Opinion
No. 60173-3-I.
August 4, 2008.
Appeal from a judgment of the Superior Court for King County, No. 07-2-11117-4, Jeffrey M. Ramsdell, J., entered May 25, 2007.
Affirmed by unpublished per curiam opinion.
The owners of a mole trapping business sued the Washington State Department of Fish and Wildlife (Department) for damages and simultaneously sought to enjoin the Department from enforcing provisions of the fish and wildlife enforcement code outlawing certain methods of trapping or killing animals. The superior court denied the owners' request for injunctive relief In addition, the court granted the Department's motion to dismiss the action under CR 12(b)(6). We affirm.
See RCW 77.15.900.
FACTS
In November 2000, Washington voters approved Initiative 713, which prohibited the use of body-grabbing traps and other devices to capture animals and banned the use of two poisons. Initiative 713 (I-713) is codified at RCW 77.15.192, .194, .196, and .198.
On March 27, 2007, Department officers executed a search warrant at the residence of David and Shari Krick, who own a business known as The Mole Guy, Inc. David Krick was advised that it was illegal to both use body-gripping traps to capture moles and to operate a commercial mole trapping service without a Trapper's license and a Nuisance Wildlife Control Operator's (NWCO) permit. During the course of the search, the officers seized various items, including certain business records and a sample of the scissor type traps used by employees of The Mole Guy, Inc., to capture moles. Following its investigation, the Department referred the matter to the King County Prosecutor for possible criminal charges.
David and Shari Krick, d/b/a The Mole Guy, Inc., (the Kricks) commenced this action against the Department for damages and simultaneously moved to enjoin the Department from enforcing the ban on the use of body-gripping traps to capture moles. The Kricks' motion for a temporary restraining order was denied. At a subsequent hearing, the trial court granted the Department's motion to dismiss the entire action under CR 12(b)(6). This appeal followed.
ANALYSIS
RCW 77.15.194(3) makes it unlawful to use a body-gripping trap "to capture any animal, except as provided in subsections (4) and (5) of this section." The term animal includes "any nonhuman vertebrate." "Body-gripping trap is defined as
a trap that grips an animal's body or body part. Body-gripping trap includes, but is not limited to, steel-jawed leghold traps, padded-jaw leghold traps, Conibear traps, neck snares, and nonstrangling foot snares. Cage and box traps, suitcase-type live beaver traps, and common rat and mouse traps are not considered body-gripping traps.
The grant or denial of an injunction is addressed to the sound discretion of the trial court. That discretion is to be exercised "according to the circumstances of each case." For purposes of granting or denying injunctive relief, the trial court's decision cannot be based upon untenable grounds, manifestly unreasonable, or arbitrary. Injunctive relief may be available to a party under the circumstances set forth in the injunction statute, RCW 7.40.020. The three criteria necessary for injunctive relief under the statute are
Alderwood Assocs. v. Washington Envtl. Council, 96 Wn.2d 230, 233, 635 P.2d 108 (1981).
Alderwood Assocs., 96 Wn.2d at 233.
In re Dependency of Q.L.M., 105 Wn. App. 532, 538, 20 P.3d 465 (2001).
RCW 7.40.020 provides in part:
Grounds for issuance. When it appears by the complaint that the plaintiff is entitled to the relief demanded and the relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which during the litigation would produce great injury to the plaintiff; or when during the litigation, it appears that the defendant is doing, or threatened, or is about to do, or is procuring, or is suffering some act to be done in violation of the plaintiff's rights respecting the subject of the action tending to render the judgment ineffectual; or where such relief, or any part thereof, consists in restraining proceedings upon any final order or judgment, an injunction may be granted to restrain such act or proceedings until further order of the court.
(1) that he has a clear legal or equitable right, (2) that he has a well-grounded fear of immediate invasion of that right, and (3) that the acts complained of are either resulting in or will result in actual and substantial injury to him.
Port of Seattle v. Int'l Longshoremen's Union, 52 Wn.2d 317, 319, 324 P.2d 1099 (1958).
Port of Seattle v. Int'l Longshoremen's Union, 52 Wn.2d 317, 319, 324 P.2d 1099 (1958).
Because all three of these criteria must be satisfied to warrant any relief, the failure to establish one or more of the criteria generally dictates that the relief requested be denied.
Wash. Fed'n of State Employees v. State, 99 Wn.2d 878, 888, 665 P.2d 1337 (1983).
The Kricks fail to adequately brief or argue their apparent claim that injunctive relief was improperly denied. They do not cite a single case dealing with injunctive relief or attempt to analyze the relevant factors. Passing treatment of an issue or lack of reasoned argument is insufficient to warrant judicial consideration. The Department cites to the well-settled rule that courts "`will not give relief on equitable grounds in contravention of a statutory requirement'" to assert that injunctive relief was properly denied in this case. Moreover, an injunction will generally not issue to prevent enforcement of a criminal law. Nor have the Kricks established a constitutional basis for injunctive relief.
Postema v. P.C.H.B., 142 Wn.2d 68, 123-24, 11 P.3d 726 (2000).
See In re Q.L.M., 105 Wn. App. at 539 (quoting Longview Fibre Co. v. Cowlitz County, 114 Wn.2d 691, 699, 790 P.2d 149 (1990)); Dep't of Labor Indus. v. Dillon, 28 Wn. App. 853, 855, 626 P.2d 1004 (1981) (equitable principles do not provide a basis for equitable relief in derogation of statutory mandates).
