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Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 60173-3
Title of Case: D. & S. Krick, Et Al., App. V. State Dept. Of Fish & Wildlife, Res.
File Date: 08/04/2008
SOURCE OF APPEAL
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Appeal from King County Superior Court
Docket No: 07-2-11117-4
Judgment or order under review
Date filed: 05/25/2007
Judge signing: Honorable Jeffrey M Ramsdell
JUDGES
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Authored by C. Kenneth Grosse
Concurring: Marlin Appelwick
Mary Kay Becker
COUNSEL OF RECORD
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Counsel for Appellant(s)
James J. Dore Jr.
Attorney at Law
1122 W James St
Kent, WA, 98032-8729
Counsel for Respondent(s)
Kathryn B. Mcleod
Attorney at Law
Po Box 40100
1125 Washington St
Olympia, WA, 98504-0100
Mark Conlin Jobson
Office of the Attorney General
Po Box 40126
Olympia, WA, 98504-0126
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View the Opinion in PDF Format
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DAVID KRICK; SHARI KRICK, and )
THE MOLE GUY, INC., ) No. 60173-3-I
)
Appellant, ) DIVISION ONE
)
v. ) UNPUBLISHED OPINION
)
WASHINGTON STATE DEPARTMENT )
OF FISH AND WILDLIFE, )
)
Respondent. ) FILED: August 4, 2008
PER CURIAM. The owners of a mole trapping business sued the
Washington State Department of Fish and Wildlife (Department) for damages
and simultaneously sought to enjoin the Department from enforcing provisions of
the fish and wildlife enforcement code1 outlawing certain methods of trapping or
killing animals. The superior court denied the owners' request for injunctive
relief In addition, the court granted the Department's motion to dismiss the
action under CR 12(b)(6). We affirm.
FACTS
In November 2000, Washington voters approved Initiative 713, which
prohibited the use of body-grabbing traps and other devices to capture animals
and banned the use of two poisons. Initiative 713 (I-713) is codified at RCW
1 See RCW 77.15.900.
No. 60173-3-I/2
77.15.192, .194, .196, and .198.
On March 27, 2007, Department officers executed a search warrant at the
residence of David and Shari Krick, who own a business known as The Mole
Guy, Inc. David Krick was advised that it was illegal to both use body-gripping
traps to capture moles and to operate a commercial mole trapping service
without a Trapper's license and a Nuisance Wildlife Control Operator's (NWCO)
permit. During the course of the search, the officers seized various items,
including certain business records and a sample of the scissor type traps used
by employees of The Mole Guy, Inc., to capture moles. Following its
investigation, the Department referred the matter to the King County Prosecutor
for possible criminal charges.
David and Shari Krick, d/b/a The Mole Guy, Inc., (the Kricks) commenced
this action against the Department for damages and simultaneously moved to
enjoin the Department from enforcing the ban on the use of body-gripping traps
to capture moles. The Kricks' motion for a temporary restraining order was
denied. At a subsequent hearing, the trial court granted the Department's
motion to dismiss the entire action under CR 12(b)(6). This appeal followed.
ANALYSIS
RCW 77.15.194(3) makes it unlawful to use a body-gripping trap "to
capture any animal, except as provided in subsections (4) and (5) of this
section." The term animal includes "any nonhuman vertebrate."2 "Body-gripping
2 RCW 77.15.192(1).
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No. 60173-3-I/3
trap is defined as
a trap that grips an animal's body or body part. Body-gripping trap
includes, but is not limited to, steel-jawed leghold traps, padded-
jaw leghold traps, Conibear traps, neck snares, and nonstrangling
foot snares. Cage and box traps, suitcase-type live beaver traps,
and common rat and mouse traps are not considered body-gripping
traps.[3]
The grant or denial of an injunction is addressed to the sound discretion
of the trial court.4 That discretion is to be exercised "according to the
circumstances of each case."5 For purposes of granting or denying injunctive
relief, the trial court's decision cannot be based upon untenable grounds,
manifestly unreasonable, or arbitrary.6 Injunctive relief may be available to a
party under the circumstances set forth in the injunction statute, RCW 7.40.020.7
The three criteria necessary for injunctive relief under the statute are
(1) that he has a clear legal or equitable right, (2) that he has a
well-grounded fear of immediate invasion of that right, and (3) that
3 RCW 77.15.192(2).
4 Alderwood Assocs. v. Washington Envtl. Council, 96 Wn.2d 230, 233, 635
P.2d 108 (1981).
