                                                                                               ILE0
                                                                                      OOURT OF APPcAL
                                                                                          DIVISION.1T
                                                   2013 JUL                                         AM 10: 2 7
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO




CURTIS JOHNSON,
                                              DIVISION II

                                                                    No. 42738 9 II
                                                                              - -
                                                                                     S-

                                                                                     GY
                                                                                           O

                                                                                               t      ING   N




                                Respondent,

         V.




WASHINGTON          DEPARTMENT           OF    FISH       PUBLISHED IN PART OPINION
AND WILDLIFE,




         PENOYAR, J. — Curtis Johnson applied two months late to renew his 2007 Dungeness

crab coastal   fishery license. The Department of Fish and Wildlife (Department) denied his

renewal application and informed him that his failure to timely renew meant he was barred from

renewing his license in subsequent years. Johnson appealed this decision to a hearings officer,

who affirmed the Department. Johnson then appealed to Grays Harbor Superior Court, which

 reversed the Department and ordered it to reinstate Johnson's license. The Department appealed

                                      court!
the superior court's decision to this _
                      _                           Johnson_argues that the Department violated his

 procedural   due process   rights and   that RCW 77. 0.violates substantive due process. We
                                                  360
                                                    7


 hold that the Department did not violate Johnson's due process rights because he was afforded

 notice and a hearing and that RCW 77. 0.is rationally related to protecting the fishery.
                                   360
                                     7

         In the unpublished portion of the opinion, we address Johnson's additional arguments

 that (1) Department erroneously interpreted and applied RCW 77. 0.when it determined
         the                                                 360
                                                               7

 that his failure to timely renew his license in 2007 barred him from renewing it in subsequent

 years; 2) statutes the Department relied on are unconstitutionally vague; 3) Department
        ( the                                                              ( the

 1
     Although the Department is the appellant, under Division II rules,the party filing an appeal
 under the Administrative Procedure Act ( PA)in superior court is responsible for the opening
                                           A
 and reply briefs before this court. Therefore, Johnson is treated as the appellant in this case.
42738 9 II
      - -



is equitably estopped from denying his renewal application; and (4)he is entitled to attorney

fees. We hold that the Department did not err in applying RCW 77. 0.because it requires an
                                                              360
                                                                7

applicant to have held a license in the previous year and Johnson's failure to renew his license in
2007   meant   he   did   not   hold   a   license   in    2007.   Additionally, the statutes are not

unconstitutionally vague; equitable estoppel does not apply here because Johnson failed to prove

that the Department made inconsistent statements; and we do not award Johnson attorney fees

because he did not    prevail. We reverse the trial court's order setting aside the Department's

order and affirm the Department.

                                                 FACTS


       Johnson failed to renew his Dungeness crab coastal fishery license in 2007, which

resulted in his license permanently expiring. Johnson had held a Dungeness crab commercial

fishing license since 1991. In 1995, the legislature limited entry into the Dungeness crab coastal

fishery, providing that "the director shall issue no new Dungeness crab -coastal fishery licenses

after December 31, 1995," that "[ person may renew an existing license only if the person
                        and    a]

held the license    sought   to be renewed     during the previous year."      RCW 77. 0. The
                                                                                   360.
                                                                                     7


Department granted Johnson a "permanent"coastal fishery license in 1995. Clerk's Papers (CP)

at 118. Johnson renewed this license every year until 2007.

       Under RCW 77. 5.the deadline to renew a commercial license is December 31 of
                 030,
                   6

the calendar year for which the license is           sought. For example, a license holder has until

December 31, 2013, to        renew   his 2013 license.      Johnson did not attempt to renew his 2007

license until March 4, 2008, because he believed that he could not fish under his license that




                                                       2
42738 9 II
      - -




year. Johnson had leased his license to Kenneth Greenfield starting in the 2005 06 season but
                                                                                -
had difficulty contacting Greenfield thereafter. In the fall of 2007, Johnson found another fisher

interested in leasing his license, so he called the Department to ask about changing the vessel

designation for the license. Johnson testified that the Department told him he could not change

the vessel designation for the license twice within two consecutive years and that he would have

to wait until after 2007 to   designate     another vessel,   Since he believed the designation restraints

prevented him from using the license himself or leasing to another fisher, Johnson decided that it

would be a waste of the permit fee to renew his license for 2007. Johnson said that during his

conversations with the Department about vessel designations, the Department never reminded

him that he needed to renew his license or that failure to do so would cause his license to

permanently expire.

