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219
Sept. 1993
[No. 59086-9. En Banc. September 9, 1993.]
CRAIG RETTKOWSKI, ET AL, Respondents, v. THE DEPARTMENT
OF ECOLOGY, ET AL, Appellants.
[1] Administrative Law - Agency Authority - In General. An administrative agency's authority to act is limited to that which it is authorized to do by the Legislature.
[2] Administrative Law - Rules - Validity - Conflict With Statute - Amendment of Statute - In General. Administrative rules cannot modify or amend a statute.
[3] Waters - Water Rights - Determination - Authority - Administrative Agencies - Resolving Conflicting Claims. Neither the Department of Ecology nor the Pollution Control Hearings Board has authority to adjudicate the priorities of competing water rights. Issues of competing water rights are solely within the province of the superior court pursuant to RCW 90.03.
[4] Waters - Water Rights - Determination - Authority - Administrative Agencies - Permits. When deciding whether to issue a water permit, the Department of Ecology's investigation involves a tentative determination of the existence of water rights and the availability of water; the Department's authority is limited to determining whether the proposed use conflicts with existing or claimed water rights.
[5] Waters - Water Rights - Appropriation - Nature of Right. A holder era permit to appropriate water has a vested property interest in its water right to the extent that the water is beneficially used.
[6] WATERS - WATER RIGHTS - GENERAL ADJUDICATION - WHAT CONSTITUTES. A general adjudication of water rights pursuant to RCW 90.03 necessitates that all water claimants be joined in a single action in superior court to determine their rights and priorities to the water.
[7] WATERS - PUBLIC ACCESS - PUBLIC TRUST DOCTRINE - ENFORCEMENT - ADMINISTRATIVE AGENCIES. The public trust doctrine imposes obligations on the State with regard to the protection of the public's access to navigable waters and shorelands. The Department of Ecology does not have statutory authority to assume the State's public trust duties.
220 Sept. 1993
[8] Administrative Law - Judicial Review - Inherent Power - Exhaustion of Administrative Remedies - Absence of Agency Authority. Once an administrative body has issued a final order and the aggrieved party's administrative appeal is limited to a hearing before an administrative body that lacks authority to make the decision, the party may obtain review of the order in superior court pursuant to the court's inherent power to review administrative actions.
GUY and UTTER, JJ., dissent by separate opinion; DOLLIVER, J., did not participate in the disposition of this case.
Nature of Action: Farmers who used groundwater to irrigate their land sought judicial review of the Department of Ecology's orders, upheld by the Pollution Control Hearings Board, requiring them to stop pumping groundwater and determining that their water rights were inferior to those possessed by ranchers who used surface water for their cattle.
Superior Court: The Superior Court for Lincoln County, No. 91-2-00057-4, Richard W. Miller, J., on January 29, 1993, entered a judgment in favor of the plaintiffs.
Supreme Court: Holding that the Department of
Ecology had no authority to adjudicate and enforce the water
rights and that the Superior Court had jurisdiction to review
the orders, the court *affirms* the judgment.
Christine O. Gregoire, Attorney General, Charles W. Lean,
Senior Counsel, and Tom McDonald, Assistant, for appellant
Department of Ecology.
Stephen K. Eugster; Tawney & Dayton, by Grant D. Parker,
for appellants Sinking Creek Surface Water Project, John
and William Rosman, and Keith Nelson.
Christine O. Gregoire, Attorney General, Richard A. Heath,
Senior Assistant, and Robert v. Jensen and Helen B.
Fraychineaud, Assistants, for appellant Pollution Control
Hearings Board.
Paine, Hamblen, Coffin, Brooke & Miller, by John C.
Riseborough and Simon R. Collins, for respondents Rettkowski,
Quirk, and Richard Dreger & Sons.
221 Sept. 1993
Backman, Bumel & Reed, by Stephen F. Backman; Lukins
& Annis, by Andrew C. Bohrnsen, for respondents Houger
and Cole.
Dellwo, Roberts & Scanlon, P.S., by Robert D. Dellwo, for
respondents Rux and Rux Farms.
Phillip A. Talmadge and Robert G. Nylander (of Talmadge
& Cutler); Charles A. Kimbrough and John Matthews (of
Kraft & Kimbrough), for respondent Wilbur Security.
Frederick O. Frederickson and v. Lee Okarma Rees on
behalf of the Washington Environmental Council, amicus
curiae for appellants.
[As amended by order of the Supreme Court November 1, 1993.]
DURHAM
DURHAM, J. - A group of ranchers who water their cattle
at the aptly named Sinking Creek have complained to the
Department of Ecology (Ecology) for over two decades about
the detrimental effect on the creek's flow of groundwater
pumping by irrigation farmers in the surrounding area. After
numerous investigations, Ecology determined that there was
a connection between the groundwater withdrawals and the
diminished flow of the creek. Ecology also decided that the
water rights of the various ranchers were superior to those
possessed by the irrigation farmers. Accordingly, Ecology
issued cease and desist orders which prohibited the irrigation
farmers from making any further groundwater withdrawals.
Through a complicated procedural history which will be
explained below, the dispute was brought to this court to decide
if Ecology possesses the authority to issue these orders. We
hold that it does not. We also hold that the trial court
correctly exercised its jurisdiction in hearing this matter.
Sinking Creek is a non-navigable stream located in
Lincoln County just south of the town of Wilbur. With the
exception of the Pollution Control Hearings Board (PCHB) and
Ecology, the remaining appellants are all cattle ranchers
(Ranchers) who claim to have traditionally watered their
222 Sept. 1993
cattle at the creek or its adjacent ponds and springs. These
Ranchers claim pre-1917 riparian rights to the water in
Sinking Creek. They also claim subflow irrigation rights for
irrigation of pasture and annual crops on their land. Some of
these rights are supported by claims filed pursuant to RCW 90.14; others are not. The Ranchers assert priority dates
going as far back as 1883. There has never been a formal
adjudication of the waters in or surrounding Sinking Creek.
