Maytown Sand & Gravel, LLC v. Thurston County

this bpihlon Wasfiled for record
^ IN eLIRKS OrPICE X
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at.^ on ^
DATE 2018

CMiB'jusTKe I SUSAN LGARLSON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

MAYTOWN SAND AND GRAVEL,LLC, No. 94452-1

Respondent,
V. EN BANC

THURSTON COUNTY,

Petitioner,
Filed AUG 0 9;2018
BLACK HILLS AUDUBON SOCIETY and
FRIENDS OF ROCKY PRAIRIE,

Additional Defendants,

PORT OF TACOMA, a Washington special
purpose district.
Respondent.
PORT OF TACOMA, a Washington special
purpose district.
Respondent,
V.

THURSTON COUNTY,

Petitioner,

BLACK HILLS AUDUBON SOCIETY and
FRIENDS OF ROCKY PRAIRIE,
Additional Defendants,

MAYTOWN SAND AND GRAVEL LLC,
Respondent.
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

GORDON McCLOUD, J.—The Land Use Petition Act (LUPA), chapter

36.70C ROW,bars parties from challenging a local land use decision in state court

if the parties fail to exhaust the administrative process. ROW 36.70C.030. The

central issue in this case is(1)whether that administrative exhaustion rule applies to

all tort claims that arise during the land use decision-making process. The other

issues are (2) whether there was sufficient evidence to support the jury's finding of

a substantive due process violation under 42 U.S.C. § 1983 (Section 1983); (3)

whether an aggrieved party can recover prelitigation, administrative fora attorney

fees intentionally caused by the tortfeasor under a tortious interference claim; and,

lastly, (4) whether the Court of Appeals erred in awarding a request under RAP

18.1(b) for appellate attorney fees that was not made in a separate section devoted

solely to that request.

We affirm the Court of Appeals on all but the third issue. We hold that (1)

LUPA's administrative exhaustion requirement does not bar all tort claims,(2)there

was sufficient evidence to support the jury's finding that Maytown Sand & Gravel

LLC's(Maytown)substantive due process rights were violated under Section 1983,

(3)the tortious interference claims pleaded in this case do not authorize recovery of

prelitigation, administrative fora attorney fees, and (4)the Court of Appeals did not
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

err in awarding appellate attorney fees under RAP 18.1(b). We therefore affirm in

part and reverse in part.

I. Facts and Procedural History

In late 2009, Maytown purchased real property in Thurston County from the

Port of Tacoma (Port) for the express purpose of operating a mine. The property

came with an approved 20-year special use permit (permit) from Thurston County

(County)for mining gravel.

That permit was originally issued in 2005 to the previous owner, Citifor, after

protracted negotiations with numerous community stakeholders and extensive

environmental studies. Because the proposed mining site is located adjacent to one

of Washington's largest tracts of prairie-oak-wetland habitat, the proposed project

stirred significant opposition from nearby residents, Indian tribes, and environmental

conservationists. Trial Ex.(Ex.) 303. The lead environmental group opposing the

mine back then was the Black Hills Audubon Society(BHAS). Citifor and BHAS

eventually reached an agreement balancing Citifor's mining interest with BHAS's

environmental concerns. In exchange for BHAS dropping its opposition to the mine,

Citifor agreed to significantly reduce the amount of gravel it originally planned to

excavate, to reclaim the property as a wetland once the reduced gravel amount was
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

excavated, and to sell over 800 acres of other property it owned to the state for

wildlife conservation. Ex. 429.

But in 2006, the year after the permit was issued and before mining activities

began, Citifor sold the property with the permit to the Port. The issues in this case

arose four years later when Maytovm and the Port sought to use the permit. Even

though BHAS had signed off on the permit, other conservation groups and local

residents remained opposed to the mine. Maytown and the Port claim that the

County's board of commissioners (Board) succumbed to political pressure from

these mine opponents and directed the County's Resource Stewardship Department

(Department) to impose unnecessary procedural hurdles meant to obstruct and stall

the mining operation.

Although Maytown already had a permit to mine the property,the Department

remained involved because four key issues needed to be addressed. First,the Friends

ofRocky Prairie(FORP),an environmental conservation group, was challenging the

validity of the permit. Second, two missed water quality testing deadlines listed in

the permit needed to be addressed. Third,there was a discrepancy between the water

quality monitoring requirements listed in the permit and the corresponding

groundwater monitoring plan that needed to be clarified. Fourth,the permit was due

for its five-year review before the hearing examiner.
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

Because the property had been designated by the County as "mineral land of

long term commercial significance," the County was obligated to balance the

protection of the mineral land with the protection of critical areas. Ex. 429, at 46.

As discussed below, the Department's decisions as to each of the four key issues

were generally favorable to Maytown and the Port but came after significant delay

and expense.

A. FORP's Claim That the Permit Had Lapsed Due to Inactivity or
Noncompliance with the Permit's Water Quality Monitoring
Conditions

Sometime in early 2009,local environmental conservationists learned that the

Port was planning to sell the property that it had purchased from Citifor as a

permitted gravel mine. These individuals formed a group, FORP,to stop the mine.

FORP informed the Department that it believed the permit was no longer valid due

to three years of nonuse and missed water testing deadlines. Ex. 140, at 1-2 (citing

Thurston County Code (TCC) 20.54.040(4)(A); TCC 17.20.150(C)). FORP

acknowledged that the Port had engaged in some activities during those three years

but argued that none of those activities counted as use. According to FORP,those

activities did not count because the Port was operating outside of its geographical

region and outside the scope of its interlocal agreement with the Port of Olympia,

the governmental body that had geographical jurisdiction over the property. Id.
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

The Department dismissed FORP's claim as untimely. The Department

explained that it had already ruled the year before, in 2008, that the permit was valid

despite the missed testing deadlines and the long period ofinactivity. Exs. 141, 143.

Because FORP failed to challenge that decision within the time frame for such

appeals, the Department determined that FORP was time barred from doing so now.

After this legal challenge failed, FORP decided to put political pressure on the

mine instead. FORP informed the Port of Olympia Commission ofits beliefthat the

Port was acting outside the scope ofthe interlocal agreement between the two ports.

Olympia Port Commissioner George Earner Jr. agreed with FORP that the Port was

acting outside the scope of the interlocal agreement and shared his assessment with

the Board. Clerk's Papers(CP)at 255-56. FORP also met privately with the Board's

three commissioners to discuss the gravel mine. Exs. 98A,98B; CP at 2213.

Around the same time as these private meetings, one of the Board's

commissioners, Karen Valenzuela, indicated interest in evaluating whether the

permit could be revoked either because of the reasons raised by FORP or for some

other yet-to-be-identified reason. Ex. 114A. Valenzuela also advised Sharron

Coontz (FORP's president) about the evidence that she believed was needed to

persuade the Board's two other commissioners to agree to reexamine the validity of

the permit. Ex. 74.
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

As discussed in more detail in the five-year review section infra Section I.C,

the Board ultimately agreed with the Department that the issue of permit validity

was closed and could not be reopened by FORP. CP at 106-10.

B. Maytown's Journey To Extend the Permit's Water Testing Deadlines
and To Clarify the Scope of the Water Quality Monitoring
Requirements

Even though the Department had already ruled in 2008 that the gravel mining

permit had not lapsed entirely due to inactivity or missed water testing deadlines,

there was still the issue of how to address those missed deadlines.

When the permit was originally issued in 2005 to Citifor, that company had

planned to start mining immediately. As a result, the permit contained deadlines that

assumed an immediate start date. Specifically, condition 6A required field testing

of4 off-site supply wells "[p]rior to any mining activity and within one-year offinal

issuance of the [permit]," and condition 6C required the mine operator to collect

"water levels, temperature, and water quality, including measurement ofbackground

conditions" data from 17 wells '''within 60 days of the final issuance by the County

of the [permit]." Ex. 302(emphasis added). Because Citifor changed its mind and

decided not to pursue the mine soon after it received the permit, Citifor never

conducted that field testing and never collected that water quality data.

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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

Significant debate arose in 2009 about whether those two deadlines needed to

be formally extended and what water quality metrics and data collection points

needed to be monitored.

1. The Department Assured the Port That the Permit Was Valid and
That the Port Had Complied with All Water Quality Requirements

As discussed, the Port purchased the property from Citifor in 2006. The Port

purchased the property in partnership with the Port of Olympia for use as a rail-

served, intermodal logistics center (i.e., a freight transfer center)for the south Puget

Sound region. That meant the Port did not have immediate plans to mine the

property, so the Port did not conduct field testing or collect water quality data right

away.

But the Port's plan to use the property as a freight transfer center fell through.

In 2008,two years after purchasing the property, the Port sought to recoup its losses

by selling the property as a permitted gravel site. The Port prepared the property for

mining by removing 20 million tons of soil that was contaminated due to Citifor's

decades of artillery manufacturing and explosives testing on the property.

Additionally, the Port sought assurances from the Department that the permit

remained valid despite the missed water testing deadlines and lack of mining

activity.
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

The Department assured the Port that the permit remained valid. Ex. 85. But

the Department also informed the Port that no on-site activities could begin until the

Department received condition 6A and 6C's field testing water quality data. Id. The

Port immediately collected the data and submitted it to the Department the following

month. Upon receipt of that data, the Department confirmed that "all information

requested . . . has been submitted" and informed the Port that "[i]t is the property

owners' responsibility to ensure the property remains in compliance with all adopted

. . . conditions i.e. continual monitoring of the groundwater ... as required by the

[permit]." Ex. 83.

Based on the Department's express assurance that the permit was still valid

and its implicit approval to start mining, Maytown agreed to buy the property from

the Port. However, before the sale was completed, Maytown sought further

assurances from the Department that mining activities could commence quickly after

completion ofthe sale. Maytown presented testimony that Mike Kain,the County's

planning manager, verbally reassured it that the permit remained valid, that there

were no "skeletons in the closet," and that Maytown could conunence mining

activities within 30 to 60 days. 10 Verbatim Report ofProceedings(VRP)(June 27,

2014) at 2227. Kain disputes ever telling Maytown that mining activities could

commence immediately. Rather, Kain testified that he said the average lead time
Maytown Sand and Gravel, LLC v. Thiirston County, No. 94452-1

for the Department to process a request to proceed with mining would take

approximately 30 to 60 days. 15 VRP (July 8, 2014) at 3163.

That meeting between Kain and Maytown occurred in late October 2009,

around the same time that FORP (the environmental conservation group formed to

stop the mine) began meeting in earnest with the Board's three commissioners to

invalidate the permit.

2. After Nearly Two Years, the Department Suddenly Notified the
Port That a "Letter to Proceed" Was Required before Mining
Activities Could Commence

Shortly after the meeting between Maytown and Kain, the Department

informed the Port—for the first time in two years of communications about the

anticipated mine—^that the Port needed to obtain a "letter to proceed" from the

Department confirming that all permit conditions had been satisfied before any

mining activities could begin. Ex. 361. The Department further stated that once the

Port submitted a request for such a letter, "review will not be initiated" until FORP

had the opportunity to "outlin[e] their view of.. . compliance with conditions." Id.

The Department approximated that review of such a request to proceed would

"typically be 30 to 60 days." Id.

The Port questioned the sudden need for a letter to proceed, especially since

it already had a letter in 2008 that implied the Port had complied with all permit

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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

conditions and was authorized to start mining. When the Port questioned the County

about the letter to proceed requirement, the County's attorney explained that the

requirement was authorized under TCC 17.20.160(A). CP at 1154. That ordinance,

however, requires only that gravel extraction miners "submit to either an inspection

or ... a conference before commencing the extraction of mineral resources." TCC

17.20.160(A). The ordinance does not mention anything about a written letter to

proceed requirement.

