedbased on review ofthis information and a public commentperiodwas conductedto gain additional information for further review. Information submitted during the SEPA commentperiod did not identify any environmental issues that were not considered or any probable, significant, and adverse impacts that would be causedby the proposal. Some ofthe comments received during the commentperiodthat are relevant to the question are summarized in the following. All comments received were considered and are made part ofthe record. Washington State Fish and Wildlife personnel offered a comment stating they had concerns about increased enforcement costs brought about 27No. 33194-6-III Conservation Nw. v. Okanogan County by increased illegal ATV use. The comment offeredno specifics otherthan there was an "increase" in illegal ATVuse. A past manager ofWDFW offered a comment that when the roads were previously opened last summerthere was more illegal ATVuse than in the "previous three years." Neither activity level was quantified. The Confederated [T]ribes ofthe Colville Reservation offered a commentthat the reservation was closedto ATVuse by non-tribal members and illegal use would result in damage to the environment and tribal resources. No information regarding the number or frequency ofthe incidents ofillegal ATVuse was provided. The Methow Valley Citizens Council offered a commentthat illegal ATVuse would result in environmental impacts but offered no information in terms ofthe number orfrequency ofthe incidents to which they refer. There were other comments offered in a tone similarto those noted above. None ofthe commenters offered specific statistics or other analysis quantifying the concerns. No information obtainedthrough thepublic reviewprocess effectively quantifies the number ofadditional ATVriders anticipated in Okanogan County at any time that would result from the adoption ofthis proposal. Both proponents and opponents ofthe proposal suggestthatthere may be many but no specific information has been offered. The appellants assert that a large influx ofriders will come to the Okanogan County and a substantial portion ofthem will operate their ATV's in unlawful areas. Further the appellants assertthat a significant portion ofthe unlawful use will takeplace in environmentally sensitive areas. There is no information contained in theproposal or gathered during the public commentperiodthatwould support a conclusion thatthe proposal will likely result in an increase in illegal ATVuse orthatthe illegal use will resultin 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 ATV operation wouldtake place in a significant amount ofenvironmentally sensitive areas such as wetlands or nesting sites, etc. In addition to the speculative nature ofthe comments the comments received are in conflict. The Okanogan County Sheriff, chieflaw enforcement officer for the County, submitted a comment stating he had no concerns withthe proposal. Others as noted offered concerns butno 28 

# j

INo. 33194-6-III Conservation Nw. v. Okanogan County specific information. Giventhe general nature ofthe comments the assertion that illegal ATVuse 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 inprobable, significant, and adverse impacts to the environment is speculative as well. In addition to the speculative nature ofthe issues raised bythe appellants any assessment ofenvironmental impacts thattakes the approach that any protective regulation or conditions ofapproval will be ignored therefore probable, significant, and adverse impacts will occur is problematic. Such an approach would render moot any effortto mitigate environmental impacts or reliance on existing regulation to protectthe environment and promote public health and safety. Ifa party need only assert that no one will obey the law orconditions ofapproval in the course ofa project/proposal review than it leaves the only alternative the denial or unreasonable curtailment ofthe project/proposal. The use ofSEPA in such a manner wouldrender a thoughtful environmental review and subsequent conditioning ofa project/proposal difficult at best ifnot impossible to conduct. As noted in Arthur Gresh v. Okanogan County and Mazama Properties L.L.C. Okanogan County Superior CourtNo 11-2-00491-2 the court stated "the court will not speculate thatpublic agencies will not do their duty orthatproperty owners will necessarily ignore the plat limits" in response to the assertion by the plaintiffthatnegative impacts will result because the (plat) conditions will notbe followed and/or will notbe adequately enforced. Inthe Amicus brieffiled by the Department of Ecology for this same case the footnote onpage 14 states Ecology agrees.... The Superior Courtwas correct in pronouncing

...that courts "may not speculatethatpublic agencies will not do their duty or that property owners will not necessarily ignore the plat limits

....["] The discussionbythe court in "Gresh" is "onpoint" here as well. The law prohibits unlawful ATV operation andprotects 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 ifadopted would allow the operation ofproperly licensed/equipped ATV's by properly licensed operators on qualified county roads. The concern thatthe same operators who observe the existing road closures would not observe otherregulation ifthe road closures were removed is at any rate not an environmental impactto be 29No. 33194-6-III ConservationNw. v. Okanogan County

further analyzed or mitigated. Conclusion The SEPA process is required to provide a reasonably thorough discussion ofprobable, significant, and adverse impacts brought about by a project/proposal. The SEPA review considered the areas ofconcern enumerated on the environmental checklist and the impacts suggested during the public commentperiods. The final decision regarding the proposal has not been made. The comments made by the agencies and members ofthe public are part ofthe record to be considered by the Board ofCounty Commissioners prior to approving, amending, or denying the proposal. The appellants in their request for reliefask that a DS be issued and an Environmental Impact Statementbe prepared. They assert the responsible Official was clearly erroneous in the decision to issue a final DNS for the proposal. The appellants are correctthat the standard for review is a "clearly erroneous" standard and the definition they provide of the meaning ofthat phrase is accurate as well. However, the conclusion thatthe decision ofthe SEPA responsible Official is clearly erroneous can only be made in view ofthe entire record and the public policy contained in the statute authorizing the decision. As noted earlierthe purpose ofthe legislation authorizing counties to adopt ordinances such as the one under review was to promotepublic safety and reduce confusion. The appellant's [sic] assertion that in implementing the decision authorizedby law; a decision authorized for the purpose ofenhancingpublic 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 butthe appellant's [sic] did not identify any issues thatwere 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 ofATV's and the intensity oftheir use would result from adoption ofthe proposal. 30No. 33194-6-III Conservation Nw. v. Okanogan County 2) That a significantnumber ofthe ATV's would be operated in an unlawful manner. 3) That a significantnumber ofunlawful ATV operators would leave the roadway and operate the ATV's in a significant number of environmentally sensitive areas. Preparing an EIS based onthe unsubstantiated assertion thatthe above listed speculative occurrences are likely is notrequired by law. In fact the SEPA statutes contain language directed to the specific objective of preventingthe SEPA process from considering speculative impacts in an effort to prevent SEPA from becoming a tool ofthe obstructionist. The preparation ofan EIS that attempts to quantify this sort ofspeculative impacts would be a daunting ifnot impossible task and would clearly be for the purpose ofrendering the review so cumbersome and/or expensive that the proponentwould simply abandon the project/proposal as untenable. In the end the EIS would impose conditions or cite existing regulationthat mitigates the feared environmental impacts which brings us backto the appellant's [sic] "point ofbeginning." Attackingthe adequacy ofan environmental review onthe basis that no one will honorthe law or conditions imposed is without merit and contrary to the law. In the case ofthis proposal and subsequent environmental review the preparation ofan EIS would not add materially to the discussion. The issue that unknown impacts have not been identified has not beenraised. In fact, the issues involved are clearly identified and understood. The issues involved have been discussed and the information generated has become part ofthe record. The lack ofan EIS has not impaired anybody's ability to participate in the process or compromised an understanding ofthe consequences the opponents ofthe proposal fear. The lack ofan EIS has not compromisedthe appellant's [sic] ability to entertheir concerns and any information that supports their view into the record. The appellant's [sic] assertion that the environmental checklistwas inadequate and/or inaccurate is premised ontheir assertion that the speculative impacts identified are likely. This assertion is premised onthe assumption that ATV operators will ignore all or mostregulation. The challenges with this issue have beenpreviously 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 greaterthan 3 5 mph is accurate butthe environmental impactthey fear it creates is unclear. Any motorvehicle 31

# l

I i

,, J 

### f 

## t 

# I I I I 

# I I 

# I I ! ' No. 33194-6-111 Conservation Nw. v. Okanogan County
operator; or non-motorized vehicle operator for that matter, that operate on the road system must cross roadways with greater orlesser speed limits than the one they are on. The "rules ofthe road" adopted in statute are adoptedto govern that type ofvehicle 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 pavedroads be removed from the proposal would seem contraryto their stated desire to reduce environmental impacts. The discussion provided by this staffreport is applicable to this issue so I will notrepeat 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 reasonableperson to conclude the SEPA Responsible Official made a "clearly erroneous" mistake in conducting the SEPAreview. The appellant's [sic] have failed to demonstrate that any mistake made was an "egregious error" in terms of compromisingthe public's ability to participate in the process or in preventing the "reasonablethorough discussion" ofenvironmental impacts to occur. The appellant's [sic] have failed to overcome the deference given by law to the decision ofthe 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 ofCounty 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 ofthe organizations appeared at the Board ofCounty Commissioners hearing. OnJune 23, 2014, the Okanogan County Board ofCounty Commissioners denied 32No. 33194-6-III Conservation Nw. v. Okanogan County

CNW's and MVCC's appeal ofthe DNS and adopted findings offact and conclusions of law. The county commissioners found, in part: 12) The Board found that the SEPAprocess 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 ATV 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 ofunlawful or environmentally harmful riding activity and advance a culture ofself-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 ofunlawful activity and that the unlawful activity would take place in a significant amount of environmentally sensitive areas. 18) The Board found that the SEPA Responsible Official decision to issue a final determination ofnon-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 ofCounty Commissioners concluded: [T]he SEPA process had beenproperly conducted and had provided a reasonably thorough discussion ofany 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 ofthe responsible official 33No. 33194-6-111 Conservation Nw. v. Okanogan County B) Prove that the decisions made by the SEPA Responsible Official were clearly erroneous orthat any mistakes, ifmade, were egregious in terms ofaffecting the opportunities afforded the public to participate in the process or in the decision makers access to complete information. C) Prove the SEPA process failed to meet the "reasonably thorough" standard required by law CP at 412. On June 23, 2014, the Okanogan County Board ofCounty Commissioners adopted its ATV 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 maintainpublic safety and good order, and WHEREAS: Engrossed Substitute House Bill 1632 states it is the intent ofthe legislature to: (a) Increase opportunities for safe, legal, and environmentally acceptable motorized recreation; (b) decrease the amount ofunlawful or environmentally harmful motorized recreation; (c) generate funds for use in maintenance, signage, education, and enforcement of motorized recreation opportunities; (d) advance a culture ofself-policing and abuse intolerance among motorized recreationists; (e) cause no change in the policies ofany governmental agency with respect to public land; (f) not change any current ORV usage routes as authorized in chapter 213, Laws of2005; (g) stimulate rural economies by opening certainroadways to use by motorized recreationists which will in tum stimulate economic activity through expenditures on gasoline, lodging, food and drink, and other entertainmentpurposes; (h) and require all wheeled all-terrain vehicles to obtain a metal tag, and WHEREAS: Consistent with Revised Code ofWashington 46.09.455(c)(i) A person may not operate a wheeled all-terrain vehicle on a 34

