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Court of Appeals Division II
State of Washington
Opinion Information Sheet
Docket Number: 32471-7-II
Title of Case: Washington Shell Fish Inc., Appellant v.
Pierce County, Respondent
File Date: 03/28/2006
SOURCE OF APPEAL
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Appeal from Superior Court of Thurston County
Docket No: 03-2-02545-1
Judgment or order under review
Date filed: 10/01/2004
Judge signing: Hon. Wm Thomas McPhee
JUDGES
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Authored by J. Robin Hunt
Concurring: Marywave Van Deren
Joel Penoyar
COUNSEL OF RECORD
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Counsel for Appellant(s)
Carolyn A. Lake
Goodstein Law Group PLLC
1001 Pacific Ave Ste 400
Tacoma, WA 98402-4440
Counsel for Respondent(s)
Bertha Baranko Fitzer
Pierce County Prosecutors Office
930 Tacoma Ave S Rm 946
Tacoma, WA 98402-2171
Jill Guernsey
Pierce Co Prosecutors Ofc
955 Tacoma Ave S Ste 301
Tacoma, WA 98402-2160
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
WASHINGTON SHELL FISH, INC., a No. 32471-7-II
Washington corporation,
Appellant,
v.
PIERCE COUNTY,
Respondent,
and
EDWARD and LAUREEN MILLER,
husband and wife; DARRELL and
MAIJA DETIENNE, husband and PUBLISHED OPINION
wife; RONALD and EILEEN
TELLEFSON, husband and wife;
OHLSON PROPERTIES, LLC,
Washington limited liability
company; VELLA BOYLES; ROBERT
RYAN; TACOMA DEMOLAY BOYS CAMP,
SCOTTISH RITE; J. G. OLSON and
PAULA ROSSA,
Additional Parties.
Hunt, J. Washington Shell Fish (WSF) appeals the superior court's
affirmance of Pierce County's orders to cease and desist planting and
harvesting geoducks without shoreline permits and to cease and desist
working in eelgrass beds without authorization on 11 leased shoreline
properties. WSF argues the County's orders were improper because WSF was
not required to obtain a substantial shoreline development permit to engage
in geoduck cultivation or to obtain County approval to work in eelgrass
beds. We disagree and affirm.
FACTS
I. Background
Washington Shell Fish (WSF) is in the business of geoduck aquaculture.
WSF began aquaculture and harvesting activities in summer 2001. By mid-
2003, WSF had leased 11 parcels of shoreline lands from nine separate
owners: Ohlson Properties (Ohlson), Edward and Laureen Miller (Miller),
Vella Boyles (Boyles), J. G. Olson (Olson) (two parcels), Robert Ryan
(Ryan), Pierce County (the County),1 Darrell Detienne (Detienne), Tacoma
DeMolay Boys Camp (DeMolay) (two parcels), and Ronald and Eileen Tellefson
(Tellefson).
WSF conducts the following geoduck activities: (1) harvesting and
planting on the County property; (2) harvesting and inadvertent planting on
one Olson property and only harvesting on the other Olson property;2 (3)
harvesting on the Ryan, Detienne, Boyles, and Miller properties; and (4)
test planting on the DeMolay property. WSF conducts no geoduck activities
on the Tellefson property.
On the County shoreline, WSF wants to start a five-year-rotation
aquaculture cycle: Each year WSF would plant geoduck seeds3 on 20 percent
of its leased property, for harvest five years later. To plant geoducks,
WSF pushes six to 12-inch long, three-inch diameter, polyvinylchloride
(PVC) pipes into the shoreline using rope to guide tube placement. WSF has
installed more than 21,000 such PVC pipes on its leased County shoreline.
The photo below, admitted as Exhibit 50, shows WSF employees inserting PVC
geoduck planting pipes in eelgrass beds:
WSF places geoduck seeds into the PVC pipes, covers the pipes with
netting, and pins and wire-ties the netting cover in place to protect the
geoduck seedlings. After six months, WSF removes the netting and pipes to
allow the geoduck seeds to grow naturally.