Although the Port remained skeptical about the need for a letter to proceed, it

nevertheless submitted a request for that letter two months later on January 4, 2010.

CP at 1204-34.

The Department denied the request on February 16, 2010. Ex. 382.

The Department explained that it could not issue a letter to proceed because

the Port had not complied with all permit conditions. Ex. 383. The Department

identified two main noncompliance issues. The first issue was the missed deadlines

for field testing and water data colleetion under conditions 6A and 6C. Those

deadlines, the Department explained, could be easily extended by amending the

permit. Because the "minor timeline change" did not "rise to the Hearing Examiner

level to attain compliance," it"may be approved by staff." Ex. 383, at 3-4; Ex. 382,

at 1. The second issue was the Port's allegedly deficient water data collection. Ex.

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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

383. Back in 2008 when the Department first informed the Port that it needed to

perform water quality monitoring, the Port collected only 2 data points(water level

and temperature) from 14 wells. However, condition 6C expressly requires the

collection of4 data points("water level, temperature, water quality and background

conditions") from "77 {wellsy Id. at 3-4 (emphasis added). The Department

explained that a ''full baseline data set" consisting of 4 data metrics from 17 wells

was required before mining activities could commence. Id. at 4(emphasis added).

Additionally, the County's hydrogeologist recommended that the Port perform

additional, more comprehensive and costly, water testing of over 160 other

pollutants for at least one year before mining. Ex. 63.

The Port disagreed with the Department's findings of noncompliance and

refused to do any additional testing. Ex. 386. It appealed the findings and

recommendations to the Board. Id. The Port argued that the Department was

misreading condition 6C's data collection requirements to require more than was

intended. Id. The Port acknowledged that the express language of condition 6C

could be interpreted to include 4 data metrics from 17 wells but argued that that

interpretation produced impossible and costly monitoring requirements that have

nothing to do with any possible environmental impacts caused by gravel mining. Id.

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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

Moreover, the Port argued, such additional testing could delay the mining project

for over a year due to Washington's rainy season. Id.

The Department explained that the additional comprehensive pollutant testing

was needed to test for historical pollutants deposited on the property by Citifor's

decades of artillery and ammunitions manufacturing and testing.

Whether the Port's or the Department's interpretation of the scope of

condition 6C's water quality monitoring requirements was correct was never

resolved because the Port withdrew its appeal to the Board a few months later on

July 1, 2010. Ex. 50. The Port withdrew the appeal because Maytown,the company

that was buying the property, had agreed under protest to collect the additional 2

data metrics from more wells (but not "17 wells") and agreed to conduct the

additional, comprehensive pollutant testing. Maytown agreed to do this additional

testing to allow mining to begin.

3. Even though Maytown Agreed to Comply with All of the
Department's Recommended Tests, the Department Still
Required Formal Amendment of the Permit and Hearing
Examiner Approval of the Formal Amendment before Mining
Could Commence

Like the Port, Maytown did not agree with the County's interpretation of the

scope of water quality testing required under the permit. Before Maytown

eventually agreed to comply with the County's interpretation, Maytown sought to

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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

amend six permit conditions. Regarding conditions 6A and 6C's field and water

quality testing, Maytown sought to extend the missed deadlines, reduce the data

collection points from 4 to 2 data points, and clarify that the reference to 17 "wells"

in the permit was really shorthand for a combination of 17 underground wells and

aboveground stations. Ex. 59. In addition to amending conditions 6A and 6C,

Maytown sought to amend four other permit conditions relating to the construction

of a freeway turn pocket (condition 5), the installation of a noise berm (condition

15), the management of stormwater and erosion (conditions 23 H and I), and the

notice requirements to nearby well owners (condition V). Id. Maytown submitted

its proposed amendments to the Department on April 22, 2010.

Maytown claims that before submitting those six proposed amendments to the

Department, it had obtained reassurances from Kain at the Department that the

proposed amendments would be treated as minor adjustments and therefore would

be reviewed administratively by department staff without referral to a hearing

examiner for a quasi-judicial public hearing. 5 VRP (June 20, 2014) at 1354. Kain

acknowledged having that conversation with Maytown but testified that he said each

ofthose six amendments would probably qualify individually as minor amendments.

16 VRP (July 9,2014)at 3312-14. He denied ever saying that those six amendments

when proposed together, like Maytown did, would qualify as minor. Id.

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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

The critical difference between treating an adjustment as minor rather than

major is that ground disturbing activities can begin once the Department approves a

minor adjustment, regardless of whether FORP or any other environmental group

appeals the adjustment. Appellant's Pet. for Review at 4. Conversely, if an

amendment is classified as a major adjustment, all ground disturbing activities must

be stayed until all appeals are resolved, which could—and in this case did—^result in

significant delay. Ex.55.

On June 17, 2010, two months after Maytown submitted its proposed

amendments,the Department informed Maytown that the six proposed amendments

were "substantial" and therefore needed to be referred to a hearing examiner. Id. at

1.

Maytown tried to expedite the amendment process by withdrawing piecemeal

most of its proposed amendments. As mentioned above, by July 1, 2010, Maytown

had agreed to comply with all ofthe Department's data collection requirements and

recommendations and had withdrawn every amendment except those related to

conditions 6A and 6C. Ex. 50. Maytown did not withdraw its proposed 6A and 6C

amendments because it was impossible for Maytown to comply with conditions 6A

and 6C as written. 4 VRP (June 19, 2014) at 1156-58. The deadlines for both

conditions had passed, and condition 6C's data collection requirements were

15
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

impossible to satisfy because they required collecting water data from a nonexistent

17th well.

Maytown's withdrawals and concessions occurred too late. By the time

Maytown made these concessions, the Board's attorney had already informed the

Department that the Board would no longer allow the Department to

administratively grant any adjustments to special use permits—^not even minor

adjustments. 16 VRP (July 9, 2014) at 3297-300. Kain, the County's planning

manager, testified that until that point he had been approving minor adjustments to

special use permits—like the one at issue here—for over 22 years. Id. at 3301-02.

Approval of Maytown's proposed amendments was further delayed by the

Department's determination that a limited SBPA' review was necessary before the

proposed amendments could be considered by the hearing examiner. Ex. 55. The

Department explained that because condition 6A and 6C were SEPA conditions, a

limited SEPA review was necessary to amend them. This limited review required

Maytown to submit a SEPA checklist. Id. Maytown's primary complaint with

having to undergo limited SEPA review is that it delayed approval of the proposed

amendments even more. Before the proposed amendments could be sent to the

State Environmental Policy Act, eh. 43.21C RCW.

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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

hearing examiner for consideration, the Department had to issue SEPA findings.

The Department issued those SEPA findings on January 19, 2011—^nearly 5 months

after Maytown submitted its SEPA checklist and nearly 9 months after Maytown

initially submitted its request for amendments.^

Notably, Maytown's attorney agreed with the Department that a limited SEPA

review was probably required. He argued, instead, that any SEPA finding should

have been issued as an addendum rather than as a new threshold determination. Ex.

405. The critical difference between an addendum and a threshold determination is

that a threshold determination is subject to an open public comment period, whereas

an addendum is not. WAC 197-1 l-502(3)(b).

The Department issued a threshold determination of mitigated

nonsignificance on January 19, 2011. Ex. 446.

^ The County argues that this nine-month gap between Maytown's submission ofits
request for amendments and the Thurston County Community Planning Division's
decision was caused in part by Maytown's piecemeal withdrawal of some of its initial six
proposed amendments mid-notiee period, which required public notice each time.
Resp't/Cross-Appellants' Joint Resp. & Opening Br. at 19. Maytown partially withdrew
proposed amendments on July 1 and October 29, 2010. Ex. 446.
17
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

4. The Hearing Examiner Ruled That Formal Amendments Were
Necessary and That Limited SEPA Review Was Appropriate, but
Ruled That the Issuance of a SEPA Threshold Determination
Was Inappropriate

Both Maytown and FORP (the environmental conservation group opposed to

the mine) appealed different aspects ofthe Department's SEPA determinations. Id.

Maytown agreed with the Department's finding of no significant environmental

impact but argued that the finding should have been issued as an addendum, not a

threshold determination. Id. FORP disagreed with the finding and argued that a full

SEPA review, not a limited SEPA review, should have been conducted. Id. Thus,

three matters were before the hearing examiner in March 2011:(1) FORP's SEPA

appeal, (2) Maytown's SEPA appeal, and (3) Majhown's request to amend

conditions 6A and 6C.

The hearing examiner rejected FORP's SEPA appeal and agreed with

Maytown that a SEPA addendum (rather than a threshold finding) was the correct

SEPA procedure. Id. But she questioned whether she had the authority to resolve

that procedural dispute. Id. The hearing examiner also approved Maytown's

proposed amendments. Id.

But before granting Maytown's proposed amendments, the hearing examiner

addressed two other procedural complaints raised by Maytown:(1)that it should not

have been required to formally amend conditions 6A and 6C because the issue could

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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

have been dealt with as a noncompliance matter at the five-year review (discussed

infra Section I.C) and (2) that even if it had to formally amend the conditions, the

proposed amendments should have been treated as minor adjustments that the

Department could grant administratively.

The hearing examiner disagreed with Maytown on these two procedural

points. She ruled that a formal amendment was required and that it was within the

Department's discretion to refer Maytown's proposed amendments to her given the

scope of the proposed changes to condition 6C's data collection requirements.^

^ Because the hearing examiner's ruling on these two procedural matters are central
to the County's LUPA administrative exhaustion argument and the parties disagree about
the scope of that ruling, we quote it fully:
1. A[][permit] amendment was required. Both [Maytown] and the Port
argue that the changes entailed in the instant proposal to amend SUPT-
02-0612 [(the gravel mining permit)] could have been handled
administratively via enforcement authority and that no amendment
application (administrative or quasi-judicial) was required. The
Department decided otherwise and its decision has several sources of
support. While there are no criteria for "special use amendment"
identified in the code, TCC 20.54.030 expressly authorizes the review
and approval of"amended special use authorizations." Pursuant to TCC
20.54.015(1), administrative review is allowed for a specified list of
special uses. Pursuant to TCC 20.54.015(2), the hearing examiner is the
approval authority for any special use not listed, and amended special use
authorizations are not included in subsection (1). SUPT-02-0612 itself,
at condition T, states that "any expansion or alteration" of the use would
require submittal of a new or amended special use permit. Permission to
mine was predicated on compliance with water monitoring conditions.
Changes in the number and nature of monitoring sites specified in the
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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

5. Only the Hearing Examiner's SEPA Rulings, Not Her
Procedural Rulings regarding the Amendment Process, Were
Appealed

FORP appealed the hearing examiner's refusal to order a full SEPA review to

the Board. CP at 411-13.

Maytown did not appeal because Maytown received what it really wanted:

amendments to conditions 6A and 6C. But Maytown did not appeal the hearing

conditions of permit approval, even if intended to increase consistency
with the 2005 Plan [(the groundwater management plan that was drafted
in conjunction with the permit)], are still "alterations" to the use as
approved. Condition T also reserves to the Department the discretion to
decide whether a given amendment requires administrative or quasi-
judicial review. At the Five Year Review hearing, the Applicant
characterized the proposed changes as "clerical" in nature. The County
Code is silent as to clerical corrections to conditions in issued permits.
Case law suggests that the County is bound by the permit as issued absent
further process. Chelan County v. Nykreim,[146] Wn.2d 904[, 52 P.3d
1](2002).

While it may arguably have been in accordance with County Code for the
Applicant's technical non-compliance with water monitoring deadlines to
be handled as an enforcement action [at the five-year review], changes to
the nature and number ofrequired monitoring sites fall less clearly within
the scope of enforcement. Because the County Code does not explicitly
state criteria establishing whether [permit] amendments are administrative
or quasi-judicial, the Department exercised discretion in deciding which
process applied. Its decision is due substantial deference because the
ordinance is unclear, the Department is charged with administration ofthe
ordinance, and the decision is within the Department's expertise. Bostain
V. FoodExp., Inc., 159 Wn.2d 700, 716, 153 P.3d 846 (2007).
Ex. 446, at 30-31 (emphasis added).