# I 

# ' I i l 

## I 

# i 

# I No. 33194-6-III Conservation Nw. v. Okanogan County public roadway within the boundaries ofa county, not including nonhighway roads and trails, with apopulation offifteen thousand ormore unless the county by ordinance has approved the operation ofwheeled allterrain vehicles on county roadways, not including non-highway roads and trails, and WHEREAS: Okanogan County Code IO.IO authorizes the operation ofoff-road vehicles on county roads designated for thatpurpose; and WHEREAS: Okanogan County has conducted apublic review on a proposal to open certain county roads with a posted speed limit of35 milesper-hour or less that are not already designated for offroad vehicle use, and WHEREAS: The SEPA Responsible Official for Okanogan County prepared an environmental checklist and conducted a SEPA review on the proposal consistent with the requirements ofRCW43.21c, WAC 197-11, and OCC 14.04 and after review ofthe comments received issued a final determination ofnon-significance which was published in the official county newspaper on May 14, 2014, and WHEREAS: The Okanogan Board ofCounty 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 opento use by wheeled all-terrain vehicles: CP at 424-25 (boldface omitted). The ordinance appended a list ofroads with mile posts between which one could drive an ATV. PROCEDURE Afterbeing denied reliefby the Okanogan County Board ofCounty Commissioners, CNW and MVCC again sued Okanogan County in superior court. The two groups invoked the trial court'sjurisdictionunder RCW 2.08.010 (superior court originaljurisdiction), chapter 7.24 RCW (uniform declaratory reliefact), chapter 7.40 RCW (injunctive relief), and RCW 43.2IC.075 Gudicial review under SEPA). The two 35No. 33194-6-111 ConservationNw. v. Okanogan County

entities sought a declaratoryjudgmentthat Ordinance 2014-7 violated SEPA and the legislative intent ofESHB 1632. They asked for the voidance ofthe ATV ordinance and

an injunction precludingthe effectiveness ofthe ordinance. Okanogan County asserted five affirmative defenses: (1) CNW and MVCC suffered no injury and thus lacked standing under SEPA 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 ofaction 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 apetition for review within twenty-one days ofthe county's adoption ofOrdinance 2014-7, as required by LUPA, and thus the trial court lackedjurisdictionto entertainthe suit, and (5) any review by the superior court mustbe ofthe record from the Okanogan County Board ofCounty Commissioners' review ofthe appeal tothe Board. Okanogan County moved to dismiss CNW's and MVCC's complaint or for the grant ofsummaryjudgment 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 summaryjudgment. The trial court concludedthat Okanogan County did not violate SEPA and CNW and MVCC failed to establish ajusticiable controversy sufficient for it to consider whether Ordinance 2014-7 violates ESHB 1632. On appeal, Okanogan County contends that the trial courtruled thatthe environmental

36No. 33194-6-III Conservation Nw. v. Okanogan County

groups or their members lacked any injury. The trial court did not address standing or subject matterjurisdiction. LAWAND ANALYSIS CNW and MVCC appeal the trial court's grant ofsummaryjudgmentto Okanogan County and its dismissal oftheir claims withprejudice. As it did below, Okanogan County on appeal contends that the environmental groups lack standingto challenge Ordinance 2014-7 and that the trial court lacked subject matterjurisdictionto hear the action for declaratoryjudgment 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 ofwhetherthe trial courtpossessed subject matterjurisdictionto hear CNW's and MVCC's challenge. The determination ofstanding may depend on the cause ofaction or form ofaction amenable to this suit and actually asserted in the case. Ifthe trial court lackedjurisdiction, standing becomes moot, and we must reject the appeal. Subject matterjurisdiction is the authority to hear and determine the class of action to which a case belongs. Bourv. Johnson, 80 Wn. App. 643, 647, 910 P.2d 548 (1996). This court reviewsjurisdictional issues de novo. Knight v. City of Yelm, 173 Wn.2d 325,336,267 P.3d 973 (2011).

37No. 33194-6-111 Conservation Nw. v. Okanogan County

LUPA Okanogan County contends the challenge to the county's environmental checklist and Ordinance 2014-7 falls within the parameters ofeither chapter 7.16 RCW, which addresses a statutory writ ofreview, or the Land Use Petition Act. Okanogan County argues that, because one ofthe alternative procedures provided CNW an adequate remedy, CNW could not assert the superior court's generaljurisdiction, seek declaratory relief, or seekreliefunder the injunction statutes. When asserting this argument, Okanogan County forgets that CNW and MVCC also advanced an appeal under SEPA statutes. We disagree that eitherLUPA or the writ ofreview procedure applies. We address LUPA first. LUPApertains tojudicial review ofall 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 thatLUPA '"shall be the exclusive means of judicial review oflanduse 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 grantreview, unless the petition is timely filed with the court withintwenty-one days ofthe issuance ofthe land use decision. RCW 36.70C.040(3). We must decide ifOrdinance 2014-7 orthe Okanogan County declaration of nonsignificance for the environmental impact ofOrdinance 2014-7 constitutes a "land 38No. 33194-6-III Conservation Nw. v. Okanogan County

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

a final determination by a localjurisdiction's body or officer with the highest level ofauthority to make the determination, includingthose with authority to hear appeals, on: (a) Anapplication for aprojectpermit or other governmental approval required by law before real property may be improved, developed, modified, sold, transferred, or used

... (b) An interpretative ordeclaratory decision regarding the application to a specific property ofzoning or other ordinances or rules regulating the improvement, development, modification, maintenance, or use ofreal property; and (c) The enforcement bya local jurisdiction of ordinances regulating the improvement, development, modification, maintenance, or use ofreal property.... RCW 36.70C.020(2) (emphasis added). Ordinance 2014-7 and the environmental checklist andDNS precedingthe ordinance concerned ATV use ofcounty roads. No one applied for a projectpermit or governmental approval ofuse ofhis or her property. CNW challenges the adoption ofan ordinance, not the enforcement ofan ordinance concerning someone's use ofproperty. The Board ofCounty Commissioners, on enacting Ordinance 2014-7, did not issue an interpretative or declaratory decision. "Landuse decisions" are applications, interpretive

or declaratory decisions, and enforcement ofcertain ordinances. See Chelan County v. Nykreim, 146 Wn.2d at 927 (2002); Samuel's Furniture, Inc. v. Dep'tof 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 neednothave filed suit underLUPA. 39No. 33194-6-III ConservationNw. v. Okanogan County

Writ of Review RCW 7.16.040 provides: A writ ofreview shall be granted by any court, except a municipal or district court, when an inferior tribunal, boardor officer, exercising judicial functions, has exceeded thejurisdiction ofsuch tribunal, board or officer, or one acting illegally, or to correctany erroneous or void proceeding, or a proceedingnot according to the course ofthe common law, and there is no appeal, nor in thejudgmentof the court, anyplain, speedyandadequate remedy at law. (Emphasis added.) Statutory writs ofreview are available forjudicial 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 237, 244 n.2, 821 P.2d 1204 (1992); Leavittv. Jefferson County, 7 4 Wn. App. 668, 677, 875 P.2d 681 (1994). We need not address whetherthe adoption ofOrdinance 2014-7 orthe denial ofCNW's appeal ofthe county SEPA official by the Okanogan County Board ofCounty Commissioners constituted a legislative orjudicial action. We resolve the issue on another ground. Okanogan County contends that CNW and MVCC musthave sought a writ of review ifavailable, rather than seeking superior courtjurisdiction on anotherbasis. Nevertheless, the opposite is true. RCW 7.16.040 denies an applicant the writ ifthe applicant has another remedy. Because SEPA affords a method ofappeal, a statutory writ ofreview 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). 40No. 33194-6-111 Conservation Nw. v. Okanogan County

In Foster v. King County, the court specifically denied the applicant a writ ofreview in a SEPA appeal. SEPA Appeal Since LUPA does not encompass CNW's and MVCC's challenge and because the statutory writ ofreview does not interfere with this challenge to Okanogan County actions, we now ask whether any ofthe four legal paths, on whichthe organizations sought superior courtjurisdiction, sufficedto bestow subject matterjurisdiction. CNW and MVCC solicited superior courtjurisdictionunder four statutes: (1) the superior court's broad originaljurisdiction afforded under RCW 2.08.010, (2)jurisdiction granted under the declaratory reliefact, chapter 7.24 RCW, (3) powerbequeathedto issue injunctions under chapter 7.40 RCW, and (4) the right tojudicial review to determine compliance with SEPA under RCW 43.2IC.075. CNWneeds to showjurisdictionunder only one ofthe four statutory schemes to receive the reliefdesired. We address SEPA jurisdiction and only SEPAjurisdiction. SEPA authorizesjudicialreview ofan 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 reliefin its complaint. The county contends that, since the groups ask for declaratory relief, the 41No. 33194-6-111 Conservation Nw. v. Okanogan County superior court and this court is limitedto addressing legislative action, and the Board of County Commissioners' affirmation ofthe county SEPA official'spreparation ofthe environmental checklist constituted a quasi-judicial, not a legislative, action. According to the county, a declaratoryjudgment action invokes the trial court's originaljurisdiction, not appellatejurisdiction, and, since CNW and MVCC askthis courtto declare the Board ofCounty Commissioners' denial ofits appeal to be clearly erroneous, they mistakenly invoked the superior court's appellatejurisdiction. In orderto convince this courtto reject the appeal for lack of jurisdiction, Okanogan County devotes pages to analyzing and characterizingthe Board ofCounty 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 subjectmatter jurisdiction lies elsewhere. Okanogan County ignores the language in the complaint assertingjurisdiction under SEPA. CNW and MVCC may have characterized much ofits lawsuit as being in the nature ofa declaratoryjudgmentaction. They asked for a declaration thatthe Okanogan County action was clearly erroneous. They captioned its complaint as one for declaratoryjudgmentand injunctive relief. Nevertheless, the organizations also specifically soughtjudicial review under SEPA. Okanogan County cites no authority that prevents the request for declaratory reliefin the same suit when the plaintiffincludes an appeal under SEPA. The county cites no authority that captioning a case as one for a 42

# l

I 

# I 1 I 

# I I 

### I No. 33194-6-III Conservation Nw. v. Okanogan County declaratoryjudgmentrenders null a request in the body ofthe complaint for SEPA review. In its essence, a SEPA appeal requests declaratory reliefestablishing that governmental action is contraryto law, so labelingthe SEPA appeal in part as a declaratoryjudgment action creates no harm. We note that, consistent with SEPA statutory provisions, CNW soughtreview of both Okanogan County Ordinance 2014-7 and the underlying environmental checklist and determination ofnonsignificance by Okanogan County's SEPA official Perry Huston. SEPA demands that any "[j]udicial review

... shall without exception be of the governmental action togetherwith its accompanying environmental determinations." RCW 43.2IC.075(6)(c). This so-called "linkage requirement" is meantto 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). SEPA compliance is "'evaluated as an integrated element ofgovernment decisionmaking,'" ratherthan an independent cause ofaction. Foster v. King County, 83 Wn. App. at 345 (1996) (quoting RICHARD L. SETTLE, THEW ASHINGTON STATE ENVIRONMENTALPOLICYACT: A LEGAL ANDPOLICY 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 thatthe organizations lack standing to seekjudicialreview ofthe county's SEPA determination of 43No. 33194-6-III Conservation Nw. v. Okanogan County nonsignificance. It contends that the organizations alleged no "injury in fact" to one or

more ofits members, butrather 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 ofan issue file a notice ofappeal timely under RAP 5.2(f). By raising the issue ofstanding, Okanogan County seeks no affirmative relief. A prevailingparty is not required to cross appeal ifit seeks no affirmative reliefand may argue any grounds, supportedbythe 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 ofa 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 ofOkanogan County's standing defense. The concept of standing asks: who, ifanyone, does the law wish to litigate specific claims and issues. Courts resolve standing by reviewing the purposes behindthe law assertedby the plaintiff, measuring the plaintiffs connection to those purposes, and gauging injury to the plaintiff. 44No. 33194-6-III Conservation Nw. v. Okanogan County

