                                                                                        FILED
                                                                                  000,, OF APPEA1 -S
                                                                                      T
                                                                                     D111t SION II

                                                                                 2013 NOV 13       AM 11:   12

                                                                                         Er IR VIA SI-iIN- iON
                                                                                                         T,

                                                                                       msw
                                                                                  ff, IM IM
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II

SQUAXIN ISLAND TRIBE,


                               Respondent,                            No. 42710 -9 -II


        V.



WASHINGTON STATE DEPARTMENT OF                                   PUBLISHED OPINION

ECOLOGY, a State agency; TED STURDEVANT,
Director of the Washington Department of Ecology,
in his official capacity; CHRISTINE GREGOIRE,
Governor of the State of Washington, in her official
capacity; and MASON COUNTY, a municipal
corporation political subdivision of the State of
Washington,


                               Appellants.




        FORBES, J. *—   The Washington State Department of Ecology (Ecology) appeals from the

superior court' s order concluding that Ecology' s denial of the Squaxin Island Tribe (Tribe)' s

rulemaking petition was arbitrary and capricious, and requiring Ecology to engage in rulemaking

to amend watershed management rules to protect minimum instream flows of Johns Creek in

Mason County as requested in the Tribe' s petition. The Tribe contends that Ecology' s response

to its rulemaking petition failed to specifically address the Tribe' s concerns as required by RCW

34.05. 330( 1) and that Ecology' s decision not to engage in rulemaking due to budget concerns,

 Judge Jennifer Forbes is serving as judge pro tempore of the Court of Appeals, Division II,
under   CAR 21(   c).
No. 42710 -9 -II



other priorities, and lack of technical information was arbitrary and capricious. We disagree and

hold that ( 1) Ecology' s explanation of its refusal to initiate rulemaking satisfied RCW 34.05. 330

and ( 2) Ecology' s decision not to engage in rulemaking was reasoned and supported by the

record and, thus, it was not arbitrary and capricious. Accordingly, we reverse the contrary

decision of the superior court.


       The Tribe also attempts to challenge the validity of several existing watershed

management rules.     But the trial court did not reach the rule challenges, and they are not

properly before us for review.

                                                 FACTS


        The Tribe' s petition focuses on Johns Creek,' which is in the Kennedy -Goldsborough
                                                 2
Water Resource     Inventory   Area (WRIA 14).       In 1984, Ecology adopted a water management

rule for WRIA 14, chapter 173 -514 WAC, which set minimum instream flows for Johns Creek

and other creeks.   WAC 173 -514- 030( 2).   Ecology specifically considered the needs of

anadromous fish in setting the instream flows. It also seasonally closed Johns Creek to all

consumptive uses to protect early chum salmon runs. WAC 173 -514 -040. The Johns Creek

instream flows became a surface water right with a priority date of 1984.

        Despite the protections provided by chapter 173 -514 WAC, Johns Creek " flows have

continued to decline so that adopted instream flow levels are rarely met mid -
                                                                             February through

September."   Agency    Record Part B ( ARPB)        at   219. Since 1984, there has been considerable


development pressure on the Johns Creek basin. Ecology estimates that more than 280 new




  Johns Creek is in the Tribe' s usual and accustomed fishing area. The Tribe does not have
adjudicated water rights in Johns Creek.


2 The State is divided into 62 WRIAs. WAC 173 -500 -040.
                                                          2
No. 42710 -9 -II


                                                                    3
permit- exempt wells    have been drilled        since   that time .    Johns Creek is fed by ground water,

which contributes cold water that is critical to anadromous fish habitat. Reduced flows and


higher temperatures in Johns Creek are harming its small and fragile summer chum population.

          The Tribe alleges that junior wells in the basin are affecting or interfering with senior

surface water rights by capturing water that is otherwise destined for Johns Creek. Ecology

recognizes that the " corresponding drop in stream flows in Johns Creek and increased ground

water use suggests a
                        likely   correlation."    4 ARPB at 225. Both Ecology and the Tribe agree that

specific hydrogeological data and models are needed for informed decisions about managing and

allocating water use and protecting surface flows in the Johns Creek basin. The cost of such a

study has been estimated at $ 300, 000. Once funding is obtained, it will take at least two years to

perform the study and to make its results useable to decision makers. Ecology, the Tribe, and

Mason County have unsuccessfully sought funding for this study at various times.

