92 Wn. App. 381, PURSE SEINE VESSEL OWNERS v. STATE

[No. 21923-9-II. Division Two. September 11, 1998.]

PURSE SEINE VESSEL OWNERS ASSOCIATION, ET AL., Appellants, v. THE STATE OF WASHINGTON, Respondent.

[1] Appeal - Decisions Re-viewable - Final Judgment - What Constitutes. A judgment is considered final for purposes of appeal if it concludes the action by resolving the issue of the plaintiff's entitlement to the requested relief.

[2] Declaratory Judgment - Review - Right of Appeal. A trial court's denial of a plaintiff's request for a declaratory judgment constitutes an appealable final judgment.

[3] Fish - Right To Fish - Closed Fishery - Judicial Review - Statutory Provisions. Judicial review of a decision by the Department of Fish and Wildlife not to open a fishery to nontreaty fishers is conducted under RCW 34.05.570(4) of the Administrative Procedure Act.

[4] Administrative Law - Judicial Review - Appellate Review - Record - Superior Court Record - Lack of Administrative Record. When there is no administrative record underlying an administrative decision and judicial review of the administrative decision is conducted solely on the basis of affidavits admitted

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pursuant to RCW 34.05.562, appellate review of the superior court's decision is on the record that was made before the superior court.

[5] Administrative Law - Administrative Decisions - Validity - Presumption - Burden of Proof. An agency decision is presumed to be valid and will not be invalidated unless it is proved to be invalid in court.

[6] Administrative Law - Judicial Review - Arbitrary and Capricious - What Constitutes. For purposes of the arbitrary and capricious standard of RCW 34.05.570(4)(c)(iii) for reviewing agency action, an action is not arbitrary and capricious unless it is willful, unreasoning, and taken without consideration and in disregard of the attending facts and circumstances.

[7] Administrative Law - Judicial Review - Question of Law - De Novo Review - Deference to Agency - Agency Expertise. Although questions of law in administrative proceedings are reviewed de novo, a court will accord substantial weight to an administrative agency's view of a law that pertains to a matter that falls within the agency's special field of expertise.

[8] Administrative Law - Judicial Review - Deference to Agency - Nonlaw Basis for Agency Decision. An agency decision not based primarily upon an interpretation of law is not reviewed de novo.

[9] Administrative Law - Judicial Review - Deference to Agency - Scientific Basis for Agency Decision. A court sitting in review of an agency decision based primarily on scientific evidence will defer to the agency's interpretation of the evidence if it falls within the agency's field of expertise.

[10] Indians - Fish - Right To Fish - Closed Fishery - Conservation Closure - Treaty and Nontreaty Fishers - Agency Authority. Insofar as the standards and methods for regulating nontreaty fisheries are not the same as those for regulating treaty fisheries, the Department of Fish and Wildlife may lawfully refuse to open a fishery to nontreaty fishers in the interest of conservation without necessarily also seeking to have the fishery closed to nontreaty fishers.

[11] Indians - Fish - Right To Fish - Closed Fishery - Conservation Closure - Treaty and Nontreaty Fishers - Different Legal Requirements. The State's broad police powers to manage fish resources and the taking of fish within its jurisdiction - and its considerable discretion to take whatever measures it considers necessary to preserve, protect, perpetuate, and manage food fish resources within its borders - may be preempted or limited by federal law, including treaties the federal government has negotiated with Indian tribes. In general, the State has only limited regulatory authority over treaty fisheries and treaty fishers. Treaty tribes generally regulate their own fisheries. Federal treaty rights preempt state authority except when necessary to conserve the fish resource, and even then the State may regulate the resource only if it proves in federal court that it is unable to preserve the resource by closing the fishery to nontreaty fishers. Wise use, the usual standard for the State's regulation of fisheries, is not a sufficient basis alone for state regulation of treaty fishing; in order to be able to regulate treaty fishing, the State must prove that closing the fishery to treaty fishers is required for the perpetuation of a species.

