Sim v. Washington State Parks & Recreation Commission

Dolliver, J.

(dissenting) — I disagree with the analysis and result of the majority and would reverse. As the majority contends, State v. Wright, 84 Wn.2d 645, 529 P.2d 453 (1974), is dispositive of the case. However, I believe the majority significantly misreads the Wright opinion.

In State v. Wright, supra, we said we "substantially agree [d] with the conclusions reached by the Attorney General in the January 12, 1972, opinion". Wright, at 650. However, we gave two different versions of what that opinion said as to barring vehicles from the beach highways: (1) "that the Commission was not empowered to prohibit such traffic on any or all of such beach highways permanently" (Wright, at 650); and (2) that the statutes vested the "Commission with authority to regulate the times and *557places on and along the ocean beach highways where automobiles could be driven, but that the Commission could not prohibit vehicular traffic on all such beaches at all times.” Wright, at 649.

Since the court relied on the January 12, 1972, opinion of the Attorney General and since we stated that our views in Wright were congruent with those of the Attorney General, the actual conclusions of the Attorney General are crucial. They are:

(1) The proviso does not require the parks commission to allow vehicular traffic on all areas of the beaches at all times — with only the department of fisheries being able to close any beach areas to automobile driving at any time;
(2) It does, however, require that some automobile driving must be permitted on at least some of the beaches, and at least some of the time; in other words, the proviso has the effect of barring the parks commission from totally prohibiting all vehicular traffic on all of the beaches all of the time.

Attorney General Opinion, January 12, 1972 (No. 2), at 8. Thus, while the Attorney General's opinion did not specifically determine whether a permanent partial closure of any portion of the ocean beach highways would come within the statutory authority of the Commission, it did not conclude such a closure would violate statutory authority and certainly by inference found it to be valid. This is in harmony with our holding in Wright which sustained the order of the Commission (WAC 352-36-040) as "a valid exercise of the Commission's authority insofar as it does not purport to effect a permanent closure of the ocean beach highways created by RCW 79.16.130, .160, and '.170." Wright, at 652-53.

Although the clause in Wright at page 650 relied upon by plaintiff and the majority is clearly dicta, even assuming it did represent the position of the court, plaintiff still should not prevail. While we did state there could be no permanent closure of "any or all of . . . [the ocean] beach highways" (italics ours), we did not prohibit permanent *558closure of portions of the highways. At all times in the opinion, we referred to the ocean beach highways; never to the ocean beach highway. Furthermore, although in aggregate the ocean beach highways are referred to as a public highway (RCW 79.16.172-.173), the statutes consistently refer to the ocean beach highways. See RCW 79.16 and RCW 43.51.650-.685. Absent a statutory definition, words of a statute must be accorded their usual and ordinary meaning. Pacific First Fed. Sav. & Loan Ass'n v. State, 92 Wn.2d 402, 598 P.2d 387 (1979).

The reason for our use of the term "highways" and not "highway" is evident. The legislature designated and established not one ocean beach highway, but rather three ocean beach highways. RCW 79.16.130, .160, and .170. See RCW 43.51.680. The language of the legislature is clear and unambiguous; we must accept it as we find it. Automobile Drivers Local 882 v. Department of Retirement Sys., 92 Wn.2d 415, 598 P.2d 379 (1979). Thus, while the court said in Wright that the Parks Commission could not permanently close any or all of the three highways, it did not say portions of any or all of the three highways could not be closed permanently. Rather, we stated that "the proviso [in RCW 43.51.680], strictly construed, does no more than prohibit the Commission from permanently closing the ocean beach highways to automotive traffic." Wright, at 652. If we had intended to say what plaintiff wishes we had said, we would have referred either to prohibiting vehicular traffic on "any or all of such beach highway" or on "any or all portions or parts of such beach highways".

The majority urges close attention be paid to the language of the legislature and that we avoid straining the rules of statutory construction. I agree. However, the principle ought to work both ways. We need also to pay attention to our language in previous cases. The precise use of language by the legislature or this court should not be ignored and then glossed over by fleeing to the dubious shelter of the pejorative "superlegislature11. Rather than search for ways to hold WAC 352-36-040 invalid, we should *559reaffirm our analysis of RCW 43.51.650-.685 contained in State v. Wright, supra: As long as the regulations are reasonable and are for the "protection and conservation of natural resources, and for the safety and enjoyment of the public using the beaches" (RCW 43.51.680), the Commission may by regulation permanently prohibit vehicular traffic on portions of the ocean beach highways but vehicular traffic may not be permanently prohibited on any or all of the three ocean beach highways.

I dissent.

Utter, C.J., and Horowitz, J., concur with Dolliver, J.