On December 2, 2016, Judge Gary R. Tabor of the Thurston County Superior Court signed the final order denying Plaintiffs’ challenge to the validity of the Dungeness River Instream Flow Rule, Chapter 173-518 WAC. The Plaintiffs, including the Olympic Resource Protection Council, are property owners, realtors and builders living in the Dungeness basin who were significantly impacted by the Dungeness Rule, and are considering an appeal to the Washington Supreme Court. Such an appellate review would be “de novo,” meaning that the Supreme Court would make its own decision based on the rule-making record, and would not give deference to the lower court’s decision. The precedent for a successful appeal exits in several recent Supreme Court cases including Swinomish, Foster, and Hirst where the Supreme Court reversed lower court decisions that held in favor of Ecology.
Judge Tabor made his initial ruling from the bench after a trial on October 21, 2016. He did not think that plaintiffs met their burden of proving that Ecology violated its statutory authority by adopting the Dungeness Rule without a maximum net benefits test or the four-part test for creating water rights at RCW 90.03.290, and held that the rule was not arbitrary and capricious.