text:
    CENTER FOR ENVIRONMENTAL LAW & POLICY, American Whitewater, and Sierra Club, Appellants, v. State of Washington DEPARTMENT OF ECOLOGY, Respondent.
    No. 51439-7-II
    Court of Appeals of Washington, Division 2.
    Filed June 26, 2019
    Daniel James Von Seggern, Center For Environmental Law and Policy, 85 S Washington St. Ste. 301, Seattle, WA, 98104-3404, for Appellants.
    Stephen H. North, Attorney General of Washington, Ecology Division A.g. Office, Attorney at Law, PO Box 40117, 2425 Bristol Court Sw Second Fl., Olympia, WA, 98504-0117, for Respondent.
    PUBLISHED OPINION
    Lee, A.C.J
    ¶1 In 2015, the Department of Ecology (Ecology) promulgated an administrative rule that establishes minimum instream flows of 850 cubic feet per second (cfs) for the lower reach of the Spokane River during summer months (Rule). Ecology's primary basis for establishing a minimum instream flow was to protect and preserve fish habitat within the river.
    ¶2 The Center for Environmental Law & Policy (Center), the Sierra Club, and American Whitewater (collectively CELP) challenge the validity of this Rule, arguing that it exceeds Ecology's statutory authority and is arbitrary and capricious. Specifically, CELP relies on a provision of the Water Resources Act of 1971 (WRA) to argue that Ecology was required to establish a minimum instream flow that protects multiple enumerated instream values, not just fish. CELP also argues that the Rule violates the public trust doctrine and challenges Ecology's exclusion of certain documents containing instream flow recommendations from its rule-making file.
    ¶3 We hold that the Rule is not reasonably consistent with the WRA, and therefore, it exceeds Ecology's rule-making authority. We also hold that the Rule was adopted without regard to the attending facts and circumstances, and is therefore arbitrary and capricious. However, we reject CELP's challenges based on the public trust doctrine and adequacy of Ecology's rule-making file. Accordingly, we hold that the Rule is invalid.
    FACTS
    A. THE SPOKANE RIVER
    ¶4 The Spokane River is a shared resource between Washington and Idaho. It begins in northwestern Idaho, flows west through the City of Spokane, and eventually connects to the Columbia River in eastern Washington.
    ¶5 The Spokane River is an important economic, recreational, and cultural attraction in the Spokane area. Spokane residents regularly use the river for boating, tubing, swimming, and fishing. The river also draws regional visitors when its flows are sufficient to support boating opportunities. A number of small businesses depend on the river to provide recreation-based activities, including river rafting, kayaking, tubing, and guided fishing trips. The river is a central feature of the region's identity, and Spokane residents view the river as an integral part of their community.

      The legally recognized unit of measurement for flowing water is one cubic foot of water per second of time. RCW 90.03.020.

      The Center is a nonprofit organization whose mission is to protect and promote stewardship of Washington's freshwater resources through public education, advocacy, policy reform, and public interest litigation.

      The Sierra Club is a national nonprofit organization whose mission is to protect, explore, and enjoy the planet.

   B. AVISTA CORPORATION'S DAMS

¶6 Stream flow on the Spokane River is controlled by a series of dams owned and operated by Avista Corporation. Avista operates its dams under a license issued by the Federal Energy Regulatory Commission (FERC) in 2009. The license requires Avista to maintain specific minimum stream flows in the Spokane River throughout the year. Between June 16 and September 30, Avista must operate its Upper Falls and Monroe Street dams to provide minimum stream flows of 850 cfs.

¶7 As part of the relicensing process, Avista conducted several studies to evaluate the potential influence of its operations on the natural resources in its hydroelectric project area. Some of these studies examined the general habitat characteristics and spawning activity of trout and mountain whitefish in the Spokane River. Two studies evaluated the relationship between effective fish spawning and stream flows in various reaches of the river. Avista also conducted a whitewater paddling instream flow assessment study, which assessed whitewater boating opportunities on the Spokane River at different stream flows. Nearly all whitewater survey participants preferred flows higher than 1,353 cfs to support boating on the lower reach of the river (downstream of the Upper Falls and Monroe Street dams).

C. ECOLOGY RULEMAKING

1. The Spokane Valley-Rathdrum Prairie Aquifer and Municipal Water Supply

¶8 The Spokane Valley-Rathdrum Prairie Aquifer underlies the Spokane River. It is the sole source of municipal water supply for the area. The aquifer and the river are highly interactive. Any withdrawal of water from the aquifer has a direct and immediate impact on river flows. Increased groundwater use from the aquifer has led to a decrease in river flows. In the early 1990s, Ecology determined that the river's low flows in late summer were continuing to decline. This prompted Ecology to stop issuing new groundwater rights allowing withdrawals from in the aquifer.

2. Instream Flow Rulemaking

¶9 The state Water Code, chapter 90.03 RCW, authorizes Ecology to set minimum stream flows for a river or stream through a collaborative process with watershed planning groups. RCW 90.03.247(2) ; RCW 90.82.080(1)(a)(ii). Ecology began working with watershed planning groups in 1998 to develop instream flow protection for the Spokane River. The watershed planning groups were unable to achieve consensus regarding the minimum instream flows that should be adopted for the Spokane River. Because the members of the watershed planning unit were unable to reach consensus, Ecology initiated rulemaking under the Washington Administrative Procedures Act (APA) to establish minimum instream flows. RCW 90.82.080(1)(a)(ii), (c).

¶10 Ecology commenced formal rulemaking in January 2014. Ecology's draft Rule proposed a minimum instream flow of 850 cfs for the downriver reach of the Spokane River between June 16 and September 30, as measured at the Spokane gage, which is located downstream of the Monroe Street dam. Ecology based this instream flow on the recommendation of the Washington Department of Fish and Wildlife's (WDFW) instream flow biologist Hal Beecher. Beecher initially recommended a minimum instream flow between 900 and 1,050 cfs from July 1 to September 30, as measured at the Spokane gage. Several years later, in May 2012, Beecher recommended minimum instream flow of 850 cfs between June 16 and September 30, as measured at the Spokane gage. Beecher's 2012 instream flow recommendation was based on the above discussed trout and whitefish spawning studies, which were conducted as part of Avista's dam relicensing process in 2009. Beecher later qualified this recommendation and emphasized that the proposed summer flows were "not perceived by [him] as enhancement, rather as a floor." Administrative Record (AR) at 14233.

¶11 During the rulemaking comment period, Ecology received hundreds of public comments critical of the 850 cfs minimum instream flow in its proposed Rule. Many of these comments asked Ecology to conduct additional studies on how the proposed 850 cfs minimum instream flow at the lower reach of the river would impact recreation, aesthetics, navigation, water quality, temperature, and broader ecosystem values. Other commenters asked Ecology to assess climate change and interstate implications of the proposed Rule. Small recreational business owners commented that they would be unable to provide recreational river activities, such as float and canoe trips, at the proposed 850 cfs summer flows.

¶12 The Center and the Sierra Club sent Ecology a combined comment letter criticizing the proposed Rule, along with 43 electronic documents covering a range of topics, including the return of anadromous fish to the Columbia River, scenic and aesthetic flows in the Spokane River, climate change, fish studies, interstate water issues, and recreational use of the river. The Center and the Sierra Club also provided Ecology with a photographic inventory of 37 key observational points located on the downriver reach of the Spokane River, obtained at five different summer flows. One of these photos showed researchers floating the river in a hard shell kayak in July 2015 at about 770 cfs. Another photo showed people floating down the river in tubes at 770 cfs. And another photo showed a boat navigating the river at 770 cfs. However, the Center and the Sierra Club cautioned that this 770 cfs flow would be unsuitable for larger commercial rafts. American Whitewater, a nonprofit river conservation organization, also sent Ecology a letter in which it claimed, based on surveys it conducted, that acceptable flows for kayaking, canoeing, and rafting the Spokane River were between 1,500 cfs and 15,000 cfs, with 5,000 cfs as an optimal flow.

¶13 Ecology claimed that it considered all of these comments and materials it received during the rulemaking process. Specifically, Ecology stated that it "considered the recreational, aesthetic, and navigational values at multiple stages throughout the process of establishing these instream flows for the river." AR at 3283. However, Ecology rejected the recreational flow criteria of the river in establishing instream flows. Ecology "chose[ ] not to establish instream flow values based on those recreational needs expressed during the FERC process or any other process including this comment period." AR at 2985.

¶14 Instead, Ecology "chose to rely on studies of fish habitat to establish instream flow levels." AR at 3283. Ecology made clear throughout rulemaking that its proposed minimum instream flows were "based upon fish habitat studies," and were "needed for fish survival, including both whitefish and redband trout." AR at 79, 66. Ecology summarily concluded that instream flows that protect fish habitat would also protect the recreational and aesthetic values of the river.

¶15 Ecology adopted the Rule in January 2015, and it became effective in February 2015. The Rule establishes minimum instream flows of 850 cfs on the lower reach of the Spokane River, as measured at the Spokane gage downstream of the Monroe Street dam. WAC 173-557-050.

¶16 A minimum instream flow established by administrative rule, including Ecology's 2015 Rule, is an appropriation of water with a priority date of the rule's effective date. RCW 90.03.345. Water appropriated prior to adoption of the Rule are senior water rights and are not affected by the Rule. However, appropriations after the Rule is established are junior water rights and are interruptible if flow on the Spokane River decreases below the minimum instream flows specified in the Rule. Ecology plans to use the minimum instream flows established by the Rule to manage future water withdrawals from the Spokane River and the aquifer that underlies it. The Rule also establishes Washington's legal interests in the water of the river and aquifer in the event of interstate conflict.

D. PETITION TO AMEND THE RULE

¶17 In February 2016, CELP submitted a joint petition asking Ecology to amend the Rule and increase the 850 cfs summer minimum instream flows as measured at the Spokane gage. Ecology denied the petition in April.

