                                                                                          FILE
                                                                                 COURT OF APPEALS
      IN THE COURT OF APPEALS OF THE STATE OihNGTON
                                                                                2015 FEB - 3     AM 9: 07
                                                        DIVISION II
                                                                                 STATE OF WASHINGTON
ROBERT           SUDAR,         a    Washington         resident;                    No. 453 1. 9- -II
CHRIS        DOUMIT,           a     Washington         resident;                BY
                                                                                          QE; QTY
JOHN       HANSON,             a     Washington         resident;
MICHAEL             WULLIGER,                a     Washington
resident; JIM LONG, a Washington resident,


                                          Appellants,


          v.



DEPARTMENT OF FISH AND WILDLIFE                                              UNPUBLISHED OPINION
    COMMISSION,


                                          Respondent,


         and



    COASTAL CONSERVATION
    ASSOCIATION,


                                         Intervenor.


         MELNICK, J. —              Robert Sudar, Chris Doumit, John Hanson, Michael Wulliger, and Jim

Long,' commercial fishers, appeal from a superior court order dismissing their petition for judicial

review    of    the Washington Fish              and   Wildlife Commission'    s("   Commission ") Columbia River


Basin Salmon Management                 Policy    C -3620.    Sudar challenges the trial court' s finding that Policy
                                                                                               Act2 ( "
C -3620 is     not a rule     defined   by   the Washington Administrative Procedure                  APA ") and that


no   judicial   claim   for   relief   may be     asserted.   Sudar argues Policy C -3620 is a rule because it is a

directive or regulation of general applicability, and it establishes, alters, or revokes qualifications




    For clarity and not intending any disrespect, and because all of the commercial fishers assert the
same positions, the parties will hereafter collectively be referred to as " Sudar."
2
    Ch. 34. 05 RCW.
45378 -9 -II




or requirements relating to the enjoyment of benefits or privileges conferred by law. The

Commission argues that Policy C -3620 reflects its vision for and provides guidance to the

Washington Fish      and   Wildlife Department ( " Department ") on the salmon management in the


Columbia River Basin.         We reject Sudar' s claims and hold that Policy C -3620 is not a rule.

Accordingly, we affirm the trial court' s dismissal.

                                                     FACTS


         The Commission develops policies that will guide the Department in its management of


state resources.   See RCW 77. 04. 013       and   RCW 77. 04. 055( 1).       Columbia River recreational and


commercial      seasons   for salmon   are   established     by   rules.   Some are permanent and some are


temporary.      Permanent rules are promulgated through rule -making procedures under the APA.

Fishery season rules are developed annually; however, adjustments are made, as needed, during

the   season.   Emergency rules, also promulgated through the APA, are utilized to make seasonal

changes in response to real -time data about fish stocks, fishery catch information, and fishery

management needs.




         The process for developing fishery rules involves getting input through The North of

Falcon stakeholder consultation process and the Columbia River Compact.3 The North of Falcon

process is a pre- season public process that works with all harvest groups to develop

recommendations for summer and fall fishery seasons. It considers conservation objectives, legal

requirements,    individual   management policies       of states and       tribes,   and   policy   objectives.   The




3 The Columbia River Compact is the agreement between the states of Washington and Oregon on
fisheries in the Columbia River. RCW 77. 75. 010; RCW 77. 75. 020.     In keeping with customary
usage, " compact" is also used in this opinion to refer to Washington and Oregon agency directors


or their representatives acting on behalf of their respective Fish and Wildlife Commissions in the
administration of this agreement.




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45378 -9 -II




Columbia River Compact accepts input from joint staff, other agencies, tribes, and the public, and


it   allows   Washington         and   Oregon to    develop   and adopt concurrent        fishery   rules.   Once Columbia


River Compact participants reach an agreement, an " Action Notice" is published. Clerk' s Papers

 CP) at 370. It provides information to the public about management decisions that were reached


and rules that will follow. The actual regulation of fishery activity occurs when each state converts

Columbia River Compact decisions to enforceable fishery rules. Policy objectives guide adoption

of fishery rules.

