Smith & Lowney, p.l.l.c.
2317 East John Street
Seattle, Washington 98112
(206) 860-2883, Fax (206) 860-4187

November 11, 1999

Via Fax (360) 336-3488

C. Thomas Moser, Hearing Examiner Pro Tem
Skagit County Planning and Permit Center
700 S. Second Street - Room 204
Mount Vernon, WA 98273

Re: Administrative Appeal of Randy Previs, AP 98 0400

Dear Hearing Examiner Moser:

Thank you for providing Evergreen Islands, and the public generally, the opportunity to submit additional comments for the record in the Administrative Appeal of Randy Previs.

We would like to focus your attention on the following points of fact, law, and policy.

I. FACTS

• Mr. Previs undeniably conducted several non-exempt forest practices, including road construction well in excess of 600 feet, extensive clearing, and salvage logging (including pulling roots). After reviewing all the facts and carefully considering both the law and the policy implications, DNR repeatedly confirmed - in writing - that a Forest Practices Permit was required here. As a result, the Appellant's entire legal argument is based on a hypothetical that does not apply to the facts presented - Mr. Previs was legally required to apply for a permit under the Forest Practices Act.
  
• Mr. Previs quite simply never applied for any permit before beginning work on his road construction, clearing and tree harvest operation. He never did what the law requires every citizen to do in determining whether he needed to apply for a permit. The record confirms that he completely failed in basic diligence. By his own testimony, the only thing he did before bulldozing a subdivision road through the forest was to call the County and DNR one time, over a year before the work began, with a general description of his plans and some basic questions. (See, Exhibit 61, Declaration of Michele S. Bodtke, Excerpts of Hearing Transcript, "Exhibit B" at 2-3.) Appellant never even called back in 1998 to double-check his erroneous conclusions.
  
• Mr. Previs's assertion of a good faith belief that he needed no permit is simply not credible. All of the repetitive, hearsay testimony about what Loren Wheeler said involves conversations and meetings that took place long after the work was done. Tellingly, Mr. Previs offered no plausible explanation for his failure to get a fill and grade permit from Skagit County before project startup. The clear pattern is reflected in the County's Complaint Investigation Log, Exhibit 15 at 2: "it is typical for Previs not to get permits."
  
• Mr. Previs obviously ignored the voluminous information and wealth of detail included in the Forest Practice Application packet. As explained at the Hearing, there are many things in the packet - including the application form, the instructions, the sample application, and the conversion statement - which unmistakably indicate that an application is required for a project on forest land involving road construction, timber harvest, and conversion to a residential development. Further, there is nothing in that packet that suggests Mr. Previs would not need to file an application. For whatever reason, Mr. Previs decided to ignore all of the materials DNR sent him.
  
• Mr. Previs's last-minute fabrication - the assertion that his "harvest" was completely separate from and had nothing to do with his road construction - is yet another attempted fraud on the court. The very decision on appeal - Director Karsh's October 27, 1998 letter - asks: "Did harvesting occur when trees were cleared and/or removed as part of the roadway construction on your property." (See, Exhibit 9 at 1 (emphasis added.)) Indeed, Mr. Previs's own lawyers twice described his project as "right of way clearing" (see, Exhibit 17-D at 1, and Exhibit 17-C at 3). And DNR's Jim Cahill concluded that "Timber had been harvested in association with the road construction activity as evidenced by logs stacked in at least two decks." (See, Exhibit 6 at 2.) Mr. Previs's tree harvesting was unmistakably part and parcel of his unpermitted road construction and clearing activities.
  
• Apparently operating on the assumption that it is easier to get forgiveness than permission, Mr. Previs decided to bulldoze first, and hire lawyers later. Mr. Previs is a licensed general contractor whose corporation - Seavestco, Inc. - is in the business of subdividing real estate. (See, Exh. 53.) His behavior is completely unacceptable.
  
• Through sympathetic witnesses, the Appellant has suggested that the moratorium is unfairly preventing him from building a "dream home" for his family. This is not true - Appellant could readily secure a "waiver" for a single family home under SCC 14.06.094(6). The best explanation for Mr. Previs's disinclination to apply for a waiver is his reluctance to "lay his cards on the table" and reveal his true subdivision plans. Where waiver is sought for multiple lots, the Code requires a public hearing. SCC 14.06.094(6)(b). (It also bears noting that despite testimony about the "mitigation plan" that has been prepared, no actual mitigation has been performed to date. Waiver requires actual mitigation. SCC 14.06.090(6)(c).

I. LAW

• "[T]he agency's interpretation should be upheld if it reflects a plausible construction of the language of the statute and is not contrary to legislative intent." Alpine Lakes Protection Society v. Washington State Dept. of Natural Resources, 979 P.2d 929, 936 (1999).
  
• The Administrative Interpretation was made only after an extraordinarily careful review process. As the record confirms,
  • DNR conducted a workshop with the Permit Center on August 4, 1998;
  • DNR sent Mr. Karsh its views in a letter of August 25, 1998 (Exh. 6);
  • Permit Center staff concurred in DNR's determinations (Exh. 35);
  • The Director met with DNR in Sedro-Wooley on September 16, 1998;
  • Mr. Karsh considered two separate letter-briefs from Appellant (Exhibits 17-C and 17-D);
  • Mr. Karsh wrote back to DNR, requesting additional input (Exhibit 10);
  • Mr. Karsh considered a letter-brief from Evergreen Islands (Exhibit 17-A); and
  • Mr. Karsh considered a second letter from DNR (Exhibit 5).
  • DNR's decision in this case was determined after consultations with no less than three levels of agency management.
  • Finally, Mr. Karsh issued the requested interpretation - but in doing so, as he testified, he "punted." He deferred to DNR.

