* Dave Honeywell, Appellant V. Washington State Department Of Ecology, Respondent

NOTICE: SLIP OPINION
(not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the
written opinions that are originally filed by the court.
A slip opinion is not necessarily the court’s final written decision. Slip opinions
can be changed by subsequent court orders. For example, a court may issue an
order making substantive changes to a slip opinion or publishing for precedential
purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits
(for style, grammar, citation, format, punctuation, etc.) are made before the
opinions that have precedential value are published in the official reports of court
decisions: the Washington Reports 2d and the Washington Appellate Reports. An
opinion in the official reports replaces the slip opinion as the official opinion of
the court.
The slip opinion that begins on the next page is for a published opinion, and it
has since been revised for publication in the printed official reports. The official
text of the court’s opinion is found in the advance sheets and the bound volumes
of the official reports. Also, an electronic version (intended to mirror the
language found in the official reports) of the revised opinion can be found, free of
charge, at this website: https://www.lexisnexis.com/clients/wareports.
For more information about precedential (published) opinions, nonprecedential
(unpublished) opinions, slip opinions, and the official reports, see
https://www.courts.wa.gov/opinions and the information that is linked there.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
i DIVISION ONE
DAVID and NANCY HONEYWELL, )
d/b/a/ ORCA DREAMS LLC, ) No. 75457-2-I
)
Appel!anis, ) ORDER GRANTING MOTION
) TO PUBLISH
V. ))
WASHINGTON STATE DEPARTMENT)
OF ECOLOGY, )
)
. Respondent. )
The respondent, Washington State Department of Ecology, has filed a motion to
publish herein. The appellants; David and Nancy Honeywell, have filed an answer to
the motion. The court has taken the matter under consideration and has determined
that the motion should be granted.
Now,therefore, it is hereby
,
ORDERED that the Motion to publish tIIe opinion filed in the above-entitled
matter on October 16, 2017,:is granted. The opinion shall be published and printed in
i
the Washington Appellate Reports.
Done this 1146 day Of 'ii 1PP I 2017.
FOR THE COURT:
A
rn
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DAVID and NANCY HONEYWELL, ) ...,<=.
d/b/a/ ORCA DREAMS LLC, ) No. 75457-2-1 —.
) CD
C-.)
Appellants, ) DIVISION ONE .--i
—
) a,
V. ) UNPUBLISHED OPINION —
••
WASHINGTON STATE DEPARTMENT)
OF ECOLOGY,
Respondent. ) FILED: October 16, 2017
TRICKEY, J. — David and Nancy Honeywell d/b/a Orca Dreams LLC
(collectively, the Honeywells) appeal a decision of the Shorelines Hearings Board
(SHB). The SHB affirmed the Washington State Department of Ecology's(DOE)
$55,000 shoreline violation civil 'penalty against the Honeywells. The Honeywells
argue that the SHB erred in concluding that cutting each regulated tree was a
separate violation of the Shoreline Management Act of 1971 (SMA),chapter 90.58
RCW;acted arbitrarily and capriciously when it affirmed the DOE's use of a penalty
matrix; erred in finding that 80 regulated trees were cut; and erred in concluding
that the penalty the DOE imposed was reasonable. Finding no error, we affirm.
FACTS
In July 2013, the Honeywells purchased 30 acres of land on the
southwestern shoreline of San Juan Island after winning the Powerball lottery.
They later purchased 10 more acres. The Honeywells intended to develop the
property into a family retreat, including building a new primary residence. The
waters adjacent to the Honeywells' property are categorized as a "shoreline of
statewide significance" under the SMA..
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 75457-2-1/2
In the fall of 2013, the Honeywells hired Ben Engle to trim brush on the
property.1 Engle worked on the property extensively, and the Honeywells paid him
and his crew over $50,000.
On December 13, 2013, John Genuich, the chief building official for San
Juan County (the County), responded to a complaint of tree cutting on the
Honeywells' property. Genuich saw that approximately 200 yards of hillside along
the slope had been completely cleared of trees and vegetation. He posted a stop
work order.
On December 14, 2013, David Honeywell observed the condition of the
hillside for the first time. The Honeywells then began to rectify the damage.