          In January 2013, after a series of public meetings, the Commission adopted Policy C -3620

and    filed it    with   the   code reviser as a      policy    statement.    This Policy replaced two prior policy

statements adopted in 2009 and 2011. Policy C -3620 reflects the Commission' s vision for salmon

fisheries in the mainstem of the Columbia River and the Snake River. It provides the Department


a set of guiding principles and a series of actions it may follow to improve the management of

salmon in the Columbia River Basin.


          Policy C -3620 outlines a number of objectives, including phasing out the use of non-

selective gill nets in non -tribal commercial fisheries in the Columbia River' s mainstem and the

transition     of gill net use         to   off channel
                                                -       areas.    Additionally, Policy C -3620 envisions a gradual

increase      of   shares       of   Endangered Species Act ( ESA) -listed salmon for recreational fishers.


          The Commission has authority through the APA to adopt rules regulating the harvest of

fish and wildlife resources and to delegate its powers and duties to the director of the Department.

RCW 77. 04. 055( 2), ( 3), & (              5); RCW 77. 04. 130; RCW 77. 04. 020.            The Commission delegated


authority to the Director to adopt permanent and emergency rules to implement Policy C -3620

objectives.        In 2013, the Department adopted a series of fishery rules to implement the adaptive

objectives set      forth in     Policy     C -3620.   Generally,   the   rules adhered   to the   vision set   forth in   Policy
45378 -9 -II



C -3620 by apportioning ESA -listed salmon between recreational and commercial fishers and

limiting    the   use   of gill   nets.     See    Emergency   Rule -Making Order ( ERMO) WSR 13 - 08 -007


 effective   Mar. 21, 2013); ERMO WSR 13 - 09 -005 (                effective   Apr. 4, 2013); ERMO WSR 13 -09-


015 ( effective Apr. 9, 2013); ERMO WSR 13 - 11 - 055 (                 effective
                                                                                    May   14, 2013); ERMO WSR 13-


13 -012 ( effective June 8, 2013); ERMO WSR 13 - 14 -003 (                 effective    June 19, 2013); ERMO WSR


13 - 15 -047 ( effective    July     15, 2013); ERMO WSR 13 - 16 -024 (             effective   July   26, 2013); ERMO


WSR 13 - 16 -025 (       effective   July   26, 2013).   In contrast, some of the rules deviated from Policy C-

3620 by allowing for increased commercial allocation of ESA -listed salmon and the use of large -
net gill net gear.        ERMO WSR 13 - 04 -037 (           effective    Jan. 31, 2013); ERMO WSR 13- 11- 123


 effective   May 22,      2013); ERMO WSR 13 - 12 -011 (         effective      May   24, 2013); ERMO WSR 13 - 12-


036 ( effective    May    29, 2013); ERMO WSR 13 - 13 -027 ( effective June 16, 2013).


                                                   PROCEDURAL FACTS


           Sudar sought to invalidate Policy C -3620 and filed a petition for judicial review of

administrative      rules   in Thurston       County     Superior Court     pursuant      to RCW 34. 05. 570( 2).      He


asserted that under the APA, the policy was, in fact, a rule and he could properly seek judicial

review of    it. RCW 34. 05. 570( 2)(        c);   RCW 34. 05. 010( 16).     Sudar characterized Policy C -3620 as

a "   Regulation,"      and alleged the Commission exceeded its statutory authority by adopting Policy

C -3620 without following the APA' s rule -making procedures. Sudar urged the court to invalidate

the " Regulation" because the Commission exceeded its statutory authority by " adopting a rule"

that conflicted with the Commission' s statutory mandate to maintain a stable fishing industry in

the state. CP at 7.


