[No. 34883-7-II. Division Two. June 19, 2007.]
[1] Statutes Construction Review Standard of Review. Issues of statutory interpretation are reviewed de novo. [2] Statutes Construction Administrative Construction Deference to Agency In General. A court will give substantial weight to an agency's interpretation of the statutes and regulations the agency implements and enforces. [3] Statutes Construction Legislative Intent In General. A court's fundamental duty when interpreting a statute is to ascertain and implement the legislature's intent. [4] Statutes Construction Considered as a Whole Meaning to All Words. When interpreting a statute, a court must give meaning to every word used and interpret the statute as written. [5] Statutes Construction Statutory Language Plain Meaning Related Statutes. A court's first step when interpreting a statute is to look at the plain meaning of the statutory terms. The court may also look at related statutes that might disclose legislative intent about the specific provision in question. The court's goals are to avoid an interpretation that creates conflicts between different provisions and to achieve a harmonious statutory scheme. [6] Statutes Construction General and Specific Provisions In General. A conflict between a general statute and a specific statute is resolved in favor of the specific statute. [7] Statutes Construction Conflicting Provisions Time of Enactment In General. A conflict between an earlier enacted statute and a later enacted statute is resolved in favor of the later enacted statute. [8] State Waters Bedlands Lease Aquaculture Uses Persons Authorized To Lease Statutory Provisions. RCW 79.135.110 confers broad authority on the State to lease tidal bedlands for shellfish cultivation and other aquaculture uses. The only restriction is that the lease must be for an aquaculture use. The statute does not limit who may apply for and receive such leases. RCW 79.130.010, which authorizes the State to lease navigable bedlands to abutting shoreline and tideland owners and lessees, does not impose a limitation on the authority granted by RCW 79.135.110. The two statutes cover different lands and allow for different sorts of leases. Each provides an independent grant of authority to the State. [9] Statutes Construction Administrative Construction Deference to Agency Test. An administrative agency's interpretation of a statute it administers will be upheld by a court if the interpretation reflects a plausible construction of the statutory language and is not contrary to legislative intent and purpose. [10] Statutes Construction Meaning of Words Ordinary Meaning Resort to Dictionary In General. Where a regulation or statute does not define terms, a court may look to the dictionary for guidance. [11] State Waters Bedlands Lease Aquaculture Uses What Constitutes Broad Interpretation. For purposes of RCW 79.135.110, which authorizes the State to lease tidal bedlands for shellfish cultivation and other aquaculture uses, the term "aquaculture" is broadly interpreted. [12] State Waters Bedlands Lease Aquaculture Uses What Constitutes Herring Net Pens. For purposes of RCW 79.135.110, which authorizes the State to lease tidal bedlands for shellfish cultivation and other aquaculture uses, "other aquaculture uses" includes the use of herring net pens to rid herring of fish bacteria, thereby making them easier to freeze, preserve, and sell as bait. [13] Fish Aquaculture What Constitutes Statutory Provisions Applicability. The definition of "aquaculture" in RCW 15.85.020 is limited to Title Nature of Action: An association of tideland owners challenged the validity of the State's lease of bedlands underlying a bay to a commercial herring operation that did not own any abutting shorelands or tidelands. The association also claimed that the herring pen operation to be installed in the bedlands did not constitute "aquaculture." Superior Court: The Superior Court for Pierce County, No. 05-2-12681-2, Linda CJ Lee, J., on May 19, 2006, entered a judgment in favor of the Department of Natural Resources, upholding the validity of the lease and ruling that the herring pen operation constitutes "aquaculture." Court of Appeals: Holding that herring pen operation constitutes aquaculture processing and that the Department of Natural Resources could properly lease the bedlands to the commercial herring operation even though the operator did not own any abutting shorelands or tidelands, the court affirms the judgment. David S. Mann-, Gendler & Mann LLP, for appellant. Robert M. McKenna-, Attorney General, and Terence Pruit-, Assistant; Thomas H. Oldfield-, Oldfield & Helsdon PLLC, for respondents. Ά1 BRIDGEWATER, J. Echo Bay Community Association appeals from a superior court judgment that the Department of Natural Resources (DNR) may lease bedlands to someone who is not the owner of abutting shorelands or tidelands, i.e., a commercial herring operation. We hold that DNR may lease to a nonabutting person for aquacultural purposes and that herring net pens constitute aquaculture "processing," even though the herring are only held without feeding in order to prepare them