Campbell v. Com., Dept. of Forestry, Record No. 2287-04-2.
| Decision Date | 19 July 2005 |
| Docket Number | Record No. 2288-04-2.,Record No. 2287-04-2. |
| Citation | 46 Va. App. 91,616 S.E.2d 33 |
| Parties | Tinsley CAMPBELL and Campbell Lumber Co., Inc. v. COMMONWEALTH of Virginia DEPARTMENT OF FORESTRY. Harry D. Campbell and Campbell Lumber Co., Inc. v. Commonwealth of Virginia Department of Forestry. |
| Court | Virginia Supreme Court |
J. Robert Snoddy, III, for appellants.
Roger L. Chaffe, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General; John K. Byrum, Jr., Assistant Attorney General, on briefs), for appellee.
Present: FRANK and KELSEY, JJ., and OVERTON, Senior Judge.
The Virginia Department of Forestry imposed civil penalties against Tinsley Campbell, Harry Campbell, and Campbell Lumber Co. for violating administrative emergency orders issued under Code § 10.1-1181.2(C), an environmental statute governing silvicultural activities affecting water quality. Seeking to vacate these penalties, the Campbells and Campbell Lumber Co. appealed to the circuit court under the Virginia Administrative Process Act (VAPA), Code § 2.2-4000 et seq. The circuit court upheld the agency's decision.
We affirm in part, reverse in part, and remand. With one exception, substantial evidence supports the agency's decision to impose civil penalties and the manner in which the penalties were calculated. The fines assessed against Tinsley Campbell and Campbell Lumber Co. in Record No. 2287-04-2, however, must be remanded for recalculation.
Tinsley Campbell, a logging contractor for Campbell Lumber Co. (CLC), supervised a timber harvesting project on a tract of land owned by James Egan, Jr. Upon being notified of the project, the Virginia Department of Forestry sent E.L. Embrey to conduct a routine inspection on April 22, 2003. Embrey found water quality problems with two stream crossings on a haul road. The next day, April 23, Embrey met with Tinsley and Egan to explain the situation and to point out corrective actions necessary to remedy the problem. Pursuant to Code § 10.1-1181.2(C), Embrey issued a "Water Quality Emergency Special Order," which both Tinsley, the logger, and Egan, the landowner, signed that day. A copy was sent by certified mail to CLC, the timber owner.
The emergency order detailed the required corrective actions and ordered that they be completed by May 2, 2003. In the middle of the form, in all capital letters, it stated: "THIS EMERGENCY SPECIAL ORDER REQUIRES YOU TO STOP WORK IMMEDIATELY EXCEPT FOR CORRECTIVE ACTION." The emergency order made equally clear that failure "to comply may result in the issuance of civil penalties."
Tinsley stopped logging on April 23 and started work on the corrective actions required by the emergency order to protect the stream crossings. The next day, his father, Harry Campbell, called Embrey and asked him to inspect the corrective actions taken and "to see if logging . . . could continue on the tract." Embrey and another inspector went to the site that day and concluded that additional corrective actions needed to be done before logging could recommence.
Tinsley went back to work on the corrective actions and completed what he thought would be sufficient by April 25. Without requesting a reinspection, Tinsley recommenced logging operations on that day. Three days later, on April 28, Embrey reinspected the site and discovered the ongoing logging operations. On April 29, Embrey issued a formal hearing notice citing Tinsley, CLC, and Egan for violating the stop-work directive. Egan followed up on April 30 with a letter of his own, demanding that Tinsley and CLC immediately stop all logging activities on his land. In response, Tinsley and CLC stopped logging on April 30. Embrey reinspected the site on May 5 and found the corrective actions taken by that date were sufficient to satisfy the conditions of the emergency order.
At the hearing, Embrey made clear he did not issue the citation based on the inadequacy or untimeliness of the corrective actions. Instead, Embrey testified, he issued the citation "solely based on the fact that the [emergency order] was violated when logging did resume on the tract." (Emphasis added.) Buck Kline, an engineer with the Department of Forestry, calculated a 7-day period of noncompliance from the day that Embrey "observed the haul road being used" to the "day the compliance check was made that showed that the road was in a stable, non-erodible condition." The start date of the 7-day period was April 28 and the end date was May 5.1 At no point in the hearing did either Embrey or Kline assert that Tinsley conducted logging operations on April 23 or 24 in violation of the emergency order.
