SKAGIT COUNTY HEARING EXAMINER
STATE OF WASHINGTON

 

In the Matter:

RANDY PREVIS,

Appellant,

Appeal of the Administrative Interpretation by the Skagit County Planning and Permit Center, dated October 27,1998.
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PL98-0400

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

This decision of the Hearing Examiner on the above captioned open record appeal follows a public hearing held on September 15, 1999, October 6 1999, November 3, 1999, and site visit on November 12, 1999. The Appellant was represented by Robert A. Carmichael and Daniel D. Zender of the Visser, Zender & Thurston law firm. Rick Poulin of the Smith & Lowney law firm, representing Evergreen Islands, was not allowed to intervene, but was permitted wide latitude in presenting evidence, scheduling, argument, and participation in the hearing.

The issue before the Hearing Examiner is very narrow, and involves an administrative interpretation issued by the Director of the Skagit Count Planning and Permit Center, concerning the definition of "harvest" as applied to a six-year development moratorium. The six-year development moratorium issued by the County was not appealed and is not directly before the Hearing Examiner. Likewise, the issues of environmental damage, or violation of land use regulations associated with the development of Appellant's property are not before the Hearing Examiner.

(NOTE: The lengthy Findings of Fact section of the decision has not been included.)

CONCLUSIONS OF LAW
1. The source of the county authority for imposition of the subject six year moratorium is the state Forest Practices Act.

2. Class I forest practices are permitted under the Act, without submitting and application or notification to the Department of Natural Resources. RCW 76.09.050. Class I forest practices include the cutting or removal of less than 5000 board feet of timber per year for personal use. See WAC 222-16-050 (3) (k). Class I forest practices are not subject to a moratorium. This is because a Class I forest practice is permitted without notification or application to the DNR prior to commencing the activity, and by definition has no direct potential for damaging a public resource.

3. When interpreting an undefined term in a statute, the Hearing Examiner must first look to the plain and ordinary meaning of said term. The term "harvest" has its ordinary meaning, which includes the process and act of gathering crops. The term is not vague as applied to the Appellant by the County or DNR.

4. The Hearing Examiner cannot find and reason to separate the process of road construction from other forms of removal of trees from real property. It is not important whether the harvest of trees is for road construction in a Class I forest practice, if it is less than 5,000 board feet. In the present case there is no evidence that the requirements of a Class I forest practice were violated, whether for road construction or otherwise.

 

5. RCW 76.09.060(3)(b)(i)(C) provides the authority for the County to impose a six-year moratorium:

When harvesting takes place without an application, the local government entity shall impose the six-year moratorium provided in (b)(i) of this subsection from the date the unpermitted harvesting was discovered by the department or the local government entity.

RCW 76.09.060(3)(b)(i)(C). The county six-year moratorium ordinance, which is authorized by the above statute, is similar and is set forth in SCC 14.06.094:

When harvesting takes place without a forest practice application (FPA) . . . the County shall impose a 6-year moratorium on all future activities which require a permit or land use approval from the County beginning from the date the harvesting was discovered by the DNR or the County.

6. The above statute and ordinance only authorize imposition of the six-year moratorium in those instances where an application for a harvest was required, but not submitted. It does not authorize a moratorium for a harvest which is permitted, but which requires no application or notification such as the Class I harvest at issue here. This evident for two reasons: 1) the statute clearly references the harvesting activity for which a moratorium may be imposed as "unpermitted harvesting" and; 2) any other statutory construction would lead to the absurd result that all permitted Class I forest practices, even cutting one tree, must result in a mandatory six-year moratorium. This is contrary to expedited Class I blanket approval provided by the

legislature in the Act. The statute and county ordinance only authorize imposition of a moratorium where "harvesting" is not permitted without the filing and DNR approval of an application. This is admitted by the DNR and County.

7. Assuming arguendo that the term "harvesting" is ambiguous, than the Hearing Examiner must attempt to discern the intent of the legislature. Upon review of the entire statutory and regulatory scheme, the intent of the legislature appears to be that unpermitted harvesting alone can trigger application of the six-year moratorium.

8. Forest practices are defined in the Act to include numerous activities including: "any activity conducted on or directly pertaining to forest land and relating to growing, harvesting or processing timber, including but not limited to: Road and trail construction; Harvesting, final and construction; Precommercial thinning, Reforestation; Fertilization; Prevention and suppression of diseases and insects; Salvage of trees; and Brush control." RCW 76.09.020(B)

9. Other sections of the Forest Practices Act also separately refer to road construction and timber harvesting in the same sentence, demonstrating that the legislature understands the activities are distinct and that it knows how to implicate both activities when it chooses. RCW 76.09.050. That RCW 76.09.060(3)(b)(i)(C) refers only to harvesting as the moratorium trigger and not road construction or other nonharvesting activities to trigger the six-year moratorium.

10. The dispositive issue on appeal is not just whether there was a harvest, but whether there was a harvest that required an application.

11. The uncontested testimony in this appeal was that the harvest conducted on the property by Mr. Previs consisted of less than 5000 board feet of timber. Under the Forest Practices Act, harvests of less than 5000 board feet of timber are Class I forest practices, for which no application is required. No information has been presented suggesting that the harvest was anything other than a Class I level harvest.

12. Therefore, as a matter of law, the harvest on the Previs property did not require a forest practices application. Because the harvest did not require an application, the moratorium provisions of the Forest Practices Act and county ordinance were not triggered.

13. The DNR opinion set forth in its correspondence of August 25, 1998 and October 22, 1998, to which Skagit County deferred, appears to be an isolated opinion of the facts in the present case. It was issued long after the activities on site ceased. The DNR has never issued a written policy of general applicability on the subject. Nor has DNR issued an "interpretative statement" or "policy statement" under the APA. RCW 34.05.010(8) and (15). Accordingly, the DNR's opinion in this matter is not entitled to special deference. Cowiche Canyon Conservancy v. Bosley, Wn.2d 801, 814-815, 828 P.2d 549 (1992)

NOW, THEREFORE, IT IS HEREBY ORDERED:
That the Administrative interpretation rendered by the Director of the Skagit County Planning & Permit Center on October 27, 1998 and pertaining to the six-year moratorium imposed on Appellant's property is based on an error of law and is not supported by the evidence. Said decision is reversed and remanded to the Director. It is not clear to the Hearing Examiner that he has the authority to lift the moratorium imposed on the subject property of Appellant. This appeal seeks to reverse the October 27, 1998 administrative interpretation. Since the moratorium itself is not before the Hearing Examiner, it does not appear that the Hearing Examiner has jurisdiction to reverse the issuance of the August 11, 1998 moratorium. However, the Hearing Examiner believes that since the Director did not correctly apply the term "harvest" by issuing the initial moratorium, that moratorium is void as a matter of law and should be withdrawn by the Director.

Dated this 2 day of December, 1999.

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C. Thomas Moser
Skagit County Hearing Examiner, Pro Tem