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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

examiner's arguably unfavorable rulings regarding the need for formal amendments

and limited SEPA review."^ As already discussed, though, Maytown mainly

complained about the Department's decision to refer the proposed water quality

amendments to the hearing examiner for review (rather than review them

administratively) and the Department's decision to issue a SEPA threshold finding

(rather than an addendum). On those points, the hearing examiner agreed with

Maytown that those actions were unnecessary, though the hearing examiner did say

^ Maytown's attomey explained the decision not to pursue the appeal as follows:
As we reviewed our options and the Examiner's Decision to outline the
appeal 1 emailed you about on Saturday, we reconsidered our position. The
way the Examiner wrote the Decision, she said the Code was unclear about
the process and the County had the option to address the 6A and 6C timing
issues either administratively or through the formal [permit] Amendment
process. Her language leaves open to us the argument that the County staff,
under pressure from FORP and the Commissioners, chose the most
burdensome and lengthy approach—^the formal[permit] Amendment process
and its attendant SEPA process that has taken so long and cost so much.
Remember that the record shows the County reversed itself on the process
which is further evidence of capricious acts. If we appeal this part of the
Examiner's Decision to the [Board], we know the [Board] will rule against
us and would likely use language that said the fonnal [permit] Amendment
process was REQUIRED. This would make our damage case more difficult
so we have concluded we should not file an appeal of the Examiner's
Decision.

Ex. 449.

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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

that the Department acted within its discretionary authority when it referred the
proposed amendments to her.

Thus, the only issue administratively appealed to the Board was FORP's

challenge to the hearing examiner's decision against ordering a full SEPA review.

The Board rejected FORP's challenge. CP at 411-13. FORP then filed a LUPA

appeal in Thurston County Superior Court, which the superior court dismissed for

lack of standing on October 13, 2011. CP at 479-84.

The entire amendment and limited SEPA process, including FORP's SEPA

administrative and judicial appeals, took a year and a half. However, as mentioned

above, supra note 2, some of that delay may have been caused by Maytown's

withdrawal of proposed amendments midprocess, which required a new public

notice to be issued each time.

C. The Permit's Five-Year Review

While Maytown's request for amendments was pending, the permit became

due for a five-year review before the hearing examiner. That review took place on

December 6-8, 2010, and the hearing examiner issued her decision on December 30,

2010. Because no mining activities had ever taken place during the first five years

of the permit, the parties debated whether the laws of 2005 (the year the permit was

issued) or 2010(the current year) applied and what, if any, additional environmental

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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

testing could be imposed on Maytown at this five-year juncture. The parties also

debated whether the hearing examiner had the authority to amend conditions 6A and

6C under its enforcement authority at this preamendment hearing stage given that

the remaining proposed amendments related to permit compliance matters.

FORP and other members of the public participated in the five-year review.

At the review hearing, FORP re-raised the arguments that it had raised in 2009 that

the permit had lapsed due to three years ofinactivity and due to missed water quality

monitoring deadlines.

1. The Hearing Examiner Did Not Address Whether She Had the
Authority To Modify Conditions 6A and 6C through Her
Enforcement Powers at the Five-Year Review

As detailed above, Maytown and the Port argued throughout the planning and

administrative process that there was no need to formally amend conditions 6A and

6C's missed deadlines or formally clarify the scope of 6C's data collection

requirements because the Port had already complied with the gist of those

conditions. The Department implicitly acknowledged as much in its 2008 letter.

Alternatively, Maytown and the Port argued that if formal amendments were

necessary, the amendments should be classified as minor adjustments that could be

administratively approved by the Department directly without referral to the hearing

examiner. At the five-year review, Maytown raised a second alternative argument:

23
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

that the hearing examiner could modify those conditions during the five-year review
through her permit enforcement powers rather than wait until the scheduled
amendment hearing, which had not yet occurred.

The hearing examiner seemed to agree with Maytown that she could treat the

water quality testing issue as a noncompliance matter and modify conditions 6A and

6C at the five-year review stage. Ex.429. But she did not actually rule on that point,

because Maytown and the County asked her not to do so. Id. They explained that

the public had already been notified that a separate hearing would be held on the
proposed amendments, so resolution of that issue at the five-year review could
trigger procedural due process complaints by others, thereby fueling even more

litigation by mine opponents.

Thus, no ruling on the amendment issue was made at the five-year review. As

mentioned above, supra Section I.B.4, the hearing examiner eventually approved

Maytown's proposed amendments three months later at the amendment hearing.

2. The Hearing Examiner Rejected FORP's Argument That the
Delay in Collecting Water Quality Data Invalidated the Permit

The hearing examiner disagreed with FORP's argument that the lack of water

quality testing in 2006 had fhistrated the purpose of the permit, thereby rendering

the permit invalid. The hearing examiner instead ruled that the delay was beneficial
to the project because the County now had a fresh baseline, closer in time to mining,
24
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

against which to compare future water samples. She explained that if Citifor or the

Port had collected water quality data in 2006, as the permit required, then that

information would have grown stale by 2010 and would not have been able to

provide the County with any useful baseline to assess ground and surface water

changes caused by gravel mining activities. Ex. 429.

3. The Hearing Examiner Rejected the Department's
Recommendation That a New Critical Areas Study Be Conducted

Most of the discussion at the five-year review focused on whether a new

critical areas study should be conducted given the five-year delay in mining activities

and, if so, which critical areas ordinance (CAO) should apply. When the gravel

permit was initially approved in 2005, it was evaluated under the County's 2002

CAO,^ which was the CAO applicable at the time. Since then, however,the County

had amended the CAO—in 2009. The relevant difference between the two

ordinances is that the 2009 CAO substantially expanded the definition of what land

qualifies as protected prairies and oak habitats. Id. Notably, if the 2009 CAO

applied, Maytown's permitted mine would be reduced in size by almost a third,from

284 acres to approximately 180 acres. Id.

^ Although the ordinance in effect in 2005 was adopted in 1999, well before the
2002 designation, we use that 2002 designation because all the parties refer to it as such.
25
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

The Department recommended that the hearing examiner order a new critical

areas survey under TCC 20.54.040(1). Exs. 14, 15. That provision requires

application ofcurrent law to "proposed" special use sites. The Department classified

Maytown's permitted-but-nonexistent mining operation as such a "proposed" use.

In contrast, Maytown argued that its mining operation was a "permitted" use,

which had vested under the 2002 CAO. TCC 17.15.355(A) provides that

"[ajuthorization to undertake regulated activities within critical areas or their buffers

shall normally he validfor a period of the underlying permit,'' which in this case

was 20 years. (Emphasis added.) The Department acknowledged that the 2009 CAO

usually would not apply to an existing permit but argued that this case was uniquely

different because no mining activities had ever occurred.

The hearing examiner agreed with Maytown that it was not required to redo

its critical areas study under the 2009 CAO. She ruled that the Department's

argument "lack[ed] common sense." Ex. 429, at 46. She explained that "[i]f

adopted, the County's position would have the same effect as requiring mines to re-

apply every five years. . . . The time and expense needed to acquire DNR

[(Department ofNatural Resources)] and DOE[(Department ofEcology)] approvals

argues against the County's position. No mining could ever occur under such a

26
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

paradigm because no operator could afford the costs ofreapplying every five years."

Id.

The hearing examiner also rejected the Department's alternative

recommendation that a new critical areas study be conducted under the 2002 CAO.

The Department explained that it was concerned that some critical habitats may have

been missed in 2005 when the permit was issued, or some may have developed in

the area since then. Id. In support of its recommendation for a new critical areas

study under the 2002 CAO,the Department cited a state forestry map that listed a

possible seasonal stream on the property. Ex. 14.

The hearing examiner concluded that "[t]he record contains no evidence" to

believe that any critical areas were missed during the 2005 critical areas study. Ex.

429, at 46. As for the possible seasonal stream, the hearing examiner relied on the

testimony from a habitat biologist from the Department ofFish and Wildlife saying

that he did not see any evidence of a seasonal stream during his site visit in October

2010. Id. at 28. Additionally, the hearing examiner relied on the 2005 SEPA

mitigated determination of nonsignificance (MDNS) findings that were entered

when the permit was originally issued. Those findings detailed the extensive

environmental studies that were conducted on the site from 2002 to 2005 when

Citifor initially proposed mining the property for gravel. Id. at 46. It was significant

27
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

to the hearing examiner that "[e]ven the conservation organizations supported the
October 2005 MDNS" and "submitt[ed] letters stating that [the MDNS] addressed

all their concerns about the . .. permit." Id. Moreover, the hearing examiner

explained that even if any critical areas had been missed in the 2005 critical areas

study, "the County and the Applicant [(Maytown)] [we]re equally bound by the
issued permit." Id.

FORP, along with BHAS, appealed the hearing examiner's rulings to the

Board. The Department did not appeal. The Board issued its decision two months

later on March 14, 2011. CP at 106-10.

4. The Board Reversed the Hearing Examiner and Ordered a New
Critical Areas Study Using the 2002 CAO

The Board rejected most of FORP's arguments, except one. Id. The Board

rejected FORP's argument that the permit had lapsed. Id. The Board also rejected

FORP's argument that the mining site was a"proposed" project and therefore subject

to the 2009 CAO(which was the Department's primary argument for recommending

a new critical areas study). Id. at 107. But the Board agreed with FORP (and the

Department's alternative argument for a new critical area study)that the mining site

should be reinspected for critical areas as defined under the 2002 CAO because there

was "undisputed" evidence that critical habitats had developed on the property since

the permit was issued. Id. The Board explained that reevaluation of critical areas
28
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

was authorized by the permit itself(rather than the TCC), which required that [t]he

existing native outwash prairie, wetlands,riparian areas(including streams), and oak

woodlands within the applicant's overall 1,613-acre ownership will be completely

avoided and buffered from the proposed activity.'" Id. at 107-08 (alteration in

original).

5. The Lewis County Superior Court Reversed the Board's Order
for a New Critical Areas Study

Maytown and the Port objected to conducting a new critical areas study. They

appealed the Board's decision to the Lewis County Superior Court. CP at 1-53. The

superior court agreed with Maytown and the Port and dismissed the Board's order

for a new critical areas study on July 20, 2011. CP at 111-16. The superior court

held that the Board's order requiring a full redo of the critical areas study was

arbitrary and capricious. CP at 2770.

Even though Maytown and the Port never had to conduct a new critical areas

study, the administrative process and judicial appeal took five months and resulted

in extra costs to Maytown and the Port in defending against the study at the five-

year review hearing and throughout the administrative and judicial appeals.

D. Majdown's and the Port's Tort Claims against the County

After waiting nearly two years, Maytown finally received a letter to proceed

from the Department on November 8, 2011. Ex. 1. Maytown began mining a few
29
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

months later, but the business venture failed not long thereafter. Because of the

terms of their property sale agreement, the Port retained a reversionary interest in

the property. The Port was unable to sell the property to any other mining company.

Maytown and the Port blamed the County for the mine's failure and lost

property value and filed complaints for damages in Lewis County Superior Court.

CP at 488-511 (Maytown), 163-86 (the Port). They argued that the nearly two-year

delay in mining operations and the significant costs they incurred during the

amendment process and five-year review were intentionally caused by the County.

They alleged that the Department was operating under the direction of the Board to

stop the mining project and that the Department complied with that direction by

imposing onerous water quality testing demands and dragging out the amendment

and five-year review processes.

