                                                            28-11JEt;           414



      IN THE COURT OF APPEALS OF THE TATE OF WASHINGTON

CAPTAIN BRUCE NELSON,                     )
                                          )       DIVISION ONE
                     Appellant,           )
                                          )       No. 75559-5-1
              V.                          )
                                          )
STATE OF WASHINGTON and                   )
WASHINGTON STATE BOARD OF                 )
PILOTAGE COMMISSIONERS,                   )
                                          )      UNPUBLISHED OPINION
                     Respondent.          )
                                          )      FILED: December 11, 2017
                                          )
       DWYER, J. — Captain Bruce Nelson app als from the order of the superior

court affirming the Board of Pilotage Commissi ners' final order denying him a

pilot's license. On appeal, he contends that se eral of the Board's findings of

fact are not supported by substantial evidence, that the Board's final order was

arbitrary and capricious, that the Board failed t conduct rule making in adopting

a reporting form used to record his performanc during a training program, that

the Board engaged in an unlawful procedure o decision-making process in

denying him a pilot's license, that the criteria a plied by the Board in denying him

a pilot's license were vague in violation of his ri ht to due process, that the Board

denied him a meaningful opportunity to be hea d in a meaningful time, and that

two Board commissioners engaged in unlawful ex parte communications with the

Board's legal counsel.
No. 75559-5-1/2


       Concluding that there was no error, we ffirm.



       The Board of Pilotage Commissioners is charged with training, licensing,

and regulating marine vessel pilots operating I the Puget Sound and Grays

Harbor pilotage districts. When the Board dete mines that the pilotage districts

require additional pilots to Optimize the pilotage service therein, the Board invites

those captains who have already demonstrate a high level of experience as sea

captains to apply for a pilot's license. Obtainin a pilot's license is a multi-step

process involving examinations and, if success ul in the examinations, a complex

training program. An applicant's invitation to a ply for a pilot's license or to

participate in the training program does not gu rantee that the Board will issue a

pilot's license to the applicant.

       In 2006, Nelson was invited to apply for     pilot's license. He successfully

took the Board's written and simulator exam mal ions, scoring 9th out of 18

applicants. He was then invited to enter into th Board's pilotage training

program for the Puget Sound Pilotage District. Nelson's invitation letter detailed

a training program that was anticipated to involve 174 trips and was tailored to

his experience as a sea callotain, aiming to give him exposure to the wide variety

of ships and conditions that a pilot in the Puget Sound pilotage district may

encounter.

       Nelson's training program—along with the training program for other

applicants—was overseen both by the Board nd a committee of licensed pilots,

known as the Training Evaluation Committee.        he Committee was designated



                                         -2
No. 75559-5-1/3


by the Board to manage the training program. n that capacity, the Committee

tracked the applicants' progress in the training rogram through direct

observation during training trips and a comprehensive review of training trip

report forms submitted by supervising pilots aft r each completed trip.

        The training trip report forms allowed th supervising pilot to indicate on a

point scale an applicant's effectiveness on that trip with regard to specified

categories related to the criteria used by the Beard in making licensing and

training decisions.1 In addition, the report form contained a written comment

section wherein the supervising pilot could ma e specific comments about the

trip and the applicant's performance. Each we k, the information in each

applicant's training trip report forms would be c nsolidated into a spreadsheet

and provided to the applicant. Thereafter, at t e end of a training period, the

Committee would review the applicant's record and issue its recommendation to

the Board as to whether the applicant should b licensed, should not be licensed,

or should undergo additional training.

        Nelson accepted the training terms in mid-November and his training

program commenced in January 2007. Seven months and over 100 training trips

later, the Committee reviewed Nelson's performance. The Committee

determined that Nelson had performed inconsi tently and recommended that the



         1 The training trip report'form included the cate odes of preparation, navigation, ship
handling, and master/pilot/bridge team interface. An ap licant's performance in each of the
categories was recorded on a four-point scale. Nearly year into Nelson's training program, the
Board altered the training trip report form, adding "the d mains of anchoring, tug escort
procedures, and special circumstances." The Board al o changed the point scale from a four-
point scale to a seven-point scale. The alterations to th training trip report form applied to all
ongoing training programs.



                                                3
No. 75559-5-1/4


Board extend Nelson's training program by two months. The Board then

considered the Committee's recommendation nd unanimously agreed to extend

Nelson's training program, adding specific train ng trips to his training program in

an attempt to address the inconsistencies in hi performance.

        Two months later, the Committee revie ed Nelson's training program

performance. On this occasion, the Committe issued a split recommendation to

the Board. Three committee members recom ended that the Board issue a

license to Nelson and two members recomme ded that he receive additional

training. A majority of the Board (4-3) rejected he recommendation of the

majority of the Committee members and voted instead to extend Nelson's

training program.

       Three months later, the Committee rev' wed Nelson's performance during

the training program and determined that there was a "disconnect" in his ship-

handling skills, that he lacked situational awar ness, and that he lacked the

ability to process "all the necessary informatio "in confined waterways. With

this, the Committee recommended to extend elson's training. The Board

agreed with the Committees recommendation and unanimously voted to extend

Nelson's training program.2

        A month and a half later, the Committe reviewed Nelson's performance

and again recommended to extend his training, this time for four additional




         2 In January 2008, Nelson contracted an illness and the Board voted to extend his
training until February.


                                              -4
No. 75559-5-1/5


months. The Board agreed with the Committe 's recommendation and extended

his training program.