When the planted geoducks mature five years later, divers use high-
pressure water jets to harvest them from their burrows three to four feet
down in the sand substrate. From a boat anchored off shore, the harvesters
dive down to the bottom, insert a water jet into the sand substrate next to
the geoduck, use water jets to excavate the substrate around the geoduck
and loosen its grip, and then pull the geoduck out of the sand. In the
process, loosened sand and silt move around in the nearby saltwater.
Removal of each geoduck leaves an excavation pit in the sand substrate one
and a half to two feet in diameter.
When WSF first began its geoduck planting and harvesting activities
and its work in eelgrass beds, it had neither sought nor obtained the
necessary permits and authorizations.4
II. Cease and Desist Orders
The County received numerous complaints about WSF's harvesting and
aquaculture activities. Beginning in June 2003, the County issued a series
of cease and desist orders, applicable to all 11 leased properties,
requiring WSF to stop its geoduck operations under Title 20 of the Pierce
County Code (PCC) and to stop working in eelgrass beds under Title 18E of
the PCC.
A. County Orders
Included in the record on appeal are 12 cease and desist orders the
County issued for WSF-leased properties.5 All 12 orders contain the
following operative language:
YOU ARE HEREBY NOTIFIED that you are making or partaking in a use of the
land, development or activity(ies) which is not permitted by County
regulation, approved site plan, land use permit, or variance, to-wit:
References: Description of Violation:
PCC. Title 20 Section Harvesting cultivating
20.24.030 planting or allowing such
activity without required
shoreline permits.
PCC. Title 18E Section Working or allowing
18E.60.020{6} working to be done in
eelgrass beds without
authorization.
YOU ARE HEREBY NOTIFIED that you must immediately CEASE AND DESIST from the
activity described in the above or attachment which is in violation of the
PIERCE COUNTY CODE.
Administrative Record (AR) at 150-51. WSF appealed these cease and desist
orders to the Count hearing examiner.
B. Appeal to Hearing Examiner
A Pierce County hearing examiner conducted a hearing on September 15
and November 3, 2003. Testifying were the parties' representatives,
experts, WSF employees, and members of the general public affected by WSF's
activities. Dr. Ron Thom testified as an expert eelgrass witness for the
County. Dr. Daniel Cheney testified as an expert eelgrass witness for WSF.
Dr. Thom works primarily on eelgrass and eelgrass ecology for
Battelle, one of nine U.S. Department of Energy marine sciences
laboratories. He testified that (1) there were eelgrass beds on shorelines
WSF had leased from the County, Olson, Ryan, and Detienne; (2) WSF had
planted geoduck seeds with PVC pipes in existing eelgrass beds on the
County property; and (3) the entire property WSF leased from the County is
inshore below 18 feet.
Dr. Cheney testified that the evidence did not show WSF had planted in
or harmed eelgrass, suggesting that eelgrass may have migrated into the
areas after WSF planted geoduck seeds there. Dr. Cheney had not visited
any of the properties to observe or to test the affected eelgrass beds.
And WSF did not submit the information on which Dr. Cheney had relied. The
hearing examiner did not find Dr. Cheney's testimony persuasive.
Members of the public also testified at the hearing, including: John
Petrich, who lives next to the DeMolay property; Larry and Nanci Wakefield,
who reside near the Olson and Pierce County properties on Purdy Spit; and
Robert Paradise, a recreational windsurfer, who testified on behalf of
himself and members of the Boeing Windsurfing Club, the Northwest Board
Sailors Association, Columbia Gorge Windsurfing Association, and Northwest
Women of Wind.7 These witnesses testified that they saw (1) heavy rope-
like netting laid out, long metal stakes, and loose PVC pipes enmeshed in
the nets over WSF's geoduck beds; (2) PVC pipes sticking out of the water
and pipes placed into the ground for planting or cemented into five-gallon
cement cans to serve as dive markers; and (3) several hundred feet of nylon
rope that would entangle with other objects in the water or injure
windsurfers. According to one witness, WSF used multiple boats, some large
enough to drag buoys.
On December 4, 2003, the hearing examiner upheld the County's cease
and desist orders. The examiner found that WSF (1) had caused substantial
interference with the public's use of surface water, contrary to PCC
20.24.030 (SMA);8 (2) harvested geoducks in water less than 18 feet deep,
contrary to RCW 77.60.070 (formerly RCW 75.24.100); (3) operated in
eelgrass beds;9 and (4) continued to operate illegally without permits,
even though WSF was on notice that they were required.
