(concurring in part, dissenting in part) — ROW 90.03.290 creates a duty on the part of the state and a corresponding legal right on the part of the applicant. It provides in part:
When an application complying with the provisions of this chapter and with the rules and regulations of the department has been filed, the same shall be placed on record with the department, and it shall be its duty to investigate the application .... [I]f it shall find that there is water available for appropriation for a beneficial use, and the appropriation thereof as proposed in the application will not impair existing rights or be detrimental to the public welfare, it shall issue a permit ....
RCW 90.03.290 (emphasis added).
Mr. Hillis seeks protection of his legal right to have his applications processed. This court should provide that protection by affirming the trial court. The trial court properly ordered the Department of Ecology (DOE) to "immediately investigate and completely process in a timely fashion all of plaintiffs’ nine pending ground water [ ] applications and render a decision either approving or deny*404ing each such application.” Clerk’s Papers (CP) at 164-65. In so doing, it protected Mr. Hillis’s statutory rights against infringement by his own government, and, frankly, I cannot understand why the majority opinion does not do the same.
The trial court made several findings of fact to support its order. DOE has not assigned factual error to any of these findings, and, therefore, they are verities for the purpose of this appeal. Painting & Decorating Contractors of Am,., Inc. v. Ellensburg Sch. Dist., 96 Wn.2d 806, 814, 638 P.2d 1220 (1982).
Mr. Hillis filed nine water rights applications with DOE, four on August 31, 1992, and five on November 25, 1992, but to date, DOE has acted on none of them. CP at 157 (Finding 1.3).
In 1993 DOE demanded from Mr. Hillis an additional $900 ($100 per application) "just to keep the existing applications active . . . .” CP at 158 (Finding 1.5). Hillis paid for the application fees in full; however, "[tjhese funds went to general Ecology operating expenses and did nothing to further the investigation of the Hillis applications.” CP at 158 (Finding 1.5).
DOE acknowledges that the applications from Hillis were complete, ready for investigation, and that Ecology required nothing more from Hillis. Further, Ecology admits it does not intend to investigate Mr. Hillis’s applications for another five years (the year 2000), refusing to do anything whatsoever on Mr. Hillis’s applications for a total elapsed period of at least eight years, if even then. CP at 159 (Finding 1.7).
The record demonstrates Mr. Hillis is enduring severe economic and emotional hardship as a result of Ecology’s refusal to perform its legal duty. In point of fact, he may lose his entire investment and incur additional general and special damages. CP at 133; CP at 143 (Finding 2.2). When government establishes a permit process as a condition to one’s use of his or her own land, and then refuses access to the process, extreme hardship on the part of the citizen is the inevitable result.
*405It is also interesting to note DOE talks out of both sides of its mouth. For example, the attorney general represented to the trial court on November 28, 1994 that DOE would need another two years to process Hillis’s applications. CP at 193. However, by the time this opinion is published, substantially more than two years from that belated representation will have elapsed. Moreover, according to current DOE claims, Mr. Hillis will now be further from having his applications processed than he was at the time the attorney general made the representation in November of 1994.
The record also shows DOE could well process these very applications (with sufficient incentive) within two to six weeks. Ex. 10.
Closely tracking the terms and conditions of the statute, the trial court ordered on August 28, 1995:
The Department of Ecology, through its appropriate departments and personnel, shall immediately investigate and completely process in a timely fashion all of plaintiffs’ nine pending ground water [ ] applications and render a decision either approving or denying each such application.
CP at 164-65 (Writ of Mandamus at 1-2).
It is patently obvious, and beyond rational dispute, that the trial court simply ordered DOE to do what the Legislature had previously required it to do by statute. It is equally clear that the majority of this court is thwarting the legislative will at the expense of the legal rights of this citizen.
This is the nub of it. However I would add a few more specific comments about the majority opinion.
The majority’s analysis begins with the citation to RCW 34.05.570(4)(c) for the proposition that relief for an aggrieved person may be granted by a court if the court determines the end action is:
(i) Unconstitutional;
(ii) Outside the statutory authority of the agency or the authority conferred by a provision of law;
*406(iii) Arbitrary or capricious; or
(iv) Taken by persons who are not properly constituted as agency officials lawfully entitled to take such action.