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[12] Fish - Right To Fish - Allocation of Fish - State Authority. The taking of fish from state waters is a privilege bestowed by the State in the exercise of its generally plenary powers to regulate fishery resources. The taking of fish is not a vested or natural property right. The State, in fulfillment of its obligation to ensure the continued viability of its fishery resources, has the authority to limit or restrict all participants in a fishery who are not protected by treaties with the United States.

Nature of Action: An organization of commercial fishers and individual members thereof sought a declaration that an administrative decision not to open the "spawn on kelp" herring fishery to nontreaty fishers for conservation reasons was statutorily invalid. The plaintiffs also sought injunctive relief.

Superior Court: The Superior Court for Thurston County, No. 97-2-00660-8, Daniel J. Berschauer, J., on April 21,1997, entered a judgment denying relief to the plaintiffs. Court of Appeals: Holding that the State acted within its regulatory powers in not opening the fishery to nontreaty fishers in the interest of conservation without also seeking to have the fishery closed to treaty fishers, the court affirms the judgment.

Robert F. Kehoe and Robert P. Zuanich of Rigby, Jones & Zuanich, for appellants.

Christine O. Gregoire, Attorney General, and Fronda C. Woods, Assistant, for respondent.

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HOUGHTON, C.J. - After the Department of Fish and Wildlife failed to allow a certain type of non-treaty herring fishery for conservation reasons, the Purse Seine Vessel Owners Association and other Puget Sound fishers (Purse Seine) filed a lawsuit in superior court, seeking declaratory and injunctive relief against the Department of Fish and Wildlife (Department). The court declined to grant Purse Seine the relief requested. We affirm.

FACTS

History of Spawn-On-Kelp Herring Fisheries

The facts are undisputed. Cherry Point is an area in north Puget Sound near the Canadian border where the state's largest stock of Pacific herring spawns each winter. This geographic area is within one of Washington's marine life reporting areas«1» that is subject to treaties between the United States and American Indian tribes.

During the 1980s, in response to increasing demand in Japan, the Department began developing a type of fishery known as the "spawn-on-kelp" technique. Under this method, egg-laden herring are captured and placed into saltwater net pens filled with kelp. The herring spawn on the kelp, which is then gathered along with the attached roe, cut into pieces, and sold as a delicacy. This method of fishery allows fishers to collect herring roe without killing the fish.

In 1989, the Legislature enacted laws permitting commercial spawn-on-kelp fisheries. The Department awards up to five non-treaty licenses every season to the highest bidders to conduct spawn-on-kelp fisheries. Between 1989


«1» Cherry Point is within Marine Fish and Shellfish Catch Management and Reporting Area 20A, and within the case management area established to adjudicate certain rights under treaties between the United States government and Northwest Indian Tribes.


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and 1996, the Department awarded between one and four licenses annually.

Each year, the State-Tribal Herring Technical Team predicts the biomass of Puget Sound herring runs, including the Cherry Point run. The spawn-on-kelp fisheries are authorized and opened at Cherry Point only if the biomass of herring exceeds 3,200 tons. Since 1973, the stock of spawning adult herring at Cherry Point has been steadily declining.

At a public hearing held in December 1996, the Department announced that preliminary estimates of the Cherry Point run for the 1997 season indicated that herring stocks would be below or just above the minimum threshold level of 3,200 tons. The Department also stated that it had reached a tentative agreement with three of the four tribes participating in treaty herring fisheries whereby the tribes agreed to forego herring fisheries in 1997 due to the low number of herring returning to Cherry Point. The Department had not reached an agreement with the remaining tribe.

In January 1997, the Department distributed a letter indicating that it would not be authorizing any non-treaty herring spawn-on-kelp fisheries for Cherry Point in 1997 because the biomass of the herring run was too low.«2» The Department reached its decision in the interests of conservation as cautioned by the Herring Technical Team.

In February 1997, the Department announced the opening of two treaty fisheries that permitted two tribes to harvest 22 tons of herring roe from a spawn-on-kelp fishery. Although the Department considered the two tribes' decision unwise, the Department did not attempt to prevent


«2» Under RCW 75.08.080 (1)(a)-(b), the Department is authorized to specify the time and place for fisheries. But a fishery remains closed unless a Department rule is promulgated to open it because food fish "shall not be fished for except as authorized by rule of the commission." RCW 75.08.011(13).