         The Department usually mails renewal reminders in the fall, but Johnson testified that he

did not receive   one   in 2007,   likely   because of mail   delivery   issues in his   neighborhood.   The


reminders include the license's       expiration    date —December       31 but they do not indicate the
                                                                            —

consequences of failing to renew.

         In early 2008, Johnson again tried to change the vessel designation for his license. The

Department then informed him that he had not renewed his license in 2007, which meant that he

could not renew it for 2008 or any subsequent year. Nevertheless, Johnson attempted to apply


2
    The fishery is open on a seasonal basis spanning two calendar years, but the license renewal
system operates by calendar year.

3 A Department representative testified at the hearing that this information was incorrect. The
Department does not allow two vessel redesignations within two seasons, but a season is
different than a calendar year, and two seasons had passed since Johnson had last changed the
vessel designation. Therefore, he would have been able to designate a new vessel in the fall of
2007.
                                                       3
42738 9 II
      - -




for renewal, and the Department denied his renewal application, stating that it was prohibited by

statute from accepting applications after the December 31 deadline.

          Johnson appealed to an administrative hearings officer. The hearings officer affirmed the

permit denial and concluded that Johnson's failure to timely renew his license resulted in the
license   permanently expiring. The hearings officer concluded that RCW 77. 5.required
                                                                        030
                                                                          6

Johnson to renew his license by December 31, 2007, which he did not do, and that RCW

360,
77. 0.which states that a person may renew an existing license only if that person held the
  7

license   sought   to be renewed    during the previous     year, means that when
                                                                  "                 a ...   license is not


renewed it is     no   longer capable of being   renewed in the future."CP at 123.     Johnson appealed

to the superior court, which reversed the Department and ordered it to renew Johnson's license.

The Department appeals.

                                                 ANALYSIS


I.        STANDARD OF REVIEW


          Under the Washington Administrative Procedures Act (APA), sit in the same
                                                                  we
position as the superior court and apply the APA directly to the agency's administrative record.
Burnham     v.   Dep't of Soc. & Health Servs.,115 Wn. App. 435, 438, 63 P. d 816 (2003) quoting
                                                                          3              (

City ofRedmond v. Cent. Puget Sound Growth Mgmt. Hearings Bd., Wn. d 38, 45, 959 P. d
                                                             136 2                2

1091 (1998)). party challenging the agency action bears the burden of demonstrating that
            The

the action was invalid. RCW 34. 5.
                            a); Ecology, 131 Wn. d 373, 381,
                            570(
                               1)( Dep't of
                               0 Hillis v.     2

932 P. d 139 (1997). A
     2                           court shall grant relief from an agency's order if the order violates

constitutional provisions, the agency has erroneously interpreted or applied the law, or the order

is not supported by substantial evidence. RCW 34. 5. e).
                                              a), an agency's
                                              570(
                                                 3)((
                                                 0 d), Whether (

4
    Chapter 34. 5 RCW
              0
                                                       S1
42738 9 II
      - -



order violates the constitution and whether it has erroneously applied the law are questions of

law that    we   review de   novo.   Hardee   v. Dep't   of Soc. & Health Servs.,172 Wn. d 1, 7, 256 P. d
                                                                                       2              3

339 (2011);
          Quadrant Corp. v. Cent. Puget Sound Growth Mgmt. Hearings Bd., Wn. d 224,
                                                                       154 2

233, 110 P. d 1132 (2005). agency order is supported by substantial evidence if there is "`
          3              An                                                               a

sufficient quantity of evidence to persuade a fair -
                                                   minded person of the truth or correctness of the

order. "'    Hardee, 172 Wn. d at 7 ( quoting Thurston County v. W. Wash. Growth Mgmt.
                           2

Hearings Bd., Wn. d 329, 341, 190 P. d 38 (2008)).
            164 2                  3

II.      PROCEDURAL DUE PROCESS


         Johnson first argues that the Department violated his procedural due process rights.

