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Ecology v. Michael Fort
Court of Appeals Division III
State of Washington
Opinion Information Sheet
Docket Number: 24039-8-III
Title of Case: Michael Fort v. State of Washington, Department of Ecology
File Date: 05/23/2006
SOURCE OF APPEAL
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Appeal from Superior Court of Okanogan County
Docket No: 03-2-00021-5
Judgment or order under review
Date filed: 03/16/2005
Judge signing: Hon. Jack G Burchard
JUDGES
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Authored by John A. Schultheis
Concurring: Kenneth H. Kato
Stephen M Brown
COUNSEL OF RECORD
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Counsel for Appellant(s)
Darren T Burchill
Jeffers, Danielson, Sonn & Aylward, PS
2600 Chester Kimm Rd
PO Box 1688
Wenatchee, WA 98807-1688
Donald L. Dimmitt
Jeffers Danielson Sonn & Aylward PS
2600 Chester Kimm Rd
Wenatchee, WA 98801-8116
Counsel for Respondent(s)
Maia D Bellon
Atty Generals Ofc/Ecology Div
PO Box 40117
Olympia, WA 98504-0117
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MICHAEL FORT, ) No. 24039-8-III
)
Appellant, )
)
v. ) Division Three
)
STATE OF WASHINGTON DEPARTMENT )
OF ECOLOGY, ) PUBLISHED OPINION
)
Respondent. )
SCHULTHEIS, A.C.J. -- Michael D. Fort received a notice of regulation
from the Department of Ecology (Ecology) for exceeding the amount of water
allotted to him under a 1921 water rights adjudication decree. He appealed
to the Pollution Control Hearings Board (the Board), seeking a favorable
interpretation of the decree or application of the common law futile call
doctrine. The Board granted summary judgment in favor of Ecology. The
superior court denied his petition for judicial review. We conclude that
the Board's decision was proper under RCW 34.05.570(3) and affirm.
FACTS
The parties stipulated to the essential facts. The rights and
priorities to the waters of Beaver Creek, the water source at issue, were
adjudicated in a September 1921 decree.1 The decree authorized Mr. Fort to
divert water from Beaver Creek as a successor in interest to a class 1
water right connected to portions of his real property as well as class 8
and 9 rights associated with other portions of his land. There are 18
classes of water rights designated in the decree. Mr. Fort's class 1 right
is the most senior on Beaver Creek. Beaver Creek is a tributary to the
Methow River, which is a tributary to the Columbia River. Mr. Fort's point
of diversion is currently the last one on Beaver Creek before the creek's
confluence with the Methow River. His point of diversion is the same for
his class 1, 8, and 9 water rights.
In 2001, insufficient water was available to satisfy all classes of
water users on Beaver Creek. The decree provides that when the water
supply is insufficient to supply all 18 classes, the rights of the higher
classes, beginning with class 1, will be satisfied first before members of
the subordinate classes will be permitted to draw water from the creek.
Ecology, through the Okanogan County watermaster, therefore ordered all
rights junior to class 5 to be shut off sometime between May 27, 2001 and
June 10, 2001. Class 5 water rights were shut off on July 5. The
watermaster advised Mr. Fort several times during this curtailment period
that diversion of class 8 and 9 waters was a violation of the decree.
On September 10, Mr. Fort e-mailed the watermaster his water diversion
records together with an electronic message stating that he was irrigating
his class 8 and 9 lands along with his class 1 land. The records showed
that the water diverted exceeded 2.90 cubic feet per second (cfs), the
total amount of water that a class 1 right property owner is entitled to
divert. That day, the watermaster inspected Mr. Fort's diversion point and
observed 3.25 cfs being diverted. She posted a notice of regulation on Mr.
Fort's weir directing Mr. Fort to stop exceeding his class 1 diversion rate
of 2.90 cfs. For the next several days, the Beaver Creek stream patroller
inspected the weir and recorded her observations: on September 11 the
diversion rate was 3.36 cfs; on September 12 it was 3.57 cfs; and on
September 14 it was 3.05 cfs. Based on these observed and admitted water
diversions, Ecology issued Mr. Fort a penalty of $1,500. Mr. Fort appealed
the notice of regulation requiring him to curtail his class 8 and class 9
water rights and requiring him to limit his diversion to 2.90 cfs in
accordance with his class 1 water right and the notice of penalty. The
parties filed cross-motions for summary judgment. The Board issued an
order granting partial summary judgment in Ecology's favor. The order
resolved all issues except the reasonableness of the $1,500 penalty. The
Board dismissed the penalty portion of the case after Mr. Fort withdrew his
challenge to the reasonableness of the penalty and the parties reached a
stipulation ending the case.
Mr. Fort filed a petition for judicial review challenging the Board's
order granting partial summary judgment. The Okanogan County Superior
Court entered a final order denying his petition for judicial review. Mr.
Fort appeals the superior court's order.
DISCUSSION
Judicial review of the Pollution Control Hearings Board is governed by
the Administrative Procedure Act (APA), chapter 34.05 RCW. Port of Seattle
v. Pollution Control Hearings Bd., 151 Wn.2d 568, 587, 90 P.3d 659 (2004).
