Johnson v. Wash. Dep't of Fish

• Decision Date: 30 July 2013
• Docket Number: No. 42738–9–II.,42738–9–II.
• Citation: 175 Wash.App. 765,305 P.3d 1130
• Parties: Curtis JOHNSON, Respondent, v. WASHINGTON DEPARTMENT OF FISH AND WILDLIFE, Appellant.
• Court: Washington Court of Appeals

175 Wash.App. 765

305 P.3d 1130

Curtis JOHNSON, Respondent,

v.WASHINGTON DEPARTMENT OF FISH AND WILDLIFE, Appellant.

No. 42738–9–II.

Court of Appeals of Washington, Division 2.

July 30, 2013.

Michael Mackaman Young, Attorney General's Office, Olympia, WA, for Appellant.

Robert Joseph Cadranell II, Dennis John Mcglothin Olympic Law Group, PLLP, Seattle, WA, for Respondent.

PENOYAR, J.

[175 Wash.App. 768]¶ 1 Curtis Johnson applied two months late to renew his 2007 Dungeness crab coastal fishery license. The Department of Fish and Wildlife (Department) denied his renewal application and informed him that his failure to timely renew meant he was barred from renewing his license in subsequent years. Johnson appealed this decision to a hearings officer, who affirmed the Department. Johnson then appealed to Grays Harbor Superior Court, which reversed the Department and ordered it to reinstate Johnson's license. The Department appealed the superior court's decision to this court.¹ Johnson argues that the Department violated his procedural due process rights and that RCW 77.70.360 violates substantive due process. We hold that the Department did not violate Johnson's due process rights because he was afforded notice and a hearing and that RCW 77.70.360 is rationally related to protecting the fishery.

¶ 2 In the unpublished portion of the opinion, we address Johnson's additional arguments that (1) the Department erroneously interpreted and applied RCW 77.70.360 when it determined that his failure to timely renew his license in 2007 barred him from renewing it in subsequent years; (2) the statutes the Department relied on are unconstitutionally vague; (3) the Department is equitably estopped from denying his renewal application; and (4) he is entitled to attorney fees. We hold that the Department did not err in applying RCW 77.70.360 because it requires an applicant to have held a license in the previous year and Johnson's failure to renew his license in 2007 meant he did not hold a license in 2007. Additionally, the statutes are not unconstitutionally vague; equitable estoppel does not apply here because Johnson failed to prove that the Department made inconsistent statements; and we do not award Johnson attorney fees because he did not prevail. We reverse the trial court's order setting aside the Department's order and affirm the Department.

FACTS

¶ 3 Johnson failed to renew his Dungeness crab coastal fishery license in 2007, which resulted in his license permanently expiring. Johnson had held a Dungeness crab commercial fishing license since 1991. In 1995, the legislature limited entry into the Dungeness crab coastal fishery, providing that “the director shall issue no new Dungeness crab-coastal fishery licenses after December 31, 1995,” and that “[a] person may renew an existing license only if the person held the license sought to be renewed during the previous year.” RCW 77.70.360. The Department granted Johnson a “permanent” coastal fishery license in 1995. Clerk's Papers (CP) at 118. Johnson renewed this license every year until 2007.

¶ 4 Under RCW 77.65.030, the deadline to renew a commercial license is December 31 of the calendar year for which the license is sought. For example, a license holder has until December 31, 2013, to renew his 2013 license. Johnson did not attempt to renew his 2007 license until March 4, 2008, because he believed that he could not fish under his license that year. Johnson had leased his license to Kenneth Greenfield starting in the 2005–06 season ² but had difficulty contacting Greenfield thereafter. In the fall of 2007, Johnson found another fisher interested in leasing his license, so he called the Department to ask about changing the vessel designation for the license. Johnson testified that the Department told him he could not change the vessel designation for the license twice within two consecutive years and that he would have to wait until after 2007 to designate another vessel.³ Since he believed the designation restraints prevented him from using the license himself or leasing to another fisher, Johnson decided that it would be a waste of the permit fee to renew his license for 2007. Johnson said that during his conversations with the Department about vessel designations, the Department never reminded him that he needed to renew his license or that failure to do so would cause his license to permanently expire.

¶ 5 The Department usually mails renewal reminders in the fall, but Johnson testified that he did not receive one in 2007, likely because of mail delivery issues in his neighborhood. The reminders include the license's expiration date—December 31—but they do not indicate the consequences of failing to renew.