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opening«3» of the fisheries because of the uncertainty of the run size and limited extent of the tribes' harvest.

The Present Lawsuit and Trial Court's Ruling

Purse Seine filed a lawsuit against the State (acting through the Department) and sought a declaratory judgment and also injunctive relief, alleging that the Department's decision not to close the treaty fisheries while closing the non-treaty fisheries violated RCW 75.56.030, which provides that "[n]o citizen shall be denied equal access to and use of any resource on the basis of race, sex, origin. cultural heritage, or by and through any treaty based upon the same."«4» The matter was tried to the court on affidavits.

The trial court declined to enter a declaratory judgment or grant injunctive relief because the biologists' predictions about the 1997 season fully supported the Department's decision not to open a commercial fishery in the interests of conservation. The trial court ruled that RCW 75.56.030 did not apply, but even if it did, it arguably abrogated treaty rights, and federal law (respecting treaty rights) prevailed under the supremacy clause of the U.S. Constitution. U.S. const. art. 6, para. 2. Quoting Puget Sound Gillnetters Ass'n


«3» In order to close a treaty fishery, the state must either convince the federal court's fisheries advisor that closing a tribal fishery is necessary, or ask the federal court for an emergency injunction. See United v. Washington, 459 E Supp. 1020 (1978).

«4» In 1984, the voters approved Initiative 456. It is codified in RCW 75.56.030, and provides in full:

Management of natural resources-State policy

The people of the state of Washington declare that conservation, enhancement, and proper utilization of the state's natural resources, including but not limited to lands, waters, timber, fish, and game are responsibilities of the state of Washington and shall remain within the express domain of the state of Washington.

While fully respecting private property rights, all resources in the state's domain shall be managed by the state alone such that conservation, enhancement, and proper utilization are the primary considerations. No citizen shall be denied equal access to and use of any resource on the basis of race, sex, origin, cultural heritage, or by and through any treaty based upon the same.


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v. Moos,«5» the court concluded that non-treaty fishers "do not have a 'vested' or 'natural' property right to fish, to take fish, or to fish-taking locations" and that "signatory

tribes [have] a right to fish that nontreaty fishermen do not enjoy."

The trial court also deferred to the Department's judgment that the two tribal fisheries would not adversely affect the herring population. In the court's view, this exercise of discretion did not grant non-treaty fishers the legal right to require the Department to authorize fisheries for everyone. Nor did the court agree that the language of RCW 75.56.030 required the Department to authorize nontreaty fisheries once the stock was sufficient to support treaty fisheries. Purse Seine appeals.«6»

ANALYSIS

Appellate Jurisdiction

[1, 2] As a preliminary matter, the State contends that this court does not have jurisdiction over this appeal because Purse Seine's appeal of the trial court's denial of declaratory relief is interlocutory. The State's assertion is incorrect. A declaratory judgment has the force and effect of a final judgment. Sorenson v. City of Bellingham, 80 Wn.2d 547, 496 P.2d 512 (1972); see also Logan v. North-West Ins. Co., 45 Wn. App. 95, 102, 724 P.2d 1059 (1986) (Petrich, J. concurring). Therefore, the trial court's ruling is appealable as a final judgment. Wooh v. Home Ins. Co., 84 Wn. App. 781, 930 P.2d 337 (1997). A judgment is considered final on appeal if it concludes the action by resolving the plaintiffs entitlement to the requested relief. Reif v. La Follette, 19 Wn.2d 366, 142 P.2d 1015 (1943).

Here, the trial court entered an order denying Purse Seine's request for declaratory relief. That ruling conclusively adjudged Purse Seine's petition for declaratory relief


«5» 92 Wn.2d 939, 947-48, 603 P.2d 819 (1979).

«6» At oral argument, counsel for Purse Seine stated that it appeals only the denial of declaratory relief.


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by denying the request. That ruling may be appealed as a final judgment. See CR 54(a).

