BEFORE THE FOREST PRACTICES APPEALS BOARD

STATE OF WASHINGTON

 

GEORGE F. HEIDGERKEN,          )

                                                            )           FPAB NO. 94-18

                        Appellant,                   )

                                                            )

            v.                                             )           FINAL FINDINGS OF FACT,

                                                            )           CONCLUSIONS OF LAW

STATE OF WASHINGTON,            )           AND ORDER

DEPARTMENT OF NATURAL      )

RESOURCES,                                   )

                                                            )

                        Resources,                 )

______________________________)

 

            This matter came on before the Honorable William A. Harrison, Administrative Appeals Judge, presiding, and Board Members Dr. Martin R. Kaatz, Robert E. Quoidbach, and Gregory T. Costello.

            The matter is an appeal from a $10,000 civil penalty and notice of intent to disapprove future forest practice applications for the period of one year for alleged failure to meet reforestation requirements.

            Appearances were as follows:

            1.         Craig A. Ritchie, Attorney at Law, for the appellant.

            2.         John E. Justice, Assistant Attorney General, for the respondent.

            The hearing was conducted at Lacey, Washington, on May 20, 1996

            Gene Barker & Associates, Olympia, provided court reporting services.

            Witnesses were sworn and testified.  Exhibits were examined.  From testimony heard and exhibits examined, the Forest Practices Appeals Board makes these

 

FINDINGS OF FACT

 

I

 

            This matter arises in Grays Harbor County near Iron Springs.  It concerns a parcel of land of some 340 acres, formerly forested with coastal hemlock.  The appellant, George Heidgerken, bought the land and timber from the Weyerhaeuser Company shortly before the facts of this case.

II

            In 1989, the appellant filed a forest practices application for the site with the respondent, the Washington State Department of Natural Resources (DNR).  Appellant’s application: 1) sought permission to harvest 270 acres of timber from the site, of which 240 acres were to be clearcut and 30 acres to be partial cut, 2) declared that he did not intend to develop the land within 3 years, and 3) declared that he would reforest the site by planting Douglas Fir seedlings at the density of 300 stems per acre by 1991.  The dispute in this case concerns whether there has been reforestation at the reduced and minimum density of 190 stems per acre, evenly distributed.  Reference to reforestation hereafter is to that reduced density.

III

            In June, 1990, the harvest was completed.  The timber yielded approximately $2,325,000 in gross income.  This amount was sufficient to pay the cost of harvest, the cost of the property, and result in approximately $312,000 of net proceeds.  The cost to reforest the harvested acreage, shortly after harvest, would have been between $16,000 and $20,000. 

IV

            The site has not been adequately reforested down to the present time.  The site is not well suited to natural regeneration, which has been minimal.  The appellant submitted proof of purchase for $660 worth of seedlings.  His own estimate of the amount needed was $11,628 for 340 acres which, proportionate to the 270 acres, would be over $9,000.  Of the 270 acres, only about 50 are adequately reforested, either by natural regeneration or planting.  The other 220 acres remain inadequately reforested at an average of 46 stems per acre, unevenly distributed.  Brush has grown up since the harvest and gained a foothold that makes it an obstacle to reforestation.  The cost to clear away the brush, by aerial spraying or mechanical or hand clearing, would significantly increase the cost of reforestation today, relative to reforestation costs soon after the harvest.

V

            From the harvest in 1990 to the present time, there has been planning by the appellant for the development of the site.  This has included the drawing up of site plans, one of which was admitted as Exhibit A-2 on this record.  Despite this, no active use of the site has ever been made which is incompatible with timber growing.

VI

            The site is taxed by the county at its “highest and best use” which is not deemed by the county to be forestry.  The site is zoned by the county for one residence in 5 acres.

