Opinion
No. 31676-5-II
Filed: August 3, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 03-2-05986-8. Judgment or order under review. Date filed: 03/26/2004. Judge signing: Hon. Ronald E Culpepper.
Counsel for Petitioner(s), Mark Conlin Jobson, Ofc Of The Aty Gen Torts Div, PO Box 40126, Olympia, WA 98504-0126.
Counsel for Respondent/Cross-Appellant, Robert Andrew Battles, Goodstein Law Group PLLC, 1001 Pacific Ave Ste 400, Tacoma, WA 98402.
Ralph U. Klose, Goodstein Law Group PLLC, 1001 Pacific Ave Ste 400, Tacoma, WA 98402.
When Steilacoom Lake became fouled by excessive aquatic plant growth, the Steilacoom Lake Improvement Club, Inc. (SLIC) sued the State of Washington, the Department of Natural Resources (DNR), the Department of Ecology (DOE), and their respective chief officers (collectively, the State). The State moved for summary judgment, which the trial court granted as to all but one claim. The trial court further dismissed DOE as a defendant in any remaining claims. It also dismissed some individual plaintiffs.
The State appeals, arguing that the trial court erred in not dismissing SLIC's nuisance claims. SLIC cross-appeals the trial court's dismissal of its claims based on violation of the Water Pollution Control Act, negligence, trespass, and inverse condemnation and its dismissal of individual plaintiffs and DOE.
Because nothing shows State responsibility for causing the excessive plant growth, we affirm the trial court's dismissal of SLIC's claims, reverse its denial of the State's motion to dismiss the nuisance claims, and remand for dismissal of the entire action.
FACTS
SLIC's members own residential real property abutting Steilacoom Lake, a 320-acre body of water located in Pierce County. Clover Creek, Ponce de Leon Creek, and numerous storm water outlets feed the lake. This inflow contains high levels of nutrients resulting from human activities.
Early Western pioneers created the lake in 1852 by damming Chambers Creek. Over the past 100 years, the area around the lake became urban and single family homes now surround it.
The shallow lake is only 19 feet deep at its deepest point. It has a naturally high nutrient productivity based on its shallowness, rich organic sediments, poor water quality, and chemical environment. Since at least the 1950s, the lake has experienced excessive weed and algae growth, primarily due to large amounts of phosphorus draining into it.
From the 1950s through 1991, SLIC controlled the unwanted weed and algae growth with herbicides, some containing copper and diquat. But in 1992, DOE advised SLIC that it would decline to issue future permits for such herbicidal use in Steilacoom Lake. In the summer months after this DOE action, the lake has experienced algae blooms and dense aquatic plants covering more than 80 percent of its bottom.
SLIC sued the State, alleging nuisance, trespass, negligence, inverse condemnation, and violations of the State Water Pollution Control Act (chapter 90.48 RCW). SLIC alleged State responsibility based on its ownership of all beds underlying navigable waters and its failure to prevent excessive phosphorous loading and aquatic growth.
Before filing this lawsuit, SLIC sued the State defendants and the City of Lakewood, Pierce County, and the United States in federal district court. The district court dismissed all claims against all defendants, including the State defendants named here because SLIC failed to demonstrate that any acts of the defendants caused excessive phosphorous loading into the lake. SLIC appealed, and the United States Court of appeals for the Ninth Circuit affirmed in a memorandum opinion.
SLIC also re-filed the dismissed individual plaintiffs' claims in state court. The trial court consolidated SLIC's lawsuits.
The parties agree that for purposes of this action, Steilacoom Lake is navigable.
The State moved for summary judgment, arguing that it had no duty to act regarding the lake. The trial court dismissed all claims except SLIC's nuisance claim. On reconsideration, the trial court dismissed all claims against DOE, dismissed SLIC's damage claims, and limited individual damage claims to harm caused in the two years before the filing date. It also dismissed all individual plaintiffs except Paul Noges, SLIC's president, based on their noncompliance with RCW 4.92.100.
Acting under RAP 2.3(b)(4), the trial court certified this matter to us. We granted review as to all issues. The State appeals and SLIC cross-appeals.
ANALYSIS Summary Judgment
We review summary judgment orders de novo, applying the same standard as the trial court. City of Seattle v. Mighty Movers, Inc., 152 Wn.2d 343, 349, 96 P.3d 979 (2004). Summary judgment of dismissal provides proper relief where the pleadings, discovery materials, affidavits and declarations, if any, show no genuine issue as to any material fact, thus entitling the moving party to judgment as a matter of law. CR 56(c).
