>
Water Resource Home >
Rules, Laws, Policy, Procedures, Guidance, and
Case Law > Water Resources-Related Case Law >
Water Resource Home >
Rules, Laws, Policy, Procedures, Guidance, and
Case Law > Water Resources-Related Case Law
The following case was downloaded from the internet site of CD Law, Inc., Seattle, Washington by permission of CD Law, Inc.. CD Law publishes Washington Statutes and Decisions on CD-ROM. Access to Washington cases was recently made available by CD Law over the Internet. To contact CD Law regarding its subscription services, write to CD Law, Inc., 1000 2nd Ave., Suite 1610, Seattle, WA 98104 USA, telephone at (206) 623-1688, FAX to (206) 624-8458, or access their web site at
http://www.cdlaw.com.
[No. 63972-8. En Banc.]
Argued March 4, 1996. Decided December 4, 1997.
OKANOGAN WILDERNESS LEAGUE, INC., Appellant, v.
TOWN OF TWISP, ET AL., Respondents.
[1] Environment - Administrative Proceedings - Pollution Control Hearings Board - Judicial Review - Notice of Action - Service on Attorney of Record. Under former RCW 43.21B.190, a necessary party to an action for judicial review of a decision of the Pollution Control Hearings Board may be notified of the action by serving the petition for review on the party's attorney of record.
[2] Environment - Administrative Proceedings - Pollution Control Hearings Board - Judicial Review - Administrative Procedure Act. Procedures on judicial review of a decision of the Pollution Control Hearings Board are governed by the Administrative Procedure Act (RCW 34.05).
[3] Administrative Law - Judicial Review - Appellate Review - Record - Agency Record. An appellate court reviews a trial court judgment on judicial review of an administrative decision by applying the review standards of RCW 34.05.570(3) directly to the record that was before the administrative decision-maker.
[4] Environment - Administrative Proceedings - Department of Ecology - Judicial Review - Discretionary Water Permit Decision - Standard of Review. A court may overturn a discretionary water permit decision made by the Department of Ecology if the decision constitutes a clear abuse of discretion.
[5] Waters - Water Rights - Diversion Point - Change - Beneficial Use - Necessity. The diversion point of a water right may be changed under RCW 90.03.380 only if the water right has historically been applied to a beneficial use.
[6] Waters - Water Rights - Appropriation - Beneficial Use - In General. The measure of a water right is determined by the amount that has been put to a beneficial use.
770 Dec. 1997
[7] Waters - Water Rights - Diversion Point - Change - Validity and Quantity of Water Right - Determination. In deciding whether to grant a request to change the diversion point of a water right, the Department of Ecology may tentatively determine the existence and quantity of the water right.
[8] Waters - Water Rights - Diversion Point - Change - Abandonment or Extinguishment - Effect. The diversion point of a water right may not be changed under RCW 90.03.380 if the right has been abandoned or otherwise extinguished.
[9] Waters - Water Rights - Appropriation - Abandonment - Intentional Relinquishment - Intent - Burden of Proof. A water right is abandoned by intentional relinquishment. Intent is determined by considering the conduct of the parties. The burden of proving abandonment is on the party alleging abandonment.
[10] Waters - Water Rights - Appropriation - Abandonment - Nonuse of Water Right - Shifting Burdens of Proof. Although nonuse of a water right does not constitute abandonment of the right per se, it is evidence of intent to abandon, and a long period of nonuse raises a rebuttable presumption of intent to abandon. When the presumption of abandonment is raised by a long period of nonuse, the burden shifts to the holder of the water right to prove nonabandonment by presenting evidence that would sufficiently explain why the water right has gone unused.
[11] Waters - Water Rights - Appropriation - Abandonment - Nonuse of Water Right - Municipality - Need for Water Supply - Effect. The presumption that a municipal corporation has intentionally relinquished a water right by not exercising the right for a significant period of time is not rebutted by evidence of the municipality's continuous existence and need for a water supply.
[12] Administrative Law - Judicial Review - Abuse of Discretion - What Constitutes - Erroneous Legal Standard. A discretionary administrative decision that is contrary to the law constitutes a clear abuse of discretion.