for bait. We affirm. FACTS Ά2 In September 2005, DNR leased bedlands, Ά3 From 1975 until August 2002, the bedlands that F/V Puget leased were occupied by larger delayed-salmon-release pens operated by the Department of Fish and Wildlife (DFW). When the DFW decided to abandon the salmon pens, F/V Puget began gathering permits to allow it to use the DFW's existing concrete anchors to build and operate herring pens. F/V Puget's pens would occupy a substantially smaller footprint (40 percent smaller) than the DFW's salmon pens. Ά4 Before DNR would lease the bedlands to F/V Puget, F/V Puget had to obtain a shoreline substantial development permit from Pierce County. Pierce County granted the shoreline permit in August 2005, subject to several conditions. During this process, Pierce County determined that herring net pens were an aquaculture use for purposes of the Pierce County Code. Ά5 Historically, DNR has considered herring pens to be aquaculture. In DNR's 1999 aquaculture handbook, it notes that it has several herring pen leases on public aquatic land. Its March 2000 resource-policy-implementation manual defined aquaculture to include "raising fin fish in floating net pens." Administrative R. (AR) at 697. And in DNR's July 2004 aquatic resources-program-activity summary, DNR defined primary aquaculture to include net pen aquaculture, including salmon aquaculture and herring operations. In 2004, DNR had five leases covering 4.3 acres dedicated to herring production. Ά6 In October 2005, a month after DNR leased the Echo Bay bedlands to F/V Puget, the Echo Bay Community Association, whose members owned tidelands adjacent to Echo Bay, filed an appeal under RCW 79.02.030 Ά7 Following RCW 79.02.030's provisions, the superior court conducted a trial de novo based on the pleading and papers DNR certified as the applicable record. In a letter to counsel, the superior court interpreted the applicable statutes to give DNR authority to lease bedlands to any person for aquaculture purposes. The superior court also interpreted the statutory term "aquaculture" to include herring net pens. Clerk's Papers at 77-79. Ά8 Echo Bay filed this timely appeal, asking us to interpret the relevant statutes and to reverse the superior court. ANALYSIS I. DNR's Authority Ά9 Relying on RCW 79.130.010, which is titled "Lease of beds of navigable waters," and provides "the department may lease [bedlands] to the abutting tidelands or shorelands owner or lessee," Echo Bay argues that DNR has authority to lease bedlands only to abutting tidelands or shoreland owners or lessees. Echo Bay asks this court to read RCW 79.130.010 as imposing a "blanket ban on leasing navigable bedlands to non-adjacent tideland owners or lessees." Ά10 DNR concedes that F/V Puget does not own or lease abutting tidelands or shorelands but argues that the lease is valid under RCW 79.135.110, which is titled "Leasing beds of tidal waters for shellfish cultivation or other aquaculture use." Read independently, this statute provides authority to lease bedlands for aquaculture purposes to any person, not just abutting tideland and shoreland owners and lessees. Thus, this case presents us with a question of statutory construction: Does RCW 79.135.110 authorize leases to persons who do not own or lease abutting shorelands or tidelands? (1) The beds of all navigable tidal waters in the state lying below extreme low tide . . . shall be subject to lease for the purposes of planting and cultivating oyster beds, or for the purpose of cultivating clams or other edible shellfish, or for other aquaculture use. . . . (2) Nothing in this section shall prevent any person from leasing more than one parcel, as offered by the department. The statute's plain language confers broad authority to allow the State to lease tidal bedlands for aquaculture uses. The only restriction is that the lease must be for an aquaculture use. This statute does not limit who may apply for and receive such leases. Ά14 Echo Bay points out that the mandatory language in subsection (1) does not indicate to whom the State may lease these tidal bedlands for the purpose of aquaculture. Echo Bay asks us to read this silence as a meaningful one and impose some restriction on who may get such a lease. But subsection (2) indicates that "any person" is eligible to lease bedlands, as any person may lease more than one tidal bedland parcel. RCW 79.135.110(2). If any person may have more than one parcel, then it is logical that any person is eligible to lease one parcel, and there is no restriction, i.e., being an abutting owner or lessee. Thus, considered as a whole, RCW 79.135.110 allows any person to apply to obtain such a lease. Additionally, RCW 79.135.120, that provides for the application for leasing, also refers to "[a]ny person . . . ." Ά15 Echo Bay contends that if we interpret RCW 79.135.110(1) to allow DNR to lease tidal bedlands to any person who will use the bedlands for an aquaculture use, the statute would conflict with RCW 79.130.010. That statute allows DNR to lease any navigable bedlands (tidal and other) to abutting shoreline and tideland owners and lessees. RCW 79.130.010. If