On December 16,2013, County code enforcement officer Christopher Laws
and DOE supervisor Paul Anderson visited the Honeywells' property. Laws and
Anderson documented the damage. Laws posted a County emergency order,
which required the Honeywells to stop work on the shoreline and install sediment
and erosion controls. The DOE and the County agreed that the County would lead
the enforcement action and that the DOE would provide technical assistance.
On February 6, 2014, the County issued a notice of violation(NOV)for the
shoreline clearing. The County assessed the Honeywells and Engle separate
61,000 penalties. The Honeywells were required to develop a restoration plan by
1 The Honeywells repeatedly emphasize that they did not order Engle to cut the trees. The
Honeywells do not argue that they are not proper parties to this case or that Engle should
be solely responsible for the penalty.
2
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 75457-2-1/3.
March 27, 2014.
The Honeywells worked toward complying with the NOV,and Laws granted
the Honeywells an extension to August 31, 2014. Anderson grew concerned
because he had not been consulted about the extension and he believed that the
restoration should be completed as soon as possible.
In June 2014, Anderson and Doug Gresham, a DOE wetland biologist,
visited the Honeywells' property to collect data on the size and type of trees that
had been cut. Anderson counted 80 stumps of trees with diameters from 5 to 32
inches, which would have had a diameter at breast height of at least 3 inches.
Based on his calculations, Anderson determined that "the riparian forest that had
been cleared was at least an 80-year-old stand."2 Northwest Ecological Services,
LLC(NES),a company the Honeywells retainedcprepared a report that concluded
that 34 Douglas firs and alders were cut and 33 Scouler's willows were cut.3
The DOE's Shorelines Environmental Assistance(SEA) program imposed
a shoreline penalty of $55,000 on the Honeywells for the unauthorized removal of
vegetation, including the 80 trees counted by Anderson and Gresham. The DOE
treated the cutting of each tree with a diameter greater than 5 inches as a separate
violation. The SEA program developed a penalty matrix that categorized cut trees
based on their size, which resulted in a $56,000 penalty. The DOE credited the
2 Administrative Record (AR)at 1593.
3 At the SHB hearing, the parties argued on the issue of whether or not Scouler's willows
were trees. See. e.o., Report of Proceedings(RP)(July 22, 2015) at 308-09(Anderson's
testimony about whether Scouler's willows were classified as trees). Honeywell is not
challenging the classification of Scouler's willows as trees on appeal.
3
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 75457-2-1./4
Honeywells for' the $1,000 civil penalty already issued by the County, which
reduced the penalty to $55,000.
The Honeywells filed a petition for review of the shoreline penalty with the
SHB. The SHB ruled on summary judgment that the DOE had the authority to
impose a civil penalty separate from the County and that the penalty amount was
not capped at $1,000, The SHB held a hearing and affirmed the $55,000 civil
penalty.
The Honeywells appealed the SHB's decision to the Island County Superior
Court. The trial court affirmed the SHB's decision.
The Honeywells appeal.
ANALYSIS
Eadh Regulated Tree as a Separate Violation
The Honeywells argue that the SHB erred in affirming the DOE's penalty
because RCW 90.58.210 and WAC 173-27-280 limit the DOE to imposing a
$1,000 penalty per violation and the Honeywells' single violation was cutting
regulated trees without a permit.4 Because we conclude that it is proper to
consider each cut tree as a separate violation, we disagree.5
4 The Honeywells also contend that the SHB erred by approving the DOE's penalty
because the DOE exceeded its rule making authority when it promulgated WAC 173-27-
260 and WAC 173-27-280. The Honeywells did not raise this issue before the SHB or the
Island County Superior Court. "Issues not raised before the agency may not be raised on
appeal" absent specified circumstances. RCW 34.05.554(1). The circumstances under
which a party may raise an issue for the first time on appeal are not present here. RCW
34.05.554(1)(a)-(d). We decline to address this argument.