DURHAM, C.J., and TALMADGE, J., concur by separate opinion.
Nature of Action: A citizens organization sought judicial review of an administrative decision allowing a municipal corporation to change the diversion point of a municipal water right from a surface point to wells drawing groundwater in hydraulic continuity with the surface flow. The administrative agency also determined the rate at which the municipality could make the groundwater
771 Dec. 1997
withdrawals and the total annual limit thereon. The water right had been established in 1912 and modified in 1930, but the city ceased its diversions of surface water sometime between 1939 and 1948 and began drawing water from wells instead. The municipality later received two certificates for the wellwater draws with priority dates of 1967 and 1971. In 1948, the surface water diversionary works were destroyed and the area was riprapped.
Superior Court: The Superior Court for Okanogan County, No. 94- 2-00412-5, John G. Burchard, Jr., J., on March 4, 1996, issued a memorandum opinion affirming the administrative decision and, on April 2, 1996, entered a judgment in favor of the municipality.
Supreme Court: Holding that the municipality had abandoned its water right and that the change in the diversionary point was erroneously granted, the court reverses the judgment.
Earth Justice Legal Defense Fund, by Todd D. True; and Ziontz,
Chestnut, Varnell, Berley & Slonim, by John B. Arum, for
appellant.
Callaway, Howe & Detro, P.L.L.C., by W. Scott Detro; and
Christine O. Gregoire, Attorney General, and Mark C. Jobson and
Philip T. McDonald, Assistants, for respondents.
Rachael Paschal and Michele C. Lechak on behalf of Center for
Environmental Law & Policy, amicus curiae.
MADSEN
MADSEN, J. - The Okanogan Wilderness League (OWL) appeals from a superior court decision affirming the Pollution Control Hearings Board's (Board) change in the diversion point of the Town of Twisp's 1912 water right from a
772 Dec. 1997
surface diversion point to wells drawing from groundwater. We reverse.
FACTS
In August 1912, Twisp executed a notice of water right with an
intent to divert 10 cubic feet per second from the Twisp River.
The diversion was for domestic purposes, fire protection,
sanitary purposes, agricultural and mechanical use, and for
general municipal purposes within Twisp. Twisp constructed
diversionary works and water was diverted to the town. In 1927,
Twisp sought approval from the Department of Ecology's
predecessor, the State Supervisor of Hydraulics, to change the
point of diversion. In 1930, a certificate of change was issued,
documenting a water right of 10 cubic feet per second from the
Twisp River. However, the parties stipulated that based upon the
size of pipe used to divert water, the most Twisp ever used was
3.85 cubic feet per second; the town never used the whole
instantaneous withdrawal right of 10 cubic feet per second.
Sometime between 1939 and 1948, Twisp stopped diverting surface
water from the Twisp River and began to draw water for municipal
uses from wells located in the town. It belatedly applied for and
received two groundwater certificates with priority dates of 1967
and 1971. The two certificates authorized instantaneous
withdrawal of 500 and 1100 gallons per minute, a total of 1600
gallons per minute, equivalent to 3.55 cubic feet per second.
These certificates authorized a maximum annual withdrawal of 224
acre feet per year. By the 1990's, Twisp's withdrawals far
exceeded the amount of water authorized under the groundwater
certificates.
Floods in 1948, or sometime thereafter, destroyed the
diversionary works along the Twisp, and the area was
773 Dec. 1997
riprapped. /1 The record does not show whether Twisp did the
riprapping.