       Three months later, Nelson participated n his 221st training trip. This trip

involved a grain ship, the Pier 86 grain terminal, and an evaluation of Nelson's

docking skills using a tugboat. During that trip, a senior supervising pilot—and

member of the Committee—was forced to inte ene in Nelson's tugging of the

grain ship in order to avoid Substantial damage to the grain terminal and to the

ship. The supervising pilot managed to reduce the ship's speed, stabilizing it 30

feet away from its docking berth.

       One month later, Nelson completed his !nal training program extension.

By that time, he had taken 243 training trips.

       The Committee engaged in an extensiv review of Nelson's performance

during the training program. The Committee d termined that he was performing

many piloting tasks well. The Committee conc uded, however, that Nelson

performed inconsistently throughout his exten ed training program regarding

criteria that the Committee Viewed as "essenti I when docking and undocking a

ship," specifically, the "critical ship handling el ments of speed control, heading

control, and the use of tugboats." Relatedly, t e Committee noted with concern

that there were 11 instances, occurring after N lson had already completed 80

training trips, where a supervising pilot felt co pelled to intervene in Nelson's

piloting.

       Moreover, the Committee viewed the Pier 86 grain terminal intervention as

a "very serious" intervention. It concluded tha the training trip was characterized



                                          5
No. 75559-5-1/6


as relatively easy and that the intervention had •ccurred near the end of Nelson's

training program. The Committee expressed c ncern that Nelson was not

improving as an applicant and, notably, that "th re was a significant risk to the

public for continuing him in the training progra ." Therefore, the Committee

unanimously recommended that the Board not icense Nelson.

      The Board elected to defer voting on the Committee's recommendation,

allowing Nelson to prepare his own presentatio to the Board. In the intervening

six months, Nelson requested, gathered, and s bmitted information to the Board,

and, in October 2008, presented his argument. Two months later, the Board

unanimously voted to deny issuance of a licen e to Nelson.

       Nelson timely sought an adjudicative pr 1111 ceeding before an administrative

law judge(AU)to review the Board's decision. The parties conducted extensive

discovery and a seven-day hearing resulted.      uring the hearing, Nelson sought

to introduce evidence comparing the Board's e aluation of his performance with

that of other similarly situated applicants in the training program who the Board

eventually voted to license. The All excluded the evidence, determining that it

was not probative. After the hearing, the AUJ i sued an initial order affirming the

Board's decision not to license Nelson.

       Nelson appealed the AL's initial order nd the Board appointed a review

officer to review the initial order and prepare a final order on behalf of the Board.

Upon consideration, the review officer affirmed the AL's order and issued the

Board's final order. The final order incorporat d the All's findings of fact and




                                          6
No. 75559-5-1/7


conclusions of law and included additional findi gs of fact by the reviewing

officer.

       Nelson appealed the Board's final order o the King County Superior

Court, arguing that the AU erred by excluding he evidence comparing the

Board's evaluation of his performance in the tr ining program with that of other

similarly situated applicants. The superior cou judge agreed, remanding the

case with instructions to allow Nelson to prese it comparator evidence in an

adjudicative proceeding to ensure that the applicants' performance in the training
                                                I
program was measured against objective criteI la.

       A six-day administrative hearing resulte• before the AUJ who presided

over the initial hearing. At the hearing, the pa les presented evidence

comparing the Board's evaluation of Nelson's erformance in the training

program with that of similarly situated applican s. Thereafter, the AU issued an

initial order on remand affirming the Board's d cision not to license Nelson.

       Nelson appealed the AL's initial order n remand and the Board

appointed a different review officer to review t e initial order and prepare the

Board's final order. The review officer affirme the AL's initial order on remand

and issued the Board's final order. The final o der incorporated the AL's

findings of fact and conclusions of law and inc uded several additions to the

AL's findings of fact and conclusions of law.

       Nelson appealed the Board's final orde to the King County Superior

Court. The superior court affirmed the Board' final order.




                                         7
No. 75559-5-1/8


                                          11

                                          A

       We review a decision of an agency purs ant to the Administrative

Procedure Act3(APA). Davidson Series & Ass cs. v. Cent. Puget Sound Growth

Mpmt. Hearings Bd., 159 Wn. App. 148, 154, 244 P.3d 1003(2010)(citing

Thurston County v. Cooper Point Ass'n, 148 W .2d 1, 7, 57 P.3d 1156 (2002)).

The APA requires that we base our review upo the record made before the

agency. Davidson Series & Assocs., 159 Wn. pp. at 154 (citing City of

Redmond v. Cent. Pu et Sound Growth M mt. Hearin.s Bd., 136 Wn.2d 38, 45,

959 P.2d 1091 (1998)). We review the agency s legal conclusions de novo,

giving substantial weight tcothe agency's interp etation of the statute that it
                   1
administers. Davidson Series & Assocs., 159        n. App. at 154 (citing City of

Redmond, 136 Wn.2d at 46). The burden of d monstrating the invalidity of the

agency's action is on the party asserting invali ity. RCW 34.05.570(1)(a). We

may grant relief from an agency action only if e determine "that a person

seeking judicial relief has been substantially p judiced by the action complained

of." RCW 34.05.5701)(d).



       As a preliminary matter, Nelson challen es several of the Board's findings

of fact as not supported by substantial eviden e. We discuss each challenged

finding as necessary.