VII

            The DNR issued a Notice to Comply to the appellant requiring reforestation to be completed by February 15, 1994.  When this did not occur, the DNR assessed a $10,000 civil penalty against the appellant in March, 1994, and, in April, 1994, issued him a Notice of Intent to Disapprove future forest practices applications for the period of one year.  The appellant now appeals from the notice to comply, the civil penalty and notice of intent to disapprove.

VIII

            While this appeal was pending here, the appellant and the DNR agreed to a “Motion, Stipulation and Order of Conditional Dismissal” entered on November 14, 1994.  That stipulation provided that: 1) the appellant shall re-plant all portions of the 270 acres by December 30, 1995, and 2) that if such re-planting occurs, the civil penalty and notice of intent to disapprove would be canceled by DNR.  The appellant did not perform the re-planting either as agreed, by

December 30, 1995, or afterward.

IX

            Any Conclusion of Law deemed to be a Finding of Fact is hereby adopted as such.

From these Findings of Fact, the Board issues these:

 

CONCLUSIONS OF LAW

I

            The “Motion, Stipulation, and Order of Conditional Dismissal” (“agreement”) reached by the parties provides for the reinstitution of this appeal should reforestation not occur by

December 30, 1995.  The issues are then limited by that agreement to these:

                        1. Was there compliance with this agreement?

                        2. Is the civil penalty reasonable?

                        3. Is the notice of intent to disapprove future forest practice applications                                                   reasonable?

II

            Compliance with the Agreement.  The appellant has failed to re-plant all portions of the 270 acres by December 30, 1995, as required by paragraph 4(d) of the agreement, and therefore is not in compliance with the agreement.  The agreement, in turn is well grounded upon the obligation of a forest landowner to reforest:

            After the completion of a logging operation, satisfactory reforestation as defined by the rules and regulations promulgated by the board shall be completed within three years.  RCW 76.09.070. 

 

The 3 year deadline for reforestation in this case fell in June, 1993, was extended by the Notice to Comply to February 15, 1994, and that extension further extended by the agreement to

December 30, 1995, all without effect.

III

            The appellant has failed to re-plant all portions of the 270 acres to a density of 190 stems per acre, as required by paragraph 4(a) of the agreement, and therefore is not in compliance with the agreement.  The agreement, in turn, is well grounded upon the minimum reforestation stocking level required west of the Cascades:

WAC 222-34-010(2)  Acceptable stocking.  Stocking levels are acceptable if a minium of 190 well-distributed vigorous, undamaged seedlings per acre of commercial tree species or such lesser number as the department determines will reasonably utilize the timber growing capacity of the site, have survived on the site at least 1 growing season.  “Well-distributed” means that not more than 20 percent of the harvested area contains less than a minimum of 150 seedlings per acre as determined by the department.

 

No number less than 190 stems per acre was found by the DNR to reasonably utilize the capacity of the site, and 190 stems per acre is the minimum.

IV

            Appellant argues that the site in question has been converted to another use than forestry, and that the reforestation obligation has therefore been released.  As evidence of the alleged conversion to another use, the appellant points to his future plans for development, the tax status of the site and its zoning.  None of these establish a conversion to another use which releases the reforestation obligation at RCW 76.09.070, above. 

V

            “Reforestation” is included within the term “forest practice”.  RCW 76.09.020(8).  A “forest practice”, in turn, is “conducted on or directly pertaining to forest land”.  Id.  “Forest land” is defined as:

            ...all land which is capable of supporting a merchantable stand of timber and is not being actively used for a use which is incompatible with timber growing.” RCW 76.09.020(6),

Emphasis added.

 

Moreover, “conversion to a use other than commercial timber production” is defined as:

...a bona fide conversion, to an active use which is incompatible with timber growing            and as may be defined by forest practices regulations. RCW 76.09.020 (4), Emphasis added.