RCW 34.05.570(4)(c); Majority at 382. I believe Mr. Hillis is entitled to relief under subparts (i) through (iii). Extreme delay in processing a permit is unconstitutional because it violates due process. Norco Constr. Co. v. King County, 97 Wn.2d 680, 685-86, 649 P.2d 103 (1982). It also violates due process because it is unduly oppressive upon individuals. West Main Assocs. v. City of Bellevue, 106 Wn.2d 47, 52-53, 720 P.2d 782 (1986); Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 829 P.2d 765, cert. denied, 506 U.S. 1028, 113 S. Ct. 676, 121 L. Ed. 2d 598 (1992); Guimont v. Clarke, 121 Wn.2d 586, 854 P.2d 1 (1993), cert. denied, 510 U.S 1176, 114 S. Ct. 1216, 127 L. Ed. 2d 563 (1994); Robinson v. City of Seattle, 119 Wn.2d 34, 50, 830 P.2d 318, cert. denied, 506 U.S. 1028, 113 S. Ct. 676, 121 L. Ed. 2d 598 (1992); Lawton v. Steele, 152 U.S. 133, 137, 14 S. Ct. 499, 501, 38 L. Ed. 385 (1894). It is also unconstitutional because it is "arbitrary and capricious” in that it is contrary to law. State ex rel. T.B. v. CPC Fairfax Hosp., 129 Wn.2d 439, 452-53, 918 P.2d 497 (1996); Cobb v. Snohomish County, 64 Wn. App. 451, 459, 829 P.2d 169 (1991). Bateson v. Geisse, 857 F.2d 1300 (9th Cir. 1988) (government acts arbitrarily when it denies a properly filed land use permit without lawful authority); Parkridge v. City of Seattle, 89 Wn.2d 454, 459-60, 573 P.2d 359 (1978).
By statute Ecology is obligated to process Hillis’s applications. RCW 90.03.290 states that once an application is properly filed it "shall” be Ecology’s duty to process it. This statutory directive is mandatory, not permissive. See Griffin v. Eller, 130 Wn.2d 58, 77, 922 P.2d 788 (1996) (use of word "shall” in a statute generally creates a mandatory duty). As a basic legal tenet when the law imposes a duty to act without providing a specific time frame the actor must perform without delay. See Larsen v. Lilly Estate, 34 Wn.2d 39, 45, 208 P.2d 150, 10 A.L.R. 580 (1949) (when the *407law allows or requires someone to act "and no time is fixed for its exercise he must do so within a reasonable time.”). Accord State ex rel. Huntington Ins. Agency, Inc. v. Duryee, 73 Ohio St. 3d 530, 653 N.E.2d 349 (1995) (where the law requires the superintendent of insurance to process applications for licensure, the superintendent must act "promptly”; a two-year delay was unreasonable and, accordingly, a writ directing immediate processing was proper). If any delay is unreasonable, certainly an eight-year delay is neither reasonable, "prompt,” excusable, nor is it lawful. "Scandalous” would be a better word.
When an agency such as Ecology is under a legal duty to take action and violates that duty, an aggrieved party may seek judicial review as a matter of right. And he would be foolish not to. RCW 34.05.570(4)(b). Professor Andersen explains: "Because inaction can be a powerful form of agency action in some circumstances, judicial review of inaction serves the conventional purposes of protecting citizens and keeping agencies within legislatively prescribed bounds.” William R. Andersen, The 1988 Washington Administrative Procedure Act—An Introduction, 64 Wash. L. Rev. 781, 844 (1989). A court is statutorily empowered to order the agency to act. RCW 34.05.574 (1) ("the court may . . . order an agency to take action required by law.”); see also State ex rel. Greive v. Martin, 63 Wn.2d 126, 385 P.2d 846 (1963) (holding that state must pay state officers whether or not moneys have been appropriated for their salaries); Ray v. Town of Camden, 533 A.2d 912 (Me. 1987) (ordering planning board to process applicant’s site plan). Under the statute, the court may order agency action if the inaction is unconstitutional, outside the agency’s statutory authority, or is arbitrary or capricious. RCW 34.05.570(4)(c).
This statutory violation is so patently clear, and Hillis’s claim for relief so patently justified, that even the majority opinion, and Ecology itself, "agree[ ] that RCW 90.03.290 gives [DOE] a duty to process water rights applications.” Majority at 385. But it didn’t process Hillis’s.
*408From this point the majority ceases to discuss the legal duties of the state, or the legal rights of Hillis, but makes excuses for a government department obviously acting contrary to law. The majority claims the Legislature has not appropriated enough money for Ecology to process the Hillis permits. This claim is not only based upon a false factual premise but, in any event, is no legal defense.
