IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

RAYMOND RESER,

Appellant,

v.

POLLUTION CONTROL HEARINGS 

BOARD, 

and

STATE OF WASHINGTON, 

DEPARTMENT OF ECOLOGY.

Respondents,

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No. 39115-9-III

UNPUBLISHED OPINION

FEARING, C.J. — We must decide whether the nonuse of water for fifteen years 

resulting from a tenant gaining possession of a farm and changing the crop grown on the 

land from irrigated asparagus to dryland wheat constitutes a “crop rotation,” within the 

meaning of RCW 90.14.140(1)(k), so as to avert relinquishment of water rights. We 

conclude that answering this question in the affirmative, as argued by Appellant 

Raymond Reser, stretches the concept of crop rotation beyond its elasticity. We affirm 

the Pollution Control Hearing Board’s (PCHB’s) dismissal of Reser’s appeal of the 

Department of Ecology’s (DOE’s) determination that the water rights on Reser’s 

Ferguson Farm terminated because of lack of use for more than five years. We also

FILED

OCTOBER 12, 2023

In the Office of the Clerk of Court

WA State Court of Appeals Division III
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2

affirm the PCHB’s determination that estoppel does not preclude DOE from asserting 

relinquishment. 

FACTS

This appeal concerns water rights attended to Ferguson Farm, 457.9 acres of 

agriculture land in Walla Walla County. Raymond Reser currently owns Ferguson Farm. 

The facts extend decades into the past and focus on water usage during the tenure of 

various owners and tenants. 

Previous owner Baker & Baker, a Washington corporation, acquired water rights 

for Ferguson Farm. On November 28, 1949, the state issued Ground Water Certificate 

378-A to reflect the existence of those rights. 

On some unknown date, Richard Reynolds and Hellen Sparrow purchased 

Ferguson Farm, and the pair farmed the land until 1981. Reynolds and Sparrow raised 

irrigated asparagus. They relied on an artesian well situated on the property as the source 

of water. 

Beginning in 1981, Richard Reynolds and Hellen Sparrow rented, under a fifteenyear lease, Ferguson Farm to K-Farms, Inc., a company owned by the Kimball family. 

The lease agreement included a right of first refusal to match the terms of any proposed 

purchase of Ferguson Farm. 

K-Farms severed the asparagus plants and planted winter wheat every year during 

its fifteen-year rental of Ferguson Farm. Winter wheat is a nonirrigated crop. Thus, K-
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3

Farms never irrigated the farmland. Nor did K-Farms maintain the farm’s irrigation 

system. 

On February 3, 1995, Raymond Reser purchased Ferguson Farm from the 

D. Richard Reynolds Trust and Hellen Sparrow. K-Farms had declined to exercise its 

right of first refusal to purchase the farmland. Reser’s acquisition of the land, however,

remained subject to K-Farms’ existing farm lease, under which the latter could farm 

Ferguson Farm for two additional seasons. 

On March 17, 1995, Larry Siegel, attorney for Raymond Reser, wrote to Bill 

Neve, then DOE’s Walla Walla office watermaster. Siegel’s letter read:

Dear Mr. Neve: 

I represent Ray Reser who recently purchased farm property located 

in Walla Walla County which has in place an artesian well. Mr. Reser 

wanted me to inquire as to whether or not there is a recorded water right on 

this property. I have enclosed with this letter a copy of the legal description 

of the property. Please let me know at your earliest convenience if a water 

right exists. 

Clerk’s Papers (CP) at 250 (emphasis added). On March 29, 1995, Watermaster Neve

replied: 

Dear Mr. Siegel:

Enclosed please find a copy of Certificate of Ground Water Right 

No. 378, together with a copy of the associated well log report. This water 

right is appurtenant to your client’s property per the legal description you 

sent to my office on March 27.

I did not find any other water rights appurtenant to the subject 

property.
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CP at 141 (emphasis added). 

Since the PCHB granted the DOE summary judgment, we view the facts in a glow 

favorable to Raymond Reser. According to Reser, K-Farms did not view his purchase of 

Ferguson Farm favorably and refused to provide him its chemical application history for 

the land. Without access to this history, Reser lacked knowledge of the chemicals 

previously applied to the land. His crop advisor alerted Reser to potential residual 

chemical contamination of the soil and advised him not to raise any legumes or alfalfa. 