          In December 2009, the Tribe filed a petition requesting that Ecology initiate rulemaking




3
 Permit -
        exempt wells are legislatively exempt from the public ground waters code' s permitting
requirement. RCW 90. 44. 050. But they are subject to the priority system; thus, permit- exempt
wells may not impair senior surface water rights such as instream flows. RCW 90. 44.030. See
also Swinomish Indian Tribal Cmty. v. Dep' t ofEcology, No. 87672 -0, 2013 WL 5689464, at
    10 ( Wash. Oct. 3, 2013) ( "[   A] minimum flow or level cannot impair existing water rights and a
later application for a water permit cannot be approved if the water right sought would impair the
minimum flow or level. ").


4 In 2008, a hydrogeologist for Ecology compared two sets of data collected 50 years apart and
recognized that " preliminarily, there are several indications that exempt well use has, in fact,
impaired a senior water right in the form of the [ minimum instream flow] established for Johns
Creek." ARPB at 81. But the hydrogeologist cautioned that there are " a lot of pitfalls associated
with    extrapolating too   much    from   so   few   years[']   worth of   data."   ARPB at 81.
                                                             3
No. 42710 -9 -II



to revise the WRIA 14 water management rule.5 The Tribe requested that Ecology promulgate a

rule withdrawing Johns Creek basin from new water appropriations pending a study of water
                                                                                                   6
availability in the basin. The Tribe     also requested various revisions   to existing   rules.




         Ecology denied the Tribe' s petition, explaining that ( 1) Ecology staff reductions and

potential new cuts were already limiting the agency' s ability to do comprehensive work on

instream flow rule development across the state and ( 2) additional information regarding the

hydrology and hydrogeology of Johns Creek basin was needed before a comprehensive rule

amendment could be undertaken. As an alternative to granting the petition, Ecology agreed to

seek funding to study the Johns Creek basin and to direct Mason County to limit ground water

withdrawals for new residential developments to in - ouse domestic use of water. 7
                                                   h




5
    The Tribe had filed   a similar petition            Ecology denied the 2008 petition and
                                               in April 2008.
adopted an " alternative path" that consisted of various tasks including: securing funding for a
study, clarifying permit exemptions, and working with Mason County and the port of Shelton on
conservation and decision -making standards. ARPB at 90. Due to Ecology' s lack of follow
through with the alternative path, the Tribe filed its December 2009 petition.

6
    Specifically, the Tribe requested that Ecology amend or promulgate rules extending the
seasonal closure for new consumptive uses of Johns Creek to year -
                                                                 round closure, withdrawing
from appropriation all waters of the Johns Creek basin, adopting a map delineating the vicinity of
Johns Creek for purposes of closure and withdrawal of the basin, prohibiting new surface water
diversions and ground water withdrawals (whether or not permit- exempt) that could impair
established instream flows, curtailing existing junior surface water diversion and ground water
withdrawals that cumulatively or individually impair senior instream flows, and revising other
provisions inconsistent with the law.


7 The Tribe appealed Ecology' s denial of its rulemaking petition to the governor under RCW
              but the governor denied the appeal. By separate letter to Ecology' s director, the
34. 05. 330( 3),
governor directed Ecology to take certain actions to protect Johns Creek from flow degradation.
The governor directed Ecology to ensure the port of Shelton does not exceed its legally
authorized water rights, secure funding for the needed ground water study, inform the public in
the basin about flow -
                     related problems in Johns Creek, reopen communication with Mason
 County to develop and implement a strategy to protect Johns Creek flows, and meet with the
Tribe to discuss instream flow rulemaking priorities.
                                                        4
No. 42710 -9 -II



         The Tribe petitioned for judicial review of Ecology' s denial of its rulemaking petition.

The Tribe also sought a declaration that certain existing WRIA 14 water management rules were

invalid. The superior court ruled that


         Ecology had a mandatory duty under RCW 34.05. 330( 1) to specifically address
         the concerns raised by the Tribe in its rulemaking petition. Ecology' s response to
         the petition failed to meet its mandatory duty and, as a result, Ecology' s denial of
         the Tribe' s petition was arbitrary and capricious.

Clerk' s Papers ( CP) at 352. The superior court remanded the matter to Ecology and ordered it to

 engage   in rulemaking    as requested    in the Tribe'      s   2009   petition."   CP at 352.


         Ecology timely appeals the superior court' s decision. We sit in the same position

as the superior court and directly review the agency action challenged by the Tribe. Nw.