Standard of Review

[3-5] Judicial review of an agency (Department) action is governed by the Administrative Procedure Act (APA), RCW 34.05. The party challenging the rule bears the burden of showing that the agency's decision is invalid. RCW 34.05.570(1). Here, the Department's failure to allow non-treaty spawn-on-kelp fishery is an "other agency action" subject to review under RCW 34.05.670(4). On review of an agency decision, this court "sits in the same position as the superior court" and applies the standards of the APA to the record before the agency. Tapper v. Employment Sec. Dep't, 122 Wn.2d 397, 402, 858 P.2d 494 (1993) (citations omitted).

Here, there is no agency record because the Department determined not to open the fishery and therefore did not promulgate such a rule.«7» The matter was instead tried to the superior court on affidavits. Thus, we use the rule set forth in Waste Management of Seattle, Inc. v. Washington Utils. and Transp. Comm'n, 123 Wn.2d 621, 633-34, 869 P.2d 1034 (1994), and we review the superior court record because it took additional evidence under RCW 34.05.562 and/or examined an issue not raised before the agency under RCW 34.05.554. Therefore, the information needed for review is contained in the superior court record.

Absent some limited exceptions that are not relevant here, the APA provides the exclusive means and standards for review of the Department's action. RCW 34.05.510; RCW 34.05.570(1)(b); Neah Bay Chamber of Commerce v. Department of Fisheries, 119 Wn.2d 464, 468, 832 P.2d 1310 (1992). The agency's action is presumed valid and the party asserting invalidity bears the burden of demonstrating that it is not. RCW 34.05.570(1)(a); Hillis v. Department of Ecology, 131 Wn.2d 373, 381, 932 P.2d 139 (1997).


«7» See supra note 1.


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[6] Under the APA, the aggrieved party may be granted relief from the agency action when the action is unconstitutional, exceeds the scope of agency authority, or is arbitrary and capricious. RCW 34.05.570(4)(c)(i-iii). For a rule to be arbitrary and capricious, it must be a "willful and unreasoning action, without consideration and in disregard of facts and circumstances." Heinmiller v. Department of Health, 127 Wn.2d 595, 609, 903 P.2d 433 (1995), amended by, 909 P.2d 1294, cert. denied, 518 U.S. 1006 (1996) (citations omitted).

Underlying Department Action

[7-9] Purse Seine first contends that the decision of the lower court is subject to de novo review. Although questions of law are reviewed de novo, "substantial weight is given to the agency's view of the law if it falls within the agency's expertise in that special field of law." Northwest Steelhead and Salmon Council of Trout Unltd. v. Department of Fisheries, 78 Wn. App. 778, 786-87, 896 P.2d 1292 (1995) (citations omitted).

Purse Seine asserts that the underlying agency decision was based primarily upon an interpretation of law. This assertion is incorrect. Here, the underlying state action involved the Department's decision not to open non-treaty spawn-on-kelp fisheries for the 1997 season. The Department action was based upon biomass projections by the State-Tribal Herring Technical Team that estimated between 2,474 and 4,705 tons of herring for the 1997 season. This estimation, in turn, was based upon an 80 percent probability. Thus, acting in the interests of conservation, largely based upon the cautioning of the Technical Team, the Department concluded that closing the spawn-on-kelp fisheries for the upcoming season was appropriate. Thus, the agency decision was not primarily based upon an interpretation of law and is not subject to de novo review.

Treatment of Treaty and Non-treaty Fishers

Purse Seine next contends that the Department should

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not be accorded deference because Purse Seine is challenging the breadth of its discretion, not its exercise. That is, Purse Seine argues, the non-treaty closure violates state law and the Department exceeded its authority because RCW 75.56.030 requires that conservation closures be applied equally to treaty and non-treaty fishers.

Moreover, Purse Seine asserts that the Department is required by law to apply the same standard to treaty and non-treaty fishers when closing the fisheries in the interest of conservation, arguing that the Department, in authorizing a treaty fishery while failing to authorize a non-treaty fishery, violated RCW 75.56.030. Purse Seine contends that under this statute,«8» the Department does not have discretion to selectively close the herring spawn-on-kelp fishery to non-treaty fishers for conservation purposes while permitting treaty fisheries to remain open. By failing to exercise its regulatory authority over the treaty tribes while closing the fisheries to non-treaty fishers, Purse Seine contends, is a "patent denial of 'equal access' to the state's fishery resources."