Reser grew small grains, which did not require irrigation, on Ferguson Farm from 1997 

through 2000. 

Raymond Reser currently rotates the raising of soft white wheat, barley, garbanzo 

beans, and peas on Ferguson Farm. The rotation reduces irrigation needs on the farm and 

lessens the risk of disease. 

Since acquiring the property, Raymond Reser has intermittently irrigated Ferguson 

Farms with hand lines, wheel lines, and controlled flooding. Reser has not irrigated 

Ferguson Farm every year due to weather conditions and the variety of crops rotated on 

the land. He has maintained Ferguson Farm’s irrigation system in a condition permitting 

the access to water when necessary. Given the types of crops raised and the early date for 

harvest of winter wheat, Reser believes one viewing Ferguson Farm from the roadside or 
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5

by plane might conclude, in July through October, that he applies no irrigation even 

though the opposite may be true. 

Raymond Reser participated in a federal program that mandated reduced irrigation

during December 2007 through December 2011 and another program during 2013 

through 2019. The first program prohibited full-width tillage and required crop rotation, 

residue management, and a direct seeding system, all of which practices required Reser to 

reduce water use. To participate in the program, Reser replaced some mainline

equipment and upgraded other irrigation equipment. Reser spent $80,000 to maintain 

Ferguson Farm’s irrigation system under this first program. 

Beginning by at least 2013, Eric Hartwig, then DOE’s Walla Walla watermaster, 

twice visited Ferguson Farm each year as part of his normal job duties. Before 2017,

Hartwig did not observe any water being applied to the fields. 

In the summer of 2017, DOE agent Eric Hartwig observed a center pivot installed 

on Ferguson Farm and a new irrigation main line and flow meter. During that summer, 

Ferguson Farm neighbors registered disquietude, about the new irrigation system, to 

Watermaster Hartwig. Neighbor Todd Kimball filed an environmental report tracking 

system complaint. He later testified that, despite driving by Ferguson Farm occasionally, 

he never saw irrigation on the land until the installation of irrigation pivots in 2017. 

Kimball, a shareholder of the former tenant of Ferguson Farm, asserted a belief that the 

water right had been relinquished due to more than five years of nonuse. 
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In the Fall of 2017, DOE Watermaster Eric Hartwig initiated an investigation of 

water usage at Ferguson Farm to determine whether the water right on the land was not 

utilized for at least five consecutive years. Review of DOE’s records and aerial 

photographs confirmed water nonuse under Ground Water Certificate No. 378-A from 

1997 through 2016. On January 25, 2018 Watermaster Hartwig notified Raymond Reser 

that DOE had concluded Ferguson Farm had failed to employ water for beneficial use for 

more than five consecutive years before 2017. DOE granted Reser sixty days to submit 

evidence and explain why DOE should not relinquish the water right. 

On March 26, 2018, Raymond Reser’s attorney, James Browitt, responded to the 

DOE instruction to show cause to submit evidence. Browitt’s response included an 

affidavit of water use signed by Raymond Reser, United States Farm Service Agency 

crop data, letters from three people familiar with Ferguson Farm, and photos of Ferguson 

Farm fields. DOE Watermaster Eric Hartwig reviewed the information supplied by 

Raymond Reser. 

In October 2018, Gale Kimball, another shareholder of the former lessee K-Farms, 

forwarded a letter to DOE, in which Kimball averred that, from 1981 to 1996, K-Farms

did not irrigate the land authorized for use under Ground Water Certificate 378-A during 

the fifteen years K-Farms leased the property. Thus, DOE’s investigation expanded to 

years before Raymond Reser gained possession of Ferguson Farm. Gale Kimball added 

that, despite farming neighboring land, she never saw irrigation on Ferguson Farms until 
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2017. On December 27, 2019 Fred Kimball and Alfred Kimball, both owners and 

officers of K-Farms, Inc., respectively submitted affidavits describing the nonuse of 

water occurring from 1981 to 1996. 

By May 2020, DOE concluded that no water had been applied on Ferguson Farm 

and under Ground Water Certificate No. 378-A for a window of thirty-seven years from 

1982 through 2016. DOE also determined that no sufficient cause justified an exemption 

from relinquishment of the water right under Washington law. 