SEPA grants an aggrieved person the right tojudicial review ofan 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 STATEENVIRONMENTALPOLICYACT§ 20(b) at 248 (1987)). In order to obtain review under SEPA statutes, the petitionermust 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). Theparty must allege: (1) his or her endangered interest falls within the zone ofinterests protected by SEPA, 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); Leavittv. Jefferson County, 74 Wn. App. at 678-79 (1994). The standing ofa nonprofit corporationto challenge governmental actions threatening environmental damage is firmly established in federaljurisprudence and Washington has adopted the federal approach. SA VE v. City of Bothell, 89 Wn.2d at 867; MagnoliaNeigh. Planning Councilv. City of Seattle, 155 Wn. App. 305,312,230P.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 ofits members are specifically injuredby a governmental action. SA VE v. City of Bothell, 89 Wn.2d at 867. Organizations have standing to assert the interests oftheir members, so long as the 45No. 33194-6-111 Conservation Nw. v. Okanogan County

members would otherwise have standing to sue, the purpose ofthe organization is germane to the issue, and neither the claim nor the reliefrequires the participation of individual members. Five Corners Family Farmers v. State, 173 Wn.2d 296, 304, 268 P.3d 892 (2011); Int 'lAss 'n of Firefighters, Local 1789 v. SpokaneAirports, 146 Wn.2d 207, 213-14, 45 P.3d 186, 50 P.3d 618 (2002). The purposes ofSEPA 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 ofhuman beings; and (4) to enrich the understanding ofthe ecological systems and natural resources importantto the state and nation. RCW 43.21C.010. Thus, SEPA's "zone ofinterests" contemplates broad questions of environmental impact, identification ofunavoidable adverse environmental effects, choices between long and short term environmental uses, and identification ofthe commitment ofenvironmental resources. Snohomish County Prop. RightsAll. 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 ofinterests. We agree. We also hold that CNW and MVCC allege sufficient injury in fact to establish organizational standing to seekjudicial review ofthe county's SEPA determination. A party meets the "injury in fact" prong ofstanding by showingthat the injury will be

46No. 33194-6-III ConservationNw. v. Okanogan County 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); Leavittv. Jefferson County, 74 Wn. App. at 679 (1994). In Lands Council v. Washington State Parks & Recreation Commission, 176 Wn. App. 787 (2013), this courtheld that the petitionerheld 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 ofaplannedprecise 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 wouldjeopardize wildlife and its habitat. The decision mentions little about the nature or members ofLands Council otherthan it was an environmental group. We find federal law concerningthe National Environmental ProtectionAct (NEPA) supports our conclusionthat CNW has standing. BecauseNEPA 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 ControlHr'gs Bd., 137 Wn. App. 150, 158, 151 P.3d 1067 (2007). Although standing does not strictly involve the interpretation ofa statute, the NEPA and SEPA policies coincide suchthat standing rules underboth statutory schemes should be similar. Our courts have followed 47No. 33194-6-111 Conservation Nw. v. Okanogan County organization standing rules established in federal environmentaljurisprudence. 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 plaintiffadequately alleges injury in fact when she avers that she uses the affected area and is an individual 'ror whomthe aesthetic and recreational values ofthe area will be lessenedbythe challenged activity. Friends of the Earth, Inc. v. LaidlawEnvtl. 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 ofone orboth of the plaintifforganizations, 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 ofthe federal agencies' grant ofa permitto construct a new coal-firedpower plant. The plaintiffs claimed violations ofNEPA, among other environmental statutes. The reviewing court agreed that the environmental organization showed adequate injury in fact. One club membertestified that he lived in the area and enjoyedtaking 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 48No. 33194-6-III Conservation Nw. v. Okanogan County highway, as well as noise and light pollution comingfromthe plant. Another member

was an avid bird watcher and nature photographer in the area. He expressed his concern that powerplant construction would affect one ofthe mostbeautiful areas he has visited. Closer to home, inNational Wildlife Federation v. Espy, 45 F.3d 1337 (9th Cir. 1995), environmental groups brought action underNEPA against the United States Secretary ofAgriculture and purchasers ofproperty, alleging that the transfer ofproperty without creating easements to protect wetlands violated NEPA. The reviewing courtheld that the complaint sufficiently alleged each element ofstanding. The allegations that several ofplaintiffs' members enjoy the aesthetic value ofthe 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 ofhow, when or where there will be harm to any area by reason ofthe ATV ordinance, and no evidence that any organization memberhas any interest beyond that ofthe general public in land adjacent to opened roads. Nevertheless, Okanogan County cites no decision that requires a study supporting damage to an environment in orderthat 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 aprecise location and time for the potential harm. 49

## 1 

# I

I 

### ' ! 

### l ' 

# j ! 

# I i No. 33194-6-III Conservation Nw. v. Okanogan County

The organizations anyway forwards direct and specific evidence ofdamage to the Okanogan County environment in precise locations as a result ofATVs. 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 ofstanding under environmental laws. Finally, Okanogan County maintains that, while CNW and MVCC may show damage to the environment by ATVuse, the two groups cannot show damage causedby opening additional roads to ATV use. We find no case thatrequires suchprecision of proofas to damage in orderto gain standing. Proponents ofthe ATV ordinance contend that the ordinance will attract ATV users to Okanogan County, thereby increasingthe use ofOkanogan County roads. Logically, the additional ATVriders will probably lead to

some off-road riding and some environmental damage. CNW and MVCC members have documented present and ongoing instances ofillegal ATV off-roadingthat increased with the opening ofan additional 597 miles ofcounty road to ATVtraffic. CNW alleges that its members will lose recreational space, aesthetic enjoyment, and sensitive wildlife areas

as a result ofincreased ATV traffic. In arguing that CNW and MVCC lacks standing, the county relies onHarris v. Pierce County, 84 Wn. App. 222 (1996). In that case, a citizens group challenged the adequacy ofPierce County's final environmental impact statement for the creation ofa system ofmulti-purpose trails. The group brought a writ ofcertiorari and attached 50 

# [No. 33194-6-111 Conservation Nw. v. Okanogan County

declarations from members statingthat theirproperty could be condemned by the county for the new trail system. We held thatthe group failed to establish standing because economic interests do not fall within the zone ofinterests protectedby SEPA and the

concern that property might be condemned did not establish an immediate, concrete and specific injury. Harris does notraise 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 SEPA's zone ofinterests. CNW and MVCC also argue that this court could analyze standing under a relaxed procedural analysis advocated inLujan v. Defenders ofWildlife, 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 ofstanding, we need not address this alternate grounds for standing. ESHB 1632 Both sides promote the 2013 law, ESHB 1632, as supportingtheirrespective 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 51

# l I 1 " q 

# j 1 I j 

## I 

# l 

# I**~** 

### i 

# I

i I 

# I 

# I I No. 33194-6-III Conservation Nw. v. Okanogan County

the environment orthe economic benefits ofATVriding prevails over any environmental harm. We discern no such legislativepronouncements. In enacting ESHB 1632, the legislature found: that off-road vehicle users have been overwhelmedwith 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 maintainpublic safety and good order. LAWS OF 2013, 2d Spec. Sess., ch. 23, § 1(1). Through ESHB 1632, the Washington legislature soughtto: (a) Increase opportunities for safe, legal, and environmentally acceptable motorized recreation; (b) decrease the amount ofunlawful or environmentally harmful motorized recreation; (c) generate funds for use in maintenance, signage, education, and enforcement ofmotorizedrecreation opportunities; (d) advance a culture ofself-policing and abuse intolerance among motorizedrecreationists; (e) cause no change in thepolicies ofany governmental agency with respect to public land; (t) not change any current ORV usage routes as authorized in chapter 213, Laws of2005; (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 entertainmentpurposes; 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 ofESHB 1632 opened state highways, with a speed limit ofthirty-five miles perhour or less, to the operation ofwheeled all-terrain vehicles (W ATVs). LA

### ws OF 2013, 2d Spec. Sess., ch. 23, § 6, codifiedatRCW46.09.455(1). Section 6 ofthe enactment also granted counties with apopulation offifteen thousand or more the

52No. 33194-6-III Conservation Nw. v. Okanogan County authority to open countypublic roadways for WATVuse. CodifiedatRCW 46.09.455(l)(c)(i). Portions ofthe bill are codified at RCW46.09.455. The preface to ESHB 1632 laments that off-road vehicle users have been overwhelmedwith varied confusing regulations and ordinances from federal, state, county, and city governments. Okanogan County does not suggest thatpreparation ofa thorough environmental checklist, before a county adopts an ordinance extending the miles ofroads for ATVuse, instigates confusing regulations or ordinances. The checklist does not create any new ordinances orregulations. Through ESHB 1632, the Washington Legislature soughtto stimulate rural economies by opening "certainroadways"to use by motorized recreationists. LA

### ws OF 2013, 2d Spec. Sess., ch. 23, § 1. Reference to "certainroadways" suggests the legislature was not anticipating a rural county to open all roadways to ATVuse, let alone all roadways with a speed limitunder 35 m.p.h. Also, the legislature's desire to stimulate local economies does not equate to a legislative wishto void environmental protections and free a local government from complying with SEPA. Tothe contrary, the legislature included in the law the desiderata ofincreasing "legal and, environmentallyacceptable motorizedrecreation" and conversely decreasing "the amount ofunlawful or environmentally harmfulmotorized 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 statedpurpose. 53No. 33194-6-111 Conservation Nw. v. Okanogan County

CNW and MVCC do not seekto preclude the opening ofall county roads to ATV traffic. Instead, the organizations advocate a selective opening ofroads. A county may follow both RCW 46.09.455 and SEPA by opening more roads to ATVtraffic after thoroughly considering the environmental impacts ofthe action. Statutes are to be read together, wheneverpossible, to achieve a harmonious total statutory scheme, which maintains the integrity ofthe respective statutes. In re Bankr. ofWieber, 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 ofthe 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 ofthe earlier one, is complete in itself, and is intended to supersede prior legislation, or (2) whenthe two acts cannotbe 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, RCW46.09.455(1)(c)(i) authorizes a county to open roadways to ATVs. 54No. 33194-6-111 Conservation Nw. v. Okanogan County

The statute does not authorize a county to avoid the provisions ofSEPA. Therefore, we

move to the heart ofthe dispute between the parties: whetherthe environmental checklist prepared by Okanogan County SEPA official Perry Huston satisfied requirements imposed by SEPA. Environmental Checklist The Washington State Legislature adopted the State Environment Policy Act in 1971 as a means to create aprocess to identify possible environmental impacts that may accompany governmental actions. These actions include issuing permits for private projects, constructingpublic facilities, or adopting ordinances, regulations, policies, or plans. Informationprovided during the SEPA 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 orto condition or deny a proposal because ofadverse environmental impacts. SEPA recognizes the broadpolicy "thateach person has a fundamental and inalienable right to a healthful environment." RCW 43.21C.020(3). State agencies are required to use "allpracticable means" to achieve the following goals: (a) Fulfill the responsibilities ofeach generation as trustee ofthe environment for succeeding generations; (b) Assure for all people ofWashington safe, healthful, productive, and aesthetically and culturally pleasing surroundings; (c) Attain the widestrange ofbeneficial uses ofthe environment without degradation, risk to health or safety, or otherundesirable and unintended consequences. 

### 55No. 33194-6-111 Conservation Nw. v. Okanogan County

RCW 43.21C.020(2). Over forty years ago, with the adoption ofSEPA, we first read in Washington law that each generation is a trustee ofthe environment for succeeding generations. Lands Council v. Wash. State Parks &Recreation Comm 'n, 176 Wn. App. at 807-08 (2013). Contrary to popularbelief, SEPA 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 ofWater 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). SEPA 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 ofSEPA constitute an environmental full disclosure law. Norway HillPres. &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 ofWater 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).

56No. 33194-6-III Conservation Nw. v. Okanogan County

RCW 43.21C.030(2)(c), a critical section ofSEPA, requires all counties to: Include in every recommendation orreport onproposals for legislation and other major actions significantly affecting the quality ofthe environment, a detailed statement by the responsible official on: (i) the environmental impact ofthe proposed action; (ii) any adverse environmental effects which cannotbe avoided should the proposal be implemented; (iii) alternatives to the proposed action; (iv) the relationship between local short-term uses ofthe environment and the maintenance and enhancement oflong-term productivity; and (v) any irreversible and irretrievable commitments ofresources 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 environmentrequire 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 SEPA defines "major action" circularly: "Major action" means an action that is likely to have significant adverse environmental impacts. "Major" reinforces but does nothave 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, asfurther specifiedbelow: (c) Legislativeproposals. (2) Actions fall within one oftwo categories: (a) Project actions

.... (b) Nonproject actions. Nonproject actions involve decisions on policies, plans, or programs.