On the other side of this dispute is a group of irrigation
farmers (Irrigators) who own farms and wells in the
surrounding area. The Irrigators own 29 certificates of
groundwater rights obtained pursuant to RCW 90.44. The first
groundwater permit for irrigation in this area was issued by
Ecology's predecessor agency in the early 1950s. The last
groundwater permit was issued by Ecology in 1979. These
permits specify a maximum amount of groundwater that
may be pumped, and state that "authorization to make use
of public waters of the state is subject to existing rights".
Clerk's Papers (CP), at 997. At least some of the Ranchers
have actively opposed the granting of further groundwater
permits since 1968.
In the mid-1960s, Ecology began receiving complaints
from the Ranchers that the creek and its attendant springs
were flowing less and drying up earlier than normal. The
Ranchers blamed this decreased flow on the concurrent
increase in groundwater withdrawals by neighboring
Irrigators. In 1967, Ecology instituted a groundwater level
monitoring program. Groundwater pumping from the Irrigators'
wells increased twentyfold in the period from 1968 through
1979. In 1978, Ecology undertook a more comprehensive
study of the problem, culminating in a 1982 report which
concluded that the diminished amount of surface water in
the area was at least partially due to increased groundwater
withdrawals. In 1985, an Ecology study of respondent
Rettkowski's aquifer showed measurable water level changes 4 1/2
miles away when his well was pumped at 2,800 gallons per
minute. This study predicted a rate of permanent water level
decline in the area of 1 or 2 feet per year due to proposed
groundwater withdrawals.
223 Sept. 1993
In early 1989, a number of the Ranchers once again
petitioned Ecology to do something to restore the flow of surface
water in the Sinking Creek area. In the spring of that year,
Ted Olson from Ecology visited with appellants Rosman and
Nelson, and toured their ranches to witness the problem
himself. Based primarily on these visits and discussions,
Olson concluded that the Ranchers had water rights superior
to those of the Irrigators. On June 7, 1990, Olson sent a
letter to his supervisor, Hedia Adelsman, outlining his
findings as to the priorities of the Nelson and Rosman water
claims. He also forwarded this report to the Rosmans, who
sent back a "corrected" copy of the report.
On September 22, 1989, Ecology notified the Irrigators
about an upcoming meeting to discuss the water problems in
the Sinking Creek area. This letter also alerted the Irrigators
to the possibility that Ecology would regulate groundwater
withdrawals. On October 5, 1989, Ecology held a meeting to
discuss the decreased amount of surface water in the area
and to encourage the Ranchers and Irrigators to agree to a
solution. Similar meetings were held on March 29, 1990, and
May 21, 1990. At this last meeting, Olson warned that if a
negotiated settlement was not reached by July 1, 1990,
Ecology would issue regulatory orders to reduce water use based
on priority dates.
On July 15, 1990, the Irrigators sent a letter to appellants
Rosman and Nelson stating their wish to avoid litigation and
settle the situation amicably. Therein, they proposed three
different solutions, ranging from more efficient use of wells
and irrigation water to the outright purchase of the
Ranchers' land by the Irrigators. Nonetheless, Ecology issued a
letter to the Irrigators 5 days later which warned that
Ecology had "no alternative except to issue orders regulating the
use of ground water for irrigation to protect senior surface
water rights." CP, at 875.
On August 31, 1990, Ecology issued cease and desist orders
to the Irrigators. The orders contained a lengthy "findings of
fact" section which included a unilateral determination by
Ecology of the existence and validity of the water rights
224 Sept. 1993
claims of the Ranchers, and a determination that they were
senior in time to the Irrigators. These orders mandated that
the Irrigators "cease and desist from any further withdrawals
of ground water after October 1, 1990". E.g., CP, at 71. The
Irrigators were also informed that they could appeal these
orders to the PCHB. There has never been a formal
adjudication of water rights in the Sinking Creek basin. The
Irrigators timely appealed, and the PCHB stayed Ecology from
enforcing these orders. The PCHB also scheduled a 2-week
heating on the orders to begin on November 21, 1991.
On August 20, 1991, the Irrigators filed a petition for
review and a writ of certiorari in the Lincoln County Superior
Court. In their petition, the Irrigators requested that the
court review the legality of Ecology's orders, vacate those
orders, enjoin Ecology from further action until such a time as
the water rights in the Sinking Creek basin had been
adjudicated, and order Ecology to petition for such an adjudication
of rights. On November 19, 1991, the Superior Court ruled
that the Irrigators' arguments should first be heard by the
PCHB, but retained concurrent jurisdiction so that the
Irrigators could renew their petition/writ after the PCHB had an
opportunity to rule.
Meanwhile, on September 20, 1991, the Irrigators filed a
motion to quash Ecology's orders with the PCHB. The three
arguments the Irrigators raised in this motion were that
Ecology exceeded its statutory authority, that the Irrigators were
denied due process, and that the orders were racially invalid.
On November 1, 1991, the PCHB denied their motion. The
PCHB ruled that Ecology was acting within its statutory
jurisdiction and that the orders were not facially invalid. It also
ruled that it did not have the jurisdiction to consider the
constitutional issue raised.
Following this denial, the Irrigators once again took up
their cause in the superior court. They filed a motion to stay
the proceedings before the PCHB and renewed their petitions/
writs. They also appealed the PCHB's order. The Superior
Court granted the stay and set a hearing to decide the issues
raised in the previous petitions/writs.
225 Sept. 1993
Following this hearing, the Superior Court ruled in favor
of the Irrigators. On the issue of its own jurisdiction, the
court ruled that the PCHB ruling was an appealable final
decision, that the Irrigators had exhausted their
administrative remedies, that the court had inherent power under our
constitution to review agency action that is violative of
fundamental rights, and that the court had original jurisdiction
to hear the Irrigators' due process claims. Addressing the
due process issue, the court held that Ecology violated the
Irrigators' due process rights by issuing its orders without a
predeprivation notice, or an opportunity to be heard and to
present evidence on their own behalf. The court also held
that Ecology exceeded the scope of its statutory authority by
conducting an extrajudicial adjudication of water rights.