On May 5, 2020, DOE issued an order entitled Involuntary Relinquishment of 

Ground Water Certificate No. 378-A. The order outlined DOE’s findings of fact 

resulting from its investigation into the use of the water rights on Ferguson Farm. The 

order declared that Ground Water Right Certificate No. 378-A would be declared 

relinquished, unless within thirty days Reser appealed to the PCHB. 

PROCEDURE

Raymond Reser appealed to the PCHB. His appeal argued that any nonuse of 

water on Ferguson Farms was excused because of the crop rotation relinquishment 

exception found in RCW 90.14.140(1)(k). Reser also contended that Watermaster Bill 

Neve’s March 29, 2015 letter works an estoppel to silence DOE from asserting any 

invalid water right. 
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DOE filed a motion for summary judgment. As part of his response to the motion, 

Raymond Reser filed a declaration from Dr. Robert Thornton, an expert on agricultural 

crop production. In his declaration, Thornton averred: 

7. I have reviewed the water right relinquishment exemption under 

RCW 90.14.l40(k) in light of the historical crop production at the Ferguson 

Farm. Based upon my experience in the industry, the temporary change in 

the type of crops grown at Ferguson Farm from 1981 constitute an exercise 

of generally recognized sound farming practices. 

. . . .

9. A crop rotation which includes non-irrigated wheat for an 

extended period of time constitutes a sound farming practice. It is good for 

the soil as it increases organic matter. It is much better than fallow rotation 

(bare soil), which reduces the soil microbial soil populations over time. 

. . . .

11. The decision to rotate between raising non-irrigated wheat vs. 

irrigated wheat, and whether it is a sound farming practice, is also a 

question of economics. If the crop rotation works economically, it is a 

sound farming practice. 

12. I consult with growers that commonly practice a rotation of 

irrigated crop every other year followed by an irrigated crop the next year. 

13. The Ferguson Farm’s rotation from asparagus to dry land 

wheat, to a current rotation of wheat, garbanzos and peas constituted a 

reasonable crop rotation that does not deviate from sound farming 

practices. 

14. I have reviewed Mr. Reser’s affidavit dated March 26, 2018, and 

in particular paragraph 11 addressing the small grain operation from 1997 

to 2000. Mr. Reser’s rotation from continuous wheat to a small grain 

operation for a number of years is a sound farming practice given risk of 

crop loss, and lack of insurance coverage, due to possible residual 

chemical carryover. 

CP at 240-41 (emphasis added). 
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The PCHB granted DOE’s summary judgment motion, thereby rejecting the 

argument that Ferguson Farm qualified for the crop rotation relinquishment exception. 

The PCHB’s written decision read, in part:

However, Dr. Thornton did not address the issue of how it could be a 

sound farming practice when the extended crops only rotated when farm 

ownership changed over decades, or how such decades long change to 

dryland wheat farming constitutes “temporary change” in the types of crops 

grown. There is nothing in the record to indicate K-Farms made any 

intentional decision to farm non-irrigated wheat for 15 years in order to 

benefit the soil, or that it was part of any long-term sound farming practice. 

Indeed, Dr. Thornton stated in his declaration that growers “commonly 

practice a rotation of [non-]irrigated crop every other year followed by an 

irrigated crop the next year,” contradicting his opinion that a 15-year nonirrigated wheat crop constitutes a sound farming practice.

. . . Even construing all evidence in favor of the non-moving party, 

it would be an overly broad interpretation of the crop rotation exemption to 

conclude that a 15-year crop, that was only rotated when the property 

changed ownership, constituted a “temporary change” in types of crop 

grown “resulting from the exercise of generally recognized sound farming 

practices.” RCW 90.14.140(1)(k). Thus, the Board concludes Reser has 

failed to meet his burden of proving the crop rotation exemption applies to 

excuse the 1981 to 1996 time period of non-use.

CP at 371-72 (emphasis added) (footnote and citations omitted). The PCHB also 

concluded that Raymond Reser failed to establish with facts any of the elements of 

estoppel. 

Raymond Reser sought judicial review of the PCHB decision with the Walla 

Walla County Superior Court. The superior court transferred judicial review to this court 

without addressing the merits. 
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10

LAW AND ANALYSIS

On judicial review of the PCHB ruling, Raymond Reser renews his two principal 

contentions before the PCHB. He argues that the PCHB erred when ruling he failed to 

establish what we label as the “crop rotation relinquishment exception” found in 

RCW 90.14.140(1)(k). Reser also argues that the doctrine of equitable estoppel bars 

Ecology from alleging nonuse of water rights on Ferguson Farm prior to March 29, 2000

because in 1995, Watermaster Bill Neve wrote that water rights were “appurtenant” to 

Ferguson Farm. 