RCW 79.135.110 allows anyone to lease tidal bedlands, Echo Bay argues, RCW 79.130.010's restriction to abutting owners and lessees would be meaningless. Echo Bay is incorrect. Ά16 First, there is no inherent conflict between these two statutes as written. The two statutes cover different lands and allow for different sorts of leases. Nothing in RCW 79.130.010 imposes a ban on leasing bedlands to nonabutting landowners. The statute is a positive grant of authority, allowing bedland leases to abutting landowners, and including tidal, river, and lake bedlands. RCW 79.130.010(1). The statute does not restrict the purposes for which abutting owners can lease the bedlands. As the State points out, an abutting landowner might lease bedlands under this statute for mooring vessels, placing a swim raft or dock, establishing a marina or boat repair facility, or for any number of other purposes. RCW 79.135.110(1), on the other hand, grants DNR authority to lease only tidal bedlands and only for shellfish cultivation and other aquaculture uses. Thus, one statute allows leases of any bedlands for any purpose to abutting shoreland and tideland owners, while the other allows leases of tidal bedlands to any person for the only purpose of shellfish cultivation and aquaculture. Ά17 Since these two statutes are independent grants of authority, the State may lease under either statute. At most, it is possible that the two statutes might overlap if an abutting landowner wanted to lease tidal bedlands for aquaculture. But that both statutes authorize DNR to lease land in a particular situation does not mean that the two statutes conflict. It is reasonable to authorize commercial aquaculture in a separate statute that might overlap slightly with a general authorization to lease any navigable bedlands to abutting landowners. Ά18 Second, even if two statutes do conflict, the more specific statute controls. Bowles, 121 Wn.2d at 78. Here, the more specific statute is the one pertaining only to tidal bedlands and governing aquaculture leases. We give preference to RCW 79.135.110(1). Moreover, RCW 79.135.110(1) is also the more recently enacted statute as the legislature amended the statute in 1979. LAWS OF 1979, 1st Ex. Sess., ch. 123, § 1. On the other hand, the legislature passed RCW 79.130.010 in 1953. LAWS OF 1953, ch. 153, § 1. When two statutes conflict, we also give preference to the more recently enacted statute. Tunstall v. Bergeson, 141 Wn.2d 201, 211, 5 P.3d 691 (2000), cert. denied, 532 U.S. 920 (2001). Thus, even if the statutes did conflict, we would resolve the conflict in favor of RCW 79.135.110(1). Ά19 Echo Bay asserts that the legislature intends RCW 79.130.010 to protect abutting landowners' interests and allow them to control the uses of neighboring tidelands. Based on this assertion, Echo Bay argues that DNR's interpretation undermines that goal. But Echo Bay produces no evidence that the legislature intends RCW 79.130.010 to protect landowners' interests, and nothing in the statutory language implies such intent. That statute merely authorizes DNR to lease bedlands; it does not protect landowner's rights. Ά20 Four problems are readily apparent under Echo Bay's position: (1) the statutory phrase "[a]ny person" would have to be judicially interpreted to mean "any abutting landowner . . . ," RCW 79.135.120; (2) the competitive bidding structure for obtaining a lease would be nonsensical because only one person would be able to bid; (3) under RCW 79.135.120, any person could file an application, but only one person would be entitled to lease the bedlandsthus, this provision would be useless and without meaning; and (4) RCW 79.135.110(2) provides that "[n]othing in this section shall prevent any person from leasing more than one parcel . . . ." (emphasis added). This permissive phrase would have been differently phrased if it were limited to abutting persons (we would have to interpret it to mean " . . . any person, so long as they were abutting landowners or lessees"). Ά21 Echo Bay is not without protection under other relevant statutes. The legislature intended the Shoreline Management Act of 1971 (Act), ch. 90.58 RCW, to balance the competing interests of commercial and residential development. RCW 90.58.020 ("It is the policy of the state to provide for the management of the shorelines of the state by planning for and fostering all reasonable and appropriate uses."). In fact, Echo Bay challenged F/V Puget's lease under the Act's shoreline development provisions allowing neighbors to voice concerns about shoreline developments. The Act adequately protects such landowners' interests. Ά22 Pointing to the DNR policy handbook, Echo Bay also argues that DNR agrees that it may lease only to abutting landowners. This manual, following RCW 79.130.010, indicates that bedlands may be leased only to the owner of abutting tidelands or shorelands. But Echo Bay misstates the significance of this manual. The manual describes DNR's statutory authority under that specific statute; it has no relevance to our interpretation of an independent and separate statute. Ά23 Thus, we hold that the statute is not