 

VI

            Thus, land ceases to become “forest land” under the Forest Practices Act, and becomes converted to a use other than commercial timber production, and is eligible for release from the reforestation obligation, only when an active use arises which is incompatible with timber growing.  No such active use has arisen on this site.  By contrast, both taxing and zoning provisions can attach in the absence of active land use, as here, to recognize or limit potential land use.  Taxing and zoning provisions are thereby distinguishable and not controlling on the question of reforestation.  Similarly, harvested forest land like the site in question does not lose its character as forest land merely because it is harvested.  As shown by the harvest itself, the site is capable of supporting a merchantable stand of timber as provided in the definition of “forest land” at RCW 76.09.020 (6), set forth above.  The site in question is forest land, has not been converted to another use incompatible with timber growing, and the reforestation obligation has not been released.

VII

            Reasonableness of the Sanctions.  The reasonableness of the sanctions, both the civil penalty and notice of intent to disapprove future applications, involves two sub-issues.  The first is appellant’s contention that the sanctions are applied retroactively.  The second concerns whether the sanctions are appropriate on the facts of this case.

VIII

            As to the claim of retroactive application, the sanctions imposed by DNR were authorized by amendments to the Forest Practices Act effective January 1, 1994.  In particular, the civil penalty amount was increased from $500 to $10,000 per violation by the amendment of RCW 76.09.170.  The authority to disapprove future forest practices applications was added by the amendment of RCW 76.09.140.  The sanctions were not, however, applied retroactively.  In State v. Belgarde, 119 Wn.2d 711, 722, 837 P. 2d 599 (1992), the Court stated that the test for determining if a law is being applied retroactively is:

...whether the event triggering its application occurred before or after the amendment took effect: 

‘A statute operates prospectively when the precipitating event for [its] application...occurs after the effective date of the statute, even though the precipitating event had its origin in a situation existing prior to the enactment of the statute.’

 

Aetna Life Ins. Co. v. Washington Life & Disab. Ins. Guar. Ass’n, 83 W. 2d 523, 535      520 P.2d 162 (1974).

 

In this case, the precipitating event for the sanctions was the appellant’s violation of the reforestation requirements of the Forest Practices Act.  Though that precipitating event had its origins prior to the amendments’ effective date, the violation is a continuing one. The precipitating event occurs after the effective date.  That is true also if the precipitating event is seen as either the notice to comply by February 15, 1996, or extension of that date by the agreement to December 30, 1995.  Either date follows the effective date of the amendments.  The sanctions, both the civil penalty and the notice of intent to disapprove, were applied prospectively.

IX

            The sanctions are also appropriate on the facts of this case.  The violation of the reforestation requirements by the appellant was a significant deviation from an approved forest practice application.  Under WAC 222-46-065, this results in a base penalty of $2000.  Double that amount should be added, under WAC 222-46-060 (3) (b) (i), (ii), and (iii), for each of the respective factors of repairability, intention and cooperation.  Repairability because the appellants actions have allowed brush to establish itself as a substantial obstacle to reforestation, intention because of the foreseeability of the violation, and cooperation because the appellant has made little attempt to correct the problem.  That sustains the maximum civil penalty of $10,000 assessed by DNR.  Finally, the sanctions are proportionate to (or less than) the cost of adequate reforestation even in the first instance.  The sanctions not excessive, and should be affirmed.

X

            Any Finding of Fact deemed to be a Conclusion of Law is hereby adopted as such.

From the foregoing, the Board issues this:

 

ORDER

            1.  The appellant, has not complied with the “Motion, Stipulation and Order of Conditional Dismissal” entered November 14, 1994.

            2.  The civil penalty of $10,000 and notice of intent to disapprove forest practices applications for the period of one year are each reasonable, and are each hereby affirmed.

            DONE at Lacey, Washington this 2nd day of July, 1996.

 

                                                            HONORABLE WILLIAM A. HARRISON

                                                            Administrative Appeals Judge

 

                                                            FOREST PRACTICES APPEALS BOARD

 

                                                            DR. MARTIN R. KAATZ, Member

 

ROBERT E. QUOIDBACH, Member

 

GREGORY T. COSTELLO, Member