Sportfishing Indus. Ass' n v. Dep' t ofEcology, 172 Wn. App. 72, 90, 288 P. 3d 677 ( 2012).

                                                    ANALYSIS


I.        DENIAL OF RULEMAKING PETITION


         Under the Washington Administrative Procedure Act (APA),                       chapter 34. 05 RCW, any

person may petition an agency to adopt, amend, or repeal a rule. RCW 34. 05. 330( 1).

         Within sixty days after submission of a petition, the agency shall either ( a) deny
         the petition in writing, stating ( i) its reasons for the denial, specifically addressing
         the concerns raised by the petitioner, and, where appropriate, ( ii) the alternative

         means by which it will address the concerns raised by the petitioner, or (b) initiate
         rule -
              making proceedings.


RCW 34. 05. 330( 1) (    emphasis added).




         An agency' s decision to deny a rulemaking petition is subject to judicial review as other

agency    action under   RCW 34. 05. 570( 4). Rios       v.   Dep' t of Labor &       Indus., 145 Wn.2d 483, 491-


92, 39 P. 3d 961 ( 2002).     On review, we sit in the same position as the superior court and apply

the APA standards       directly   to the agency'   s. administrative record.         Wash. Indep. Tel. Ass' n v.


                                                           R
No. 42710 -9 -II



Wash. Utils. &     Transp.     Comm'   n,   149 Wn. 2d 17, 24, 65 P. 3d 319 ( 2003). We will grant relief


only if we determine that the agency action is unconstitutional, outside the agency' s authority,

arbitrary   or capricious, or   taken   by unauthorized persons.     RCW. 34. 05. 570( 4)(   c).   The party

challenging the agency action bears the burden of demonstrating the invalidity of the action.

RCW 34. 05. 570( 1)( a).


         A. Ecology' s Response Specifically Addressed the Tribe' s Concerns

         The Tribe contends that Ecology' s written denial of its rulemaking petition does not

specifically    address   the Tribe'   s concerns as required   by RCW   34. 05. 330( 1).   Ecology argues that

the Tribe misconstrues RCW 34. 05. 330( 1) to require Ecology to redress or remedy the substance

of the Tribe' s concerns. We agree with Ecology and hold that its response to the Tribe' s petition

satisfied RCW 34. 05. 330( 1).


         The purpose of requiring an agency to provide reasons for rejecting a rulemaking request

is to give notice to interested parties and enable a reviewing court to determine whether

challenged agency action is arbitrary, capricious, an abuse of discretion, or otherwise contrary to

law. See WHHT, Inc. v. F.C. C., 656 F. 2d 807, 813 & n. 10, 814, 819 -20 ( D. C. Cir. 198 1)


 discussing     similar requirements under       the federal APA— prompt notice and a brief statement of


the   grounds   for denial).    We evaluate the sufficiency of Ecology' s explanation under RCW

34. 05. 330( 1) in light of its purpose to facilitate judicial review of whether the agency' s decision

not to engage in rulemaking was arbitrary and capricious.

         Here, the Tribe argues that budget constraints, need for additional study, and a directive

to Mason County does not address the Tribe' s concern that unsound decisions in the basin are

causing senior instream flows not to be met in Johns Creek. Although Ecology' s response does

not resolve the Tribe' s concerns about the low flows in Johns Creek, it does " specifically

                                                           31
No. 42710 -9 -II



address" them. Despite the Tribe' s challenge to Ecology' s explanation as inadequate under the

APA, there is no real question that Ecology' s explanation gave the Tribe notice of its reasons for

denial and that the explanation did not frustrate judicial review of the agency decision.

         The Tribe' s true grievance is with the merits of Ecology' s decision. The Tribe prefers to

withdraw the Johns Creek basin from new water appropriations pending sufficient information

for sound decision making, and Ecology prefers to wait until sufficient information is available

to guide the agency. But we must reject the Tribe' s challenge to Ecology' s decision unless it is

arbitrary and capricious. The Tribe cannot transform the agency' s mandatory requirement to

explain its denial into a mechanism to review the substance of the agency' s discretionary

decision.


         B. Ecology' s Refusal To Initiate Rulemaking Is Not Arbitrary and Capricious

         Because Ecology' s explanation is adequate, we evaluate its decision to deny the

rulemaking petition under the standard of review provided by the APA. The Tribe contends that

Ecology' s refusal to engage in rulemaking to promulgate a rule withdrawing the basin from

further water appropriation and to amend various other rule provisions to comprehensively

address ground water appropriations was arbitrary and capricious. Ecology argues that its

decision was well- reasoned and made with due regard to the facts and circumstances. We agree


with Ecology.