Those efforts, they alleged, included(1)introducing a new "letter to proceed"

requirement suddenly in 2009,(2)refusing to process the Port's request for a letter

to proceed until after FORP had an opportunity to respond,(3)refusing to honor the

Department's 2008 determination that the Port had already complied with all water

quality testing requirements,(4)requiring Maytown to conduct extensive and costly

water quality testing beyond the four data collection points listed under condition

6C,(5) requiring Maytown to formally amend conditions 6A and 6C, rather than

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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

address its technical noncompliance through enforcement powers,(6) refusing to

treat Maytown's proposed amendments as minor adjustments as the Department said
it would, and even though the only amendments left at the end were unopposed by
the Department, (7) issuing a SEPA threshold determination rather than an
addendum, which triggered more appeals,(8)recommending that Maytown undergo
a new, costly, and time-consuming critical areas study, which transformed what
should have been a short compliance hearing into a protracted three-day hearing,

and, lastly, (9) including language in the letter to proceed that Maytown finally
received almost two years later stating that the Department could impose additional
conditions on the permit at subsequent five-year reviews, which Maytown and the
Port contend was meant to scare prospective mining companies away from the

property.

Maytown and the Port alleged that together these actions resulted in
significant expenses, prevented Maytown from bidding on supply contracts because
it did not know when it would ever be able to start mining, delayed the start ofmining

to the point that the project was no longer economically feasible for Maytown's
owners, and cast such a dark cloud over the property that the property was virtually
unmarketable as anything other than an environmental conservation site. 13 VRP

(July 2, 2014)at 2659-61. They further claimed that the Department's actions were

31
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

done intentionally at the behest oftwo board commissioners, Valenzuela and Sandra

Romero, to stall and shut down Maytown's mining operation.

In support of these claims, Maytown's attorney, John Hempelmann, testified

that when he approached Kain (the County's planning manager) during the

amendment process to discuss the many procedural hurdles that the Department was

imposing on the mine, Kain admitted that all of these hurdles were put into place at

the direction of the Board. Those hurdles included requiring a letter to proceed and

delaying review ofthat request so that FORP could review it, 6 VRP(June 23,2014)

at 1499; classifying Maytown's proposed amendments as major rather than minor

adjustments, 4 VRP (June 19, 2014) at 1145-46; and recommending that Maytown

redo the critical areas study, 5 VRP (June 20, 2014) at 1269. According to

Hempelmann, the County's attorney (distinct from the Board's attorney) told him

that both he and Kain were at risk of losing their jobs because they had tried to help

the mining project proceed despite the commissioners' directives to stop the project.

4 VRP (June 19, 2014) at 1189.

Indeed, the Port's director testified that he was shocked by Commissioner

Valenzuela's blatant desire to stop the mine. He testified that he was present during

a board meeting where the mine was discussed. During that meeting,the Department

informed the Board that the permitted mine could not be stopped unless there was

32
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

an emergency, such as evidence of an endangered butterfly species on the property.

2 VRP (June 17, 2014) at 801; 3 VRP (June 18, 2014) at 893. In response to that
information, the director testified that he heard Valenzuela tell the Department to go

'"find [her] an emergency.'" 3 VRP (June 18, 2014)at 893-94.

The County's manager. Jack Hedge, also observed that Commissioner

Valenzuela had figuratively leaped at the possibility of being able to close the mine

when she learned there might be a seasonal stream on the property. He testified that

when he met with Valenzuela to discuss FORP's allegation of a seasonal stream, she

had a "visceral" response to the allegation and pronounced the allegation as the

evidence she needed to require the entire project to be reevaluated under SEPA. 15

VRP (July 8, 2014) at 3067-70. Valenzuela did not, however, seek to unilaterally
reopen SEPA based on that allegation because the county manager informed her that

he knew for a fact that there was no seasonal stream on the property. Id. at 3068-70.

Notably, however,the Department raised the possibility of a seasonal stream on the

property as a basis for redoing a SEPA review at the five-year review. Whether that
basis was merely coincidental or raised at Valenzuela's request was a question of
fact for the jury to decide.

Commissioner Valenzuela admitted at trial that she wanted to reopen SEPA

review. 8 VRP (June 25 2014)at 1849-50. She also acknowledged that she wanted

33
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

the mining project to be classified as a "proposed," rather than a "permitted," use so

that the 2009 CAO could be applied, id. at 1731. She acknowledged that she wanted

to use the 2009 CAO even though she knew the ordinance could not be applied

retroactively to permitted projects, id. at 1734-35; knew that the cost ofa new critical

areas study would be borne by Maytown and the Port; and knew that the study would

probably result in approximately a 40 percent reduction in mineable property, id. at

1736-37. An e-mail that Valenzuela sent to a local resident also suggested that she

was not against using the "letter to proceed" process to stall the mine. Ex. 60.

Meanwhile, at the same time the Department was evaluating Maytown's

proposed amendments. Commissioner Romero directed staff to "[pjlease find out

why staff does not agree with the FORP's attorney" since "[tjhis may be key to the

whole project." Ex. 47.

Additional evidence showed that neither Valenzuela nor Romero disclosed to

the Port or to Maytown that they had signed FORP's 2007 petition to rezone the

mine. Ex. 91; 8 VRP (June 25, 2014) at 1865. Both Valenzuela and Romero also

presided over the appeals in this case without disclosing their membership in BHAS,

the environmental conservation group that originally contested the mine when it was

proposed in 2002 through 2005 and that joined FORP in many of its appeals and

motions in this case. 8 VRP (June 25, 2014) at 1701, 1788-89,1884-85. According

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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

to Valenzuela, it was "meaningful to [her] that BHAS [was] objecting to the

requested amendments, since they [were a] party to the settlement agreement"

reached in 2005 that gave rise to conditions 6A and 6C. Ex. 31, at 2. Whether this

statement proved Valenzuela was biased in favor ofBHAS and against the mine was

also a question offact for the jury to decide.

E. The County's Motions for Summary Judgment and the Jury's
Verdict

Thurston County moved for summary judgment dismissal several times

throughout the case. The County argued that the case should be dismissed because

Maytown and the Port had failed to exhaust their administrative remedies. CP at

222-23, 1381-1410, 1807-16, 1926-36. Additionally, the County argued that

Maytown's Section 1983 due process claim should be dismissed because Maytown

failed to prove that it was deprived of a constitutionally protected property interest

or that the County had acted in a way that unconstitutionally "shocks the

conscience." CP at 206-10, 1398-1401. The trial court disagreed and submitted the

case to the jury. CP at 1950-53, 3050-56; 14 VRP (July 7, 2014) at 2882-83.

The jury ruled in favor of Maytown and the Port on all of their claims. The

jury found that the County had (1)tortiously interfered with the real estate contract

between the Port and Maytown,(2) tortiously interfered with Maytown's business

expectancy,(3) made negligent misrepresentations to both the Port and Maytown,

35
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

(4) made express assurances to both the Port and Maytown giving rise to a special
duty to both, and(5) violated Maytown's substantive due process rights in violation

of Section 1983. CP at 6388-91. The jury further found that each of these actions

caused damages and awarded a lump sum of$8 million to the Port and $4 million to
Maytown. CP at 6391.^ The award did not include the prelitigation attorney fees

Maytown and the Port incurred trying to perfect the permit in the administrative fora.

CP at 3622-24. But the trial court did award Maytown $1.1 million in litigation

attorney fees for prevailing on its Section 1983 claim. CP at 7551-62.

The trial court reduced the jury verdicts to judgment. CP at 6392-94. The

County then moved for judgment as a matter oflaw and a new trial, CP at 6399-422,

which the trial court denied, CP at 7448-49.

F. The Court of Appeals Affirmed the Jury Verdicts and Remanded the
Case for a Damages Trial on Prelitigation, Administrative Fora
Attorney Fees

The County appealed from the judgment and the trial court's denial of its

postjudgment motion. CP at 7469-79. In its opening brief,the County also assigned

® Additionally,the trial court ruled that the County acted arbitrarily and capriciously
in violation ofROW 64.40.020 in ordering Maytown to conduct a new critical areas study.
CP at 2770. But no damages were awarded to Maytown for that claim because the parties
agreed that those damages would duplicate damages awarded for other claims. Appellant's
Opening Br. at 43.

36
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

error to the trial court's denial ofits earlier summaryjudgment motions, arguing that

the trial court should have dismissed the entire case because Maytown and the Port

failed to exhaust the administrative process and because there was no evidence to

support Maytown's Section 1983 claim.

Maytown and the Port cross appealed the trial court's exclusion of

prelitigation, administrative fora attorney fees as damages. CP at 7482-95.

The Court of Appeals rejected the County's claim that LUPA's administrative

exhaustion requirements applied to this tort action and found that Maytown had

presented sufficient evidence to support its Section 1983 claim. Maytown Sand &

Gravel, LLC v. Thurston County, 198 Wn. App. 560, 566-67, 395 P.3d 149 (2017).

Regarding Maytown and the Port's request for prelitigation, administrative fora

attorney fees, the Court of Appeals agreed that these fees were recoverable as

damages and remanded the case for a trial on the amount of those fees. Id. at 567.

The Court of Appeals also granted Maytown appellate fees and costs under RAP

18.1 and 42 U.S.C. § 1988 for prevailing on its Section 1983 claim. Id. at 592-93.

The County petitioned for review. We granted review without limitation.

Maytown Sand & Gravel, LLC v. Thurston County, 189 Wn.2d 1015, 404 P.3d 480

(2017).

37
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

11. Issues

A. Whether LUPA's administrative exhaustion rule, RCW 36.70C.030,
applies to all tort claims that arise during the land use decision-
making process;

B. Whether there was sufficient evidence to support the jury's finding
ofa substantive due process violation under Section 1983(42 U.S.C.
§ 1983);

C. Whether an aggrieved party may claim prelitigation, administrative
fora attorney fees that the tortfeasor intentionally caused as damages
in a tortious interference claim; and

D. Whether a request under RAP 18.1(b) for appellate attorney fees
under 42 U.S.C. § 1988 must be made in a separate section devoted
solely to that request.
III. Analysis

A. LUPA's Administrative Exhaustion Requirement Does Not Bar All
Tort Claims That Arise during the Land Use Decision-Making
Process

A party challenging a local land use decision must exhaust local

administrative processes before seeking review in the courts. RCW 36.70C.030.

That rule is subject to four exceptions. One of those exceptions is for "[cjlaims

provided by any law for monetary damages or compensation." RCW

36.70C.030(l)(c); e.g.,Lakey v. PugetSound Energy, Inc., 176 Wn.2d 909,928,296

P.3d 860(2013)(holding LUPA's exhaustion requirement does not apply to inverse

condemnation claims for compensation).

38
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

The County acknowledges that because Maytown and the Port seek only

monetary damages in this case, their action arguably falls within the language of

LUPA's damages exception. Appellant's Opening Br. at 54-56; Pet'r's Suppl. Br.

at 8-11. The County, however, argues against construing that language so broadly

as to allow parties, like Maytown and the Port,to circumvent LUPA's administrative

exhaustion requirement simply by seeking damages. To allow a party to do so, the

County argues, would create a loophole that completely undermines LUPA's

statutory framework.

Maytown and the Port argue that we do not need to address the scope of

LUPA's damages exception because they are not challenging a land use decision.