Because Johnson received notice of the Department's actions and an administrative hearing in

which he was able to present evidence and to examine the Department's witnesses, his argument

fails.


         The due process clause of the Fourteenth Amendment prohibits the state from depriving

any person of life,liberty, or property without due process of law. U. .CONST. amend. XIV.
                                                                     S

Assuming, without deciding, that Johnson has a claim of entitlement to a license even though his

right to renew expired, we address whether the Department provided adequate process.
         At a minimum, due process requires notice and an opportunity to be heard. Soundgarden

v. Eikenberry, 123 Wn. d 750, 768, 871 P. d 1050 (1994).Notice must be reasonably calculated
                     2                  2
to inform the affected        party of the pending action and of the opportunity      to   object.   State v.


Dolson, 138 Wn. d 773, 777, 982 P. d 100 ( 1999). The opportunity to be heard must be
              2                  2


5
    Johnson argues that he has a protected property interest, citing Foss v. Nat'l Marine Fisheries
Serv.,161 F.d 584, 588 (9th Cir. 1998). However, federal circuit court due process cases are
            3
not binding on this court. State v. Manussier, 129 Wn. d 652, 680, 921 P. d 473 ( 1996)
                                                      2                      2
quoting Rozner v. City of Bellevue, 116 Wn. d 342, 351, 804 P. d 24 (1991) federal decisions
                                          2                  2              (
regarding due process are afforded great weight, but they are not controlling).
                                                          5
11-
42738-
     9




meaningful     in time and   manner.   Morrison   v.   Dep't of Labor    &   Indus.,168 Wn. App. 269, 273,

277 P. d 675, review denied, 175 Wn. d 1012 (2012) quoting Downey v. Pierce County, 165
     3                             2               (

Wn. App. 152, 165, 267 P. d 445 (2011)). determine how much process is due, we balance
                        3              To

the private interest involved; the risk of erroneous deprivation through the procedures involved

and the value of additional procedures; and. he government's interest, including the burdens that
                                           t

accompany additional procedures. Mathews v. Eldridge, 424 U. . 319, 335, 96 S. Ct. 893, 47 L.
                                                           S

Ed. 2d 18 (1976).Due process is a flexible concept and the procedures required depend on the

circumstances of a particular situation. Mathews, 424 U. .at 334.
                                                       S

       Here, Johnson received adequate notice that the Department was rejecting his renewal

application. The Department sent him a letter dated March 14, 2008, containing the reasons for

the denial and informing Johnson that he could request an administrative hearing to contest the

denial. Johnson also received       an   opportunity    to   be heard.   He had an administrative hearing

before a hearings officer where he was represented by counsel and where he submitted evidence,

gave his testimony, and questioned the Department's representative.

       Johnson argues that this process was inadequate because he should have received pre-

deprivation notice and opportunity for a hearing. His argument fails because, under the Mathews

factors,the Department's procedures were adequate.

       The first factorthe private interest involved—
                        —                           favors Johnson. The loss of his license
inhibits his    ability   to engage in   commercial crab fishing.            The next two factors favor the


Department. Regarding the second factor, the risk of erroneous deprivation and the value of

additional procedures are slight. Johnson had pre-
                                                 deprivation notice through the statutes, which

set out when a license expires, when it must be renewed, and the qualifications for renewal-


                                                        3
11-
42738-
     9



including a valid license from the previous yearand through the Department's renewal
                                                —

reminders. See RCW 77. 5.77. 5.77. 0. Further, the
                   030,
                     6   070(
                            3),
                            6  360.
                                 7                                            Department based its

decision on a readily ascertainable and undisputed fact: that Johnson missed the December 31,

2007, deadline for renewing his license for 2007.