In 1993, Twisp applied to the Department of Ecology for a new
water right. The Department informed Twisp that any new permit
would be subject to limitations to protect minimum instream
flows, and that the Department was postponing decisions on new
permits. A Department employee discovered the 1930 certificate of
change for the 1912 right in Department records. Twisp then
applied to the Department to change the point of diversion of the
1912 water right from the surface waters of the Twisp River to
two new wells located within the town, to draw from groundwater
which would be in hydraulic continuity with the Methow River
(into which the Twisp River flows), and to change the specified
uses to general municipal purposes. The Department of Ecology
investigated the application for a change in diversion point, and
concluded that the change in point of diversion should be
allowed, with an annual limitation of 610 acre feet per year
based on historical use of the 1912 water right and the 1930
change. The Department determined that the 1967 and 1971
groundwater rights would be supplemental to the 1912 water right
(supplemental water rights can be used only when the primary
right goes unfulfilled) insofar as the annual limitations are
concerned (610 acre feet per year under the 1912 right; 224 acre
feet per year under the groundwater certificates). /2 The
Department further concluded that Twisp was entitled to an
instantaneous withdrawal of 10 cubic feet per second for the 1912
water right, and 3.55 cubic feet per second for the 1967 and 1971
rights, i.e., the instantaneous withdrawal rates under the
groundwater certificates were additive to the 1912
_______________
1 "Riprap" is defined in relevant part as "[i]rregularly broken and random-sized large pieces of quarry rock . . . used for . . . revetments[,]" with "revetment" defined in relevant part as "a facing on an embankment to prevent erosion." CYRIL M. HARRIS, DICTIONARY OF ARCHITECTURE AND CONSTRUCTION 409, 406 (1975).
2 The Town of Twisp erroneously states that the Department of Ecology determined the 1912 right would be supplemental to the 1967 and 1971 rights.
_______________
774 Dec. 1997
instantaneous withdrawal rate. There is no explanation of why the
annual limitations were determined to be supplemental, but the
instantaneous rates additive.
In reaching the 610 acre feet per year figure, the Department
found the 1912 right had been used for three purposes:
irrigation, power generation, and domestic water supply. The
Department found that 350 acre feet per year was used for
irrigation, using surveyor's maps from 1924 to determine that 160
acres had been irrigated. The maps were color coded and
identified 70 acres of "irrigated" land, and 90 acres of
"cleared" land. The Department found that 148 acre feet per year
had been used to power a flour mill for 10 hours a day, 180 days
a year. Finally, the Department found that the right supplied
domestic water to 500 people in the amount of 112 acre feet per
year.
In December 1993, the Yakama Indian Nation and OWL filed
separate notices of appeal from the findings, conclusions and
decision of the Department of Ecology, and their appeals were
consolidated. Subsequently, the Yakama Indian Nation voluntarily
withdrew its appeal. Following a formal hearing held in July 1994
before the Pollution Control Hearings Board (Board), the Board
issued findings of fact, conclusions of law, and an order
confirming the Department's decision except that the perfected
1912 right was reduced to an instantaneous rate of 3.85 cubic
feet per second based on the parties' stipulation that this is
all that Twisp ever withdrew at any time. The annual limitation
of 610 acre feet for the 1912 right was reduced to 570 acre feet
per year, because the Board found that if all the "cleared" lands
shown on the surveyor's maps were irrigated, then there would
have been no reason for a separate color coded designation of
"irrigated" lands. The Board found that a "reasonable inference
may be drawn that 80% of the cleared lands were irrigated" and
thus only 310 acre feet was used for irrigation. Clerk's Papers
(CP) at 616. Finally, the Board concluded that the 1967 and 1971
groundwater rights were supplemental to the
775 Dec. 1997
1912 right, both as to instantaneous rates and annual
limitations.
The Board rejected OWL's claim that the 1912 right had been
abandoned, concluding that no intent to abandon had been shown.
The Board also concluded that Twisp's requested change in
diversion would not cause detriment or injury to other water
right holders. The Board remanded the matter to the Department of
Ecology for issuance of a certificate of change in point of
diversion in accord with its decision.
In September 1994, OWL filed a petition for judicial review in
Okanogan County Superior Court. Although it served this petition
upon an assistant attorney general for the Department of Ecology,
the Department of Ecology, legal counsel for the Yakama Indian
Nation, the Board, and Twisp's attorney of record, it did not
serve the petition on the Town of Twisp.
In March 1996, the Superior Court issued a memorandum opinion
affirming the Board's decision, and, in April 1996, entered an
order denying the petition for review. OWL then appealed to this
court. Twisp moved to dismiss, arguing that OWL failed to serve
all the parties of record as required by the Administrative
Procedure Act, and therefore the superior court lacked
jurisdiction. This motion has been passed to the merits for
consideration at the same time as the other issues in the appeal.