The State's Appeal Nuisance
The State contends that the trial court erred in refusing to dismiss SLIC's nuisance claims. It argues that it owed no duty to prevent aquatic plants from growing in the lake. It also argues that it engaged in no conduct or activity giving rise to any nuisance.
RCW 7.48.010 and RCW 7.48.120 generally define nuisance as an actionable offensive interference with the free use of property. To establish a nuisance claim, a plaintiff must show a defendant's wrongful act or a failure to perform a duty. RCW 7.48.120; Hostetler v. Ward, 41 Wn. App. 343, 360 n. 15, 704 P.2d 1193 (1985), review denied, 106 Wn.2d 1004 (1986).
SLIC does not claim that the State directly contributed to the lake's phosphorous problem. Instead, it bases its nuisance claim on the State's failure to prevent or cure the problem. SLIC asserts that WAC 173-201A-230(3) gives rise to such a duty.
WAC 173-201A-230(3) did not become effective until after SLIC filed its lawsuit. But in addition, by its own terms, it does not apply here. It provides in part:
The following actions are recommended if ambient monitoring of a lake shows total phosphorus to exceed the action value for an ecoregion . . . or where recommended ecoregional action values do not exist:
(a) Conduct a lake-specific study to evaluate the characteristic uses of the lake. . . . Phytoplankton blooms, toxic phytoplankton, or excessive aquatic plants, are examples of various sources of impairment. The following are examples of quantitative measures that a study may describe: Total phosphorus, total nitrogen, chlorophyll-a, dissolved oxygen in the hypolimnion if thermally stratified, pH, hardness, or other measures of existing conditions and potential changes in any one of these parameters.
(b) Determine appropriate total phosphorus concentrations or other nutrient criteria to protect characteristic lake uses. If the existing total phosphorus concentration is protective of characteristic lake uses, then set criteria at existing total phosphorus concentration. If the existing total phosphorus concentration is not protective of the existing characteristic lake uses, then set criteria at a protective concentration. Proposals to adopt appropriate total phosphorus criteria to protect characteristic uses must be developed by considering technical information and stakeholder input as part of a public involvement process equivalent to the Administrative Procedure Act (chapter 34.05 RCW).
(c) Determine if the proposed total phosphorus criteria necessary to protect characteristic uses is achievable. If the recommended criterion is not achievable and if the characteristic use the criterion is intended to protect is not an existing use, then a higher criterion may be proposed. . . .
WAC 173-201A-230(3) (emphasis added).
In order to create a duty, a statute must require a certain action, more than merely authorizing it. See Melville v. State, 115 Wn.2d 34, 37, 793 P.2d 952 (1990). Although the WAC cited recommends action, it does not mandate that the State act on Steilacoom Lake's phosphorous concentrations.
The State regulates the diversion of water in the watershed under RCW 43.21A.064(3). But no legal authority creates a State duty to remedy a naturally occurring phenomenon, such as phosphorus loading and plant growth. Thus, no issues of material fact precluded summary judgment on the nuisance issue.
For the above reasons, the trial court erred in denying the State's motion to dismiss SLIC's nuisance claims.
Because we reverse to dismiss, we do not address the State's statute of limitations and standing arguments.
SLIC's Cross Appeal
Water Pollution Control Act, Chapter 90.48 RCW (WPCA)
SLIC concedes that WPCA creates no private right of action. But on cross-appeal, it argues that the trial court erred in summarily dismissing its claim against the State under the WPCA.
RCW 90.48.010 provides:
It is declared to be the public policy of the state of Washington to maintain the highest possible standards to insure the purity of all waters of the state consistent with public health and public enjoyment thereof, the propagation and protection of wild life, birds, game, fish and other aquatic life, and the industrial development of the state, and to that end require the use of all known available and reasonable methods by industries and others to prevent and control the pollution of the waters of the state of Washington. Consistent with this policy, the state of Washington will exercise its powers, as fully and as effectively as possible, to retain and secure high quality for all waters of the state. The state of Washington in recognition of the federal government's interest in the quality of the navigable waters of the United States, of which certain portions thereof are within the jurisdictional limits of this state, proclaims a public policy of working cooperatively with the federal government in a joint effort to extinguish the sources of water quality degradation, while at the same time preserving and vigorously exercising state powers to insure that present and future standards of water quality within the state shall be determined by the citizenry, through and by the efforts of state government, of the state of Washington.