Moreover, the court held that the cease and desist orders
were invalid on their face because they failed to specify
which statute, rule, regulation, directive or order the
Irrigators had violated.
It is this decision of the Superior Court that the Ranchers,
Ecology and the PCHB now challenge. Although numerous
issues and arguments are raised, the decisive inquiries are
whether Ecology possesses the statutory power to: (1)
determine the priorities of water rights in the basin,
and (2) issue enforcement orders consistent therewith.
Our review of the statutory framework and relevant cases
convinces us that both questions must be answered in the
negative. The authority to adjudicate and enforce water rights
in these circumstances is specifically granted to the superior
courts by RCW 90.03. Accordingly, we affirm the ruling of the
Superior Court.
We recognize that litigation of these complex issues can be
protracted, especially in the first few trials. As the law
develops, however, the process will become more refined. If we
begin this undertaking with the correct - rather than
expedient - methodology, we will ultimately encourage
settlement and more rapid resolution of these disputes. The
allocation of water rights in this state is of such great magnitude
that we cannot tolerate a "cheap and easy" solution.
226 Sept. 1993
[1] The resolution of this case turns on a fundamental
rule of administrative law - an agency may only do that
which it is authorized to do by the Legislature. In re Puget
Sound Pilots Ass'n, 63 Wn.2d 142, 146 n.3, 385 P.2d 711 (1963);
Neah Bay Chamber of Commerce v. Department of Fisherlos, 119 Wn.2d 464, 469, 832 P.2d 1310. (1992). The
Administrative Procedure Act of 1988 (APA), RCW 34.05,
specifically provides that a court "shall grant relief from an
agency order. . . if it determines that . . . [t]he order is
outside the statutory authority or jurisdiction of the agency
conferred by any provision of law". RCW 34.05.570(3)(b).
Under RCW 90.03 (hereinafter the Water Code), a "first in
time, first in right" rule is followed for appropriations of both
groundwater and surface water. RCW 90.03.010. Ecology
claims that it was attempting to follow this rule when it
issued the cease and desist orders to the Irrigators. /1 While
Ecology cannot point to any statute which specifically
authorizes the procedures it followed in issuing these orders, it
argues that it derives inherent authority to do so from the
penumbra of a number of statutes. Primarily, Ecology rests
upon its enabling statute as vesting it with the plenary
authority to protect senior water rights from encroachment
or diminution by junior appropriators. That statute
_______________
1 Ecology also claims that RCW 90.44.030 explicitly gives priority to surface water appropriators vis-a-vis groundwater appropriators. That section of the statute states that: to the extent that any underground water is part of or tributary to the source of any surface stream or lake, or that the withdrawal of groundwater may affect the flow of any spring, water course, lake, or other body of surface water, the right of an appropriator and owner of surface water shall be superior to any *subsequent* right hereby authorized to be acquired in or to groundwater.
(Italics ours.) RCW 90.44.030. The word "subsequent" would be irrelevant if the Legislature intended to always allow surface water rights to trump groundwater rights. See Clark v. Pacificorp, 118 Wn.2d 167, 183, 822 P.2d 162 (1991) (statutes are to be interpreted so that no part is deemed superfluous). Rather, this section of the statute merely emphasizes the potential connections between groundwater and surface water, and makes evident the Legislature's intent that groundwater rights be considered a part of the overall water appropriation scheme, subject to the paramount rule of "first in time, first in right." See Ellensburg v. State, 118 Wn.2d 709, 713, 826 P.2d 1081 (1992) (related statutes must be read together to achieve a harmonious overall statutory scheme).
_______________
227 Sept. 1993
claims that Ecology "shall regulate and control the diversion
of water in accordance with the rights thereto". RCW 43.21A.064(3). Ecology additionally points out that it is
authorized to issue regulatory orders "whenever it appears to
[Ecology] that a person is violating or is about to violate any
of the provisions of [the Water Code]". RCW 43.27A. 190.
[2-5] However, these broad enabling statutes are silent as
to how Ecology is to determine water rights in a regulatory
context. This silence is even more telling when compared to
the elaborate general adjudication process for determining
water rights entrusted to the superior courts by RCW 90.03.
Nowhere in Ecology's enabling statutes was it vested with
similar authority to conduct general adjudications or even
regulatory adjudications of water rights. An administrative
agency cannot modify or amend a statute through its own regulation.
State v. Thompson, 95 Wn.2d 753, 759, 630 P.2d 925 (1981).
The absence of a specific grant to Ecology to determine
water rights, coupled with an explicit grant to another
branch of government to do exactly that, makes Ecology's
determination of such rights seemingly ultra vires.
Since Ecology has no explicit statutory authority to rely
upon, it asks instead that we extend a number of previous
cases to allow it the authority to make "tentative determinations"
of the priorities of existing water rights in order to regulate.
Funk v. Bartholet, 157 Wash. 584, 594, 289 P. 1018 (1930);
Mack v. Eldorado Water Dist., 56 Wn.2d 584, 587, 354 P.2d 917
(1960); Stempel v. Department of Water Resources, 82 Wn.2d 109, 116, 508 P.2d 166 (1973). Ecology
argues that it only "tentatively determined" that the
Irrigators' rights were junior to those of the Ranchers, and that
a final determination would occur if the PCHB hearings
were allowed to proceed.
There are two problems with this argument. First, the
concept of "tentative determinations" in the cases cited by
Ecology was developed in a different context. /2 Each of those
cases dealt with the authority of Ecology (or its predecessor
_______________
2 Indeed, there is nothing "tentative" about Ecology's orders, which shut off every irrigation well in the Sinking Creek basin.
_______________
228 Sept. 1993
agency) to grant permits to appropriate water. The inquiry in
that situation is relatively straightforward: is there water
available to apportion, is the proposed use beneficial and not
detrimental to the public interest, and is there any conflict
with existing water rights. RCW 90.03.290. In the permitting
situation, Ecology's determination is limited to tentatively
determining whether there are existing water rights with
which the proposed use will conflict. Funk, at 594; Stempel,
at 115-16. Ecology investigates an application for a permit to
tentatively determine the existence of water rights /3 and the
availability of water.