Sandona v. Cle Elum, 37 Wn.2d 831, 835, 226 P.2d 889 (1951).
The Kricks challenge the constitutionality of RCW 77.15.194(3). Because the "mole is probably at the bottom of the protected animal list" and scissor traps are the most effective means of lethally disposing of nuisance moles, the Kricks argue, they should be allowed to use scissor traps to combat mole problems in residential property. We disagree.
"Within constitutional constraints, the legislative branch has the power to define criminal conduct and assign punishment for such conduct." When the voters approve an initiative, they exercise the same power of sovereignty as the legislature does when it enacts a statute. Where the language of a statute enacted through the initiative process is "`plain, unambiguous, and well understood according to its natural and ordinary sense and meaning, the enactment is not subject to judicial interpretation.'"
State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995).
Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 204, 11 P.3d 762 (2000).
Amalgamated, 142 Wn.2d at 205 (quoting State v. Thorne, 129 Wn.2d 736, 762-63, 921 P.2d 514 (1996)).
By its very terms, I-713 clearly bans the use of body-gripping traps to capture certain animals, including moles. RCW 77.15.192(2) targets any trap that grips the body of an animal in some way. The scissor mole traps used by the Kricks clearly meet the definition of "body-gripping trap" in RCW 77.15.192(2).
The Kricks also appear to argue that the Department was required to hold a hearing before it can initiate an investigation into whether RCW 77.15.194(3) has been violated. They fail to cite any authority in support of this apparent due process claim. "`[N]aked castings into the constitutional sea are not sufficient to command judical consideration and discussion.'"
In re Rosier, 105 Wn.2d 606, 616, 717 P.2d 1353 (1986) (quoting United States v. Phillips, 433 F.2d 1364, 1366 (8th Cir. 1970)).
In addition, the Kricks appear to argue that the statute banning the use of body-gripping traps is unconstitutional because it interferes with a property owner's "ultimate right to defend his/her property and that right includes disposing of nuisance moles that are . . . causing damage to the property." We again disagree.
Brief of Appellant at 6.
The law is well settled that a property owner has a right to protect his or her property from wildlife damage under the state constitution. As the court in Vander Houwen explained:
State v. Vander Houwen, 163 Wn.2d 25, 28, 177 P.3d 93 (2008).
In [State v.] Burk, we held that landowners must be able to defend their property against destructive game. 114 Wash. [370, 376, 195 P. 16 (1921)]; see also Cook v. State, 192 Wash. 602, 611, 74 P.2d 199 (1937). In Burk, the court clearly stated, "it may be justly said that one who kills an elk in defense of himself or his property, if such killing was reasonably necessary for such purpose, is not guilty of violating the law." 114 Wash. at 376. This holding illustrates more than a common law principle; rather it recognizes "a constitutional right to show, if he could, that it was reasonably necessary for him to kill these elk for the protection of his property." [ 114 Wash. at 376] (emphasis added). We reaffirmed this constitutional right in Cook, holding that the Cooks would have been justified in killing animals that had damaged their property. See 192 Wash. at 611. Neither case has been overruled; thus the holding that one may reasonably defend property against wildlife damage is still correct law in Washington.
Even assuming the Kricks have standing to assert the constitutional rights of their clients, there is no showing that RCW 77.15.194(3) impermissibly infringes on any constitutionally protected rights or interests.
The Kricks waited until their reply brief to argue that the wildlife laws cannot be applied against "agents acting on behalf of the property owner" without violating the state constitution. Appellant's Reply Brief at 8. We need not consider an argument that is raised for the first time in a reply brief. Cowich Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). Moreover, the Kricks do not cite any authority in support of their argument. Our courts are generally reluctant to permit a litigant to assert the constitutional rights of another person. "In the ordinary course, a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties." Powers v. Ohio, 499 U.S. 400, 410, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991).
We presume that statutes enacted through the initiative process are constitutional. A party who challenges a statute on constitutional grounds "bears the heavy burden of establishing its unconstitutionality beyond a reasonable doubt."
Amalgamated Transit, 142 Wn.2d at 205.
Amalgamated Transit, 142 Wn.2d at 205.
It is true that Washington's fish and wildlife enforcement code does not abrogate a property owner's constitutional right to defend his or her property from wildlife damage. But the rights guaranteed under the state constitution and the requirements of I-713 are clearly not so inconsistent that they cannot be reconciled and both given effect. I-713 does not change a property owner's right to trap animals; it merely regulates the types of traps that may be used. "In this way, the initiative does not alter preexisting rights or duties to an impermissible degree."
Vander Houwen, 163 Wn.2d at 29.
Wash. Const. art. I, § 3 ("No person shall be deprived of life, liberty, or property, without due process of law.").
Citizens for Responsible Wildlife Mgmt. v. State, 149 Wn.2d 622, 643, 71 P.3d 644 (2003).
Citizens for Responsible Wildlife Mgmt., 149 Wn.2d at 643.
The Kricks did not brief nor provide any authority in support of an argument that the trial court erroneously dismissed their claim for damages against the Department. More importantly, the Kricks at trial appear to have abandoned any request for damages. In their response to the Department's motion to dismiss, the Kricks acknowledged that their "claim is not for damage but the restoration of the . . . right to protect [one's] property." We decline to consider the matter further.
Affirmed.