Crop Rotation Relinquishment Exception 

On judicial review of the PCHB ruling, Raymond Reser agrees that water on 

Ferguson Farm went unused from 1981 to 1996. He claims, nonetheless, that the PCHB 

erred in determining he failed to prove crop rotation between 1982 and 2000 sufficed to 

prevent relinquishment of the water right. The PCHB actually ruled that he did not meet 

his burden of proving the applicability of the crop rotation exemption to the period of 

nonuse beginning in 1981 and ending in 1996, during which time K-Farms rented 

Ferguson Farm. Therefore, we focus on that fifteen-year period of nonuse when 

analyzing whether evidence established a temporary crop rotation occurred. 

In his assignment of error, Raymond Reser does not explicitly argue that the 

PCHB improperly granted summary judgment on the issue of sufficient cause. 

Nevertheless, his arguments, requested relief, and references to summary judgment imply 
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that the PCHB erred in granting summary judgment because material facts concerning the 

applicability of the crop rotation exemption to the failure to beneficially use the water 

rights on Ferguson Farm from 1981 and 1996 remain in dispute. Thus, we address 

whether the evidence submitted creates disputed issues of material fact. CR 56(c). While

the administrative procedure act does not explicitly authorize summary judgment 

proceedings, caselaw permits agencies to hold such proceedings. Kettle Range

Conservation Group v. Department of Natural Resources, 120 Wn. App. 434, 456, 85 

P.3d 894 (2003); Eastlake Community Council v. City of Seattle, 64 Wn. App. 273, 276, 

823 P.2d 1132 (1992). 

Washington follows the western scheme of water rights based on appropriation. 

Loyal Pig, LLC v. Department of Ecology, 13 Wn. App. 2d 127, 140, 463 P.3d 106

(2020). Under the appropriation system, the water right holder must put the water 

claimed under the right to beneficial use or the holder relinquishes the right. RCW 

90.14.160; Department of Ecology v. Theodoratus, 135 Wn.2d 582, 595, 957 P.2d 1241 

(1998). Not only must the water right holder appropriate the water to gain the right to 

apply a quantity of water to appurtenant land, but the holder must continue to appropriate 

the water to preserve the right. 

RCW 90.14.160 declares: 

[a]ny person entitled to divert or withdraw waters of the state 

through any appropriation. . . who abandons the same, or who voluntarily 

fails, without sufficient cause, to beneficially use all or any part of said right 
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to divert or withdraw for any period of five successive years . . ., shall 

relinquish such right or portion thereof, and said right or portion thereof 

shall revert to the state, and the waters affected by said right shall become 

available for appropriation in accordance with RCW 90.03.250.

(Emphasis added.) RCW 90.14.170 and RCW 90.14.180 provide similar language in that 

they require relinquishment of water rights when the right-holder ultimately fails to make 

beneficial use of such rights for five consecutive years without sufficient cause. The 

pending dispute requires us to analyze one of the sufficient causes recognized as an 

exception to forfeiture. 

RCW 90.14.140(1) lists the sufficient cause exceptions to water rights 

relinquishment. The crop rotation exemption identified in RCW 90.14.140(1)(k) bears 

relevance to this appeal. RCW 90.14.140 states:

(1) For the purposes of RCW 90.14.130 through 90.14.180, 

“sufficient cause” shall be defined as the nonuse of all or a portion of the 

water by the owner of a water right for a period of five or more consecutive 

years where such nonuse occurs as a result of:

. . . .

(k) The reduced use of irrigation water resulting from crop rotation. 

For purposes of this subsection, crop rotation means the temporary change 

in the type of crops grown resulting from the generally recognized sound 

farming practices. Unused water resulting from crop rotation will not be 

relinquished if the remaining portion of the water continues to be 

beneficially used.

(Emphasis added.) Subsection (k) introduces three concepts, which overlap: crop 

rotation, temporary change in the types of crops grown, and generally recognized sound 
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farming practices. The Washington water code does not define any of these conceptions. 

No Washington decision has calibrated the parameters of the trio of concepts. 