Once the permit has been granted, the situation is
significantly different. Permit holders have a vested property
interest in their water rights to the extent that the water is
beneficially used. Department of Ecology v. Acquavella, 100 Wn.2d 651, 655-56, 674 P.2d 160 (1983). See also Department
of Ecology v. United States Bur. of Reclamation, 118 Wn.2d 761, 767, 827 P.2d 275 (1992) (recognizing permit holder's
property interest in water rights). Unlike the permitting
process, in which Ecology only tentatively determines the
existence of claimed water rights, a later decision that an
existing permit conflicts with another claimed use and must
be regulated necessarily involves a determination of the
*priorities* of the conflicting uses. In order to properly prioritize
competing claims, it is necessary to examine when the use
was begun, whether the claim had been filed pursuant to the
water rights registration act, RCW 90.14, and whether it
had been lost or diminished over time. These determinations
necessarily implicate important property rights. It is
because of the complicated nature of such inquiries, and
their far-reaching effect, that the Legislature has entrusted
the superior courts with responsibility therefor. RCW 90.03.110.
The second problem with Ecology's argument that it was
only "tentatively determining" water rights is that the PCHB
_______________
3 The Irrigators have vigorously disputed the existence, amount, and priorities of the Ranchers' claims in this case.
_______________
229 Sept. 1993
has no jurisdiction to conduct adjudicative hearings
regarding such rights. The statute creating the PCHB specifically
forbids it to conduct hearings on "[p]roceedings by [Ecology]
relating to general adjudications of water rights". RCW 43.21B. 110(2)(c). Both Ecology and the PCHB argue that this
case did not involve a general adjudication, but rather an
appeal of an administrative order issued by Ecology, which
would be within the jurisdiction of the PCHB.
RCW 43.21B.110(1)(b), (c).
This bootstrap argument is unpersuasive. The
administrative orders in question were based upon Ecology's
determinations of the existence, quantities, and relative priorities
of various legally held water rights. Ecology cannot sustain
the argument that it conducted only a little, or a limited, or
a tentative, adjudication, so that it is then permitted to have
the PCHB conduct a more thorough adjudication. The PCHB
cannot adjudicate priorities between water users. Nor can
Ecology determine allegedly senior water rights outside of
the context of a general adjudication.
[6] "A general adjudication, pursuant to RCW 90.03, is a
process whereby all those claiming the right to use waters of
a river or stream are joined in a single action to determine
water rights and priorities between claimants." Acquavella,
at 652. Although initiated by Ecology, this adjudication is
conducted under the auspices of the superior court. RCW 90.03ś110. Ecology's role in such an adjudication is to advise
the court as to the parties claiming a right in the body of
water, as well as the priority, amount, and validity of such
rights. RCW 90.03.110,. 160-.170,. 190. However, these
determinations are not made by Ecology sua sponte. Rather,
hearings are conducted by Ecology at which all parties claiming
water from a particular basin get to present evidence as to
their claims, examine the evidence of other parties claiming a
right to use water, and, if warranted, question the validity of
such other competing claims. RCW 90.03.160-.200. A general
adjudication ensures that all interested parties are heard in a
formal adjudicative setting and that adequate due process is
afforded to all.
230 Sept. 1993
Were Ecology allowed to allocate water resources solely on
the basis of its own determination of priorities, general
adjudications might become unnecessary. Ecology could
circumvent the general adjudication process by conducting minor,
ad hoc investigations and subsequent piecemeal
adjudications throughout the state. This result could prove
detrimental to the general adjudication process statewide in light of
Ecology's statutory role as the initiator of general
adjudications in the superior court. RCW 90.03.110. There would be
no reason to grant a petition to initiate a general adjudication
ff Ecology could conduct its own investigation and solve the
conflict as it sees fit. We have previously refused the pleas of
potential appropriators to narrow the scope and use of general
adjudications, and we can see no reason to treat Ecology differently.
McLeary v. Department of Game, 91 Wn.2d 647, 651, 591 P.2d 778 (1979).
A good analogy to the general adjudication process is found
in bankruptcy law. Indeed, general adjudications are
especially designed to respond to the "bankruptcy" of an aquifer
such as is occurring in the Sinking Creek basin. The
bankruptcy process is generally used when a person's or
company's liabilities exceed its assets and creditors are
demanding to be paid. One commentator has described it thusly:
In bankruptcy, with an inadequate pie to divide and the looming discharge of unpaid' debts, the disputes center on who is entitled to shares of the debtor's assets and how these shares are to be divided.
Elizabeth Warren, Bankruptcy Policy, 54 v. Chi. L. Rev. 775,
785 (1987). Here, the demands on the aquifer exceed its
capacity to meet all those demands, and the dispute is over
who is entitled to the water that is available.
The bankruptcy code also assigns certain classes of debt
priority over other classes of debt, just as the Water Code
assigns priorities based on time. See generally Richard B.
Herzog, Jr., Bankruptcy, a Concise Guide for Creditors and
Debtors 95-96 (1983). However, even a claim in the most protected
class of debt in bankruptcy is not guaranteed payment. The
debtor may have procedural or substantive defenses against
231 Sept. 1993
the claimant, the claimant may have previously agreed to
subordinate its claim, or there may be other flaws in the claim. See
generally David L. Buchbinder, Fundamentals of Bankruptcy
349-69 (1991). In such cases, a claim which facially appears to
possess priority may be relegated to a junior position.
Similarly, under the Water Code, a claim which allegedly dates
back to the turn of the century may be found, upon closer
examination, to be flawed for a variety of reasons. Ecology's
orders assumed that the Ranchers' claims were entirely valid
without ever undertaking the formal statutory process
necessary to make such a determination.