The Hearing Examiner should do likewise.

• The Forest Practices Appeal Board has "exclusive jurisdiction to hear appeals arising from an action or determination by the Department" - by DNR. See, RCW 76.09.220(7). Under the law, the Appellant cannot use this forum to challenge DNR's determinations that harvesting occurred, that he needed a forest practices permit, or that the FPA authorizes a moratorium here.
  
• The Hearing Examiner must disregard Appellant's examination of County employees concerning how the law should be interpreted. As the Washington Supreme Court explained, "[t]he first problem with reliance on trial testimony is that the meaning of a statute's terms is a question of law; the question is not one amenable to resolution based upon trial testimony." Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 814, 828 P.2d 549 (1992), citing, State v. McCormack, 117 Wash.2d 141, 812 P.2d 483 (1991) (interpretation of statute is question of law).
  
• The appeal fails under the plain language of the statute ("When harvesting takes place without an application, the local governmental entity shall impose the six-year moratorium[.]" RCW 76.09.060(3)(b)(i)(C)). The Appellant's harvesting took place without an application, and Appellant was legally required to submit an application.
  
• There is no legal authority supporting the Appellant's argument: none of the dictionary definitions require commercial intent in "harvesting," and there are no cases requiring the County and DNR to disregard the Appellant's unpermitted forest practices in imposing the moratorium.
  
• The Appellant's proposed analysis is flatly rejected in an analogous U.S. Supreme Court case involving the Clean Water Act - PUD No. 1 of Jefferson County v. Washington Department of Ecology, 511 U.S. 700, 128 L.Ed.2d 716, 114 S.Ct. 1900 (1994). Under section 401 of the Clean Water Act, applicants for federal permits to conduct activities which may result in any "discharge" into navigable waters must get state certification that the discharges will comply with the Act. See, CWA § 401, 33 U.S.C. § 1341. In PUD No. 1, the U.S. Supreme Court summarily concluded,

"Because a federal license is required, and because the project may result in discharges into the Dosewallips River, petitioners are also required to obtain State certification of the project pursuant to [CWA] § 401."

PUD No. 1, 114 S.Ct. at 1907. Under the Appellant's argument, the State certification would be required only if the federal permit requirement was "triggered" specifically by the discharges. But that is not the way the law works. Nothing in the language of the statute requires any "causal link" between the discharge and the federal permit to trigger the certification requirement.

• The same rule and result apply here: because (1) a Forest Practices permit was required (a conclusion now affirmed repeatedly by DNR and not appealed by Appellant) and (2) harvesting occurred (a conclusion also affirmed repeatedly by DNR and not appealed by Appellant) (3) the moratorium is appropriate. The law simply does not require any "causal link" between the harvest and the required Forest Practices permit. Under the plain language of the Forest Practices Act, if a permit is required and harvesting occurs, then the moratorium is appropriate.
  
• Appellant's fundamental assertion that his harvest was a Class I forest practice requiring no permit application or notification is wrong. As noted above, DNR disagreed with Appellant twice in writing, and reaffirmed its conclusions in Hearing testimony. He failed to properly appeal these legal determinations. Furthermore, under the Forest Practices regulations, enumerated forest practices - including "Any harvest on less than 40 acres" conducted "on lands being converted to another use" require a Class IV application. See, WAC 222-16-050(4) and -050(4)(e)(iv).
  
• The Appellant's formalistic argument about the structure of the Forest Practices Act must be rejected. The Act is a unified statute governing all forest practices - including road construction, timber harvest, clearing and salvage. There is a single, unified application for Forest Practices - not one application for harvesting, and a different application for other forest practices. Appellant illegally disregarded his obligation to submit an application - period. He alone is to blame.
• Exhibit 60, the Declaration of Michael Yeager, is entitled to no weight. Even the floor statement of an individual legislator is entitled to no weight (see, "Sutherland's Statutory Construction"). Mr. Yeager is not even a legislator, but rather is a logging company executive, and former paid mouthpiece for the timber industry. His personal impressions about what the legislature meant are legally worthless.

I. POLICY
Ruling in Mr. Previs's favor would unavoidably send several terrible messages. Because Mr. Previs is not personally entitled to any particular interpretation of the law, it is entirely legitimate and valid to consider the policy implications of his proposed interpretation. It is likely that:

• Reversal would tell the Permit Center it can't rely on DNR's determination that a Forest Practices Permit is required. Here, Director Karsh expressly asked DNR - twice - if a permit was required and whether a moratorium was authorized. DNR answered yes to each question - twice.
   
• Reversal would tell the Permit Center that using its moratorium authority to enforce the Critical Areas Ordinance is not worth the effort - even where the developer made no effort to get permits in advance and DNR determined that permits were required.
   
• Reversal would tell other developers that enforcement of the County's Critical Areas Ordinance is weak; that no great importance is placed on applying for permits before work begins; and that sanctions can easily be lifted on appeal.
   

I. CONCLUSION

Fundamentally, the Appellant has failed to satisfy his burden of demonstrating that the challenged interpretation is wrong. That burden is particularly high when an individual who utterly disregarded all applicable permit requirements wants the law to be interpreted so as to create a loophole. The appeal should resoundingly be denied.

For these reasons, we respectfully urge you to affirm Skagit County Planning and Permit Center Director Tom Karsh's October 27, 1998 Administrative Interpretation.

Thank you for your efforts in this matter.

Very truly yours,

Smith & Lowney, p.l.l.c.

By: __________________________
Richard A. Poulin
Of Counsel

Enclosures