AN ACT Relating to appeals of actions on state-owned aquatic lands; and amending RCW 79.90.400, 79.01.500, 43.21B.010, 43.21B.110, 43.21B.140, 43.21B.150, 43.21B.160, 43.21B.180, and 43.21B.230.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. Section 46, chapter 21, Laws of 1982 1st ex. sess. and RCW 79.90.400 are each amended to read as follows:

Any applicant to purchase, or lease, any aquatic lands of the state, or any valuable materials thereon, and any person whose property rights or interest will be affected by such a sale ((or)), lease, or other decision regarding aquatic lands, feeling himself aggrieved by any order or decision of the board of natural resources, or the commissioner of public lands, concerning the same, may appeal ((~~therefrom in the manner provided in RCW 79.01.500~~)) such order or decision to the pollution control board according to the procedures established under chapter 43.21B RCW. A subsequent appeal of that decision of the pollution control board on a case under this section shall be pursuant to RCW 79.01.500.

Sec. 2. Section 125, chapter 255, Laws of 1927 as amended by section 139, chapter 81, Laws of 1971 and RCW 79.01.500 are each amended to read as follows:

Except as provided in RCW 79.90.400, any applicant to purchase, or lease, any public lands of the state, or any valuable materials thereon, and any person whose property rights or interests will be affected by such sale or lease, feeling himself aggrieved by any order or decision of the board of state land commissioners, or the commissioner of public lands, concerning the same, may appeal therefrom to the superior court of the county in which such lands or materials are situated, by serving upon all parties who have appeared in the proceedings in which the order or decision was made, or their attorneys, a written notice of appeal, and filing such notice, with proof, or admission, of service, with the board, or the commissioner, within thirty days from the date of the order or decision appealed from, and at the time of filing the notice, or within five days thereafter, filing a bond to the state, in the penal sum of two hundred dollars, with sufficient sureties, to be approved by the secretary of the board, or the commissioner, conditioned that the appellant shall pay all costs that may be awarded against him on appeal, or the dismissal thereof. Within thirty days after the filing of notice of appeal, the secretary of the board, ((or)) the commissioner, or the pollution control hearings board, if an appeal is taken according to RCW 79.90.400, shall certify, under official seal, a transcript of all entries in the records of the board, ((or)) the commissioner, or the pollution control hearings board together with all processes, pleadings and other papers relating to and on file in the case, except evidence used in such proceedings, and file such transcript and papers, at the expense of the applicant, with the clerk of the court to which the appeal is taken. The hearing and trial of said appeal in the superior court shall be de novo before the court, without a jury, upon the pleadings and papers so certified, but the court may order the pleadings to be amended, or new and further pleadings to be filed. Costs on appeal shall be awarded to the prevailing party as in actions commenced in the superior court, but no costs shall be awarded against the state, the board, or the commissioner. Should judgment be rendered against the appellant, the costs shall be taxed against him and his sureties on the appeal bond, except when the state is the only adverse party, and shall be included in the judgment, upon which execution may issue as in other cases. Any party feeling himself aggrieved by the judgment of the superior court may appeal therefrom to the supreme court or the court of appeals of the state, in the manner, and within the time, for appealing from judgments in actions at law. Unless appeal be taken from the judgment of the superior court, the clerk of said court shall, on demand, certify, under his hand and the seal of the court, a true copy of the judgment, to the board, or the commissioner, which judgment shall thereupon have the same force and effect as if rendered by the board, or the commissioner. In all cases of appeals from orders or decisions of the commissioner of public lands involving the prior right to purchase tidelands of the first class, if the appeal be not prosecuted, heard and determined, within two years from the date of the appeal, the attorney general shall, after thirty days' notice to the appellant of his intention so to do, move the court for a dismissal of the appeal, but nothing herein shall be construed to prevent the dismissal of such appeal at any time in the manner provided by law.

Sec. 3. Section 31, chapter 62, Laws of 1970 ex. sess. as amended by section 3, chapter 47, Laws of 1979 ex. sess. and RCW 43.21B.010 are each amended to read as follows:

There is hereby created within the environmental hearings office a pollution control hearings board of the state of Washington.

The purpose of the pollution control hearings board is to provide for a more expeditious and efficient disposition of appeals with respect to the decisions and orders of the department and director ((~~and~~)), with respect to all decisions of air pollution control boards or authorities established pursuant to chapter 70.94 RCW, and with respect to orders and decisions relating to the purchase or lease of any aquatic lands of the state or materials therefrom pursuant to RCW 79.90.400.

