not fall with the exception for litigation
in which the sole issue is money damages or compensation.
Arbitrary and Capricious Review
Probably the most distinctive difference in judicial review of contested
cases or adjudicatory proceedings is
the availability of arbitrary and capricious review under the Washington
APA, RC W 34.05.570( 3)(i). The Oregon
APA does not specify arbitrary and capricious review.
The Washington Supreme Court has
defined arbitrary or capricious agency
action as action that “is willful and unreasoning and taken without regard to
the attending facts or circumstances.
Where there is room for two opinions,
an action taken after due consideration
is not arbitrary and capricious even
though a reviewing court may believe
it to be erroneous” (Hillis v. Dep’t of
Ecology, 131 Wn.2d 373, 383, 932 P.2d
139 (1997)). “The scope of review under
the arbitrary and capricious standard
‘is very narrow,’ ‘highly deferential’ to
the agency and the party challenging
an agency decision carries ‘a heavy
burden’” (Alpha Kappa Lambda Fraternity v. Wash. St. Univ., 152 Wn. App. 401,
418–22, 216 P.3d 451 (2009)).
Parties in Oregon sometimes argue
that agency action has been arbitrary
and capricious. The Oregon appellate
courts may restate the argument in
terms of one of the statutory standards
of review (see, e.g., Forelaws on Bd. v.
Energy Facility Siting Council, 306 Ore.
205, 223, 760 P.2d 212 (1988), also referring to the term “arbitrary and capricious” as “conclusory epithets”; Cherry
v. Dep’t of Educ., 253 Ore. App. 90, 94,
289 P3d 344 (2012)).
Review of Orders for Consistency with
Interpretive and Policy Statements
The Oregon APA does not authorize
agencies to adopt interpretive or policy
statements outside of rulemaking; ORS
183.482( 8)(b)(B) provides as grounds
for remand, consideration of whether
a contested case order is inconsistent
with an officially stated agency position
or a prior agency practice if the agency
does not explain the inconsistency. This
recognizes that agencies should act
consistently even with informal policies, interpretations, and practices.
In Washington, RCW 34.05.230 expressly encourages agencies “to advise
the public of its current opinions, approaches, and likely courses of action
by means of interpretive or policy statements. Current interpretive and policy
statements are advisory only. To better
inform and involve the public, an agency
is encouraged to convert long-standing
interpretive and policy statements into
rules.” Consistent with the advisory nature of interpretive or policy statements,
judicial review focuses on the consistency with the rule; There is no express review of an action for consistency with an
interpretive or policy statement. RCW
34.05.570( 3)(h) provides as grounds
for granting relief from an agency decision that its “order is inconsistent with a
rule of the agency unless the agency explains the inconsistency by stating facts
and reasons to demonstrate a rational
basis for inconsistency.”
Deference to an agency’s interpretation
of the statutes it administers differs in the
two states. In Oregon, the level of deference to an agency’s interpretation of a statutory term depends on the type of statutory term at issue (Springfield Educ. Ass’n.
v. Springfield School Dist. No. 19, 290 Ore.
217, 221–30, 621 P.2d 547 (1980)), explaining the difference between exact terms,
which need no interpretation; inexact
terms, which contain a complete express
of legislative intent and leave no role for
agency interpretation; and delegative
terms, for which the legislature provided a
role for the agency to complete).
In Washington, the appellate courts
accord deference to an agency’s interpretation of a statute if “ 1) the particular
agency is charged with the administration and enforcement of the statute, 2)
the statute is ambiguous, and 3) the
statute falls within the agency’s special
expertise” (Bostain v. Food Express,
Inc., 159 Wn.2d 700, 716, 153 P.3d 846
(2007)). But there are several situations
in which Washington courts do not
defer to the agency, such as an agency
determining the scope of its authority,
e.g., US West Commc’ns, Inc. v. Wash.
Utils. and Transp. Comm’n, 134 Wn.2d
48, 56, 949 P.2d 1321 (1997), and when
the court is reviewing a “pure question
of law,” e.g., Hunter v. Univ. of Wash.,
101 Wn. App. 283, 292 n. 3, 2 P.3d 1022
(2000). Washington courts also commonly explain that the court retains the
ultimate authority to interpret a statute.
Courts in both states defer to an
agency’s interpretation of the rules it
adopts, e.g., Don’t Waste Oregon Comm.
v. Energy Facility Siting Council, 320 Or
132, 142, 881 P2d 119 (1994); Cobra Roofing Serv., Inc. v. Dep’t of Labor & Indus.,
122 Wn App 402, 409, 97 P3d 17 (2004).
As with their statutory deference cases,
Washington courts almost always caution that the courts retain the ultimate
responsibility to interpret a regulation.
Although there are many similarities
between the Oregon and Washington
APAs, there are critical differences.
Practitioners who practice primarily in
one state, but dabble in the other, should
carefully study the APA and the court’s
interpretation and application. NWL
John Gray was
admitted to practice in Washington in 1977.
He has worked
as an assistant
city attorney, a
ner, an assistant attorney general,
and an administrative law judge.
Semi-retired, he currently works
part-time at the Office of Adminis-
He is a past chair
of the WSBA
Law Section. He
can be reached
Jeffrey Litwak is in-house counsel to the Columbia River Gorge
Commission, the bi-state agency
for the Columbia River Gorge
National Scenic Area, and an
adjunct professor of law at Lewis
and Clark Law School, where he
teaches seminars on Oregon land
use and interstate compacts. He
has taught administrative law in
the past. He can be reached at jeff.