6 The Honeywells argue that the SHB erred In affirming the DOE's civil penalty because
the DOE's actions are inconsistent with the regulatory reform act of 1995. Chapter 43.05
4
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 75457-2-1/5
This court looks to a statute's plain language to determine the statute's
meaning. Campbell v. Dep't of Soc.& Health Servs., 150 Wn.2d 881,894,83 P.3d
999 (2004). A statute is ambiguous if it is subject to more than one reasonable
interpretation. City of Seattle v. Winebrenner, 167 Wn.2d 451,456, 219 P.3d 686
(2009).
If a statute's plain language is ambiguous, this court may review the
statute's legislative history, including legislative bill reports, to help determine a
statute's intent. Dep't of Ecology v. Campbell & Gwinn. L.L.C., 146 Wn.2d 1, 11-
12,43 P.3d 4(2002). This court looks to the whole statute and must interpret it to
avoid absurd results. Pub. Util. Dist. No. 1 of Pend Oreille County v. Dep't of
Ecology, 146 Wn.2d 778, 791, 51 P.3d 744 (2002). The SMA must be "liberally
construed to give full effect to the objectives and purposes for which it was
enacted." RCW 90.58.900.
Local governments are charged with developing Shoreline Master
Programs (SMPs) to protect Washington's shorelines. RCW 90.58.020. SMPs
may be enforced through the use of civil penalties:
(1) Except as provided in RCW 43.05.060 through 43.05.080 and
43.05.150, the attorney general or the attorney for the local
government shall bring such injunctive, declaratory, or other actions
as are necessary to ensure that no uses are made of the shorelines
of the state in conflict with the provisions and programs of this
chapter, and to otherwise enforce the provisions of this chapter.
RCW(LAws of 1995, ch. 403). The SHB's decision, verbatim report of proceedings, and
clerk's papers do not show that Honeywell argued below that the DOE's acts were
inconsistent with the regulatory reform act. We decline to reach the merits of this
argument. RCW 34.05.554(1).
5
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 75457-2-1/6
(2) Any person who shall fail to conform to the terms of a
permit issued under this chapter or who shall undertake development
on the shorelines of the state without first obtaining any permit
required under this chapter shall also be subject to a civil penalty not
to exceed one thousand dollars for each violation. Each permit
violation or each day.of continued development without a required
permit shall constitute a separate,violation.
ROW 90.58.210(1), (2). WAC 173-27-280 provides the DOE with authority to
impose a civil penalty for violation of the SMA:
(1).A person who fails to conform to the terms of a substantial
development permit, conditional use permit or variance issued under
ROW 90.58.140, who undertakes a development or use on
shorelines of the state without first obtaining a permit,'or who fails to
comply with a cease and desist order issued under these regulations
may be subject to a civil penalty by local government. The [DOE]
may impose a penalty jointly with local government, or alone only
upon an additional finding that a person:
(a) Has previously been subject to an enforcement action for
the same or similar type of violation of the same statute or
rule; or
(b) Has been given previous notice of the same or similar type
of.violation of the same statute or rule; or
• (c) The 'violation has a probability of placing a person in
danger of death or bodily harm; or -
(d) Has a probability of causing more than minor
environmental harm; or
(e) Has a probability of causing physical damage to the
property of another .in an amount exceeding one thousand
dollars.
(3) Amount of penalty. The penalty shall not exceed one thousand
dollars for each violation. Each day of violation 'shall constitute a
separate violation.
"Although the SMA directs each local government to develop and administer
its SMP,the state has an extensive, statutorily-mandated role in the development
6
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 75457-2-1/7
and administration of SMPs." Citizens for Rational Shoreline Planning v. Whatcom
County, 155 Wn. App. 937, 943, 230 P.3d 1074(2010), aff'd, 172 Wn.2d 384, 258
P.3d 36(2011).
The San Juan SMP (SJSMP) provides land use regulations that apply to
"all of the land and waters of San Juan County which fall under the jurisdiction of
the[SMA]." SAN JUAN COUNTY CODE(SJCC)18.50.020(A). "Clearing and grading
activities are allowed only if: (1) associated with an approved shoreline
development; (2) conducted only *landward of a required building 'setback from
shorelines; and (3) disturbed areas not converted to another use within one year
are replanted with native species." SJCC 18.50.060(A). "Removal of trees smaller
than three inches in diameter, as measured four feet above grade, shall not be
restricted unless there is evidence that the shoreline is unstable. The removal of
smaller trees, brush, and groundcover may be restricted in unstable shorelines."