       As    for   the   third   factorthe   Department's interest in maintaining its licensing

proceduresit would be impossible for the Department to provide individuals in Johnson's
          —

situation a pre-
               deprivation hearing. Under the statute, Johnson had until December 31, 2007, to

renew his license. RCW 77. 5. Until that deadline passed, the Department had no reason to
                       030.
                         6

deny Johnson's application. Given the low risk of erroneous deprivation and the impossibility of

holding a pre-
             deprivation hearing, the Department's procedures in this case were adequate.
III.   SUBSTANTIVE DUE PROCESS


       Johnson next argues that RCW 77. 0.violates substantive due process. Because the
                                    360
                                      7

statute is rationally related to fishery management, we hold that it does not violate Johnson's

substantive due process rights.

       Substantive due process protects against arbitrary and capricious government action

even when the decision to take action is pursuant to constitutionally adequate procedures."

Amunrud v. Bd. ofAppeals, 158 Wn. d 208, 218 19, 143 P. d 571 (2006).As with a procedural
                                2            -        3

due process claim, a plaintiff must first show that the state deprived him of a constitutionally

protected liberty or property interest. Nieshe v. Concrete Sch. Dist., Wn. App. 632, 641, 127
                                                                     129
P. d 713 ( 2005). Johnson
 3                               asserts that he has a protected property interest in his commercial

crabbing license because "once issued, professional and motor vehicle licenses create interests

requiring   due process    protection." Opening Br. at 39 (citing Amunrud, 158 Wn. d at 219).
                                                                                 2

Additionally, both the United States Supreme Court and the Washington Supreme Court have
                                                    7
42738 9 II
      - -



held that the     right   to pursue a   particular profession   is    a   protected liberty interest.     Conn v.


Gabbert, 256 U. .286, 291 92,119 S. Ct. 1292, 143 L.Ed 2d 399 (1999);
              S           -                                         Amunrud, 158 Wn. d
                                                                                   2

at 220. Arguably, Johnson has a protected liberty interest in continuing to fish for crab.

         Once a party has identified a protected interest, we must determine what level of review

to apply. The level of review we apply to a substantive due process challenge depends on the
nature   of the   right   affected. Amunrud, 158 Wn. d at 219.
                                                   2                        If a right can be characterized as

fundamental, strict scrutiny applies. Amunrud, 158 Wn. d
                                                     2                       at 220.    The right to pursue a

profession, which is what is at issue here, is a protected interest but not a fundamental right.

Amunrud, 158 Wn. d at 220 21. Therefore, rational basis review applies. Amunrud, 158 Wn. d
               2          -                                                            2

at 220. To survive rational basis review, the Department's action must be rationally related to a

legitimate state interest. Amunrud, 158 Wn. d at 222.
                                          2

         We hold that RCW 77. 0. is
                          360
                            7                     rationally   related to     a   legitimate   state interest.   As


Johnson concedes, management of the coastal crab fishery is a legitimate state interest. RCW

360
77. 0. is rationally related to fishery management: it reduces the number of fishers and
  7

licenses while protecting those who continually participate in the fishery.

         Johnson argues that we should review his claim using the three prong test Washington
                                                                        -

courts apply when considering whether a statute violates due process: 1)
                                                                      ( whether the statute is

aimed at achieving a legitimate public purpose, 2)whether it uses means that are reasonably
                                                (

necessary to achieve that purpose, and (3)whether it is unduly oppressive on individuals. He

contends that, under this test, RCW 77. 0.violates substantive due process because it is not
                                    360
                                      7

              necessary to achieve       fishery management          and it is    unduly oppressive.      But our
reasonably

Supreme Court in Amunrud, another licensing case, declined to engage in the three prong
                                                                                  -


                                                       8
42738 9 II
      - -




analysis and unambiguously stated that rational basis review applies in situations that involve a

non -fundamental right, such as the right to pursue a profession. 158 Wn. d at 226.
                                                                        2

          Johnson argues that his situation is similar to the plaintiffs' in Guimont v. Clarke, 121

Wn. d 586, 854 P. d
  2             2             1(   1993). In Guimont, mobile home park owners challenged the

constitutionality of the Mobile Home Relocation Assistance Act, chapter 59. 1 RCW, which
                                                                          2

required   them to pay    a
                              portion of   their residents' relocation fees. 121 Wn. d at 592 93. To
                                                                                   2          -


determine whether the Act violated the owners' substantive due process rights, the court applied

the three prong test.
          -                   Guimont, 121 Wn. d
                                             2        at   609.   The court held that the Act violated


substantive due process, stating that providing relocation assistance was reasonably necessary to

achieve the Act's purpose but that requiring park owners to bear the costs was unduly

oppressive. Guimont, 121 Wn. d at 610, 613. The court opined that a less oppressive solution
                           2

would be to require society as a whole to share the costs. Guimont, 121 Wn. d 611.
                                                                          2