III. LUPA Petition
On December 23, 2003, WSF filed a timely Land Use Petition Act (LUPA)10
petition with the superior court. On October 1, 2004, the superior court
upheld the hearing examiner's decision, ruling that (1) substantial
evidence supported the hearing examiner's findings of fact, (2) the
examiner properly concluded that WSF needed a substantial development
permit under the Shoreline Management Act (SMA), and (3) substantial
evidence supported the examiner's eelgrass findings. The court did not
otherwise rule on the propriety of the eelgrass bed cease and desist orders
under the Growth Management Act (GMA) because it determined that WSF's
failure to satisfy the SMA substantial development permit requirement
independently supported the County's cease and desist orders.
WSF appeals both the SMA (geoduck planting and harvesting) and GMA
(working in eelgrass beds) components of the County's cease and desist
orders.
ANALYSIS
WSF argues (1) it was not required to obtain a SMA substantial
shoreline development permit before engaging in geoduck planting and
harvesting on its leased shorelines; and (2) it was not required to obtain
GMA critical areas authorization to work in eelgrass beds before installing
the PVC pipes, ropes, netting, and other objects. We disagree.
We first address whether WSF's activities constituted a 'substantial
development' under PCC 20.76.030, subject to Pierce County's shoreline
regulations; and (2) if so, whether WSF was nevertheless exempt from the
permit requirement under PCC 20.24.030(A). We next address whether WSF
also needed prior County authorization under Title 18E PCC before it could
do any kind of work in eelgrass beds, which are deemed critical area
habitat under the GMA.
I. Standard of Review
LUPA establishes a uniform, expedited, appeal process to provide
consistent, predictable, and timely judicial review of land use decisions
by local governments. RCW 36.70C.010; Samuel's Furniture, Inc., v. Dep't
of Ecology, 147 Wn.2d 440, 449, 54 P.3d 1194 (2002). LUPA serves as the
exclusive means of judicial review of land use decisions, unless a specific
exception applies. RCW 36.70C.030.
The party seeking LUPA review has the burden of proving that the
challenged land use decision was an erroneous interpretation of the law,
was not supported by substantial evidence, or violated that party's
constitutional rights. RCW 36.70C.130. In reviewing administrative
decisions, we review conclusions of law de novo.
In addition, the Shoreline Management Act (SMA) is broad. Courts must
construe it liberally to give effect to its purpose. RCW 90.58.900.11
II. Shoreline Substantial Development Permits: Geoduck Planting and
Harvesting
A. Shoreline Management Act
The Legislature enacted the SMA: (1) to protect and to manage the
private and public shorelines of Washington State; (2) to protect against
adverse effects to public health, public rights of navigation, land,
vegetation, and wildlife; and (3) to plan for and to foster reasonable and
appropriate shoreline uses. RCW 90.58.020; Samuel Furniture, 147 Wn.2d at
448. Permitted shoreline uses must be designed and conducted in a manner
that minimizes damage to the ecology, damage to the environment, and
interference with the public's use of Washington's water. RCW 90.58.020.
Accordingly, the SMA regulates 'uses' of shoreline waters as well as
'developments' on them. Clam Shacks of Am., Inc. v. Skagit County, 109
Wn.2d 91, 95-96, 743 P.2d 265 (1987).
Local governments have primary responsibility to administer the SMA.
RCW 90.58.050. The state Department of Ecology (DOE) creates guidelines
for local governments to follow in developing their local shoreline master
programs. RCW 90.58.080(1). Local governments must develop and
exclusively administer a shoreline permit system; together with the DOE,
local governments must enforce these permit requirements. RCW
90.58.140(3); RCW 90.58.210(1). This permit system encompasses substantial
development permits, conditional use permits, and variances. RCW
90.58.140; WAC 173-26-241; see Clam Shacks, 109 Wn.2d 95-97.
