Heidgerken v. DNR

• Decision Date: 11 February 2000
• Docket Number: No. 23995-7-II.,23995-7-II.
• Citation: 99 Wash.App. 380,993 P.2d 934
• Parties: George F. HEIDGERKEN, Appellant, v. STATE of Washington, DEPARTMENT OF NATURAL RESOURCES, Respondent.
• Court: Washington Court of Appeals

993 P.2d 934

99 Wash.App. 380

George F. HEIDGERKEN, Appellant, v. STATE of Washington, DEPARTMENT OF NATURAL RESOURCES, Respondent.

No. 23995-7-II.

Court of Appeals of Washington, Division 2.

February 11, 2000.

Kay M. Brown, Atty. Gen. Ofc. Nat. Res. Div., Olympia, for Respondent.

Craig Andrew Ritchie, Ritchie & Strohmeyer, Port Angeles, for Appellant.

SEINFELD, J.

George Heidgerken appeals a $10,000 civil penalty imposed by the Department of Natural Resources (DNR). The DNR fined Heidgerken because of his failure to comply with a Forest Practices Act reforestation order. Heidgerken contends that DNR improperly applied the penalty statute retroactively. We conclude that because Heidgerken violated the statute after its effective date, DNR applied it prospectively. Further, we find no merit to Heidgerken's other issues. Thus, we affirm.

FACTS

Heidgerken owned 340 acres of forested land in Grays Harbor County. In 1989, he filed a forest practices application for the site wherein he (1) sought permission to harvest 270 acres of timber from the site, (2) declared that he did not intend to develop the land within 3 years, and (3) declared that he would reforest the site by planting Douglas Fir seedlings at the density of 300 stems per acre by 1991. DNR approved the application.

Heidgerken completed the harvest in mid-1990; the harvest yielded approximately $2,325,000 in gross income and $312,000 in net proceeds. It would have cost between $16,000 and $20,000 to reforest the land following the harvest. But Heidgerken reforested only about 50 of the 270 harvested acres.

Heidgerken had no plan to develop the property when he filed the forest practices application. Although he later made subdivision plans, he never used the site in a manner incompatible with timber growing. At the time of the forest practices application, the county taxed the property as timberland. In June 1994, the county notified Heidgerken that it had changed the zoning and tax status of the property to residential.

On June 1, 1993, Heidgerken sent DNR a letter expressing his intent to reforest the property, and on June 18 he sent a follow-up letter confirming his intent to begin reforestation in the winter of 1993. On June 24, 1993, DNR sent Heidgerken a notice to comply ordering him to reforest the property by February 15, 1994. Heidgerken replied with a letter stating that he had retained a contractor to do the planting and would complete reforestation in January 1994.

But on January 10, 1994, Heidgerken wrote DNR that he would be unable to meet the February 1994 deadline and wanted a one year extension. DNR denied this request.

Heidgerken failed to reforest the property by February 15, 1994. Consequently, DNR assessed a $10,000 civil penalty against him on March 10, 1994.

On March 21, 1994, Heidgerken sent DNR a request that it set the matter aside until June 1994. The letter stated that subsequent purchasers of the property had the reforestation obligation. But DNR, noting that a recent title report listed Heidgerken as record owner, denied the requested relief. And on May 2, 1994, DNR sent Heidgerken a notice of intent to disapprove future forest practices applications for the period of one year because of his failure to reforest the property and to pay the civil penalty.

Heidgerken appealed to the Forest Practices Appeals Board (the Board). While the appeal was pending, Heidgerken and DNR stipulated to a conditional dismissal of the penalties if Heidgerken reforested all portions of the 270 acres by December 30, 1995, regardless of any ownership dispute with the purported purchasers of the property. Because Heidgerken did not perform the reforestation as agreed, DNR reinstated the penalties and Heidgerken's appeal to the Board resumed.

The Board affirmed the $10,000 civil penalty and notice of intent to disapprove and the Grays Harbor County Superior Court affirmed the Board's decision.

DISCUSSION

FOREST PRACTICES ACT

The Washington Administrative Procedures Act (APA), RCW 34.05.510 through .598, governs our review of the Board's decision. RCW 76.09.230(5). We "look to the administrative record, and not the superior court findings or conclusions, when conducting review." Waste Management of Seattle, Inc. v. Utilities & Transp. Comm'n, 123 Wash.2d 621, 633, 869 P.2d 1034 (1994) (citing King County v. State Boundary Review Bd., 122 Wash.2d 648, 672-73, 860 P.2d 1024 (1993); Fisher v. Employment Sec. Dep't, 63 Wash.App. 770, 772-73, 822 P.2d 791 (1992)). Heidgerken, as the party asserting the invalidity of DNR's action, bears the burden of demonstrating that invalidity. RCW 34.05.570(1)(a); Hillis v. Department of Ecology, 131 Wash.2d 373, 381, 932 P.2d 139 (1997).