Under the APA, judicial review is confined to the administrative record
before the Board. Id.; RCW 34.05.558. 'This court sits in the same
position as the superior court and reviews the Board's decision by applying
the standards of review in RCW 34.05.570 directly to the agency record.'
Postema v. Pollution Control Hearings Bd., 142 Wn.2d 68, 77, 11 P.3d 726
(2000). 'The burden of demonstrating the invalidity of agency action is on
the party asserting invalidity.' RCW 34.05.570(1)(a).
Agency action is subject to reversal if the agency's order is outside
its statutory authority or jurisdiction, if the agency has erroneously
interpreted or applied the law, if the agency's order is not supported by
substantial evidence, or if the agency's decision is arbitrary or
capricious. RCW 34.05.570(3)(b), (d), (e), (i); Port of Seattle, 151 Wn.2d
at 587-89. Under the 'error of law' standard, the court engages in a de
novo review of the agency's legal conclusions. RCW 34.05.570(3)(c), (d);
City of Redmond v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 136 Wn.2d
38, 45, 959 P.2d 1091 (1998).
The Board held that,
Ecology was obligated under the plain language of the decree to regulate
according to class. There is nothing inherent in the decree that excuses
{Mr. Fort} from compliance with the class regulation. Nothing in the
futile call doctrine, even if applicable, excuses regulation under the
plain language of the decree. In short, {Mr. Fort} do{es} not have a right
to take class 8 or 9 water if that class has been regulated because there
is insufficient water available.
Clerk's Papers (CP) at 583.
Mr. Fort first contends that the Board erred by refusing to allow him
to withdraw class 8 and 9 water when he can do so without interfering with
the rights of superior classes. He argues that the priority system in the
decree was merely imposed to ensure that lower priority rights do not
interfere with a higher priority right. As proof, he points to a provision
in the decree that, in the same provision setting forth the priority system
by classification and curtailment, provides 'that each and every party
hereto . . . is perpetually enjoined from interfering with the diversion
and use upon said tracts in the order of their respective priorities of the
amounts of water in said classification specified.' CP at 77. Mr. Fort
argues that since his point of diversion is farthest downstream, his
diversion did not interfere with the parties' respective priorities;
therefore, his withdrawal of water is not contrary to the decree. Ecology
argues that the injunctive language provides that diverters are enjoined
from interfering with other diversions in the order of their respective
priorities, and through the decree, the respective priorities are
established by class. Mr. Fort must therefore abide by the terms of the
decree regulating users by class, Ecology argues, rather than by individual
user. Ecology is correct.
A decree was entered in 1921 after adjudication. This decree
established all existing water rights relating to Beaver Creek and the
priority of each right. Dep't of Ecology v. Acquavella, 100 Wn.2d 651,
652, 674 P.2d 160 (1983). Therefore, the nature and extent of Mr. Fort's
water rights derive from that adjudication. Where the provisions of the
decree are clear and unambiguous, we enforce them as written. State ex
rel. Cope v. Barnes, 158 Wash. 648, 649-50, 291 P. 710 (1930). All parts
of the decree should be considered and given effect. Id. at 150. The
decree in this case provides for a priority system in which water is
regulated by class, and if there is more demand than water available, the
most junior water rights (as indicated by the higher numbered classes) are
curtailed first. The focus of the decree is the prioritization by class
and the injunctive language is intended to discourage interference with the
scheme. Basically, Mr. Fort misses the point. If conservation efforts
produce added flow, then water becomes available for release to lower
classes situated above Mr. Fort's diversion point.
The decree also provides:
That the classification hereinabove set forth is subject to the
following qualification: As between claimants diverting water from Beaver
Creek above the confluence with Frazer Creek and claimants diverting from
Frazer Creek, claimants diverting from Frazer Creek are entitled to divert
water from said Creek although prior rights of diverters from Beaver Creek
above its confluence with Frazer Creek do not receive all the water to
which they are entitled. Claimants diverting from Frazer Creek, however,
are not entitled to divert waters from Frazer Creek until prior rights
diverting from Beaver Creek below its confluence with Frazer Creek have
received water to which they are entitled.
CP at 85.
Mr. Fort asserts that this provision acknowledges that subordinate
classes may divert water that does not interfere with superior classes by
virtue of their diversion points. This is so, he argues, because Frazer
Creek enters Beaver Creek downstream from some of the Beaver Creek
diversion points, and subordinate Frazer Creek rights can be exercised even
though superior rights of Beaver Creek are not met. We disagree. This
express exception to the priority system undercuts his argument that he is
entitled to imply a similar exception. We do not read into an adjudication
decree provisions that do not exist. Barnes, 158 Wash. at 651. The
express acknowledgement of a single circumstance that may affect the class
system does not imply a different exception to the class system for the
circumstances described by Mr. Fort. Instead, this provision recognizes
that the decree's priority system must be respected regardless of whether
some users can exercise their rights by virtue of their location on the
creek. Likewise, the decree must be respected even though users could
exploit their locations on the creek.