       3 Ch. 34.05   RCW.


                                          8
No. 75559-5-1/9


       Nelson first contends that substantial evidence does not support the

Board's finding that adopted the reports and opinions submitted by the Board's

expert witness.

       We defer to the expertise and experienc of the Board regarding expert

witness credibility determinations. Seattle Cit L' ht v. Swanson, 193 Wn. App.
                       1     ,
795, 816, 373 P.3d 342(2016)(citing Beatt v. Fish & Wildlife Comm'n, 185 Wn.

App. 426, 449, 341 P.3d 29,1 (2015), review de ied, 183 Wn.2d 1004 (2015));

Port of Seattle v. Pollution Control Hearings Bd., 151 Wn.2d 568, 588, 90 P.3d

659(2004). Here, it is evident that the Board clonsidered the credibility of the

expert witness and all of the witness's testimo y and evidence when it credited

his testimony in entering findings of fact. Nels n's claim fails.
                      1
       Nelson next contends that substantial evidence does not support the

Board's finding of fact that a training program L nique to each applicant was
                      1
created. But Nelson's appellate briefing effectively concedes that the training

trips assigned to each pilot,applicant were uni ue, acknowledging that the

training trips between applicants were "substaritially similar" and "comparable"

and that "the small variations simply account f [sic] trainees' prior background

and experience." Nelson's claim fails.

       Lastly, Nelson's appellate briefing sets orth a list of findings of fact that he

contends are not supported by substantial evi ence. However, his appellate

briefing fails to present argument or analysis ith regard to these findings in

relation to a substantial evidence claim. "Uns bstantiated assignments of error

are deemed abandoned." Kittitas County v. Kittitas County Conserv. Coal., 176



                                          9
                            1
No. 75559-5-1/10


Wn. App. 38, 54, 308 P.3d 745(2013). We thu deem abandoned Nelson's

remaining substantial evidence challenges.

        There was no èrror.4



        Nelson next contends that the Board's d cision to deny him a pilot's

license was arbitrary and capricious. We disagree.

        We review issoes of law de novo, includ ng whether an agency's decision

is arbitrary and capricious. Stewart v. Dep't of boc. & Health Servs., 162 Wn.
                       1
App. 266, 273, 252 P.3d 920(2011)(citing WaL Inde . Tel. Ass'n v. Wash.

Utils. & Transp. Comm'n, 149 Wn.2d 17, 24,6 P.3d 319 (2003)).

        Pursuant to ROW 34.05.570(3)(i), a peti ioner may challenge an agency's

order on the ground that the order is arbitrary r capricious.

       "'Arbitrary and capricious" refers to "wil ful and unreasoning action,
       taken without 'regard to or consideration of the facts and
       circumstances surrounding the action. Where there is room for two
       opinions, an abtion taken after due con ideration is not arbitrary
       and capricioue even though a reviewing court may believe it to be
       erroneous.' I

Pub. Util. Dist. No. 2 of Pac. County v. Comcast of Wash. IV, Inc., 184 Wn. App.

24, 45, 336 P.3d 65(2014)(internal quotation marks omitted)(quoting Lane v.

Port of Seattle, 178 Wn. App. 110, 126, 316 P 3d 1070 (2013)), review denied,

183 Wn.2d 1015(2015).




        4 Nelson contends that the Board's orders extending his training program were not
supported by substantial evidence and were arbitrary and capricious. We decline to consider
Nelson's claim. Only final agency actions are subject tq judicial review. Wells Fargo Bank, N.A.,
v. Dep't of Revenue, 166 Wn. App. 342, 355-56, 271 P. d 268(2012); accord Bock v. State Bd.
of Pilotage Comm'rs, 91 Wn.2d 94, 99, 586 P.2d 1173 1978).


                                             -10-
No. 75559-5-1/11


        The Pilotage Act6 created the Board of ilotage Commissioners and

regulates pilotage in the state of Washington.            he act was adopted "to ensure

against the loss of lives, loss or damage to pro erty and vessels, and to protect

the marine environment" and to encourage and develop "Washington's position

as an able competitor for waterborne commerc from other ports and nations of

the world." RCW 88. 6.005. The Board is to be comprised of commissioners

"representing the interests of the people of the -tate of Washington." RCW

88.16.005.6

        In addition, the act required that the Bo rd establish rules necessary for

enforcement and administration of the act. RC               88.16.035(1)(a). This included

creating "a comprehensive training program to assist in the training and

evaluation of pilot applicants before final licens ng." RCW 88.16.035(b)(ii). The

final licensing qualifications'for pilot applicants include successful completion of a

board-specified training program and "such ad itional qualifications as may be

determined by the board." RCW 88.16.035(1) b)(i), .090(2)(a)(iv), (4).

        The act provides that, upon completion f the training program, "the board

shall evaluate the trainee's performance and k owledge." RCW 88.16.090(4).
                      I
Accordingly, the Board promulgated regulations setting forth the criteria by which

it evaluates an applicant's performance and k owledge. The Board established


        5 Ch. 88.16   RCW.
        6 The   Board of Pilotage Commissioners include appointed commissioners who are
"pilots licensed under this chapter and actively engaged in piloting upon the waters covered by
this chapter," individuals "actively engaged in the owne hip, operation, or management of deep
sea cargo and/or passenger-carrying vessels," "a repre entative from a recognized environmental
organization concerned with marine waters," and "pers ns interested in and concerned with
pilotage, maritime safety and marine affairs, with broad experience related to the maritime
industry exclusive of experience as either a state licens d pilot or as a shipping representative."
RCW 88.16.010.
No. 75559-5-1/12


that the criteria "shall include, but not be limited to: Performance in the training

program; piloting and ship handling and gener seamanship skills; local

knowledge; and, bridge presence and commun cation skills." WAC 363-116-

080(5). The act further provides that, after car ing out its evaluation, "[t]he

board, as it deems appropriate, may then issu a pilot license, delay the

issuance of the pilot license, deny the issuanc of the pilot license, or require

further training and evaluation." RCW 88.16.0 0(4).

