(dissenting) — I must dissent. Review is inappropriate when the plaintiff has failed properly to bring a claim under the Administrative Procedure Act (APA), RCW 34.05. The majority admits this failing in two footnotes but nevertheless proceeds to review the case. See majority, at 468 n.1, 475 n.3. The best and most appropriate action this court could take would be to uphold the trial court and dismiss the entire action.
It is important, however, to confront the position of the majority in its interpretation and application of the new standard of review in the APA.
The majority correctly identifies there is a middle tier of scrutiny between de novo review and review of procedural regularity. Majority, at 470. However, the majority does not go far enough in its analysis of the middle tier of scrutiny which examines the rationality of the rule-making procedure.
The majority correctly rejects the Department's interpretation of the new standard of review as meaning that " '[i]f the court is able to conceive of any set of facts that would justify the rule, those facts are presumed to exist.'" (Some italics mine.) Majority, at 472 (quoting Respondent's Answer to Amicus Brief, at 2). This interpretation should be rejected, however, because it does not comport with the legislative language in RCW 34.05.570(2)(c), not because it has been discredited or that it would allow an agency to "escape scrutiny". Majority, at 472-73. Once the majority rejects this standard of review, it equates the new standard with the arbitrary and capricious test because it "do[es] not perceive any principled way to distinguish between the two phrasings, which both pertain to the middle-tier scrutiny." Majority, at 472.
The Legislature, however, clearly rejected the arbitrary and capricious standard for review of rules. Laws of 1989, ch. 175, § 27, p. 790. First, if the Legislature had intended to adopt the arbitrary and capricious standard, it could easily have used that established phrasing. The difference in language shows the Legislature intended a different mean*479ing. See In re Swanson, 115 Wn.2d 21, 27, 804 P.2d 1 (1990). Second, the Legislature, in enacting a single standard for review of rules in all procedural contexts, "modified" the three standards of judicial review contained in the 1988 act, which included review under the arbitrary and capricious standard. See Final Legislative Report, 51st Legislature 59 (1989); Laws of 1988, ch. 288, § 516(2), (4), p. 1386. Lastly, the Legislature kept the arbitrary and capricious standard for review of adjudicative and other agency action, while eliminating its use for review of rules. See RCW 34.05.570(3)(i); RCW 34.05.570(4)(c)(iii).
I submit the language of the statute provides for a middle tier of scrutiny that is less than the arbitrary and capricious standard, which the Legislature rejected, but more than review of procedural regularity. RCW 34.05.570(2)(c) provides:
In a proceeding involving review of a rule, the court shall declare the rule invalid only if it finds that it . . . could not conceivably have been the product of a rational decision-maker.
The Legislature is not saying that if, on review, the court can conceive of a set of facts which support the rule, it is valid. Rather, the statute provides that, given the facts before the decisionmaker, if the court can conceive that the rule was the product of a rational decisionmaker, then the rule is valid. Thus, if we can conceive of a rational process which leads from the facts to the rule, the rule is valid regardless of whether the decisionmaker actually went through that rational process. At one point, the majority does express this view by stating that "the court must decide if a decision-maker could have reached the conclusion reached by the agency ... by some reasonable process." (Italics mine.) Majority, at 474. However, in the next paragraph, the majority phrases the inquiry in terms of whether "the result was reached through a process of reason . . ." (Italics mine.) Majority, at 474.
This lower middle level of scrutiny honors both the intention of the Legislature to allow inquiry into the rationality *480of agency regulations and its clear rejection of the arbitrary and capricious language. See In re Swanson, supra at 27. This level of scrutiny is more deferential to agency action than the arbitrary and capricious standard under which the court reviews whether the rule was, in fact, reached through a process of reason. Majority, at 475 ("[The court] must make certain that judgment was in fact exercised properly and fairly.").
However, under the lower middle-tier scrutiny provided for in RCW 34.05.570(2)(c), the rule is valid if it could have conceivably been the product of a rational decisionmaker. Whether it actually was is not controlling. Therefore, the court, in reviewing a rule under the new standard, must have the facts before it that were available to the decision-maker, but it need not review the actual reasoning process of the decisionmaker.
In this case, the analysis is made more difficult by the fact that Neah Bay has not challenged any particular rule, but the entire fishing scheme for 1990. Even so, the record is replete with the information that was before the Department of Fisheries when it made its decisions regarding area 4B which were adopted for the 1990 season. See, e.g., Clerk's Papers, at 94-127, 128-141, 142-314.
The 1990 emergency rule is State Register 90-13-056 (1990), which provides the public policy rationale for the regulation:
Pursuant to RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.
Reasons for this Finding: Quotas of coho and chinook are available for harvest in coastal waters. These regulations are adopted to concur with Pacific Fisheries Management Council recommendations.
Effective Date of Rule: 12:01 a.m., June 18, 1990.
The Pacific Fishery Management Council (PFMC) is authorized by 16 U.S.C. § 1852(6) as the National Fishery *481Management Program. See generally 16 U.S.C. §§ 1851-1861. RCW 75.08.070 authorizes the Director of Fisheries to "adopt rules consistent with the recommendations or regulations of the Pacific marine fisheries commission . . .". As indicated in State Register 90-13-056 (1990), this has been done.