           The Commission         moved     to dismiss   pursuant   to CR 12( b)( 6).     The Commission argued that


                                  be                       RCW 34. 05. 570( 2) because it did                      the APA
Policy C -3620      could not          challenged under                                                 not meet
45378 -9 -II



definition of a rule, it provided guidance for future agency action; it did not have any legally

binding effect on any person outside the agency, and it had no legally enforceable regulatory effect,

thus   no    justiciable controversy          and no claim    for    relief exist.   CP at 24. Coastal Conservation


Association intervened             as respondents.       It concurred with the Commission' s motion to dismiss,


also arguing that Policy C -3620 does not fit within the definition of a rule as established in the

APA.


             The trial court granted the Commission' s motion to dismiss. The trial court concluded that


Policy C -3620 is not a rule as defined in the APA, therefore, no justiciable controversy existed

under RCW 34. 05. 570( 2).


             Sudar appeals.


                                                          ANALYSIS


I.           STANDARD OF REVIEW


             Here, the superior court considered all declarations and exhibits the parties submitted in

support of the pleadings. "[          W] hen matters outside the pleadings are presented to, and not excluded


by,    the    superior   court,"    we treat a CR 12( b)( 6) motion to dismiss as a motion for summary

judgment. Brummett            v.   Wash. 's   Lottery,   171 Wn.     App.   664, 673, 288 P. 3d 48 ( 2012); CR 12( c).


As a result, we treat the trial court' s grant of the Commission' s CR 12( b)( 6) motion as a summary

judgment order.


             We   review a   summary judgment        order    de    novo.   Loeffelholz   v.   Univ. of Wash., 175 Wn.2d


264, 271, 285       P. 3d 854 ( 2012).     Summary judgment is appropriate where, viewing the evidence in

the light most favorable to the nonmoving party, there is no genuine issue of material fact and the

moving party is       entitled     to judgment   as a matter of     law. Loeffelholz, 175 Wn.2d       at   271. " A genuine


issue of material fact exists where reasonable minds could differ on the facts controlling the




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45378 -9 -II



outcome of       the   litigation."    Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P. 3d 886

 2008).      If reasonable minds could reach but one conclusion, the issue may be determined on

summary judgment. SentinelC3, Inc. v. Hunt, 181 Wn.2d 127, 140, 331 P. 3d 40, 46 ( 2014).

II.       THE POLICY IS NOT A RULE


          Sudar appeals the trial court' s legal conclusion that Policy C -3620 is not a rule as defined

by RCW        34. 05. 010( 16).      We hold that Policy C -3620 is not a rule subject to review under the APA

because it is not a directive or regulation of general applicability, and it does not establish, alter,

or revoke qualifications or requirements relating to the enjoyment of benefits or privileges

conferred by law.4

          Statutory      interpretation is    a question of   law   we review   de   novo.   State v. Franklin, 172


Wn.2d     831, 835, 263 P. 3d 585 ( 2011). We give effect to the plain meaning of the statute. Dep 't

of Ecology      v.   Campbell & Gwinn, LLC, 146 Wn.2d 1, 9 -10, 43 P. 3d 4 ( 2002).               We discern plain


meaning from the ordinary meaning of the language at issue, the context of the statute in which
that   provision       is found,   related provisions, and    the statutory   scheme as a whole.    State v. Engel,


166 Wn.2d 572, 578, 210 P. 3d 1007 ( 2009).                  When a statutory term is undefined, it is given its

ordinary meaning, which may be discerned from the dictionary. Estate ofHaselwood v. Bremerton

Ice Arena, Inc., 166 Wn.2d 489, 498, 210 P. 3d 308 ( 2009).                    If, after this inquiry, the statute is




4 As an initial matter, Sudar failed to provide corresponding issue statements to the assignment of
error   as    RAP 10. 3(    a)( 4)    Additionally, Sudar assigned error only to the trial court' s
                                      requires.


findings, not the summary judgment order. We waive Sudar' s technical violations of the appellate
rules to reach the merits of this case because Sudar' s briefing makes the nature of the challenge
clear, the violation is minor, there is no prejudice to the opposing party, and there is minimal
inconvenience to the          appellate court.    Union Elevator & Warehouse Co., Inc. v. State ex rel. Dept

of Transp., 144 Wn. App.               593, 601, 183 P. 3d   1097 ( 2008) ( citing State v. Neeley, 113 Wn. App.
100, 105, 52 P. 3d 539 ( 2002)); RAP 1. 2( a).