B. Pierce County's Shoreline Master Program
Pierce County enacted its local shoreline master program under Title
20 of the Pierce County Code. PCC 20.02.010-040. In its shoreline
regulations, the County outlines general requirements and procedures for
obtaining substantial development permits, variances, and conditional use
permits, depending on the applicant's proposed activity and the type of
shoreline environment involved. The regulations list several 'uses' under
PCC 20.22 to 20.70, the requirements for which may differ.
1. Substantial Development
WSF argues that the SMA does not apply to its geoduck planting and
harvesting activities because they are not 'substantial developments' under
the County's shoreline regulations. WSF contends these activities are not
'developments' because (1) they do not involve removal of sand, gravel, or
minerals; and (2) they do not interfere with the public use of surface
water. We disagree. Like the hearing examiner, we focus on the second
factor interference with the normal public use of surface waters.
A party must apply for a shoreline substantial development permit if
the development or proposed use falls within the following criteria:
First, the development or use will involve
the construction or exterior alteration of structures, dredging, drilling,
dumping, filling, removal of any sand, gravel, or mineral, bulkheading,
driving of piling, placing of obstructions, or any project of a permanent
or temporary nature which interferes with the normal public use of the
surface of waters overlying lands subject to the Shoreline Management Act
at any state of water level.
PCC 20.76.030(A)(1) (emphasis added); see PCC 20.02.030; RCW
90.58.030(3)(d). Second, the 'development or use exceeds a cost or fair
market value of $2,500.00.' PCC 20.76.030(A)(1).
a. 'development' -- interference with public use
Several witnesses testified that WSF left rope in the water where WSF
had planted geoducks, and this rope would become entangled with people or
non-geoduck-harvest-related objects. WSF divers harvesting geoducks placed
markers on the water's surface that prevented public use of that area. The
PVC planting pipes that WSF inserted into the shorelines were up to 12
inches long, with their top portions protruding vertically out of the sand.
In addition, according to one witness, WSF used up to four boats at a time
to store the geoducks that divers harvested, one of which was a barge large
enough to drag a buoy; these WSF boats further constricted the water
surface open to public use.
In these ways, WSF's activities prevented the general public from
using certain areas of the water: (1) WSF's geoduck planting and
harvesting equipment posed a safety risk to the public; and (2) WSF's
activities and fixed objects occupied shoreline water, thereby excluding
others. The testimony and exhibits provided substantial evidence to
support the hearing examiner's finding that WSF's geoduck activities
interfered with the normal public use of the surface water.12 Therefore,
under PCC 20.76.030, WSF engaged in 'development' when it harvested and
planted geoducks on the leased properties.
b. 'substantial' -- more than $2500 value
Although the hearing examiner did not list the exact cost or fair
market value of WSF's aquaculture activities, he did find that WSF engaged
in 'substantial' development. The existence of a 'substantial' development
means that the cost or fair market value of the development exceeded $2500.
And 'fair market value'
of a development is the open market bid price for conducting the work,
using the equipment and facilities, and purchase of the goods, services and
materials necessary to accomplish the development. This would normally
equate to the cost of hiring a contractor to undertake the development from
start to finish, including the cost of labor, materials, equipment and
facility usage, transportation and contractor overhead and profit. The
fair market value of the development shall include the fair market value of
any donated, contributed or found labor, equipment or materials.
WAC 173-27-030(8).
WSF had at least two permanent employees the owner and his executive
assistant. WSF employed other workers to plant and to harvest geoducks.
WSF maintained or purchased several pieces of equipment, including boats,
PVC pipes, netting, containers, rope, and geoduck-harvesting water-jet
devices. In addition, at a separate facility WSF bred cultivated geoducks
to plant on its leased shoreline, and it extracted at least $2.7 million
worth of wild geoducks from the Pierce County property alone. Thus, the
value of WSF's geoduck planting and harvesting developments on its leased
shorelines exceeded $2,500.
We hold, therefore, that the hearing examiner properly determined that
WSF engaged in shoreline development worth more than $2500 when it
harvested and planted geoducks. This activity thus constituted a
'substantial' development under PCC 20.76.030 on the WSF leased shorelines
in which WSF engaged in geoduck activities.13
Having determined that WSF's geoduck activities are substantial
developments subject to Pierce County's shoreline regulations, other than
on the Tellefson and Ohlson properties, we next determine whether these
activities are exempt under PCC 20.24.030(A) as WSF contends.