SJCC 18.50.330(6)(8).6
• This court reviews an agency's statutory interpretation and legal
conclusions de novo under the error of law standard. Greenen v. Bd. of
Accountancy, 126 Wn. App. 824, 830, 110 P.3d 224 (2005). Under the error of
law standard, the appellate court substitutes its view of the law for that of the
6 The issue on appeal is whether the DOE correctly interpreted RCW 90.58.210 and WAC
173-27-280 as meaning that each cut regulated tree constituted a separate violation under
SJCC 18.50.330(6)(8). The Honeywells did not contend below that their removal of the
trees was for the "purpose of construction of a single family residence," there was "no
dispute that the Honeywells did not submit a tree removal plan prior to the clearing of the
• slope," and the cleared site was an "unstable slope with poor soil." AR at 1600-01.
7
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 75457-2-1/8
administrative board. Verizon NW,Inc. v. Emp't Sec. Depl, 164 Wn.2d 909, 915,
194 P.3d 255 (2008). But the court "accord[s] substantial weight to an agency's
interpretation of a statute within its expertise." Verizon NW,Inc., 164 Wn.2d at 915
(citing Macey V. Dep't of Emp't Sec., 110 Wn.2d 308, 313,752 P.2d 372(1998)).
Here, RCW 90.58.210 is arguably ambiguous, as it does not clearly define
what acts constitute separate violations. But even if the statute is ambiguous,
interpreting RCW 90.58.210 and SJCC 18.50.330(B)(8) as limiting the DOE to a
single $1,000 civil penalty per instance of unpermitted cutting, as suggested by the
Honeywells, would lead to absurd results. For example, this interpretation would
equate one unpermitted tree.cutting with an instance in which a hundred regulated
trees are cut. Adopting this interpretation would limit the DOE to imposing at most
a $1,000 penalty in both situations, despite the significant disparity in the amount
of harm caused. RCW 90.58.210 is properly interpreted as allowing the DOE to
impose a civil penalty for each tree regulated by SJCC 18.50.330(6)(8) that is cut.
Furthermore, the legislative intent behind the SMA supports allowing the
DOE to impose a separate civil penalty for each regulated tree that is cut. The
SMA was enacted to protect the shorelines of Washington. RCW 90.58.020. The
legislature found that the public interest in maintaining shorelines in their natural
state outweighed private interests in developing shoreline property. RCW
90.58.020. The legislature thus restricted development activities to protect "the
public health, the land and its vegetation and wildlife, and the waters of the state
and their aquatic life." RCW 90.58.020. Restricting the DOE to imposing a single
8
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 75457-2-1/9
fine for an entire instance of unpermitted cutting, regardless of the number of
regulated trees actually cut, would hinder its ability to enforce the intent ofthe SMA.
In sum, the SHB did not err when it properly concluded that each cut tree
was a separate violation of the SMA, its accompanying regulations, and SJCC
18.50.330(6)(8).7
DOE Penalty Matrix
The Honeywells argue that the SHB acted arbitrarily and capriciously when
it affirmed the DOE's use of a penalty matrix that the DOE had not previously used,
and which was impermissibly based on the number of regulated trees cut. We
disagree.
This court shall grant relief from an agency order if it determines that the
order is clearly erroneous or is arbitrary or capricious..ROW 34.05.570(3)(d),(h)(i);
Herman v. Shorelines Hearings Bd., 149 Wn.App.444,459, 204 P.3d 928(2009).
An agency action is arbitrary or capricious if it "is willful and unreasoning and taken
without regard to the attending facts or circumstances." Port of Seattle v. Pollution
Control Hearings Bd.(PCHB), 151 Wn.2d 568, 589, 90 P.3d 659(2004)(internal
7 The Honeywells argue for the first time in their reply brief that this court should look to
other statutes, including the water pollution control act (WPCA), chapter 90.48 RCW;
Hazardous Waste Management Act, chapter 70.105 ROW;solid waste management act,
chapter.70.95 ROW; and the Washington Clean Air Act, chapter 70.94 RCW,to guide its
interpretation of the SMA. In the Honeywells'opening brief, they cite the VVPCA only when
discussing a separate penalty that was dismissed by the trial court but is not at issue on
appeal. Also for the first time in their reply brief, the Honeywells argue that the DOE
violated their statutory due process rights by failing to give proper notice prior to imposing
its penalty. We decline to reach either argument. Cowiche Canyon Conservancy v.