57No. 33194-6-111 Conservation Nw. v. Okanogan County (i) The adoption or amendment oflegislation, ordinances, rules, or regulations that contain standards controllinguse or modification ofthe environment; (Emphasis added) (Boldface omitted). Okanogan County agrees that its adoption of Ordinance 2014-7 constitutes an action within the meaning ofSEPA. The county, however, contends the ordinance does not significantly impactthe environment. IfSEPA covers a local governmental action, the governmentnext determines if the action will "significantly affect"the environment. SEPA 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 SEPA 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 itselfto a formula or quantifiable test. The context may vary with the physical setting. Intensity depends onthe magnitude and duration ofan impact. The severity ofan impact should be weighed along with the likelihood ofits occurrence. An impact may be significant ifits chance of occurrence is not great, butthe resulting environmental impactwouldbe severe ifit occurred. Under case law, the agency shouldprepare the environmental impact statement whenever more than a moderate effect on the quality ofthe environmentresulting from the governmental action is a reasonable probability. King County v. Wash. State BoundaryReviewEd.forKing County, 122 Wn.2d 648,664,860 P.2d 1024 (1993). Under SEPA, evaluation ofaproposal's environmental impacts requires examination of 58No. 33194-6-III Conservation Nw. v. Okanogan County

at least two relevant factors: (1) the extentto which the action will cause adverse environmental effects in excess ofthose created by existing uses in the area, and (2) the absolute quantitative adverse environmental effects ofthe action itself, including the cumulative harm that results from its contribution to existing adverse conditions oruses 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 ofwhether a governmental action will significantly impactthe environment is calledthe 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 sufficientto evaluate the environmental impact ofa proposal. WAC 197-11-335; Moss v. City of Bellingham, 109 Wn. App. at 14. The agency issues a determination ofnonsignificance ifit 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). Ifthe local government decides that aproposal "mayhave a probable significant adverse environmental impact," the agency issues a determination ofsignificance and identifies the areas on which an environmental impact statement must focus. RCW43.21C.031; WAC 197-11-360(1); Lanzce G. Douglass, 154 Wn. App. at 422. A determination of significance mandates the preparation ofa full environmental impact statement. Moss v. City of Bellingham, 109 Wn. App. at 15 (2001). 59No. 33194-6-III Conservation Nw. v. Okanogan County

Before reaching the determination ofsignificance 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 ofa development permit, the applicant ofthe permit completes the environmental checklist. Ifthe action entails an ordinance, the local government prepares and reviews the checklist. This appeal centers on the environmental checklist prepared by Okanogan County SEPA official Perry Huston. By way ofthe environmental checklist, the responsible agency must showthat it considered the relevant environmental factors and that its decision to issue any determination ofnonsignificance was based on information sufficientto evaluate the proposal's environmental impact. RCW43.21C.030(2)(c); Wenatchee SportsmenAss 'n

v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000). The purpose ofthe checklist is to ensure an agency, at the earliestpossible 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 preparermay be required to submit additional information. WAC 197-11-335(1); Moss v. City of Bellingham, 109 Wn. App. at 14 (2001). This latterrule controls this appeal.

60

# ' I I I 

# I I 

# I 

# I ! ' No. 33194-6-111 Conservation Nw. v. Okanogan County

CNW and MVCC contendthat Okanogan County's DNS was clearly erroneous because the environmental checklist itprepared omits sufficient information to evaluate the probable environmental impacts on sensitive lands and waters, traffic congestion and safety, and public services and enforcement. CNWmaintains thatthe county ignored concrete evidence that illegal ATV off-road riding causes significant environmental harm and is difficult to preventbecause ofthe remoteness ofthe activity. CNW argues that the county's failure to considerthe proven impact ofATVriding rendered meaningless the process ofpreparing a SEPA environmental checklist. CNW asks this courtto declare Ordinance 2014-7 null and void because the inadequate environmental checklist led to a flawed declaration ofnonsignificance and a mottled ordinance. Okanogan County contends that, throughout the county's SEPA reviewprocess, CNW and MVCC provided only information onpossible 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 SEPA cases. Thus, it argues, the declaration ofnonsignificance was not clearly erroneous and we must uphold Ordinance 2014-7. We review the decision ofthe Okanogan County Board ofCounty Commissioners under the "clearly erroneous" standard. This standardprovides a broader or less deferential review than the "arbitrary or capricious" standardbecause it mandates a review ofthe entire record and all the evidence rather thanjusta search for substantial 61No. 33194-6-III Conservation Nw. v. Okanogan County

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 SEPA 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 convictionthat a mistake has been committed.'" NorwayHill v. King County Council, 87 Wn.2d at 274 (internal quotation marks omitted) (quotingAncheta, 77 Wn.2d at 259). Judicial review under the "clearly erroneous" standard also requires consideration ofthe "'public policy contained in the act ofthe legislature authorizing the decision."' NorwayHill, 87 Wn.2d at 274 (quoting former RCW 34.04.130(6)(e) (1967)). Consequently, thatpublic policy is a part ofthe standard ofreview. Norway Hill, 87 Wn.2d at 275 (1976); Schuffenhauer

v. Dep'tof Emp'tSec., 86 Wn.2d 233,235,543 P.2d 343 (1975). We now address some ofthe principles forwarded by Okanogan County to sustain Ordinance 2014-7. We then mention broadprinciples violated by the county's environmental checklist and list specific defects we find in the checklist. We then end with a discussion ofthe arguments forwarded by Okanogan County to uphold the ordinance. Okanogan County relies on the rule that, when aproposal changes neitherthe actual current uses to which the land was putnorthe impact ofcontinued use on the surrounding environment, that action is not a major action significantly affecting the environment and an environmental impact statement is notrequired. Chuckanut 62No. 33194-6-III Conservation Nw. v. Okanogan County Conservancy v. Dep 't of Nat. Res., 156 Wn. App. 274,285,232 P.3d 1154 (2010); ASARCOInc. v. Air Quality Coal., 92 Wn.2d 685, 706, 601 P.2d 501 (1979). We recognize the validity ofthis rule. We also recognize that the local government need not identify and evaluate every remote and speculative environmental consequence ofan 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 ATV ordinance merely continues the current use and current impact on the environment ofits roads. Many principles supportthe position ofCNW 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 ofits current action. Cheney v. Mountlake Terrace, 87 Wn.2d at 344; Eastlake Cmty Council v. RoanokeAssoc., 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 similarto SEPA, we may lookto 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 whenpreparing an initial 63No. 33194-6-111 Conservation Nw. v. Okanogan County

environmental assessment underNEPA. 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, withreasoned 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 ofdetailed information in environmental checklists and the requirement ofassessing potential environmental damage to areas surroundingthe governmentproject. The decision also joins federal law in condemning broad generalizations and rote answers in the checklist. In Spokane County, this court upheld a growth managementhearings board decision to invalidate a resolution amending the Spokane County's comprehensiveplan and zoning maps on the grounds that the resolution violated SEPA. The countyprepared 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 ofdetail 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 64No. 33194-6-III Conservation Nw. v. Okanogan County generalizations and formulaic language in the checklist. In short, the administrative record showed the county failed to fully disclose or carefully considerthe environmental impact ofamendments. Okanogan County's environmental checklist contains repetitive, superficial, conclusory statements regarding the potential environmental impact ofopening nearly 600 miles ofcounty roads to ATV use. The checklist is almost devoid ofspecific 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:

• Increasedtraffic as a result ofthe ATV ordinance;

• Offroad use encouraged by the opening ofthe roads and the usage's environmental impacts, including harm to soils, slopes, water, animals, and plants;

• Reported instances ofoffroad use and its damage to environment;

• Some segments ofroads being open to ATVtraffic but not connected to otherroads under 35 m.p.h.;

• Noise and airpollution resulting from both legal and illegal traffic;

• Adequacy offacilities, law enforcement, and emergency services to handle ATV use;

65No. 33194-6-111 Conservation Nw. v. Okanogan County

• Impact on threatened and endangered species from both legal and illegal traffic; and

• The applicability ofthe concerns raised by CNW inthe literature provided concerning the effects ofATVs 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 considertraffic congestions or emergency services need for increased ATV use. We disagree. InLanzce G. Douglass, Inc. v. City of Spokane Valley, 154 Wn. App. 408 (2010), this courtreversed the city planning division's decision to permit a housing developmentwithout first requiring an environmental impact statement. In so ruling, we noted thatthe city failed to considerthe difficulty in evacuating the development in the event ofan emergency. A hearing examinerhad concludedthat the development will add a significantvolume oftraffic to the already inadequate community transportation system. Despite Okanogan County's stated intent ofopening up roads to ATVuse in order to increase ATV-based tourism and recreation, the county insists that Ordinance 2014-7 will not result in a substantial increase in ATV traffic. This conclusion belies the county's stated goal ofthe ordinance. Okanogan County insists that, whenpreparing an environmental checklist, it need not consider off-road riding ofATVs, since such riding is illegal. The county impliedly contends that it need not consider unlawful behavior when considering environmental 66 

# INo. 33194-6-111 Conservation Nw. v. Okanogan County impacts. No law supports this argument. Instead, the county is to consider all environmental impacts, whetherresulting from legal or illegal conduct ofATVriders. In Center for BiologicalDiversity 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, consideredthe possible impact ofillegal bluefin fishing on the ocean environment. The government considered scientific reports that addressed illegal fishing when issuing a regulation. More onpoint is Sierra Club v. Bosworth, 352 F. Supp. 2d 909 (D. Minn. 2005). An environmental organization challengedthe Forest Service'splanned sale ofSuperior National Foresttimber. Any sale would necessitate the construction oflogging roads and the later closure ofthe roads. The organization argued, in part, that the newroads would encourage illegal ATV traffic in the forest. The court agreed that the government failed to sufficiently analyze possible unlawful conduct ofATVusers. The court noted the lack ofenforcement officers in the national forest and evidence ofprior illegal use offorest roads. The courtruled that: the Forest Service has not provided sufficient analysis to support its conclusory statementthat "newroad building or re-opening closed ones" are "notexpected to result in any cumulative adverse effects." The analysis ofthis factor favors the necessity ofpreparing 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,

67No. 33194-6-III Conservation Nw. v. Okanogan County

before opening roads to ATV traffic, the Forest Service must evaluate the impact on the environmentresulting from illegal ATV use. The Okanogan County environmental checklist omits listing ofplants and animals in the areas adjacent to the roads opened for ATV use. The countyjustifiesthis omission with the observationthat ATVs will only ride on roads. This county argument fails because SEPA does not limit the review ofenvironmental impact from governmental action to any precise boundaries or the narrow scope ofthe project. SEPA demands the listing and analyzing ofall environmental impacts resulting from an ordinance. The county's argument again also fails to recognize the possibility ofoff-road riding ofATVs attended to the opening ofthe roads. The federal court, in Greater Yellowstone Coalition v. US. Forest Service, ruled that the government must address the impact ofATV use beyondthe 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 challengedthe government's assessment ofthe environmental impact resulting from the opening ofroads to ATV traffic. The proposed motorized trail lay one-halfmile from the Caribou Mountain Recommended Wilderness Area. The Coalition argued that the Forest Service failed to considerthe effects ofhaving 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 

### 68No. 33194-6-111 ConservationNw. 

### v. Okanogan County

initial environmental assessment claimed that the opening ofthe road would "not affect the quality or quantity ofwilderness opportunity available now or into the future," and that none ofthe 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 ofthe project on the wilderness area. The Coalition also argued that the Forest Service should have considered the noise impact ofthe ATVs and possible off-trail use ofATVs. 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 ofopening a road to ATVtraffic. Greater Yellowstone Coalition, 12 F. Supp. 3d at 1279. Okanogan County forgets the nature ofATVs. AnATV is designed as an off-road recreational vehicle capable ofcross-country travel on land, snow, ice, mud, swampland

or other natural terrain. An ATV travels on multi-track, multi-wheel and lowpressure tires for all terrains. Okanogan County impliedly argues thatthe CNW and MVCC must showthat environmental damage is inevitable at one or more specific locations. We read no such requirement into the SEPA process. We also note that the opponent ofa governmental action holds no burden to showthe possibility ofenvironmental damage. Instead, SEPA

69No. 33194-6-111 Conservation Nw. 