       In reviewing the Board's actions, we ke p in mind that the Board "has

considerable discretion" in carrying out its stat torily authorized duties. Bock v.

Bd. of Pilotage Comm'rs, 91 Wn.2d 94, 100, 5 6 P.2d 1173(1978)(citing State

ex rel. Sater v. Bd. of Pilotage Comm'rs, 198      ash. 695, 90 P.2d 238 (1939)).

       Here, the Board voted to deny issuance of a license to Nelson based upon

its evaluation of his rierformance and knowled e. The Board indicated that it had
                       I
evaluated Nelson's candidacy based upon the criteria set forth in WAG 363-116-

080(5). With this criteria in mind, the Board co sidered the Committee's

licensing recommendation,, the Board's review of all of Nelson's training trip

report forms, and the, experience and expertis of the Board's commissioners.

       The Board determined that, during Nels n's extended training program, he

had failed to consistently perform regarding th ship-handling criteria essential to

docking and undocking a ship. Relatedly, the oard found as a matter of

concern the number of occasions on which a upervising pilot was compelled to

intervene in Nelson' piloting during training trips taking place late in his training

program.



                                        - 12-
No. 75559-5-1/13


       The Board also determined that, in deny ng to issue Nelson a license,

"[t]he details of each irip mattered." This is not ble because the Board found that

the major intervention at the Pier 86 grain terminal a month prior to the end of his

fourth training extension was a "very serious" intervention. The Board found that

the Pier 86 incident supported a conclusion that he was not improving and that a

significant risk to the Public was posed by conti uing him in the training program.

       In this light, the Board's decision not to Icense Nelson was plainly based

on the facts and circumstances underlying his performance and knowledge.

       There was no error.

       Nelson next contends that the Board's diecision was arbitrary and

capricious because it treated him differently thr-r it treated other license

applicants. We disagree.

       The Board found that there were 18 similarly situated applicants who took

and passed the written and vessel simulator e aminations at the same time that

Nelson did and who were invited to participate in the training program. Of those

applicants, 6 received training extensions. Ulti ately, 3 of the applicants were

not licensed.

       The Board further found that the applic nts were evaluated consistently.

The Board determined that each applicant wa required to pass the same written

and vessel simulatori tests and participate in a least 130 observational and

supervised training tips. The Board also dete mined that the same training trip

report forms were used to track the applicants progress during the training

program. In addition, the Board found that th se applicants who struggled were
                                                            •


                                        - 13-
No. 75559-5-1/14


consistently given additional training trips tailor d to the area of difficulty that the

applicant was experiencing. The Board further found that it had closely

examined the entire training record of each ap licant and considered of great

significance the details of each applicant's training trips. The Board also found

that it had applied the licensing criteria set fort in WAC 363-116-080(5)to each

applicant in deciding whether to license the ap licant.

        Given that the Board assessed the appli ants using the same

methodology and criteria, the Board did not ev luate Nelson's performance and

knowledge in a way that was meaningfully diff rent than its evaluation of other

similarly situated applicants. There was no err r.

        Accordingly, the Board's decision to de y issuance of a license to Nelson

was not arbitrary or bapricious.7




           7 Nelson contends that the Board's decision wa arbitrary and capricious because it did
not consider the statistical evidence that, he claims, sup orts that he was subjected to more
difficult trips than other applicants and that his trip repo ratings and number of interventions
were comparable to applicants who were granted a pilot's license. This contention is unavailing.
           The Board's decision is not arbitrary and caprici us merely because the Board elected
not to adopt Nelson's preferred method of evaluating pil t applicants. Rather, the Board
evaluated the applicants' performance and knowledge ising the criteria duly promulgated
pursuant to its statutory authority. Indeed, the Board fo nd that, rather than comparing isolated
types of incidents, it "closely examined the entire record of each trainee" and made its decision
"based on each trainee's performance."
           Nelson next contends that the Board's decision to deny him a license constituted the
exercise of arbitrary administrative power in violation of he Fourteenth Amendment to the United
States Constitution as well as article I, section 12 of the Washington Constitution. Because we
reject Nelson's statutory Claim of arbitrary and capriciou action by the Board, we also reject
Nelson's constitutional claim of arbitrary and capricious ction by the Board.
           Nelson next contends that the Board's decision to decline to issue him a pilot's license
was arbitrary and capricious because the Board's final .rder relied upon portions of an expert
witness's report that had been withdrawn from evidenc . This claim fails. The AUJ indicated that
those portions of the unredacted report that were exclu ed would not be considered and Nelson
presents no analysis or argument showing that the Boa d relied on the portions of the expert's
report that were withdrawn.


                                              - 14 -
No. 75559-5-1/15




        Nelson next contends that the Board vio ated the APA by adopting and

altering the training tr p report form used to rec rd applicants' training trip

performance without first engaging in rule maki g. We disagree.