2. No exemption
WSF argues that under PCC 20.24.030(A), geoduck harvesting does not
require a substantial development permit because this activity is
'permitted outright.' In addition, WSF urges us to interpret the phrase
'Subject to the Guidelines for Reviewing Substantial Development Permits,'
PCC 20.24.030(A), as simply 'language that shoreline 'development' must be
consistent with 'guidelines.'' Appellant's Br. at 15. Again, we disagree.
We interpret local ordinances and codes as we interpret statutes,
employing the general rules of statutory construction. Neighbors of Black
Nugget Rd. v. King County, 88 Wn. App. 773, 778, 946 P.2d 1188 (1997),
review denied, 135 Wn.2d 1003 (1998). As with statutes, we must ascertain
and carry out the intent and purpose of the local legislative body
promulgating a local ordinance or code. Neighbors, 88 Wn. App. at 778. To
determine legislative intent, we look first to the plain language of the
ordinance. Fraternal Order of Eagles, Tenino Aerie No. 564 v. Grand Aerie
of Fraternal Order of Eagles, 148 Wn.2d 224, 239, 59 P.3d 655 (2002).
PCC 20.24.030(A) is not ambiguous, especially when read in context.
PCC 20.24.030 regulates only two types of activities: geoduck harvesting,
under subsection (A); and aquaculture, under subsections (B) through (D).
Shoreline environment designations vary from 'from urban to natural'; this
designation determines the level of restriction and the type of permit
required.
For example, PCC 20.24.030(A) provides, in part:
(A) Subject to the Guidelines for Reviewing Substantial Development
Permits, geoduck harvesting is permitted outright in all shoreline
environments.
(1) Geoduck harvesting is to be conducted in a manner consistent with RCW
75.24.100 . . . .
(Emphasis added.) RCW 75.24.100 (1999), recodified as RCW 77.60.070,
states in pertinent part: 'The director may not authorize commercial
harvest of geoduck clams from bottoms that are shallower than eighteen feet
below mean lower low water (0.0. ft.). . . .' (emphasis added). Contrary
to WSF's contentions, the language of this ordinance does not exempt
commercial geoduck harvesting from the need for a shoreline substantial
development permit.
The PCC 20.24.030(A) phrase '{s}ubject to{14} the Guidelines for
Reviewing Substantial Development Permits' clearly subjects geoduck
harvesting to one overall qualifier -- substantial development permit
review under PCC 20.24.020, which is titled 'Guidelines for Reviewing
Substantial Development Permits.' Although PCC 20.24.020 expressly
addresses how the County reviews substantial development permit
applications, it says nothing about exempting geoduck harvesting from the
substantial development permit requirement.
Similarly, the PCC 20.24.030(A) clause that geoduck harvesting is
'permitted outright in all shoreline environments' does not absolve WSF of
the need for a shoreline substantial development permit. Instead, it means
simply that (1) geoduck harvesting, as contrasted with some other use, like
building a dock, for example, is permitted in these shoreline environments;
and (2) therefore, WSF need not apply for and obtain a conditional or
special use permit to harvest geoducks along its leased shorelines.15
'Permitted outright' is a technical term specifically related to the
type of activity presumptively allowed in certain zones; as such, it should
be given its technical meaning. See City of Spokane v. State Dep't of
Revenue 145 Wn.2d 445, 452, 38 P.3d 1010 (2002). According to other County
development regulations, if a specific use is 'permitted outright,' a party
is not required to obtain a conditional use permit, a nonconforming use
permit, or an administrative use permit.16 Nonetheless, that party may
still need to obtain other applicable permits, such as: a commercial
fishery license, if harvesting shellfish to sell;17 a building permit, if
building a hatchery;18 or, in WSF's case, a substantial development permit
for engaging in a shoreline activity valued at more than $2500 geoduck
aquaculture.19
Further emphasizing that commercial geoduck harvesting is subject to
the substantial development permit process is the remainder of PCC
20.24.030, which limits the types of uses in various shoreline
environments:
(B) Urban, Rural-Residential, and Rural Environments. Aquaculture
operations are permitted subject to the Guidelines for Reviewing
Substantial Development Permits.
