BEFORE THE SKAGIT COUNTY
BOARD OF COUNTY COMMISSIONERS
In the Matter of the Appeal of
Regarding the Administrative Interpretation Issued by the Skagit County Planning and Permit Center on October 27, 1998.
Hearing Examiner File: PL98-0400
EVERGREEN ISLANDS'NOTICE OF APPEAL
Evergreen Islands, by and through counsel, hereby files a Notice of Appeal pursuant to SCC 14.01.061.
I. TIMELY FILING
This appeal is timely filed within fifteen (15) calendar days after the date of the decision of the matter being appealed, December 2, 1999.
II. DECISION BEING APPEALED
The decision being appealed is Hearing Examiner C. Thomas Moser's "Findings of Fact, Conclusions of Law and Order" dated December 2, 1999.
Evergreen Islands is a Fidalgo Island-based non-profit conservation organization, formed over 20 years ago with the purpose of promoting, protecting, and defending the unique ecosystem of Fidalgo and Whidbey Islands and their environs. Evergreen Islands is interested in this appeal in part because several of its members are landowners whose property adjoins the property at issue in the appeal, and who would be injured by proposed development now subject to a six-year moratorium. Evergreen Islands advocates the effective enforcement of environmental laws, and believes the County's enforcement authority is diminished by the decision of the Hearing Examiner. Evergreen Islands' ongoing interest in this matter is evidenced by its provision of legal analysis to Administrative Official Tom Karsh before the initial Administrative Interpretation was rendered. In addition, Evergreen Islands participated in the Open Record Hearing, by providing evidence, comments, and legal argument. (Evergreen Islands' participation is noted in the first paragraph of the decision being appealed.)
IV. SPECIFIC REASONS WHY APPELLANT BELIEVES THE DECISION TO BE WRONG
To the extent that any error of fact ought to be denominated as an error of law, and that any error of law ought to be denominated as an error of fact, Appellant requests that they be considered as such.
A. Errors of Fact
In the following respects, the Hearing Examiner's findings of fact are not supported by substantial evidence, or are contrary to the evidence.
1. The Hearing Examiner erroneously found that the Stop Work Order issued by Skagit County on June 1, 1998 was "unrelated to forest practices." The Hearing Examiner erroneously disregarded Exhibit 11, and testimony that the Administrative Official indicated, in a meeting on June 4, 1998, that he had concerns about violations of the Forest Practices Act.
2. The Hearing Examiner also erroneously disregarded evidence and testimony concerning the Stop Work Order issued by DNR for the same activities.
3. The Hearing Examiner erroneously states that "[n]o information has been presented suggesting the harvest was anything other than a Class I level harvest." This statement disregards substantial evidence that the trees were not harvested for "personal use" but rather to facilitate the construction of a subdivision road in preparation for a commercial real estate development. This statement also disregards testimony that Mr. Previs did not use the harvested timber for "personal use," but instead gave it away by the truckload; and evidence that the appellant's activities damaged public resources, including Class II and III Wetlands.
4. The Hearing Examiner disregarded substantial evidence that an undeclared conversion had taken place, including: preparation of a home site; extensive site clearing; submission of soil samples for a septic system; the installation of water and utility lines; circulation of maps and an artist's depiction of a 20-lot development called "Lakewood Estates;" extensive press coverage of Mr. Previs's intent to create a 20-lot development called "Lakewood Estates;" the Administrative Official's testimony that he was aware there might be an undeclared conversion on the property; the DNR Forester Loren Wheeler's testimony that the road appeared to be "a road used for a conversion[;]" evidence that Mr. Previs had transferred lots into a checker-board ownership pattern with alternating parcels owned by a licensed real estate development corporation; and testimony that Mr. Previs had pulled tree stumps.
5. The Hearing Examiner erroneously disregarded the Administrative Official's testimony that he believed the harvest required a forest practices application.
6. The Hearing Examiner erroneously disregarded testimony that Mr. Previs's road construction required a forest practice application, and Mr. Previs's tree harvesting was associated with the unpermitted road construction.
7. The Hearing Examiner erroneously disregarded DNR's testimony that the hearsay statements repeated in Findings 11 and 16 occurred after the appellant committed the forest practices violation, and before DNR was made aware by Skagit County staff that the scope of the on-site activity was much larger than had been described.