                                                              6
45378 -9 -II




susceptible to more than one meaning, we may look to aids of construction and legislative history.

Campbell & Gwinn, LLC, 146 Wn.2d at 12.


        The    statute   in dispute, RCW 34. 05. 010( 16), states in relevant part:


         Rule" means any agency order, directive, or regulation of general applicability (a)
        the    violation of which subjects a person             to   a   penalty   or administrative sanction; ( b)

        which      establishes,       alters,   or   revokes    any      procedure,      practice,    or    requirement

        relating    to     agency hearings; (          c)   which        establishes,     alters,    or    revokes   any
        qualification or requirement relating to the enjoyment of benefits or privileges
        conferred by law; ( d) which establishes, alters, or revokes any qualifications or

        standards for the issuance, suspension, or revocation of licenses to pursue any
        commercial activity, trade, or profession; or (e) which establishes, alters, or revokes
        any mandatory standards for any product or material which must be met before
        distribution or sale. The term includes the amendment or repeal of a prior rule, but
        does not include ( i) statements concerning only the internal management of an
        agency and not affecting private rights or procedures available to the public.

        As a preliminary matter, this definition of "rule" necessarily includes one of the five above -

listed categories, regardless of whether a directive is at issue. State v. Straka, 116 Wn.2d 859, 868,

810 P. 2d 888 ( 1991); McGee Guest Home, Inc.                   v.   Dep' t of Soc. &      Health Servs., 142 Wn.2d 316,


322, 12 P. 3d 144 ( 2000); Failor' s            Pharmacy       v.   Dep' t   of Soc. &    Health Servs., 125 Wn.2d 488,


493 -94, 886 P. 2d 147 ( 1994).           In this case, Sudar argues that the applicable category is contained

in RCW 34. 05. 010( 16)(        c).     Therefore, the issues are whether Policy C -3620 is one of general

applicability and whether it alters qualifications or requirements relating to the enjoyment of

benefits or privileges conferred by law.

        A.         Directive or Regulation of General Applicability

         Sudar first argues that Policy C -3620 is a rule because it is a directive that provides

authoritative instructions and specific orders as to how fish are allocated among commercial and

recreational    fishers,   gear   types that may be         used, and      fishery   openings.       Sudar further argues that


Policy C -3620 is a rule of general applicability because it has been applied uniformly to all

commercial       fishers   on     the   Columbia River.              We disagree.         Because         Policy C -3620 is   the
45378 -9 -II




Department' s vision statement written to guide agency staff and not the public, we hold that the

policy is not a rule of general applicability.

          Agency policy is of general applicability when it applies to all participants in.a program.

Failor's Pharmacy, 125 Wn.2d at 495; Hillis v. Dep' t ofEcology, 131 Wn.2d 373, 398, 932 P.2d

139 ( 1997).      In the present case, we reject Sudar' s argument that Policy C -3620 provides

authoritative    instructions   and specific orders.        Instead, upon examination of Policy C -3620, we

agree with the Department and hold that it is a directive to agency staff, not the public. Its purpose

is to guide agency staff who are tasked with promulgating rules to regulate; however, it has no

legally   enforceable     regulatory   effect on   fishers.       As Coastal Conservation Association states,


Policy C -3620 is only a vision for fishery management and thus is not an agency action of general

applicability.