(C) Conservancy Environment. Aquaculture operations which do not involve
the placement of land based structures are permitted subject to the
Guidelines for Reviewing Substantial Development Permits.
Aquaculture operations which involve the development of land based
structures are allowed as Conditional Uses and subject to the Guidelines
for Reviewing Substantial Development Permits.
(D) Natural Environment. Aquaculture operations are limited to fishing and
the harvesting of wild and planted stocks for recreation and commercial
purposes. Operations which do not involve the placement of structures or
fill in the aquatic or terrestrial environment will be allowed as a
Conditional Use, upon showing the activity will not substantially change
the character of the site or adversely affect natural populations and shall
be subject to the Guidelines for Reviewing Substantial Development Permits.
Operations involving structural developments are prohibited.
PCC 20.24.030 (emphasis added). As in subsection (A), these subsections
each include the caveat: 'Subject to the Guidelines for Reviewing
Substantial Development Permits.' PCC 20.24.030 (B), (C), and (D). Even
the harvesting of wild geoducks in natural environments requires a
conditional use permit; and structures are prohibited altogether. PCC
20.24.030 (D).
WSF admitted engaging in both planting cultivated geoducks and
harvesting wild geoducks on the leased lands (except for the Tellefson and
Ohlson properties). Neither activity is exempt from substantial
development permit requirements under PCC 20.24.030: Harvesting activities
are subject to PCC 20.24.030(A), and planting activities are subject to PCC
20.24.030(B) through (D). Because WSF's geoduck activities constituted
substantial developments, WSF had to apply for and to obtain the required
permits before planting or harvesting geoducks.20
We hold, therefore, that the County properly issued cease and desist
orders for properties on which WSF engaged in non-permitted planting or
harvesting geoducks, except for the Tellefson and Ohlson properties.21
III. Growth Management Act (GMA): Working in Eel Grass Beds
In addition to the cease and desist orders to stop geoduck activities
in shoreline areas, based on WSF's failure to obtain the necessary
shoreline substantial development permits, the County also ordered WSF to
cease doing any type of work in eelgrass beds, geoduck-related or not,
because WSF had failed to obtain advance authorization under the Growth
Management Act (GMA), PCC 18E.60.020, to conduct work activities in
critical habitat areas.
WSF contends that the County could not prohibit work in eelgrass beds
under its GMA regulations, Title 18E PCC, because these regulations require
only that it must conduct its work in a manner sensitive to habitat
function without harming the eelgrass.22 Again, WSF's arguments fail.
A. Critical Areas -- Fish and Wildlife Habitat -- Eelgrass Beds
The GMA requires counties to develop regulations to assure
conservation of land and resources by designating critical areas, including
fish and wildlife habitat. RCW 36.70A.030(5), .060, and .170(1)(d).
Pierce County enacted development regulations for critical areas under
Title 18E PCC. These regulations require County approval for certain
activities in critical areas, such as dredging and destroying vegetation.
These regulations define 'critical areas' as wetlands, flood hazard
areas, fish and wildlife habitat areas, aquifer recharge areas, and
geologically hazardous areas. RCW 36.70A.030(5); PCC 18.25.030. Because
eelgrass beds are a fish and wildlife habitat, PCC 18E.40.020(D), they are
'critical areas' requiring County approval in order to conduct activities
that could adversely affect their habitat function. Cf. Orion Corp. v.
State, 103 Wn.2d 441, 460, 693 P.2d 1369 (1985); Bellevue Farm Owners Ass'n
v. State Shorelines Hearings Bd., 100 Wn. App. 341, 346 n.11, 997 P.2d 380,
review denied, 142 Wn.2d 1014 (2000). Thus, before engaging in any
activity in an eelgrass bed, WSF was required to obtain County
authorization, in addition to and separate from the shoreline substantial
development permits it was required to obtain under the County's SMA
regulations.