ambiguous; the plain language permits "any person" to lease bedlands. The right to lease bedlands for "aquaculture uses" is not exclusive to abutting landowners. II. Aquaculture Ά24 Echo Bay next argues that even if RCW 79.135.110(1) gives DNR authority to lease bedlands to any person for aquaculture purposes, F/V Puget's lease is still invalid because herring pens are not aquaculture. DNR responds that we should defer to its interpretation of the statutes and regulations it administers. We hold that DNR's interpretation is reasonable and that herring pens constitute aquaculture for the purposes of RCW 79.135.110(1). "Aquaculture" means the culture and/or farming of food fish, shellfish, and other aquatic plants and animals in fresh water, brackish water or salt water areas. Aquaculture practices may include but are not limited to hatching, seeding or planting, cultivating, feeding, raising, harvesting of planted crops or of natural crops so as to maintain an optimum yield, and processing of aquatic plants or animals. WAC 332-30-106(4). DNR relies on the portion of this definition that provides for the processing aquatic animals to argue that F/V Puget's lease is valid. Ά27 The regulation does not define "processing" but, where a regulation or statute does not define terms, we may look to dictionary for guidance. State v. Myers, 133 Wn.2d 26, 33, 941 P.2d 1102 (1997). Process, as a verb, means: to subject to a particular method, system, or technique of preparation, handling, or other treatment designed to effect a particular result or to prepare for market, manufacture, or other commercial use by subjecting to some process or to make useable by special treatment. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1808 (2002). Under any of these definitions, placing herring in net pens in order to rid the fish of bacteria, thereby making them easier to freeze, qualifies as processing an aquatic animal. This process achieves the particular result of making the herring amenable to preservation, preparing the fish for market, and rendering the herring useable as bait fish. Thus, under DNR's definition, herring net pens are aquaculture. Ά28 We defer to DNR's definition of aquaculture of RCW 79.135.110(1). As indicated above, the legislature described its purpose in amending that statute as, "The purposes for which the bedlands may be leased are expanded to include all aquacultural uses." Doc. "H.B. 913," S. Comm. on Natural Res., 46th Leg., 1st Ex. Sess. (Wash. 1979) (on file with Wash. State Archives). The adjective "all" suggests that the legislature intended "aquaculture" to be interpreted broadly. Had the legislature intended a more narrow definition, it could have so indicated. Ά29 Echo Bay argues that herring net pens are not processing because F/V Puget's performs further processing at an upland plant. F/V Puget's plan states: After starving, herring are removed from the pens, processed at an upland location and sold by the dozen as bait-fish to sport fishermen. AR at 447. We reject Echo Bay's reasoning. Ά30 First, F/V Puget's description of its operation has no significance in terms of statutory construction. Second, although F/V Puget processes the herring at an upland location, that does not mean penning and starving the herring is not part of the overall processing of this aquatic animal. The upland processing is an integral part of the operation. DNR's interpretation is consistent with the general statutory scheme: Under management guidelines, RCW 79.105.030(2) includes fostering water-dependent uses, and it is consistent with RCW 79.105.050 that authorizes DNR to "develop and improve production and harvesting of seaweeds and sealife . . . contained in aquaculture containers." Ά31 Echo Bay also disputes that DNR defines starving fish in herring net pens as aquaculture. It points out that DNR's policy manual describes aquaculture as "raising fin fish in floating net pens." AR at 697. Assuming without deciding that "raising" fin fish does not include controlling their diet in order to achieve a particular result, Echo Bay's argument misstates DNR's overall treatment of herring net pens. In its program summary, for example, DNR recounts that the "[p]rimary aquaculture activities addressed . . . are shellfish harvesting (excluding geoduck activities), net pen aquaculture, and seaweed aquaculture. Net-pen aquaculture includes salmon aquaculture and herring operations." AR at 877. DNR currently has five aquaculture leases for herring net pens, covering a total of 4.3 acres of bedlands. And DNR's handbook notes that herring net operations are a portion of its overall leasing program on public aquatic lands. In short, the record makes it clear that DNR has historically treated herring net pens as aquaculture. Ά33 Second, herring net pens would satisfy this statute. As Echo Bay points out, while starving the herring might not qualify as growing or cultivating an aquatic product, it is management of an aquatic product by an aquatic farmer. F/V Puget manages its catch for two weeks to approve the marketability of its product. Ά34 Affirmed. ARMSTRONG and QUINN-BRINTNALL, JJ., concur.