¶18 In May, CELP brought suit against Ecology, challenging the validity of the instream flow Rule under the APACELP claimed that the portion of the Rule setting minimum summer instream flows at 850 cfs exceeded Ecology's statutory authority and was arbitrary and capricious. CELP also argued that Ecology had failed to fulfill its responsibilities under the Public Trust Doctrine in adopting the Rule.

¶19 CELP also filed a motion to supplement the record before the superior court with three documents related to the Avista dam relicensing process and watershed resource planning processes for the region. The specific documents CELP requested be added to the rule-making file were: (1) Ecology's comments to FERC during Avista's dam relicensing, (2) an April 23, 2007, memo in which Beecher noted that habitat rearing at the Spokane gage peaks at 1040 cfs, and (3) a June 30, 2004, document in which Beecher recommended a minimum discharge of 700 cfs at the Post Falls dam. Ecology opposed the motion and submitted declarations in opposition. Three of the agency's rule writers submitted declarations, stating that the documents were not in their custody during the rulemaking process and that they did not consider them when making decisions to set summer minimum instream flows at 850 cfs.

¶20 The superior court denied CELP's motion to supplement the record with these three documents. The superior court later denied CELP's petition challenging the validity of the Rule.

¶21 CELP petitioned for direct review at the Washington Supreme Court. After briefing was complete, the Supreme Court transferred the case to this court.

ANALYSIS

A. VALIDITY OF THE RULE

¶22 CELP argues that the 850 cfs summer minimum instream flow established in Ecology's Rule is invalid because it exceeds Ecology's statutory authority and is arbitrary and capricious. We agree.

1. Legal Principles

¶23 A challenge to the validity of an administrative rule is reviewed under the APA. Swinomish Indian Tribal Cmty. v. Dep't of Ecology , 178 Wash.2d 571, 580, 311 P.3d 6 (2013). Under the APA, an agency rule may only be invalidated if it: (1) is unconstitutional, (2) exceeds the agency's statutory authority, (3) was adopted without complying with statutory rule making procedures, or (4) is arbitrary or capricious. RCW 34.05.570(2)(c). The validity of an agency rule is a question of law, which we review de novo. Wash. Rest. Ass'n v. State Liquor Control Bd. , 200 Wash. App. 119, 126, 401 P.3d 428 (2017).

¶24 Administrative agencies only possess those powers expressly granted to them by statute or those impliedly authorized by their enabling statutes. Lenander v. Dep't of Ret. Sys. , 186 Wash.2d 393, 404, 377 P.3d 199 (2016). When an agency acts within its rule making authority, the agency's rule is presumed valid, and the burden of demonstrating invalidity rests with the challenger. Wash. Fed'n of State Employee. v. Dep't of Gen. Admin. , 152 Wash. App. 368, 378, 216 P.3d 1061 (2009) ; RCW 34.05.570(1)(a). The party attacking the validity of a rule must show compelling reasons why the rule conflicts with the legislation's intent and purpose. Wash. Fed'n of State Employees , 152 Wash. App. at 386, 216 P.3d 1061.

¶25 " 'Administrative [r]ules must be written within the framework and policy of the applicable statutes.' "

Wash. State Hosp. Ass'n v. Dep't of Health , 183 Wash.2d 590, 595, 353 P.3d 1285 (2015) (internal quotation marks omitted) (quoting Swinomish , 178 Wash.2d at 580, 311 P.3d 6 ). An agency exceeds its statutory authority if it adopts a rule that is not reasonably consistent with the controlling statutes. Id.

2. Ecology Exceeded its Rule Making Authority

¶26 Central to this case are issues of statutory interpretation. The parties dispute whether the legislature imposed a mandatory duty upon Ecology, in the exercise of its rule making authority, to establish minimum instream flows that protect multiple instream values, rather than a single value chosen by Ecology. Resolving this dispute informs whether Ecology acted within its rule making authority when it enacted the Rule.

¶27 The goal of statutory interpretation "is to ascertain and carry out the legislature's intent." Jametsky v. Olsen , 179 Wash.2d 756, 762, 317 P.3d 1003 (2014). When possible, we must give effect to the plain meaning of the statute as an expression of legislative intent. Id. In ascertaining the statute's plain meaning, we consider the statutory context, related statutes, and the entire statutory scheme as a whole. Swinomish , 178 Wash.2d at 582, 311 P.3d 6.

a. Ecology's authority to establish minimum instream flows

¶28 This case implicates several related statutes within the general water code. Ecology's authority to establish minimum instream flows derives from the state Water Code, the Minimum Water Flows and Levels Act, and the Water Resources Act of 1971.

i. Water Code

¶29 The Water Code vests Ecology with the exclusive authority to establish minimum instream flows for the state's streams and lakes. RCW 90.03.247(2). In exercising its authority under the Water Code, Ecology must consult with and consider the minimum flow proposals of the WDFW at all stages of rule development. RCW 90.03.247.

ii. Minimum Water Flows and Levels Act

¶30 Enacted in 1969, the Minimum Water Flows and Levels Act (MWFLA) authorizes Ecology to establish, by administrative rule, minimum flows or levels for public waters for the purposes of protecting fish and other wildlife, recreation and aesthetics, or water quality. Swinomish , 178 Wash.2d at 592, 311 P.3d 6 ; RCW 90.22.010. The MWFLA provides, in relevant part:

[Ecology] may establish minimum water flows or levels for streams, lakes or other public waters for the purposes of protecting fish, game, birds or other wildlife resources, or recreational or aesthetic values of said public waters whenever it appears to be in the public interest to establish the same. In addition, [Ecology] shall, when requested by the [WDFW] to protect fish, game or other wildlife resources under the jurisdiction of the requesting state agency, or if [Ecology] finds it necessary to preserve water quality, establish such minimum flows or levels as are required to protect the resource or preserve the water quality described in the request or determination.

RCW 90.22.010.

¶31 Minimum instream flows established by rule "shall in no way affect existing water and storage rights." RCW 90.22.030. And Ecology may not grant the right to divert or store public waters "which shall conflict" with the minimum instream flows it establishes. RCW 90.22.030. Stated another way, the minimum instream flows Ecology establishes by rule are appropriative water rights, subject to the longstanding rule that " 'as between appropriations, the first in time shall be the first in right.' " ( Fox v. Skagit County , 193 Wash. App. 254, 264, 372 P.3d 784 (2016) (quoting RCW 90.03.010 ) (emphasis omitted)).

¶32 In 1993, the legislature amended chapter 90.22 RCW to require Ecology, in cooperation with Indian Tribes and the WDFW, to establish a statewide list of priorities in evaluating instream flows. RCW 90.22.060. In establishing such list, Ecology "shall consider the achievement of wild salmonid production as its primary goal." RCW 90.22.060. Thus, the legislature plainly "continued to place a high value on maintaining instream flows to support fish." Swinomish , 178 Wash.2d at 593, n. 12, 311 P.3d 6.

iii. Water Resources Act

¶33 Enacted in 1971, the Water Resources Act (WRA) sets forth " 'fundamentals of water resource policy for the state to insure that waters of the state are protected and fully utilized for the greatest benefit to the people of the state of Washington.' " Swinomish , 178 Wash.2d at 593, 311 P.3d 6 (quoting LAWS OF 1971, 1st Ex. Sess., ch. 225 § 1). It also provides " 'direction to [Ecology] and other state agencies and officials, in carrying out water and related resource programs.' " Id. (quoting LAWS OF 1971, 1st Ex. Sess., ch. 225 § 1).

¶34 The WRA recognizes that water is a critical resource and proper utilization of water is necessary to promote public health, economic well being, natural resources, and the aesthetic values of the state. RCW 90.54.010(1)(a). It contemporaneously acknowledges that the supply and availability of water has become increasingly limited. RCW 90.54.010(1)(a). The legislature enacted the WRA to "ensure that available water supplies are managed to best meet both instream and offstream needs" through a comprehensive planning process. RCW 90.54.010(1)(b). To this end, the WRA authorizes Ecology to establish administrative rules that reserve and set aside waters for beneficial use "whenever it appears necessary to the director in carrying out the [WRA's] policy." RCW 90.54.050.

¶35 In 2002, the legislature enacted a new section of the WRA in which it "recognize[d] the critical importance of providing and securing sufficient water to meet the needs of people, farms, and fish." RCW 90.54.005. The WRA enumerates three water resource objectives that should guide water resource strategies at the local watershed level: (1) providing sufficient water to meet residential, commercial, and industrial needs; (2) providing sufficient water to support productive fish populations; and (3) providing sufficient water to support productive agriculture. RCW 90.54.005(1) - (3).

¶36 The WRA also provides that the utilization and management of Washington waters "shall be guided" by a number of general fundamentals. RCW 90.54.020. One fundamental declares beneficial uses of water to include domestic, stock watering, industrial, commercial, agricultural, irrigation, hydroelectric power production, mining, fish and wildlife maintenance and enhancement, recreational, thermal power production, and preservation of environmental and aesthetic values. RCW 90.54.020(1). The WRA does not prioritize between these competing beneficial uses of water. RCW 90.54.020.

¶37 The WRA lists a number of other competing declarations of fundamentals, including allocating water among potential uses in a way that secures "the maximum net benefits for the people of the state," developing multipurpose water storage facilities, preserving adequate supplies of water in potable condition, developing regional water supply systems, and encouraging water conservation practices. RCW 90.54.020(2). It also provides that the "quality of the natural environment shall be protected and, where possible, enhanced as follows: ... Perennial rivers and streams of the state shall be retained with base flows necessary to provide for preservation of wildlife, fish, scenic, aesthetic and other environmental values, and navigational values." RCW 90.54.020(3)(a).

b. The WRA requires Ecology to consider all instream values

¶38 Relying on the language "shall" in RCW 90.54.020(3)(a), CELP argues that Ecology is obligated to establish minimum instream flows that preserve wildlife, fish, scenic, aesthetic, and environmental and navigational values. Ecology counters that its "primary rulemaking authority" here stems from MWFLA, and that the legislature's use of the word "or" in the MWFLA ( RCW 90.22.020 ) provides Ecology discretion "to determine the best purposes" for which it sets minimum instream flows. Br. of Resp't at 18. We are not persuaded by either party's interpretation.

