Opinion
No. 30775-8-II.
Filed: June 2, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Thurston County. Docket No. 02-2-00732-2. Judgment or order under review. Date filed: 07/25/2003. Judge signing: Hon. Richard a Strophy.
Counsel for Appellant(s), Paul David Doumit, Attorney at Law, 121 X St. SW, Tumwater, WA 98501-1336.
Counsel for Respondent(s), Amy Jones MacKenzie, Attorney at Law, 1125 Wasington St. SE, PO Box 40100, Olympia, WA 98504-0100.
The holder of a crab license appeals an order reducing the amount it allows him to take. We affirm.
According to WAC 220-52-040 and RCW 77.70.390, the holder of a crab-coastal fishery license is entitled to operate 500 crab pots only if he or she landed at least 36,000 pounds of crab in one of three qualifying seasons, or `extenuating circumstances' prevented him from doing that. WAC 220-52-040(13)(b) provides:
(b) The following criteria shall be used to determine and assign a shellfish pot limit to a Dungeness crab-coastal fishery license . . .
(i) The three `qualifying coastal Dungeness crab seasons' are from December 1, 1996, through September 15, 1997, from December 1, 1997, through September 15, 1998, and from December 1, 1998, through September 15, 1999. Of the three qualifying seasons, the one with the most poundage of Dungeness crab landed on a license shall determine the crab pot limit for that license. A crab pot limit of 300 shall be assigned to a license with landings that total from zero to 35,999 pounds and a crab pot limit of 500 shall be assigned to a license with landings that total 36,000 pounds or more.
RCW 77.70.390 provides in part:
The director may reduce the landing requirements . . . but the director may not entirely waive the landing requirement. The advisory review board may recommend a reduction of the landing requirement in individual cases if in the advisory review board's judgment, extenuating circumstances prevented achievement of the landing requirement. The director shall adopt rules governing the operation of the advisory review board and defining `extenuating circumstances.' Extenuating circumstances may include situations in which a person had a vessel under construction such that qualifying landings could not be made.
Until 2000, William Wade held a crab-coastal fishery license number that entitled him to operate 500 pots. On September 25, 2000, however, the Department of Fish and Wildlife reduced his pots from 500 to 300, because he had not landed 36,000 pounds in any of three qualifying seasons.
Since 2000, Wade's successor in interest has been Raymond Toste.
Wade appealed administratively. He did not claim that he had landed 36,000 pounds in any one of the three qualifying seasons, but he did claim `extenuating circumstances[.]' He stated that he was `67 years old[,]' that he had `slowed down considerably the last few years[,]' and that his body was `just [worn] out' due to his age. He stated that he was suffering from physical impairments such as a herniated disk, `bad sciatic nerve,' and difficulty seeing at night. He stated that he is unable to `fish at night with lights, like a lot of the people do.' He alleged interference from tribal fishers, and that he had been affected by the weather.
Administrative Record (AR) at 3.
AR at 23; Administrative Report of Proceedings (ARP) (Oct. 31, 2001) at 13.
ARP (Oct. 31, 2001) at 11.
ARP (Oct. 31, 2001) at 10.
A year later, a hearing officer found a lack of extenuating circumstances. He stated:
[Wade's medical conditions] may have limited his participation in the crab fisheries, but he has not demonstrated that these circumstances actually prevented achievement of the landing requirements. Given [Wade's] limited ability to participate in the fisheries, [Wade] had alternatives such as hiring an alternative operator or leasing the vessel to other fishers. As such, the failure to meet the landing requirements would not be considered beyond his control and as such would not be considered an extenuating circumstance. Even if these circumstances would be considered extenuating, the evidence establishing that on a more-likely-than-not basis that [Wade] would have landed 36,000 pounds or more but for his medical condition is lacking.
[Wade] identified [tribal fishers] as an extenuating circumstance. The problems associated [with tribal fishers] would not be considered unforeseen.
AR at 6-7 (citations omitted).
Wade appealed to superior court and, after that court affirmed, to this court.
Wade concedes on appeal that he `did not meet the landings requirement.' Accordingly, the only issue for us is whether Wade has shown `extenuating circumstances' so clearly that reasonable minds could not differ. If reasonable minds could differ, the issue is one of fact for the fact-finder, not this court, to resolve.
Br. of Appellant at 3.
Kunkel v. Meridian Oil, Inc., 114 Wn.2d 896, 903, 792 P.2d 1254 (1990); Greene v. Greene, 97 Wn. App. 708, 714, 986 P.2d 144 (1999).
According to WAC 220-16-410, `extenuating circumstances' are circumstances that lessen the seriousness or magnitude of an act, and which are to be considered in determining if an individual is to be granted extraordinary relief. Such personal characteristics as age, education, fishing experience, and physical capability, as well as other personal characteristics, and such physical circumstances as weather, age of vessel, and vessel propulsion mechanism, as well as other physical circumstances, may be considered when reviewing a set of facts for extenuating circumstances.
Wade cites and relies on Towle v. Dep't of Fish and Wildlife. In that case, the Department denied a crab license because the applicant had not met landing requirements. The cause of the applicant's failure, however, was that the Department had delayed the opening of crab season. Thus, the applicant had shown `extenuating circumstances' and was entitled to retain his license.
94 Wn. App. 196, 971 P.2d 591 (1999).
According to the hearing officer in this case, Wade did not show that his age, medical condition, and other circumstances had `actually prevented achievement of the landing requirements.' The cause of Wade's not having landed at least 36,000 pounds in any one of the three qualifying seasons was a factual question, on which we must affirm if the hearing officer's determination is supported by substantial evidence. Such evidence exists here, particularly since credibility is a matter for the trier of fact. Accordingly, we cannot say that the hearing officer erred.
AR at 6.
Org. to Pres. Agric. Lands v. Adams County, 128 Wn.2d 869, 882, 913 P.2d 793 (1996); State ex rel. Evergreen Freedom Found. v. Washington Educ. Ass'n, 111 Wn. App. 586, 613, 49 P.3d 894 (2002), review denied, 148 Wn.2d 1020 (2003).
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT, J., and QUINN-BRINTNALL, C.J., Concur.