The Center for Environmental Law and Policy was granted leave to
file an amicus curiae brief in support of the appeal.
ANALYSIS
Initially, on September 26, 1996, Respondent Town of Twisp filed a motion in this court to dismiss OWL's appeal on the ground that OWL did not serve Twisp, a party of record, with its petition for review of the Board decision and therefore the Okanogan Superior Court lacked subject matter jurisdiction. Twisp relies upon the recent decision in Union Bay Preservation Coalition v. Cosmos Dev. & Admin. Corp., 127 Wn.2d 614, 902 P.2d 1247 (1995), where we
776 Dec. 1997
held that a superior court does not obtain jurisdiction under the
Administrative Procedure Act (APA), RCW 34.05, over an appeal
from an agency decision where the appealing party serves the
petition for review upon an opposing party's attorney of record
but not on the opposing party of record. See RCW 34.05.542(2). We
expressly limited the application of Union Bay to the APA and
declined to consider other statutes and regulations concerning
service requirements. Union Bay, 127 Wn.2d at 620. Recently, the
court reiterated that Union Bay is limited to the APA. Black v.
Department of Labor & Indus., 131 Wn.2d 547, 555-56, 933 P.2d
1025 (1997).
[1] Due to a conflict between RCW 34.05.542(2) and former RCW 43.21B.190, we find in this case that service was made pursuant
to former RCW 43.21B.190 (amended in relevant part, see LAWS OF
1995, ch. 382, SS 4). Accordingly, Union Bay does not control.
Twisp's motion is denied. /3
[2-4] Nevertheless, the APA does govern procedures on review of
the agency action in this case. Under RCW 34.05.570(3), agency
action may be reversed if the agency has erroneously interpreted
or applied the law, the agency's order is not supported by
substantial evidence, or the order is arbitrary or capricious. In
reviewing the Board's decision, this court sits in the same
position as the superior court and applies the APA standards
directly to the agency record. Jensen v. Department of Ecology, 102 Wn.2d 109, 113, 685 P.2d 1068 (1984). Finally, where water
permit decisions are concerned, the Department of Ecology's
discretionary decisions should not be set aside "absent a clear
showing of abuse." Id. at 113; Schuh v. Department of Ecology, 100 Wn.2d 180, 186, 667 P.2d 64 (1983).
RCW 90.03.380 authorizes a change in diversion point, and
provides in part:
The right to the use of water which has been applied to a beneficial use in the state shall be and remain appurtenant to
_______________
3 In oral argument the Respondents were invited to address this issue. In response to questions, counsel for the Department of Ecology opined that Union Bay Preservation Coalition v. Cosmos Dev. & Admin. Corp., 127 Wn.2d 614, 902 P.2d 1247 (1995), is inapplicable. Counsel for Twisp did not address its motion.
_______________
777 Dec. 1997
the land or place upon which the same is used: PROVIDED, HOWEVER. . . . The point of diversion of water for beneficial use or the purpose of use may be changed, if such change can be made without detriment or injury to existing rights.
OWL contends that RCW 90.03.380 protects existing rights by
requiring that a point of diversion may be made only to the
extent the water right has been put to beneficial use. Further, a
change in point of diversion may be made only if no harm to other
water rights occurs. Together, OWL urges, these requirements mean
that a change in point of diversion may be allowed only where
water was being put to actual beneficial use prior to the
transfer, i.e., the diversion point of water under a water right
may not be changed where the right holder has not continuously
applied the water to a beneficial use. Here, OWL maintains, Twisp
did not beneficially use the 1912 water right for nearly 50
years, and therefore no change in point of diversion of water
under that right may be permitted.