¶39 At the outset, we note that "[t]he meaning of 'shall' is not gleaned from that word alone because our purpose is to ascertain legislative intent of the statute as a whole." State v. Krall , 125 Wash.2d 146, 148, 881 P.2d 1040 (1994). The word "shall" in a statute imposes a mandatory requirement "unless a contrary legislative intent is apparent." Erection Co. v. Dep't of Labor & Indus. , 121 Wash.2d 513, 518, 852 P.2d 288 (1993). When possible, we derive legislative intent from the plain language of the statute. Lenander , 186 Wash.2d at 403, 377 P.3d 199.

¶40 Here, in considering the statutory context, related statutes, and the entire statutory scheme of the WRA, we hold that CELP's argument that the rule must preserve all instream values is not persuasive. The language CELP relies upon is one of several enumerated general fundamentals meant to guide water resource use and management. RCW 90.54.020. The WRA's stated purpose is to develop a comprehensive planning process that ensures better water management practices and alleviates conflict among competing water users. RCW 90.54.010(1)(b). It is intended to "ensure that available water supplies are managed to best meet both instream and offstream needs." RCW 90.54.010(1)(b). Consistent with the WRA's overall goals of safeguarding public health and economic well-being, and preserving the state's natural resources and aesthetic values, the WRA authorizes Ecology to develop a "comprehensive state water resources program" that "provide[s] a process for making decisions on future water resource allocation and use." RCW 90.54.040(1). The WRA's "[g]eneral declaration of fundamentals" are meant to guide Ecology in the exercise of its water management duties. RCW 90.54.020. They do not impose a list of mandatory requirements for every agency rule that Ecology adopts in the exercise of those duties. The use of the word "shall" directs Ecology what values it must consider. See Bassett v. Dep't of Ecology , 8 Wash. App.2d 284, 438 P.3d 563 (2019) (holding that the legislature's use of the word "shall" in RCW 90.54.020 did not impose a formal test on Ecology to secure maximum net benefits before it allocated water).

¶41 However, Ecology's argument is equally unpersuasive. Ecology argues that the WRA's general declaration of fundamentals has no application when Ecology exercises its rulemaking authority under the MWFLA. But the MWFLA does not operate in a vacuum. As discussed above, Ecology's exclusive authority to establish minimum instream flows stems from several statutory provisions within the Water Code. In enacting the WRA, the legislature recognized that the proper utilization of the state's water resources was "necessary to the promotion of public health and the economic well-being of the state and the preservation of its natural resources and aesthetic values." RCW 90.54.010(1)(a). The WRA prioritizes comprehensive water resource planning as a way to resolve conflict among competing water users and interests. RCW 90.54.010(1)(b). It balances the water needs of the state's growing population with the objective of preserving instream resources so that future generations can continue to enjoy them. RCW 90.54.010(1)(b).

¶42 Under the WRA, Ecology may set aside water for beneficial use "whenever it appears necessary to the director in carrying out the [WRA's] policy." RCW 90.54.050. One way for Ecology to do so is by establishing minimum instream flows and levels, which are treated as any other appropriative water right. In the exercise of that authority, Ecology must meaningfully consider the instream values enumerated in RCW 90.54.020(3)(a), and attempt to preserve them to the fullest extent possible. This gives effect to the legislative intent of the WRA to ensure that water within the state is protected and "fully utilized for the greatest benefit to the people of the state of Washington." RCW 90.54.010(2).

¶43 Ecology's interpretation of its rulemaking authority under the MWFLA is inconsistent with the emphasis the legislature has placed on fully utilizing water for its maximum benefit and ensuring that water supplies are managed to best meet both instream and offstream needs. When read together with the WRA, the MWFLA does not grant Ecology the authority to establish a minimum instream flow for the purpose of narrowly protecting only one instream value that Ecology deems "best." Br. of Resp't at 18. Instead, it directs Ecology to meaningfully consider a range of instream values and to consider how an instream flow that protects one value might impact the others.

¶44 This is not to say that a rule is invalid simply because it fails to preserve and protect each enumerated instream value. The legislature recognized the near impossibility of appropriating water in a way that satisfies every one of its beneficial uses. RCW 90.54.010. Water is an increasingly scarce resource and putting it to one beneficial use necessarily limits its availability for a competing use. Ecology's role in water resource management is to balance the competing beneficial uses of water and ensure that water is fully utilized to the greatest benefit possible. If the minimum instream flow necessary to protect one value is detrimental to another, the legislature has made the choice clear-the one that protects fish prevails. See RCW 90.22.060 ; RCW 90.54.005(2) ; RCW 90.82.070. However, the high value that the legislature placed on maintaining instream flows supportive of fish does not mean that Ecology can simply disregard other instream values and narrowly focus only on fish.

¶45 When viewed under this framework and policy, the Rule challenged here is not reasonably consistent with the statutes it implements. Ecology made clear throughout rulemaking that its proposed minimum instream flows were only "based upon fish habitat studies" and focused only on "fish survival, including both whitefish and redband trout." AR at 79, 66.

¶46 Ecology responded to public concern over the proposed minimum instream flow by asserting its position that it may establish a minimum instream flow for the purpose of protecting only one instream value. In its concise explanatory statement, Ecology explained that it had discretion to choose one value for which to set a minimum instream flow. As explained above, this interpretation of Ecology's rule making authority is inconsistent with the framework of the WRA.

¶47 Ecology argues that it nonetheless operated within framework of the controlling statutes because it "fully considered" other instream values during multiple stages of its rule making process. Br. of Resp't at 19. However, the record shows that Ecology's consideration involved merely collecting public comments and studies that showed 850 cfs was not sufficient to preserve the recreational and aesthetic values of the river, and then summarily "reject[ing]" these higher instream values. AR at 3283. Such cursory treatment of these other values does not comport with the emphasis the legislature placed on effectively managing water resources to ensure that water is fully utilized to the greatest benefit of the people.

¶48 The record does not support Ecology's repeated claim that a minimum instream flow protective of fish would necessarily preserve other instream values. And contrary to Ecology's argument, three photographs showing a boat has not grounded at flows below 850 cfs does not "plainly show[ ]" that recreational and navigational uses are "plentiful" at these levels. Br. of Resp't at 24.

¶49 Ecology's reliance on Avista's federal license requirements is equally misplaced. Ecology argues that the Rule protects all enumerated instream values because it is "identical" to Avista's federally required flows and "Avista's federal license requires Avista to release flows for recreation." Br. of Resp't at 25. This argument oversimplifies the nature and scope of Avista's license.

¶50 Avista's federal license governs the operation and maintenance of five hydroelectric project developments located along the Spokane River. The project area spans several counties in Washington and Idaho, and the license dictates flows on the Spokane River from Coeur d'Alene Lake in Idaho through the city and suburbs of Spokane. The FERC license only requires Avista to operate certain hydroelectric developments on the river in a way that enhances recreation at distinct reaches of the river. Notably, the license does not require Avista to operate its Monroe Street and Upper Falls dams (the hydroelectric dams located just upstream of the river reach at issue here) in a way that supports recreation.

¶51 Instead, the FERC license requires Avista to operate the Monroe Street and Upper Falls dams to provide minimum summer flows of 850 cfs from June 16 to September 30 in order to "enhance aquatic habitat for rainbow trout and mountain whitefish in the Spokane River." AR at 8074. And it requires Avista to analyze the spawning habitat in response to flow alterations in the Spokane River below the Monroe Street and Upper Falls dams. Thus, Ecology's argument that its summer instream flows preserve recreation simply because they are identical to the summer flows required by Avista's license is unavailing.

¶52 Ecology's attempt to bootstrap consideration of other instream values through its review of Avista's studies is also unpersuasive. Cursory review of certain studies Avista conducted as part of its relicensing process does not constitute meaningful review of the instream values enumerated in RCW 90.54.020(3)(a). And this argument ignores Ecology's own statement that it "chose[ ] not to establish instream flow values based on those recreational needs expressed during the FERC process." AR at 2985.

¶53 The record shows that Ecology based the 850 cfs flow on fish habitat studies because it believed it had discretion to establish a minimum instream flow for the purpose of protecting only one instream use. This narrow focus on preserving one instream value is not reasonably consistent with the WRA's purpose of ensuring "that waters of the state are protected and fully utilized for the greatest benefit to the people of the state of Washington." RCW 90.54.010(2). Because the Rule was not written within the framework and policy of the applicable statutes, it exceeds Ecology's authority and is invalid.

3. The Rule is Arbitrary and Capricious

¶54 CELP also argues that the Rule is invalid because it is arbitrary and capricious. We agree.

¶55 An agency rule is arbitrary and capricious "if it is willful and unreasoning and taken without regard to the attending facts or circumstances." Puget Sound Harvesters Ass'n v. Dep't of Fish and Wildlife , 157 Wash. App. 935, 945, 239 P.3d 1140 (2010). As part of our review, we must consider the relevant portions of the agency's rule-making file and the agency's explanations for adopting the challenged rule. Id. "Where there is room for two opinions, an action taken after due consideration is not arbitrary and capricious even though a reviewing court may believe it to be erroneous." Hillis v. Dep't of Ecology , 131 Wash.2d 373, 383, 932 P.2d 139 (1997).