          More recently, our Supreme Court has rejected the three prong analysis in a situation
                                                                  -

factually similar to Johnson's. Amunrud, the court considered whether a statute suspending a
                               In

taxi driver's commercial license for failing to pay child support violated his substantive due

process rights. 158 Wn. d at 214 15 The court determined that the right to pursue a profession
                      2          -

was a non -fundamental right; accordingly, it applied rational basis review. Amunrud, 158 Wn. d
                                                                                            2
at 220.     Under this standard, the court found that there was a rational relationship between

license    suspension   and the state's interest in   enforcing child support   orders. Amunrud, 158


Wn. d at 224. The court held that, as long as the statute was subject to rational basis review, it
  2

would not consider whether the statute was unduly oppressive, reiterating that the proper test was

whether "the law bears a reasonable relationship to a legitimate state interest."Amunrud, 158

Wn. d at 226. The court explained that the unduly oppressive prong, most often applied in land
  2
                                                      G
42738 9 II
      - -




use cases, has limited applicability even in those cases and is not appropriately considered in

cases where the statute "`
                        regulates only the activity which is directly responsible for the harm. "'

Amunrud, 158 Wn. d at 226 n. (
               2           5 quoting Weden v. San Juan County, 135 Wn. d 678, 707, 958
                                                                     2

                 Significantly,
P. d 273 ( 1998)).
 2                                     the court took an expansive view of whether the regulated

activity is responsible for the harm, since driving a taxi does not cause the evils of delinquent

child support. Instead, the Supreme Court's focus was on whether the statute would provide an

incentive to remedy the problems that Amunrud had a hand'in creating.

           This case is governed by Amunrud. If the unduly burdensome test does not apply even

with the tenuous connection between taxi driving and child support in Amunrud, then it will not

apply to the much more direct connection here. In this case, the legislature limited entry into the
coastal crab    fishery                    that the commercial crab.fishery in coastal
                          because it found "                                                 waters is


overcapitalized,"and RCW 77. 0.regulates only those parties directly responsible for the
                         360
                           7
overcapitalization —commercial       crab fishermen. LAWS   of   1994 ch. 260, §   1. Therefore, we do

not engage in the unduly oppressive analysis because the statute does not "
                                                                          require an individual

 to shoulder an economic burden, which in justice and fairness the public should rightfully

bear. "'    Weden, 135 Wn. d at 706 (quoting Orion Corp. v. State, 109 Wn. d 621, 648 49, 747
                         2                                               2            -

P. d 1062 (1987)).
 2

           Johnson argues that even if the unduly oppressive prong does not apply, RCW 77. 0.
                                                                                       360
                                                                                         7

still violates substantive due process because it is not reasonably necessary to achieve fishery
management goals. "[ I]
                      n           determining whether a particular statute is reasonable, we must

conclude only that there is a rational connection between the purpose of the statute and the

method the statute uses to accomplish that purpose." State ex rel. Faulk v. CSG Job Ctr.,
                                                                                        117

Wn. d 493, 506, 816 P. d 725 (1991). Johnson contends that RCW 79. 0.uses means that
  2                  2                                         360
                                                                 7
                                                    10
4273 8 9 II
       - -



are not reasonably necessary to achieve fishery management. But as we discussed above, all that

is required is present here: a rational connection between the purpose of the statute—
                                                                                     coastal crab

fishery management— nd the
                  a              method —limiting      entry into the fishery.

       We reject Johnson's argument that the three prong test applies in this instance. We hold
                                                   -

that rational basis review applies and that RCW 77. 0. is rationally related to fishery
                                                360
                                                  7

management. Accordingly, Johnson's due process claim fails.