         Arbitrary or capricious agency action is willful and unreasoning action taken without

regard   to the attending facts   or circumstances.   Wash. Indep. Tel. Ass' n, 149 Wn.2d at 26.

  N] either the existence of contradictory evidence nor the possibility of deriving conflicting

conclusions   from the   evidence renders an   agency decision arbitrary   and capricious."   Rios, 145


Wn.2d at 504. We give due deference to the specialized knowledge and expertise of an

                                                      7
No. 42710 -9 -II



administrative agency. Port ofSeattle v. Pollution Control Hearings Bd., 151 Wn.2d 568, 595,

90 P. 3d 659 ( 2004).            And we avoid exercising discretion that our legislature entrusted to the

agency. Port ofSeattle, 151 Wn.2d at 568. We review the record to determine whether the

agency    reached     its decision "` through         a process of reason, not whether the result was itself

reasonable      in the judgment of the            court. "'   Rios, 145 Wn.2d at 501 ( internal quotation marks


omitted) ( quoting      Aviation W. Corp.            v.   Dep' t of Labor &   Indus., 138 Wn.2d 41.3, 4' )2, 980 P. 2d


701 ( 1999)).       Accordingly, an agency has wide discretion in deciding to forgo rulemaking. Rios,

145 Wn.2d at 507.


         Before issuing its decision, Ecology held a meeting with representatives from the. Tribe

and met with Mason County commissioners. Ecology also held a stakeholder and public

meeting to discuss the Tribe' s petition and concerns and the decision Ecology faced. Ecology

devised six options, including closing or withdrawing the basin, limiting new uses, and seeking
                             8
funding   for   a   study.       Ecology' s regional director specifically noted that the agency should

closely consider how the basin closure request relates to other water resource issues in the state,
                                            9
particularly in Kittitas          county.




8
    Ecology   considered   following six options: ( 1) Close the basin by amending the existing
                                  the
instream flow        2) issue an administrative order to Mason County finding that water is not
                    rule; (

available for outdoor use and directing the county to allow indoor water use only for new
residential building permits unless there is mitigation for outdoor use; ( 3) issue a general

administrative order to all parties with an interest in WRIA 14 as presented in the second option;
    4) create a memorandum of understanding between the Tribe, Mason County, and Ecology for
review of water       availability for          new wells; (   5) withdraw water from appropriation until further
study is done; or (6) deny the petition and seek funding for further investigation to assess well -
use impact on Johns Creek.

9
    Apparently, while Ecology was considering the Tribe' s petition, Ecology was engaged in
controversial rulemaking to withdraw from appropriation all ground water within the upper
portion of Kittitas County.
No. 42710 -9 -II



        The rulemaking petition record shows that Ecology weighed the pros and cons for each

option. For example, Ecology recognized that closing the creek or withdrawing the basin from

appropriation, as the Tribe requested, would satisfy the Tribe and avoid appeals by the Tribe.

Further, it would not require code amendment by Mason County or the city. of Shelton, and it

would create an incentive for the city and county to work together to speed up extension of a

municipal water line to the basin' s industrial land. Finally, it would create incentive to find

funding for a ground water study and might prevent further depletion of instream flows. But

Ecology also found strong reasons weighing against closing or withdrawing the basin, including

that resources to amend the rule would displace work underway in other priority WRIAs, the

amendment would not cover all the Tribe' s interest within the WRIA 14, and the closure would

limit development in the basin to sites that will have access to the municipal water line. Based


on reactions to similar basin closures in Kittitas County, Ecology was concerned about the

spread of misinformation. Ecology was also worried about an influx of petitions to close other

basins experiencing similar conditions. And finally, Ecology considered that the governor' s

proposed budget cut funding for instream flow rulemaking, signaling that it was a low priority

for the state.


        Ecology reasoned that denying the Tribe' s petition and seeking funding for a study to

assess well -
            use impact on Johns Creek was the best option because it would maintain Ecology' s

statewide water resources priorities, take a step toward addressing the Tribe' s concerns, and

provide a higher level of information with which to make decisions and protect flows in the

future. On the other hand, Ecology recognized that the Tribe did not support this option, the

Tribe would likely seek gubernatorial and judicial. review, and concern about future limits could

increase well drilling and development.