¶56 As discussed above, review of Ecology's rule-making file and explanations for adopting the Rule shows that Ecology narrowly focused its Rule on only preserving fish habitat. Instead of considering how the 850 cfs would affect other instream values, Ecology summarily concluded that a flow protective of fish also protected other uses of the river. Nothing in the record supports this conclusion. And the evidence before Ecology showed that the proposed flow would not be adequate to support rafting, kayaking, and other recreational uses of the river. Ecology based the 850 cfs minimum instream flow on WDFW's recommendation, but WDFW qualified its recommendation as a "floor" to protect fish habitat, and he "would oppose lower flows, but not higher summer flows." AR at 14232, 13609.

¶57 An agency "must not act cursorily in considering the facts and circumstances surrounding its actions." Puget Sound Harvesters Ass'n , 157 Wash. App. at 951, 239 P.3d 1140. Ecology's explanations for establishing minimum instream flows based only on fish habitat studies without regard to how its proposed flow would impact other instream values was arbitrary and capricious. Therefore, the resulting Rule is invalid.

B. PUBLIC TRUST DOCTRINE

¶58 CELP also argues that Ecology violated the public trust doctrine by enacting the Rule because the 850 cfs minimum instream flow will degrade the public interest in the lands and water of the state. We disagree.

¶59 "The public trust doctrine is an ancient common law doctrine" that recognizes the public need for access to navigable waters. Chelan Basin Conservancy v. GBI Holding Co. , 190 Wash.2d 249, 259, 413 P.3d 549 (2018). The doctrine has always existed in Washington, and the policy is partially expressed in article 17, section 1 of the Washington Constitution, which reserves state ownership in the beds and shores of the state's navigable waters. Rettkowski v. Dep't of Ecology , 122 Wash.2d 219, 232, 858 P.2d 232 (1993). The state's ownership of tidelands and shorelands is comprised of two distinct aspects-its ownership interests, historically referred to as the jus privatum , and its public authority interest, historically referred to as the jus publicum . Caminiti v. Boyle , 107 Wash.2d 662, 668, 732 P.2d 989 (1987), cert. denied , 484 U.S. 1008, 108 S.Ct. 703, 98 L.Ed.2d 654 (1988).

¶60 As owner, the state has fee simple title to such lands and may convey title in any manner that does not contravene the constitution. Id. However, "[t]he state can no more convey or give away this jus publicum interest than it can 'abdicate its police powers in the administration of government and the preservation of the peace.' " Id. at 669, 732 P.2d 989 (quoting Illinois Cent. R.R. Co. v. Illinois , 146 U.S. 387, 453, 13 S. Ct. 110, 36 L. Ed. 1018 (1892) ). Thus, the doctrine precludes the State from disposing of its interest in navigable waters in such a way that substantially impairs the public's right of access. Rettkowski , 122 Wash.2d at 232, 858 P.2d 232. The Caminiti court adopted a two-part inquiry to determine whether a challenged legislation violates the public trust doctrine: (1) whether the state, by the questioned legislation, has relinquished its right of control over the jus publicum and (2) if so, whether by doing so, the state has promoted the public interests in the jus publicum, or else has not substantially impaired it. 107 Wash.2d at 670, 732 P.2d 989.

¶61 CELP argues that the test articulated in Caminiti informs this court's analysis as to whether the Rule violates the WRA. We hold that it does not.

¶62 There are two problems with relying on the framework outlined in Caminiti here. First, the Caminiti test informs whether the state has relinquished its right of control over the jus publicum through legislation , not through a state agency's administrative rulemaking authority. Id . "Second, the duty imposed by the public trust doctrine devolves upon the State, not any particular state agency thereof." Rettkowski , 122 Wash.2d at 232, 858 P.2d 232. Our Supreme Court has repeatedly held that Ecology's enabling statute does not allow it to assume the public trust duties of the state and regulate in order to protect the public. Postema v. Pollution Control Hearings Bd. , 142 Wash.2d 68, 99, 11 P.3d 726 (2000) ; Rettkowski , 122 Wash.2d at 232, 858 P.2d 232. Because Ecology may not assume the public trust duties of the state, it could not have "give[n] up control" over the jus publicum by enacting the Rule at issue here. Br. of Appellant at 36.

¶63 Further, the Rettkowski court observed that the issue before it implicated Ecology's regulatory authority under a specific provision of the state water code. 122 Wash.2d at 232-33, 858 P.2d 232. The court held that the public trust doctrine "could provide no guidance as to how Ecology is to protect those waters" because that guidance "is found only in the Water Code." Id. at 233, 858 P.2d 232. Our Supreme Court later adhered to this analysis and declined to use the public trust doctrine as an additional canon of construction for interpreting provisions of the state Water Code. R.D. Merrill Co. v. Pollution Control Hearings Bd. , 137 Wash.2d 118, 134, 969 P.2d 458 (1999).

¶64 We similarly reject CELP's claim that the public trust doctrine informs our analysis here. As in Rettowski and R.D. Merrill Co. , we need not resort to the public trust doctrine as an additional canon of construction in light of the specific provisions at issue and the policies expressed in the state water code.

C. RULEMAKING FILE

¶65 Finally, CELP challenges Ecology's failure to include three documents detailing other instream flow recommendations for the Spokane River in its administrative rule-making file. We hold that CELP's challenge fails.

¶66 The APA informs what documents must be contained within an agency's rule-making file. RCW 34.05.370. It must contain:

(a) A list of citations to all notices in the state register with respect to the rule or the proceeding upon which the rule is based;
(b) Copies of any potions of the agency's public rule-making docket containing entries relating to the rule or the proceeding on which the rule is based;
(c) All written petitions, requests, submissions, and comments received by the agency and all other written material regarded by the agency as important to adoption of the rule or the proceeding on which the rule is based;
(d) Any official transcript of oral presentations made in the proceeding on which the rule is based or, if not transcribed, any tape recording or stenographic record of them, and any memorandum prepared by a presiding official summarizing the contents of those presentations;
(e) All petitions for exceptions to, amendment of, or repeal or suspension of, the rule;
(f) Citations to data, factual information, studies, or reports on which the agency relies in the adoption of the rule, indicating where such data, factual information, studies, or reports are available for review by the public, but this subsection (2)(f) does not require the agency to include in the rule-making file any data, factual information, studies, or reports gathered pursuant to chapter 19.85 RCW or RCW 34.05.328 that can be identified to a particular business;
(g) The concise explanatory statement required by RCW 34.05.325(6) ; and
(h) Any other material placed in the file by the agency.

RCW 34.05.370(2)(a)-(h).

¶67 This document retention requirement is critical because we review the validity of an agency action "at the time it was taken." RCW 34.05.570(1)(b). Without a complete agency rule-making file, we would be unable to examine whether the agency acted within its authority or "without regard to the attending facts and circumstances" in enacting the challenged rule. Puget Sound Harvesters Ass'n , 157 Wash. App. at 945, 239 P.3d 1140.

¶68 CELP argues that Ecology's omission of certain documents from its rule-making file undermines a reviewing court's ability to examine whether the Rule was adopted through a process of reason. But we find that the record before us is adequate for review.

¶69 We note that the documents at issue are in the record before us through CELP's motion to supplement the administrative record in the clerk's papers. Thus, we are not without knowledge of the information contained within these documents. And in reviewing these documents, we find that they are not directly related to the agency action challenged here.

¶70 The three documents CELP contends Ecology should have included in its rule-making file were created as part of Avista's relicensing process, not as part of Ecology's formal rulemaking commenced in January 2014. CELP obtained these documents through a public records act request that it sent to the WDFW, not to Ecology. And Ecology's rule writers submitted declarations stating that they did not have custody of these documents during the rule adoption process, nor did they rely on them in setting minimum instream flows at 850 cfs.

¶71 CELP appears to argue that they were nonetheless relevant because it believes that Ecology should have considered them as part of its rule making process. But RCW 34.05.370(2)(f) only requires Ecology to include in its rulemaking file the data, factual information, studies, or reports it relied upon in adopting the Rule. Thus, contrary to CELP's assertion, Ecology was not required to include these documents in its rule-making file.

CONCLUSION

¶72 The WRA provides that perennial rivers and streams "shall be retained with base flows necessary to provide for preservation of wildlife, fish, scenic, aesthetic and other environmental values, and navigational values." RCW 90.54.020(3)(a). This statutory language does not allow Ecology to establish minimum instream flows for the narrow purpose of protecting only one instream value chosen by Ecology. Instead, the statute directs Ecology to meaningfully consider a range of instream values and seek to preserve them to the fullest extent possible.

¶73 Because Ecology exceeded its statutory authority in adopting the Rule establishing minimum summer instream flows of 850 cfs, we hold the Rule is invalid.

We concur:

Sutton, J.

Martin, J.P.T.

      Stream flow is the volume of water that flows down a river or stream and is measured in cubic feet per second. Instream flows are the regulatory stream flow thresholds used by Ecology to determine whether there is water to withdraw for new uses while still protecting fish and other instream resources.

      A watershed is an area of land where all of the water that falls into it drains into a common outlet. United States Department of the Interior, the USGS Water Science School , https://water.usgs.gov/edu/watershed.html (last visited June 17, 2019). A watershed planning group is comprised of local governments, who convene and collaborate on their desired management practices for the watershed.

      RCW 90.03.247 has been amended since the events of this case transpired. However, the amendments do not materially affect the statutory language relied on by this court. Accordingly, we refrain from including the word "former" before RCW 90.03.247.

      The U.S. Geological Survey (USGS) (the sole science agency for the Department of the Interior) measures streamflow of rivers through stream gages placed at certain locations in the river. USGS, How Streamflow is Measured , https://www.usgs.gov/special-topic/water-science-school/science/how-streamflow-measured?qt-science_center_objects=0#qt-science_center_objects (last visited June 17, 2019).