RCW 90.48.080 prohibits the discharge of the pollutants into state waters:
It shall be unlawful for any person to throw, drain, run, or otherwise discharge into any of the waters of this state, or to cause, permit or suffer to be thrown, run, drained, allowed to seep or otherwise discharged into such waters any organic or inorganic matter that shall cause or tend to cause pollution of such waters according to the determination of the department, as provided for in this chapter.
SLIC argues that the State, as the owner of the lake, has taken no action to prevent phosphorus draining into the lake in violation of WPCA.
SLIC cites no authority for its assertion that it has a private right of action under the WPCA. Its argument fails.
Where a defendant has introduced contamination, the courts have recognized a private cause of action for damages. Miotke v. City of Spokane, 101 Wn.2d 307, 330, 678 P.2d 803 (1984); Tiegs v. Boise Cascade Corp., 83 Wn. App. 411, 417, 922 P.2d 115 (1996), aff'd, 135 W.2d 1 (1998); Elves v. King County, 49 Wn.2d 201, 202, 299 P.2d 206 (1956); Harris v. Skirving, 41 Wn.2d 200, 202-03, 248 P.2d 408 (1952); Bales v. City of Tacoma, 172 Wash. 494, 503, 20 P.2d 860 (1933).
Negligence Claim Public Duty Doctrine
SLIC further contends that the trial court erred in dismissing its negligence claims. SLIC argues that the WPCA requires the State to protect SLIC's members from negative effects of excessive aquatic plant growth.
Where SLIC claims negligence, it must establish that the State breached a duty resulting in harm. SLIC argues that the State has a duty to enforce the WPCA.
The State asserts that the public duty doctrine applies, barring SLIC's individual recovery. Under the public duty doctrine, no liability may be imposed on a governmental entity unless the plaintiff can show a duty breached as to an individual rather than breach of an obligation owed to the public in general. Taylor v. Stevens County, 111 Wn.2d 159, 164, 759 P.2d 447 (1988). That is, "a duty to all is a duty to no one." Taylor, 111 Wn.2d at 163 (quoting J B Dev. Co. v. King County, 100 Wn.2d 299, 303, 669 P.2d 468 (1983)).
SLIC counters that exceptions to the public duty doctrine apply here. The four exceptions to the public duty doctrine are: (1) legislative intent, (2) special relationship, (3) volunteer rescue, and (4) failure to enforce. Burnett v. Tacoma City Light, 124 Wn. App. 550, 562, 104 P.3d 677 (2004); Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 774, 786, 30 P.3d 1261 (221). None of these exceptions applies here. We address each relevant exception in turn.
The volunteer rescue exception is not relevant to this case and, thus, we do not discuss it.
The legislative intent exception applies "when the terms of a legislative enactment evidence an intent to identify and protect a particular and circumscribed class of persons."
Burnett, 124 Wn. App. at 562 (quoting Bailey v. Town of Forks, 108 Wn.2d 262, 268, 737 P.2d 1257 (1987)). To ascertain legislative intent, we look to the statute's declared purpose. Burnett, 124 Wn. App. at 562-63.
RCW 90.48.010 contemplates protecting the public at large and the people of the state, rather than any particular class of persons, such as waterfront property owners. To this end, the statute directs the State to take actions necessary to maintain high water quality, but only in the context of providing for the general welfare. 'Such legislative empowerment does not evince legislative intent to identify and protect [SLIC's members] as a 'particular and circumscribed class of persons." Burnett, 124 Wn. App. at 563 (quoting Bailey, 108 Wn.2d at 268).
The special relationship exception to the public duty doctrine provides a 'focusing tool' used to determine whether a local government has a duty only to the general public or whether the local government had assumed a duty to an individual citizen. Babcock, 144 Wn.2d at 786. A special relationship arises when "(1) there is direct contact or privity between the public official and the injured plaintiff which sets the latter apart from the general public, and (2) there are express assurances given by a public official, which (3) gives rise to justifiable reliance on the part of the plaintiff." Babcock, 144 Wn.2d at 786 (quoting Beal v. City of Seattle, 134 Wn.2d 769, 785, 954 P.2d 237 (1998)).
In other words, an individual must make a direct inquiry, the government must clearly give incorrect information that the government intends the individual to rely on, and the individual must rely on it to his or her detriment. Only then is the government bound. Meaney v. Dodd, 111 Wn.2d 174, 180, 759 P.2d 455 (1988).
SLIC fails to show any special relationship between its members and the State. SLIC asserts that its ongoing relationship with DOE regarding the lake's condition, including the State's permitting chemical treatments of the lake for over 40 years, and the State's assurances that it would work with SLIC to resolve the problem, make it fall within the special relationship exception. But the record includes no specific inquiry or assurance of action on the part of the State on which SLIC justifiably relied to its detriment. In the absence of such evidence, SLIC has not met its burden of showing that the exception applies.
