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Hensel v. Washington

filed: June 7, 1996.

MICHAEL HENSEL, APPELLANT,
v.
STATE OF WASHINGTON, DEPARTMENT OF FISHERIES, JOSEPH BLUM, ITS DIRECTOR, RESPONDENT. DEAN C. NIELSEN, APPELLANT, V. STATE OF WASHINGTON, DEPARTMENT OF FISHERIES, JOSEPH BLUM, ITS DIRECTOR, RESPONDENT. L. JOE SCHREINER, APPELLANT, V. STATE OF WASHINGTON, DEPARTMENT OF FISHERIES, JOSEPH BLUM, ITS DIRECTOR, RESPONDENT.



Superior Court of Thurston County. Superior Court Docket No. 90-2-02373-4/90-2-02620-2/90-2-02567-2. Date Filed In Superior Court: January 20, 1994. Superior Court Judge Signing: Paula Casey.

Written By: Armstrong, J., Concurred IN By: Seinfeld, C.j., Bridgewater, J.

Author: Armstrong

ARMSTRONG, J. -- In this consolidated action, the three appellants challenge the denial of their sea urchin endorsement applications. The Department of Fisheries denied the applications, finding that the appellants did not qualify for the extenuating circumstances exception to the endorsement act's historic landing requirement (proof of 20,000 pounds of urchin landings between April 1986 and April 1988). Because past participation in the urchin fishing industry is a reasonable condition precedent for waiver of the landing requirement, we affirm.

FACTS

In 1986, L. Joe Schreiner received a medical retirement from his job as a deputy sheriff in California. Schreiner testified that he intended to move to Washington and fish for urchins in 1986, but was prevented from doing so by his knee injury. He moved to Washington in August 1988 and made approximately four sea urchin dives in the fall of 1988, catching an estimated 1,000 pounds of sea urchins. Schreiner then applied for a sea urchin endorsement in September 1989. The Department of Fisheries (the Department) denied his application for failure to satisfy the historic landing requirements under the endorsement act. An administrative law judge affirmed the denial, finding that Schreiner did not qualify for the extenuating circumstances exception because he had not participated in urchin fishing during the qualifying period, April 1986 to March 1988.

Dean C. Nielsen returned to Washington in January 1988 to teach a friend, Tim O'Brien, how to dive for sea urchins. Nielsen dove for urchins with O'Brien for about three weeks in January and February 1988, landing at least 20,000 pounds of urchins. Nielsen caught the majority of the urchins. Nielsen testified that he paid O'Brien to haul his urchins to shore. O'Brien signed for all of the urchins on his tickets, recording 52,000 pounds of urchins. Nielsen testified that he and O'Brien were "partners." No records were provided, however, to establish the relationship between Nielsen and O'Brien.

Nielsen went to Texas in February 1988. He returned to Washington in July 1988, bought a boat, and began fishing for urchins in October 1988. He applied for a 1989 sea urchin endorsement in October 1989. The Department denied his application for failure to satisfy historic landing requirements. An administrative law judge affirmed the denial, finding that Nielsen had not met his burden of proof that extenuating circumstances existed to waive the landing requirement.

Michael L. Hensel served in the Navy until 1987. He purchased a pleasure vessel in May 1988 and converted it to a fishing vessel over the next few months. He began diving for urchins in October 1988. Hensel then applied for a sea urchin endorsement to his commercial shellfish diver license. The Department denied his application for failure to satisfy historic landing requirements. An administrative law judge affirmed the denial, finding that Hensel had not shown extenuating circumstances under the act.

ISSUES

Appellants raise three questions:

(1) Whether the Department's requirement of past participation in the urchin fishing industry is a reasonable condition precedent for waiver of the landing requirement under RCW 75.30.120;

(2) Whether substantial evidence supports the Departments finding that Dean C. Nielsen did not participate in the historic landing period and did not qualify for a waiver; and

(3) Whether possession of a 1988 shellfish diving license alone is sufficient to qualify for a ...


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