Boselv, 118 Wn.2d 801, 809,828 P.2d 549(1992).
9
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 75457-2-1/10
quotations marks omitted) (quoting Wash. lndeg. Tel. Ass'n v. Wash. Utils. &
Trans. Comm'n, 149 Wn.2d 17,26,65 P.3d 319(2003)). "Where there is room for
two opinions, and the agency acted honestly and upon due consideration, this
court should not find that an action was arbitrary and capricious, even though this
court may have reached the opposite conclusion." Port of Seattle, 151 Wn.2d at
589(citing Buechel v. Deo't of Ecology, 125 Wn.2d 196,202,884 P.2d 910(1994)).
Here, the DOE considered the number of trees, their diameter, the prior
enforcement measures imposed on Honeywell, and the egregious nature of the
violation in calculating its penalty. As discussed above, the SMA and SJSMP are
properly interpreted as considering each cutting of a regulated tree without a permit
as a violation of SJCC 18.50.330(6)(8). The DOE calculated its penalty based on
the number of trees and their diameters. The DOE imposed a $250 penalty per
tree with a diameter of 5 to 8 inches (11 trees); a $500 penalty per tree with a
diameter of9 to 12 inches(20 trees); a $750 penalty per tree with a diameter of 13
to 16 inches (23 trees); and a penalty of $1,000 per tree with a diameter over 16
inches(26 trees). The total resulting penalty was $56,000. We conclude that the
SHB did not act arbitrarily or capriciously when it affirmed the DOE's penalty
matrix, which was based on relevant facts and circumstances.
The Honeywells argue that it was arbitrary and capricious to determine the
penalty using a penalty matrix that had not been previously used. The Honeywells
rely on Anderson's testimony to show that this penalty matrix had not been
previously used. But Anderson's belief that this was the first time such a penalty
matrix had been used is not relevant Further, the Honeywells do not cite legal
10
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 75457-2-1/11
authority in support of their argument that the DOE is limited to matrixes it has used
in the past. The DOE tailored its matrix to the circumstances of this case, and the
Honeywells have not shown that it acted willfully and unreasonably while doing so.
Under the arbitrary or capricious standard, this court examines whether the
SHB acted willfully and unreasonably without considering the attendant facts or
circumstances when it affirmed the DOE's methodology, rather than whether the
DOE used methods it had previously applied.8 We conclude that the SHB did not
act arbitrarily or capriciously because it considered the facts and circumstances of
the Honeywells' case before affirming the DOE's penalty matrix.
SHB's Finding that 80 Regulated Trees Were Cut
The Honeywells argue that the SHB's finding that 80 regulated trees were
cut was not supported by substantial evidence. Specifically, they argue that the
SHB erred when it relied on Anderson's report and testimony, instead of the
Honeywells' expert opinions. The DOE contends that the SHB's finding that 80
Moreover, the DOE has previously used a similar method of calculating a civil penalty.
See Frank v. Dep't of Ecology, SHB No. 11-003, 2011 WL 3398573, at *1 (Wash. Shore.
Hrg. Bd. July 29, 2011). In Frank, the DOE imposed a penalty of $15,000 based in part
on its conclusion "that up to 15 trees had been removed in violation of the SMP." 2011
WL 3398573, at *7. The SHB reversed the penalty because the DOE did not consider the
relevant circumstances and did not tailor the sanction to the seriousness of the violation
or in a way that would secure future compliance. Frank, 2011 WL 3398573, at *10. In the
present case, the SHB noted that the Frank SHB did not address, and the parties did not
challenge, the DOE's use of each tree as a separate violation in determining its penalty.
