1 IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 45205
CHAD R. ERICKSON,

Plaintiff

- Appellant,

v.

THE IDAHO BOARD OF LICENSURE OF PROFESSIONAL ENGINEERS AND PROFESSIONAL LAND SURVEYORS and KEITH SIMILA, in his capacity as Executive Director of the Idaho Board of Licensure of Professional Engineers and Professional Land Surveyors,

Defendants

- Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Boise, April 2019 Term

Substitute Opinion filed: October 4, 2019
Karel A. Lehrman, Clerk
SUBSTITUTE OPINION, THE COURT’S PRIOR OPINION DATED MAY 14, 2019, IS HEREBY WITHDRAWN.

Appeal from the District Court of the Second Judicial District of t he State of Idaho, Idaho County. Gregory Fitz M aurice, District Judge.
The opinion of the district court is reversed and the Board’s o rder against Erickson is vacated

. Chad R. Erickson, appellant pro se

. Michael J. Kane & Associates, PLLC, Boise, for respondent. Michael J. Kane argued.

_______________________________________________ MOELLER, Justice
I. NATURE OF THE CASE The Idaho Board of Licensure of Professional Engineers and Professional Land Surveyors (the Board) , through its executive director, Keith Simila
, brought disciplinary proceedings aga inst Chad R. Erickson for allegedly violating certain statutes and rules governing the surveying profession. Following an administrative hearing, the Board found that Erickson
viol ated a number o f the statutes and rules alleged and revoked his license as a professional land surveyor. Erickson sought judicial review by the district court. On review, t he district court upheld the Board’s finding that Erickson had committed certain violations; howeve r, the district
court reversed the portion of the Board ’ s O rder revoking Erickson’s license and remanded the2 matter for further consideration of the appropriate sanction. Erickson appeals from the district

court ’ s decision
, arguing that the evidence does n ot support the Board ’ s finding of any
violations . In addition, Erickson asserts that numerous procedural errors made by the Board
necessitate reversal

. For the reasons stated below, we reverse.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Erickson ’ s survey of Section 24

. The underlying controversy surround ing the Board ’ s disciplinary action began when
Erickson , a licensed professional land surveyor in Idaho, prepared a r ecord of s urvey for his clients, Sydney and Dorothy Walker (the Walkers) , on July 27, 2010. In that survey, Erickson rejected an original stone monument, known as the Carl Edwards monument
, 1 located at the
southwest corner of S ection 24
, Township 30 North, Range 3 East
, Boise M eridian , Idaho County, Idaho (“Section 24”), by mo ving the corner approximately 272 feet to the south in favor
of the Walkers

. Erickson failed to note in the survey of record a parcel of land owned by th e Grangeville Highway District, thereby implying the Walkers owned the parcel.
Erickson also authored a survey report in July 2010, explaining his reasons for relocating the monument, many of which the Board found to be “significantly faulty.” The report also speculated that the Walkers’ adjoining neighbors, Diane and Richard Badertscher (the
Bade rtschers)
, had encroached upon the Walker s ’ property by building a fence based upon a survey from 1996 that Erickson claimed was incorrect

. Since Erickson’s surveys, t here has been ongoing litigation concerning the true location of the boundaries to the ne ighboring propert ies

. On December 29, 2011, Erickson sent the W alkers a document titled “ Report on the
Southwest Corner of Section 24. ” This document was unstamped and unsigned. In that
document , Erickson stated that his original conclusions in the 2010 survey of record and survey
repor t were erroneous. However, he continued to reject the Carl Edwards monume nt, referring to
both it and his newly monumented corner as “ bogus. ” I t appears Erickson was willing to relocate
the corner to its “ correct ” location if the Walkers paid him to do so. However, the Walkers chose

not to rehire Erickson

. There is no evidence in the record to suggest that Erickson file d an amended corner record or an amended record of survey to memorialize or correct his mistake

.