They argue that LUPA's exhaustion requirement applies only to actions challenging

the validity of a permit or the interpretation of a land use statute or ordinance.^ They

argue that a different rule applies where, as here,the plaintiffs challenge an agency's

tortious acts committed during the land use permitting process, rather than the land

^ E.g., Durland v. San Juan County, 182 Wn.2d 55, 64-66, 340 P.3d 191 (2014)
(dismissing a challenge to invalidate a building permit); Habitat Watch v. Skagit County,
155 Wn.2d 397, 407, 120 P.3d 56 (2005)(dismissing a challenge to invalidate a land use
deadline extension); Chelan County v. Nykreim, 146 Wn.2d 904, 939-40, 52 P.3d 1 (2002)
(dismissing a challenge to invalidate a boundary line adjustment); Wenatchee Sportsmen
Ass'n V. Chelan County, 141 Wn.2d 169,172-73,4 P.3d 123(2000)(dismissing a challenge
to invalidate a rezone decision); ApplewoodEstates Homeowners Ass'n v. City ofRichland,
166 Wn. App. 161, 170-71, 269 P.3d 388 (2012)(dismissing a challenge to invalidate a
land use permit amendment).
39
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

use decision itself. See Westmark Dev. Corp. v. City ofBurien, 140 Wn. App. 540,

556, 166 P.3d 813 (2007)(distinguishing between actions challenging the validity

of a land use decision and actions challenging the government's bad faith delay in

issuing that decision).

We review this statutory interpretation issue de novo. Post v. City ofTacoma,

\61 Wn.2d 300, 308,217 P.3d 1179(2009)(citing In re Pers. Restraint ofCruz, 157

Wn.2d 83, 87, 134 P.3d 1166 (2006)). We agree with Maytown and the Port.

LUPA's administrative exhaustion requirement applies to judicial review of

"land use decisions." RCW 36.70C.020(1). A "land use decision" is defined as "a

final determination by a local jurisdiction's body or officer with the highest level of

authority to make the determination." RCW 36.70C.020(2) (emphasis added).
Although the term "determination" is not statutorily defined, the legislature has

provided an illustrative list ofactions that could trigger such a"determination." That

list includes(a)"[a]n application for project permits or other governmental approval

required by law before real property may be improved, developed, modified, sold,

transferred or used," (b) "[a]n interpretative or declaratory decision regarding the

application to a specific property of zoning or other ordinances or rules regulating

the improvement, development, modification, maintenance, or use ofreal property,"

or (c) "[t]he enforcement by a local jurisdiction of ordinances regulating the

40
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

improvement, development, modification, maintenance, or use of real property."

RCW 36.70C.020(2)(a)-(c).

Where the legislature uses a general statutory term but provides a list of

illustrative examples, we construe the term narrowly, consistent with those

examples. Stated differently, '"general terms, when used in conjunction with

specific terms in a statute, should be deemed only to incorporate those things similar

in nature or "comparable to" the specific terms.'" State v. Larson, 184 Wn.2d 843,

849,365 P.3d 740(2015){qyoting Simpson Inv. Co. v. Dep't ofRevenue, 141 Wn.2d

139,151,3 P.3d741 (2000){quoting John H. Sellen Constr. Co. v. Dep't ofRevenue,

87 Wn.2d 878, 883-84, 558 P.3d 1342(1976))).

Applying that principle of statutory construction, we conclude that the term

"determination" does not include tortious acts. Tortious acts committed during the

land use decision-making process are not similar or comparable to determinations

on a permit application, on the applicability ofland use ordinances or regulations to

property, or on how ordinances and regulations should be enforced. Construing

"determination" in this limited manner is also consistent with LUPA's stated

purpose, which is to provide landowners with an expedited and uniform process for

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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

obtaining and appealing local land use decisions.® RCW 36.70C.010; Wash. State

Office of Fin. Mgmt.,Governor's Task Force on Regulatory Reform: Final

Report 51 (Dec. 20, 1994). That rationale does not apply to intentional torts

committed during that land use decision-making process.

We therefore hold that LUPA's administrative exhaustion requirement does

not apply to the tort claims raised here. Accord Woods View II, LLC v. Kitsap

® Maytown speculates that the legislature may have enacted LUPA in response to
this court's decision inLiitheran Day Care v. Snohomish County, 119 Wn.2d 91, 829 P.2d
746 (1992). Answer to Mem. of Amicus Wash. State Ass'n of Mun. Att'ys in Supp. of
Pet. for Review at 3. Maytown contends that LUPA was adopted to reverse the holding in
Lutheran Day Care, which Maytown characterizes as having transformed every land use
appeal into a full-blown liability action. Id. Lutheran Day Care held that when a court
overturns or upholds a local land use decision under the old pre-LUPA writ of certiorari
process, that court's decision had preclusive effect on all subsequent claims for damages.
119 Wn.2d at 116-17. As a result, Maytown argues, the writ process became extremely
litigious because the process proved or foreclosed subsequent claims for damages.

We can find no evidence that the legislature adopted LUPA with the intent to reverse
Lutheran Day Care and abolish any preclusive effect administrative land use decisions
could have on subsequent actions. And Maytown has not provided us with any. Our
research shows that LUPA was enacted in 1995 at the behest of then-Governor Mike
Lowry. Governor Lowry identified a need for regulatory reform in land use decisions and
created a task force to develop recommendations for such reform. Exec. Order No. 93-06
(Wash. Aug. 9, 1993), https://www.govemor.wa.gov/sites/default/files/exe_order/eo_93-
06.pdf[https://perma.cc/D7F5-NHLB]. In its report, the task force identified a complex
and highly specialized legal landscape that required aggrieved parties to dispute a single
land use decision before the administrative board and the courts simultaneously with
different periods for filing an appeal. WASH. STATE OFFICE OF FiN. Mgmt.,GOVERNOR'S
Task Force on Regulatory Reform:Final Report 51, App. A at 17(Dec. 20,1994).
In order to provide more consistent, predictable, and timely review, the task force
recommended a simplified superior court process and a uniform period for appeal. Id.
Those recommendations were mostly adopted by the legislature.
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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

County, 188 Wn. App. 1, 24-25, 352 P.3d 807(2015)(holding LUPA's exhaustion

requirement does not bar tort claims arising from improper governmental delay in

processing permits); Libera v. City ofPort Angeles, 178 Wn. App. 669,675 n.6, 316

P.3d 1064(2013)(holding the same rule applies to a tort claim alleging intentional

interference with a business expectancy).

Our holding in this case that LUPA does not absolutely bar all tort claims that

arise during the land use decision-making process does not necessarily mean that a

hearing examiner's interpretation and application ofland use statutes and ordinances

will never have any preclusive effect on subsequent tort claims. That issue is not

presently before us. Contrary to the County's assertion, neither Maytown nor the

Port has challenged any ofthe hearing examiner's land use determinations. Indeed,

Maytown and the Port relied on the hearing examiner's determination that it was up

to the County's ''discretion" whether to send Maytown's proposed amendments to

her for review to support their claim that the County was not required to send the

amendments to her. Resp't/Cross-Appellant's Joint Resp. & Opening Br. at 58

(emphasis added)(explaining that"even though the [h]earing [ejxaminer determined

. . . that County staff had the discretion to require a hearing examiner amendment

process, that determination says nothing about whether the County exercised its

discretion for an improper purpose . . . ."). Although they did disagree with the

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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

hearing examiner's conclusion that they were required to formally amend conditions
6A and 6C, the crux of their complaint was not about the need for amendments but,

rather, about the need to send the proposed amendments to the hearing examiner for

review and the need to issue a threshold determination that subjected the proposed

amendments to an open public comment period and further appeals.

B. Maytown's Section 1983 Civil Rights Claim Was Supported by Sufficient
Evidence

The Civil Rights Act, 42 U.S.C. § 1983, establishes a private cause of action

for the deprivation of constitutional rights under color of state law. It is well
established that acts occurring during the land use decision-making process can form

the basis for Section 1983 claims. E.g., City of Monterey v. Del Monte Dunes at

Monterey, Ltd., 526 U.S. 687, 119 S. Ct. 1624, 143 L. Ed. 2d 882(1999)(partial

plurality). Such Section 1983 land use claims typically allege either an

unconstitutional taking or a substantive due process violation. Here, Maytown

alleged a substantive due process violation.

The jury was instructed that a "Substantive Due Process Clause violation

occurs when [the] government takes action against a person that is not rationally

related to a legitimate government purpose." CP at 6376. It was also instructed that

establishing such a violation "requires proofthat PlaintiffMaytown Sand and Gravel

was deprived of rights in a way that shocks the conscience or interferes with rights
44
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

that are implicit in the concept of ordered liberty." Id. The jury found in favor of

Maytown on its Section 1983 claim. CP at 6390-91.

The County argues that we should reverse the jury verdict due to insufficient

evidence. Specifically, the County argues that Maytown failed to prove that (1) it

was deprived of a legally protected property right and(2)the County acted in a way

that "shocks the conscience."

When reviewing a jury verdict for sufficient evidence, the court"must accept

the truth of the nonmoving party's evidence and draw all favorable inferences that

may reasonably be evinced." Lockwood v. AC&S, Inc., 109 Wn.2d 235, 243, 744

P.2d 605 (1987)(citing Levy v. N. Am. Co.for Life & Health Ins., 90 Wn.2d 846,

851, 586 P.2d 845 (1978)). The jury's verdict will be upheld "[i]f there is any

justifiable evidence upon which reasonable minds might reach conclusions that

sustain the verdict. . . ." Levy, 90 Wn.2d at 851. We hold that there was sufficient

evidence to support the jury's Section 1983 verdict.

1. There Was Sufficient Evidence To Prove the County Deprived
Maytown ofa Constitutionally Protected Property Right

"'Property' under the Fourteenth Amendment encompasses more than

tangible physical property." Durland v. San Juan County, 182 Wn.2d 55, 70, 340

P.3d 191 (2014)(citing U.S. CONST, amend. XIV;Logan v. Zimmerman Brush Co.,

455 U.S. 422, 430, 102 S. Ct. 1148, 71 L. Ed. 2d 265 (1982)). "Protected property
45
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

interests include all benefits to which there is a '"legitimate claim of entitlement".'"

Id. (quoting Canard v. Univ. of Wash, 119 Wn.2d 519, 529, 834 P.2d 17 (1992)

(quoting 5(i. ofRegents ofState Colls, v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701,

33 L. Ed. 2d 548 (1972))). It necessarily follows that a permit to mine constitutes a

protected property interest.

At trial, Maytown claimed that it had a vested right (and hence a protected

property interest) in mining its property based on the 2005 permit and the County's

many assurances from 2008 to 2010 that the permit was valid and that the expired

water quality testing deadlines would be extended. The County acknowledged that

Maytown had a valid permit to mine. But it claimed that that right to mine was

conditioned on Maytown obtaining an extension ofthe permit's water quality testing

deadlines. The County argued that Maytown had no property interest in its permit

until that condition was satisfied. According to the County, unless and until that

occurred, Maytown had no greater property interest in its permit than a land use

applicant has in a requested permit.

But a requested permit does give rise to a cognizable property interest"when

there are articulable standards that constrain the decision-making process." Id. at 71

(citing Wedges/Ledges of Cal, Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir.

1994)). In other words, a requested permit constitutes a constitutionally protected

46
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

property interest "if discretion [to deny the final issuance of the permit] is

substantially limited." Id. (citing Braswell v. Shoreline Fire Dep't, 622 F.3d 1099

(9th Cir. 2010)). The County concludes that this rule does not apply because

Maytown was not entitled to the requested extension ofconditions 6A and 6C. Thus,

according to the County, Maytown had no property right in its permit and no right

to mine.

We agree with the County that because the permit contained expired

premining conditions that had not been satisfied by those deadlines, the permit by

itself was not enough to prove a constitutionally protected interest to mine.

But Maytown did not rely solely on the permit to establish its entitlement to

mine. Maytown also relied on two letters from the County. The first letter informed

the Port that the permit remained valid, despite the missed water testing deadlines.