Moreover, as the Board observed, claimants were entitled to divert
water from Frazer Creek even if upstream users of a higher class on Beaver
Creek were unable to fully exercise their rights because a different water
source was involved. See Helensdale Water Co. v. Blew, 146 Wash. 350, 353,
262 P. 958 (1928) (holding an adjudication decree is not affected by water,
stream, soil, or climatic changes despite the influence these conditions
have on the quantity of water available to users).
Mr. Fort advocates the adoption of the futile call doctrine, which has
not been recognized in Washington.
The futile call doctrine provides that a senior appropriator may
prevent a junior appropriator from diverting water only when doing so will
be of some benefit to the senior. For example, if water is allowed to flow
past the junior's point of diversion, but the stream is dry at the senior's
point of diversion, shutting off ('calling') the junior will not cause the
water to reach the senior. Thus, the senior's endeavor of calling the
junior is futile.
San Carlos Apache Tribe v. Superior Court, 193 Ariz. 195, 972 P.2d 179, 195
n.9 (1999) (citation omitted).
Mr. Fort argues that Washington courts have traditionally considered
long established principles of western water law. E.g., R.D. Merrill Co.
v. Pollution Control Hearings Bd., 137 Wn.2d 118, 127, 969 P.2d 458 (1999).
However, the Washington Supreme Court's position is clear on this matter.
'{W}ater management is a huge issue in this state. There is clearly
controversy as to the best way to manage this state's water resources.
However, policy decisions are the province of the Legislature, not of this
court.' Dep't of Ecology v. Campbell & Gwinn, L.L.C., 146 Wn.2d 1, 17 n.7,
43 P.3d 4 (2002). This is a matter for the legislature's consideration.
Mr. Fort mentioned in passing and without citation to authority that
excess water that travels pasts his head gate during the regulation of his
class 8 and 9 water rights is 'wasted' if he is not allowed to divert the
water to satisfy those rights. See Suquamish Indian Tribe v. Kitsap
County, 92 Wn. App. 816, 823, 965 P.2d 636 (1998) (refusing to consider
argument for which party cited no authority); Johnson v. Mermis, 91 Wn.
App. 127, 136, 955 P.2d 826 (1998) (holding to well established principle
that passing treatment of an issue or lack of reasoned argument is
insufficient to merit judicial consideration). Ecology points out that the
issue of waste is fairly complex. See Dep't of Ecology v. Grimes, 121
Wn.2d 459, 471, 852 P.2d 1044 (1993). Moreover, Mr. Fort has not
previously raised it. Pursuant to RCW 34.05.554, '{i}ssues not raised
before the agency may not be raised on appeal,' subject to a limited number
of exceptions, none of which apply.2 Motley-Motley, Inc. v. Pollution
Control Hearings Bd., 127 Wn. App. 62, 72-75, 110 P.3d 812 (2005), review
denied, 156 Wn.2d 1004 (2006). This issue does not merit consideration.
CONCLUSION
The Board properly upheld notice of regulation requiring Mr. Fort to
curtail his class 8 and class 9 water rights and limiting his diversion to
2.90 cfs in accordance with his class 1 water right. We affirm.
Schultheis, A.C.J.
WE CONCUR:
Brown, J.
Kato, J.
1 The decree reads:
'That the parties hereto and their successors in interest to the lands
described . . . are entitled to divert from Beaver Creek and its
tributaries the amount of water specified in the classification hereinafter
set forth, for beneficial use upon their several lands described herein;
and that the rights and priorities of such described lands in and to the
use of said water be and they hereby are established and determined as set
forth in said classification; that during periods when the amount of water
is insufficient to supply all classes, rights in a higher class, beginning
with Class 1 shall be fully satisfied before water is given to those of a
subordinate class, and in case of failure of the supply of water to
completely satisfy the total amount awarded to a given class, the amount
remaining for said class shall be apportioned to the appropriators in said
class in the proportion which the number of cubic feet per second awarded
to each person bears to the total number of cubic feet per second awarded
to such class; and that each and every party hereto . . . is perpetually
enjoined from interfering with the diversion and use upon said tracts in
the order of their respective priorities of the amounts of water in said
classification specified.' Clerk's Papers at 77.
2 RCW 34.05.554(1) provides:
'Issues not raised before the agency may not be raised on appeal, except to
the extent that:
'(a) The person did not know and was under no duty to discover or could not
have reasonably discovered facts giving rise to the issue;
'(b) The agency action subject to judicial review is a rule and the person
has not been a party in adjudicative proceedings that provided an adequate
opportunity to raise the issue;
'(c) The agency action subject to judicial review is an order and the
person was not notified of the adjudicative proceeding in substantial
compliance with this chapter; or
'(d) The interests of justice would be served by resolution of an issue
arising from:
'(i) A change in controlling law occurring after the agency action; or
'(ii) Agency action occurring after the person exhausted the last feasible
opportunity for seeking relief from the agency.'
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