[10] Purse Seine's argument is misplaced. Authorizing non-treaty fisheries, but refraining from exercising regulatory authority over treaty fisheries, are two distinct considerations and issues. As the Department notes, there are two different standards. First, under RCW 75.08.012, the Department can allow a fishery only if it does not impair the resource. But second, under the Boldt«9» decision, the Department can stop a treaty fishery only if it proves


«8» More specifically, Purse Seine asserts that I-456 (codified as RCW 75.56.030) deprives the Department of any discretion in selectively closing the fishery only to non-treaty fishers. According to Purse Seine, the objectives of I-456 were two-fold: first, to seek a formal petition to the United States Congress to make steel-head a national game fish and therefore, not subject to commercial sale by the tribes, and secondly, to seek a uniform standard for state regulation of fishing in the interest of conservation. Moreover, Purse Seine asserts that the initiative in no way changed the federally secured treaty rights. Essentially, it argues that non-treaty fishers' 50 percent share of food fish should not be allocated to conservation and preservation of the fishery without the treaty fishers sharing equally in the loss of fishing opportunity.

«9» United States v. Washington, 384 F. Supp. 312 (1974) ("Boldt Decision"), aff'd, 520 P.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976).


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that authorizing the fishery will impair a resource. Thus, it may decide not to allow a non-treaty fishery and, under the same circumstances, not seek to stop a treaty fishery.

1. State's Broad Powers to Regulate Non-treaty Fisheries

[11] The fish in the waters of the State belong to all the people of the state in their collective, sovereign capacity. Marincovich v. Tarabochia, 114 Wn.2d 271, 276, 787 P.2d 562 (1990); Moos, 92 Wn.2d at 948 n.5. And conservation of the state's fish resources has been a priority since statehood. See LAWS OF 1889-90, at 106-09, 233-35.

Therefore, in regulating its fish resources, the state, acting through the Department, has broad police powers to manage fish resources within its borders, including the relationship between fish and people. See e.g., Douglas v. Seacoast Prods., Inc., 431 U.S. 265, 287-88, 97 S. Ct. 1740, 52 L. Ed.2d 304 (1977) (Rehnquist, J., concurring in part). Unless preempted by federal law, a state's authority over its fisheries is limited only by its own organic law and by the Fourteenth Amendment. Sohappy v. Smith, 302 F. Supp. 899, 908 (1969); Cawsey v. Brickey, 82 Wash. 653, 656, 144 P.938 (1914). In Washington specifically, the Department may regulate fish resources with ultimate control as to whether any fish whatsoever may be taken. Vail v. Seaborg, 120 Wash. 126, 133, 207 P. 15 (1922).

Pursuant to these broad regulatory powers, the Department has considerable discretion to engage in activities that "preserve, protect, perpetuate and manage the food fish" in the state. RCW 75.08.012; Northwest Gillnetters Ass'n v. Sandison, 95 Wn.2d 638, 643, 628 P.2d 800 (1981). The overriding purpose of the statutes is to provide for wise use of the resource. Sandison, 95 Wn.2d at 643.

Here, the Department decided not to authorize nontreaty fisheries for the 1997 season in the interests of conservation. This decision was based upon biological data projecting a biomass below the threshold 3,200 tons, or, at best, marginally above that level. The Technical Team advised the Department to use "extreme caution" in authorizing any fisheries for that season. Therefore, the

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Department was acting pursuant to its discretion and broad regulatory authority in preserving the stock of herring. The decision not to authorize the spawn-on-kelp fisheries was undertaken pursuant to its legislative mandate to conserve and protect the fish of the state. This decision was properly taken under the Department's discretion.

