BEFORE THE FOREST PRACTICES APPEALS BOARD

STATE OF WASHINGTON

 

ED LAYMAN,                                   )

                                                            )

                        Appellant,                   )           FPAB No. 96-19

                                                            )

            v.                                             )

                                                            )           FINAL FINDINGS OF FACT,

STATE OF WASHINGTON,            )           CONCLUSIONS OF LAW

DEPARTMENT OF NATURAL      )           AND ORDER

RESOURCES,                                   )

                                                            )

                        Respondent.               )

______________________________)

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

            The matter is the appeal of a $10,000 civil penalty for allegedly harvesting timber without an approved forest practices application.

            Appearances were as follows:

            1.  Richard H. Bartheld, Attorney at Law, for the appellant.

            2.  Philip M. Ferester, Assistant Attorney General, for the respondent.

            The hearing was conducted in Yakima on October 18, 1996.

            Gene Barker and 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 concerns timber harvesting in Klickitat County.  The case concerns a promontory known as “Blockhouse Butte.”  The butte is located midway between Mt. Adams and Goldendale.

II

            In 1961, appellant, Ed Layman, bought an 80 acre parcel which included one-half of the butte.  The parcel had been logged in the 1950’s.  The Ponderosa pine logs from that operation were sold at a lumber mill.  This was not land clearing for another use.  We infer from these facts that the logging was done at a profit.  The site was in second growth Ponderosa pine at the time of appellant’s purchase.  This, and the stumps, served to put appellant on notice of the prior timber harvest.

III

 

            The parcel also had mining potential because the butte is actually a cinder cone made of the red, porous rock used in landscaping.  In 1978, the appellant asked the local Department of Natural Resources (DNR) agent to complete a mining permit application to allow removal of the red rock.  The application sought to mine 20 acres, though appellant would like to mine the entire 80 acre parcel.  A mining permit in response to the 20 acre application was approved by the DNR in 1979.  A pit of about 15 acres was then established to remove the red rock, and it remains in operation today.

IV

 

            In May, 1995, a DNR mining inspector received a complaint concerning an unstable wall at the head of the pit.  While on site to follow up on the mining complaint, the inspector noticed timber harvesting in progress involving a three man crew, heavy equipment and a log truck.  The inspector reported this information to the DNR forester for the area.  Upon investigating, the DNR forester found that the appellant had arranged for timber to be harvested from the butte.  In all, there were 30,500 board feet of timber[1] cut and removed.  Of this, 3,620 board feet (3/4 of a truck load) were sold to a lumber mill.  Although the mill is owned by appellant’s brother, the sale was at arm’s length and produced $1, 525 of revenue.  The remainder of the timber harvest was taken as firewood: 15 cords to the appellant for heating his shop, and 20 cords for the homes of the three man crew who cut the timber.  The cost out of pocket to appellant (aside from the 20 cords of wood) was $2,355 for a net expense of $830.

V

 

            In all, 25 acres were harvested.  About 4 acres were clear-cut.  About 21 acres were partial cut or thinned.  The clear-cut 4 acres were on an area adjacent to the pit which was expanded, in part to alleviate the unstable high wall which was the object of the prior complaint.

VI

 

            The DNR forester, a former professional timber cruiser, viewed the site after the harvest, and determined that the 25 acres where trees were taken were capable of supporting a merchantable stand of timber.

VII

 

            The DNR issued a notice to comply to the appellant on December 28, 1995.  The DNR then assessed a civil penalty against the appellant by written notice dated February 5, 1996.  The penalty notice cited the lack of an approved forest practices application.  The penalty amount was $10,000.  Appellant now appeals from this assessment of civil penalty. 

VIII

            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 Forest Practices Act is set forth at 76.09 RCW.  It provides that:

 

            No Class II, Class III, or Class IV forest practice shall be commenced or continued after January 1, 1975, unless the department has received a notification with      regard to a Class II forest practice or approved an application with regard to a Class III or Class IV forest practice....  RCW 76.09.050(2).

