Laymon v. DNR

Decision Date14 January 2000
Docket NumberNo. 23188-3-II.,23188-3-II.
Citation99 Wash.App. 518,994 P.2d 232
PartiesRobert D. Laymon and Pamela L. LAYMON, Husband and Wife, Appellants, v. The WASHINGTON STATE DEPARTMENT OF NATURAL RESOURCES; The Washington State Department of Fish and Wildlife; and The State of Washington, Respondents.
CourtWashington Court of Appeals

Thomas Charles Althauser, Olson Althauser Lawler & Samuelson, Centralia, WA, for Appellants.

John Edward Justice, Assistant Atty. General, Olympia, WA, for Respondents.


Robert and Pamela Laymon sued the Washington Department of Natural Resources (DNR), the Washington Department of Fish and Wildlife (DFW), and the State of Washington (collectively the State) alleging that administrative negligence led to the failure of the Laymons' real estate development project. The trial court granted summary judgment to the State. Because the Laymons failed to exhaust their administrative remedies before filing suit, we affirm.


The Laymons own forested land near Kalama. They planned to develop a residential housing tract on the property and, in July 1993, filed the necessary forest practices application with DNR.

The DNR paperwork included a State Environmental Policy Act (SEPA)1 environmental checklist wherein the Laymons indicated that there were no threatened or endangered species on or near their property. The Laymons claim that they went over the checklist with Lloyd Handlos, DNR forest practices coordinator, who gave them this information.

In August 1993, Kenneth Nimmo, an adjacent landowner who opposed the Laymons' development plans, reported to DFW the existence of a bald eagle nest on his property. He said that the pair of eagles residing therein had produced eaglets for the past three years. DFW confirmed the nest report, apparently relying mainly on Nimmo's description of it.

DNR approved the Laymons' application in September 1993. And the Laymons began logging operations in late December 1993.

On January 13, 1994, DNR forester Joel Rogauskas learned of the reported eagle nest. He then observed the nest with a DFW biologist who purportedly said "that it was possible the nest was used by an eagle."

On January 18, 1994, Rogauskas served the Laymons with a stop work order, alleging that the Laymons were conducting "[l]ogging within; mile of a recently discovered bald eagle nest site." The stop work order required the Laymons to "[s]top immediately all forest practice work within; mile of the known bald eagle nest ... until a bald eagle management plan is written and approved by... DFW." The order then carried the following notice:

The operator, timber owner or forest landowner may appeal this Stop Work Order to the Forest Practices Appeals Board. (See Title 223 WAC.) To be valid, any such appeal must be filed within fifteen (15) calendar days of 2/3/94 Date of Service. If an appeal is filed, you may request immediate relief from this Stop Work Order from the Forest Practices Appeals Board. The Stop Work Order must be complied with immediately, whether or not an appeal is filed. CONTACT Southwest Region Office with any questions, phone (206)-577-2025.

Clerk's Papers at 43.

Robert Laymon asked Rogauskas about filing an appeal with the Forest Practices Appeals Board (the Board). According to Laymon, Rogauskas responded that such an appeal would be outside the Board's jurisdiction because the stop work order concerned a bald eagle management plan, which was within DFW's control, not DNR's. A day or so later, Robert Laymon called the Southwest Region Office of DNR and spoke to region manager Jan Gano, one of Rogauskas' supervisors. Robert Laymon stated that Gano confirmed that an appeal would be useless because the Board would not act in a situation requiring a blad eagle management plan. Subsequently, the Laymons never filed an appeal with the Board.

About 10 days after DNR issued the stop work order, DFW presented the Laymons with a draft bald eagle management plan that contained significant restrictions on development. The bald eagle management plan also stated that DFW could review and amend the plan pursuant to WAC 232-12-292.

The Laymons insisted there could be no bald eagles on or adjacent to their property and refused to sign the plan. Nonetheless, when the Laymons' financial backers learned about the terms of the plan, they withdrew from the project. In June 1994, DFW determined that the bald eagle nest "never existed" and deleted it from its database.

In 1995, a certified specialist in avian ecology carried out a detailed examination of the suspected eagle's nest and concluded that the nest was most likely that of a squirrel. In the expert's opinion, "a person knowledgeable and experienced in the identification of bald eagle nests who observed the nest on the Nimmo property would not have concluded that it was a bald eagle's nest."

In 1997, the Laymons filed a claim in negligence against DFW, DNR, and the State. The complaint included a claim for negligent investigation against DFW.

The State moved for summary judgment, arguing that (1) the Laymons failed to exhaust administrative remedies, (2) the public duty doctrine precluded liability for breach of a duty to the Laymons as individuals, (3) the Laymons failed to mitigate their damages, and (4) Washington courts do not recognize a claim for negligent investigation. The trial court granted the motion, reasoning that the Laymons failed to exhaust their administrative remedies. The Laymons appeal.