Kline also explained the Department of Forestry's request for a penalty of $10,780 to be divided between Tinsley and CLC. The figure came from a penalty matrix worksheet that determined a proposed fine based upon the seriousness of the violation, the type of natural resource endangered, the culpability of the offenders, any prior history of noncompliance, and the presence or absence of good faith. The matrix produced a collective per diem penalty of $1,540, which was then multiplied by the 7-day period of noncompliance. The matrix also apportioned the $10,780 by attributing roughly 2/3 of the penalty to CLC and 1/3 to Tinsley.
After receiving this evidence, the hearing officer later issued a written "Findings of Fact and Conclusions of Law." In his written decision, the hearing officer imposed the 7-day fine in the exact amount determined by the penalty matrix prepared by Kline. Without explanation, however, the hearing officer used a different 7-day period. He began the period on April 23, the date of the emergency order, and ended the period on April 30, the date all logging ceased on the site.2 The hearing officer also inverted the apportionment of the matrix, assigning 2/3 of the fine against Tinsley and 1/3 against CLC. Without commenting on these discrepancies, the state forester issued a final agency order imposing the penalties outlined in the hearing officer's written findings.
Harry Campbell, Tinsley's father and a co-owner of CLC, engaged in timber harvesting on land owned jointly by him and his former wife, Betty Campbell, also a co-owner of CLC. On April 11, Embrey inspected this tract and found "a significant amount of water quality problems." He issued an emergency order and forwarded it by certified mail to Harry, who signed the receipt for the letter on April 14. The order required corrective measures to be completed by April 24. In the middle of the emergency order, in all capital letters, it stated: "THIS EMERGENCY SPECIAL ORDER REQUIRES YOU TO STOP WORK IMMEDIATELY EXCEPT FOR CORRECTIVE ACTION." It too provided that failure "to comply may result in the issuance of civil penalties."
When Embrey returned to the property on April 24, he found that logging had continued without interruption since at least April 14 and that "relatively little" of the corrective actions had been accomplished. Logging work ceased on or about April 24. Embrey and Kline reinspected the property on May 2. By then, substantial corrective actions had been taken, but Kline observed that "a lot of the work still had not been done." Given the unresolved "water quality concerns on the tract," Embrey reported on May 2 that the emergency order remained "still in effect."
At the administrative hearing, Harry testified that he had various conversations with Embrey and others during on-site inspections. No one told him to stop logging work while attempting to take the required corrective actions. Harry also testified that he did not read the emergency order, and thus, was unaware of the stop-work directive. The hearing officer rejected Harry's testimony and imposed a $58,520 fine, split evenly between Harry and CLC. The hearing officer adopted the 19-day fine calculation produced by the agency's penalty matrix.
Tinsley Campbell, Harry Campbell, and CLC appealed the agency's final orders to the circuit court. See Code § 10.1-1181.5 (). The circuit court affirmed the agency's decision. On appeal to us, the appellants argue the evidence presented to the hearing officer irrefutably contradicts his factual findings. The appellants also claim the agency's use of the penalty matrix violated its statutory duty to consider various factors under Code § 10.1-1181.3(A).
We hold that substantial evidence supports all but one aspect of the agency's decision. We also conclude the agency did not violate its statutory mandate by using the penalty matrix as a guide for calculating the civil penalties.
Under the VAPA, "the duty of the court with respect to issues of fact shall be limited to ascertaining whether there was substantial evidence in the agency record upon which the agency as the trier of the facts could reasonably find them to be as it did." Code § 2.2-4027; see Vasaio v. DMV, 42 Va.App. 190, 196, 590 S.E.2d 596, 599 (2004). We thus have authority to "reject agency factfinding `only if, considering the record as a whole, a reasonable mind would necessarily come to a different conclusion.'" Citland, Ltd. v. Commonwealth, 45 Va.App. 268, 274-75, 610 S.E.2d 321, 324 (2005) (quoting Mattaponi Indian Tribe v. Commonwealth, 43 Va.App. 690, 706, 601 S.E.2d 667, 675 (2004)) (emphasis in original).
Tinsley Campbell and CLC argue that the emergency order allowed them to resume logging on April 25 because, by then, the required corrective actions had been completed. It was entirely unnecessary, they thought, for the agency to reinspect the property and to specifically withdraw the stop-work directive. The hearing officer rejected this reading of the emergency order, holding that the "clear language of the [emerg...
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