                                                   W
No. 42710 -9 -II



         Despite Ecology' s consideration of the petition, the Tribe contends that Ecology' s

decision was unreasonable because it knew that junior wells were intercepting water causing

Johns Creek    not   to   meet   its   minimum   instream flows. 10   The Tribe argues that in light of

Ecology' s knowledge of circumstances surrounding the dewatering of Johns Creek, its denial of

the Tribe' s petition due to budget limitations and need for more information was willful and


unreasoning    and,   thus, arbitrary      and capricious.   The Tribe   points   to Rios for   support.   145


Wn.2d at 493, 505 -07.


         In Rios, our Supreme Court held that the Washington State Department of Labor and

Industries ( L &I)'   s refusal to initiate rulemaking to adopt a mandatory blood testing program for

agricultural pesticide handlers to replace its existing voluntary program was arbitrary and

capricious.    145 Wn.2d at 486 -90, 505 -08. The focus in Rios was on the extraordinary

circumstances that convinced the court that L &I' s refusal to engage in rulemaking was arbitrary

and capricious —      namely, the substantive statute requiring L &I to adopt the mandatory blood

testing program if feasible and a report by L &I' s own experts stating that such a program was



10
     Ecology has a different view of the unmet flows and junior wells. Ecology notes that the
flows for Johns Creek were set at a 50 percent exceedance level, which means that on any given
day, there is only a 50 percent chance of the creek having that flow level. In addition, Ecology' s
position is that site -specific hydrogeologic study is required to determine whether area ground
water pumping is impacting stream flows and, if so, how much of an impact exists. See Postema
v.   Pollution Control Hearings Bd.., 142 Wn.2d 68, 93, 11 P. 3d 726 ( 2000) ( rejecting               that a stream
having " unmet flows necessarily establishes impairment if there is an effect on the stream from
ground water withdrawals" and recognizing that whether ground water withdrawal impairs
senior minimum flows will depend " upon the nature of the appropriation, the source of aquifer,
and whether it is upstream or downstream from or higher or lower than the surface water flow or
level,   and all other pertinent        facts "). We note that in Swinomish, the Washington Supreme Court
stressed that the legislature has " continued to recognize that retention of waters instream is as
                                                      including economic well- being." 2013
much a core principle of state water use as other goals,

WL 5689464, at * 10. Whether the Swinomish decision will impact Ecology' s stance on the
proliferation of permit- exempt wells in Mason County under RCW 90. 44. 050 and the basin
specific WACs remains to be seen.
                                                             10
No. 42710 -9 -II



necessary, feasible,         and   the best   option.    145 Wn.2d       at   506 -08. The court viewed the report' s


conclusion as dispositive and, thus, the agency' s decision not to adopt the program based on

technical limitations, competing priorities, and limited resources was arbitrary and capricious.

Rios, 145 Wn.2d at 506 -08.


             The Tribe argues that here, like in Rios, Ecology' s refusal to engage in rulemaking due to

budget constraints and other priorities is arbitrary and capricious. Although the Rios court did

not accept         L &I' s budget constraints and other priorities rationale as the be -all and end -all, it


recognized that those considerations were legitimate reasons for agency inaction. Rios, 145

Wn.2d at 499 n.8, 507 ( stating that " the indisputable reality is that the [ agency]' s finite fiscal

resources require the director to exercise discretion in prioritizing among potential rulemaking

initiatives" and that " fiscal constraints may reasonably determine whether an agency takes action

 and,   if   so,   how)[,   b] ut an agency' s allusion to fiscal considerations and prioritizing cannot be

regarded as an unbeatable            trump in the       agency'   s   hand ");   see also Hillis v. Dep' t ofEcology, 131

Wn.2d 373, 393 -94, 932 P. 2d 139 ( 1997) ( acknowledging                         that limited resources and choices

among agency priorities are legitimate reasons for agency inaction and do not make an action

arbitrary and capricious).