Actually, while the trial court did find that Ecology’s budget was cut in 1994 in an unspecified amount by the state Legislature, there is no finding that Ecology lacked the resources to process Mr. Hillis’s applications after that date. CP at 158-59 (Finding 1.6). Moreover, had Mr. Hillis’s applications been processed when they were received, they would have been processed in 1992, two years before the alleged budget cut. CP at 157 (Finding 1.3).
Even more fundamental to this legal concern is the majority’s implicit assumption that the state government may be excused from performing its legal duties because it has chosen to allocate its resources elsewhere or has better things to do than protect the legal rights of its citizens. I find no more validity to that proposition than this court would accord to a similar claim if made by a private person who violated the legal rights of others. Ironically, this "poverty” defense has now been uniquely asserted on behalf of the best financed and most powerful entity in this state.
The majority states: "[W]e have recognized that a statutory right can be enforced only up to the funding provided by the Legislature.” Majority at 388. In support of this bizarre proposition, the majority cites City of Ellensburg v. State, 118 Wn.2d 709, 715, 826 P.2d 1081 (1992) (quoting Pannell v. Thompson, 91 Wn.2d 591, 599, 589 P.2d 1235 (1979)). Clearly, however, the relevant holding in Ellens-burg is simply that "The power of appropriation is vested in the Legislature. It is the rare case where the judiciary interferes with that power.” 118 Wn.2d at 718. But here the trial court did not order the Legislature to appropri*409ate anything. Nor would this court if it were to affirm the trial court. Rather we would order an executive agency to fulfill its clear statutory mandate to process Respondents’ applications without delay.
Requiring an agency, otherwise unaccountable, to fulfill its statutory duty is the proper role of the court. See RCW 34.05.570, .574. Governmental agencies are not above the law but under it—like everyone else. Moreover, refusal to protect the statutory legal rights of any citizen is a dereliction of judicial duty which, in effect, allows lawless government to vanquish innocent citizens.
The majority incredibly adds:
If we were to uphold the trial court’s order directing Ecology to "immediately” process the Hillis applications, we presume many of the 5,000 other applicants, individually or in a class action, would seek to obtain an identical order.
Majority at 389.
Of course! And properly so. Courts exist just to hear such claims.
In the private sector, entrepreneurs, citizens, and private corporations are frequently subjected to much greater liability than this for violating the legal rights of others. But there we would not hesitate to restrain (if not punish) the wrongdoer. At minimum we would require the wrongdoer to fully compensate the innocent victim. The rule is no different when the state is a party.
The majority worries:
This would put Ecology in the legally untenable position of either violating a court order or violating the state constitution and RCW 43.88.130, which forbid agencies to expend any money in excess of the amount appropriated for a given purpose.
Majority at 389. Not so. There is nothing "untenable” about Ecology’s "legal” position other than it has breached a legal duty and must be held accountable. If its position is indeed "untenable” it has only itself to blame for making it so. In any event "untenability” is not a legal defense.
*410The majority continues:
Such action by this Court would only further add to the significant problems of the present water permitting system.
Majority at 389.
No. The problem should he DOE’s, not Hillis’s. We do not add to the problem by enforcing the law, we put its consequences on the shoulders of the responsible party, and relieve the victim from this unfair burden. Such is justice. Nor should we immunize state government from the natural consequences of its lawlessness. Governmental immunity has been abolished by statute. See RCW 4.92.090; 4.96.010.
The way in which state government orders its affairs and internally allocates its resources is not a judicial question, although its violation of the legal rights of others certainly is. Accordingly, I would conclude the majority’s issues two through four are nondispositive of the basic question before this court: Will the Hillis’s legal rights be protected? That is the only question that matters.
I agree with the majority’s disposition of issue number five, denying Hillis an award of reasonable attorney fees at this stage of the proceeding, although I recognize this burden also cries out for relief. But Mr. Hillis has not identified an appropriate ground for an award of reasonable attorney fees under existing law, and I can express no opinion on his entitlement to such award pursuant to RCW 64.40.020 or 42 U.S.C. §§ 1983, 1988, or any other ground, since these possible approaches have not been briefed.
In conclusion, Mr. Hillis has the absolute statutory right to have his applications processed pursuant to RCW 90.03.290. DOE has violated its clear duty to process the applications and, by so doing, violated Hillis’s right to have them processed. I would therefore affirm the trial court’s order that the applications be promptly processed, thereby placing the government firmly under the law, not above it. For these reasons I dissent.
*411Madsen, J., concurs with Sanders, J.