B. Cease and Desist Orders -- Eelgrass Beds
Dr. Thom testified that (1) he observed eelgrass beds on five WSF-
leased properties, including the County, Olson,23 Ryan, and Detienne
properties; and (2) the eelgrass likely existed before WSF began its
aquaculture and geoduck harvesting activities. The photo exhibits show
existing eelgrass beds where WSF is placing PVC pipes for planting geoduck
seeds on the County property. See Exhibit 13 (eelgrass at the County
site); Exhibits 50-59 (WSF employees planting PVC pipes at the County
site). This evidence shows that WSF conducted activities in eelgrass beds
on at least the leased County shoreline. It is undisputed that WSF lacked
the required GMA authorization.24 That WSF thereby violated County
regulations, specifically PCC 18E.60.020, supports the County's order that
WSF cease and desist from working in eelgrass beds.
We note that the PCC 18E portion of County's cease and desist orders
include all of WSF's leased properties. Nonetheless, these orders do not
command WSF to cease all work on all these properties. Rather, the orders
command WSF to cease only the described activity 'which is in violation of
the PIERCE COUNTY CODE,' namely PCC 18E.60.020. Therefore, insofar as WSF
was not working in eelgrass beds on some of its leased properties, either
because those properties did not contain eelgrass beds or because WSF was
conducting its activities away from eelgrass beds, the cease and desist
orders to stop working in eelgrass beds without authorization do not apply.
We hold that the County properly ordered WSF to cease working in
eelgrass beds on the Pierce County property, where the record shows and the
hearing examiner found that WSF was working without the necessary County
authorization.25
IV. Constitutional Rights
Finally, WSF argues that (1) the County's cease and desist orders
violated its right of procedural due process26 because the County failed to
provide notice and hearing before issuing these orders; and (2) the cease
and desist orders constituted an unconstitutional taking without just
compensation.27 Both arguments fail for lack of supporting argument in
WSF's brief.
First, although WSF complains that the County failed to give notice,
WSF provides little or no argument on this issue.28 Similarly, except for a
single sentence in its brief, WSF failed to make a takings argument.29
Accordingly, we need not address these issues. State v. Thomas, 150 Wn.2d
821, 868-69, 83 P.3d 970 (2004) (courts decline review for inadequate
arguments in brief).
We hold that the County did not violate WSF's constitutional right of
due process. And because WSF failed to exhaust administrative remedies and
to support adequately its argument on appeal, we will not consider its
constitutional takings claim.
Affirmed.
Hunt, J.
We concur:
Van Deren, A.C.J.
Penoyar, J.
1 The validity of this lease is the subject of separate litigation, which
is not part of this appeal.
2 WSF also harvested and planted manila clams on the Ohlson property.
3 The manila clam activity is not part of this appeal.
4 Although WSF eventually applied for the permits, apparently none had been
issued when the instant litigation began.
5 Two of these orders, which appear to be duplicates, collectively list ten
different parcel numbers. The other 10 orders list individual lots
separately, with all but one duplicating the collective orders.
6 Although the County's orders state PCC '18E.60.020,' it most likely meant
'18E.40.020.' We do not address this issue, if any, as neither party
raises it on appeal.
7 Paradise estimated that 100 to 150 people windsurf at various times on or
near the property WSF leased from Pierce County.
8 Title 20 PCC is the county's Shoreline Management Act regulations.
9 Working in eelgrass beds without authorization violates Title 18E PCC
(GMA). The hearing examiner, however, did not expressly mention this code
provision in reciting WSF's violations.
10 See RCW 36.70C.
11 See English Bay Enter., Ltd. v. Island County, 89 Wn.2d 16, 20, 568 P.2d
783 (1977). (mechanical clam harvesting is covered under the SMA because it
involves dredging).
12 WSF also argues that it merely disrupted, but did not remove, sand when
it used water jets to harvest geoducks. But the hearing examiner did not
expressly address WSF's sand removal; rather, he based his decision on
WSF's interference with the public's use of the surface water. Interfering
with public use of the surface water is a sufficient ground, standing
alone, to support the hearing examiner's findings and the cease and desist
orders as they relate to geoduck planting and harvesting. Thus, we do not
address whether disrupting sand provides a separate basis for requiring a
substantial development permit under Pierce County's shoreline regulations.