 

The appellant concedes that he made no notification or application under the above provision.  Rather, he urges that 1) none was required because his timber harvesting was not a forest practice or, alternatively, 2) his timber harvesting was a Class I forest practice which does not require a notification or application.  We disagree.  Our reasoning follows.

II

 

            “Forest Practice”.  A “forest practice” is defined as :

 

            ...any activity conducted on or directly pertaining to forest land and relating to growing, harvesting or processing timber....

WAC 222-16-010.

 

Appellants timber harvest was therefore a forest practice if it was conducted on “forest land.”

 

III

 

            “Forest Land” The term “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. WAC 222-16-010.

 

IV

 

            “Merchantable Stand of Timber” The term “merchantable stand of timber” means:

 

            ...a stand of trees that will yield logs and/or fiber:

Suitable in size and quality for the production of lumber, plywood, pulp or other forest products; Of sufficient value at least to cover all costs of harvest and transportation to available markets.

WAC 222-16-010.

 

V

 

            The foregoing definitions do not require that the particular harvest in question be profitable, and appellant’s was not.  Rather, the statutory issue is whether the land in question was “capable of supporting” a stand of trees that will yield forest products of sufficient value to cover the costs of harvest and transportation.  The 25 acres where trees were taken here are capable of supporting a merchantable stand of timber.  Moreover, it was not, prior to the harvesting in this case, being actively used for a use which is incompatible with timber growing.  It is therefore “forest land” and the harvesting upon it in this case was a “forest practice.”  See DNR v. Marr, 54 Wn. App. 589, 774 P.2d 1260 (1989).

VI

 

            Class I Forest Practice.  Class I forest practices are set forth at WAC 222-16-050 (3).  These do not require a notification or approved application.  Appellant claims that his activities fall under either WAC 222-16-050 (3) (k) relating to the cutting of less than 5,000 board feet or WAC 222-16-050 (3) (i) relating to precommercial thinning.  We take these up in turn.

VII

            Five Thousand Board Feet.  The following is a Class I forest practice under

WAC 222-16-050 (3) (k):

 

            Cutting and/or removal of less than 5,000 board feet of timber (including live,    down and dead material) for personal use (i.e., firewood, fence posts, etc.) in any 12-month period.

Emphasis added.

 

The appellant’s timber harvest was in excess of 5,000 board feet.  It was not within this Class I category for that reason.  The appellant’s harvest was partly sold to a lumber mill, and was therefore not “for personal use.”  For that further reason it was not within this Class I category.

VIII

 

            Precommercial Thinning.  The following is a Class I forest practice under

WAC 222-16-050 (3) (i):

                        “Precommercial thinning and pruning.”

 

The term “precommercial thinning” is not specially defined.  Where words in a statute or regulation are not specially defined, they must be given their usual and ordinary meaning.  State v. Friend, 59 Wn. App. 365, 367, 797 P.2d 539 (1990).  A dictionary may be used. Id and Discipline of Blauvelt, 115 Wn. 2d 735, 741, 801 P.2d 235 (1990).  Webster’s Third New International Dictionary 1783 (1971) defines the prefix “pre” as meaning “earlier than, prior to or before.”  The same reference at 456 defines “commercial” as “of, in, or relating to commerce.”  It then defines “commerce” at the second definition, which is pertinent here, as “the exchange or buying and selling of commodities esp. on a large scale and involving transportation from place to place”.  While not on a large scale, we conclude that appellant’s sale of logs to a lumber mill was the buying and selling of commodities which constitutes commerce.  As such it was not “pre” commercial, and for that reason was not within this Class I category.  The appellant’s harvest also involved a 4 acre clear-cut. For that further reason it was not within this Class I category.