          Sudar relies on Simpson Tacoma Kraft Co. v. Department ofEcology, 119 Wn.2d 640, 648,

835 P. 2d 1030 ( 1992),     to support his position. In that case, the court held that the Department of


Ecology' s standard for numeric water quality was in fact a rule because it was " an agency directive
which would subject the respondents to punishment if they do not comply with the standard."

Simpson Tacoma Kraft Co., 119 Wn.2d                  at    647.     Additionally, Ecology applied the formula

uniformly to     an entire class of entities.   Simpson Tacoma Kraft Co., 119 Wn.2d at 647 -48.


          In contrast, the vision outlined in Policy C -3620 is unenforceable until and unless the

Department      promulgates rules which can        be     enforced on violators.       A fisher cannot be penalized


for violating    Policy   C -3620.     Sudar mischaracterizes Policy C -3620 as providing authoritative

instructions    and specific orders applied        directly      to fishers.   Instead, the policy provides only a

presumptive management           framework the Department              will consider   along   with other   factors.   It


provides guidance in implementing a future vision for. fishery management through adaptive



                                                             8
45378 -9 -II



management.        Because Policy C -3620 does not require strict adherence to its objectives and

reaches only agency staff, it is not of general applicability to commercial fishermen.

        B.        Policy C -3620 does not Establish, Alter, or Revoke Qualifications or Requirements
                  Relating to the Enjoyment of Benefits or Privileges Conferred by Law

        Sudar next argues that Policy C -3620 establishes new qualifications or requirements

relating to the enjoyment of commercial fishing by changing the zones in which commercial

fishers may harvest      salmon and       requiring the   use of certain gear   types.   RCW 34. 05. 010( 16)( c).


Because Policy C -3620 does not operate with the force of law and does not preclude commercial

fishers' continued use of salmon harvesting licenses, it does not establish new qualifications or

requirements relating to the benefit of commercial fishing.

        An agency policy is subject to challenge as a rule pursuant to RCW 34. 05. 570(2) only

when it imposes an independent regulatory mechanism that operates with the force of law. Budget

Rent A Car                            of Licensing, 144 Wn.2d 889, 898, 31 P. 3d 1174 ( 2001).
                                                                                                         When an
                Corp.   v.   Dep' t

agency directive does not add any qualifications to the statutory basis for obtaining a benefit, it
does not constitute a rule. Budget RentA Car, 144 Wn.2d at 898. No justiciable controversy may

be alleged when agency action has no legal or regulatory effect or implicates no one' s legal

interests.     Wash. Educ. Ass' n v. Wash. Pub. Disclosure Comm' n, 150 Wn.2d 612, 622, 80 P. 3d

608 ( 2003).     Policy C -3620 does not qualify or restrict the ability to hold or obtain a commercial

fishing license. While it contains objectives that include phasing out the use of non -selective gill

nets and reallocated shares of salmon between recreational and commercial fishers, the Policy does

not regulate the time, manner, and method of fishing. The Policy does not place actual restrictions

on   commercial     fishers.     Rather, implementing rules must be adopted to manifest any type of

restraint on persons outside the Department.




                                                            9
45378 -9 -II



         Policy C -3620 acts as a guide for the management of fishing activity on the Columbia

River, but the        Policy     itself is   not applicable outside of           the Department.      Nor is Policy C -3620

binding or dispositive on the Department. The Department developed and will continue to develop

implementing rules based on the objectives of Policy C -3620 and evaluation of facts and data

relevant   to    fishery      management.          Policy C -3620 does not impose an independent regulatory

mechanism        that      operates      with   the force   of   law.   Thus, it does not establish, alter, or revoke


qualifications or requirements relating to the enjoyment of benefits or privileges conferred by law.

         C.           Implementing Rules Not Insulated from Judicial Review

         Sudar contends that because the rules adopted to implement Policy C -3620 conform to the

guidance provided by the Policy, the Commission and Department may implement the Policy free

of judicial     review unless           Policy C -3620 is   challengeable as a rule under           the APA. We reject this



argument because treating Policy C -3620 as a rule subject to challenge requires a court to second

guess agency policy determinations. Because we establish Policy -3620 is not a rule, and avenues

of judicial review are available to challenge Department rules, we do not conduct a review of the


policy determinations of the Commission in Policy C -3620.