In bankruptcy, a trustee administers the estate in order to
collect all its assets, prioritize the debts, and pay the debtors
in order of priority. Under the Water Code, that "trustee" is
the superior court. Just as the goal of bankruptcy is to
satisfy the debtors while preserving the business, the goal of
the Water Code is to satisfy water users without drying up
the aquifer. In order to assure that protracted litigation does
not lead to destruction of the aquifer, explicit authority is
provided for the superior court to regulate the stream or
other water involved during the pendency of the
proceedings. RCW 90.03.210. Such regulation is to be ordered
"according to the schedule of rights specified in [Ecology's]
report". RCW 90.03.210. Of course, Ecology's report is
prepared after it conducts extensive evidentiary hearings as to
the rights claimed in the contested body of water. RCW 90.03.160-.190. Nonetheless, Ecology's conclusions as to the
priority and amounts of the rights claimed will be the basis
for governing appropriations until such a time as a final
decree has been entered and all appeals exhausted. Much of
what Ecology attempted to accomplish through the ad hoc
adjudication conducted here could have been legally
accomplished by following these provisions of the Water Code.
Although not raised in the initial briefing of the two
public entities in this case (Ecology and the PCHB), appellants
Rosman and the Sinking Creek Project, as well as the
amicus curiae Washington Environmental Council, also contend
that the public trust doctrine justifies Ecology's regulation of
232 Sept. 1993
water resources. /4 The public trust doctrine evolved out of the
public necessity for access to navigable waters and shorelands.
Orion Corp. v. State, 109 Wn.2d 621, 640, 747 P.2d 1062 (1987),
cert. denied, 486 U.S. 1022 (1988). It is partially
encapsulated in the language of our state constitution which
reserves state ownership in "the beds and shores of all
navigable waters in the state". Const. art. 17, SS 1. The doctrine
has always existed in the State of Washington. Caminiti v. Boyle, 107 Wn.2d 662, 670, 732 P.2d 989 (1987), cert. denied,
484 U.S. 1008 (1988). The doctrine prohibits the State from
disposing of its interest in the waters of the state in such a
way that the public's right of access is substantially
impaired, unless the action promotes the overall interests of
the public. Caminiti, at 670.
[7] We do not find the public trust doctrine germane to
resolving the issues before us today. There are two threshold
problems with relying on the public trust doctrine in this
situation. First, we have never previously interpreted the doctrine
to extend to non-navigable waters or groundwater. /5 Second,
the duty imposed by the public trust doctrine devolves upon
the State, not any particular agency thereof. Nowhere in
Ecology's enabling statute is it given the statutory authority to
assume the State's public trust duties and regulate in order to
protect the public trust.
However, there is an even more fundamental problem
with relying on this doctrine to justify Ecology's actions. The
appellants argue that, since the water in question is being
squandered, the public trust doctrine allows Ecology to
regulate to preserve this precious and limited resource. However,
the issue in this case has never been Ecology's ability to
regulate generally, which is admitted. Rather, at issue is
Ecology's specific ability to establish and prioritize water
rights unilaterally, without a general adjudication, to the
detriment of other water users. Even assuming for the sake
_______________
4 Ecology has, however, adopted these public trust arguments as its own in its reply brief. Reply Brief of Appellant Ecology, at 26-29.
5 We similarly do not need to address the scope of the doctrine today.
_______________
233 Sept. 1993
of argument that the public trust doctrine places on Ecology
some affirmative duty to protect and preserve the waters of
this state, the doctrine could provide no guidance as to *how*
Ecology is to protect those waters. /6 That guidance, which is
crucial to the decision we reach today, is found only in the
Water Code.
There still remains the question of whether the trial court
properly acted in this case. We conclude that it did. The trial
court initially became involved when the Irrigators filed a
petition for review and writ of certiorari in the superior court
primarily seeking review of the legality of Ecology's actions.
Article 4, section 6 of our constitution grants superior courts
the power to issue writs of certiorari. Statutorily, this writ is
meant to issue when
an inferior tribunal, board or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer . . . or to correct any erroneous or void proceeding. . ." and there is no appeal, nor in the judgment of the court, any plain, speedy and adequate remedy at law.
RCW 7.16.040.
In the normal course of proceedings, the "plain, speedy and
adequate remedy at law" for challenging an agency action is
found in the APA. In the case at hand, the putatively proper
course for an appeal of the cease and desist orders was an
appeal to the PCHB. RCW 43.21B. 110(1)(b). As the Irrigators
initially brought their motion to quash before the PCHB, the
Superior Court was correct in deciding that the adequate
remedy at law for the Irrigators was to allow the PCHB to
rule on the motion. At this point it was possible that the
PCHB itself would recognize that the orders were invalid and
grant the motion.
_______________
6 For instance, if the public trust doctrine grants Ecology plenary authority to protect waters of this state, Ecology could utilize this doctrine in the Sinking Creek dispute by taking away the riparian rights of the Ranchers, which should leave more water in the creek. Cf. National Audubon Soc. v. Superior Court, 33 Cal. 3d 419, 658 P.2d 709, 189 Cal. Rptr. 346 (utilizing public trust doctrine to cut off rights of riparian owners), cert. denied, 464 U.S. 977 (1983). Alternatively, they could shut off both the Ranchers and the Irrigators under the guise of protecting the public trust.
_______________
234 Sept. 1993
[8] Once the PCHB had issued its final order denying the
Irrigators' motion, which specifically upheld Ecology's
authority to issue the cease and desist orders, there was no
longer an adequate remedy at law. The Irrigators would
have been forced to endure a protracted and expensive
hearing by a body which had no authority to adjudicate water
rights. The Irrigators' proper remedy lay in the authority of
the Superior Court. Pierce Cy. Sheriff v. Civil Serv. Comm'n, 98 Wn.2d 690, 693-94, 658 P.2d 648 (1983). The Superior
Court possessed the inherent authority to grant the
Irrigators relief and invalidate Ecology's erroneous orders.