5 Alderwood Assocs., 96 Wn.2d at 233.
6 In re Dependency of Q.L.M., 105 Wn. App. 532, 538, 20 P.3d 465 (2001).
7 RCW 7.40.020 provides in part:
Grounds for issuance. When it appears by the complaint that the
plaintiff is entitled to the relief demanded and the relief, or any part
thereof, consists in restraining the commission or continuance of
some act, the commission or continuance of which during the
litigation would produce great injury to the plaintiff; or when during
the litigation, it appears that the defendant is doing, or threatened,
or is about to do, or is procuring, or is suffering some act to be
done in violation of the plaintiff's rights respecting the subject of the
action tending to render the judgment ineffectual; or where such
relief, or any part thereof, consists in restraining proceedings upon
any final order or judgment, an injunction may be granted to
restrain such act or proceedings until further order of the court.
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No. 60173-3-I/4
the acts complained of are either resulting in or will result in actual
and substantial injury to him.[8]
Because all three of these criteria must be satisfied to warrant any relief,
the failure to establish one or more of the criteria generally dictates that the relief
requested be denied.9
The Kricks fail to adequately brief or argue their apparent claim that
injunctive relief was improperly denied. They do not cite a single case dealing
with injunctive relief or attempt to analyze the relevant factors. Passing
treatment of an issue or lack of reasoned argument is insufficient to warrant
judicial consideration.10 The Department cites to the well-settled rule that courts
"'will not give relief on equitable grounds in contravention of a statutory
requirement'" to assert that injunctive relief was properly denied in this case.11
Moreover, an injunction will generally not issue to prevent enforcement of a
criminal law.12 Nor have the Kricks established a constitutional basis for
injunctive relief.
The Kricks challenge the constitutionality of RCW 77.15.194(3). Because
the "mole is probably at the bottom of the protected animal list" and scissor traps
8 Port of Seattle v. Int'l Longshoremen's Union, 52 Wn.2d 317, 319, 324 P.2d
1099 (1958).
9 Wash. Fed'n of State Employees v. State, 99 Wn.2d 878, 888, 665 P.2d 1337
(1983).
10 Postema v. P.C.H.B., 142 Wn.2d 68, 123-24, 11 P.3d 726 (2000).
11 See In re Q.L.M., 105 Wn. App. at 539 (quoting Longview Fibre Co. v. Cowlitz
County, 114 Wn.2d 691, 699, 790 P.2d 149 (1990)); Dep't of Labor & Indus. v.
Dillon, 28 Wn. App. 853, 855, 626 P.2d 1004 (1981) (equitable principles do not
provide a basis for equitable relief in derogation of statutory mandates).
12 Sandona v. Cle Elum, 37 Wn.2d 831, 835, 226 P.2d 889 (1951).
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No. 60173-3-I/5
are the most effective means of lethally disposing of nuisance moles, the Kricks
argue, they should be allowed to use scissor traps to combat mole problems in
residential property. We disagree.
"Within constitutional constraints, the legislative branch has the power to
define criminal conduct and assign punishment for such conduct."13 When the
voters approve an initiative, they exercise the same power of sovereignty as the
legislature does when it enacts a statute.14 Where the language of a statute
enacted through the initiative process is "'plain, unambiguous, and well
understood according to its natural and ordinary sense and meaning, the
enactment is not subject to judicial interpretation.'"15
By its very terms, I-713 clearly bans the use of body-gripping traps to
capture certain animals, including moles. RCW 77.15.192(2) targets any trap
that grips the body of an animal in some way. The scissor mole traps used by
the Kricks clearly meet the definition of "body-gripping trap" in RCW
77.15.192(2).
The Kricks also appear to argue that the Department was required to hold
a hearing before it can initiate an investigation into whether RCW 77.15.194(3)
has been violated. They fail to cite any authority in support of this apparent due
process claim. "'[N]aked castings into the constitutional sea are not sufficient to
13 State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995).
14 Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 204, 11 P.3d
762 (2000).
15 Amalgamated, 142 Wn.2d at 205 (quoting State v. Thorne, 129 Wn.2d 736,
762-63, 921 P.2d 514 (1996)).