### v. Okanogan County imposes the burden on the local government ofthoroughly exploring and analyzing the possibility ofenvironmental harm in an environmental checklist. During the commentperiod, 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 ofoff-road ATV use on sensitive areas. Nevertheless, the county received overwhelming evidence ofnegative impacts, including evidence ofactual off-road riding that damaged specified locations. Photographs confirmedthe environmental harm. We agree with Okanogan County that it need not consider, in the environmental checklist, the safety aspects ofriding an ATV on pavement. Environmental policy laws direct the government to consider environmental impact, notpublic safety. Metro. Edison Co. v. PeopleAgainstNuclear Energy, 460 U.S. 766, 772, 103 S. Ct. 1556, 75 L. Ed. 2d 534 (1983). An increased risk ofaccidents is not an impactto the physical environment needed to be consideredunder NEPA. Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1466-67 (9th Cir. 1996). InNorway HillPreservation andProtectionAss 'n v. King County Council, 87 Wn.2d at 275, the court ordered that an environmental impact statementbe prepared because ofthe county's failure to comply with the SEPAprocess. 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 70 

# INo. 33194-6-III Conservation Nw. v. Okanogan County adopting an ATV ordinance, must prepare an environmental checklistthat includes a complete disclosure and review ofinformation relevant to the environmental impactto the areas surroundingroads opened by the ordinance. A SEPA challenge addresses the legal adequacy ofthe environmental impact statement or environmental checklist and the actions taken in reliance ofthe environmental document, typically the enactment ofan 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 ofSEPA, thus agency action that does not comply with SEPA 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 ofSEPA. 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 checklistpreceding 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 ofdeclaring the environmental checklist insufficient.

71No. 33194-6-III Conservation Nw. v. Okanogan County

CONCLUSION We reverse the trial court's grant ofsummaryjudgment in favor ofOkanogan County and grantjudgment in favor ofCNW 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 courtto 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 ofthe panel has determined this opinion will notbe printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

I CONCUR: 

# d]Unu~,~· Siddoway, J.

72No. 33194-6-III Conservation Nw. v. Okanogan County Appendix

APPENDIX A Environmental checklistPrepared by Perry Huston We place in boldprintthe responses ofHuston: 1. Name ofproposedproject, ifapplicable: The proposal/project is an ordinance which opens approx. 597.23 miles ofexisting county roads to all

- terrain- vehicle (ATV) use. The county currently manages a road system of 1266 miles. There are currently 335.73 miles ofthose 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. Proposedtiming or schedule (including phasing, ifapplicable): 

### It is anticipated notice ofthe proposal and threshold determination ofnon-significancewill be published on April 16, 2014. A 14 day comment period for the SEPA determination will be conducted with review ofthe comments received immediately following. Subsequent determinations and the schedule for a public hearing on the proposal will be determined based on review ofthe comments received. Ifit is adopted the ordinancewill be effective immediately. 8. List any environmental informationyou know about that has been prepared, or will be prepared, directly related to this proposal.

73No. 33194-6-111 Conservation Nw. v. Okanogan County Appendix

There has been no other environmental information prepared relevant to this proposal. Any additional environmental information will be prepared ifnecessary to respond to issues identified during the comment period. 11. Give brief, complete description ofyourproposal, including the proposeduses andthe size oftheproject and site

.... The proposal/project is an ordinance which opens 597.23 miles ofcounty roads to all-terrain-vehicle (ATV) use. The county currently manages a road system of1266 miles. There are currently 335.73 miles ofthose roads open to ATV use. (See attached maps) 12. Location ofthe proposal. Give sufficient information for a person to understandthe precise location ofyourproposedproject, including a street address, ifany, and section, township, andrange, if

. known. Ifa proposal would occur over a range ofarea, provide the range orboundaries ofthe site(s). Provide a legal description, site plan, vicinity trap, and topographic map, ifreasonably available. While you should submit any plansrequiredbythe agency, you are notrequiredto 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. ENVIRONMENTALELEMENTS 1. Earth

a. General description ofthe site (circle one): Flat, rolling, hilly, steep slopes, mountainous, other

.... The proposal will involve already existing roadways throughout the county which cover a variety oftopographical features. See attached map for roadways included in the proposal. 

### 74

### No. 33194-6-111 Conservation Nw. v. Okanogan County Appendix

c. What general types ofsoils are found onthe site (for example, clay, sand, gravel, peat, muck)? Ifyouknow 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 ofsoil types already altered through road construction and paving or other surface treatments. d

..Are there surface indications orhistory ofunstable soils in the immediate vicinity? Ifso, 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 ofclearing, construction, or use? Ifso, 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 ofthis proposal. g. About whatpercent ofthe site will be coveredwith impervious surfaces after project construction (for example, asphalt orbuildings)? The proposal will open 597.33 miles ofexisting roadways to ATV use. 165.033 miles ofthese roads are currently paved. There will be no additional pavement installed or other road surfaces altered as a result ofthis proposal. h. Proposed measures to reduce or control erosion, or other impacts to the earth, ifany: There are no measures proposed to reduce erosion or other impacts to the earth, other than normal roadway maintenance activities, as a result ofthis proposal.

75No. 33194-6-111 Conservation Nw. v. Okanogan County Appendix

a. Air

a. What types ofemissions to the air wouldresult from the proposal (i.e., dust, automobile, odors, industrial wood smoke) during construction and when the project is completed? Ifany, generally describe and give approximate quantities ifknown. The proposal involves opening roadways in Okanogan County to ATV use that are already open to motor vehicle operation. The ATV's generate exhaustwhen in operation. The proposal does not involve increasing the number ofATV's in operation for any prescribed period oftime 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 ofthis proposal.

c. Proposed measures to reduce or control emissions or other impacts to air, ifany: There are no proposed measures to control emissions or other impacts. 3. Water

a. Surface: 1) Is there any surface waterbody on or in the immediate vicinity of the site (including year -round and seasonal streams, saltwater, lakes, ponds, wetlands)? Ifyes, describe type and provide names. Ifappropriate, state what stream orriver 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? Ifso, note location on the site plan.



### 76No. 33194-6-III Conservation Nw. v. Okanogan County Appendix

The proposal involves existing county roads some ofwhich lie within the 100 year flood plain. No new roadways will result from this proposal. See attached map for the location ofthe roads involved. 6) Does the proposal involve any discharges ofwaste materials to surface waters? Ifso, describe the type ofwaste and anticipated volume of discharge. There will be no discharge ofwaste materials to surface waters as a result ofthis proposal. b. Ground: 1) Will ground waterbe withdrawn, or will waterbe discharged to ground water? Give general description; purpose, and approximate quantities ifknown. There will be no groundwaterwithdrawn as a result ofthis proposal. There will be no water discharged to groundwater as a result of this proposal.

c. Waterrunoff(including stormwater): 1) Describe the source ofrunoff(including stormwater) and method ofcollection and disposal, ifany (include quantities, ifknown). Where will this water flow? Will this water flow into other waters? Ifso, describe. The proposal involves existing county roadways. There will be no increase in run -offor any alteration in the method ofcollection as a result ofthis proposal. 2) Could waste materials enter ground or surface waters? Ifso, generally describe. The proposal involves existing county roadways. There will be no increase in run -offor any alteration in the method ofcollection as a 

### 77No. 33194-6-III Conservation Nw. v. Okanogan County Appendix

result ofthis proposal. There will be no increase in waste materials as a result ofthis proposal. d. Proposed measures to reduce or control surface, ground, and runoffwater impacts, ifany: There are no proposed measures to reduce or control impacts to surface, ground, and run -offwater as a result ofthis proposal.

other 4. Plants

a. Check or circle types ofvegetation found onthe site:

___deciduous tree: alder, maple, aspen, other

___evergreentree: fir, cedar, pine, other shrubs

---

___grass



### --- pasture

--- crop or gram

--- wet soil plants: cattail, buttercup, bullrush, skunk cabbage,

___waterplants: water lily, eelgrass, milfoil, other

___othertypes ofvegetation 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. Whatkind and amount ofvegetation will beremoved or altered? No vegetation will be removed or altered as a result ofthis proposal.

c. Listthreatened or endangered species knownto be on or nearthe site. The proposal involves existing roadways located throughout Okanogan County. There is no endangered plant life on the existing roadways. 78

### No. 33194-6-111 Conservation Nw. v. Okanogan County Appendix

d. Proposed landscaping, use ofnative plants, or other measures to preserve or enhance vegetation on the site, ifany: There will be no landscaping as a result ofthis 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 ofaverage 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 ofaverage 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 sitepart ofa migration route? Ifso, explain. The proposal involves existing roadways located throughout 79No. 33194-6-111 Conservation Nw. v. Okanogan County 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, ifany: There are no new measures to preserve or enhance wildlife as a result ofthis proposal. 7. Environmental health.

a. Are there any environmental health hazards, including exposure to toxic chemicals, risk offire and explosion, spill, orhazardous waste, that could occur as a result ofthis proposal? Ifso, describe. There are no environmental health hazards as a result ofthis proposal. 1) Describe special emergency services that mightbe required. There are no special or additional emergency services as a result ofthis proposal. 2) Proposed measures to reduce or control environmental health hazards, ifany: There are no proposed measures to reduce or control environmental health hazards. b. Noise 1) What types ofnoise exist in the area which may affectyour project (for example: traffic, equipment, operation, other)?

80No. 33194-6-111 ConservationNw. 

### v. Okanogan County Appendix

The proposal involves county roads already open to vehicle travel. The current vehicle noise will not affect this proposal. 2) What types and levels ofnoise 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 whathours noise would come from the site. The proposal will result in vehicle noise in areas already open to vehicle travel. The number ofaverage daily trips is not anticipated to increase to a pointwhere 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, ifany: There are no measures proposed to reduce or control noise impacts. 8. Land and shoreline use

a. What is the current use ofthe site and adjacentproperties? The site ofthis proposal is currently used as county roads. b. Has the site been used for agriculture? Ifso, describe. The site has not been used for agriculture since the construction ofthe county roads.

c. Describe any structures onthe 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 currentcomprehensiveplan designation ofthe site?

81No. 33194-6-111 Conservation Nw. v. Okanogan County Appendix

The proposal involves existing county roads which transverse a variety ofcomprehensive plan classifications. g. Ifapplicable, what is the current shoreline masterprogram designation ofthe site? The proposal involves existing county roads which transverse a variety ofSMP classifications. h. Has any part ofthe site been classified as an "environmentally sensitive" area? Ifso, 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, ifany: Public roadways are a compatible and/or permitted use in all zones. 10. Aesthetics

c. Proposed measures to reduce or control aesthetic impacts, ifany: There are no proposed measures to control aesthetic impacts. 11. Light and glare a. Whattype oflight or glare will the proposal produce? Whattime ofday 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 projectbe a safety hazard or interfere withviews? This proposal does not create any light or glare beyond the 82No. 33194-6-III Conservation Nw. v. Okanogan County Appendix operation ofvehicles on existing county roads none ofwhich creates a safety hazard or interferes with views.

c. What existing off-site sources offight or glare may affect your proposal? No off-site source oflight 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 existingrecreational uses? Ifso, describe. The proposal will not displace any recreational uses.

c. Proposed measures to reduce or control impacts on recreation, including recreation opportunities to be providedby the project or applicant, ifany: There are no proposed measures to reduce or control impacts on recreational opportunities. 14. Transportation

83

# l I 

# ' i f 

# I I No. 33194-6-111 Conservation Nw. v. Okanogan County Appendix

a. Identifypublic streets andhighways serving the site, and describe proposed access to the existing street system Show on siteplans, ifany. The proposal involves existing county roads already open to vehicle travel. (see attached map) f. Howmany vehiculartrips perday would be generated bythe completedproject? Ifknown, indicate whenpeakvolumes would occur. Itis not known the total number ofvehicle trips per day generated by this proposal. Itis not anticipated that any increase in vehicle trips will result in reduced level ofservice classification for any road in the proposal. Itis likely peakvolumes 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)? Ifso, generally describe. The proposal will not result in an increased need for public services. b. Proposed measures to reduce or control direct impacts onpublic services, ifany.