When reviewing a grant of summary judgment, we engage in the same inquiry as the trial court. Bishop v. Miche, 137 Wash.2d 518, 523, 973 P.2d 465 (1999). Summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Bishop, 137 Wash.2d at 523,973 P.2d 465; Taggart v. State, 118 Wash.2d 195, 199, 822 P.2d 243 (1992). We consider the facts and reasonable inferences from the facts in the light most favorable to the nonmoving party. Bishop, 137 Wash.2d at 523,973 P.2d 465; Taggart, 118 Wash.2d at 199,822 P.2d 243. And we review questions of law de novo. Bishop, 137 Wash.2d at 523,973 P.2d 465.


The State claims that the trial court properly granted summary judgment because the Laymons did not appeal to the Board before filing the action. Thus, they failed to exhaust available administrative remedies.2 Nor did they seek DFW review of the bald eagle management plan. The Laymons respond, citing Concerned Land Owners v. King County, 64 Wash.App. 768, 777, 827 P.2d 1017 (1992), that the State is equitably estopped from asserting their failure to exhaust administrative remedies.3

It is well settled that a party aggrieved by governmental action must exhaust all available administrative remedies before filing suit. See CLEAN v. City of Spokane, 133 Wash.2d 455, 465, 947 P.2d 1169 (1997),

cert. denied, 525 U.S. 812, 119 S.Ct. 45, 142 L.Ed.2d 35 (1998); Smoke v. City of Seattle, 132 Wash.2d 214, 223-24, 937 P.2d 186 (1997). "Where an agency has an appeal procedure in place, an aggrieved person is required to seek redress under that procedure before seeking judicial review." CLEAN, 133 Wash.2d at 465,

947 P.2d 1169. Where, as here, the aggrieved party fails to show that it attempted to use the appropriate administrative appeals process, the trial court may properly dismiss the claim. CLEAN, 133 Wash.2d at 465,

947 P.2d 1169.

Moreover, a government defendant's claim that a plaintiff failed to exhaust administrative remedies before filing a tort action is really a question of proximate cause. Wolfe v. Bennett PS & E, Inc., 95 Wash.App. 71, 81 n. 7, 974 P.2d 355, review denied, 139 Wash.2d 1003, 989 P.2d 1140 (1999). Proximate cause consists of cause in fact and legal causation. City of Seattle v. Blume, 134 Wash.2d 243, 251, 947 P.2d 223 (1997); Hartley v. State, 103 Wash.2d 768, 777, 698 P.2d 77 (1985).

"Legal causation rests on policy considerations determining how far the consequences of a defendant's acts should extend." Blume, 134 Wash.2d at 252, 947 P.2d 223; Wolfe, 95 Wash.App. at 81, 974 P.2d 355. A court "must decide based on traditional principles of proximate causation whether or not a defendant was the cause of the injuries suffered and whether the duty to mitigate was met." Blume, 134 Wash.2d at 260, 947 P.2d 223. Consequently, a plaintiff's failure to employ available legal remedies to avoid resulting damages is analogous to a failure to mitigate damages.4 See Blume, 134 Wash.2d at 260,

947 P.2d 223.

A party claiming equitable estoppel against the government bears a most heavy burden. See, e.g., Department of Ecology v. Theodoratus, 135 Wash.2d 582, 599, 957 P.2d 1241 (1998)

. "Equitable estoppel against the government is not favored." Theodoratus, 135 Wash.2d at 599,

957 P.2d 1241 (citing Kramarevcky v. Department of Social & Health Serv., 122 Wash.2d 738, 743, 863 P.2d 535 (1993)).

For equitable estoppel to apply, the Laymons must prove: "(1) an admission, statement or act inconsistent with a claim later asserted; (2) reasonable reliance on that admission, statement, or act by the other party; and (3) injury to the relying party if the court permits the first party to contradict or repudiate the admission, statement or act." Theodoratus, 135 Wash.2d at 599, 957 P.2d 1241 (citing Berschauer/Phillips Constr. Co. v. Seattle Sch. Dist. No. 1, 124 Wash.2d 816, 831, 881 P.2d 986 (1994)). The claimant must prove each element by clear, cogent, and convincing evidence. Theodoratus, 135 Wash.2d at 599, 957 P.2d 1241; Kramarevcky, 122 Wash.2d at 744, 863 P.2d 535.

Here, the State denies the Laymons' allegation that DNR employees told Robert Laymon it would be futile to appeal the stop work order. In response to Robert Laymon's affidavit, the State contends that the conflict in evidence is immaterial because the alleged statements...

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