To summarize, we hold that Ecology had no authority to
issue these cease and desist orders without first utilizing a
general adjudication pursuant to RCW 90.03 in order to
determine the existence, amount, and priorities of the water
rights claimed in the Sinking Creek basin. The Superior
Court properly exercised its authority, and we affirm its
order holding the cease and desist orders null and void.
Although the conclusion Ecology reached as to the relative
priorities of the water rights in the Sinking Creek basin may
ultimately prove to be correct, the only method of
ascertaining this will be through a general adjudication.
ANDERSEN, C.J., and BRACHTENBACH, SMITH, JOHNSON, and MADSEN, JJ., concur.
GUY
GUY, J. - The majority holds that Ecology
lacked the authority to issue cease and desist orders to the
Irrigators. I dissent.
The cease and desist orders Ecology issued were aimed at
regulating the Irrigators' perceived impairment of the water
rights of the Ranchers. The orders therefore rested on a
prior assessment that the Ranchers' rights were senior to
those of the Irrigators. According to the majority, Ecology's
prior assessment of the priority of rights was invalid
because it was outside the statutorily authorized general
adjudication procedures. I disagree.
235 Sept. 1993
ECOLOGY ACTION NOT AN ADJUDICATION
Ecology's action was not an adjudication as defined under
RCW 90.03.110-.245; Ecology made a tentative assessment
of rights for the purpose of regulating the diversion of water
from Sinking Creek. A general adjudication under the water
code, RCW 90.03, determines the rights of all those claiming
water rights in a given body of water, and the priority of
each right is determined relative to all others. RCW 90.03.120, .200. That did not occur here. Ecology's action did not
affect all water rights claimed in the water resource; and
even for those rights it did affect, it did not determine the
priority of each relative to the others.
Ecology's action did not constitute a general adjudication
even in the most basic sense. As a general proposition,
adjudication of an issue determines legal rights so as to preclude
relitigation of that same issue. Ecology's tentative
assessment of the priority of rights between the Irrigators and the
Ranchers had no preclusive effect on later litigation, as would
an adjudication. If a general adjudication of water rights in
Sinking Creek is ever conducted, Ecology's tentative
assessment here would have no preclusive effect whatsoever on
those proceedings. It is true that decisions of administrative
agencies may be accorded preclusive effect in subsequent litigation.
State v. Dupard, 93 Wn.2d 268, 275, 609 P.2d 961 (1980).
This requires, however, that the agency follow
procedures not substantially different from court procedures.
Dupard, at 275. Because Ecology's assessment of priorities
here was made in a fashion substantially different from a
court proceeding, preclusion could not occur. What occurred
was simply a tentative assessment of rights for the purpose of
a regulatory action.
Moreover, this court has previously recognized that such
tentative assessments are not adjudications. In
Funk v. Bartholet, 157 Wash. 584, 289 P. 1018 (1930), the
Supervisor of Hydraulics - the predecessor to the Director of
Ecology - issued permits to a certain corporation to appropriate
waters. An objection to the issuance of the permits was raised on the
236 Sept. 1993
ground that issuance of the permits effectively adjudicated
property rights. Bartholet, at 592-93. This court rejected this
contention and declared the Supervisor's action was not an
adjudication of any rights. Bartholet, at 594. The court
explained that in issuing the permits, "the supervisor is called
upon to tentatively determine" such questions as whether the
appropriation will conflict with any existing rights, but that
any such "tentative decision" is not an adjudication of private
rights. Bartholet, at 594; see also Stempel v. Department of
Water Resources, 82 Wn.2d 109, 115-16, 508 P.2d 166 (1973)
(determinations of existing rights during issuance of water
use permits are tentative and not adjudications); United
States v. State Water Resources Control Bd., 182 Cal. App. 3d
82, 103, 227 Cal. Rptr. 161 (State's estimate of whether there
is sufficient surplus water to issue water permit is not an
adjudication of water rights), *review denied* (Sept. 18, 1986).
Although courts preside over general adjudications and
ultimately review administrative decisions upon appeal, we
should not judicially usurp Ecology's primary regulatory role.
If Ecology's action in making the tentative assessment of
rights was not an adjudication, the more fundamental
question emerges as to whether Ecology has the statutory
authority to take the kind of regulatory action it took here when
there has yet been no adjudication and when the water rights
affected are in dispute. I would hold that it does.
STATUTORY AUTHORITY OF DIRECTOR
RCW 43.21A.064(3) provides that the Director of Ecology "shall regulate and control the diversion of water in accordance with the rights thereto". This statutory authority is plenary; the Director's power is not limited to the regulation of rights only as determined in a general adjudication under RCW 90.03.110-.245. Furthermore, RCW 43.27A.190, the statute specifically authorizing cease and desist orders, likewise contains no limiting language. It authorizes Ecology to issue regulatory orders "whenever it appears to the department that a person is violating or is about to violate any of
237 Sept. 1993
the provisions" of various water statutes, including the water
codes, RCW 90.03 and RCW 90.44.
The absence of any limiting language in these authorizing
statutes is rendered more significant by the fact that the
Legislature did include express limiting language in other
contexts. For example, RCW 90.08.040 provides:
*Where water rights of a stream have been adjudicated* a stream patrolman shall be appointed by the director of the department of ecology upon application of water users *having adjudicated water rights* in each particular water resource making a reasonable showing of the necessity therefor. . .
(Italics mine.) Thus, where the Legislature wanted to give
regulatory authority over adjudicated water rights only, it
did so explicitly. This court will not, under the guise of
construction, read into a statute matters that are not there.
E.g., Progressive Animal Welfare Soc'y v. UW, 114 Wn.2d 677, 688, 790 P.2d 604 (1990). The majority's
position incorrectly implies that RCW 43.21A.064(3) and RCW 43.27A.190 include a condition that the Director of Ecology may
regulate water rights where determined through a general
adjudication and not otherwise.
The majority correctly points out that its decision will not
provide for a "cheap and easy" water adjudication solution.