84

### No. 33194-6-111 Conservation Nw. v. Okanogan County Appendix

There are no proposed measures to reduce or control impacts on public services. 

### CP at 253-66.

85 

# f f 

# INo. 33194-6-111 Conservation Nw. v. Okanogan County Appendix

APPENDIXB Town ofWinthrop Planning Commission Letter to Perry Huston

To date, the Town ofWinthrop has declined to take aposition on ATV use in town, due in large partto the fact that the Town Council would like to know how ATV traffic wouldbe accessing Winthrop. In light of this fact, the Planning Commission find that the SEPA Checklistprovides inadequate analysis ofthe impacts ofopening all roads withinthe speed limit range proposed, and does not address the need for contiguous routes. We think that a more complete analysis shouldbeperformed including the following items ofconcern for us as a localjurisdiction within Okanogan County: Under Section 8, Land and Shoreline Use, the Checklist states that none ofthe roads are classified as "environmentally sensitive," however it does not address whetherthese 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 ofthe proposal. Under section 12, Recreation, the checklist states there are no impacts to recreation otherthan to provide another means oftransportation to recreational locations. We suggestyou considerwhere 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 ofrecreation. Under Section 14, Transportation, we suggestyou include analysis ofhow the roads being opened connectto localjurisdictions such as Winthrop, and how the traffic pattern may be affected around population centers ofthe 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 ATVs will arrive on these sections ofroad, and ifthere is any consideration ofparking for trucks and trailers. Additionally under Transportation, we believe the checklist needs to include a reasonable estimate ofthe amount oftraffic 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 concernedthat enacting this proposal without adequate analysis could result in impacts to local law enforcement. 

### 86No. 33194-6-III ConservationNw. v: Okanogan County Appendix

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.

87·I'. ,,

# I No. 33194-6-111 ConservationNw. v. Okanogan County Appendix

APPENDIXC May 2, 2014, Methow Valley Citizens Council and ConservationNorthwest Joint Submittal to the Okanogan County Office ofPlanning & Development MVCC and CNWbelieve that in reaching a DNS, the County failed to analyze 1) the likelihood ofsignificant 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 ontraffic of ATVs traveling on roads with speed limits over 3 5 mph, eitherbecause of confusion over where ATVs are and are not allowed, or because the operator wants to traverse an unauthorizedroad segmentwith 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 ATVs are and are not allowed; and 4) the actual traffic impacts of additional vehicles onthe roads that would be opento ATVs underthis proposal. 1. The evidence ofdamage to lands, waters, vegetation, and fish and wildlife habitat from illegal off-roadriding is overwhelming, andthe County has failed to considerthe significant impacts ofIllegal off-road riding that can be anticipated from opening roads in environmentally sensitive areas. In many responses in the SEPA Checklist, the County presumes that ATVs are exactly like all other vehicles that are already allowed onthe roads and considers only the impacts to the road itselffrom opening the road to ATVs. On the contrary, the very name "all-terrainvehicles" 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, evenwhen 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 ofdamage to land from illegal off-road riding ofATVs. In light ofthe overwhelming evidence, it is simply unreasonable and inconsistentwith SEPA to ignore the fact that illegal off-road riding is widespread and to assume that all ATV operators will obey all laws.



### 88No. 33194-6-111 Conservation Nw. v. Okanogan County Appendix

For example, under the topic ofEarth on page 3, the checklist asks about steepness ofslopes, kind ofsoils affected, history ofunstable soils, likelihood oferosion, 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 ofillegal off-road operation ofATVs. The evidence shows, however, that off-road riding is likely and that it will cause erosion, particularly in areas ofsteep slopes orunstable soils. Consequently, the County must assume some amount ofillegal riding and assess impacts on soils adjacent to roads, especially in areas ofsteep slopes orunstable soils. Similarly, in the Environmental Element ofWater on page 4, there are questions as to whetherthe proposal is adjacent to or within 200 feet of surface waterbodies, 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 waterbodies eitherby ATVs riding directly through streams or by causing erosionthat can end up in streams. The checklist continues in the same vein. n responses to questions regarding the nexttwo 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 ofimpacts to vegetation orwildlife adjacent to, ormade accessible by, existing roads. Once again, it is incumbent on the County to acknowledge thatATVs are not like most other vehicles in that they are designed and intended for off-roadtravel. The literature is replete with examples ofserious damage to vegetation and, wildlife habitat

- including spawning streams for endangered fish

- from illegal off-roadriding. (See especially studies referenced by Backcountry Hunters & Anglers, AppendixB.) Otherresponses in the checklist fail to considerthe likelihood of damage from off-road riding. On page 8, the checklist asks: "Has any part ofthe site been classified as an environmentally sensitive area? Ifso, specify." The County's answer is: "Noroadways 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 openedto ATVtraffic "are in some cases located nextto areas underregulatory protection or eligible for regulatory protection," butthat this is not an issue because "theproposal 89 

# INo. 33194-6-III Conservation Nw. v. Okanogan County Appendix

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 "theproposal, involves existing county roads already open to vehicle travel. There will be no impacts to plants, fish, ormarine life. The proposal does not create any new roads or open any roads not currently open to vehicle travel." Many miles ofroadways in theproposal travel through, orgive access to, Washington Department ofFish & Wildlife (WDFW) Wildlife Areas or state parklands. (See attached road list, AppendixA that shows roads in the proposal that access these public lands in the Methow Valley.) Surely there are environmentally sensitive areas on these lands, butthe County has failed to ascertain the extentto which these areas may be adversely affected by off-road riding facilitated by this proposal. WDFW and State Parks prohibitATVs both on and offroad, yet the proposal would provide ATV access to and through these lands, thus creating an enforcement nightmare for these agencies. Many other miles likely are adjacent to spawning streams ofat least one ofthe County'sthree federally listed threatened or endangered fish species, but the County has failed to do any surveying ormappingto determine whatprotected species ortheir habitat may be made vulnerable to ATV access bythis proposal. Onpage 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 existingplans?" The County response is: "The county roads are in some cases located next to areas, under shoreline protection." This is another example ofsensitive 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 SEPA analysis on this proposal is that there will be some illegal riding and consequent damage to soils, waterbodies, shorelines, vegetation, wildlife, protected species, and governmentally protected sensitive areas. To reduce the likelihood ofthat damage, MVCC and CNW request that roads thattravel through, orprovide access to, WDFW lands or state parklands be removed from this proposal. In the alternative, we requestthat 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. 

### 90No. 33194-6-III Conservation Nw. v. Okanogan County Appendix

2. The County failed to considerthe impacts on traffic ofATVs traveling on roads with speed limits over 3 5 mph, eitherbecause of confusion overwhere 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 longerrides only ifthe operator illegally rides on roads thathave speed, limits over 35 mph. (See Appendix A for a list ofthese roads in the Methow Valley.) 

### It is likely that some riders will ride on segments orroads with higher speed limits, eitherbecause ofconfusion over where ATVs 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 ofshort segments connected only by roads or segments with higher speed limits, all ATV riders would both 1) understand where they may and may not ride, and 2) stay only on roads on whichATVs are allowed. This is an unsupported and unrealistic assumption. In the MethowValley 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 longerthan two miles which offerno realistic opportunity for ATVtravel 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 CNWrequest 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 MethowValley are shown in Appendix A (columns K, L, and N). 3. The County failed to considerthe impacts onpublic services of the need for additional traffic enforcementto keep ATVs from riding offroad and to post signs indicating where ATVs are and are not allowed. Already thin local police and sheriffresources 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 ofoff-road riding and riding on roads with speed limits over 35 mph 91 

# f t tNo. 33194-6-111 Conservation Nw. v. Okanogan County Appendix

discussed above, the County should, provide additional traffic enforcement and post signs indicating where ATVs are and are not allowed. This would increase the cost ofbothpoliceprotection and public works. Yet the County states that "theproposal will not result in an increased need for public services." (Page 12, question 15) Eithernecessary signage and enforcement will be lacking, or there will be an impact onpublic services that must be evaluated and disclosed. 4. The County failed to considerthe 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 ofadditional vehicle trips per day or at peaktimes (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 ofvehicle 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 notknow whetherthe 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. Yetthe 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 pointwhere vehicle density on the roads will cause a significant increase in animal/vehicle collisions." (Page 6, response to question 5.a, b, and c, andpage 13, response to question 2) Surely there is information available on the amount oftraffic generated by opening roads to ATVs, since there are 336 miles ofroads in the County that are already open to ATVs. This information should be used to estimate the increase in traffic

- especially at peaktimes

- that can [be] expected from this proposal. Ifthis information is not available, it is because the County has failed to monitorthe impacts ofopening roads to ATVs, as it should have before opening more miles ofroads. Required mitigation measures for any proposal opening roads to ATVS should be 1) monitoring the increase in vehicle traffic on roads popularwith ATVs and ofanimal/vehicle collisions on these roads; 2) increased road maintenance where there is significantly more traffic due to the presence ofATVs; and

92

# l l 

# I No. 33194-6-111 Conservation Nw. v. Okanogan County Appendix 3) closure ofroads in which there is an increase in animal/vehicle collisions: Requested Action MVCC and CNWrequest that you withdraw the DNS and issue a Determination ofSignificance on the proposal. Following that determination, we ask that you either 1) prepare an environmental impact statement for the proposal, or 2) issue a newproposal andprepare a SEPA analysis for the new proposal, including a request for public comment. The newproposal 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 particularroad.) In particular, we request thatroads that travel through, or give access to, WDFW lands or stateparklands 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 aplan with cost estimates for timely installation ofsigns to indicate where ATVs are and are not allowed. Include aplan with cost estimates ormonitoring increases in vehicle traffic on popularATV routes and performing added maintenance on roads with significantly increasedtraffic. Include aplan with cost estimates for monitoring animal/vehicle collisions on popularATVroutes and closingroads with a significant increase in collisions. CP at 336-40 (footnote omitted).

