Johnson Forestry v. Wash. State Dnr

• Decision Date: 04 January 2006
• Docket Number: No. 32307-9-II.,32307-9-II.
• Citation: 131 Wn. App. 13,126 P.3d 45
• Parties: JOHNSON FORESTRY CONTRACTING, INC., a Washington corporation, Appellant, v. WASHINGTON STATE DEPARTMENT OF NATURAL RESOURCES, Respondent.
• Court: Washington Supreme Court

126 P.3d 45

131 Wn. App. 13

JOHNSON FORESTRY CONTRACTING, INC., a Washington corporation, Appellant, v. WASHINGTON STATE DEPARTMENT OF NATURAL RESOURCES, Respondent.

No. 32307-9-II.

Court of Appeals of Washington, Division 2.

November 22, 2005.

As Amended and Publication Ordered January 4, 2006.

Jack Lee Burtch, Attorney at Law, Aberdeen, WA, for Appellant(s).

Edward David Callow, Atty. General of Washington, Olympia, WA, for Respondent(s).

Bruce L. Turcott, Office of the Attorney General, for Other Party Forest Practices Appeal Board.

BRIDGEWATER, J.

¶ 1 Johnson Forestry Contracting, Inc. (Johnson Forestry) appeals from an order affirming civil penalties for violations of the Forest Practices Act. We affirm.

¶ 2 Harvey Johnson, of Johnson Forestry, contacted the Department of Natural Resources (DNR) in Pacific County, Washington, to express his intentions to log portions of Section 5 and Section 8 of Township 10 North, Range 9 West. Johnson submitted an application to DNR but erroneously omitted Section 5. On January 27, 2000, DNR approved Johnson Forestry's Forest Practices application to harvest timber on property located in Section 8. DNR also required, as condition for approval, a 100-foot Riparian management zone (RMZ).¹

¶ 3 On November 20, DNR conducted a site visit and discovered Johnson Forestry had deviated from the conditions of the application, in violation of WAC 222-20-060.² Specifically, DNR found that Johnson Forestry harvested timber in Section 5. DNR also found that Johnson Forestry had cut lumber within 25 feet of a Type-1 water body. In response to the violations, DNR issued two notices to comply (NTCs) specifying appropriate remedial measures.³

¶ 4 In December, Johnson admitted to DNR foresters that Johnson Forestry did conduct the forest practices specified in the NTCs. Moreover, in its brief to this court, Johnson Forestry concedes, "there were sufficient facts to justify a finding of violations of the Forestry Practices Act." Br. of Appellant at 3.

¶ 5 On March 27, 2001, Johnson requested a brief adjudicative proceeding (BAP) through his counsel regarding the alleged violations identified in the NTCs. See chapter 34.05.482,.485 RCW. Counsel also submitted a request in writing to DNR asking that "further notices, including notice of hearing dates, are to be served on [counsel]." Administrative Record (AR) at 89.

¶ 6 The BAP took place on March 15, 2002.⁴ On March 25, DNR issued a final order affirming both NTCs. On April 24, Johnson Forestry appealed this order to the Forestry Practices Appeal Board (Board).

¶ 7 On October 25, 2001, while the BAP was pending, DNR issued Johnson an $8,000 civil penalty no. 00-C-WQT (civil penalty) under RCW 76.09.050⁵ and WAC 222-20-010⁶ for Johnson Forestry's violations of the application's conditions. DNR served the penalty directly on Johnson via certified mail. Johnson signed the return receipt on October 31. DNR did not serve a copy of the penalty on Johnson Forestry's counsel.

¶ 8 Johnson Forestry did not exercise its right under RCW 76.09.170(3) to request remission or mitigation of a civil penalty. Nor did Johnson Forestry file an appeal within 30 days of receiving the penalty as RCW 76.09.170(4) required. Rather, Johnson Forestry later included a challenge to the civil penalty in its appeal of the NTCs to the Board.

¶ 9 On August 19, 2003, the Board granted a motion for summary judgment in favor of DNR, holding that Johnson Forestry presented no genuine issues of material fact regarding the NTCs. Regarding the civil penalty, the Board reasoned that Johnson Forestry did not file a timely application for remission or mitigation or timely appeal as required under RCW 76.90.170. Further, because Johnson Forestry neglected to file for remission or mitigation or file an appeal in compliance with the statutory deadline, the civil penalty "became final, due and payable." Clerk's Papers at (CP) at 17. The Board concluded that once final, the penalty was irrevocable. Therefore, the Board held that it did not have jurisdiction to hear the appeal.

¶ 10 On September 17, 2003, Johnson Forestry appealed the Board's decision to the Thurston County Superior Court, challenging the portion of the decision that dismissed his appeal regarding the civil penalty as untimely and arguing improper notice. On September 3, 2004, the superior court affirmed the Board's decision.