        We review de ovo whether an agency' action constitutes a "rule" under

the APA. "Mt is axiomatic that '[f]or rule-makin procedures to apply, an agency

action or inaction must fall into the APA definiti n of a rule." Budget Rent A Car

Corp. v. Dep't of Licensing, 144 Wn.2d 889, 895, 31 P.3d 1174(2001)(alteration

in original)(quoting Failors,Pharmacy v. Dep't of Soc. & Health Servs., 125

Wn.2d 488, 493, 886 P.2d 147(1994)). Under the APA,"Mule" includes "any

agency order, directiN;(e, or regulation of generll applicability. ..(d) which

establishes, alters, or, revokes any qualifications or standards for the issuance,

suspension, or revocation of licenses to pursu any commercial activity, trade, or

profession." RCW 34.05.010(16). We note th t "an otherwise broad

interpretation of 'rule would 'serve as the strai htjacket of administrative action."

Providence Ph sician Servs. Co. v. D            't of H alth, 196 Wn. App. 709, 726, 384

P.3d 658(2016)(quoting budget Rent A Car, 44 Wn.2d at 898).

       The training trip report forms used duni g the time in which Nelson was

participating in the training'program were prov ded by the Board pursuant to

WAC 363-116-078(13).8 The training trip report form set forth the piloting

domains of preparation, navigation, ship handling, and master/pilot/bridge team




                  trip, the supervising pilot shall complete a trip report form provided by the
       8 "After each
board." WAC 363-116-078(13).


                                             -15-
No. 75559-5-1/16


interface and included a four-point scale for rec rding an applicant's performance

in those domains. Over a year into his training program, the Board altered its trip

report form, adding the domains of anchoring, tug escort procedures, and special

circumstances and setting forth a seven-point scale, rather than a four-point

scale.

         The piloting domains set forth in the training trip report form are based on

the Board's licensing criteria. Indeed, the trip r port form's piloting domains—

preparation, navigation, ship handling, and ma ter/pilot/bridge team interface,

anchoring, tug escort procedures, and special ircumstances—are plainly

derived from the Board's non-exhaustive list of evaluation criteria—which

includes "[Nerformance in the training progra ; piloting and ship handling and

general seamanship 'skills; local knowledge; a d, bridge presence and

communication skills " WAC 363-116-080(5).                 he training trip report form thus

did not establish or alter a qualification or stan ard for the issuance of a pilot's

license. Rather, it set forth a recording metho ology to track an applicant's

performance in the training program based on preestablished criteria. Similarly,

the Board's alteration of the point scale in the raining trip report form did not alter

the qualifications or standards for licensing bu , rather, set forth a more nuanced

recording methodology for tracking an applica t's performance.

         Thus, the Board's adoption and alterati n of the trip report form does not

fall into the APA definition Of a rule.9


        9 Nelson miles upon two decisions by our Supr me Court that, he claims, support his
argument that the Board's adoption and alteration of th training trip report form constituted a rule
under the APA. See Sim son Tacoma Kraft Co. v. De 't of Ecolo , 119 Wn.2d 640,647, 835
P.2d 1030(1992)(adoption of statewide numeric water quality standard for discharge of a


                                              - 16 -
No. 75559-5-1/17


        There was no error.



        Nelson next contends that, during the c urse of the administrative

proceedings in this matter, the Board engaged n several unlawful procedures or

decision-making processes. Each allegation is discussed in turn.

        RCW 34.05.570 provides, in pertinent p rt: "(3) Review of agency orders
                     !
in adjudicative proceedings: The court shall gr- nt relief from an agency order in

an adjudicative proceeding only if it determines that: ...(c) The agency has

engaged in unlawful procedure or decision-ma ing process, or has failed to

follow a prescribed procedure." (Emphasis ad ed.) Again, this court "shall grant

relief only if it determines that a person seekin judicial relief has been
                      I
substantially prejudiced by the action complain d of." RCW 34.05.570(1)(d)

(emphasis added).

        We do not consider arguments unsupp rted by authority or analysis.

Cowiche Canyon Conservancy v. Bosley, 118                 n.2d 801, 809, 828 P.2d 549

(1992).

        Nelson first contends that the Board en aged in an unlawful procedure or

decision-making process when a Board comm ssioner engaged in rule making

concerning a proposed rule that would exclud evidence seeking to compare



pollutant constitutes an agency rule because violation o standard would subject violators to
punishment); Failor's Pharmacy, 125 Wn.2d at 495-96 (:Iteration of prescription services
reimbursement schedule constitutes agency rule becau e reimbursement schedule regarded a
benefit conferred by law).
         Neither decision supports his claim. The training trip report forms—and any point on the
point-scale that was recorded by a supervising pilot—n ither subject applicants to punishment
nor confer a benefit by law. Rule making was not requited.


                                             -17-
No. 75559-5-1/18


various pilot applicants' performances against ne another as part of the Board's

evaluation of an applicant.

      As an initial matter, Nelson's appellate b iefing does not identify which
                      1
prescribed procedure or decision-making proc ss that the commissioner in

question failed to follow. In this way, Nelson d es not support his claim with

authority or analysis. In addition, Nelson does ot show that the commissioner's

participation in rule making substantially prejud ced him. Indeed, he presents no

evidence that the commissioner in question pa icipated in the deliberations

surrounding the final Order at issue or that the ommissioner's participation in the

rule making procedure impacted the initial or fir al order denying the issuance of

a license to him. There was no error.