      The Rule also establishes minimum instream flows for other months of the year. WAC 173-557-050. And it establishes minimum instream flows for the upper reach of the Spokane River, as measured at the Greenacres gage. WAC 173-557-050. However, the only instream flow at issue in this appeal is the instream flow established for the lower reach of the river between June 16 and September 30, as measured at the Spokane gage, which is located downstream of the Monroe Street dam.

      CELP also asked Ecology to amend the minimum summer instream flow established for the Greenacres gage, but that request is not a subject of this appeal.

      Chapter 90.03 RCW.

      Chapter 90.22 RCW.

      Chapter 90.54 RCW.

      Ecology also asserts that the only way to achieve flows higher than 850 cfs is by changing Avista's federal license. However, the record shows that flows measured at the Spokane gage routinely exceed 850 cfs in the summertime, even during very dry years. Ecology's further suggestion that the Rule would impact Avista's license is misplaced. Minimum instream flows established by Rule are appropriations of water with a priority date of the rule's effective date. RCW 90.03.345. Ecology plans to use the minimum instream flows established by the Rule to manage future water withdrawals from the Spokane River and aquifer. The Rule has no influence on Avista's federal license.

      CELP does not identify the specific documents it believes were improperly excluded from Ecology's rule making file. Instead, it references the third section of its briefing in which it discusses various WDFW memos that were absent from the rule- making file. There, CELP explains that as part of the trial court proceeding, it moved to supplement the administrative record with three documents: (1) Ecology's comments to FERC during Avista's dam relicensing, (2) an April 23, 2007, memo from Beecher noting a peak habitat rearing of 1040 cfs at the Spokane gage, and (3) a June 30, 2004, document in which Beecher recommends a minimum discharge of 700 cfs at the Post Falls Dam.

      Federal courts have emphasized the critical role a comprehensive rule-making record plays in evaluating the propriety of agency action. See, e.g. , Fund for Animals v. Williams , 391 F.Supp.2d 191, 196 (2005) (noting that fair review of an agency action requires the reviewing court to have no more and no less information than the agency had when it made its decision); Walter O. Boswell Memorial Hosp. v. Heckler , 749 F.2d 788, 792 (1984) ("If a court is to review an agency's action fairly, it should have before it neither more nor less information than did the agency when it made its decision.")

      CELP repeatedly argues that omission of these documents from the rule-making file precludes "effective judicial review." Br. of Appellant at 39. This argument is puzzling because CELP simultaneously asks this court to evaluate the Rule, based on the record before this court, and to hold it invalid.
      And even if we agreed that the documents were directly relevant to adoption of the challenged Rule, the remedy CELP seeks is not available. CELP seeks a "remand" of the Rule to Ecology for reconsideration based on a complete record. Br. of Appellant at 46. But this remedy is not applicable. If we conclude that a rule exceeds an agency's statutory authority or is arbitrary and capricious, we invalidate the rule. See, e.g. , Swinomish , 178 Wash.2d at 602, 311 P.3d 6 ; Puget Sound Harvesters Ass'n , 157 Wash. App. at 938, 239 P.3d 1140.


source: Caselaw Access Project

author: Appelwick, C.J.

license: Public Domain

text:
    In the MATTER OF the CUSTODY OF S.M. and A.M.
    John McCulla Sr. and Annacarin McCulla, Respondents, and Carey McCulla, nka Carey Milton, Appellant,
    John McCulla Jr., Defendant.
    No. 78208-8-I
    Court of Appeals of Washington, Division 1.
    FILED: July 1, 2019
    Kevin Hochhalter, Olympic Appeals PLLC, 4570 Avery Ln. Se Ste. C-217, Lacey, WA, 98503-5608, for Appellant.
    Tami L. Nida Arntzen, Attorney at Law, 1313 N Young St. Ste. D, Kennewick, WA, 99336-7662, Jeffrey Keddie, Northwest Justice Project, 1338 Commerce Ave. Ste. 210, Longview, WA, 98632-3726, for Amicus Curiae on behalf of Northwest Justice Project.
    David J. Ward, Attorney at Law, 48 Bedford St. #3b, New York, NY, 10014, for Amicus Curiae on behalf of Legal Voice.
    PUBLISHED OPINION
   Appelwick, C.J.

¶1 Milton filed a petition to modify a nonparental custody order. The superior court found that Milton failed to establish adequate cause for a hearing on the petition. RCW 26.10.190 applies the adequate cause standard of RCW 26.09.260(1) to modifications of nonparental custody orders. Milton argues that the adequate cause standard is unconstitutional as applied to nonparental custody proceedings. We agree. That standard does not provide a parent a meaningful opportunity to demonstrate that he or she has remedied the unfitness or detriment to the child that was the basis for the nonparental custody order. We reverse and remand for a new adequate cause hearing consistent with this opinion.

FACTS

¶2 S.M. and A.M. are the children of Carey Milton and John McCulla, Jr. Both Milton and McCulla, Jr. have a history of substance abuse, and Milton has struggled with bipolar disorder.

¶3 On March 21, 2016, the children's paternal grandparents, John McCulla, Sr. and Annacarin McCulla, filed a petition for nonparental custody, asserting that neither Milton nor McCulla, Jr. was a suitable custodian. A court appointed special advocate (CASA) conducted an investigation and recommended that the petition be granted. At the time, S.M. was seven years old and A.M. was three years old.

¶4 McCulla, Jr. joined in the petition and Milton opposed it. Trial on the petition was held on March 20, 2017. Milton did not appear. According to Milton, she did appear but had a panic attack, threw up, and had to leave the courthouse.

¶5 On April 14, 2017, the trial court entered a final nonparental custody order placing S.M. and A.M. with the paternal grandparents. It made accompanying findings of fact that Milton was unfit, that the children would suffer actual detriment if living with her, and that placement of S.M. and A.M. with the grandparents was in the children's best interests:

Regarding the respondent mother, she suffers from suicidal ideations, is medically diagnosed as bipolar, and has admitted to methamphetamine use in previous court proceedings and reported the same to CASA. The mother has also been committed to a psychiatric institution for psychiatric treatment several times over the past few years. The mother has a history of domestic violence and threats of harm against the respondent father, the petitioners, and even the maternal grandparents. The mother has exhibited her physical and aggressive behavior in front of the children as evidenced by police reports. It is not in the best interest of the minor children to reside with the respondent mother.
....
The children are thriving in the care of the petitioners. The children are excited to be in their current school district. [T]hey regularly attend their medical and dental appointments, and have sufficient space in the new home that they reside in with the petitioners and the paternal great grandmother. The children are well-adjusted and cheerful.
Mother is unfit and an actual detriment to children would occur if children placed with her.

¶6 The trial court entered an order limiting Milton's contact with the children to three hours of supervised visitation on Saturday or Sunday. Milton was ordered to complete domestic violence treatment, undergo a substance abuse evaluation and participate mental health counseling and medication management.

¶7 Approximately seven months later, on November 29, 2017, Milton filed a petition to modify the nonparental custody order. The petition alleged as follows:

Mother is currently complying with court requirements, has adequate housing, and the ability to meet her children's needs. It is no longer necessary for the children to reside with their paternal grandparents.

In support of her petition, Milton provided a declaration in which she stated,

In 2017, it was confirmed that I am bi-polar, after two hospitalizations. In my manic phases, I have damaged relationships, lost jobs, and lost my children. Since my medication has stabilized through a mood stabilizer, injected once a month at Valley Cities, I have been able to finish an associate degree, maintain employment for over six months, get my own apartment and regain control of my life.

Milton also provided documentation showing that she complied with the substance abuse evaluation. But, Milton did not complete the domestic violence portion of the trial court's order and instead disputed the domestic violence allegations.

¶8 On January 26, 2018, a superior court commissioner found that Milton failed to establish adequate cause to modify the nonparental custody order. The commissioner noted that Milton did not meet the criteria for modification stated in the nonparental custody order.

So I am denying the request for adequate cause. I read these orders to be very specific about what Ms. Milton is expected to do. And that includes domestic violence treatment that happens after entry of the order on April 10, 2017. Also with proof that that provider is given a copy of all of the CASA reports.

The commissioner also found that the modification statute, RCW 26.09.260(1), precluded Milton from seeking to modify a nonparental custody order based on a change in her own circumstances:

I think it is wonderful what I read about the new medication helping and being given in a more reliable type of way. And so that is great and I don't want to undermine that at all. But I do not find that when there are constitutionally sufficient findings of unfitness that a parent can come back to court within a year of entry of those orders after trial and say I am substantially better now, and so let's do away with those orders. I don't think that is what the statute says, and I don't think that is what the case law says.

The commissioner's written order states as follows:

Respondent, Carey Milton has not provided proof of compliance with all requirements in the 4/10/17 orders Judge McCullough entered after trial. That court's constitutionally sufficient findings after trial mean Ms. Milton must meet the major modification standard as she requests a major mod[ification] less than a year after trial. She has not met her legal burden, has not proven substantial change in circumstances and detriment to the children under RCW 26.09.260.

¶9 Milton sought revision of the commissioner's ruling from a superior court judge. That judge denied the motion for revision on the grounds that Milton was precluded from seeking modification based on a change in her own circumstances:

The Court cannot find adequate cause exists to modify the April 10, 2017 Order for Non-parental Custody. Respondent Carey Milton[,] under current case law and the wording of the statute[,] does demonstrate affirmative steps have been taken to remedy the court's concerns regarding her fitness as a parent.

Milton appeals.

DISCUSSION

¶10 Chapter 26.10 RCW sets forth the procedure for nonparental custody actions. RCW 26.10.030(1) provides that a party may file a nonparental custody petition "if the child is not in the physical custody of one of its parents or if the petitioner alleges that neither parent is a suitable custodian." The court must make a threshold determination that the petition and supporting affidavits establish adequate cause for a hearing. RCW 26.10.032.