Ex. 85; CP at 1120. That letter stated, "[T]he Thurston County Development

Services Department hereby considers the activities initiated to date to be sufficient

to forestall expiration of the subject Special Use Permit at this time. . . . consistent

with TCC 20.54.040(4)(a)." Id. Although this first letter also said that mining

activities could not start "until the groundwater monitoring survey reports

(Condition 6.C 10/24/05 MDNS).. . have been submitted," a second letter said that

that premining groundwater report condition had been satisfied. Id. Indeed, the

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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

second letter confirmed that "all information requested" in the first letter had been

received and explained that it was the Port's "responsibility to ensure the property

remains in compliance with all adopted [h]earing [e]xaminer conditions ... as

required by the [permit]." Ex. 83 (emphasis added).

Those two letters could be interpreted either broadly, as an agency

determination that the Port had complied with all of the permit's premining

conditions (as Maytown argued), or narrowly, as mere confirmation of receipt of

paper work(as the County argued). But we must view the evidence in the light most

supportive of the jury's verdict. Street v. Weyerhaeuser Co., 189 Wn.2d 187, 206-

07,399 P.3d 1156(2017). Those letters, when viewed in the light most favorable to

the jury verdict for Maytown, constitute sufficient evidence that Maytown had a

protected property right to mine as of2008 when the Department determined that all

premining conditions had been satisfied.

2. Under Controlling Supreme Court Precedent, the Evidence Was
Sufficient To Prove That the County's Acts "Shocked the
Conscience"

The County argues that even ifMaytown had a constitutionally protected right

to mine, it still did not prove a Section 1983 due process violation. According to the

County, a due process violation requires governmental action that "shocks the

conscience," which the County defines as governmental action lacking any

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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

legitimate governmental purpose. Appellant's Consolidated Reply & Resp. Br. at

37-38. The County argues that this standard requires more than just arbitrary and

capricious acts, id. at 36; instead, the "official conduct'must amount to an "abuse of

power" lacking any "reasonable justification in the service of a legitimate

governmental objective,'"" id. at 38 (quoting Shanks v. Dressel, 540 F.3d 1082,

1088-89(9th Cir. 2008)(quoting County ofSacramento v. Lewis,523 U.S. 833,846,

118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998))). This standard, the County contends,

requires evidence of corruption, bribery, or self-dealing. Pet'r's Suppl. Br. at 16-18.

Essentially, the County argues that Washington's Section 1983 case law is out

of step with contemporary United States Supreme Court precedent and decisions

from the federal circuit courts, particularly Lewis,523 U.S. 833(adopting the federal

"shocks the conscience" standard); Onyx Properties LLC v. Board of County

Commissioners, 838 F.3d 1039, 1049 (10th Cir. 2016) (requiring more than

"[ijntentionally or recklessly causing injury through the abuse or misuse of

governmental power"), cert, denied, 137 S. Ct. 1815 (2017); and United Artists

Theatre Circuit, Inc. v. Township of Warrington, 316 F.3d 392, 400-02 (3d Cir.

2003)(rejecting "improper motive" as too low ofa standard because it would elevate

all land use appeals to constitutional challenges since every disappointed developer

complains of abuse of authority).

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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

We reject the suggestion that Washington's Section 1983 case law is out of

sync with the United States Supreme Court's decision in Lewis. In fact, Majdown's

Section 1983 claim is highly analogous to the Section 1983 claim raised in Del

Monte Dunes, 526 U.S. 687, decided one year after Lewis.

Like Majdown, Del Monte Dunes filed a Section 1983 due process^ claim,

arguing that a local land use agency had deprived it of economic use of its property

and that the agency's actions were motivated by improper environmental and

political concerns. Del Monte Dunes applied for a permit to develop 37.6 acres for

new residential housing. Del Monte Dunes originally proposed building only 344

units, even though local zoning laws permitted up to 1,000 units. Id. at 695-96. The

city denied the application but said it would accept a reduced proposal of 264 units.

Id. at 696. But when Del Monte Dunes submitted an application for 264 units, that

application was also denied. This time the city said it would approve 224 units. Id.

But it turned out the city did not mean that either. When Del Monte Dunes reduced

^ We refer to the Del Monte Dunes case as a substantive due process case, even
though the case actually involved a regulatory takings issue, because the United States
Supreme Court treated the case as a substantive due process case and applied the rules
goveming substantive due proeess deprivations, not regulatory takings. We know this
beeause the Court analyzed the claim using the "substantially advances" test, which is
reserved for substantive due proeess claims. Lingle v. Chevron U.S.A. Inc., 544 U.S. 528,
540, 125 S. Ct. 2074, 161 L. Ed. 2d 876(2005). By contrast, regulatory takings ehallenges
are govemed mostly by the multifactor analysis ofPenn Central Transportation Co. v. New
York City, 438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978). Lingle, 544 U.S. at 538-
39.

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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

the size of its development a second time to 224 units, the city denied that

application. Id. Del Monte Dunes appealed that denial to the city council, and the

city council directed the city to consider 190 units instead. Id. But Del Monte

Dunes' proposal for 190 units was also denied. Id. So, Del Monte Dunes appealed

again to the city council. At this second appeal, the city council approved the plan,

subject to a few conditions. Id. Even though Del Monte Dunes' development plans

did not comply with all of the council's conditions, the city's architectural review

committee nevertheless recommended that the plans be approved. Id. at 697. The

city disagreed with the committee's recommendations and denied the plans. Del

Monte Dunes appealed that decision to the city council. On Del Monte Dunes' third

appeal, the council affirmed the city's denial. Id. The city council did not provide

any explanation for upholding that denial and refused to extend the deadlines on the

existing conditional permit so Del Monte Dunes could revise its plans. Thus, after

five years of back and forth with the city, Del Monte Dunes was back to square one,

or possibly worse because a sewer moratorium issued by another agency that was

critical to the proposed housing development was expiring soon. Id. The United

States Supreme Court upheld the trial court's decision to send Del Monte Dunes'

Section 1983 claim to the jury, even though there was no evidence of corruption,

bribery, or self-dealing. Id. at 694,697-98.

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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

Following Del Monte Dunes, the evidence in this case is also sufficient to

support a Section 1983 claim.

5. The County Is Also Barredfrom Claiming That Maytown Was
Required To Prove the County's Acts "Shocked the Conscience"
Because the Jury Instructions That It Requested and Obtained
Stated a Different Standard

Another problem with the County's Section 1983 argument is that it is

inconsistent with the jury instructions that the County requested and obtained in this

case. The trial court instructed the jury that a due process violation can be proved by

showing "[Maytown] was deprived of rights in a way that shocks the conscience or

interferes with rights that are implicit in the concept ofordered liberty." CP at

6376-77 (jury instruction 24)(emphasis added). This means that the jury could

have predicated its finding of a due process violation on actions that either shocked

the conscience or interfered with ordered liberty.

The right to an impartial decision-maker is clearly a right "implicit in the

concept of ordered liberty." The evidence, when viewed in the light most favorable

to the jury verdict, establishes that two of the County's board commissioners

deliberately interfered with the impartiality of the Department's decision-making

The County does not ehallenge the jury instruction. Pet'r's Suppl. Br. at 15("The
jury was correctly instructed ... ."). That is probably because the County itself requested
that instruction. CP at 6104-05.

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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

process. For this additional reason,the record contains sufficient evidence to support

the jury finding of a due process violation.

C. The American Rule Bars Maytown and the Port from Recovering
Prelitigation, Administrative Fora Attorney Fees under a Tortious
Interference Claim

The trial court barred Maytown and the Port from "introduc[ing] evidence or

argument seeking recovery of attorneys' fees and litigation expenses as damages" at

trial. CP at 3622-24. The trial court explained its evidentiary ruling was based on

the American rule. VRP (June 12, 2014)(Pretrial hearing) at 547-48.

The American rule requires each party to bear its own litigation costs and fees.

King County v. Vinci Constr. Grands Projects/Parsons RCI/Frontier-Kemper, JV,

188 Wn.2d 618,625, 398 P.3d 1093(2017){ddingDayton v. Farmers Ins. Grp., 124

Wn.2d 277, 280, 876 P.2d 896 (1994)). The primary justification for adopting the

American rule is that it encourages aggrieved parties to air their grievances in court.

"[Sjince litigation is at best uncertain[,] one should not be penalized for merely

defending or prosecuting a lawsuit, and ... the poor might be unjustly discouraged

from instituting actions to vindicate their rights ifthe penalty for losing included the

fees of their opponents' counsel." Fleischmann Distilling Corp. v. Maier Brewing

Co., 386 U.S. 714, 718, 87 S. Ct. 1404, 18 L. Ed. 2d 475 (1967).

53
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

The American rule therefore bars courts from awarding attorney fees as costs,

subject to certain statutory, contractual, and equitable exceptions. Maytown and the

Port argue that the American rule does not apply here because they are seeking

recovery of prelitigation, administrative fora attorney fees as damages, not costs.

Alternatively, they argue that they are entitled to recover these fees under the bad

faith exception to the American rule.^^

We review the trial judge's evidentiary rulings for abuse of discretion. Univ.

of Wash. Med. Ctr. v. Dep't ofHealth, 164 Wn.2d 95, 104, 187 P.3d 243 (2008)

(citing State v. Myers, 133 Wn.2d 26, 34, 941 P.2d 1102 (1997)). However the

question of whether a party is entitled to an award of attorney fees is reviewed de

novo. Durland, 182 Wn.2d at 76 (citing Newport Yacht Basin Ass'n of Condo.

Owners v. Supreme Nw.,Inc., 168 Wn. App. 86, 285 P.3d 70(2012)). We hold that

the American rule generally bars recovery of such prelitigation, administrative fora

attorney fees and that Maytown and the Port have failed to prove any of the

exceptions to that general rule apply.

Maytown and the Port also argued before the trial court that the ABC exception
applied. CP at 7502-05. Maytown and the Port appear to have abandoned that claim on
appeal and for good reason. The County did not expose Maytown or the Port to litigation
with others so the rule does not apply. See LK Operating, LLC v. Collection Grp., LLC,
181 Wn.2d 117, 123, 330 P.3d 190(2014)(discussing the ABC exception).
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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

1. Washington's American Rule Bars Recovery of Prelitgation,
Administrative Fora Attorney Fees as Damages Except in a
Narrow Set ofCircumstances Not Applicable Here

Although "the traditional American rule relates to attorney fees as costs, at

least two of the recognized equitable exceptions award attorney fees as damages.^

City of Seattle v. McCready, 131 Wn.2d 266, 275, 931 P.2d 156 (1997) (listing

example cases). Thus, the "more accurate statement of Washington's American

rule" is that "attorney fees are not available as costs or damages absent a contract,

statute, or recognized ground in equity." Id.

Maytown and the Port argue that they should have been allowed to present

evidence of prelitigation, administrative fora attorney fees as damages because they

would not have incurred those fees but for the County's deliberate abusive use ofthe

administrative process. They argue this type of intentional, deliberate abuse of

process sets their claim for prelitigation, administrative fora attorney fees apart from

other tort claims.

We agree that prelitigation, administrative fora attorney fees may qualify as

damages in certain types of abuse of process cases. For example, attorney fees are

recoverable as special damages in malicious civil prosecution actions where the fees

were necessitated by the defendant's intentional acts. See Rorvig v. Douglas, 123

Wn.2d 854, 862, 873 P.2d 492(1994)(citing Aldrich v. Inland Empire Tel. & Tel.

55
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

Co., 62 Wash. 173, 176-77, 113 P. 264 (1911)). Attorney fees are also available in

abuse ofprocess cases. E.g.,Bellevue Farm Owners Ass'n v. Stevens, 198 Wn. App.

464, 478-79, 394 P.3d 1018, review denied, 189 Wn.2d 1038, 413 P.3d 565 (2017).