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No. 60173-3-I/6
command judical consideration and discussion.'"16
In addition, the Kricks appear to argue that the statute banning the use of
body-gripping traps is unconstitutional because it interferes with a property
owner's "ultimate right to defend his/her property and that right includes
disposing of nuisance moles that are . . . causing damage to the property."17 We
again disagree.
The law is well settled that a property owner has a right to protect his or
her property from wildlife damage under the state constitution.18 As the court in
Vander Houwen explained:
In [State v.] Burk, we held that landowners must be able to
defend their property against destructive game. 114 Wash. [370,
376, 195 P. 16 (1921)]; see also Cook v. State, 192 Wash. 602,
611, 74 P.2d 199 (1937). In Burk, the court clearly stated, "it may
be justly said that one who kills an elk in defense of himself or his
property, if such killing was reasonably necessary for such
purpose, is not guilty of violating the law." 114 Wash. at 376. This
holding illustrates more than a common law principle; rather it
recognizes "a constitutional right to show, if he could, that it was
reasonably necessary for him to kill these elk for the protection of
his property." [114 Wash. at 376] (emphasis added). We
reaffirmed this constitutional right in Cook, holding that the Cooks
would have been justified in killing animals that had damaged their
property. See 192 Wash. at 611. Neither case has been
overruled; thus the holding that one may reasonably defend
property against wildlife damage is still correct law in
Washington.[19]
Even assuming the Kricks have standing to assert the constitutional rights
16 In re Rosier, 105 Wn.2d 606, 616, 717 P.2d 1353 (1986) (quoting United
States v. Phillips, 433 F.2d 1364, 1366 (8th Cir. 1970)).
17 Brief of Appellant at 6.
18 State v. Vander Houwen, 163 Wn.2d 25, 28, 177 P.3d 93 (2008).
19 163 Wn.2d at 33.
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No. 60173-3-I/7
of their clients,20 there is no showing that RCW 77.15.194(3) impermissibly
infringes on any constitutionally protected rights or interests.
We presume that statutes enacted through the initiative process are
constitutional.21 A party who challenges a statute on constitutional grounds
"bears the heavy burden of establishing its unconstitutionality beyond a
reasonable doubt."22
It is true that Washington's fish and wildlife enforcement code does not
abrogate a property owner's constitutional right to defend his or her property
from wildlife damage.23 But the rights guaranteed under the state constitution24
and the requirements of I-713 are clearly not so inconsistent that they cannot be
reconciled and both given effect. I-713 does not change a property owner's right
to trap animals; it merely regulates the types of traps that may be used.25 "In this
20 The Kricks waited until their reply brief to argue that the wildlife laws cannot be
applied against "agents acting on behalf of the property owner" without violating
the state constitution. Appellant's Reply Brief at 8. We need not consider an
argument that is raised for the first time in a reply brief. Cowich Canyon
Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). Moreover,
the Kricks do not cite any authority in support of their argument. Our courts are
generally reluctant to permit a litigant to assert the constitutional rights of
another person. "In the ordinary course, a litigant must assert his or her own
legal rights and interests, and cannot rest a claim to relief on the legal rights or
interests of third parties." Powers v. Ohio, 499 U.S. 400, 410, 111 S. Ct. 1364,
113 L. Ed. 2d 411 (1991).
21 Amalgamated Transit, 142 Wn.2d at 205.
22 Amalgamated Transit, 142 Wn.2d at 205.
23 Vander Houwen, 163 Wn.2d at 29.
24 Wash. Const. art. I, § 3 ("No person shall be deprived of life, liberty, or
property, without due process of law.").
25 Citizens for Responsible Wildlife Mgmt. v. State, 149 Wn.2d 622, 643, 71 P.3d
644 (2003).
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No. 60173-3-I/8
way, the initiative does not alter preexisting rights or duties to an impermissible
degree."26
The Kricks did not brief nor provide any authority in support of an
argument that the trial court erroneously dismissed their claim for damages
against the Department. More importantly, the Kricks at trial appear to have
abandoned any request for damages. In their response to the Department's
motion to dismiss, the Kricks acknowledged that their "claim is not for damage
but the restoration of the . . . right to protect [one's] property." We decline to
consider the matter further.
Affirmed.
For the Court:
26 Citizens for Responsible Wildlife Mgmt., 149 Wn.2d at 643.
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_________________________
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FREE PARKER DEATH TO RATS
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