We agree that, based on the expert testimony of Robert Thornton, K-Farms and 

later Raymond Reser engaged in sound farming practices. But Reser concedes that 

Thornton rendered no opinion as to whether a temporary change in crops grown occurred. 

We focus on whether a temporary change in crops resulting from applying sound farming 

practices occurred. 

We narrowly construe the exceptions to relinquishment outlined in

RCW 90.14.140(1) in order to implement legislative intent underlying the general 

provisions. R.D. Merrill Co. v. Pollution Control Hearings Board, 137 Wn.2d 118, 140, 

969 P.2d 458 (1999). The party claiming sufficient cause for nonuse bears the burden of 

showing how its nonuse falls under one of the narrow categories in RCW 90.14.140. 

R.D. Merrill Co. v. Pollution Control Hearings Board, 137 Wn.2d 118, 140 (1999); 

Department of Ecology v. Acquavella, 131 Wn.2d 746, 758, 935 P.2d 595 (1997).

We interpret statutes to give effect to the legislative intent. State v. Evans, 177 

Wn.2d 186, 193, 298 P.3d 724 (2013). We derive meaning from the context of the 

provision within the statute, as well as related statutes that disclose legislative intent.

Fode v. Department of Ecology, 22 Wn. App. 2d 22, 30, 509 P.3d 325 (2022). An 

undefined term is given its plain and ordinary meaning unless a contrary legislative intent

is indicated. State v. Ervin, 169 Wn.2d 815, 820, 239 P.3d 354 (2010). 
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DOE emphasizes language in RCW 90.03.390, which declares in part: 

“RCW 90.03.380 shall not be construed to prevent water users from making a seasonal 

or temporary change of point of diversion or place of use of water.” (Emphasis added.) 

Based on this language in this other water rights statute, DOE contends that “temporary” 

is synonymous with “seasonal,” which would require a change in crops once a year. 

Black’s Law Dictionary (11th ed. 2019) defines “temporary” as “transitory” and 

“limited.” 

The law imposes no maximum number of years allowed to qualify as a 

“temporary” change under RCW 90.14.140(1)(k). Unless one views the passage of time 

on earth from the vantage of God, to whom a thousand years is like a day just gone by, or 

from the vantage of the billions of years since the Big Bang, five years seems beyond the 

realm of temporary. Nevertheless, because we apply the crop rotation relinquishment 

exception only when the right would otherwise be relinquished, a “temporary change” 

must encompass at least a window of time lasting five years. Perhaps the law might 

require that, during each of those years, there is a change in a crop, but we need not 

decide such. Raymond Reser seeks to expand the notion of temporary to fifteen years. 

Since we must view exemptions narrowly, we conclude, based on the undisputed 

facts as to K-Farms’ use of Ferguson Farm, that no temporary change in crops occurred 

based on sound farming practices. K-Farms changed the land’s crop when it began its 

lease. Although K-Farms may have engaged in sound farming practices, no Kimball 
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family member expressed that K-Farms’ change from irrigated asparagus to dryland 

wheat resulted from sound farming practices. K-Farms never rotated to another crop 

during its fifteen-year lease. No Kimball testified that K-Farms deemed any change in 

crops to be temporary or that K-Farms intended to change to another crop. 

Wikipedia, an expression of common understanding, describes “crop rotation” as: 

Crop rotation is the practice of growing a series of different types 

of crops in the same area across a sequence of growing seasons. This 

practice reduces the reliance of crops on one set of nutrients, pest and weed 

pressure, along with the probability of developing resistant pests and 

weeds.

https://en.wikipedia.org/wiki/Crop_rotation (last visited Oct. 6. 2023). The raising of 

crops from 1982 to 1996 does not fit this description. 

Raymond Reser cites WAC 173-430-030(1), which recognizes agricultural 

burning as a practice that may be undertaken for crop rotation purposes. Nevertheless, 

WAC 173-430-030 does not provide any legal rules. The regulation provides definitions 

of terms found in the provision of chapter 173-400 WAC. WAC 173-430-030(1) defines 

“agricultural burning” as:

the burning of vegetative debris from an agricultural operation 

necessary for disease or pest control, necessary for crop propagation or 

crop rotation, or where identified as a best management practice by the 

agricultural burning practices and research task force established in 

RCW 70.94.6528(6) or other authoritative source on agricultural practices. 