Sec. 4. Section 41, chapter 62, Laws of 1970 ex. sess. and RCW 43.21B.110 are each amended to read as follows:

The hearings board shall only have jurisdiction to hear and decide appeals from the decisions of the department ((~~and~~)), the director ((~~and~~)), the air pollution control boards or authorities as established pursuant to chapter 70.94 RCW when such decisions concern matters within the jurisdiction of the hearings board as provided in this act or as provided in any future act or law granting the hearings board additional jurisdiction. The hearings board shall also have jurisdiction to hear and decide appeals from any person aggrieved by an order issued by the department or by air pollution control boards or authorities as established pursuant to chapter 70.94 RCW with respect to a violation or violations of this act or of any rule or regulation adopted by the department or of any other law within the jurisdiction of the department. The hearings board shall also have jurisdiction to hear and decide appeals from any person aggrieved by an order or decision of the board of natural resources or the commissioner of public lands relating to the purchase or lease of any aquatic lands or materials therefrom pursuant to Title 79 RCW. The issuance, modification, or termination of any permit or license by the department in the exercise of its jurisdiction, including the issuance or termination of a waste disposal permit, the denial of an application for a waste disposal permit, or the modification of the conditions or the terms of a waste disposal permit, shall be deemed to be an order for purposes of this act: PROVIDED, That review of rules and regulations adopted by the board shall be subject to review in accordance with the provisions of the administrative procedure act, chapter 34.04 RCW.

Sec. 5. Section 44, chapter 62, Laws of 1970 ex. sess. and RCW 43.21B.140 are each amended to read as follows:

In all appeals over which the hearings board has jurisdiction under RCW 43.21B.110 ((~~and~~)), 43.21B.120, and 79.90.400, a party taking an appeal may elect either a formal or an informal hearing, such election to be made according to rules of practice and procedure to be promulgated by the hearings board: PROVIDED, That nothing herein shall be construed to modify the provisions of RCW 43.21B.190 and 43.21B.200. In the event that appeals are taken from the same decision, order, or determination, as the case may be, by different parties and only one of such parties elects a formal hearing, a formal hearing shall be granted.

Sec. 6. Section 45, chapter 62, Laws of 1970 ex. sess. as amended by section 2, chapter 69, Laws of 1974 ex. sess. and RCW 43.21B.150 are each amended to read as follows:

In all appeals involving an informal hearing, the hearings board or its hearing examiners shall have all powers relating to the administration of oaths, issuance of subpoenas, and taking of depositions as are granted to agencies by chapter 34.04 RCW. In the case of appeals within the scope of this 1970 act or appeals pursuant to RCW 79.90.400, the hearings board or any member thereof may obtain such assistance, including the making of field investigations, from the staff of the director or, if an appeal relates to Title 79 RCW, the staff of the commissioner of public lands as the hearings board or any member thereof may deem necessary or appropriate: PROVIDED, That any communication, oral or written, from the staff of the director or the commissioner of public lands to the hearings board or its hearing examiners shall be presented only in an open hearing.

Sec. 7. Section 46, chapter 62, Laws of 1970 ex. sess. as amended by section 3, chapter 69, Laws of 1974 ex. sess. and RCW 43.21B.160 are each amended to read as follows:

In all appeals involving a formal hearing, the hearings board or its hearing examiners shall have all powers relating to administration of oaths, issuance of subpoenas, and taking of depositions as are granted to agencies in chapter 34.04 RCW; and the hearings board, and each member thereof, or its hearing examiners, shall be subject to all duties imposed upon, and shall have all powers granted to, an agency by those provisions of chapter 34.04 RCW relating to contested cases. In the case of appeals within the scope of this 1970 act or appeals pursuant to RCW 79.90.400, the hearings board, or any member thereof, may obtain such assistance, including the making of field investigations, from the staff of the director or, if the appeal relates to Title 79 RCW, the staff of the commissioner of public lands as the hearings board, or any member thereof, may deem necessary or appropriate: PROVIDED, That any communication, oral or written, from the staff of the director or the commissioner of public lands to the hearings board or its hearing examiners, shall be presented only in an open hearing.

Sec. 8. Section 48, chapter 62, Laws of 1970 ex. sess. and RCW 43.21B.180 are each amended to read as follows:

(1) Judicial review of a decision of the hearings board shall be de novo except when the decision has been rendered pursuant to a formal hearing elected under the provisions of this 1970 act, in which event judicial review may be obtained only pursuant to RCW 34.04.130 and 34.04.140. The director shall have the same right of review from a decision made pursuant to RCW 43.21B.110 as does any person.

(2) Judicial review of a decision of the hearing board under RCW 79.90.400 shall proceed as directed by RCW 79.01.500.

Sec. 9. Section 53, chapter 62, Laws of 1970 ex. sess. and RCW 43.21B.230 are each amended to read as follows:

Any person having received notice of a denial of a petition, a notice of determination, notice of or an order made by the department under the provisions of this 1970 amendatory act or an order or decision of the board of natural resources or the commissioner of public lands relating to the purchase or lease of any aquatic lands or material therefrom pursuant to Title 79 RCW may appeal, within thirty days from the date of the notice of such denial, order, or determination to the hearings board. The appeal shall be perfected by serving a copy of the notice of appeal upon the department or air pollution authority established pursuant to chapter 70.94 RCW or the commissioner of public lands, as the case may be, within the time specified herein and by filing the original thereof with proof of service with the clerk of the hearings board. If the person intends that the hearing before the hearings board be a formal one, the notice of appeal shall so state. In the event that the notice of appeal does not so state, the hearing shall be an informal one: PROVIDED, HOWEVER, That nothing shall prevent the department ((or)), the air pollution authority, or the commissioner of public lands, as the case may be, within ten days from the date of its receipt of the notice of appeal, from filing with the clerk of the hearings board notice of its intention that the hearing be a formal one.