[5, 6] Washington's statute is consistent with the principle of
Western water law that a change in the diversion point of a water
right put to beneficial use may be granted unless that change
causes harm to other water rights. Both upstream and downstream
water right holders can object to a change in the point of
diversion or the place of use, which could affect natural and
return flows and, thus, adversely affect their rights. A. DAN
TARLOCK, LAW OF WATER RIGHTS AND RESOURCES SS 5.17[3][a], at 5-
92.1 to .3 (1996); see, e.g., Haberman v. Sander, 166 Wash. 453,
7 P.2d 563 (1932); Farmers Highline Canal & Reservoir Co. v. City
of Golden, 129 Colo. 575, 272 P.2d 629 (1954). The statute also
presumes that a change in point of diversion may be made only
where water has been put to a beneficial use. This is also
consistent with established water law principles. A transferred
right or a change in point of diversion may be granted only to
the extent the water right
778 Dec. 1997
has historically been put to beneficial use. E.g., May v. United
States, 756 P.2d 362, 370-71 (Colo. 1988); City of Westminster v.
Church, 167 Colo. 1, 445 P.2d 52, 57 (1968); Orr v. Arapahoe
Water & Sanitation Dist., 753 P.2d 1217, 1224 (Colo. 1988); Basin
Elec. Power Co-op. v. State Bd. of Control, 578 P.2d 557, 563
(Wyo. 1978); see also TARLOCK, SS 5.17[5], at 5-93. "[B]eneficial
use determines the measure of a water right. The owner of a water
right is entitled to the amount of water necessary for the
purpose to which it has been put, provided that purpose
constitutes a beneficial use." Department of Ecology v. Grimes, 121 Wn.2d
459, 468, 852 P.2d 1044 (1993).
Because the diversion point may not be changed where water has
not been put to a beneficial use, the Department of Ecology
contends that before a change in point of diversion may be
approved under RCW 90.03.380, the existence and quantification of
the right must be determined, see Schuh, 100 Wn.2d 180, and the
right must not have been extinguished or lost over the years.
(Both quantification of the right and whether it has been
abandoned are at issue, and they are discussed below.)
Twisp argues, however, that the Department of Ecology has no
authority to determine the validity of the underlying right.
Twisp relies upon Rettkowski v. Department of Ecology, 122 Wn.2d 219, 228, 858 P.2d 232 (1993) (Rettkowski I). There,
the court held that the Department has no authority to pass upon
the validity of water rights and issue cease and desist orders to
protect water right holders it has determined have priority. The
court acknowledged the Department has authority to tentatively
determine whether there are existing rights in order to determine
whether to issue permits to appropriate water, but said in the
event a conflict exists, the Department must deny the permit
rather than determine who has the better claim. Id.
[7] Quantification of a water right is required when a change
in point of diversion is sought because RCW 90.03.380 authorizes
a change in point of diversion only
779 Dec. 1997
where water "has been applied to a beneficial use. . . ."
Further, the statute states that "[i]f it shall appear that . . .
such change [in point of diversion] may be made without injury or
detriment to existing rights, the department shall issue to the
applicant a certificate . . . granting the right . . . for such
change of point of diversion. . . ." RCW 90.03.380. (Here, the
Board remanded to the Department for issuance of a certificate of
change with annual and instantaneous withdrawal limitations
specified by the Board.) The statute thus indicates that
quantification of the right to the extent the right has been
beneficially used is needed before a certificate of change may be
issued. If a right has not been beneficially used to its full
extent, or if the right has been abandoned, then issuance of a
certificate of change, in the amount of the original right, could
cause detriment or injury to other rights.
Rettkowski I is not contrary. It suggests by analogy that in
order to decide whether to approve a change in point of
diversion, the Department must tentatively determine the
existence and extent of beneficial use of the water right. See
Rettkowski I, 122 Wn.2d at 228 (Department has authority to
tentatively determine the existence of water rights in order to
decide whether to grant permits to appropriate water). Also, if
the Department concludes that a water right has been abandoned or
otherwise lost, then it should deny the change in diversion
point. The Department's determination could not, however, be a
final determination of the validity of the water right.