¶ 6 In early 2008, Johnson again tried to change the vessel designation for his license. The Department then informed him that he had not renewed his license in 2007, which meant that he could not renew it for 2008 or any subsequent year. Nevertheless, Johnson attempted to apply for renewal, and the Department denied his renewal application, stating that it was prohibited by statute from accepting applications after the December 31 deadline.

¶ 7 Johnson appealed to an administrative hearings officer. The hearings officer affirmed the permit denial and concluded that Johnson's failure to timely renew his license resulted in the license permanently expiring. The hearings officer concluded that RCW 77.65.030 required Johnson to renew his license by December 31, 2007, which he did not do, and that RCW 77.70.360, which states that a person may renew an existing license only if that person held the license sought to be renewed during the previous year, “means that when a ... license is not renewed it is no longer capable of being renewed in the future.” CP at 123. Johnson appealed to the superior court, which reversed the Department and ordered it to renew Johnson's license. The Department appeals.

ANALYSIS

I. Standard of Review

¶ 8 Under the Washington Administrative Procedures Act (APA),⁴ we sit in the same position as the superior court and apply the APA directly to the agency's administrative record. Burnham v. Dep't of Soc. & Health Servs., 115 Wash.App. 435, 438, 63 P.3d 816 (2003) (quoting City of Redmond v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 136 Wash.2d 38, 45, 959 P.2d 1091 (1998)). The party challenging the agency action bears the burden of demonstrating that the action was invalid. RCW 34.05.570(1)(a); Hillis v. Dep't of Ecology, 131 Wash.2d 373, 381, 932 P.2d 139 (1997). A court shall grant relief from an agency's order if the order violates constitutional provisions, the agency has erroneously interpreted or applied the law, or the order is not supported by substantial evidence. RCW 34.05.-570(3)(a), (d), (e).. Whether an agency's order violates the constitution and whether it has erroneously applied the law are questions of law that we review de novo. Hardee v. Dep't of Soc. & Health Servs., 172 Wash.2d 1, 7, 256 P.3d 339 (2011); Quadrant Corp. v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 154 Wash.2d 224, 233, 110 P.3d 1132 (2005). An agency order is supported by substantial evidence if there is “ ‘a sufficient quantity of evidence to persuade a fair-minded person of the truth or correctness of the order.’ ” Hardee, 172 Wash.2d at 7, 256 P.3d 339 (quoting Thurston County v. W. Wash. Growth Mgmt. Hearings Bd., 164 Wash.2d 329, 341, 190 P.3d 38 (2008)).

II. Procedural Due Process

¶ 9 Johnson first argues that the Department violated his procedural due process rights. Because Johnson received notice of the Department's actions and an administrative hearing in which he was able to present evidence and to examine the Department's witnesses, his argument fails.

¶ 10 The due process clause of the Fourteenth Amendment prohibits the state from depriving any person of life, liberty, or property without due process of law. U.S. Const. amend. XIV. Assuming, without deciding, that Johnson has a claim of entitlement to a license even though his right to renew expired, we address whether the Department provided adequate process.⁵

¶ 11 At a minimum, due process requires notice and an opportunity to be heard. Soundgarden v. Eikenberry, 123 Wash.2d 750, 768, 871 P.2d 1050 (1994). Notice must be reasonably calculated to inform the affected party of the pending action and of the opportunity to object. State v. Dolson, 138 Wash.2d 773, 777, 982 P.2d 100 (1999). The opportunity to be heard must be meaningful in time and manner. Morrison v. Dep't of Labor & Indus., 168 Wash.App. 269, 273, 277 P.3d 675,review denied,175 Wash.2d 1012, 287 P.3d 594 (2012) (quoting Downey v. Pierce County, 165 Wash.App. 152, 165, 267 P.3d 445 (2011)). To determine how much process is due, we balance the private interest involved; the risk of erroneous deprivation through the procedures involved and the value of additional procedures; and the government's interest, including the burdens that accompany additional procedures. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Due process is a flexible concept and the procedures required depend on the circumstances of a particular situation. Mathews, 424 U.S. at 334, 96 S.Ct. 893.

¶ 12 Here, Johnson received adequate notice that the Department was rejecting his renewal application. The Department sent him a letter dated March 14, 2008, containing the reasons for the denial and informing Johnson that he could request an administrative hearing to contest the denial. Johnson also received an opportunity to be heard. He had an administrative hearing before a hearings officer where he was represented by counsel and where he submitted evidence, gave his testimony, and questioned the Department's representative.

¶ 13 Johnson argues that this process was inadequate because he should have received pre-deprivation notice and opportunity for a hearing. His argument fails because, under the Mathews factors,...