1 The monument is known as the Carl Edwards monument be cause Carl Edwards found and “ re monumented ” the original stone in 1977. “Remonumentation” is defined as “[t] he construction of a corner monument (iron post, rock cap or concrete monument) at the position of an original monument as determined from proper measurement from its original accessories.” G LOSSARIES OF BLM S URVEYING AND M APPING T ERMS , “ Remonumentation ,” p. 55, U.S. Department of the Interior, Bureau of Land Man agement (2003).3 In March 2015, Erickson published an article in American Surveyor magazine, justifying his rejection of the Carl Edwards monument. In that article, he cited information not mentioned in his original survey report to the Walkers. Prior to the publication of his arti cle , Erickson
recorded a document nearly identical to the article
, en titled “ Survey Report
, ” with the Idaho County Courthouse

. Erickson’s article and survey report allegedly contained negative references
about the Walkers and the surveyor they hired to replace him

. 2

B. Disciplinary proceedings by the Board

. On February 24, 2011, the Board received a letter from the Badertscher s styled as a

“ complaint ” against Erickson. However, the letter was not a formal complaint as it was unsworn.
The Boar d initiated a n investigation into the allegations made in the letter. On May 5 , 2011, t he
Board entered an order extending the time to investigate the matter raised in the letter. In
addition to the Badertscher s ’ letter, the Board received a letter from Dorothy Walker on March
31 , 2015, alleging similar complaints regarding Erickson. On June 10, 2015, the Board also extended the time to investigate the charges alleged by the Walkers

. Both letters related to the 2010 survey. Upon completion of the Board’s investigation
, Simila, the Executive D irector of the Board, filed a c omplaint against Erickson on October 28, 2015. The c omplaint alleged that
Erickson violated a number of Idaho statutes and the I daho Rules of Professional Responsibility
for professional engineers and l and surveyors. An administrative hearing regarding the c omplaint
was set for June 20 , 2016, through June 22, 2016. While the administrative matter was proceeding, Erickson prematurely filed a p etition for j udicial r eview with the district court, which was dismissed on June 13, 2016, primarily due to a lack of jurisdiction. On the first day of the administrative hearing, Erickson orally requested a continuance, on the grounds that the district court enter ed it s June 2 016 o rder d ismissing Erickson’s petition for judicial review less than one week p rior to the administrative hearing

. Simila’s counsel provided the Board with evidence of an offer it made to vacate and reschedule the June 20 , 2016, hearing in return for Eri ckson agreeing to the date set by the Board . Erickson declined the offer. Therefore, the Board denied his request for a continuance.

2 T he allegations that Erickson made disparaging comments about his clients and another surveyor , contained in Counts 4, 5, and 6 of the complaint, were dismissed by the Board in its Findings of Fact, Conclusions of L aw, and Order dated, August 17, 2016.4 Erickson also moved to disqualify the entire Board, claiming that each member was personally biased against him. The Board denied the motion, although one Board member
recused hi mself from the proceedings. A ddition ally , Erickson moved to disqualify the Board’s expert witness, John Elle , who was also a Board member but participated only as an expert at the hearing. The Board also denied this motion. Erickson never objected to Elle ’ s qualification s as an expert during the administrative hearing. The first two days of the hearing were primarily devoted to the direct and the cross

examination s of the expert witness, Elle, and ex amination of the complainant, Simila. On the third day of the hearing, Erickson moved for a mistrial . The Board denied his motion. Erickson
then moved for a sixty

- day continuance. Simila’s counsel offered to allow Erickson to submit
additional evide nce aft er the hearing had ended if he was willing to allow the proceeding to

con tinue . Erickson apparently reject ed t his offer. The Board denied Erickson’s motion for a
continuance

. Following the denial of his motion, Erickson stated he “ c an’t take anymore ” and

“ need [ ed ] a break

. ” He also mentioned his age and that he has “heart problems.” The Board
recessed to allow Erickson and Simila’s attorney time to come to a resolution. During the recess, Erickson left the proceedings. He did not present his case, nor did he complete his cross

examination of Simila. The Board decided to proceed and conducted the remainder of the hearing without Erickson present