       Nelson next contends that the Board en aged in an unlawful procedure or

decision-making process when a Board commi sioner, during a jury trial

concerning another plaintiff's suit against the B ard, said that he was "pleased

with the results" of the AL's initial order on re and in Nelson's administrative

matter.

       However, Nelson does not present auth rity or analysis regarding the
                   !
prescribed procedure or decision-making proc ss that, he claims, the

commissioner failed to follow. Even so, Nelso does not show that the

commissioner's comment during the unrelated litigation substantially prejudiced

him. He again presents no evidence that the ommissioner in question

participated in the Board's final order.here at i sue or that the commissioner's




                                        -18-
No. 75559-5-1/19


comment impacted the Board's final order denying issuance of a license to him.

There was no error.

       Nelson next contends that the Board ens aged in an unlawful procedure or

decision-making process when, during the initi I adjudicative proceeding in 2010,

the AU dismissed an expert witness due to a ti e constraint before Nelson's

counsel indicated that she had finished her cro s-examination of the witness.

       Nelson's appellate briefing also does no present authority or analysis

regarding the prescribed procedure or decision making process in which the AUJ

failed to engage. Moreover, Nelson does not s ow that he was substantially

prejudiced by the AL's decision to dismiss the expert witness. The AU ruled

that Nelson's counsel had successfully authent cated a document during cross-

examination and otherwise had a fair opportuni y to cross-examine the witness in
                      1     ,
the time allowed. In addition, Nelson's appella e briefing neither identifies the

evidence that he was prevented from eliciting f om the expert witness nor the

manner in which that evidence allegedly impac ed the Board's final order denying

him a license. There was no error.

       Nelson next claims that the Board enga ed in unlawful procedure or

decision-making when the AU allowed an exp rt witness's unredacted report to

be placed in the administrative record when po ions of the report had been

previously excluded or withdrawn.

       Nelson's appellate briefing does not pre ent authority or analysis

regarding the prescribed procedure or decision-making process in which the AUJ

failed to engage. Moreover, even were we to onsider his claim, Nelson does



                                      - 19-
No. 75559-5-1/20


not demonstrate how he was prejudiced by the U's actions. Indeed, he does

not show that the Board, in fact, relied upon th se portions of the expert's report

that were excluded or withdrawn, notwithstandi g that the report was admitted in

an unredacted form. Nelson's claim fails.

       Nelson next contends that the Board en aged in an unlawful procedure or

decision-making process when it relied upon a     emorandum that summarized

the Committee's recommendation not to licens • him prior to voting on whether to

issue him a pilot's license. This is so, he asse s, because he was not given

access to the memorandum prior to the Board' licensing vote.

      Again, Nelson fails to present authority r analysis regarding a procedure

or decision-making process in which the Board failed to engage. Regardless,

even if we considered his claim, Nelson does n t show that the Board's

possession of a sum native'memorandum resu ted in substantial prejudice to

him. Indeed, the information in the memorand m had been previously provided

and presented to the Board and to Nelson duni g the course of his training

program. There is no indiction that any of the information set forth in the

memorandum was new information. No entitlement to relief is established.

      Accordingly, Nelson does not establish t at the Board engaged in an

unlawful procedure o decision-making proces during the administrative

proceedings.



       Nelson next contends that the Board's c iteria for licensing pilots are

unconstitutionally vague.



                                       - 20 -
No. 75559-5-1/21


       We may grant relief from an agency's orfier when "[t]he order, or the

statute or rule on which the order is based, is i violation of constitutional

provisions on its face or as applied." RCW 34.5.570(3)(a).

       "'[A]n administrative rule adopted pursu nt to statutory authority is

presumed valid and should be upheld when co sistent with the enabling statute."

Keene v. Bd. of Accountancy, 77 Wn. App. 849, 854, 894 P.2d 582(1995)

(quoting Ravsten v. Dep't of Labor & Indus., 10 Wn.2d 143, 154, 736 P.2d 265

(1987)). "Similarly, regulations and statutes ar presumed to be constitutional."

Keene,77 Wn. App. at 854 (citing Hale v. Med. Disci lina        Bd., 117 Wn.2d

720, 739, 818 P.2d 1062 (1991)).

       As with a statue, a rule is void for vagu ness "if it is framed in
       terms so vagu that persons 'of commo intelligence must
       necessarily gupss at its meaning and di er as to its application."
       Haley,[117 Wn.2d]at 739(quoting Con all v. General Constr.
       Co., 269 U.S. 385, 391,46 S. Ct. 126, 1 8, 70 L. Ed. 322(1926)).
       However, it is hot necessary that a pers n be able to predict with
       complete certainty exactly when his or h r conduct would be
       classified as priohibited. Haley,[117 Wn 2d] at 740. Moreover,"the
       use of vague terms does not necessaril render a statute as a
       whole impermissibly vague." Haley,[11 Wn.2d]at 741.

Keene,77 Wn. App. at 854

       Indeed, "impossible specificity standard are not required." Heesan Corp.

v. City of Lakewood, 118 Wn. App. 341, 352, 7 P.3d 1003(2003)(citing City of

Seattle v. Eze, 111 Wn.2d 22, 26, 759 P.2d 36 (1988)). This is because,

Iclondemned to the use of words, we can nev r expect mathematical certainty

from our language." Haley, 117 Wn.2d at 740 (quoting Grayned v. City of

Rockford, 408 U.S. 1 4, 110, 92 S. Ct. 2294, 3 L. Ed. 2d 222(1972)).