93No. 33194-6-III Conservation Nw. v. Okanogan County Appendix

APPENDIXD A sample ofATV 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 differentATV'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 betterthan cars; trucks, and motorcycles. Thankyou 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 of35 or under. Rodney and Marie Maberry I am I00% in favor ofATVs 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 stirup trouble trying to prevent others from recreating. Danny M Whisler I am a resident ofOkanogan County in the UpperRendezvous near Winthrop. Ijustwanted to commentthat the..county is doing a goodjob 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 orpoint 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 ofadditional roads in these areas. But since these roads already existAND motorized traffic is permitted, then they should be opened to ATV's. The 94No. 33194-6-III Conservation Nw. v. Okanogan County Appendix existing laws regarding off-road traffic must be enforcedrigorously to preventruining the beautiful aesthetic qualities ofthe County. The problems, where they do exist, are with the drivers NOT the vehicles. Dan McFeeley I am a resident ofthe Methow 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 ATV go riding by on their way to spend money in the Town ofWinthrop. With my Recreation degree from Pacific Lutheran University, I know how important recreation is in our lives. Whateveryour sport is, it is importantto have moments in our lives to release stress. Hiking, biking, snowmobiling, ATVriding, and even birdwatching have positive effects. It is really sad to see people ofthe Methow be so prejudice[d]. Choosingto 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 ofOkanogan County. I don't even own an ATV. Craig Stahl, Winthrop We have received a copy ofthe Notice Packet re: Opening ATV Routes in Okanogan County and would like to comment on the SEPA Determination ofNon-Significance. We ask that our comments be included in the official projectrecord. Premier Polaris is the largest

- stocking Polaris dealership in Washington state, representing approximately 10,000 ATV enthusiasts that are interested in preserving access to ourpublic lands, increasing recreation-basedrevenue for Washington's rural communities, and fostering a new culture ofresponsible ATVriding. We are members ofthe Sky Valley Chamber ofCommerce, the Port-to-Pass Recreational Innovation Zone and a statewide collaborative that led to the passage of ESHB 1632 (regulating the use ofoff-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:

95No. 33194-6-111 Conservation Nw. v. Okanogan County Appendix

1. We supportthe ordinance allowingthe operation ofAll Terrain Vehicles (ATVs) on approximately 597.23 miles ofexisting countyroads with a speed limit of35 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 EPAmade a policy determinationthat ORV emissions levels are acceptable for the vehicles to be used throughout the United States. 3. Washington state law limits ORV soundto 86 dB(A) whentested in accordance with SAE J33la. By comparison, a vacuum cleaner emits sound of80-89 dB(A). 4. With respectto alleged damage to existing roads, Washington state law limits ORV weightto 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 andplace our name onthe mailing list ofinterestedparties sothat we maybe kept informed ofyourprogress on this matter. We canbe reached at 360

- 794- 8669 orvia email info@premierpolaris.com should you have any questions. LisaDriscoll, Owner Randy Driscoll, Owner Monroe, WA Please log my comments inrecognition and agreementwiththe determination ofnon-significance in regard to allowing the operation ofAll Terrain Vehicles (ATV's) on approx. 597.23 miles ofexisting county roads with a speed limit of35 mph or less. I am in full support ofopening the suggested roads to allow ATV's to travel onthem. My vacation dollars will be spent locally with these roads openingrather thanthose dollars goingto Montana orIdaho as they have done for a couple years now! It is only common sense that lighter more fuel efficientvehicles allowed on our roads is more environmentally conscious,justthe opposite ofhaving a significant impact on our environment. Doug Smith, Puyallup The Association ofOkanogan County Snowmobile Clubs is composed ofall ofthe snowmobile clubs in Okanogan and Ferry Counties 96 

# fNo. 33194-6-III Conservation Nw. 

### v. Okanogan County Appendix plus the Mountain Trails Grooming Association. Many, ifnot most, ofthe Association Clubs' members are ATVriders as well as snowmobile riders. The Association supports the opening of3 5MPH County roads to ATV use. Thomas Windsor CP at 370,371,378,385,387,395,398,399,401.

97No. 33194-6-111 ConservationNw. v. Okanogan County Appendix

APPENDIXE

2011 compilation by Backcountry Hunters & Anglers ofscientific studies Natural resources are affectedby ATVuse (Meadows et al. 2008). All-terrain vehicle use affects soil and hydrologic function primarily through soil compaction, increased soil strength, and removal ofthe forest litter layer in temperate environments (Ouren et al. 2007). Soil compaction and the removal ofthe forest litter layer can reduce vegetation growth (Webb et al. 1978) and is aprimary factor in accelerated erosion rates (Megahan 1990)

.... Compaction resulting from ATV travel reduced hydraulic conductivity 8% at the MT [Montana] site, 59% onthe 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 thepotential for ATVuse to result in significant degradation of hydrologic function overrelatively shorttime 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 ofATVtravel (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 runoffand sedimenttransport can be substantial. Meadows et al. (2008) comparedthe effects ofATVtraffic across seven sites on diverse landscapes ranging from the Wenatchee National Forest in Washington State to the Land Betweenthe Lakes in Kentucky and concludedthat "ATVtrails are highrunoff, high sedimentproducing 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 ATVtrails to 1 7.6% after 40 ATVpasses in Montana. The decline in soil cover at the MT site resulted in increased surface runoffand suspended sediment concentrations. Suspended sediment concentrations in the runoffincreased 50% overpredisturbance levels after 40 ATVpasses. . . . Suspended stream sediments rose approximately 94X downstream ofan ATV trail crossing relative to 98No. 33194-6-111 Conservation Nw. v. Okanogan County Appendix

sediment concentrations above the ATV trail crossing. The results ofthe paired watershed study led the authors to concludethat increases in suspended stream sediment were a result ofa combination ofhighly erodible silt loam soils (common in the Inland Northwest ofthe United Sates) and ATVtrails acting as conduits for suspended sediment (Ricker et al. 2008)

.... Impacts ofATVtraffic on water quality and aquatic systems are not limited to increases in suspended stream sediments. ATVtrails 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 ofemission particulates that are transported in dust migration, settle onto vegetation, and subsequently washed offleafsurfaces by rain and snow and moved by surface water run-off. All-terrain vehicle operation in or near streams and waterways poses a serious waterpollution threat (Havlick 2002). This can have detrimental impacts on populations ofaquatic animals. Garrett (2001) (as cited in Taylor 2006) reported that environmentally sensitive aquatic species (including fish) were absent from OHV impacted sites onthe Nueces River in Texas, while unimpacted sites hosted numerous environmentally sensitive species. The magnitude ofthe effectATV use has on water quality is influenced by trail features including trail curvature and slope percentage. ATV impacts on vegetation are not limitedto removal ofvegetative soil cover. Reduced plant growth rates and populations ofnative species coupledwith increases in non-native andpioneeringplant 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 ofnitrogen in and ecosystems (Belnap 2002). This negatively affects plant performance because nitrogen is the element most limiting plant growth in desert environments otherthan water (Romney et al. 1978)

..... This review ofthe impact ofATV use on the physical environment suggests that the impacts are not only universal and cumulative, butthat much ofthe damage associated with their operation can be induced by a limited number ofusers over shorttime periods. Several researchers suggest the cumulative impacts ofATVuse exceedthe lands ability to 99

# I

I**~ ~** 

# I ' No. 33194-6-III Conservation Nw. v. Okanogan County Appendix

recover naturally, and thatrecovery to pre-disturbance conditions can take generations. Additionally, the effects ofATVtraffic on -site result in environmental consequences off-site (Ouren et al. 2007), significantly increasing the amount ofland affected by localized ATVuse (Brooks and Lair 2005). For example, Meadows et al. (2008) asserts that while a meadow may recover from a singlepass in a relatively shorttime frame, multiplepasses often result in damage that natural processes are unable to mitigate. This is supportedby Lathrop and Rowlands (1983) who state unequivocally that "restoration (ofsites 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 ofATV use onthe physical environment are: The impacts ofATV use are cumulative, universal, and can be achieved by low intensity traffic over short time periods. ATV use effects soil and hydrologic function primarily through soil compaction, increased soil strength, removal ofthe forest litter layer, and destruction ofsoil crusts. These changes in soil properties increase erosion and stream sediment deposition and decrease plantproductivity. Seasonal restrictions on ATV use are necessary to limit the impact of ATV use on soils, vegetation, and watersheds. Restricting ATV use in areas oflow road density is necessary to reduce the spread ofinvasive species and protectthe community structure ofnative species. ATV impacts on the environment are similarregardless ofthe type ofATV. Recovery from the impacts ofATVuse to pre-disturbance conditions can take generations. 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. Concerns about the effect ofoff-highway travel on wildlife include: direct mortality (Bury et al. 1977; Bury et al. 2002), habitat fragmentation (Ouren et al. 2007) and reductions in habitatpatch size the size ofan unfragmented "patch" ofland that supports at least one population ofwildlife (Reed et al. 1996; Forman et al. 2003), increases in 100No. 33194-6-III Conservation Nw. v. Okanogan County Appendix

the edge: interiorhabitatratio (reductions in animal populations at the edge offorest habitats referred to as the "edge effect"), and alteration ofanimal behavior (Canfield et al. 1999; Rowland et al. 2000; Wisdom et al. 2004a). Although direct mortality ofungulates resulting from collisions with ATV's is low, mortality ofseveral species ofreptiles have been documented due to off-highway travel (Brooks 1999; Grant 2005)

.

. . .Habitat fragmentation can disruptwildlife 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 offorest birds

·(Robinson et al. 1995). Alteration ofanimal behaviorresulting from disturbance (motorized or non - motorized) ranges from immediate, shorttermtemporary displacement to permanent abandonment offavored feeding areas (Geist 1978). According to Trombulak and Frissel (2000), animal behavior is modified through five mechanisms: 1. altered movementpatterns 2. changes in home range 3. altered reproductive success 4. altered escape response 5. alteredphysiological state ... The effect ofATVtravel on elk, and more generally, the effect of roads on elk, has been a focal point for researchers because ofthe documented aversion elkhave to roads opento motorized travel (Cole et al. 1997; Rowland et al. 2000), and for their social, economic, andrecreational importance (Naylor et al. 2009)

.... Elk (especially economically and biologically significantbull elk) preferentially use areas devoid ofmotorized activity. Elk require large blocks ofnon-motorized habitat for security. CP at 73-89.

101No. 33194-6-III ConservationNw. v. Okanogan County Appendix

APPENDIXF Letters and Declarations from Okanogan County Residents to the Board ofCounty Commissioners On June 11, 2014, Pearl and Howard Cherrington sent the Board ofCounty Commissioners photographs taken near Twisp River Rd that showed damage causedby offroad vehicles. The speed limit in the location ofdamage was 40 m.p.h. The Cherringtons alleged that operation ofATVs in unlawful areas was a continuous problem and that, despite reporting the illegality to authorities, riders leave the area before police arrive. John Olson, ofWinthrop, wrote to the Okanogan County Commissioner about a

new neighbor: As we all know, ATVs have the capability oftravelling across most landscapes, hence the term "all terrain." Manufacturers actually discourage ATV use onpaved 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 ourrecent experiences with illegal ATVuse and impacts in Okanogan County. New neighbors recently moved into a rental house along the Methow River near ourhome and property. They are surrounded byprivate property androads (WolfCreekRoad) closed to ATV use. In May ofthis year, we found them riding their ATVs on ourproperty and damaging vegetation within the river corridor. They subsequently used a private road to access WolfCreek Road and rode their ATVs 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 ifATV use on WolfCreek