13 WSF apparently did not engage in geoduck planting or harvesting on the
Tellefson or Ohlson properties. We do not, however, address these
properties separately because WSF neither makes such distinction itself nor
asks us to distinguish these properties. Moreover, if WSF did not engage
in geoduck activities on the Tellefson and Ohlson properties, then the SMA
portion of the nominally applicable orders do not affect these properties.
14 Other chapters within the County's shoreline regulations contain a
'subject to' requirement similar to that in PCC 20.24.030(A). Also
similarly, several other shoreline 'use' regulations do not specify that a
substantial development permit is required. See, e.g., PCC 20.26
(breakwaters); PCC 20.44 (landfills).
15 In contrast, to engage in any non-geoduck harvesting activity, the
applicant may also need a conditional use permit, depending on the type
activity to be undertaken and the type of shoreline environment affected.
See PCC 20.24.030 (B) through (D). For example, the County may require a
conditional use permit for developments involving land-based structures in
a 'Conservancy Environment.' PCC 20.24.030(C); see also PCC 20.24.030(D).
16 See, e.g., PCC 18.25.030 (Sign, Identification-Residential), PCC
18A.33.050, PCC 18A.33.180, PCC 18A.35.060, PCC 18A.35.130-140, PCC
18A.85.040, PCC 19A.120.040, PCC 20.28.040.
17 See RCW 77.65.
18 See RCW 19.27.
19 See RCW 90.58; see also PCC 20.76.
20 WSF may also have failed to obtain a commercial shellfish license for
harvesting wild manila clams and geoducks under RCW 77.65.010. We need not
address this issue, however, because it is not before us in this appeal.
21 As we note above, the County does not dispute that WSF did not engage in
geoduck harvesting or planting on the Tellefson and Ohlson properties.
22 WSF argues that it was not required to obtain a permit under the SMA to
work in eelgrass beds unless the County can show that WSF's activities
actually adversely affected eelgrass. This argument also fails. The
County ordered WSF to cease working in eelgrass beds under its GMA (growth
management) regulations, Title 18E PCC, not under its SMA (shoreline)
regulations, Title 20 PCC. Whether WSF's activities adversely affected
eelgrass is irrelevant for purposes of the SMA's objective to protect
habitat from potential harm by requiring advance County approval before
work is undertaken in eelgrass beds.
23 The Olson property includes two separate, but contiguous, parcels of
land.
24 Although WSF admitted it had worked in eelgrass beds, it disputes that
this work damaged the eelgrass. Whether WSF's prior activities damaged or
adversely impacted eelgrass has no bearing on whether the County's GMA
regulations require WSF to obtain County approval before undertaking
operations in areas that contain fish or wildlife habitat, such as eelgrass
beds.
25 As we previously noted, the hearing examiner found that WSF worked in
eelgrass beds on the Pierce County property. Although the hearing examiner
found, as Dr. Thom testified, that eelgrass beds were present on four other
properties (Olson (two properties), Ryan, and Detienne) properties, the
hearing examiner did not specifically find that WSF worked in the eelgrass
beds on these properties. Thus, absent a finding that WSF worked in
eelgrass beds on these four properties, it did not violate PCC 18E.60.020
and, therefore, the County's order to cease and desist working in eelgrass
beds did not apply to these four properties.
26 U.S. Const. amend. XIV, sec. 1; Wash. Const. art. I, sec. 3.
27 Wash. Const. art. I, sec. 16.
28 We further note that WSF's due process claim also fails because WSF did
not have a valid existing property interest in planting or harvesting
geoducks on its leased land because it was undertaking these activities
with first obtaining the necessary County permits. Absent a valid property
interest, the County was not required to hold a hearing before issuing the
cease and desist orders. See Nguyen v. Dep't of Health, 144 Wn.2d 516, 526-
528, 29 P.3d 689 (2001) (hearing prior to professional license revocation).
29 WSF's takings claim also fails because WSF failed to raise this issue
during the administrative hearing below. Therefore, WSF cannot now claim
an unconstitutional taking for the first time on appeal. See Orion Corp.
v. State, 109 Wn.2d 621, 632, 747 P.2d 1062 (1987) (exhaustion of
administrative remedies required under the Washington Constitution).
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