However, to the extent that OWL suggests that nonuse of the
water right, in and of itself, means that a change in diversion
point may not be permitted under RCW 90.03.380 because "revival"
of the right will adversely affect other water rights, the
argument is incorrect. The statute plainly refers to water
beneficially used and to avoidance of harm to other water rights,
not merely to nonuse for a period of time. The analysis in
Atencio v. Richfield Canal Co., 177 Colo. 22, 492 P.2d 620
(1972),
780 Dec. 1997
upon which OWL relies, is in accord. There, a senior appropriator
made no effort for 50 years to reconstruct a destroyed dam and
diversion works which had historically diverted water from the
confluence of two rivers, the Conejos and the San Antonio, but
instead diverted water from other points along the Conejos making
no use of water from the San Antonio. When the senior
appropriator rebuilt the dam and diversionary works, the court
held the senior appropriator could not use the newly constructed
dam and diversion works to draw water from the San Antonio
because to do so would be detrimental to appropriators on the San
Antonio. The court noted that although in a previous trial court
proceeding the trial court had held that the senior appropriator
had not abandoned its water right along the Conejos, the trial
court also held that the senior appropriator had abandoned the
original headgate due to over 50 years of nonuse and the failure
to make any attempt during that time to rebuild the dam and
diversionary works. Id. at 622. The trial court also found that
San Antonio water had not been used for over 50 years and
resumption of its use would be an illegal interference with the
water rights of the appropriators on the San Antonio. That
judgment had not been appealed, and it was binding on the
parties. Id.
The abandonment of the destroyed dam and diversionary works was
key to the court's decision, as further shown by its reliance on
authority stating that one who appropriates from an abandoned
ditch does not succeed to the old water right, but instead stands
alone on the merits of its own appropriation. Id. at 623 (citing
authority). Thus, contrary to OWL's apparent contention, Atencio
does not hold that a long period of nonuse alone prevents a
change in point of diversion. Here, whether Twisp's failure to
beneficially use the 1912 water right for nearly 50 years
precludes a change in diversion point under RCW 90.03.380 depends
upon whether that right has.been abandoned or otherwise
extinguished. Neither the statute nor any authority cited by OWL
supports the conclusion that the sole inquiry is whether water
has been beneficially
781 Dec. 1997
used continuously up to the time the change in diversion point is
sought.
Under RCW 90.03.380 a change in diversion point may be granted
only to the extent the water right has been put to beneficial
use, has not been abandoned or otherwise extinguished, and does
not cause detriment or injury to other right holders.
OWL maintains that Twisp voluntarily abandoned its 1912 water
right long before it applied for a change in point of diversion.
This issue is necessarily one of common law abandonment, because
a water right for municipal water supply purposes is exempt from
statutory forfeiture of water rights through nonuse. RCW 90.14.140.
[8-10] Abandonment is the intentional relinquishment of a water
right. Jensen, 102 Wn.2d at 115; Miller v. Wheeler,
54 Wash. 429, 435, 103 P. 641 (1909). Intent is determined with
reference to the conduct of the parties. Id. The burden of proof
of abandonment is on the party alleging abandonment. Department
of Ecology v. Acquavella, 131 Wn.2d 746, 757, 935 P.2d 595
(1997); Miller, 54 Wash. at 436; TARLOCK, SS 5.18[1], at 5-107.
Nonuse is not per se abandonment. TARLOCK, SS 5.18[1], at 5-106.
However, the general rule in western water law is that nonuse is
evidence of intent to abandon, and long periods of nonuse raise a
rebuttable presumption of intent to abandon, thus shifting the
burden of proof to the holder of the water right to explain
reasons for the nonuse. Id. at 5-107; see City & County of Denver
v. Snake River Water Dist., 788 P.2d 772, 776 (Colo. 1990) (29
years). In re Clark Fork River Drainage Area, 254 Mont. 11, 833
P.2d 1120, 1123 (1992) (nonuse by city of two water right claims
for over 23 years created rebuttable presumption of abandonment
though city continued to carry claims as assets on its books
during periods of nonuse); State ex rel. Reynolds v. South
Springs Co., 80 N.M. 144, 452 P.2d 478 (1969); Moore v. United
Elkhorn Mines, 64 Or. 342, 127 P. 964, 967-68 (1912) (nonuse for
10 years raises rebuttable presumption of abandonment). Both OWL
and the Department of
782 Dec. 1997
Ecology argue in accord with this general rule that in this state
there should be a rebuttable presumption of intent to abandon
from long periods of nonuse.