       A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for public

record in accordance with RCW 2.6.it is so ordered.
                              040,
                               0

I.     STATUTORY CONSTRUCTION


       Johnson next argues that the Department erroneously interpreted RCW 77. 0. to
                                                                           360
                                                                             7

provide that his failure to timely renew his license in 2007 resulted in his license permanently

expiring. The Department did not err because RCW 77. 0.requires a person to have "held"
                                                 360
                                                   7

a license in the previous year in order to be eligible for renewal, and Johnson did not hold a
license in 2007.


        We review     a   question   of statutory   interpretation    de   novo.   Estate of Haselwood v.

Bremerton Ice    Arena, Inc.,166 Wn. d 489, 497, 210 P. d 308 (2009). In doing so, we give
                                   2                  3


effect to the statute's   plain meaning. Dep't of Ecology       v.   Campbell & Gwinn, LLC, 146 Wn. d
                                                                                                  2

1, 9 10,43 P. d 4 (2002).We discern plain meaning from the ordinary meaning of the language.
     -      3
at issue.   Campbell & Gwinn, 146 Wn. d at 11. If a term is undefined in the statute, we look to
                                    2

the statute's purpose, context, and      subject    matter.   Retail Store Emps. Union, Local 1001 v.

Wash. Surveying    & Rating Bureau, 87      Wn. d 887, 898, 558 P. d 215 (1976). We
                                              2                  2                           may also use



                                                      11
42738 9 II
      - -



the   dictionary   to discern the   plain meaning      of   an   undefined term.   Estate of Haselwood, 166

Wn. d at 498.
  2


          RCW 77. 0.states that the Department "shall issue no new Dungeness crab -coastal
              360
                7

fishery licenses after December 31, 1995. A person may renew an existing license only if the

person held the license    sought    to   be renewed   during the previous   year, ...   and if the person has

not   subsequently     transferred    the   license    to    another   person." ( Emphasis added).        The


Department's interpretation is that a person may renew his license only if he possessed a valid,

unexpired license issued for the previous year; therefore, Johnson could not renew his license in
2008 because he did not hold         a    valid license in 2007. In contrast, Johnson contends that his


license was permanent and that a person may hold a license even if it is expired.

          Here, the statute's plain meaning and the word " eld"is consistent with the Department's
                                                         h

renew- or- it"
     it - lose - interpretation. Response Br. at 18. The statute allows a person to renew his

license   only   if he "held"the license in the        previous    year. " Hold"means "to retain in one's


keeping" or to "have"or "possess."WEBSTER's THIRD NEW INTERNATIONAL DICTIONARY 1078

2002).Johnson did not hold a license in 2007. A license is "a right or permission granted in

accordance with law by a competent authority to engage in some business or occupation, to do

some act, or to engage in some transaction which but for such license would be unlawful."
                                                           A commercial license
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1304 ( 2002). "


issued under this chapter permits the license holder to engage in the activity for which the license

is issued," this case, coastal crab fishing. RCW 77. 5. By Johnson's own admission,
          in                                     070(
                                                    1
                                                    6 ).

his failure to renew his license in 2007 meant that he did not hold the right to fish for Dungeness

crab during that' year; he merely held the right to apply for renewal during 2007. This right is not


                                                            12
42738 9 II
      - -




the same as an existing license. Therefore, Johnson did not hold a license in 2007, and he did not

meet the renewal requirements under RCW 77. 0.for 2008 or any subsequent year.
                                        360
                                          7

       The Department's construction is consistent with the legislature's stated purpose. When

the legislature limited entry to the Dungeness crab coastal fishery and enacted what is now RCW

360,
77. 0.it stated that its purpose in doing so was to "protect the livelihood of Washington crab
  7

fishers who have historically and continuously participated in the coastal crab fishery."LAWS of

1994, ch. 260, § 1. To that end, the legislature sought, among other things, to reduce the
                                                                             "

number of fishers   taking   crab in coastal waters ... [   and] to limit the number of future licenses."

LAWS of   1994, ch. 260, § 1. The Department's construction of RCW 77. 0.furthers this
                                                                   360
                                                                     7

purpose by limiting Dungeness crab coastal licenses to those fishers who annually renew their

licenses. This protects those who have "historically and continuously"participated in the coastal

crab fishery by reducing the number of fishers: those who do not continuously renew and use

their licenses lose them. LAWS of      1994, ch. 260, § 1 ( emphasis added).