Majority, at 225. Prohibitively expensive and interminable
litigation is what the majority has fashioned as a solution,
and to no purpose. The relief sought by neither party was for
a general adjudication, and yet that is now the only relief
which the majority opines is available. The Director of
Ecology, upon reading the majority opinion, will surely scratch
her head in wonderment that she has the responsibility for
issuance of water use permits but no authority to regulate
those permits. That authority, according to the majority,
belongs exclusively to the courts.
Interpreting Ecology's power to regulate water rights as
encompassing adjudicated water rights solely is bad policy.
At the present time, only a small fraction of Washington's
waters have been adjudicated. For example, the Acquavella
238 Sept. 1993
litigation involves a general adjudication of water rights in
the Yakima River. This litigation began in 1977, involves
thousands of parties, and has twice appeared before this
court. See Department of Ecology v. Acquavella, 100 Wn.2d 651, 674 P.2d 160 (1983) (Acquavella I);
In re Determination of Rights to Use of Surface Waters, 121 Wn.2d 257, 850 P.2d 1306 (1993). The general adjudication
process continues. Its complexity and longevity demonstrate why
it is bad policy to limit Ecology's regulatory powers to
adjudicated water rights. Doing so leaves the great majority of
the state's waters outside of Ecology's regulatory authority
until there is a general adjudication as to those waters.
In addition, the majority's position leads to absurdity.
Ecology unquestionably may make a tentative determination
as to existing rights when issuing a water use permit. See
Funk v. Bartholet, 157 Wash. 584, 594, 289 P. 1018 (1930).
According to the majority, however, Ecology then may not
again make such a tentative determination until a general
adjudication has been conducted. Thus, Ecology might issue
a permit with the condition that the appropriation is subject
to existing rights; but if a week later it became clear that
water use under the permit was impairing a senior right,
Ecology could not act to protect the senior water user
because that would constitute an adjudication of the water
rights involved. That is an absurd result and should be
avoided. See, e.g., State ex rel. Faulk v. CSG Job Ctr., 117 Wn.2d 493, 500, 816 P.2d 725 (1991) (statutes should be
interpreted so as to avoid absurd results).
The majority's analogy to bankruptcy law is most
appropriate. The requirement that the courts exclusively
determine conflicting water rights claims in the format of a
general adjudication shall surely result in the application of the
bankruptcy law to the estates of the Ranchers and Irrigators
as they pay to proceed down that yellow brick road leading
to general adjudication. Not all roads need to lead to Rome,
or to Oz, or to a general adjudication.
I would hold that Ecology has the statutory authority to
regulate all water rights, even when no general adjudication
239 Sept. 1993
has been made and the priority of rights is in dispute. Such regulatory action inherently involves tentative assessments as to the priority of rights, but such assessments have no preclusive effect and are not adjudications of those rights.
PUBLIC TRUST DOCTRINE
The majority's treatment of the public trust doctrine is also
unsatisfactory. The public trust doctrine should be recognized
as providing an alternative source of authority for the kind of
action Ecology took here.
I recognize that the restriction of the public trust doctrine
to navigable waters is well founded in precedent.
Nonetheless, the navigability requirement is not inherent in the
doctrine and should be abandoned. This becomes clear when
one considers the history and theory of the public trust
doctrine.
The public trust doctrine is a collection of common law
principles recognizing that some types of natural resources
are held in trust by government for the benefit of the public.
W. Rodgers, Environmental Law-SS 2.16, at 170-71 (1977). The
doctrine has been recognized since ancient times. The
Institutes of Justinian, a compilation and restatement of the
Roman law first published in 533 A.D., states: "[T]he
following things are by natural law common to all - the air,
running water, the sea and consequently the sea-shore." J. Inst.
2.1.1 (J. Moyle trans. 3d ed. 1896). See also Stevens, The
Public Trust: A Sovereign's Ancient Prerogative Becomes the
People's Environmental Right, 14 U.C. Davis L. Rov. 195,
196-97 ( 1980-1981 ). Similarly, a statement of regional French
law in the 11th century declared that "'the public highways
and byways, running water and springs, meadows, pastures,
forests, heaths and rocks . . . are not to be held by lords, . . ."
nor are they to be maintained . . . in any other way than that
their people may always be able to use them.'" Sax,.
Liberating the Public Trust Doctrine from Its Historical Shackles, 14
U.C. Davis L. Rov. 185, 189 (1980-1981) (quoting M. Bloch,
French Rural History 183 (1966)). The principle was also
recognized under the common law at least as early as medieval
240 Sept. 1993
times, but with the modification that the resources declared
to be "common to all" in the civil law were thought of as being
inalienably owned by the sovereign - inalienable because
they relate to the public good. Stevens, 14 U.C. Davis L. Rev.
at 197-98.
The trust aspects of the public trust doctrine are
manifested in the protection extended to those resources
encompassed within the doctrine. The doctrine protects "against
unfair dealing and dissipation", and it demands "results that
are consistent with protection and perpetuation of the
resource." W. Rodgers SS 2.16, at 172. Application of the
doctrine requires analysis of what public resources are
committed to what public uses.
Historically, as the majority states, the public trust
doctrine has been most commonly applied in relation to the
public's interest in commerce over navigable waters and
shorelands. See generally W. Rodgers SS 2.16, at 172. The
doctrine is not strictly limited to such contexts, however,
either in application or in theory.
For example, the United States Supreme Court in Phillips
Petroleum Co. v. Mississippi, 484 U.S. 469, 476, 98 L. Ed. 2d
877, 108 S. Ct. 791 (1988) recognized that "the States have
interests in lands beneath tidal waters which have nothing
to do with navigation." These interests include "bathing,
swimming, recreation, fishing, and mineral development."
Phillips Petroleum, at 482. The Court stated that "lilt would
be odd to acknowledge such diverse uses of public trust
tidelands, and then suggest that the sole measure of the
expanse of such lands is the navigability of the waters over
them." Phillips Petroleum, at 476. In light of this
recognition, the Court held that the geographic scope of the public
trust doctrine over tide waters and the lands beneath is
determined not by navigability, but by the ebb and flow of
the tide. Phillips Petroleum, at 479-85. See generally Nat'l
Pub. Trust Study, Putting the Public Trust Doctrine to Work
134 (1990) (discussing Court's rejection of navigability in
Phillips).