AR at 1599 n.9. We may look to Frank for persuasive authority. See In re Sehome Park
Care Ctr., Inc., 127 Wn.2d 774, 780, 903 P.2d 443(1995)("In interpreting a statute, we
accord great weight to the contemporaneous construction placed upon it by officials
charged with its enforcement."). The analysis in Frank supports the SHB's affirmation of
the penalty matrix used by the DOE in the present case.
11
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 75457-2-1/12
regulated trees were cut was supported by Anderson's testimony about how he
and Gresham calculated the number of cut regulated trees. We agree with the
DOE.
'We review an agency's factual findings to determine whether they are
supported by substantial evidence sufficient to persuade a fair-minded person of
the stated premise." Providence Health & Servs. v. Dep't of Health, 194 Wn.App.
849, 856, 378 P.3d 249 (2016), review denied, 187 Wn.2cl 1003, 386 P.3d 1084
(2017). We will only overturn an agency's factual findings "if they are clearly
erroneous, meaning that the entire record leaves us with the firm and definite
conviction that a mistake was made." Providence Health, 194 Wn. App. at 856-
57. The substantial evidence test does not allow us to reverse an agency's finding
because we would have ruled differently had we been the trier of fact. Callecod v.
Washington State Patrol, 84 Wn. App.663,676 n.9, 929 P.2d 510(1997).
An agency's credibility determinations are not subject to review on appeal.
Yow v. Dep't of Health, 147 Wn.App. 807,820, 199 P.3d 417(2008). "We will not
substitute our judgment on credibility of witnesses or the weight of conflicting
evidence." Regan v. Dep't of Licensing, 130 Wn.App.39,49, 121 P.3d 731 (2005).
Here, the SHB found that the Honeywells had removed 80 trees within 200
feet of the shoreline. The SHB found that each removed tree with a stump greater
than 5 inches in diameter was a separate violation.
The record contains substantial evidence supporting this finding. Anderson
testified that he and Gresham counted the stumps and measured their diameter.
After adjusting the count to account for "decadent or decayed" stumps and other
12
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 75457-2-1/13
unregulated frees, Anderson and Gresham concluded that 80 regulated trees had
been cut, The tree count compiled by Anderson and Gresham formed the basis
of the DOE's penalty matrix, which was based on the number of cut trees in each
band of diameter measurements at the stump. We conclude that the SHB's finding
that 80 trees were cut is supported by substantial evidence in the record.
The Honeywells argue that the SHB's finding is not supported by substantial
evidence because the Honeywells submitted contrary evidence. The Honeywells
retained two biologists, Thor Hanson and Vikki Jackson, who reached a different
count. A report prepared by NES,that was based on the count reached by Hanson
and Jackson, showed that 34 trees greater than 3 inches in diameter at the cut
height were identified along With 33 willows. Neither Hanson nor Jackson testified
at the hearing. The Honeywells argue that the SHB erred when it did not credit the
NES report over the evidence offered by the DOE. The Honeywells also contend
that Anderson's testimony was not reliable because Anderson did not spend
sufficient time at the site, did not accurately identify the species of the cut trees,
and that he lacked the proper credentials to give a valid opinion.
We disagree. The SHB was free to credit the testimony of Anderson over
the opinions of Hanson and Jackson contained in the NES report. The Honeywells'
arguments go to Anderson's credibility and the weight that the SHB should have
given to the NES report. The SHB's determinations on those issues are not subject
to review on appeal.
9 RP (July 22, 2015) at 307.
13
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 75457-2-1/14
Reasonableness of Penalty
The Honeywells argue that, even if a civil penalty greater than $1,000 for
violations of the SMA is legally justifiable, the SHB acted arbitrarily and capriciously
when it affirmed the DOE's penalty of $55,000 because the amount of the penalty
was unreasonable. The DOE argues that the SHB correctly concluded that the
$55,000 penalty was reasonable because the incident was egregious and the
penalty would deter the Honeywells and other potential violators from future
violations. We agree with the DOE.