¶11 RCW 26.10.100 provides that, in nonparental custody proceedings, "[t]he court 'shall determine custody in accordance with the best interests of the child.' " But, the "best interest of the child" standard, by itself, is a "constitutionally insufficient basis on which to deprive a parent of parental rights." In re Custody of Z.C., 191 Wash. App. 674, 692, 366 P.3d 439 (2015) (citing In re Custody of Smith, 137 Wash. 2d 1, 20, 969 P.2d 21 (1998), aff'd by Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000) ). Consequently, In re Custody of Shields, 157 Wash.2d 126, 140, 136 P.3d 117 (2006), the Washington Supreme Court imposed additional, nonstatutory requirements. A petitioner must establish that (1) the parent is unfit or (2) that the parent is fit but placement with the parent would cause actual detriment to the child's growth and development. Id. at 150, 136 P.3d 117. This is a high standard that will typically be met only in " 'extraordinary circumstances.' " In re Custody of B.M.H., 179 Wash.2d 224, 236, 315 P.3d 470 (2013) (quoting In re Marriage of Allen, 28 Wash. App. 637, 649, 626 P.2d 16 (1981) ).

¶12 Once a nonparental custody order is entered, it may be modified only pursuant to chapter 26.09 RCW, the statute governing the dissolution of marriage and allocation of residential time and decision-making between parents. RCW 26.10.190. To modify a nonparental custody order, a court must find that

upon the basis of facts that have arisen since the prior decree or plan or that were unknown to the court at the time of the prior decree or plan, that a substantial change has occurred in the circumstances of the child or the nonmoving party and that the modification is in the best interest of the child and is necessary to serve the best interests of the child.

RCW 26.09.260(1) (emphasis added). "Missing from the grounds for modification is a substantial change in the circumstances of the parent moving for modification." Z.C., 191 Wash. App. at 695, 366 P.3d 439 (emphasis added). The party moving for a modification of a parenting plan must submit an affidavit setting forth facts supporting the motion. RCW 26.09.270. Again, unless the affidavits establish adequate cause for hearing the motion, the court must deny the motion without a hearing. RCW 26.09.270. In the context of a nonparental custody order modification, "adequate cause" means, at a minimum, evidence " 'sufficient to support a finding on each fact that the movant must prove in order to modify.' " In re Custody of E.A.T.W., 168 Wash.2d 335, 347, 227 P.3d 1284 (2010) (quoting In re Marriage of Lemke, 120 Wash. App. 536, 540, 85 P.3d 966 (2004) ). The moving party's affidavit in support of the modification must "establish new or previously unknown facts." In re Marriage of MacLaren, --- Wash. App. ----, 440 P.3d 1055, 1056 (2019).

¶13 Milton first contends that if a parent remedies his or her own parental deficiencies that are the basis of a nonparental custody order, this constitutes "a substantial change ... in the circumstances of the child" for the purposes of modifying such an order pursuant to RCW 26.09.260(1).

¶14 Statutory interpretation is a question of law that we review de novo. In re Adoption of T.A.W., 186 Wash.2d 828, 840, 383 P.3d 492 (2016). If a statute's meaning is plain on its face, we give effect to that meaning and the inquiry ends. Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 9-10, 43 P.3d 4 (2002). "[A] court must not add words where the legislature has chosen not to include them. A court also must construe statutes such that all of the language is given effect, and 'no portion [is] rendered meaningless or superfluous.' " Rest. Dev., Inc. v. Cananwill, Inc., 150 Wash.2d 674, 682, 80 P.3d 598 (2003) (alteration in original) (quoting State v. J.P., 149 Wash.2d 444, 450, 69 P.3d 318 (2003) ).

¶15 Milton's argument suggests that any change in a parent's circumstances must necessarily result in a change in circumstances for the child. But, to read the statute as permitting modification based on a change in the parent's circumstances would render meaningless the phrase "the circumstances of the child or the nonmoving party." If the legislature had intended for a parent's changed circumstances to support a major modification, it would have said so expressly. It did so in a related statute governing minor modifications, which states that a court may order minor adjustments to a parenting plan "upon a showing of a substantial change in circumstances of either parent or of the child." RCW 26.09.260(5). However, as the court in Z.C. noted, the major modification statute pointedly omits "the circumstances of the parent" as a basis. 191 Wash. App. at 695, 366 P.3d 439. Because it is clearly contrary to the legislature's intent, we decline to interpret RCW 26.09.260(1) in the manner that Milton suggests.

¶16 In the alternative, Milton argues that RCW 26.10.190, which applies the requirements of RCW 26.09.260(1) to modification of nonparental custody orders, is unconstitutional. She contends the statute violates her fundamental right to parent because it does not permit her to modify the nonparental custody order on the grounds that she has remedied the parental deficiencies forming the basis for the order.

¶17 The interpretation of a statute and the determination of whether a statute violates the United States Constitution are issues of law that are reviewed de novo. In re Parentage of C.A.M.A., 154 Wash.2d 52, 57, 109 P.3d 405 (2005).

¶18 The due process clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions regarding the care, custody, and control of their children. U.S. CONST. amend. XIV, § 1, Troxel, 530 U.S. at 66, 120 S.Ct. 2054. "The liberty interest ... of parents in the care, custody, and control of their children [ ] is perhaps the oldest of the fundamental liberty interests recognized by [the United States Supreme] Court." Troxel, 530 U.S. at 65, 120 S.Ct. 2054. Moreover, Washington maintains a strong public policy recognizing the "fundamental importance" of the parent-child relationship. RCW 26.09.002.

¶19 When parental actions or decisions seriously conflict with the physical or mental health of the child, the State has a parens patriae right and responsibility to intervene to protect the child.

In re Welfare of Sumey, 94 Wash.2d 757, 762, 621 P.2d 108 (1980). But, even then, a parent's fundamental right to parent is not diminished:

"The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State." In re Welfare of B.P., 188 Wash.App. 113, 165, 353 P.3d 224 (2015) (Fearing, J., dissenting) (citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982) (plurality opinion)), reversed by In re Parental Rights to B.P., 186 Wash.2d 292, 376 P.3d 350 (2016). The same is true where a parent has lost temporary custody to a family member.

Z.C., 191 Wash. App. at 704, 366 P.3d 439. " '[M]aintaining the family unit should be the first consideration in all cases of state intervention into childrens' lives.' " In re Dependency of K.N.J., 171 Wash.2d 568, 575, 257 P.3d 522 (2011) (quoting Comm. on Soc. And Health Servs., SUBSTITUTE H. CONCURRENT RES. 46, at 1, 44th Leg., 2d Ex. Sess. (Wash. Feb. 6, 1976)). Consequently, "[p]rotecting a parent's right to rear her or his child has sometimes required Washington and federal courts to read special protections into custody and visitation statutes when a parent's interest conflicts with that of a nonparent." In re Custody of T.L., 165 Wash. App. 268, 281, 268 P.3d 963 (2011).

¶20 A nonparental custody order is not intended to permanently deprive a parent of the care and custody of his or her child. In distinguishing nonparental custody order from de facto parentage, this court held,

[R]esidential placement is not equivalent to parental status. ... A nonparent custody order confers only a temporary and uncertain right to custody of the child for the present time, because the child has no suitable legal parent. When and if a legal parent becomes fit to care for the child, the nonparent has no right to continue a relationship with the child.

In re Parentage of J.A.B., 146 Wash. App. 417, 426, 191 P.3d 71 (2008) (emphasis added). Division Three of this court concurred in Z.C.:

A decree awarding custody to a nonparent under chapter 26.10 RCW is never permanent because custody is always subject to modification under RCW 26.09.260(1).
J.A.B.'s observation has likely been repeated so often is [sic] because it comports with circumstances and understandings under which courts often see family members agreeing to serve as a nonparental custodian.

Z.C., 191 Wash. App. at 693 & n.5, 366 P.3d 439.

¶21 However, in practice, a nonparental custody order is often tantamount to a permanent deprivation of parental rights because it can be modified if only the conditions of the child or the nonmoving party change. As this court held in In re Custody of C.C.M., 149 Wash. App. 184, 204-05, 202 P.3d 971 (2009), "A nonparental custody decree is also permanent, as ... a natural parent subject to a nonparental custody petition under chapter 26.10 RCW risks permanent deprivation of control over the custody and care of the parent's child." "The circumstances under which a parent can move for modification of a custody decree are not within the control of the parent and may never occur." In re Marriage of King, 162 Wash.2d 378, 416, 174 P.3d 659 (2007) (Madsen, J., dissenting).

¶22 "[T]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." Post v. City of Tacoma, 167 Wash.2d 300, 313, 217 P.3d 1179 (2009). Since RCW 26.10.190 clearly contemplates that a parent may seek to modify a nonparental custody order, due process requires that he or she be given a meaningful opportunity to do so. The factual basis for a nonparental custody order is a finding that the parent is unfit or a detriment to the child. A parent has no meaningful opportunity to regain custody of his or her child if that parent is precluded from showing there is no longer a factual basis for the order. We conclude that RCW 26.10.190, which applies the requirements of RCW 26.09.260(1) to modification of nonparental custody proceedings, violates due process in so far as it limits the change in circumstances to that of the child or the nonmoving party.

¶23 Consistent with this conclusion, we also hold unconstitutional the requirement of RCW 26.10.190 that the modification be in the best interests of the child. The law presumes that a fit parent will act in the best interest of his or her child. Troxel, 530 U.S. at 68-69, 120 S.Ct. 2054. Thus, just as Shields held that it is unconstitutional for a court to infringe on the parent-child relationship by making an initial custody determination based on a best interests analysis, it is similarly unconstitutional for a court to deny a modification on that basis. It may, however, provide grounds to impose conditions on the transition process by which the parent shall regain custody.