Propane flaming for the purpose of vegetative debris removal is considered 

commercial agricultural burning.

(Emphasis added.) 
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The language of WAC 173-430-030(1) indicates that agricultural burning may be 

performed on land for reasons related to crop rotation and reasons unrelated to crop 

rotation. Just because K-Farms performed agricultural burning on the land at issue does 

not automatically indicate that it undertook the practice for crop rotation purposes. 

Estoppel

On March 1995, Raymond Reser’s counsel, by letter, asked DOE Watermaster 

Bill Neve whether there was a “recorded water right” on Ferguson Farm and whether “a 

water right existed.” CP at 250. Neve replied by attaching a water right certificate to the 

correspondence and penning that the water right was “appurtenant to” Ferguson Farm. 

CP at 141. We must decide whether Neve’s response works an estoppel that precludes 

DOE from now asserting that a five-year period of nonuse caused a relinquishment. 

A party asserting equitable estoppel must prove the following elements by clear, 

cogent, and convincing evidence:

(1) an admission, statement or act inconsistent with a claim later 

asserted, (2) reasonable reliance on that admission, statement, or act by the 

other party, and (3) injury to the relying party if the court permits the first 

party to contradict or repudiate the admission, statement or act.

Department of Ecology v. Theodoratus, 135 Wn.2d 582, 599 (1998). If a party asserts 

equitable estoppel against the government, the party must establish two additional 

elements. Because asserting equitable estoppel against the government is disfavored, 

(4) asserting the doctrine must be necessary to prevent a manifest injustice, and (5) the 
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exercise of government functions must not be impaired as a result of estoppel. 

Department of Ecology v. Theodoratus, 135 Wn.2d 582, 599 (1998). To prove manifest 

justice, the evidence must present unmistakable justification for imposition of the 

doctrine when a municipality has acted in its governmental capacity. City of Mercer

Island v. Steinmann, 9 Wn. App. 479, 482, 513 P.2d 80 (1973). 

We note that Raymond Reser’s counsel did not expressly ask in his 1995 letter

whether the water right was legal or valid. He instead asked if there was an existing 

water right appurtenant to the property. Existing may imply an unenforceable right. 

Watermaster Bill Neve employed the word “appurtenant,” and Reser claims the word 

“appurtenant” is tantamount to a legal right.

We further note that Raymond Reser knew or could have known, at the time of his 

counsel’s letter, that K-Farms had not watered Ferguson Farm for fifteen years and that 

the irrigation equipment was in disrepair. We do not know whether Reser informed his 

counsel of these facts, but counsel never volunteered such facts to Watermaster Bill 

Neve. No facts suggest that Neve conducted any investigation into the water use on 

Ferguson Farm, any relinquishment of the water right, or the enforceability of the water 

certificate. Neve never expressly declared that Ferguson Farm’s water certificate 

remained binding on DOE. 

We question whether, under the undisputed circumstances, Raymond Reser could 

reasonably rely on any representation of the DOE Watermaster as to whether or not 
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Ferguson Farm’s water right had been forfeited. We question whether manifest justice 

demands estoppel when counsel’s letter never disclosed the circumstances behind the 

nonuse of water on the farmland. We also question whether working an estoppel would 

impair a government function. 

Regardless of whether other elements apply, we reject application of estoppel, as a 

matter of law. To prevail, Raymond Reser must show that Watermaster Bill Neve 

represented that the water right was enforceable. We doubt Neve did so, but, if he did, 

such a representation constituted a legal representation. 

When the representation allegedly relied on is a matter of law, rather than fact, 

equitable estoppel will not apply. Department of Ecology v. Theodoratus, 135 Wn.2d 

582, 599 (1998). Whether DOE can issue a landholder a water right certificate on any 

basis other than actual beneficial use is an issue of law. Department of Ecology v.

Theodoratus, 135 Wn.2d 582, 600 (1998). Whether a water right remains valid despite 

nonuse also constitutes a question of law. 

CONCLUSION

We affirm the PCHB’s decision holding that water rights on Ferguson Farm were 

relinquished and the doctrine of estoppel does not preclude DOE from relinquishing the 

right. 
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A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040.

_________________________________

Fearing, C.J.

WE CONCUR:

______________________________ _________________________________

Lawrence-Berrey, J. Staab, J.