. Erickson subsequently failed to produce any evidence or documentation evincing a health problem or emergency suff icient ly serious enough to justify simply walk ing away from the proceedings.
The Board entered its O rder on August 17, 2016 , dismissing the majority of claims made
in Simila’s c omplaint, but f inding that Eri c kson had violated several Idaho statutes and the Rules of Professional Responsibility for professional engineers and land surveyors . The Board
determined that the violations were of a serious nature and thereby revoked Erickson ’ s license as a professional land surveyor. Erickson petitioned the district court for review of the Board ’ s O rder. The district court granted the petition and entered its Substituted Judicial Review O pinion on May 11, 2017

. Although the district court generally found that the Board ’ s findings were support ed by
substantial evidenc e, the district court reversed the Board ’ s decision to revoke Erickson’s5 license , finding that revocation was an unreasonable sanction based on the facts

. Erickson timely appealed.
III. STANDARD OF REVIEW Judicial review of an agency action is governed by section 67

- 5270(1) of the Idaho
Administrative Procedure Act. I.C. § 67

- 5201, et seq

. The Board is an “agency” under section
67

- 5201(2). When an agency is required to issue an order, as it did here, 3 s ection 67

- 5279(3)
controls: [T] he court shall affirm th e agency action unless the court finds that the agency ’ s findings, inferences, conclusions, or decisions are: (a) in violation of constitutional or statutory provisions; (b) in excess of the statutory authority of the agency; (c) made upon unlawful procedure; (d) not supported by substantial evidence on the record as a whole; or (e) arbitrary, capricious, or an abuse of discretion. If the agency action is not affirmed, it shall be set aside, in whole or in part, and remanded for further proceedings as necessary. Id. Notwithstanding the provisions of section 67

- 5279(3), “agency action shall be affirmed unless substantial rights of the appellant have been prejudiced.” I.C. § 67

- 5279(4). There is a “strong presumption of validity” in favor of an agency’ s actions. Cooper v. Bd. of Prof’l Discipline of Idaho State Bd. of Med.
, 134 Idaho 449, 454, 4 P.3d 561, 566 (2000).
In Paul v. Bd. of Prof’l Discipline of Idaho State Bd. of Med.
, we explained how th is Court is to apply the factors set forth in section 6 7

- 5279(3):
The Court reviews the agency record independently of the district court’s decision. The Court defers to the agency’s findings of fact unless those findings are clearly erroneous. This Court may not substitute its judgment for that of the agency as to the weight of e vidence presented in the record. The agency ’ s findings must be affirmed unless the findings are not supported by substantial evidence on the record as a whole or the findings are arbitrary, capricious or an abuse of discretion. Substan tial evidence is more than a scintilla of proof, but less than a preponderance. 134 Idaho 838, 840, 11 P.3d 34, 36 (2000) (internal citations omitted). Unlike the Board’s factual findings, this Court exercises free review over questions of
law. Podsaid v . State Outfitters & Guides Licensing Bd. , 159 Idaho 70, 73, 356 P.3d 363, 366 (2015). “The interpretation of a statute is a question of law subject to free review.” Kimbrough v.

3 An agency shall not revoke a license unless it provides an opportunity for a contested case. I.C. § 67

- 5254(1). A

“ contested case ” is “a proceeding which results in the issuance of an order.” I.C. § 67

- 5201(6)

.6 Idaho Bd. of Tax Appeals
, 150 Idaho 417, 420, 247 P.3 d 644, 647 (2011). However, the determination of when an action accrues for purposes of the statute of limitations, “may be

a question of law or a question of fact, depending upon whether any disputed issues of material
fact exist.” Kimbrough v. Reed
, 130 Idaho 512, 516, 94 3 P.2d 1232, 1236 (1997). Where there is no dispute over any issue of material fact regarding when the cause of action accrues,
the question is one of law for determination by the court. Nerco Minerals Co. v. Morrison Knudsen Corp. , 140 Idaho 144, 148, 90 P.3d 894, 898 (2004)

. IV. ANALYSIS
A. The Board ’ s October 28 , 2015 , c omplaint is time

- barred

. Erickson argues that the Board violated the time limits set forth in IDAPA
10.01.02.011.01 and Idaho Code section 54