When reviewing the reasonableness of a penalty, the SHB considers "(1)
the nature of the violation,(2)the prior history of the violator, and (3)the remedial
actions taken by the penalized party." Herman v. Den't of Ecology & Spokane
County, SHB No. 04-019, 2005 WL 1935493, at *9 (Wash. Shore. Hrg. Bd. July
27, 2005). The SHB also "considers whether the agency, in setting the penalty,
considered the circumstances and made an attempt to select the level of sanction
appropriate to change behavior and secure compliance." Frank V. Deret of
Ecolooy, SHB No. 11-003, 2011 WL 3398573, at *9(Wash. Shore. Hrg. Bd. July
29,2011).
We review the Board's decision to determine "whether the decision is clearly
erroneous in view of the entire record and the public policy contained in the[SMA],
or whether the decision was arbitrary or capricious." Buechel, 125 Wn.2d at 201-
02.
Nature of the Incident
14
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

• No. 75457-2-1/15
The Honeywells argue that the SHB erred because it affirmed the DOE
penalty based solely on the nature of the incident." The DOE contends that the
SHB properly gave the most weight to this factor because the incident was
egregious and caused serious environmental harm. We agree with the DOE.
The SHB found that the nature of the incident was the most compelling
factor in its evaluation of the reasonableness of the civil penalty. The SHB noted
that the parties agreed that the cutting of the trees and clearing of the hillside was
an "egregious violation of the SMA and SJSMP," and that the incident created
significant environmental harm.
The record amply supports this conclusion. Because of the Honeywells'
unpermitted cutting of regulated trees, the shoreline will not benefit from the
protection a marine riparian forest normally provides. This lack of protection will
lead to many long-term detriments, including increased damage from rainfall,
vulnerability to erosion, and lack of slope stability. Marine riparian forests also
benefit society by increasing human health and safety and protecting the aesthetic
values of an intact shoreline. Moreover, several "critical habitat" areas will be
affected by the incident. Therefore,the SHB did not err when it concluded that the
nature of the incident favored a conclusion that the DOE'S penalty was reasonable.
'° The Honeywells do not elaborate on their assertion that the SHB relied solely on this
factor in affirming the penalty. Further, the Honeywells do not cite to legal authority in
support of the argument that the SHB must give equal weight to each factor or that the
SHB cannot take the amount of evidence supporting each factor into consideration.
15
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 75457-2-1/16
The Honeywells argue that the SJSMP does not restrict the removal of
vegetation or trees with less than 3 inches diameter at breast height. This is
irrelevant in the present case. The DOE's penalty matrix included only trees with
a stump diameter of5 inches or greater. The DOE did not penalize the Honeywells
for the removal of vegetation other than regulated trees.
The Honeywells'Prior History
The parties agree that the Honeywells do not have a prior history of
violations.
Remedial Actions Taken
The Honeywells contend that the SHB erred in concluding that the penalty
was reasonable because the Honeywells took every remedial action possible after
the incident. The Honeywells list the remedial actions they have taken, but do not
argue that the SHB failed to consider these actions when determining whether the
penalty was reasonable. In its findings of fact, the SHB acknowledged the
Honeywells' efforts to address the incident. The SHB stated that one of the factors
it considered in determining the reasonableness of the penalty was "the remedial
actions taken by the penalized party."' The SHB demonstrated that it was aware
of the Honeywells' restoration efforts and their.relevance to its determination of
reasonableness.. ;Thu, the SHB did not fail to account for the Honeywells'
remedial actions in its determination of reasonableness.
11 AR at 1601. 16
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 75457-2-1/17
Ensure Compliance
The Honeywells argue that the SHB erred by affirming a penalty designed
to deter others. The DOE argues that civil penalties may be used to deter others
from unlawful conduct, especially where the violator has obtained a benefit
unavailable to law-abiding landowners. We agree with the DOE.
"A Civil penalty is primarily intended to coax compliance with the law and
deter future violations." Herman, 149 Wn. App. at 460. Imposing civil penalties
also "ensures a level playing field" for those who make efforts to comply with
environmental laws and regulations. Pacific Topsoils, Inc. v. Dep't of Ecology,
PCHB Nos.07-046 & 07-047(consol.), 2008 WL 5510416, at"16(Wash. Pollution
Control Bd., June 12, 2008).