                                        - 21 -
No. 75559-5-1/22


        Our decision in Chandler v. Office of Insurance Commissioner, 141 Wn.

App. 639, 173 P.3d 275 (2007), is instructive. It issue in Chandler was whether

a statute setting forth that "an applicant for an irLisurance agent's license must be

'a trustworthy person" was unconstitutionally v gue. 141 Wn. App. at 660

(quoting former RCW 48.17.150(1)(f)(2005)).                 e rejected Chandler's claim,

reasoning that,

                The term "untrustworthy" need no be purely objective. And
        including a vague term in a statute does not necessarily render it
        impermissibly Vague because courts do ot analyze statutory words
        in isolation from the Context in which the appear. The common
        knowledge and understanding of memb rs of a profession can
        clarify a statutOry term, such as untrust orthiness, when no
        objective standard is'provided. The pur ose of RCW 48.17.530 is
        to protect the public and the profession' standing in the eyes of the
        public. In the context of the common kn wledge and understanding
        of members of the insurance profession, the terms "trustworthy"
        and "untrustworthy" are sufficiently clear to put an insurance agent
        on notice that certain conduct is prohibit d.

Chandler, 141 Wn. App. at 661 (footnotes omit ed)(citing State v. Foster, 91

Wn.2d 466, 474, 589 P.2d 789(1979); Hale v Med. Disci lina                       Bd., 117 Wn.2d

720, 742, 818 P.2d 1062(1991); Cranston v. C ty of Richmond, 40 Ca1.3d 755,

765, 710 P.2d 845, 221 Cal. Rptr. 779 (1985); orrison v. State Bd. of Educ., 1
                                                           69))
                                                              .10
Ca1.3d 214, 461 P.2d 375, 82 Cal. Rptr. 175(1

        Here, the Board relied upon the criteria et forth in WAC 363-116-080(5)

in voting to deny issu ng a license to Nelson.            gain, the criteria include, but are

not limited to,"[p]erformance in the training pro ram; piloting and ship handling



         10 See also Haley, 117 Wn.2d at 742-43("moral turpitude" in a disciplinary statute not
unconstitutionally vague because "[p]hysicians no less t an teachers, . . . veterinarians,. .. police
officers, . . .[or insurance agents] will be able to determi e what kind of conduct indicates
unfitness to practice their profession").


                                               -22 -
No. 75559-5-1/23


and general seamanship skills; local knowledg ; and, bridge presence and

communication skills." WAC 363-116-080(5).

        The criteria set forth in WAG 363-116-0 0(5) are not unconstitutionally

vague. First, the licensing criteria adopted by t e Board are informed by the

provisions of chapter 88.16 RCW. Again, the i tended purpose of the chapter is

"to ensure against the loss of lives, loss or damage to property and vessels, and

to protect the marine environment" and to enco rage and develop "Washington's

position as an able competitor for waterborne c mmerce from other ports and

nations of the world." RCVV 88.16.005. In addi ion, the Board is authorized to

issue pilot's licenses so as to ensure "safe, full regulated, efficient, and

competent pilotage service." RCW 88.16.035( )(d). Therefore, the licensing

criteria are informed by the intent of the legislature and the scope of the Board's

statutory authority, both of which emphasize saIfety, environmental protection,

and commercial efficacy.

        Furthermore, the licensing criteria are further informed by the common

knowledge and understanding of members of the pilotage profession and the

traits that would render a pilot applicant unfit to pilot a marine vessel.

        Thus, the Board's licensing criteria are ot unconstitutionally vague.

Nelson's claim fails.11


         11 Nelson relies on three appellate decisions to upport his claim that the Board's
licensing criteria are impermissibly vague. Derb Club nc. v. Becket, 41 Wn.2d 869, 252 P.2d
259 (1953), Sater, 198 Wash.695; Woods v. Dist. of Co umbia Nurses' Examining Bd., 436 A.2d
369(D.C. App. 1981).
         Nelson's reliance is unavailing. Unlike the criteria here at issue, the challenged
regulation or statute in the decisions relied upon by Nelson either set forth no standard at all or
set forth a standard devoid of any concrete meaning. See Derby Club, 41 Wn.2d at 877 (statute
"prescribe[d] no standards by which the liquor control bo rd may determine who is and who is not
entitled to a license to operate a bottle club")(emphasis dded)); Sater, 198 Wash. at 701


                                              - 23 -
No. 75559-5-1/24




         Nelson next contends that the Board's decision denying him a pilot's

license deprived him of his right to due proces              This is so, he asserts, because

the period of time between the completion of his training program and the

Board's final order on remand denied him a m aningful opportunity to be heard in

a meaningful time.

               "Procedural dUe process requires notice and an opportunity
        to be heard "at a meaningful time and i a meaningful manner."
        [In Re Det. of Morgan, 180 Wn.2d [312,1 320[, 330 P.3d 774(2014)]
        (quoting Amunrud Iv. Bd. of Appealsl, 1 8 Wn.2d [208,] 216[, 143
        P.3d 571 (2006)])(quoting Mathews v. ldrid e, 424 U.S. 319, 333,
        96 S. Ct. 893, 47 L. Ed. 2d 18 (1976))). The process due depends
        on what is fair in a particular context."       an, 180 Wn.2d at 320.
        In Mathews, the United States Supreme Court articulated a
        balancing test to aid in determining whe ,and to what extent,
        procedural protections are required:
              [D]ue process generally requires consideration of
               three distinct factors: First, the private interest that will
               be affected by the official action; econd, the risk of
               an erroneous deprivation of such interest through the
               procedures used, and the probab e value, if any, of
               additional or substitute procedural safeguards; and
               finally, the Government's interest including the
               function involved and the fiscal arid administrative
               burdens that the additional or su stitute procedural
               requirement would entail.
        424 U.S. at 335.