- 1220(2)

. 4 He asserts that the Board was aware of the allegations against him beginning in 2011, more than four years prior to the submission of the
Executive D irector ’s complaint against him. Therefore, he claims the Board’s complaint is barred by IDAPA 10.01.02.011.01. The Board argues tha t it did not viol ate section 54

- 1220(2) because it filed orders extending the time limit ; however, t he Board did not address whether its complaint is barred under IDAPA 10.01.02.011.01

. The district court did not address the time limit issues, despite Erickson repeatedly r aising them below

. Idaho Code section 54

- 1220 (1) permits “any affected part y” to file a complaint with the
Board . The same statute provides that the E xecutive D irector of the Board “shall be considered an affected party” and may be the complainant in a disciplinary action against a licensee: Any affected party may prefer charges of fraud, deceit, gross negligence, incompetence, misconduct or violation of any provision of this chapter, or violation of any of the rules promulgated by the board against any individual licensee or certificate holder

. . . . S uch charges shall be in writing, and shall be sworn to by the person or persons making them and shall be filed with the executive director of the board . The executive director of the board shall be consid ered an affected party and may be the person making and filing the charges.

4 B oth parties seem to have acknowledged at oral argument that the Board did not violate section 54

- 1220(2). Idaho Code section 54

- 1220(2) provides, “ [a] ll charges, unless dismissed by the board as unfounded or de minimis, or unless settled informally, shall be heard by the board within six (6) months after the date they were received at the board office unless such time is extended by the board for justifiable cause .” (emphasis added). The Board issued orders on May 5, 2011, and June 15, 201 5, extending the six

- month time limit for both the Badertscher complaint and the Walker complaint. Therefore, the Board did not violate the time limit set forth in section 54

- 1220(2). However, this does not affect this court’s analysis of the two

- year fili ng requirement contained in IDAPA 10.01.02.011.01.7 I.C. § 54

- 1220(1). Affidavits filed under IDAPA 10.01.02.011.01 are equivalent to complaints
under section 54

- 1220(1) and must be filed with the Board within two years after the

co mplainant discovers the matter : Any person who believes that a Licensee or Certificate Holder by his actions, or failure to properly act, is guilty of fraud, deceit, negligence, incompetence, misconduct, or violation of these rules, or any applicable sta tute, may file a written affidavit with the Executive Director of the Board which shall be sworn to or affirmed under penalty of perjury, signed and in which the alleged rule and statute violations shall be clearly set forth and that the applicable License e or Certificate Holder, or both, should be considered for the appropriate disciplinary action by the Board. Following the receipt of such affidavit, the Board may investigate, hold hearings and adjudicate the charges. The Board will not accept an affidavi t more than two (2) years after discovery of the matter by the complainant.
IDAPA 10.01.02.011.01 ( e mphasis added). The emphasized language was added in 2012. Prior to 2012, the administrative rule stated, “Proceedings shall be exempt from all statutes of
limitation.” Therefore, the plain reading of the applicable statute and agency r egulation in effect at the time Simila filed his complaint against Erickson mandates that the complaint should have
been filed with the Board within two years after the date of discovery. E ven if this Court concluded that the statute of limitations began to run on the effective date of the amendment to
IDAPA 10.01.02.011.01 in 2012, the complaint would still be late

. See Esquivel v. State , 128 Idaho 390, 391, 913 P.2d 1160, 11 61 (1996) (“[w]hen a statutory period of limitation is amended to reduce the limitation period, the party whose right accrued before the effective date of the amendment cannot be heard to complain if he is given the full time allowed for action according

t o the terms of the amended statute from and after the effective date of the amended statute.” (quoting University of Utah Hosp. on Behalf of Harris v. Pence , 104 Idaho 172, 175, 657 P.2d 469, 472 (1982)) ). This principle applies equally to regulations. See I.C. § 54

- 1208 (Administrative rules cannot be “[i]nconsistent with the constitution and laws of this state . . .