¶24 On remand, the superior court shall determine if Milton has established adequate cause for a hearing on the modification, consistent with this opinion. To establish adequate cause, Milton must present "new or previously unknown facts" showing a change in circumstances such that the factual basis for the order no longer exists. A nonparental custody order must be based on one of two factors: that the parent is unfit or that placement with an otherwise fit parent would cause actual detriment to the child's growth and development. These factors are mutually exclusive alternatives. Nonetheless, the trial court based its custody order on both factors. Milton did not appeal the original factual basis for the order. The dual basis is now the law of the case. See Seattle Police Officers Guild v. City of Seattle, 151 Wash.2d 823, 841 n.21, 92 P.3d 243 (2004). Thus, Milton bears the burden of establishing that she is a fit parent. She must also show that placement with her even if fit would not result in actual detriment to the children's growth and development. The grandparents may present affidavits or evidence in opposition to Milton's claims. If the court finds there is no longer a factual basis for the nonparental custody order, it shall vacate the order and impose conditions as appropriate.

¶25 Milton requests attorney fees on appeal, based on RAP 18.1 and RCW 26.10.080, which provides that upon any appeal, "the appellate court may, in its discretion, order a party to pay for the cost to the other party of maintaining the appeal and attorney's fees in addition to statutory costs." RCW 26.10.080 requires that the court "balance the needs of the party requesting fees against the other parties' ability to pay." In re Custody of Brown, 153 Wash.2d 646, 656, 105 P.3d 991 (2005). In this case, the trial court has consistently ordered that each party pay their own fees and costs. Considering the parties' needs and ability to pay, we decline to award Milton attorney fees.

¶26 Reversed and remanded.

WE CONCUR:

Dwyer, J.

Schindler, J.

      The pleadings below refer to the appellant as either "Carey McCulla" or "Carey Milton." We use "Milton" as that is how the appellant addresses herself.

      Though Milton had previously completed a one year domestic violence program, it was prior to the entry of the nonparental custody order and did not include collateral information as required by the trial court.

      On May 21, 2019, the governor signed into law Second Substitute Senate Bill (2SSB) 5604, the uniform guardianship, conservatorship, and other protective arrangements act. Bill Information: SB 5604, Washington State Legislature , https://app.leg.wa.gov/billsummary?BillNumber=5604 & Year=2019 & Initiative=False (last visited June 12, 2019). 2SSB 5604 repeals chapter 26.10 RCW in its entirety and substantially changes the procedure by which a nonparent may assume guardianship of a child. Final B. Rep. on Second Substitute S.B. 5604, at 3, 66th Leg., Reg. Sess. (Wash. 2019). Under the new statute, a court may establish a guardianship for a child upon a showing that "[t]here is clear and convincing evidence that no parent of the minor is willing or able to exercise the powers the court is granting the guardian." Laws of 2019, ch. 437, § 201 (2)(c). A parent may move to terminate the guardianship upon a showing that this standard "is not satisfied," unless termination of the guardianship is not in the child's best interests. Laws of 2019, ch. 437, § 212. But the new law, which takes effect on January 1, 2021, will not apply to Milton on remand. Laws of 2019, ch. 437, §§ 807, 213 ("This chapter does not affect the validity of any court order issued under chapter 26.10 RCW prior to the effective date of this section. Orders issued under chapter 26.10 RCW prior to the effective date of this section remain in effect and do not need to be reissued in a new order under this chapter.")

      In this way, nonparental custody orders are distinguished from termination of parental rights, which does result in the permanent disruption of the parent-child relationship. See RCW 13.34.200 ("Upon the termination of parental rights pursuant to RCW 13.34.180, all rights, powers, privileges, immunities, duties, and obligations, including any rights to custody, control, visitation, or support existing between the child and parent shall be severed and terminated and the parent shall have no standing to appear at any further legal proceedings concerning the child."). The fact that a parent whose parental rights to a child have been terminated may petition for nonparental custody of that child demonstrates that "custody" is not equivalent to "parentage." See In re Custody of R.R.B., 108 Wash. App. 602, 607, 31 P.3d 1212 (2001) ("The statute does not prohibit biological parents, whose parental rights were terminated, from petitioning for custody.").

      A showing of a substantial change in circumstances requires more than a temporary period of stability. A determination of fitness is not made based on a single point in time, but looks from a point in time forward. "Custodial changes are viewed as highly disruptive to children" and courts do not exercise this power lightly. In re Marriage of McDole, 122 Wash.2d 604, 610, 859 P.2d 1239 (1993).


author: Hazelrigg-Hernandez, J.

text:
    David George ESSIG, Respondent, v. Michael LAI and Veeny Van, individually and the marital community comprise thereof; Michael Lai d/b/a ML Companies, Inc., ML Companies, LLC, a Washington limited liability company; USAsia Pacific Inc., a Washington corporation; PT Holding LLC, a Washington limited liability company; Reality Network Team, Inc., a Washington corporation; Seattle Modern Living, LLC, a Washington limited liability company; Seattle Modern Living on 35th LLC, a Washington limited liability company; and John Doe Companies, Inc. 1-5, Appellants.
    No. 78014-0-I
    Court of Appeals of Washington, Division 1.
    FILED: July 8, 2019
    Randy Perry Baker, Attorney at Law, 2719 E Madison St. Ste. 304, Seattle, WA, 98112-4752, for Appellants.
    Brian Keith Keeley, Schlemlein Fick & Scruggs PLLC, 66 S Hanford St. Ste. 300, Seattle, WA, 98134-1867, for Respondent.
    PUBLISHED OPINION
   Hazelrigg-Hernandez, J.

¶1 This case requires us to decide whether the wage rebate act (WRA) , authorizes exemplary damages against an employer who fails to pay wages pursuant to a contract when the employee has not performed the actual work. David G. Essig stopped working for Michael Lai when Lai failed to pay him as required in their employment contract. Because the WRA is construed liberally to protect workers, the pay to which Essig was entitled under the contract constituted wages. We hold Essig is entitled to exemplary damages. Affirmed.

FACTS

¶2 David Essig began working for the Rainier Valley Community Development Fund (CDF) in 2006. Essig managed the real estate investment portion of the fund to create revolving loans and attract development and funds to the Rainier Valley. Through his work with the CDF, Essig met Michael Lai. Lai managed a real estate brokerage. Essig worked with Lai's firm on two successful loan transactions. From the first time they met, Lai periodically approached Essig about working for him. Initially, Lai spoke to Essig about becoming a real estate agent, but Essig was not interested.

¶3 In the fall of 2014, Essig and Lai began to talk about Essig working for Lai in a development capacity. Lai wanted to know if Essig would be willing to partner with him on the developments, but Essig did not have the financial capacity to partner on large scale developments. Lai then asked Essig to consider working as a consultant or independent contractor, but Essig was not interested in working as an independent contractor. Essig stated that his interest was in working as a key employee to build the development organization. Lai asked Essig to draft a proposal for Essig to begin working for him.

¶4 On May 29, 2015, Essig entered into an employment agreement with Lai and a number of business entities under Lai's control. Lai agreed to employ Essig for a minimum of two years, with an annual salary of $114,000, health and dental benefits for Essig and his spouse, an expense account, office space, office support, and a $5,000 signing bonus. Lai gave Essig a $5,000 check, which Essig successfully deposited. Essig was to start work on July 13, 2015. He resigned from the Rainier Valley Community Development Fund in reliance on the employment agreement.

¶5 Essig began performing his duties under the employment agreement on July 13, 2015. Over several weeks, he worked in the field reviewing projects, attending meetings and site visits with Lai, meeting with Lai, and engaging in phone, email, and text message communication with Lai regarding the business. At no point did Lai indicate that Essig was not employed by Lai.

¶6 On July 30, Essig emailed Lai requesting medical insurance and benefits for Essig and his wife, as provided in the employment agreement. On August 18, Essig sent Lai a letter demanding payment of his wages and benefits to that date. Essig continued to work for Lai until August 26.

¶7 Throughout August, Lai suggested changes to the employment agreement, but did not deny the existence of the employment agreement or employment relationship. Lai continued to involve Essig in meetings, phone calls, and communications regarding the business.

¶8 On August 27, Essig notified Lai that he considered Lai in breach, he was stopping work on Lai's behalf, and would seek other employment. Lai sent the following text message on August 28: "I can take care $120,000,000 per year next 12 months. Then become employees after that." Essig interpreted that message as an offer to work as an independent contractor. Essig engaged in efforts to find comparable replacement employment, searching in Seattle, Oklahoma City, and other locations nationwide. Essig filed suit.

¶9 The court found Lai in breach of contract, and awarded Essig lost wages of $228,000, exemplary damages of $228,000 under the WRA, $13,263 in medical benefits, attorney fees of $85,890, and $708.28 in costs. Lai appeals the award of exemplary damages and the court's finding that Essig reasonably mitigated his damages.

DISCUSSION

I. Lai is liable for exemplary damages under the WRA

¶10 Under RCW 49.52.050 and .070, employers who pay any employee a lower wage than the employer is obligated to pay, are liable for exemplary damages equal to the unpaid wages. Hill v. Garda CL NW, Inc., 191 Wash.2d 553, 561, 424 P.3d 207 (2018). The employer must withhold the wages willfully, intend to deprive the employee of his or her wages, and the employee must not knowingly submit to the violations. Id. at 561, 424 P.3d 207.

¶11 The trial court found for Essig on each factor. Lai does not challenge those findings of fact. Instead, Lai challenges whether the money owed to Essig counts as a wage under the statute, and whether he proved a bona fide dispute regarding his obligation to pay those wages.

A. Money owed under an employment contract is wage for purposes of the WRA

¶12 Questions of statutory interpretation are reviewed de novo. Id. at 573, 424 P.3d 207. The goal of statutory interpretation is to give effect to the legislature's intent. Columbia Riverkeeper v. Port of Vancouver USA, 188 Wash.2d 421, 435, 395 P.3d 1031 (2017). We begin with the plain meaning of the statute, which includes the text of the provision, the context of the statute, related provisions, and the statutory scheme as a whole. Id. at 435, 395 P.3d 1031.

