Miotke v. City of Spokane: Nuisance or Inverse Condemnation-theories for Government Environmental Liability

• Jurisdiction: Washington,United States
• Citation: Vol. 9 No. 03
• Publication year: 1986

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 9, No. 3SPRING 1986

NOTES

Miotke v. City of Spokane: Nuisance or Inverse Condemnation-Theories for Government Environmental Liability

Gary L. Baker

I. Introduction

A recent decision by the Washington State Supreme Court, Miotke v. City of Spokane,(fn1) may broadly affect the right to and type of recovery that will be available to persons whose property rights are infringed either by an agent of the state or by private parties.(fn2) Miotke involved the dumping of untreated sewage into a river, with the sewage flowing into a lake and interfering with lakefront property owners' enjoyment of their property. The court in Miotke faced a set of claims in property, tort, and state environmental law. The court recognized the significance of its decision and the novel issues before it,(fn3) yet the opinion left important questions unanswered and raised new ones.(fn4)

The Miotke court faced several important issues in this admittedly complex case.(fn5) First, when should a unit of state government be held liable for certain conduct under a tort theory rather than under an eminent domain theory?(fn6) Second, when liability is based upon tort, can a common law tort provide in essence a private right of action for the violation of certain environmental laws that themselves provide no express right of action?(fn7) Finally, are injured parties entitled to additional damages based upon a "novel theory"(fn8) of tort recovery for the violation of one's "fundamental right" to a healthful environment as guaranteed by the State Environmental Policy Act (SEPA)?(fn9) The Miotke court's resolution, or lack thereof, of each of these issues is likely to have far reaching effects, some of them perhaps unintended.

This Note addresses the Miotke court's choice of a statutory nuisance remedy over a constitutionally-based eminent domain theory. In addition, this Note addresses the court's potentially significant denial of additional SEPA-based damages, but suggests that the court may in the future use this SEPA-based theory to provide tort recovery.

II. Background

A. Facts

In 1973, the Washington State Department of Ecology (DOE) ordered the City of Spokane to embark on a plan to modernize its waste treatment plant and complete the project by June 30, 1976. In an attempt to comply with the order, the City planned to increase the waste system's capacity and add secondary sewage treatment to meet state water quality standards.(fn10) After completing the planning and financing arrangements,(fn11) the City obtained preliminary regulatory approvals from the DOE and the Environmental Protection Agency (EPA).(fn12)

During the period from January to October, 1974, the EPA and the DOE considered the City's plans and the project's potential environmental impact. In October of 1974, both the DOE and the EPA gave final approval to the plans and specifications,(fn13) subject to several conditions. One of these conditions required the City to apply for a new permit if facility expansion required increased discharge.(fn14) Construction began immediately. In September, 1975, construction reached the anticipated point where further work would interfere with the normal operation of the existing sewage treatment plant. The City sought approval from the DOE to bypass the plant temporarily by discharging raw sewage directly into the Spokane River.(fn15) The DOE reviewed and rejected the City's other available options(fn16) and conditionally authorized the bypass. The DOE proceeded under the mistaken belief that it had the regulatory authority to authorize the bypass without following the procedural requirement for issuing a new waste discharge permit. The DOE apparently determined that it could avoid requiring a new permit by simply lowering the water quality standards in the waters receiving the discharges.(fn17)

During the three and one-half days of the bypass, the City diverted over 100 million gallons of untreated sewage into the river.(fn18) The sewage flowed down river until reaching the first dam and the artificial lake behind it, Long Lake. Property owners along the lake began litigation immediately.(fn19) The trial court found that the bypass resulted in the denial of the plaintiffs' use and enjoyment of the lakefront property from October 5, 1975, through part of 1977 and to some extent into 1978.(fn20) In addition to requesting injunctive relief,(fn21) the plaintiffs sought damages under several theories.(fn22) In an attempt to limit their potential liability the City and State contended that damages were available only under an inverse condemnation theory.(fn23)