The development of the PFMC management plans and their adoption for the 1990 fishing season began in November 1989 with a public meeting in Portland, Oregon. During the winter of 1989-90, a number of public meetings were held in Washington, Oregon, and California; the purpose of these meetings was to review the condition of salmon stocks and to develop regulatory options for 1990. One meeting specifically focused on the distribution of the non-Indian recreational salmon share among different geographical areas. At least some of these meetings were attended by plaintiff Peter F. Hanson. The data which came before the PFMC showed an abundance of coho stocks from the Queets and Skagit Rivers and that certain Columbia River chinook stocks were low in 1990. Ocean Salmon Fisheries off the Coasts of Washington, Oregon, and California, 55 Fed. Reg. 18,894, 18,896 (May 7, 1990) (to be codified in 50 C.F.R. § 661).
In a process parallel to the PFMC meetings, state, federal, and tribal fish managers convened public meetings called "North of Cape Falcon" meetings to discuss distribution of the Skagit River coho catch among Washington fishers. To conserve the scarce Skagit River coho and ensure equitable sharing between treaty and nontreaty fishers, each area and group, including Neah Bay, agreed to accept constraints on fishing.
The 1990 recommendations, including the decision to regulate area 4B differently from areas 5 and 6, thus, took into account numerous factors. These included the biological concerns which differ for ocean-originating stocks versus the stock contribution of Puget Sound, the social concern of proximity of fishing access, stability of regulations, and orderly fisheries.
*482The PFMC also attempted to equitably distribute the conservation impact on the various areas. As to the impact on Neah Bay during the 1990 season, the affidavit of Patrick L. Pattillo, Fisheries Biologist IV with the Department of Fisheries, whose duties include directing the annual management of Washington's ocean salmon fisheries, reveals:
Fisheries' policy is to soften restrictions that might be applied were conservation the only factor considered, and to pursue equitable sharing of the conservation burden between all areas. Though all Washington coastal communities have experienced major reductions in season length and salmon catches in the last decade, data compiled by the PFMC indicate , that Neah Bay has fared relatively better than the rest. Attached as Exhibit A are excerpts from the "Review of 1989 Ocean Salmon Fisheries," the PFMC's summary of data relevant to fisheries management. Coho catches at Neah Bay during . . . 1989 totalled 40,100, or 92% of the 1976-80 annual average. In contrast, the 1989 recreational coho catches in Ilwaco, Westport, and La Push, were 40%, 38%, and 7.6%, respectively, of the 1976-80 averages in those areas. Coho catches at Neah Bay during the 1990 season exceeded by 4% the average catch for the 1976-80 period.
. . . The PFMC data show that the "number of angler trips," a measure of how many recreational fishers use an area, has been increasing annually in Neah Bay and compares favorably with historical levels. In 1989, the number of angler trips taken from the port of Neah Bay was 65% of the 1976-80 average, while the number of angler trips in Ilwaco, Westport, and La Push was 35%, 28%, and 6.5%, respectively, of the 1976-80 averages in those areas. In 1990, angler trips in Neah Bay increased 10% over the 1989 level. According to the data, the number of angler trips in Neah Bay has increased several-fold in recent years.
Clerk's Papers, at 132-34. The PFMC review of the 1989 ocean salmon fisheries is attached to Mr. Pattillo's affidavit as exhibit A. See Clerk's Papers, at 135-41.
Based upon consideration of these numerous factors, an agreement was presented to the PFMC for its consideration as it developed final recommendations. See Clerk's Papers, at 94-99 (Affidavit of Morris Barker, Ph.D., Fisheries Resource Manager for the Department of Fisheries).
The PFMC developed its final 1990 recommendations at public meetings in Eureka, California, in early April. Meet*483ing Notice, 55 Fed. Reg. 7,522 (Mar. 2, 1990); Meeting Notice, 55 Fed. Reg. 11,240 (Mar. 27, 1990); 55 Fed. Reg. at 18,895. To conserve the weak stocks it had identified, and based in part on the catch levels negotiated in the "North of Cape Falcon" meetings, the PFMC set a 1990 harvest ceiling of 106,200 chinook salmon and 440,000 coho salmon for Washington coastal areas, to be allocated among commercial, recreational, and Indian fishers. 55 Fed. Reg. at 18,898-18,906. The PFMC allocated 37,500 chinook and 245,000 coho to the non-Indian recreational fishery, and further allocated the recreational coho quota among Washington coastal ports. 55 Fed. Reg. at 18,904. For example, Neah Bay received 24,900 coho, while La Push received 3,300. 55 Fed. Reg. at 18,903.
On June 14, 1990, the Director adopted emergency rules conforming to the PFMC recommendations. State Register 90-13-056 (1990). Beginning July 2, 1990, Washington coastal areas, including area 4B, were opened to recreational salmon fishing until September 20, 1990, or until any quota was reached. State Register 90-13-056 (1990). At the same time, fishing times and bag limits were reduced in areas 5 through 9. State Register 90-12-064 (1990).
Under the arbitrary and capricious standard adopted by the majority, the court would be obligated to review the actual process by which the PFMC and the Department weighed and considered all the detailed and technical factors and information that went into the adoption of the regulations. Under the language adopted by the Legislature, however, if this court can conceive of a process of reasoning which would produce the rule, then the rule is valid. Here, the myriad reasons advanced, and supported by the record, for the adoption of the regulations, while calling for judgment, are clearly "the product of a rational decision-maker."
To adopt the more exacting arbitrary and capricious standard will require courts to engage in analyzing technical information that is best evaluated by agencies and, most *484importantly, turns a blind eye to the Legislature's deliberate rejection of that standard.
I would affirm the trial court’s dismissal of Neah Bay’s complaint.
Utter, Andersen, and Smith, JJ., concur with Dolliver, J.
Reconsideration denied November 5, 1992.