¶13 The purpose of the WRA is to "protect the wages of an employee against any diminution or deduction." Schilling v. Radio Holdings, Inc., 136 Wash.2d 152, 159, 961 P.2d 371 (1998) (quoting State v. Carter, 18 Wash.2d 590, 621, 140 P.2d 298 (1943) ) (emphasis omitted). The WRA must be liberally construed to protect employee wages and assure payment. Id. at 159, 961 P.2d 371.

¶14 The WRA does not define wage, but a related statute, the Washington Minimum Wage Act (MWA) , defines wage as " 'compensation due to an employee by reason of employment.' " LaCoursiere v. Camwest Dev. Inc., 181 Wash.2d 734, 742, 339 P.3d 963 (2014) (quoting RCW 49.46.010(7) ). The plain language of RCW 49.52.050, authorizes liability against an employer that pays less than the "employer is obligated to pay ... by any statute, ordinance or contract[.]"

¶15 The trial court found an employment contract between Essig and Lai. That contract entitled Essig to payment. Lai argues that those payments are not wages under the statute because Essig did not actually perform work to earn the wages. He relies on LaCoursiere, where the court held that bonuses paid for "work performed" constituted wages. Id. at 741, 339 P.3d 963. LaCoursiere, the plaintiff, received a discretionary bonus based on work performance criteria, some of which was distributed to an LLC owned by the plaintiff and his employer. Id. at 738-39, 339 P.3d 963. In order to determine whether or not the money distributed to the LLC was an unlawful rebate, the court first had to determine whether the bonuses were wages. Id. at 741, 339 P.3d 963. The court considered the definition of wage used in the MWA, "compensation due to an employee by reason of employment," and the definition found in Webster's, "a pledge or payment of usu. monetary remuneration by an employer esp. for labor or services ... often including bonuses." Id. at 741-42, 339 P.3d 963 (quoting RCW 49.46; WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2568 (2002)). After also considering cases where bonuses were paid for reasons other than employment and cases where future bonuses were promised, the court determined that the bonuses paid to the plaintiff "were due by reason of employment" and therefore wages. Id. at 743, 339 P.3d 963.

¶16 Lai argues that because LaCoursiere held that bonuses paid for work performed were wages, it suggests that payments unrelated to work performed are not wages. But LaCoursiere did not consider that question, and Lai's reading contradicts the "by reason of employment" language used to describe wages in LaCoursiere. Id. at 742, 339 P.3d 963. It also contradicts the plain language of the statute: the WRA refers to the employer's obligation to pay, not the employee's obligation to work. The salary Lai was obligated to pay to Essig was by reason of his employment.

¶17 In Gaglidari v. Denny's Restaurants, Inc., our Supreme Court rejected a similar argument regarding the meaning of the term wages in a related statute, RCW 49.48.030. 117 Wash.2d 426, 448, 815 P.2d 1362 (1991). RCW 49.48.030 provides for a plaintiff's recovery of attorney fees in a successful action to recover wages or salary. The court held Gaglidari was employed based on a contract. Id. at 433, 815 P.2d 1362. Gaglidari alleged that she was terminated in breach of her employment contract. Id. at 430, 815 P.2d 1362. While the court remanded the case for resolution, it held that Gaglidari could recover attorney fees if she recovered back pay from the time she was terminated.

Id. at 451, 815 P.2d 1362. Denny's argued that "back wages" were not "wages owed" because they were not for work actually performed. Id. at 448-49, 815 P.2d 1362. The court held that "[l]ost wages damages [were] in lieu of compensation for services[,]" the statute included not only wages for work actually performed but also "money due by reason of employment[,]" and attorney fees were recoverable under the statute in actions for breach of employment contracts. Id. at 449-50, 815 P.2d 1362.

¶18 Lai attempts to distinguish Gaglidari's interpretation of RCW 49.48.030. Lai argues that RCW 49.48.030 is a remedial statute. On the other hand, because RCW 49.52.050 could result in a misdemeanor charge, he argues the WRA is a punitive statute, and should be construed more narrowly. The Supreme Court has held that RCW 49.48.030 is a remedial statute, meant to be construed liberally for the purpose of protecting employees' rights. Arnold v. City of Seattle, 185 Wash.2d 510, 521, 374 P.3d 111 (2016) (citing Int'l Ass'n of Fire Fighters, Local 46 v. City of Everett, 146 Wash.2d 29, 34, 42 P.3d 1265 (2002) (collecting cases)). But the court has also held that the WRA must be liberally construed to protect employee wages and assure payment. Schilling, 136 Wash.2d at 159, 961 P.2d 371. Because both statutes must be construed liberally and share essentially the same purpose, there is no reason to define wage differently in each statute.

¶19 Finally, in Allstot v. Edwards, Division III of this court considered a similar question regarding the meaning of wages in RCW 49.52.050. 114 Wash. App. 625, 60 P.3d 601 (2002). In that case, after a police officer had been wrongfully terminated from his job and reinstated, the town failed to pay him for the time he was terminated. Id. at 629-30, 60 P.3d 601. The trial court ruled that exemplary damages under the WRA did not apply to back pay because the officer did not actually perform work while he was wrongfully terminated. Id. at 632-33, 60 P.3d 601. Division III held that wages included back pay because the language of RCW 49.52.050 did not contain any such limit on wages, the statute must be construed to protect employee wages, and other cases, including Gaglidari, had construed wages to include back pay. Id. at 633, 60 P.3d 601. Lai's argument is similarly based on the fact that Essig did not perform the work. We reject his argument on the same basis.

¶20 Essig's circumstances are analogous to the wrongful termination in Allstot. Essig had a right to employment and pay under the contract. Lai failed to pay him. Based on the language of RCW 49.52.050, the purpose of the statute, the definition of wage in the MWA, and the above precedents, we hold that pay under an employment contract constitute wages for the purpose of the WRA and affirm the award of exemplary damages.

B. Lai failed to establish the statutory bona fide dispute defense.

¶21 An employer can defeat a showing of willfulness by demonstrating a bona fide dispute regarding whether the wages were due. Hill, 191 Wash.2d at 561, 424 P.3d 207 (citing Schilling, 136 Wash.2d at 160, 961 P.2d 371 ). The employer bears the burden of proof regarding the bona fide dispute. Id. at 562, 424 P.3d 207.

¶22 The bona fide dispute defense requires the employer to have a genuine belief in the dispute and for the dispute to be objectively reasonable. Id. at 562, 424 P.3d 207. The subjective, genuine belief component is a question of fact, reviewed for substantial evidence. Id. at 562, 424 P.3d 207. The objective reasonableness of the argument is a legal question reviewed de novo. Id. at 562, 424 P.3d 207.

¶23 We affirm because Lai failed to show a subjective belief in a genuine dispute. The absence of a finding of fact is equivalent to a finding of its absence. Garcia v. Henley, 190 Wash.2d 539, 545, 415 P.3d 241 (2018). While the trial court does not explicitly find that Lai lacked a subjective belief in the dispute, the court found Lai failed to meet his burden of proof and lacked credibility. Lai understood that the contract obligated him to pay Essig wages. While Lai testified that he signed the contract under the influence of alcohol and under pressure from Essig, the trial court did not find him credible. Given the findings, the absence of an affirmative finding that Lai had a subjective belief in the dispute, and Lai's burden of proof, we affirm the trial court's implicit finding that Lai failed to establish a subjective belief in the dispute.

II. Lai did not demonstrate that Essig failed to take reasonable steps to mitigate his damages

¶24 The burden of proving a failure to mitigate damages is on the defendant. Kloss v. Honeywell, Inc., 77 Wash. App. 294, 301, 890 P.2d 480 (1995) (quoting Burnside v. Simpson Paper Co., 66 Wash. App. 510, 529-30, 832 P.2d 537 (1992) ). Where an employee has been unlawfully discharged he must be "reasonably diligent in seeking and accepting ... substantially equivalent [employment]." Id. at 302, 890 P.2d 480 (quoting Brady v. Thurston Motor Lines, Inc., 753 F.2d 1269, 1273-78 (4th Cir. 1985) ). Essig testified that on August 28, 2015, Lai offered for him to work for Lai as an independent contractor for one year at a salary of $120,000. Lai argues that Essig was obligated to accept his offer and because Essig did not accept that offer, Essig failed to mitigate his damages by $120,000. The actual text of the message from Lai read "I can take care $120,000,000 per year next 12 months. Then become employees after that." The trial court did not find Lai credible at trial, and the oral ruling suggests that the court did not find his offer to be credible, either. The trial court found Essig was not offered employment between August 27, 2015 and June 30, 2017. To the extent that Lai's message constituted an offer, we do not find it comparable to the position described in the contract, and affirm the judgment of the trial court.

¶25 This court may affirm the judgment of the trial court on any theory established by the pleadings and supported by the proof. State v. Smith, 177 Wash.2d 533, 540-41, 303 P.3d 1047 (2013). Here, substantial evidence shows that the new position was not equivalent to the position Lai and Essig agreed to in the previous contract. While Lai argues that $120,000 per year is roughly equivalent to $114,000 per year plus benefits, he ignores the difference between status as an independent contractor and status as an employee. We can see how important that distinction was to Essig, because significant testimony shows that he bargained for employee status, even though Lai attempted multiple times to hire him as an independent contractor. It also ignores factors like providing Essig with office space, office support, expenses, vacation, or an opportunity for bonuses, all of which were present in the original agreement.

¶26 Because substantial evidence shows the offer was not a similar position, Lai did not demonstrate that Essig failed to mitigate his damages.

¶27 Affirmed.

WE CONCUR:

Smith, J.

Leach, J.

      Chapter 49.52 RCW

      Chapter 49.46 RCW