The trial court granted most of the plaintiffs' claims for damages.(fn24) In reaching its decision, the court concluded that the defendants violated five environmental statutes: the State Environmental Policy Act of 1971 (SEPA),(fn25) the Water Pollution Control Act (WPCA)(fn26), the Pollution Disclosure Act of 1971 (PDA),(fn27) the Water Resources Act of 1971 (WRA),(fn28) and the Shoreline Management Act of 1971 (SMA).(fn29) Although the specific computational basis for the award is unclear,(fn30) the court granted a total of $245,000 in damages. In addition to the damages award, the trial court awarded attorney's fees.(fn31)

B. Issues and Holding

On appeal, the Washington State Supreme Court addressed several issues, explicitly and implicitly. The court identified the most important issues as "whether any cause of action lies against governmental units for injuries allegedly caused by their actions taken in violation of various environmental laws,"(fn32) and if so, under what theory such action should lie.(fn33) The court determined that governmental units are liable for damage caused by their violation of environmental laws, and that this liability arose under Washington's nuisance statute(fn34) rather than under an inverse condemnation theory.(fn35)

In deciding that the plaintiffs' cause of action arose from nuisance rather than eminent domain law, the court applied what can be called a "permanence of the interference" test.(fn36) Under the test, if the damage is permanent or long term, then the interference constitutes inverse condemnation, but if the injury is only temporary, the interference is tortious.(fn37) Applying this test to the Miotke facts, the court had no alternative but to find that the interference was temporary and that nuisance law controlled because the sewage had dissipated and the water had cleared long before the case reached the court.(fn38)

In analyzing the case under the nuisance statutes, however, the court may have modified its traditional analysis. The court apparently read the statutes(fn39) to permit recovery when a plaintiff shows only that (1) the defendant "unlawfully [did] any act,"(fn40) and (2) that act "essentially interferjed] with the comfortable enjoyment of the life and property" of the plaintiffs.(fn41) This test appears to ignore a traditional consideration of nuisance analysis: the reasonableness of the interference.(fn42)

The court easily found the City and State liable under the posed nuisance test. First, the "unlawful act"(fn43) requirement was satisfied by the defendants' violation of the waste discharge permit.(fn44) Second, the "interference with property" portion of the test was satisfied by the interruption in the plaintiffs' full use and enjoyment of their lakefront properties and lifestyle.(fn45)

After finding that the plaintiffs had satisfied their burden of proving these two nuisance requirements, the court faced two other statutory hurdles. First, the court had to determine whether the nuisance was public or private.(fn46) The court held that the nuisance was public in nature,(fn47) but a remedy nonetheless was available because the plaintiffs were especially injured.(fn48) Second, the court had to address the statutory defense that nothing done or maintained under the express authority of a statute can be deemed a nuisance.(fn49) The defendants' actions, the court held, were not protected by this provision because the dumping was a wrongful act in violation of a statute.(fn50)

In the past, the court has liberally construed the statutory nuisance defense to the benefit of government entities who act under broad statutory authority as in Miotke.(fn51) But the court reasoned that this statute could not shelter the defendants' conduct in Miotke because there was a blatant violation of law.(fn52) After this issue was resolved in the plaintiffs' favor, their burden under the nuisance statute was met.

In addition to analyzing the case under inverse condemnation and nuisance theory, the court examined the plaintiffs' claim for additional damages premised upon a SEPA-based tort theory. The court denied the claim, at least in part because adequate damages were available under "established theories."(fn53)

III. Nuisance or Inverse Condemnation?

A. Background

The Washington courts have long struggled to distinguish cases of inverse condemnation from those of tortious conduct but have never adequately resolved the conflict.(fn54) The test that courts have previously used but that was ignored in Miotke(fn55) distinguished inverse condemnation from nuisance based on whether the injury was necessary to the operation or maintenance of some property devoted to public use.(fn56) If the infringement...