2. State's Limited Regulatory Authority Over Treaty Fisheries

Relative to its regulatory authority over non-treaty fishers, the state's power over treaty fishers is more limited. As the Supreme Court of the United States has held, treaties preempt the state's ability to regulate signatory tribal fishing except in limited circumstances. Tulee v. Washington, 315 U.S. 681, 684, 62 S. Ct. 862, 86 L. Ed.2d 1115 (1942); Puyaliup Tribe v. Department of Game, 391 U.S. 392, 398-99, 88 S. Ct. 1725, 20 L. Ed. 2d 689 (1968). Accordingly, treaty tribes generally regulate their own fisheries. Puget Sound Gillnetters Ass'n v. United States Dist. Ct., 73 F.2d 1123, 1128 (9th Cir. 1978), vacated on other grounds, 443 U.S. 658 (1979).

Thus, federal treaty rights for taking fish preempt state authority except where necessary for conservation. Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 682, 99 S. Ct. 3055, 61 L. Ed.2d 823 (1979); Puyaliup Tribe, 391 U.S. at 398-99. We note that several federal courts have enjoined state regulation of treaty fishing where the regulation was not "essential" to conservation. See e.g., United States v. Washington, 384 F. Supp. 312, 402 (1974); Hoh Indian Tribe v. Baldridge, 522 F. Supp. 683, 691-92 and n.1 (1981). Wise use of the resource alone is not a basis for state regulation of treaty fishing. United States, v. Washington, 384 F. Supp. at 402.

Moreover, a state may regulate treaty fishing only after it has proved that is unable to preserve the resource by forbidding fishing by non-treaty fishers. See United States v. Washington, 384 F. Supp. at 342, 520 F.2d at 686-87. That is, only after a state has closed non-treaty fisheries can it seek regulation of treaty fishing by seeking an

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injunction in federal court. United States v. Washington, 459 F. Supp. 1061, 1062-63 (1976). In the words of one court, the state must prove that closing its fisheries for conservation is "required for the perpetuation of a species." State v. Miller, 102 Wn.2d 678, 688, 689 P.2d 81 (1984); see also Slate v. Reed, 92 Wn.2d 271, 274-75, 595 P.2d 916, cert. Denied, 444 U.S. 930 (1979).

Clearly, then, the state is more limited in regulating treaty fisheries as compared with its authority over nontreaty fisheries. And the action taken in determining whether to close treaty fisheries is different. The state must first prove that conservation could not be accomplished by limiting non-treaty fisheries, and then it must convince the federal court that conservation is necessary. Only then, is the State able to close a treaty fishery. United States v. Washington, 520 P.2d at 686-87.

3. Commercial Fishing Interests Must Yield to Conservation

[12] Purse Seine further asserts that RCW 75.08.012«10» places an affirmative, nondiscretionary duty upon the Department to allocate up to 50 percent of the harvestable herring to non-treaty fishers. We disagree. It is well settled that that the taking of fish is not a vested or natural property right, Moos, 92 Wn.2d at 947-48; Neah Bay, 119 Wn.2d at 476; Marincovich, 114 Wn.2d at 276. To the contrary, harvesting fish is a privilege bestowed by the state, that is, the "citizen's right to take fish is purely derivative of the state's power to regulate rights in the fish." Puget Sound Gillnetters Ass'n v. United States Dist. Ct. , 573 P.2d at 1132.

Thus, although non-treaty fishers may be entitled to their


«10» Mandate of the Department [Fish and Wildlife]

The department shall preserve, protect, perpetuate and manage the food fish and shellfish in state waters and offshore waters.

The department shall conserve the food fish and shellfish resources in a manner that does not impair the resource. In a manner consistent with this goal, the department shall seek to maintain the economic well-being and stability of the fishing industry in the state. The department shall promote orderly fisheries and shall enhance and improve recreational and commercial fishing in this state.


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fair share of harvestable fish, state conservation interests are paramount, and the Department has an obligation to ensure the continued viability of the state's fishery resources. The conservation of the state's fish resources must remain paramount to the commercial interests, of nontreaty fishers. As the trial court properly noted, a court should be leery of trying to substitute its judgment for that of the agency empowered to control one of the state's precious marine resources.

Affirmed.

MORGAN and BRIDGEWATER, JJ., concur.