IX

 

            Mining Permit.  The parties hold different views of the scope of the surface mining permit issued in 1979.  We lack jurisdiction to resolve that question.  However, assuming that the mining permit were applicable to the 25 acres where appellant’s timber harvest occurred, nothing within that fact would alter the requirements of the Forest Practices Act.

X

 

            Violation.  Appellant violated RCW 76.09.050(2) of the Forest Practices Act by conducting forest practices (other than Class I) without notification or an approved application.

XI

 

            Amount of Penalty. The base penalty for violation of RCW 76.09.050 is $2,000.  In this case, however, the appellant has a long record of previous violations.  These are listed here:

            1. Civil Penalty, June 28, 1994: Harvest of timber without an approved application.       Sections 29, 31 and 32, T5N, R16E.

            2. Stop Work Order, February 22, 1994: Not complying with the conditions of an        approved application (including harvesting timber from a no-entry riparian management           zone).  Section 23, T6N, R16E.

            3. Notice to Comply, March 23, 1993: Harvest of timber without an approved application.        Section 32, T5N, R18E.

            4. Notice to Comply, March 23, 1993: Harvest of timber without an approved application.        Section 31, T5N, R18 E.

            5. Notice to Comply, March 23, 1993: Harvest of timber without an approved application.        Section 30 T5N, R18E.

            6. Stop Work Order, June 22, 1990: Harvest of timber without an approved application.

 

XII

 

            In the “Notes on Informal Conference” conducted in connection with the March 23, 1993, Notices to Comply, the DNR representative recorded the following:

            ...Ed stated it takes so long to do all the paperwork to get a permit that it is better             just to log.  I asked if that meant he was willing to break the law by not applying for the proper permits just because it took too long to do the paperwork?  He replied ‘yes’.

Exhibit R-9.

XIII

 

            Under the penalty assessment rules:

 

            ...A history of violations with adverse impacts or potential for adverse impacts or that shows a pattern of ignoring the rules or the act, shall result in a substantially larger penalty.

            ...For this factor, up to quadruple the base penalty may be added to the penalty.            WAC 222-46-060 (3) (b) (iv).

 

XIV

 

            In this case, the appellant’s prior record is an aggravating factor which should result in a penalty progressively higher than prior penalties.  We take official notice of the civil penalty just prior to this one which was set by an agreed order on appeal at $4,000.  See Ed Layman Logging v. Department of Natural Resources, FPAB No. 94-24 (1996).  This penalty should exceed that amount, and be sufficient to enforce the observance of legislative policy.

XV

 

            In this case also, there are mitigating factors.  No penalty was assessed upon the basis of potential damage or actual damage to a public resource.  Second, the appellant, landowner, has received no substantial economic benefit from the violation.  See WAC 222-46-060 (3) (vi) which describes this as one among several mitigating factors.  Were all factors present there would be no penalty.  Because only lack of economic benefit is present here, it should mitigate but not obviate the penalty in this case.  For these reasons, the penalty should be less than the maximum penalty allowed by law.  The maximum penalty is $10,000.  RCW 76.09.170 (1).

XVI

 

            The appropriate penalty in consideration of both the aggravating and mitigating factors in this matter is $8,000.  This is sufficient to enforce the observation of legislative policy, and is not excessive in light of this and prior violations. 

XVII

 

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

From the foregoing, the Board issues this:

 

ORDER

 

            The $10,000 civil penalty is abated to $8,000 and is affirmed, hereby, in that amount.

 

            DONE at Lacey, Washington this 17th day of December, 1996.

 

HONORABLE WILLIAM A. HARRISON

Administrative Appeals Judge

 

FOREST PRACTICES APPEALS BOARD

 

DR. MARTIN R. KAATZ, Chairman

 

                                                            ROBERT E. QUOIDBACH, Member


                                                            GREGORY T. COSTELLO, Member

 

 

F96-19F


[1] We take official notice of the mathematical calculation in the DNR’s Closing Statement at page 8, footnote 10, which, among other things, converts the timber cut from cords to board feet.