       Additionally, Johnson's construction of the statute is not consistent with the statutory

scheme.   RCW 77. 0. and RCW 77. 0.provide exceptions torequirement that a
              360
                7            020
                               7
person can renew a license only if he held the license in the previous year. These statutes allow a

person to renew his license if he did not hold one in the previous year because of a suspension or

because there was no harvest opportunity. RCW 77. 0.RCW 77. 0. If a person could
                                              360;
                                                7       020.
                                                          7

renew an expired license at any time, as Johnson suggests, these provisions would be

unnecessary.




                                                      13
42738 9 II
      - -



          Further, Johnson's argument that his license was permanent and, therefore, he was not

required    to    renew   it, is   not   persuasive   in the context of the statutory scheme.      In its letter


informing Johnson that he qualified for a coastal crab license, the Department referred to his

license    as "   permanent." RCW 77. 0. the statute limiting licenses for the coastal crab
                                  280,
                                    7

fishery, lists two types of licenses: Dungeness crab -coastal fishery licenses and Dungeness crab -

coastal class B fishery licenses, which expired on December 31, 1999, and could not be renewed

thereafter.       In this context, the word "permanent" distinguishes between permits that may be

annually renewed and class B permits that expired automatically on December 31, 1999. There

is no evidence that the Department used "permanent"to mean that the license did not have to be

renewed.          In fact, annual renewal is necessary under RCW 77. 5. which states that
                                                                 070,
                                                                   6

commercial licenses         expire       on   December 31 of the year for which   they   are   issued. Further,


Johnson was aware of the necessity of renewing his license because the Department mailed

annual renewal reminders and he renewed it annually from 1995 until 2007.

II.       VAGUENESS


          Johnson next argues that RCW 77. 5. 77. 5. and 77. 0. are all both
                                       030,070,
                                         6      6        360
                                                           7

individually and collectively unconstitutionally vague because they do not provide unambiguous

notice to license holders that their licenses could be permanently revoked if they fail to renew

them.      These statutes are not unconstitutionally vague because an ordinary person would

understand from the statutes when a license expires and that a valid license is required for

renewal under RCW 77. 0.
                  360.
                    7


          We review a statute's constitutionality de novo. Putman v. Wenatchee Valley Med. Or.,

166 Wn. d 974, 978, 216 P. d 374 (2009).We presume that statutes are constitutional, and one
      2                  3

who challenges a statute as unconstitutionally vague must prove vagueness beyond a reasonable
                                                           14
11-
42738-
     9



doubt. Haley v. Med. Disciplinary Bd., Wn. d 720, 739, 818 P. d 1062 (1991). statutes
                                     117 2                  2              For

not involving First Amendment rights, we evaluate the vagueness challenge by examining the

statute as applied under the particular facts of the case. City ofSpokane v. Douglass, 115 Wn. d
                                                                                             2

171, 182, 795 P. d 693 (1990).A statute is unconstitutionally vague if its terms are "so vague
               2

that persons of common intelligence must guess at its meaning and differ as to its application."

Burien Bark Supply v. King County, 106 Wn. d 868, 871, 725 P. d 994 (1986).This does not
                                         2                  2

require impossible standards of specificity or absolute agreement. Douglass, 115 Wn. d at 179.
                                                                             -     2

        RCW 77. 5. 77. 5. and 77. 0. are not unconstitutionally vague either
            030,070,
              6      6        360
                                7

individually or collectively. RCW 77. 5.states "commercial licenses and permits issued
                                  070(
                                     3
                                     6 )

under this chapter expire at midnight on December 31 st of the calendar year for which they are

issued." An ordinary person in Johnson's situation would understand this to mean that a 2006

license expires on December 31, 2006. RCW 77. 5.states, The application deadline for a
                                          030
                                            6           "
commercial license or permit established in this chapter is December 31 st of the calendar year

for which the license or permit is sought." An ordinary person in Johnson's situation would

understand this to mean that he has until December 31, 2007, to renew a2007 license. RCW