Twisp argues, however, that in Washington intent to abandon
should not be presumed, citing Miller. Miller does not address
the matter, although it does state that "courts will not lightly
decree an abandonment of a property so valuable as that of water
in an irrigated region." Miller, 54 Wash. at 435; see also
Jensen, 102 Wn.2d at 115. However, that principle applies
throughout arid western states which have followed the rule that
long periods of nonuse raise a rebuttable presumption of intent
to abandon. Twisp also cites Thorp v. McBride, 75 Wash. 466, 135
P. 228 (1913). There, the court said that abandonment would not
be justified by nonuse alone, and then added that it is also well
established that the water must be put to beneficial use. Id. at
469. The water right there was intended for irrigation, mining,
domestic use, and power, but had not been beneficially used for
10 or 11 years. The court said the evidence disclosed there was
in fact no irrigation, mining, domestic or power uses to which
the water could be applied, and refused to preserve the use for
some speculative future. Again, the case does not expressly
address the issue whether a rebuttable presumption is raised by
long periods of nonuse. Further, although OWL and the Department
contend the case stands for the proposition that the water right
holder failed to provide satisfactory reasons for nonuse, and
thus inferentially falls within the cases recognizing the
rebuttable presumption of intent to abandon, Thorp does not rest
on that ground. The evidence of intent the court examined was not
evidence offered in an effort to justify nonuse of the water
right, but was instead evidence that no beneficial use of the
water existed and the holder's intended uses were purely
speculative future uses.
The rule that a rebuttable presumption of intent to abandon is
raised through long periods of nonuse, and the shifting of the
burden of proof to the water right holder to
783 Dec. 1997
give reasons justifying the nonuse, is consistent with the high
priority of putting water to beneficial use. This court has
previously given weight to well-established principles of western
water law. Department of Ecology v. Bureau of Reclamation, 118 Wn.2d 761, 767-69, 827 P.2d 275 (1992); Grimes,
121 Wn.2d at 475. We adopt the general rule that under the
common-law theory of abandonment of water rights long periods of
nonuse raise a rebuttable presumption of intent to abandon a
water right.
Here, the Board found that Twisp's failure to use the 1912
water right since at least 1948 raised a presumption of intent to
abandon. The Board further found that Twisp's failure to list any
other appurtenant water rights when it applied for the
groundwater certificates granted in 1967 and 1971 lent support to
the presumption. The evidence in the record supports the Board's
determination. It shows that Twisp stopped using the surface
water under the 1912 right sometime between 1939 and 1948 when
the town began using groundwater from wells located within the
town. Sometime in or after 1948, the diversionary works were
destroyed in floods and subsequently the diversion area was
riprapped. Although the evidence does not show who did the
riprapping, Twisp did not try to reclaim the diversion point.
Finally, as the Board noted in its findings, in 1967 and 1971
when Twisp belatedly sought groundwater certificates for its
wells, it did not mention the 1912 water right even though the
application forms asked whether there were any other water rights
appurtenant to the lands served by the groundwater withdrawals.
CP 1042, 1059. /4 While Twisp argues that the testimony of the
Town Manager who looked into Town records without finding any
which indicated intent to abandon the right shows lack of intent
to abandon; OWL correctly points out that the testimony was
excluded as inadmissible hearsay.
_______________
4 Okanogan Wilderness League (OWL) also points out that in 1993 when Twisp approached the Department of Ecology it sought to expand its groundwater right, and was unaware it had a 1912 water right. It became aware of the right only when it was discovered in the Department's records. The record supports these statements.
_______________
784 Dec. 1997
CP 552-53. The Board permitted Twisp to submit documentary
evidence from its records after the hearing, id., but no evidence
was submitted from after 1939.