In re Det. of Hatfield, 191 Wn. App. 378, 396-9 , 362 P.3d 997(2015).

        Here, Nelson made use of the administr tive procedures that were

available to him to challenge the Board's order . The amount of time that passed




(interpretation of act unconstitutional if it permits Board " o issue a license to any applicant they
may believe to be qualified"); Woods,436 A.2d at 373-7 (regulation allowing board to issue a
license "[u]pon showing of cause satisfactory to it" unco stitutional because no standard defined
what causes were satisfactory for a license).


                                                - 24 -
No. 75559-5-1/25


between hearings in this matter was reasonabl . There is no indication that

Nelson was unable to be heard in a meaningfu time.

        Moreover, in asserting that an unconstit tional denial of due process

resulted from the time periOd taken to decide vJhether to issue him a pilot's

license, Nelson argues only the first of the thre Mathews factors: that he had a

property and liberty interest in his trainee licen e and training stipend. However,

even assuming that he has such an interest, N lson does not attempt to

establish the remaining two factors, as require by Mathews. Rather, he asserts

that, because of the amount of time between t e end of his training program, the

Board's vote to not license him, and the compl tion of the administrative and

judicial review of the Board's final order, he wa necessarily deprived due

process. By failing to engage in a suitable ana ysis of the Mathews factors,

Nelson fails to establish a due process claim.12 There was no error.



        Nelson next contends that he was denie a fair hearing before the Board

because, he alleges, the board review officers ho reviewed the AL's initial

orders in this matter engaged in unlawful ex pa e communications with the

Board's legal counsel.




          12 Nelson also contends that the Board denied h m due process when it ended his
training program, thereby depriving him of his trainee lic nse and a $6,000 per month stipend. To
support this proposition, Nelson, in a footnote, relies up n two cases.
          Nelson fails to present argument or analysis sh wing the applicability of this authority to
the matter here at issue. RAP 10.3(a)(5),(6). Moreove -placing an argument... in a footnote
is, at best, ambiguous or equivocal as to whether the iss, e is truly intended to be part of the
appeal." Pub. Util. Dist., 184 Wn. App. at 84 n.49 (internal quotation marks omitted)(quoting
Norcon Builders, LLC v. GMP Homes VG, LLC, 161 Wn App. 474, 497, 254 P.3d 835 (2011)).
We decline to consider this aspect of Nelson's claim.


                                               - 25 -
No. 75559-5-1/26


       RCW 34.05.455(1) reads:"A presiding sificer may not communicate,

directly or indirectly, regarding any issue in the proceeding other than

communications necessary,to procedural aspe ts of maintaining an orderly

process, with any person employed by the age cy without notice and opportunity

for all parties to participate,'except as provided in this subsection." (Emphasis

added.)

       Nelson first contends that an unlawful e parte communication occurred

when the board review officers in question atte ded an open-door meeting during

which the Board's legal counsel mentioned the procedural posture and calendar

dates regarding Nelson's superior court litigati n against the Board.

       The subjects mentioned by the Board's legal counsel were not a

substantive communication regarding an issue in Nelson's administrative

proceeding. There is no indication that a subst ntive discussion of the issues

presented in his administrative matter took pla e at the open-door meeting in

question. Moreover, Nelson fails to show that e suffered from actual or even

probable bias. Nelson's claim fails.

       Nelson next contends that a board revie officer engaged in unlawful ex

parte communication with the Board's legal co nsel during a closed-door

meeting relating to litigation matters.

       The Board indicated that the closed-doo meeting identified by Nelson

concerned litigation relating'to another plaintiff' lawsuit against the Board and

that his administrative matter was not discusse therein. Nelson does not

present evidence rebutting the Board's claim t at the meeting concerned



                                          - 26 -
No. 75559-5-1/27


litigation unrelated to his administrative matter. In addition, he does not provide

evidence showing that the board review officer s participation in the closed-door

meeting prejudiced him. Nelson's claim fails.1-

        Affirmed.




We concur:



                                                          6reow,y




          13 Nelson next contends that the AU, during his administrative proceeding, improperly
used the arbitrary and capricious standard in reviewing he Board's decision not to license him.
To the contrary, the AL's use of the arbitrary or caprici us standard was proper. Bock, 91
Wn.2d at 100 (citing Sater, 198 Wash. 695). There wa no error.
          Nelson next asserts that "remand to the Board' administrative process is futile" because
the decision-makers are "entrenched" and "will not consider comparator evidence" or "whether
fair and equitable licensing procedures" were used. Fo this proposition, he cites to RCW
34.05.534(3)(b), relating to exhaustion of remedies prio to filing his petition for review. Whether
Nelson exhausted—or was required to exhaust—availa le administrative remedies prior to filing
his petition for review does not bear on whether an ord r from this court remanding the decision
is futile. Nelson does not present further argument or a alysis regarding this claim. We thus
decline to consider it In any event, given our ultimate isposition of this appeal, the claim is of no
moment.


                                               - 27 -