360
77. 0.states, A person may renew an existing license only if the person held the license
  7           "

sought to be renewed during the previous year."An ordinary person would understand this to

mean that, in order to renew a license in 2008, that person must have held a license to fish in

2007.   As we discussed above, a license is the right to take crab from the coastal fishery. A

person is allowed to do this only if they applied for renewal. An ordinary person reading these
statutes together would understand that a person who failed to timely renew a license in 2007

would not have held a license in 2007 and would not be eligible to apply for renewal in 2008

under RCW 77. 0.
          360.
            7

                                               15
42738 9 II
      - -



III.   EQUITABLE ESTOPPEL

       Finally, Johnson argues that the Department was equitably estopped from denying his

license renewal application. Johnson's claim is based on three of the Department's actions: 1)
                                                                                            ( a

1995 letter from the Department informing him that he qualified for a "permanent" Dungeness

crab coastal fishery license, 2) 2007 phone conversation with the Department regarding vessel
                              ( a

designations,   and (3)the    Department's   license renewal reminders.    CP at 115.     Because the


Department did not make any statements inconsistent with its interpretation of RCW 77. 0.
                                                                                   360,
                                                                                     7

this argument fails.

       A party asserting . quitable estoppel against the government must prove five elements by
                         e

clear, cogent, and convincing evidence: 1) statement, admission, or act by the government that
                                        ( a

is inconsistent with its later claims; ( the asserting party's reliance on the government's
                                       2)

statements or acts; 3)
                    ( injury to the asserting parry if the government were allowed to repudiate

its prior statement or action; 4)estoppel is necessary to prevent a manifest injustice; and (5)
                               (

estoppel   will not   impair governmental   functions. Silverstreak, Inc. v. Dep't   of Labor & Indus.,

159 Wn. d 868, 887, 154 P. (2007). Inaction alone does not constitute an inconsistent
      2                   891                     -
statement, admission, or act. Pioneer Nat'l Title Ins. Co. v. State, 39 Wn. App. 758, 761, 695

P. d 996 (1985).
 2

       Johnson first argues that the Department "misrepresented" his license when it told him

that it was granting him a "permanent" license. Opening Br. at 43. In a 1995 letter informing

Johnson that he qualified for a limited entry Dungeness crab coastal fishery license, the

Department twice referred to his license as "permanent." CP at 115. But, the Department did

not use "permanent"to mean Johnson never had to renew his license. The Department used this

term to distinguish Johnson's license from class B licenses, which expired on December 31,
                                                    16
42738 9 II
      - -



1999, and could not be renewed thereafter. RCW 77. 0.Thus, nothing in the letter was
                                               280(
                                                  4
                                                  7 ).

inconsistent with the Department's position that licenses must be renewed annually or they

would expire.

         Johnson next argues that the Department gave him incorrect information during phone

calls   regarding   vessel   designation. In the fall of 2007, Johnson called the Department to ask

about designating a different vessel under his license. He does not present any evidence that the

conversation included a discussion on license renewal or the consequences of failing to renew on

time.    Because he failed to prove that the Department made inconsistent statements regarding

license renewal, equitable estoppel does not apply to this action.

          Lastly, Johnson argues that the Department is equitably estopped from denying his
license because he did not receive a 2007 renewal reminder and, even if he had, the reminder did

not state the consequences of failing to timely renew his license. This argument fails because

Johnson must show that the Department made inconsistent statements, and all he is arguing here

is that the Department failed to make any statements in the reminder regarding the consequences

of failing to renew. Because Johnson failed to provide evidence of inconsistent statements, his.

equitable estoppel argument fails.

IV.       ATTORNEY FEES


          Johnson argues that he is entitled to attorney fees and costs under RCW 4.4. and
                                                                                  350
                                                                                    8

RAP 18. . RCW 4.4.50 requires us to award attorney fees and costs to a party that prevails in
      1       38

a judicial review of an agency action. Johnson does not prevail; therefore, he is not entitled to

attorney fees.




                                                    17
42738 9 II
      - -



        We reverse the trial court's order setting aside the Department's order and affirm the

Department.




We concur:




    w,
    e
            j

        Worswick, C.
                   J.



        F




        jory J.




                                                 18