The SJSMP restricts landowners from developing certain areas of the
shoreline without prior approval. -SJCC 18.50.060(A)(1), (2). Although a
landowner may construct a single-family residence, he or she must obtain a tree
removal plan if he or she wants to remove trees beyond the scope of the residential
construction. SJCC 18.50.330(A), (B)(8). The tree removal plan must
"[d]emonstrate how existing natural screening will be retained while providing for
construction, views, and sunlight." SJCC 18.50.330(B)(8)(b).
Here, the SHB concluded that
[t]he clearing work had the end result of creating unobstructed water
views from cabins six, seven and eight, and from the northwest side
of the Honeywells' new house. Intended or not, this was a special
benefit to the Honeywells. Real estate with shoreline views is valued
17
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 75457-2-1/18
at a premium. Other landowners that comply with the SJSMP will not
be able to obtain this type of unobstructed view.1121
Further, the SHB noted that the DOE was concerned because the Honeywells
indicated that they were going to replant the shoreline with shorter-stature trees,
instead of replacing the taller species of trees that had been cut down.
The Honeywells have realized a benefit that would not otherwise be
available to landowners who comply with environmental laws and regulations. The
civil penalty imposed by the DOE will serve to deter the Honeywells. The SHB did
not err in affirming the civil penalty to ensure compliance with the law and create
a "level playing field" for other landowners.
The Honeywells argue that the DOE improperly intended the penalty to
deter other landowners because DOE witnesses testified to the SHB that the
Honeywells were unlikely to be future violators. The Honeywells do not cite legal
authority in support of their argument. Further, the Honeywells' argument fails for
two reasons. First, the civil penalty imposed by the DOE was within its discretion
and reasonable even without the purpose of deterring the Honeywells from future
violations. Second, the DOE offered testimony indicating that the purpose of the
penalty was to deter other landowners from future violations, while the SHB
recognized that 07 penalty accounted for the Honeywells realizing a benefit
unavailable to other landowners. We conclude that the DOE's argument was not
improper.
12 AR at 1602.
18
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 75457-2-1/19
The Honeywells also argue that the SHB erred in affirming the DOE's civil
penalty because the DOE improperly imposed the civil penalty with the goal of
deterring others from engaging in similar conduct. The Honeywells assert that
state and federal law only permit imposing a civil penalty for the purpose of
deterring that specific violator from future violations. The Honeywells cite Herman
to argue that a civil penalty should be imposed only when a violator continually
violates the SMAt or fails to comply with a prior agreement with government
agencies. 149 W,n. App. 444, 450-53, 459-60, 204 P.3d 928 (2009). The
Honeywells next cite Friends of the Earth, Inc. v. Laidlaw Environmental Services
(TOC), Inc. for the proposition that the purpose of a civil penalty is to deter future
violations by the specific violator at issue, and cannot be used to deter the behavior
of others. 528 U.S. 167, 186, 120 S. Ct. 693, 145 L. Ed. 2d 610(2000).
Neither case supports the Honeywells' position that state or federal law
prohibits an agency from considering the deterrent effect a civil penalty will have
on future violators, other than the specific violator at issue. The Herman court did
not address this issue. 149 Wn. App. at 460. Friends of the Earth, Inc. involved
two private parties and the United States Supreme Court focused its analysis on
the plaintiffs standing and available remedies. 528 U.S. at 192-93. The Supreme
Court did not hold ,that a court or agency could not consider the deterrent effect on
other future violators when determining its penalty. We conclude that neither case
supports the Honeywells' position and that the DOE was permitted to consider the
deterrent effect imposing a civil penalty would have on other future violators.
19
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 75457-2-1/20
DOE Bias
The Honeywells argue that the SHB erred by allowing the DOE to act with
improper bias toward the Honeywells. Specifically, the Honeywells contend that
the DOE improperly considered that the Honeywells had won the lottery and was
acting in response to pressure from environmental groups. The Honeywells did
not assign error to the DOE's alleged bias, and have not argued thatthe SHB erred
on this issue. RAP, 10.3(a)(4),(6). We decline to address this issue on appeal.
Affirmed. I
WE CONCUR:
20
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.