102

# 1 .j ~··· ' 

# i 

# I I No. 33194-6-111 Conservation Nw. v. Okanogan County Appendix

Road was legal ornot. They saidthey would checkwith the County Commissioners, but I neverheard from them again. Afterthis episode, our new neighbors then used their ATVs to travel on the Methow Valley Sport Trails Association (MYST A) ski trail. This trail is closed to motorized use and, again, is located onprivateproperty where owners have granted an easement to MVSTA for non-motorized use. A particularly galling aspect ofthese incidents is the attitude ofthese ATV users to disregard any private property rights andjustcharge ahead with travelling over any terrain accessible to them. They never even had the decency to askpermission before cruising the private properties on their machines. This isjustone example ofthe impacts that are reasonably certain to occurwith 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 ofsuch expandedATVuse. The infringement onproperty rights, the impactto natural resources, and the limited ability oflaw enforcementpersonnel to respond toviolations are all legitimate reasons to more fully evaluate the impacts ofexpandedATV use in Okanogan County CP at 157. Lawrence David Hooper, a sixty-five-year-old resident ofTwisp, 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 ATV who had driven right up onto our lawn, who were demanding to recover anotherATV. She asked themto leave, having no idea whatthey 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 metby two men (last name Volvotny, iflremember correctly), one sitting on his ATV, glowering, and, the other, a younger man, approached me, and told me thathe and his father, (referring to the man on the ATV) were in the Coast Guard, and he asked, "You do respect the 103No. 33194-6-III Conservation Nw. v. Okanogan County Appendix Military don'tyou?" I responded that I did not understand how the issue of my respecting ornotrespecting the military had any bearing ontheir 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 SheriffsDepartment. She encouraged me to ask the two men to leave ourproperty and wait for the Sherriffat the bottom ofour driveway. This I did repeatedly, only to be metwith hostile glares. At one point in this exchange, when Erikahad come backup to our lawn, the father said, "We're in the Coast Guard. Ifyou don'thelp us, we won'thelp you when you need the Coast Guard." Finally the younger one said, "Wejustwant to retrieve our otherATV," and he pointed up the hill. "I mean, accidents happen!" he said. There, about 100 feet from one ofourbuildings, was a ruined ATV. Itwas explained to me that they had lost control ofit on the top ofthe hill, which is also ourproperty. The father claimed he had seen other ATVs on my land in the past (not to my knowledge, orto the knowledge ofmy neighbors who can see the side ofmy property not visible from our house). Atthis pointthe father and son, hoping to find a way to retrieve their wrecked ATV drove out my driveway, went backupon the hillside in back ofourbuildings, supposedly to survey away ofapproaching the wrecked ATV, in spite ofmyhaving explained to them thatby doing so they would still be trespassing. Atthis time their two friends showed up below my house with a small flatbed trailer. AndDeputy Ottis Buzzard and an officer from Twisp approached them. The father and the son seeing the officers went down the back side ofmy hill and drove down Balky Hill to the flatbed trailer and their friends, who were the actual owners ofthe wrecked, brand new ATV. Deputy Buzzard came up to ourhome and we rain him through the details ofour encounter. He explained to us that we were legally obligated to let them take theirruined vehicle away. The two young men who o~ned the vehicle approached us and I explained very specifically how to approach the ATV to be retrieved. . . . I was hoping to minimize any damage to the land and vegetation by their 'havingto drag the wrecked ATV. Erika and Rachel and I wentback into the house and Deputy Buzzard left. Itwas dark when they finally drove up the hill with the Volvotny's ATV, but instead offollowing my instruction drove up within sixty feet ofthe house and dragged the wrecked vehicle down the hill, not on the fire break but howeverthey found most convenient. 104No. 33194-6-III Conservation Nw. v. Okanogan County Appendix

I was encouraged to contact Stephen King ofthe Conconully ATV club. I was told thathe was very vocal aboutthe need for ATVers to police themselves and actresponsibly. I do notrecall ifI 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 neverheard from him either. I suspectthatthe vast majority ofATVers are responsible and considerate people. We don'tneed to worry aboutthem. We needto worry and clearly have reason to worry aboutthose who are not considerate or responsible. ATVs are meant for offroad travel. There will be damage to privateproperty, there will betrespasses, there will be accidents that result in injuries, andpossibly deaths. These all needto be given careful and clearheaded considerationwhen decisions are made about opening up roads to the use ofATVs. CP at 158-62. Hooper inserted a photograph ofthe damage to his land from dragging the ATV. CP at 61. Philip Millam also proffered a declaration to the Board ofCounty Commissioners. Millam declared: I am a fulltime resident ofthe MethowValley residing at ... Winthrop. I live close to lands managedbythe Washington State Department ofFish and Wildlife (WDFW). Inthe summerof2008 I was working onmy former property on Lonesome Grouse Road near Winthrop when I heard noise from ATVs coming from WDFW land. The land is part ofthe Methow Wildlife Area, known as Little Cub Creek. The land lies betweenthe Cub CreekRoad 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 occasionthey stopped and appearedto be cutting a wire fence separatingthe WDFW land from private land. As they approached my land, I fired two blackpowderblanks in the air from my 12 gauge over and under shotgun. This appearedto gettheir attention. At no time did I point my gun in their immediate direction orthreatenthem. The ATVs departed my land forthwith, heading back inthe direction from which they came. 105No. 33194-6-111 Conservation Nw. v. Okanogan County Appendix

In September or October of2013 I was returning from the gun range near Perrygin State Park when I observed two ATVs riding on grassy lands belonging to WDFW,just offthe 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. Theirreply 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 backthe 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 ATVriders who would otherwise choose to ride legally. CP at 169-70.

106

### No. 33194-6-111 Conservation Nw. v. Okanogan County Appendix

APPENDIXG Letter from ATV Safety and Health Care Professionals to Board ofCommissioners 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 ofATVs 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 ofATV access to roads is contrary to public safety andputs the operator and others at risk ofsevere injury or death. ATVs should not be driven on public roads because driving ATVs on public roads is more dangerous than operatingthem off-road, ATVs are not designed for roadway use, and ATVmanufacturers have policy statements strongly urging consumers notto operate theirvehicles on public roads. ATVroadway crashes account for over 60% ofdeaths and over 30% ofserious injuries. Roadway crashes are more likely to involve multiple fatalities, carryingpassengers, collisions and head injuries. Victims in roadway crashes were less likely to be wearingprotective gear such as helmets and were more likely to be carryingpassengers. Most importantly, ATVs are not designed to operate onpaved or public roads. An ATVs narrow wheelbase andhigh clearance are designed for riding in pastures, fields and wooded areas. The high center ofgravity increases the risk ofrollovers, particularly atroadway speeds. In addition, ATV's knobby, low- pressure tires allow for operation on a variety of surfaces, butthey do not grip roadway surfaces well (paved orunpaved). As tire

- surface interaction deteriorates with increasing speed, the operator can lose control ofthe vehicle, endangering not only the ATVrider but also occupants ofothervehicles, pedestrians, and bicyclists. In addition, many ATVs lack a rear differential which can compound on-road handling challenges. The lack ofa rear differential results in the wheels onboththe inside and outside ofa tumrotating at the same speed eventhough the wheels on the outside ofthe 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.

107No. 33194-6-III ConservationNw. v. Okanogan County Appendix

... In addition, the mandatory rules for ATVs require that all ATVs have a label indicating that ATVs should notbe operated onpavedroads or onpublic roads

.... We urge you to oppose this expansion ofATVuse onpublic roads because it places the public including ATV operators, pedestrians, bicyclists, and all motorvehicle drivers and theirpassengers atunnecessary risk. Rachel Weintraub, Legislative Director and Senior Counsel Consumer Federation ofAmerica Sue DeLoretto-Rabe, Co-Founder ConcernedFamilies for ATV Safety Gerene Denning, PhD Emergency Medicine University ofIowa, IowaATV Injury Prevention Task Force BenjaminHoffman MD FAAP Professor ofPediatrics Medical Director, Doembecher, Children's Safety Center Portland, OR Katie Kearney ConcernedFamilies for ATV safety Member Massachusetts·Safety Advocate Mary Aitken, MD MPHDirector, Injury Prevention Center at Arkansas Children's Hospital Jamie Schaefer-Wilson, Executive Director The Safety Institute Michael Best, PolicyAdvocate ConsumerFederation ofAmerica Carolyn Anderson, Co-Founder ConcernedFamilies for ATV Safety Charles Jennissen, MD Emergency Medicine University ofIowa, IowaATV Injury Prevention Task Force Ben Kelley, Director, Injury Control Policy The TraumaFoundation SanFrancisco General Hospital SanFrancisco, CA Robin D. Schier, DNP, APRN, CPNP AC/PC Pediatric Emergency Medicine Texas Children's Hospital Houston, Texas Gary A. Smith, MD, DrPHPresident, Child Injury Prevention Alliance Gordon S. Smith, MD (MB.ChB, Otago), MPHProfessor Department ofEpidemiology & Public Health, University ofMaryland School ofMedicine Charles "McC."Mathias National Study Center for

108No. 33194-6-111 ConservationNw. v. Okanogan County Appendix

Trauma and EMS Shock, Trauma andAnesthesiologyResearch.

- Organized Research Center. CP at 176-78.

1093 3194-6-III KORSMO, J. (dissenting)-There is a total disconnection between the county ordinance and the appellants' claim ofharm. 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 ofnonsignificance (DNS). Following the lead ofstate law, the county ordinance opens up thousands ofmiles ofcounty roadway to use by licensed and inspected WATVs 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 ofthe off-road vehicle (ORV) scourge that appellants seek to restrict. RCW46.09.360(2). The State Environmental PolicyAct, ch. 43 .21C 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 ofany vehicle.

1With the exception ofthe merits ofthe State Environmental Policy Act, ch. 43.21C RCW, claim, I concur in the result ofthe majority's other rulings. 

# \

# I j 

### i 

# l No. 33194-6-III Conservation Nw. v. Okanogan County (Dissent)

The only changes required by the new ordinance will be in the printing and posting ofthe newroad ordinance and, perhaps, a few newroad signs. No new asphalt or gravel will bepoured. No dirt will bepaved and no trees will be felled. A certain subclass ofOR Vs will bepermitted lawfully to drive on existing roadways alongside

more traditional vehicles. Those are the only changes wrought bythe ordinance. The county understandably looked at these minimal changes to the existing order, considered those changes in light ofthe 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 ofthe commentators properly focused their challenges to the ordinance due to its opening ofthe existing roadways to WATVtravel. The Confederated Tribes ofthe Colville Reservationpointed out that countyroadways within itsjurisdiction could not be opened to WATVtravel. The county responded by repealing its first ordinance and removing the roadways on the tribal lands from the next iteration. The towns ofTwisp and Winthrop objectedto the potential for increased emergency services resulting from vehicle-WATV 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 norpretends to authorize. The ordinance does not authorize WATVs (or othervehicles) to leave the roadway and travel in ditches or other off-road locations. 

### It does not encourage WATVs to leave the 2 

# I 

# ! t 

## lNo. 33194-6-III Conservation Nw. v. Okanogan County (Dissent) 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 newbank facilitates bank robberies. There will always bepeople who violate the laws, but we do not measure the environmental impacts ofa newregulation 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 enlightenedjurisdiction, the pestilential devices would be banned. However, we live in neither locale. The policy ofthis state is to encourage responsible use ofour beautiful environment by all comers in differing manners, even though not all uses are compatible. To that end wepermit 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 ORVusage. 

### It encourages use by licensed operators of road-worthy WATVs on existing roads, at the discretion oflocal authorities, ifthose vehicles havepassed an inspection and obtained a vehicle tag. Byproviding additional legal and safe places to drive WATVs, the bill diverts them from the off-road areas and, hopefully, lessens improper use ofthe devices in more sensitive areas. Bybringingthe 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.

3No. 33194-6-III ConservationNw. 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 WATV owners who are willing to comply with state law in order to lawfully use existing roadways. However, evidence ofirresponsible off-road use ofORVs is irrelevant to assessing the environmental impact ofallowing regulated WATVs to use existing roadways alongside otherresponsible, licensed vehicle operators. 2 It is not even an apples and oranges comparison. The county understandably noted the lack ofrelevance ofthe appellants' argument to the ordinance at hand. It properly focused on the impact oflawful uses permitted by its ordinance and discounted the impact ofunlawful behaviornot regulated by the ordinance. Itproperly issued the DNS.

2 The ludicrous premise ofappellants' argument is that WATVs will go to the expense ofmaking 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 orderto 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 offerno 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.

4

# l

1 

## f 

# i l No. 33194-6-III Conservation Nw. v. Okanogan County (Dissent)

There are many good policy reasons not to have automobiles and WATVs share the same road. 3 Those concerns were heard, butthe 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 ofbehaviorunrelated to its road usage ordinance. Only the environmental costs imposed by adding WATVs to the traffic mix on county roads

were relevant. What those riders might do in violation ofother laws, whether byriding off-road or conducting a drive-by shooting, was irrelevant. This was a simple calculus problem ofmeasuring the change brought about by the new ordinance and did not require the county to account for the potential sins ofall 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 itsjob and properly issued the DNS. Becausethe majority

reverses that decision on an irrelevant basis, I dissent.

3 When a road has a speed limit of35 m.p.h. or less, it typically means that either traffic congestion orroad conditions requires the lower limit. Mixing in the WATVs on these types ofroads, even where the speeds ofa WATVwould not impede other traffic, will only worsen the problem at hand. 

### 5 

# I