We apply a substantial evidence standard to the agency's findings of fact but review de novo its conclusions of law. Terry v. Employment Sec. Dep't, 82 Wash.App. 745, 748-49, 919 P.2d 111 (1996). Unchallenged findings of fact are verities on appeal. Hilltop Terrace Homeowner's Ass'n v. Island County, 126 Wash.2d 22, 30, 891 P.2d 29 (1995); Tucker v. Columbia River Gorge Comm'n, 73 Wash.App. 74, 82, 867 P.2d 686 (1994). Heidgerken does not assign error to any of the Board's factual findings.

Under the APA, a reviewing court will reverse an administrative decision that (1) violates a constitutional provision on its face or as applied; (2) lies outside the agency's lawful authority or jurisdiction; (3) is a result of an erroneous interpretation or application of the law; (4) is not based on substantial evidence; or (5) is arbitrary or capricious. RCW 34.05.570(3); see also Tapper v. Employment Sec. Dep't, 122 Wash.2d 397, 402, 858 P.2d 494 (1993)

. Heidgerken does not address directly any of the above grounds for reversal. But he suggests generally that DNR erroneously interpreted or applied two provisions of the Forest Practices Act of 1974(FPA), RCW 76.09.140 and .170.

The construction of a statute is a question of law subject to de novo review. Rettkowski v. Department of Ecology, 128 Wash.2d 508, 515, 910 P.2d 462 (1996); Waste Management, 123 Wash.2d at 627, 869 P.2d 1034. Our goal in interpreting statutes is to ascertain and give effect to legislative intent. City of Redmond v. Central Puget Sound Growth Management Hearings Bd., 136 Wash.2d 38, 52, 959 P.2d 1091 (1998). We construe related statutes as a whole, trying to give effect to all the language and to harmonize all provisions. City of Seattle v. Fontanilla, 128 Wash.2d 492, 498, 909 P.2d 1294 (1996). One purpose of the FPA is to "[a]fford protection to, promote, foster and encourage timber growth, and require such minimum reforestation of commercial tree species on forest lands as will reasonably utilize the timber growing capacity of the soil following current timber harvest[.]" RCW 76.09.010(2)(a). Accordingly, a forest operator is obligated to reforest cleared land within three years after completion of a logging operation.¹ RCW 76.09.070.

When a forest operator violates or deviates from the FPA or related regulations, DNR can attempt to enforce compliance. In appropriate circumstances, it may serve a stop-work order upon the operator. RCW 76.09.080. But where a stop-work order is unnecessary, DNR may issue a notice of failure to comply that sets forth (1) a description of the violation, (2) the relevant provisions of the FPA or regulations, (3) the operator's right to request a hearing, and (4) the "specific course of action ordered by the department ... to correct such failure to comply[.]" RCW 76.09.090. DNR served Heidgerken with a notice of failure to comply that met these statutory requirements and required reforestation by February 15, 1994.

Although an operator may request a DNR hearing to review a notice to comply, RCW 76.09.090(3), Heidgerken never sought such a hearing. The notice of failure to comply constituted DNR's final order. RCW 76.09.090(3).

On March 10, 1994, DNR imposed the penalty for Heidgerken's failure to comply with this final order. "Every person who violates any provision of RCW 76.09.010 through 76.09.280 or of the forest practice rules ... shall be subject to a penalty in an amount of not more than ten thousand dollars for every such violation." RCW 76.09.170(1); see also WAC 222-46-060 (giving DNR discretion to adjust penalty in light of factors surrounding the violation).²

Absent an application for remission or mitigation of the penalty, it was due 30 days after the assessment. RCW 76.09.170(5); see also WAC 222-46-060(7) (rule pertaining to violator's right to seek mitigation or remission). Heidgerken sent a letter to DNR requesting remission on March 21, 1994.

DNR denied remission or mitigation on April 27, 1994. The penalty then became payable 30 days from that date unless Heidgerken filed an appeal with the Board. RCW 76.09.170(5); see also WAC 222-46-060(9) (rule pertaining to time penalty is due). Heidgerken filed his appeal on May 24, 1994.

When an operator has failed to comply with a final order of DNR or has failed to pay a civil penalty under RCW 76.09.170, DNR "may disapprove for up to one year any forest practices application[.]" Former RCW 76.09.140 (1993). On May 2, 1994, DNR gave Heidgerken notice that it would disapprove any forest practices applications he might submit for one year because of (1) his failure to comply with the DNR order to reforest by February 15, 1994, and (2) his failure to pay the $10,000 penalty imposed under RCW 76.09.170.

RETROACATIVITY AND VESTED RIGHTS

Heidgerken asserts that the $10,000 fine was an invalid retroactive application of an amended version of RCW 76.09.170. He argues that because he submitted his forest practices application in 1989, he had a vested right to incur no more than the $500 penalty contained in former RCW 76.09.170.³

Former RCW 76.09.170 (1975) provided for a penalty of not more than $500 for a violation of a forest practices regulation. The Legislature amended the statute, effective ...