I. Standard of Review

A. Administrative Procedures Act Standard

¶ 11 In reviewing an administrative action, this court sits in the same position as the trial court and applies the Administrative Procedure Act (APA) standards directly to the agency's administrative record. Superior Asphalt & Concrete Co. v. Dep't of Labor & Indus., 112 Wash.App. 291, 296, 49 P.3d 135 (2002) (citing Tapper v. Employment Sec. Dep't, 122 Wash.2d 397, 402, 858 P.2d 494 (1993)), review denied, 149 Wash.2d 1003 70 P.3d 964 (2003). As the challenging party, Johnson Forestry bears the burden of demonstrating the invalidity of the agency action. RCW 34.05.570(1)(a). RCW 34.05.570(3) establishes nine grounds on which a party may challenge an agency's actions. Quadrant Corp. v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 154 Wash.2d 224, 233, 110 P.3d 1132 (2005).

¶ 12 Here, although not expressly stated, it appears that Johnson Forestry challenges on grounds that the agency erroneously interpreted or applied the law. See RCW 34.05.570(3)(d). Johnson Forestry contends that the trial court erred, as a matter of law, when it affirmed the Board decision to enter a summary judgment in DNR's favor.

B. Summary Judgment Standard

¶ 13 Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). We review summary judgment de novo, viewing the facts and all reasonable inferences from them in the light most favorable to the nonmoving party. Atherton Condo. Apartment Owners Ass'n Bd. of Dirs. v. Blume Dev. Co., 115 Wash.2d 506, 516, 799 P.2d 250 (1990).

¶ 14 The APA does not expressly authorize summary judgments, but case law has established that agencies may employ summary proceedings. Kettle Range Conservation Group v. Dep't of Natural Res., 120 Wash.App. 434, 456, 85 P.3d 894 (2003) (citing Eastlake Cmty. Council v. City of Seattle, 64 Wash.App. 273, 276, 823 P.2d 1132, review denied, 119 Wash.2d 1005, 832 P.2d 488 (1992)), review denied, 152 Wash.2d 1026, 101 P.3d 421 (2004). Thus, the Board's regulations allow motions for summary judgment in accordance with CR 56. WAC 223-08-148(1).

¶ 15 Because this matter arises from a summary judgment and the facts are undisputed, we determine whether the Board's decision was erroneous as a matter of law. We review questions of law under RCW 34.05.570(3)(d) de novo but accord substantial weight to the agency's interpretation of the statutes it administers. Superior Asphalt, 112 Wash.App. at 296, 49 P.3d 135 (citing Everett Concrete Prods., Inc. v. Dep't of Labor & Indus., 109 Wash.2d 819, 823, 748 P.2d 1112 (1988)).

II. Service of Civil Penalty

¶ 16 Johnson Forestry contends that DNR was obligated to serve the civil penalty on counsel because, after DNR issued the NTCs, Johnson Forestry requested that all further notices be served on its counsel. Johnson Forestry also argues that, under WAC 223-08-055, DNR was obligated to serve Johnson Forestry's civil penalty on counsel. These arguments are misplaced.

¶ 17 RCW 76.09.170 expressly requires DNR to serve notice of civil penalties by certified mail to "the person incurring... the violation." RCW 76.09.170(3). Nonetheless, Johnson Forestry apparently asserts that, because it requested future service on counsel, service on Johnson Forestry was not proper, thereby excusing the statutory appeal procedure. Although this court has never addressed whether service directly on a violator, rather than a violator's attorney, is proper, Grasser v. Blakkolb, 12 Wash.App. 529, 530, 530 P.2d 684, review denied, 85 Wash.2d 1005 (1975), provides sufficient legal guidance.

¶ 18 In Grasser, an administrator of an estate rejected a creditor's claim and sent the rejection directly to the claimant rather than claimant's counsel. Grasser, 12 Wash.App. at 530, 530 P.2d 684. The administrator sent the claim in compliance with RCW 11.40.030, which required that a rejection notice be sent by personal service or registered mail. The mail was returned, undelivered. Grasser, 12 Wash.App. at 530-31, 530 P.2d 684. The Grasser court found that "[t]he notice provision is for the protection of the claimant.... [A]n administrator is not required to serve claimant's attorney." Grasser, 12 Wash.App. at 531, 530 P.2d 684. Furthermore, the general rule is that "when a statute requires notice be served upon a person for the purpose of creating liabilities or determining rights, personal service is intended, unless some other mode of service is expressly authorized." Grasser, 12 Wash App. at 531, 530 P.2d 684 (quoting Robel v. Highline Pub. Sch. Dist. No. 401, 65 Wash.2d 477, 482, 398 P.2d 1 (1965)).

¶ 19 Here, RCW 76.09.170 expressly requires DNR to serve notice of civil penalties by certified mail to "the person incurring ... the violation." RCW 76.09.170(3). The statute does not provide for an alternative mode of service. DNR complied with the express requirements of the statute when it sent notice of the civil penalty via certified mail to Johnson Forestry. Under the statute, DNR was not required to serve Johnson Forestry's counsel. Furthermore, the evidence shows that Johnson received the certified letter, signed for it himself, and verbally indicated to a DNR employee that he would forward the penalty notice to his counsel.

¶ 20 WAC 223-08-055, on which Johnson Forestry relies, allows counsel to represent a party before the Board. But, WAC 223-08-055 expressly applies only to the Board. WAC 223-08-001. Further, under WAC 223-08-055, when counsel files a...