          Sudar argues the legal distinction between Policy C -3620 and the Department' s

implementing           rules     is "   largely   meaningless."         Br.   of   Appellant   at   13.    This argument is


unpersuasive.              The    Commission        has     separate    policy     and   rule -making      functions.    RCW


77. 04. 055( 1); .    055( 2) & ( 5).        The APA encourages agencies to adopt policy statements to " advise

the   public of      its   current opinions, approaches, and            likely   courses of action."      RCW 34. 05. 230( 1);


Wash. Educ. Ass' n, 150 Wn.2d at 618 -19. RCW 34. 05. 010( 15) defines " policy statement" as

           A] written description of the current approach of an agency, entitled a policy
          statement by the agency head or its designee, to implementation of a statute or other
          provision of law, of a court decision, or of an agency order, including where




                                                                   10
45378 -9 -I1



        appropriate the agency' s current practice, procedure, or method of action based
        upon that approach.



Policy C -3620 fits squarely within the APA definition of a policy statement: it describes the current

approach of the Commission to Columbia River salmon management, provides the Department a


set of guiding principles to progressively implement, and prescribes the department' s method of

action based upon its management approach. Thus, Policy C -3620 is a policy exempt from judicial

review under RCW 34. 05. 570( 2).


         We recognize that avenues of legal challenge to the Department' s rules promulgated to


implement       Policy C -3620       are available.     Sudar maintains that a challenge to the Department' s


implementing rules is not possible due to the short term nature of the emergency rules, arguing

that emergency        rules are not reviewable under        RCW 34. 05. 720( 2)(   c).   Sudar provides no citation


in   support    of   this   argument.     Despite the emergency         rules'   short term nature, they are not

necessarily insulated from judicial review on the basis that the justiciable controversy is mooted

by   expiration of     the   rule.   We apply the principle of mootness with some flexibility, and if the

matter is one of significant public interest, courts may review a rule pursuant to RCW 34.05. 570( 2)

even if it is technically moot. In re Marriage ofHorner, 151 Wn.2d 884, 891, 93 P. 3d 124 ( 2004)

 a court may review a moot case if it presents issues of continuing and substantial public interest);

Puget Sound Harvesters Assn             v.   Dep' t of Fish & Wildlife, 157 Wn. App. 935, 938, 944, 239 P. 3d

1140 ( 2010) ( this court affirmed the trial court' s invalidation of two Department rules that were


                            Tacoma News, Inc.           Cayce, 172 Wn. 2d 58, 64, 256 P. 3d 1179 ( 2011).        In
technically     moot);                             v.




addition   to   remedies available under         RCW 34. 05. 350( 3),    courts may review emergency rules to

determine whether such actions are contrary to law or arbitrary and capricious. State v. MacKenzie,

114 Wn.     App. 687, 698 -99, 60            P. 3d 607 ( 2002).    Therefore, the Department' s rules are not


insulated from judicial review.




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45378 -9 -II



II.       MOTION TO DISMISS


          The trial   court   did     not    err   by   granting the Commission'            s    motion   to dismiss.   RCW


34. 05. 570( 2) provides for judicial review of agency rules. The trial court may grant a CR 12( b)( 6)

motion when no        facts   exist   that   would      justify   recovery.   Cutler   v.       Phillips Petroleum Co., 124


Wn.2d 749, 755, 881 P. 2d 216 ( 1994).              Because Policy C -3620 is not a rule as defined by the APA,

it is   not subject   to judicial     review under        RCW 34. 05. 570( 2).     Thus, no justiciable controversy

exists. Accordingly, we affirm the trial court' s dismissal.

          A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,

it is so ordered.




We concur:




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