Under the 'failure to enforce' exception, a general duty of care owed to the public can be owed to an individual where governmental agents responsible for enforcing statutory requirements possess actual knowledge of a statutory violation, fail to take corrective action, despite a statutory duty to do so, and the plaintiff falls within the class the statute intended to protect. Honcoop v. State, 111 Wn.2d 182, 189-90, 759 P.2d 1188 (1988).
Here, the 'failure to enforce' exception does not apply because, as already noted, the State has no mandatory duty to take a particular corrective action.
The public duty doctrine applies, foreclosing SLIC's recovery. The trial court did not err in dismissing SLIC's negligence claims.
Trespass
SLIC next contends that the trial court erred in dismissing its trespass claims for offensive odors emanating from the noxious weeds along the shoreline.
"In order to recover in trespass . . ., a plaintiff must show 1) an invasion affecting an interest in the exclusive possession of his property; 2) an intentional doing of the act which results in the invasion; 3) reasonable foreseeability that the act done could result in an invasion of plaintiff's possessory interest; and 4) substantial damages to the res." Bradley v. Am. Smelting Refining Co., 104 Wn.2d 677, 691, 709 P.2d 782 (1985) (quoting Borland v. Sanders Lead Co., 369 So. 2d 523, 529 (Ala. 1979)). These elements require that a plaintiff suffer actual and substantial damages. Bradley, 104 Wn.2d at 692. Summary judgment of dismissal is appropriate where a claim is asserted without actual and substantial damages. Bradley, 104 Wn.2d at 692.
Trespass and nuisance differ in that trespass can be any intentional invasion of the plaintiff's interest in the exclusive possession of property, whereas nuisance requires a substantial and unreasonable interference with use and enjoyment. Bradley v. Am. Smelting Refining Co., 104 Wn.2d 677, 684-85, 709 P.2d 782 (1985).
Here, the Steilacoom Lake's shoreline contains weeds and algae generated in the lake. Decaying weeds produce odor, which, according to SLIC, invades its members' interest in the exclusive possession of their properties.
But SLIC does not dispute that the State has not intentionally deposited any phosphorus into the lake. Also, no conclusive evidence establishes how much phosphorus enters the lake from natural causes and how much results from urban activity. SLIC's argument fails.
Inverse Condemnation
SLIC further argues that the trial court erred in dismissing its inverse condemnation claim because, by prohibiting the usage of copper and diquat, the State denied SLIC the ability to manage the aquatic plant growth. SLIC argues that this, in turn, deprived its members of the use and enjoyment of their property.
'No private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner.' Wash. Const. art. I, sec. 16. The term 'inverse condemnation' describes an action alleging a governmental 'taking' or Sdamaging' brought to recover the value of property appropriated by eminent domain without a formal exercise of that power. Dickgieser v. State, 153 Wn.2d 530, 534-35, 105 P.3d 26 (2005).
'Every trespass upon, or tortious damaging of real property does not become a constitutional taking or damaging simply because the trespasser or tort feasor [sic] is the state or one of its subdivisions, such as a county or a city.' Olson v. King County, 71 Wn.2d 279, 284, 428 P.2d 562 (1967). An inverse condemnation plaintiff must prove a taking greater than mere tortious interference. Bodin v. City of Stanwood, 79 Wn. App. 313, 320, 901 P.2d 1065 (1995), aff'd, 130 Wn.2d 726 (1996). A taking requires damage that 'is 'permanent or recurring' or involves 'a chronic and unreasonable pattern of behavior by the government.'' Pruitt v. Douglas County, 116 Wn. App. 547, 560, 66 P.3d 1111 (2003) (quoting Gaines v. Pierce County, 66 Wn. App. 715, 725-26, 834 P.2d 631 (1992)).
Here, the State prohibited the use of copper and diquat chemical treatment and it did not propose an alternate means of controlling the aquatic plant growth. But the State neither appropriated nor physically invaded the SLIC members' properties. Thus, no affirmative State act gives rise to a taking. The trial court properly dismissed SLIC's inverse condemnation claim.
Affirmed in part, reversed in part, and remanded for dismissal of all remaining claims.
Because we hold that all claims must be dismissed based on lack of State responsibility, we do not address SLIC's arguments that the trial court erred in dismissing DOE and SLIC's individual members' claims.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
MORGAN, J., and QUINN-BRINTNALL, C.J. concur.