But Maytown and the Port did not bring those types of claims. They brought

claims of tortious interference with a contract and business expectancy.'^ Whether

the reasons for awarding attorney fees as damages in civil malicious prosecution and

abuse of process claims extend to tortious interference claims is a question of first

impression for this court, but our analysis is guided by prior precedent.'^

Like malicious civil prosecution and abuse of process claims, a claim of

tortious interference with a contractual or business relationship can involve the

Maytown and the Port brought other claims, including a Section 1983 claim, but
they do not argue that those other claims form a basis for obtaining prelitigation,
administrative fora attorney fees. CP at 7496-508.

Maytown and the Port correctly observe that the trial court in Pleas v. City of
Seattle, 112 Wn.2d 794, 799, 774 P.2d 1158 (1989), awarded prelitigation attorney fees to
Pleas as damages for the city of Seattle's tortious interference in the land use permitting
process and that we affirmed that award of attomey fees on appeal. But as Maytown and
the Port also recognize, the issue of whether prelitigation attomey fees was available as
damages for tortious interference claims was not at issue in Pleas. Resp'ts/Cross-
Appellants' Joint Reply in Supp. of Cross-Appeal at 3. We therefore had no reason to
address the issue. '"Where the literal words of a court opinion appear to control an issue,
but where the court did not in fact address or consider the issue, the mling is not dispositive
... In re Pers. Restraint ofStockwell, 179 Wn.2d 588, 600, 316 P.3d 1007 (2014)
(quoting ETCO, Inc. v. Dep't ofLabor & Indus., 66 Wn. App. 302, 307, 831 P.2d 1133
(1992)).

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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

misuse of courts and administrative fora for improper purposes. Pleas v. City of

Seattle, 112 Wn.2d 794, 803-04,774 P.2d 1158(1989)(citing Top Serv. Body Shop,

Inc. V. Allstate Ins. Co., 283 Or. 201, 204, 582 P.3d 1365 (1978)). But malicious

civil prosecution and abuse of process claims require more than a defendant's ill

intent to support an award of attorney fees. "'[T]he mere institution of a legal

proceeding even with a malicious motive does not constitute an abuse of process.'"

Sea-Pac Co. v. United Food & Commercial Workers Local Union 44, 103 Wn.2d

800, 806, 699 P.2d 217 (1985)(quoting Fite v. Lee, 11 Wn. App. 21, 27-28, 521

P.2d 964 (1974)). Nor does it constitute malicious civil prosecution.^"^ Petrich v.

McDonald,44 Wn.2d 211, 221-22, 266 P.2d 1047 (1954).

The tort of abuse of process requires misuse of a judicial proceeding to

accomplish an act for which the process was not designed. Sea-Pac, 103 Wn.2d at

806 (quoting Fite, 11 Wn. App. at 27; Restatement(Second)of Torts § 682, at

474(Am. Law Inst. 1977)). In other words,'"there must be an act after filing suit

using legal process empowered by that suit to accomplish an end not within the

"Malice," for purposes ofa malicious prosecution claim,'"^''^may be satisfied by
proving that the prosecution complained of was undertaken from improper or wrongful
motives or in reckless disregard ofthe rights ofthe plaintiff, Orwickv. City ofSeattle,
103 Wn.2d 249, 257, 692 P.2d 793 (1984)(quoting Bender v. City ofSeattle, 99 Wn.2d
582, 594, 664 P.2d 492 (1983)(quoting Peasley v. Puget Sound Tug & Barge Co., 13
Wn.2d 485, 502, 125 P.2d 681 (1942))).

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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

purview of the suit.'" Id. (quoting Batten v. Abrams, 28 Wn. App. 737, 748, 626

P.2d 984(Am.Law Inst. 1981)). The crucial inquiry in abuse of process claims is

therefore "whether the judicial system's process, made available to insure the

presence of the defendant or his property in court, has been misused to achieve

another, inappropriate end." Gem Trading Co. v. Cudahy Corp.,92 Wn.2d 956,963

n.2, 603 P.2d 828(1979)(citing Gilmore v. Thwing, 167 Wash.457,459,9 P.2d 775

(1932); Rockv. Abrashin, 154 Wash. 51, 54, 280 P. 740(1929)).

For that reason, as we explained in Gilmore, abuse of process claims are

exceptionally rare. In Gilmore, we dismissed an abuse of process suit predicated

on a prior suit for writ of garnishment despite evidence that the defendant had

pursued the writ action out of a malicious desire to sully the plaintiffs reputation

and undermine his business. 167 Wash, at 459. We explained that an abuse of

process claim could not lie even if the jury found the writ was pursued with malice

and for an improper purpose because "if the writ had been rightfully issued, its

service upon the [plaintiffs] bank would have been rightful." Id. Thus, abuse of

process claims are generally limited in Washington to unlawful, quid pro quo

situations. An example of one such situation is where a judgment creditor uses the

judicial system to sequester wages and property that the creditor knows are legally

unattachable, but does so for the improper purpose of harassing and inducing the

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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

debtor to pay the outstanding debt with property that is not legally subject to

execution. Rock, 154 Wash, at 53.

Like abuse of process cases, claims for malicious civil prosecution are also

narrowly circumscribed. A malicious civil prosecution claim in Washington

requires proof of a "special injury," which is defined as an ''''''injury which is not the

necessary result in such suitsC"^ Petrich, 44 Wn.2d at 217 (quoting Manhattan

Quality Clothes, Inc. v. Cable, 154 Wash. 654, 657, 283 P. 460 (1929)(quoting

Abbott V. Thome, 34 Wash. 692, 694, 76 P. 302(1904))).

We have previously acknowledged that other jurisdictions have abandoned

the element ofa special injury in order to broaden the circumstances in which a party

may recover for malicious prosecution. Gem Trading,92 Wn.2d at 964;Petrich,44

Wn.2d at 219; see also RESTATEMENT(SECOND)OF XORTS § 674(discussing the tort

of wrongful use of civil proceedings).'^ But we declined to join those other

jurisdictions and instead reaffirmed that Washington follows a "stricter" and more

To the extent we suggested in Davis v. Cox, 183 Wn.2d 269, 292, 351 P.3d 862
(2015), that attomey fees may be recoverable as damages under the tort of wrongful use of
civil proceedings described in Restatement (Second) of Torts § 674, we disavow that
suggestion. The issue in Davis was the constitutionality of Washington's anti-SLAPP
[strategic lawsuits against public participation] statute, RCW 4.24.525. We were not asked
to determine whether Washington recognized the tort of wrongful use of civil proceedings;
we therefore did not have to consider whether such approach would be consistent with our
restrictive view on abuse of process and malicious civil prosecution claims.

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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

"restrictive" approach in malicious civil prosecution cases. Petrich, 44 Wn.2d at

219; Gem Trading, 92 Wn.2d at 963-65.

Maytown and the Port's proposal that we expand the American rule to allow

parties to seek prelitigation, administrative fora attorney fees as damages in tortious

interference cases where the defendant misuses the administrative process to inflict

economic harm conflicts with those controlling decisions because it would eliminate

the quid pro quo or special injury elements of abuse of process and malicious civil

prosecution tort claims. Maytown and the Port have not proved that those

controlling decisions are incorrect and harmful. We are therefore bound by

principles ofstare decisis to apply that precedent. In re Rights to Waters ofStranger

Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970). We hold that Maytown and the

Port were not entitled to prelitigation, administrative fora attorney fees as damages

for their tortious interference claims.

Having determined that prelitigation, administrative fora attorney fees are not

available to Maytown and the Port as damages, we next address whether such fees

are recoverable under the bad faith exception to the American rule. As discussed

below, we hold that they are not.

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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

2. The Bad Faith Exception to the American Rule Does Not Apply
to Prelitigation Attorney Fees

The American rule permits a court to award attorney fees "when doing so is

authorized by a contract provision, a statute, or a recognized ground in equity." Vinci

Constr., 188 Wn.2d at 625 (citing Hamm v. State Farm Mut. Auto. Ins. Co., 151

Wn.2d 303,325,88 P.3d 395(2004)). We have found equitable grounds in a variety

of actions, including insurance coverage cases,^^ surety coverage cases,^^ the ABC

rule {supra note 11),'^ actions by injured seamen for maintenance and cure

payments,'^ and common fund actions.^'^ We have also said that attorney fees ''''could

be awarded if the prevailing party proved the opposing party acted in bad faith."

Clark V. Wash. Horse Racing Comm'n, 106 Wn.2d 84, 93, 720 P.2d 831 (1986)

(listing cases).

Olympic S.S. Co. v. Centenniallns. Co., 117 Wn.2d 37, 811 P.2d 673 (1991).

Vinci Constr., 188 Wn.2d at 625-26.

LK Operating, 181 Wn.2d at 123-24 (citing Blueberry Place Homeowners Ass'n
V. Northward Homes, Inc., 126 Wn. App. 352, 358, 110 P.3d 1145 (2005)).

Clausen v. Icicle Seafoods,Inc., 174 Wn.2d 70,78-79,272 P.3d 827(2012)(citing
Vaughan v. Atkinson, 369 U.S. 527, 82 S. Ct. 997, 8 L. Ed. 2d 88 (1962)).

Matsyuk v. State Farm Fire & Cas. Co., 173 Wn.2d 643, 649-51, 272 P.3d 802
(2012).

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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1

Maj^own and the Port argue that they are entitled to prelitigation,

administrative fora attorney fees under the bad faith exception to the American

rule.^^ Resp't/Cross-Appellants' Joint Resp.& Opening Br. at 97-98; Resp'ts/Cross-

Appellants' Joint Reply in Supp. of Cross-Appeal at 5-11.

Whether attorney fees should be granted under the bad faith exception

depends on '"["hhe justice of the cause or the facts and circumstances of the

particular case.^"^'" Clark, 106 Wn.2d at 93 (quoting State ex rel. Maori v. City of

Bremerton, 8 Wn.2d 93, 113, 111 P.2d 612(1941)(quoting 14 Am.Jur. Costs § 22,

at 16 (1938))). An award of attorney fees is proper under the bad faith exception

when the fees were incurred as a result of the "intentional and calculated action" of

the defendant that "[left] the plaintiff with only one course of action; that is,

litigation." Rorvig, 123 Wn.2d at 862. In other words, where "the defendants

actually know their conduct forces the plaintiff to litigate" and the ability of the

plaintiffs to prove actual damages is difficult, an award for attorney fees may be

The County argues that Maytown and the Port never raised the bad faith exception
before the trial court. Pet'r's Suppl. Br. at 20 n.lO. The County is incorrect. See CP at
7506(Maytown and the Port's Joint Suppl. Br. responding to the County's motion in limine
regarding recovery of attomey fees as damages)("Washington Courts recognize that the
bad faith of the defendant can justify an award of attorneys' fees as costs of the damages
litigation.").
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granted. Id. "Fairness requires the plaintiff to have some recourse against the

intentional malicious acts ofthe defendant." Id.

But we have never applied the bad faith exception to prelitigation

administrative forum attorney fees. Nor can we find any other jurisdiction that has

applied the bad faith exception to that context. In fact, our research shows that all

jurisdictions that have considered whether the bad faith exception to the American

rule extends to recovery of prelitigation attorney fees have ruled that the answer is

no. E.g.,Ring V. Carriage House Condo. Owners'Ass'n,20\AYT 127, 198 Vt. 109,

125, 112 A.3d 754; Lamb Eng'g & Constr. Co. v. Neb. Pub. Power Dist, 103 F.3d

1422, 1435 (8th Cir. 1997); see also Chambers v. NASCO,Inc., 501 U.S. 32, 73-74,

Ills. Ct. 2123, 115 L. Ed. 2d 27 (1991) (Kennedy, J., dissenting, joined by

Rehnquist, C.J., and Souter, J.), Chambers, 501 U.S. at 60 (Scalia, J., dissenting).

They hold that to the extent such prelitigation attorney fees are recoverable, they are

recoverable only as damages under some type of abuse of civil proceedings claim,

not as costs or sanctions under the bad faith exception.