241 Sept. 1993
State courts as well have recognized the erosion of navigability and commercial interests as requirements for application of the public trust doctrine. In National Audubon Soc'y v. Superior Court, 33 Cal. 3d 419, 658 P.2d 709, 189 Cal. Rptr. 346, cert. denied sub nom. Los Angeles Dep't of Water & Power v. National Audubon Soc'y, 464 U.S. 977 (1983), the California Supreme Court applied the doctrine to nonnavigable tributaries of a navigable lake. In People ex rel. Baker v. Mack, 19 Cal. App. 3d 1040, 1046, 97 Cal. Rptr. 448 (1971) (quoting Lamprey v. State, 52 Minn. 181, 200, 53 N.W. 1139 (1893)), the court pointed out that
there are innumerable waters - lakes and streams - which will never be used for commercial purposes but which have been, or are capable of being used, 'for sailing, rowing, fishing, fowling, bathing, skating' and other public purposes, and that it would be a great wrong upon the public for all time to deprive the public of those uses merely because the waters are either not used or not adaptable for commercial purposes.
This court also has extended the public trust doctrine
beyond navigational and commercial interests to include
"incidental rights of fishing, boating, swimming, water skiing,
and other related recreational purposes". Wilbour v. Gallagher, 77 Wn.2d 306, 316, 462 P.2d 232, 40 A.L.R.3d 760 (1969),
cert. denied, 400 U.S. 878 (1970). Moreover, in
Orion Corp. v. State, 109 Wn.2d 621, 747 P.2d 1062 (1987), cert.
denied, 486 U.S. 1022 (1988), this court observed that "[t]he
trust's relationship to navigable waters and shorelands
resulted not from a limitation, but rather from a recognition of
where the public need lay." Orion Corp., at 640 (citing Reed,
The Public Trust Doctrine: Is It Amphibious?, 1 J. Envtl. L.
& Litig. 107, 111 (1986)).
This court's observation in Orion accurately expresses the
underlying concept of the public trust doctrine. As explained
by the leading commentator on the public trust doctrine,
Professor Joseph Sax, the doctrine is closely tied to one of
the most basic concerns of the legal system, namely, the
protection and maintenance of social stability. Just as the
law of property rights protects stability in ownership, and
242 Sept. 1993
the criminal law protects stability within a community, just
so, explains Professor Sax, "[t]he central idea of the public
trust is preventing the destabilizing disappointment of
expectations held in common but without formal recognition
such as title." Sax, 14 U.C. Davis L. Rev. at 188. In other
words, the public trust doctrine requires the protection and
perpetuation of natural resources. This functions to prevent
social crises that otherwise would arise due to the sudden
depletion of those natural resources necessary for the stable
functioning of society. Sax, 14 U.C. Davis L. Rev. at 188-89.
In short, at its most basic level, the scope of the public trust
doctrine is defined by the public's needs in those natural
resources necessary for social stability.
Restriction of the public trust doctrine by the concept of
navigability is ultimately artificial and absurd. In some
jurisdictions, "navigability" means nothing more than that a
canoe or rowboat can float on the waterway. E.g., Southern
Idaho Fish & Game Ass'n v. Picabo Livestock, Inc., 96 Idaho
360, 362, 528 P.2d 1295 (1974) (navigability includes any
waterway capable of being navigated by rowboat for
pleasure purposes); Lamprey v. State, 52 Minn. at 200 ("so long as
these lakes are capable of use for boating, even for pleasure,
they are navigable"); Muench v. Public Serv. Comm'n, 261
Wis. 492, 506, 53 N.W.2d 514, 55 N.W.2d 40 (1952) (a
navigable waterway is any water "which is capable of floating
any boat, skiff, or canoe, of the shallowest draft used for
recreational purposes"). Presumably the next step is to an
air mattress, and then to an inner tube. It is time to
recognize that the public's interest is in water as an essential
natural, finite resource, not in water just as a public
highway or playground. Application of the public trust doctrine
should not depend on artificial concepts of navigability. That
is not to say that the application of the public trust doctrine
is without consideration of vested rights in private parties.
The issue of takings and just compensation is one that must
be appropriately addressed.
243 Sept. 1993
CONCLUSION
I believe Ecology has the statutory authority to issue the
cease and desist orders, and additionally that Ecology has
the duty under the public trust doctrine to protect such
public interests as exist in the waters of Sinking Creek. The
majority's decision lacks a sound legal basis, will seriously
and improperly interfere with Ecology's ability to regulate
water rights, and ignores the interest of the people of this
state in the essential natural resource of water. The decision
is bad law and bad policy.
To those who cry out that the majority's unsettling
opinion constitutes the end of civilization as we know it, or that
the sky is truly falling, do not despair. The Legislature must
now address itself to a comprehensive water policy defining
duties, assigning responsibility to perform those duties, and
providing funding necessary to carry out those duties. The
Legislature must consider whether western water law meets
today's societal needs, given the understanding that water is
not an infinite resource. The Legislature must now examine
the water resources of this state and determine, for example
(1) who controls those resources; (2) the extent of all
government allocations of those water resources; (3) the present
water usage from all sources, allocated and unallocated; (4)
what water resources will be available in the future; (5)
what future water needs will be; (6) how water allocations
should be made; (7) what public interest is involved in water
allocations and use; and, (8) if water allocations are to be
changed as to existing users, whether under existing law
that constitutes a taking for which compensation must be
paid.
The majority's opinion provides a legislative opportunity
to address the difficult and politically sensitive issues
involving allocation of water resources. Given the imperative that
resources must be properly managed for all users - public,
agricultural, industrial, hydroelectric, fish and wildlife,
recreational - the majority's opinion may lead to comprehensive,
244 Sept. 1993
well-considered water resource management that is workable and understandable.
UTTER, J., concurs with GUY, J.
After modification, further reconsideration denied November 1, 1993.