. ”); I.C. § 67

- 5224(5) (“A rule which is final and effective may be applied retroactively, as provided
in the rule.” )

. Here, t he Board receiv ed three complaints related to Erickson’s actions regarding a

survey he completed in 2010. The first was sent b y the Badertschers, which the Board received on February 24 , 2011. T h is complaint does not constitute a formal complaint under the Rules
because it was unsworn. The second was sent by the Walkers , which the Board received on8 March 31 , 2015. Th is was “ one of the precursors to the Complaint brought by the Board staff in
this matter
, ” but was found by the Board to be insufficient by itself as it “[d]id not meet the test for clear and convincing evidence of a violation of the statute or rule

. ” The third was filed by the
Executive Director , Simila, which the Board received on October 28, 2015. Simila’s complaint 5

satisfies all the conditions of a n affidavit contemplated by IDAPA 10.01.02.011.01
, as it is in written form and sworn under penalty of perjury

. Thus, the requirement t hat an affidavit be
submitted to the Board was eventually satisfied in this case. The critical issue, then, is whether
th e Board’s own regulation s bar it from accepting Simila’s complaint.
The Board first discovered the matter s charged in the October 2015 complaint in 201 1
after the Ba dertschers sent their letter about Erickson ’ s conduct regarding the survey of their neighbor’s land. In fact, the Board stated in its May 2011 Order to the Badertschers that it was investigating the allegations made in the letter. T he Board also stated in its August 2017 Order
that “T he controversy in this matter began with the preparati on and stamping of a record of survey and report of a survey made by Mr. Erickson on behalf of his clients Sydney and Dorothy Walker. The record of survey was stamped and signed by Mr. Erickson on July 27, 2010 .” ( E mphasis added). Therefore , the Board discovered the matter mor e than four years prior to
Simila filing his c omplaint (affidavit) against Eri c kson on October 28, 2015 . Consequently, the
Board should not have accepted the complaint as it is time

- barred under IDAPA
10.01.02.011.01

. The Board has not argued that any specific allegation of professional misconduct against
Erickson , for which they found a violation had occurred, w as discovered less than two years prior to the date Simila’s complaint was filed. Therefore, t he Court will not parse o ut each individual allegation of misconduct to determine whether it was timely brought. As counsel for the Board explained at oral argument, the Walker complaint and the Badertscher complaint overlap quite significantly, and the record is unclear as to whi ch counts were discovered when.
The professional misconduct found to exist by the Board, and subsequently affirmed by the
district court

— all relating back to actions committed by Erickson in 2010 and 2011

— was disclosed to the Board no later than 2011.
Th e timeliness of the Board’s complaint was first asserted as an issue by Erickson below

. Although t he Board suggest s that Erickson waived the issue, th e record confirms that he

5 Simila refers to himself as the “complainant” in the complaint.9 specifically pled the statute of limitations in his original a nswer to the agency action at least 25 times, citing IDAPA 10.01.02.011.01 and section 54

- 1220(2) in every instance

. This was ignored by the Board in its original ruling. Erickson then reasserted the issue on judicial review.
T he Board acknowledged that Erickson had raised this issue in its brief to the district court, yet it only responded to his argument concerning section 54

- 1220(2)

. Erickson’s argument under
IDAPA 10.01.02.011.01 was not addressed by the Board and the court. As explained above, t h e failure to comply with IDAPA 10.01.02.011.01 render ed the Board’s action against Erickson untimely and, therefore, this issue is dispositive. Accordingly, the district court ’ s Substituted
Judicial Review O pinion is reversed and the Board ’ s O rder is vacated because it was made upon unlawful procedure. I.C. § 67

- 5279(3)(c).
B. The Court need n ot address the remaining i ssues . Because we dispose of this appeal on procedural grounds, we need not address the remaining issues raised by Erickson

. V. CONCLUSION We reverse the district court’s opinion as a matter of pr ocedure and vacate the Board’s

o rder agai nst Erickson because it is time

- barred. Chief Justice BURDICK, and Justices BRODY, BEVAN and Justice Pro Tem GASKILL
CONCUR.