             Here, the circumstances do not suggest that Ecology' s decision not to initiate rulemaking

was arbitrary and capricious. The extraordinary circumstances in Rios are not present. First, the

agency' s statutory directive is quite different. In Rios, the pesticide handlers sought a blood

testing program under a statute that imposed a mandatory duty on L &I to protect workers when

economically          and   technologically feasible. 145 Wn.2d at 496, 498 -99. Here, the Tribe

requested various amendments to the existing water management rules. Ecology has a duty to

develop and implement a comprehensive state water resources program; but the legislature

                                                                   11
No. 42710 -9 -II



expressly provided that Ecology " may develop the program in segments so that immediate

attention may be given to waters of a given physioeconomic region of the state or to specific
                                                                             11
critical problems of water allocation   and   use."   RCW 90. 54. 040( 1).        And RCW 90. 54. 040( 2)


directs Ecology to modify existing and adopt new regulations when needed and possible. RCW

90. 54. 050 provides that whenever it appears necessary to the director in carrying out the policy

of this chapter, Ecology may by rule withdraw various waters from additional appropriations

until sufficient information and data are available to make sound decisions. Unlike the


mandatory duty in Rios, the statutes at issue in this case clearly confer discretion on Ecology to

prioritize instream flow rulemaking based on competing demands and limited resources. Here,

one of the reasons Ecology did not initiate rulemaking in WRIA 14 was because that endeavor

would displace work underway in other priority WRIAs.

          Second, in Rios, the court thought it important that the pesticide handlers were not asking

L &I to "   embark on a new enterprise."   145 Wn.2d at 507. L &I had already made the blood

testing program a priority by drafting guidelines for a voluntary program and assigning a team of

experts to research the components of a successful program. Rios, 145 Wn.2d at 507. Here, the


Tribe demands that Ecology direct substantial resources to water management in WRIA 14 when

Ecology has articulated that its priorities are elsewhere. The Tribe argues that Ecology has

demonstrated that WRIA 14 is a priority because it expended resources to promulgate instream

flows. But Ecology set those flows in 1984. The record does not reflect that WRIA 14 is an

ongoing priority; the agency has since shifted its priorities to other WRIAs, including fish critical

basins and WRIAs that do not yet have established instrearn flow minimum regulations.



11
     The Swinomish decision calls into question interpreting this statute to prioritize economic
growth over the preservation of minimum instream flows. 2013 WL 5689464, at * 7 -8, 13 - 14.
However, as that particular issue is not before us, we do not further address it.
                                                      12
No. 42710 -9 -II



           Finally, in Rios, L &I' s own experts deemed the requested mandatory program necessary

and     feasible.   145 Wn.2d at 507 -08. In contrast, here, Ecology determined that it lacked

information for informed decision making about water availability in Johns Creek basin. Prior to

denying the Tribe' s petition, Ecology unsuccessfully sought an Environmental Protection

Agency grant for a Johns Creek basin hydrology study to develop appropriate water management

options.




           Agencies have wide discretion to choose and schedule rulemaking efforts. Rios, 145

Wn.2d at 507. Here, Ecology decided not to act on the Tribe' s petition after carefully

considering it and weighing the pros and cons of various proposed responses. Ecology refused to

supplement and revise the water management rules in WRIA 14 due to limited resources, other

priorities, and lack of technical information on which to make informed decisions. As an


alternative, Ecology sought funding for a study of the basin and directed Mason County to limit

residential ground water permits to in -
                                       house domestic use. Ecology presented valid justifications

supported by the record for not taking rulemaking action and the record supports that Ecology

came to its decision through a process of reasoning. Ecology' s decision to deny the Tribe' s

petition is not arbitrary and capricious.

II. '       VALIDITY OF EXISTING WRIA 14 WATER MANAGEMENT RULES


            On appeal, the Tribe attempts to separately challenge the validity of various provisions of

the existing WRIA 14 water management rules. But the superior court did not address the

Tribe' s request for a declarative judgment invalidating various rules because it found the denial




                                                      13
No. 42710 -9 -II


                                                                              12
of   the Tribe'   s petition   dispositive   and remanded   for rulemaking.        Accordingly, there is no

ruling before us to review.

          In sum, we hold that Ecology complied with the APA' s requirement to specifically

address the Tribe' s concerns in its letter denying the Tribe' s rulemaking petition and that

Ecology' s denial of the Tribe' s rulemaking petition was not arbitrary and capricious.

Accordingly, we uphold Ecology' s denial of the Tribe' s petition and thereby reverse the superior

court' s order.




                                                             Foes, J. P. T.
We concur:




OANN- BRINTNALL, J.




     HANsom A.C. J.




12
  There is significant overlap between the Tribe petition for rulemaking, which suggests various
amendments to the existing rules, and the Tribe' s argument that those same provisions are
invalid without the proposed amendments.
                                                            14