8. The Hearing Examiner erroneously disregarded testimony that, on each of the two occasions when experienced teams of DNR personnel toured the entire site, all participants unanimously agreed that the activities required a forest practice application and that a six-year moratorium was appropriate.
9. The Hearing Examiner erroneously disregarded testimony that DNR's office staff is not authorized to tell callers whether or not they need a permit.
10. The Hearing Examiner erroneously disregarded the Administrative Officer's testimony that his Administrative Interpretation was based in part on the legal analysis provided by Evergreen Islands, and authority that the Forest Practices Act is remedial legislation that should be construed liberally to effect its purpose.
B. Errors of Law
In the following respects, the Hearing Examiner has exceeded his lawful authority, or otherwise erroneously interpreted or applied the law.
1. The Hearing Examiner erroneously concluded that, "as a matter of law, the harvest on the Previs property did not require a forest practices application." (Opinion at 10, Conclusion of Law No. 12.) The Skagit County Hearing Examiner has no legal authority to determine whether a particular activity requires an application under the Forest Practices Act. That authority lies with the Department of Natural Resources, and the exclusive jurisdiction to review such determinations lies with the Forest Practices Appeals Board. See, RCW 76.09.220(7).
2. The Hearing Examiner erroneously concluded that the harvest at issue was a Class I harvest.
3. The Hearing Examiner erroneously failed to defer to DNR's interpretation of the Forest Practices Act, even though DNR is the agency charged with the administration and enforcement of the Act.
4. The Hearing Examiner erroneously concluded that DNR's written interpretation of the Forest Practices Act is not entitled to "special deference" unless supported by a "written policy of general applicability" or a formal statement issued under the APA. (Opinion at 10, Conclusion of Law No. 17.) In doing so, the Hearing Examiner disregarded evidence and testimony that DNR's departmental position on "harvesting" as applied in this case was reviewed by DNR Region and Division-level management including a Deputy Supervisor, an Assistant Regional Manager, the Regional Manager, and after consultations with an Assistant Attorney General.
5. The Hearing Examiner also erroneously failed to defer to the Administrative Official - the director of the agency charged with the administration and enforcement of the Skagit County Critical Areas Ordinance.
6. The Hearing Examiner erroneously misapplied and misconstrued the Forest Practices Act and the Skagit County Code, by disregarding the plain language of the statute; by failing to construe the exceptions to the statute narrowly; by rejecting the agencies' plausible construction of the statute which satisfies the plain language of the statute and provides greater protection to forest lands; and by focusing on one word rather than on the intent of the statute construed as a whole.
7. The Hearing Examiner erroneously disregarded SCC 14.06.094(4), which expressly states that the moratorium provisions apply to forest practices of "any class" in specified circumstances.
8. The Hearing Examiner erroneously disregarded Mr. Previs' stipulation that when a forest practice application is made, DNR considers all forest practices in determining whether an application is needed.
9. The Hearing Examiner misapplied the law of estoppel, implicitly concluding that Mr. Previs was excused from the legal obligation to file a permit application by virtue of a telephone conversation with DNR office staff.
10. The Hearing Examiner erroneously admitted unreliable hearsay statements that was contradicted on the record by the alleged declarant.
11. The Hearing Examiner erroneously denied Evergreen Island's motion to intervene.
12. The Hearing Examiner erroneously denied Evergreen Islands' request to cross-examine Mr. Previs's witnesses.
13. The Hearing Examiner erroneously limited Evergreen Island's ability to examine witnesses not called by Mr. Previs.
V. DESIRED OUTCOME OR CHANGES TO THE DECISION
Evergreen Islands respectfully requests that the Hearing Examiner's decision be reversed and remanded, with directions to reinstate the Administrative Interpretation of Tom Karsh dated October 27, 1999.
Evergreen Islands respectfully reserves the right to supplement this Notice of Appeal with briefing and oral argument.
DATED this 16th day of December 1999.
SMITH & LOWNEY, P.L.L.C.
Richard A. Poulin, Of Counsel
WSBA # 27782
Attorneys for Intervenor Evergreen Islands