We agree. The bad faith exception to the American rule arises out of a court's

equitable power to regulate and manage the affairs ofthe court and the parties before

it. See Chambers, 501 U.S. at 46. Sanctioning parties for prelitigation conduct that

occurred before the court was involved and before litigation was initiated exceeds

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the scope of that authority. Compensating aggrieved parties for harm caused by

malicious, prelitigation conduct fits more naturally within the meaning of damages

and is therefore limited to that context. Ring, 198 Vt. at 125. As discussed above,

Washington limits the situations in which such prelitigation attorney fees can be

recovered as damages, and those situations do not include the tortious interference

claims raised in this case.

This limit on prelitigation attorney fees does not, however, affect Maytown's

request for appellate attorney fees. As we discuss next, different rules apply to that

request.

D. The Court of Appeals Did Not Err in Awarding Maytown's Request
for Appellate Attorney Fees under RAP 18.1(b)

RAP 18.1 governs the award of appellate attorney fees. RAP 18.1(a) provides

that "[i]f applicable law grants to a party the right to recover reasonable attorney fees

or expenses on review before either the Court of Appeals or Supreme Court, the

party must request the fees or expenses as provided in [RAP 18.1], unless a statute

specifies that the request is to be directed to the trial court." When making a request

for attorney fees, RAP 18.1(b) states, "[t]he party must devote a section of its

opening brief to the request for the fees or expenses." (Emphasis added.)

Maytown's request for appellate attorney fees encompassed two sentences in

its opening brief. Together, these two sentences state,(1)"Maytown is . .. entitled
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to damages under 42 U.S.C. § 1983, and attorneys' fees and costs under 42 U.S.C.

§ 1988 because the County, acting 'under color ofany statute, ordinance, regulation,

custom, or usage, of any State' subjected Maytown to a 'deprivation of Maytown's

Constitutional right to substantive due process" and(2)"the Court should ... award

costs and attorneys' fees in accordance with 42 U.S.C. §§ 1983 & 1988 and RAP

18.1; and . . . award cost of appeal to Plaintiffs in accordance with RAP 14."

Resp't/Cross-Appellants' Joint Resp. & Opening Br. at 78, 98-99.

The Court of Appeals granted Maytown's request for appellate attorney fees.

Maytown, 198 Wn. App. at 593.

The County argues that Maytown's request for appellate attorney fees was

procedurally defective because it did not include a separate section "devote[d]"

entirely to the request for attorney fees. RAP 18.1(b).

Maytown argues RAP 18.1 does not apply to a request for attorney fees under

Section 1983 and that even ifthe rule did apply,RAP 18.1 does not require a separate

section devoted entirely and exclusively to the request. Alternatively, Maytown

argues that the County waived any objection to the form of Maytown's request for

appellate attorney fees when it failed to raise that objection in the Court of Appeals.

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We review a grant of appellate attorney fees under RAP 18.1 for an abuse of

discretion. In re Marriage ofBuecking, 179 Wn.2d 438,455, 316 P.3d 999(2013).

But "[t]he interpretation of a court rule presents a question oflaw that we review de

novo." State v. Stump, 185 Wn.2d 454, 458, 374 P.3d 89 (2016)(citing Jafar v.

Webb, 177 Wn.2d520, 526, 303 P.3d 1042(2013)). We hold that RAP 18.1 applies

to requests for appellate attorney fees under Section 1983 and that Maytown

complied with RAP 18.1's requirements. Because we uphold the Court of Appeals'

award of appellate attorney fees, we do not address Maytown's alternative argument

about waiver.

7. The Reverse-EnQ Doctrine Does Not Bar State Courts from
Applying RAP 18.1(b) to Requestsfor Appellate Attorney Fees
under 42 U.S.C. §§ 1983 and 1988

Maytown argues that RAP 18.1 does not apply to Section 1983 claims for

appellate attorney fees. Suppl. Br. of Resp't Maytown Sand & Gravel, LLC at 15-

16. Maytown argues that a state court reviewing claims under federal Sections 1983

and 1988 cmust apply federal law,including federal procedural rules. This argument

requires us to evaluate the applicability ofRAP 18.1(b) under the so-called Reverse-

Erie^^ doctrine.

"Erie" refers the United States Supreme Court decision in Erie Railroad Co. v.
Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938).
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The primary concerns of the Erie and Rcvcrsc-.Er/e doctrines arc threefold:

encouraging judicial economy, deterring forum shopping, and protecting principles

of federalism. "Under R. Co. v. Tompkins, 304 U. S. 64[, 58 S. Ct. 817, 82 L.

Ed. 1188](1938), when afederal court exercises diversity or pendent jurisdiction

over state-\sm claims, 'the outcome of the litigation in the federal court should be

substantially the same, so far as legal rules determine the outcome of a litigation, as

it would be iftried in a State court.'" Felder v. Casey, 487 U.S. 131, 151, 108 S. Ct.

2302, 101 L. Ed. 2d 123 (1988)(emphasis added)(quoting Guaranty Trust Co. v.

York, 326 U.S. 99, 109, 65 S. Ct. 1464, 89 L. Ed. 2079 (1945)). The converse of

that rule applies under the Reverse-jBrze doctrine. "Just as federal courts are

constitutionally obligated to apply state law to state claims, so too the Supremacy

Clause imposes on state courts a constitutional duty 'to proceed in such manner that

all the substantial rights ofthe parties under controlling federal law [are] protected.'"

Id. (alteration in original)(citation omitted)(quoting Garrett v. Moore-McCormack

Co., 317 U.S. 239, 245, 63 S. Ct. 246, 87 L. Ed. 239(1942)).

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Under the Reverse-Er/e doctrine, state courts must apply federal proof

standards^^ and federal waiver standards^"^ to federal claims and defenses. State

courts cannot impose state notice-of-claim requirements^^ or heightened state

pleading requirements^^ that burden plaintiffs with having to prove more in state

court than they would be required to prove had they brought their federal claims in

federal court.

But a state court is generally allowed to apply state procedural rules, such as

rules defining what trial court orders are immediately appealable, even ifthose state

procedural rules conflict with federal procedural rules of general applicability.

Johnson v. Fankell, 520 U.S. 911, 921, 117 S. Ct. 1800, 138 L. Ed. 2d 108 (1997).

A state procedural rule is generally applicable to federal claims if it is a neutral state

rule regarding the administration of the courts that is not meant to interfere with a

substantive federal right and allows a party to raise or defend against the federal

claim as if in federal court. Id. at 919-21.

23 Cent. Vt. Ry. Co. v. White, 238 U.S. 507, 512, 35 S. Ct. 865, 59 L. Ed. 1433
(1915).

2^* Garrett, 317 U.S. at 249; Dice v. Akron, Canton & Youngstown R.R. Co., 342
U.S. 359, 361-62, 72 S. Ct. 312, 96 L. Ed. 398 (1952).

^^Felder,4Sl U.S. at 138.

26 Brown v. W. Ry. of Ala., 338 U.S. 294, 298-99, 70 S. Ct. 105, 94. L. Ed. 100
(1949).
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RAP 18.1(b) meets all three Johnson criteria. It is a neutral court rule

governing the general administration of cases. It is not intended to interfere with or

substantially alter a party's ability to seek appellate attorney fees in state courts. And

it does not require a party to prove more or provide greater notice than that required

under federal law. RAP 18.1(b) requires a party requesting appellate attorney fees

to do so only in "a separate section" of its opening brief.

2. RAP 18.1(b) Does Not Require a Separate Section Devoted
Entirely and Exclusively to the Requestfor Appellate Attorney
Fees

The County argues that RAP 18.1 requires a separate section devoted entirely

and exclusively to the request for appellate attorney fees. The Court of Appeals

apparently disagreed, because it granted Maytown's attorney fees request, and we

are loath to disturb that court's decision on attorney fees in that court.

That is particularly true here. The County's argument relies essentially on

two cases: Wilson Court Ltd. Partnership v. Tony Maroni's, Inc., 134 Wn.2d 692,

710 n.4, 952 P.2d 590 (1998), and Zuver v. Airtouch Communications, Inc., 153

Wn.2d 293, 321 n.21, 103 P.3d 753 (2004).

Wilson involved a single sentence request, seeking "recover[y of] its costs and

attorneys' fees on appeal," made without citation in the conclusion paragraph ofthe

party's opening brief. Suppl. Br. of Resp't Wilson Court at 14, Wilson Court Ltd.

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P'ship V. Tony Maroni's, Inc., No. 64766-6 (Wash.), reprinted in 13 Briefs 134

Wn.2d (1997). We held that that single, generic sentence in the conclusion

paragraph ofthe brief was insufficient. Wilson, 134 Wn.2dat710n.4. We explained

that "[ajrgument and citation to authority are required under the rule to advise us of

the appropriate grounds for an award of attorney fees as costs." Id. at 711 n.4 (citing

Austin V. U.S. Bank of Wash., 73 Wn. App. 293, 313, 869 P.2d 404 (1994)). Here,

Maytown provided more than a single, generic sentence at the end of its brief.

Maytown provided two sentences, one at the end and another in the body ofits brief.

Maytown also provided a legal basis for its request.

The request for appellate attorney fees in Zuver more closely matches the

request here. In Zuver, the request was not made in the conclusion paragraph, and

it included the party's basis for seeking attorney fees. The request stated, that "Ifthis

Court affirms the trial court's decision, AirTouch requests that the Court award it

fees in connection with this appeal pursuant to the Arbitration Agreement." Br. of

Resp'ts at 50 n.38, Zuver v. Airtouch Comma'ns, Inc., No. 74156-5 (Wash.),

reprinted in 4 Briefs 153 Wn.2d (2004). But the request was made in a footnote

rather than in the body ofthe brief. We held that the request was insufficient because

"RAP 18.1(b)... requires that '[t]he party must devote a section of its opening brief

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to the request for the fees or expenses.'" Zuver, 153 Wn.2d at 321 n.21 (emphasis

added)(second alteration in original).

By contrast, Maytown's request for appellate attorney fees under Section 1983

was included in the body (not a footnote) of Maytown's opening brief before the

Court of Appeals, in a separate section devoted entirely to arguments under that

section, and included the legal basis for the request. The Court of Appeals was

certainly entitled to conclude that that sufficed. The request sufficiently apprised

the parties and the Court ofAppeals ofthe nature of Maytown's request and the legal

basis for it. We therefore affirm the Court of Appeals' award of appellate attorney

fees.

IV. Conclusion

The Court of Appeals correctly held that LUPA's administrative exhaustion

requirement does not bar the tort claims Maytown and the Port brought in this case.

Maytown and the Port challenged the County's tortious acts committed during the

land use decision-making process, not any particular land use decision itself. The

appellate court also correctly held that there was sufficient evidence to support the

jury's decision that the County violated Maytown's substantive due process rights.

In addition, that court correctly awarded Maytown its appellate attorney fees for

prevailing on its Section 1983 claim. The Court of Appeals, however, incorrectly

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held that Maytown and the Port were entitled to recover prelitigation, administrative
fora attorney fees as damages. We therefore affirm the Court of Appeals in part and
reverse in part.

Because Maytown prevailed on its Section 1983 claim in this court, we also

grant Maytown's request for appellate attorney fees and costs incurred before this
court related to that claim. 42 U.S.C. § 1988; Jacobsen v. City ofSeattle, 98 Wn.2d

668,675-76,658 P.2d 653(1983)(A prevailing plaintiff under a Section 1983 claim
'"should ordinarily recover an attorney's fee [related to that claim] unless special
circumstances would render such an award unjust.'" (quoting Newman v. Piggie

Park Enters., Inc., 390 U.S. 400, 402, 88 S. Ct. 964, 19 L. Ed. 2d 1263 (1968))).

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WE CONCUR:

. C4) ■

y.

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