¶36
¶37 To resolve the question of whether the statutory limit on attorney fees applies to each level of review, we need to look first at subsections (1) and (2) of RCW 4.84.350. As noted above, the latter subsection indicates that “[t]he amount awarded a qualified party under subsection (1) of this section shall not exceed twenty-five thousand dollars.” RCW 4.84.350(2). Because subsection (1) of RCW 4.84.350, *941which is referred to in subsection (2), provides for attorney-fees to the prevailing party, “in a judicial review of an agency action,” it is readily apparent that the cap of $25,000 applies to the “judicial review.” RCW 4.84.340(4) provides that “ ‘[j]udicial review’ ” is defined by chapter 34.05 RCW, this state’s Administrative Procedure Act (APA). Since under the APA judicial review encompasses review at the superior court, Court of Appeals, and Supreme Court levels, it follows, logically, that the $25,000 cap on an award of attorney fees applies to the collective judicial review of agency action. Indeed, Division One of the Court of Appeals has acted consistent with that view in Alpine Lakes Protection Society v. Department of Natural Resources, 102 Wn. App. 1, 20, 979 P.2d 929 (1999), a case in which it remanded to the superior court to determine the attorney fees incurred at the superior court and the Court of Appeals in an amount not in excess of the statutory cap.
¶38 The majority acknowledges that RCW 4.84.350 can be read in a way that is consistent with the view that I have expressed in this dissent. It nevertheless concludes that the term “judicial review” is susceptible to different meanings and is, therefore, ambiguous. The majority resolves this perceived ambiguity in favor of Kathie Costanich based on a theory that applying the cap on attorney fees to each level of judicial review is more consistent with the legislature’s intent in enacting the equal access to justice act (EAJA), RCW 4.84.340. While the majority correctly determines that the EAJA was adopted “to ensure that [individuals] have a greater opportunity to defend themselves from inappropriate state agency actions and to protect their rights” (Laws of 1995, ch. 403, § 901), that does not mean that these goals can be achieved only if the award of attorney fees to the prevailing party is equivalent to 100 percent of the fees that party is seeking. It goes without saying that an award of fees in the amount of $25,000 is not insignificant and would not only constitute full reimbursement in many, if not most, cases but would be a great aid to anyone who is seeking on review to have their rights in administrative proceedings vindicated.
*942¶39 The principal reason for my disagreement with the majority is that it resolves what it concludes is an ambiguity in a statute relating to the awarding of attorney fees by viewing that statute broadly based on what it divines was the intent of the legislature. In my judgment, the statute should be viewed narrowly, not broadly. I say that because a statute providing for an award of attorney fees is in derogation of the common law rule, the so-called “American rule,” that each party pays his or her own attorney fees. On this precise point we have held that the legislature’s intent to replace the American rule relating to attorney fees must be explicit and that such statutes will not be construed to be in derogation of the common law unless the legislature “ ‘has clearly expressed its intention to vary it.’ ” Cosmopolitan Eng’g Group, Inc. v. Ondeo Degremont, Inc., 159 Wn.2d 292, 303, 149 P.3d 666 (2006) (quoting Price v. Kitsap Transit, 125 Wn.2d 456, 463, 886 P.2d 556 (1994)). Here, we have what the majority concedes is an ambiguous statute relating to the award of attorney fees. And yet the majority chooses to view it broadly based on legislative findings that are not part of the statute and that can arguably be read as supporting the position of each party to this case. The better course, in my opinion, is to view the statute narrowly absent a clear expression by the legislature to do otherwise. There is no such clear expression.
¶40 Finally, I must observe that even if the majority is correct in holding that the cap applies to all levels of judicial review, there should be no recovery by Costanich for judicial review at this court. I say that because we have not been called upon by either party to review an “action” by an “agency.” We have been asked only to review the decision of the Court of Appeals limiting Costanich’s attorney fees to the $25,000 cap set forth in RCW 4.84.350(2).5
¶41 I dissent.
The majority says that the Court of Appeals failed to address attorney fees. This is incorrect. In its opinion affirming the trial court, the Court of Appeals indicated that it was affirming the attorney fee award and was awarding Costanich fees on appeal. A commissioner at the Court of Appeals thereafter awarded Costanich attorney fees of $46,239. The State then filed a motion to *943modify the commissioner’s award, arguing that RCW 4.84.350 limits the total attorney fee award to $25,000, the amount Costanich had been awarded at the superior court. The Court of Appeals granted this motion but sanctioned the State in the amount of $1,000 for making its argument on the calculation of attorney fees in a motion to modify the court commissioner’s attorney fee calculation.