[11] The Board then concluded, however, that Twisp's continuous
existence and need for a municipal water supply establish the
presumption of intent to abandon. Twisp argues that this
reasoning is augmented by enactment in 1967 of RCW 90.14.140,
which exempts municipal water rights from statutory
relinquishment through nonuse. Twisp says the Legislature could
not have intended the exception from statutory relinquishment
after 1967 but not from abandonment prior to 1967. We disagree.
RCW 90.14.140 applies only to statutory relinquishment based on
nonuse alone. Although the court in Acquavella, 131 Wn.2d at 757-
58, said in dicta that the statute codifies the common law,
common-law abandonment and statutory forfeiture are quite
different concepts, with proof of common-law abandonment
requiring proof of intent to abandon while statutory forfeiture
does not. See generally TARLOCK, SSSS 5.18[1] (abandonment),
5.18[2] (statutory forfeiture; no showing of intent to abandon
required). Because RCW 90.14.140 does not require proof of intent
to abandon, it is not a codification of common-law abandonment.
Moreover, the statute clearly does not apply to claims of
abandonment based upon nonuse before 1967. Acquavella, 131 Wn.2d at 758.
Other than RCW 90.14.140, Twisp cites no authority for the
proposition that a municipality's continuing existence and need
for a water supply rebuts a presumption of intent to abandon
arising from a long period of nonuse, or otherwise precludes a
finding of abandonment. In contrast, OWL argues, and the
Department of Ecology agrees, that a municipality may abandon a
water right through years of nonuse. See Consolidated Home Supply
Ditch & Reservoir Co. v. Berthoud, 896 P.2d 260 (Colo. 1995);
City & County of Denver v. Snake River Water Dist., 788 P.2d 772;
In re Clark Fork Drainage Area, 833 P.2d 1120. Otherwise, OWL
argues, a municipality could hold unused water
785 Dec. 1997
rights for speculative purposes, a practice disapproved of in
Thorp. We agree with this reasoning.
In view of the nonuse of the water right since at least 1948,
the Board correctly found a presumption of abandonment in this
case. However, it incorrectly relied upon Twisp's continuing
existence as a municipality to rebut the presumption. Twisp has
offered no other reason explaining its nonuse sufficient to
overcome the presumption of intent to abandon.
The Department of Ecology presents a markedly different
argument than Twisp's. Ecology maintains the evidence which shows
that Twisp never abandoned the 1912 water right is its change in
source of water supply to the two wells under the 1967 and 1971
groundwater certificates. The Department maintains that Twisp
effectively changed its point of diversion at that time, although
it did so without state authorization. The Department points out
that the well water was drawn from groundwater in hydraulic
continuity with the Methow River aquifer. Thus, in the
Department's view, Twisp continuously used the same water right.
The Department cites Lengel v. Davis, 141 Colo. 94, 347 P.2d 142
(1959) for the proposition that an unauthorized, unprotested
change in point of diversion is not evidence of abandonment but
instead is evidence of nonabandonment.
The Department's argument is raised for the first time upon
this review. It also is inconsistent with its position before the
Board, where its investigator conceded there was a period of
nonuse, and its counsel agreed the 1912 water right had not been
used for a long time. CP 490-91, 617. Further, Twisp applied for
its two groundwater permits as new water rights, not as a change
in diversion point, and in fact the applications and approvals
expressly state there were no other water rights appurtenant to
the town's lands. CP 1032-42, 1044-60. The Board did enter as a
conclusion of law, however, that the 1967 and 1971 groundwater
rights were intended to be supplemental to the 1912 right. CP
603, 619. The groundwater permits do
786 Dec. 1997
not state they are supplemental rights, and in light of the
express statements when those permits were sought and granted
that no other water rights were appurtenant, it is difficult to
see how in 1967 and 1971 the groundwater rights could have been
intended to be supplemental to the 1912 right. As to Lengel, the
unauthorized change in point of diversion there clearly involved
the same water right. The same cannot be said of Twisp's change
to withdrawing water from the wells. It is more likely that the
town illegally began to draw water from a new source without
regard to the 1912 right. In any case, the 1967 and 1971
groundwater certificates clearly evidence water rights distinct
from the 1912 right. We reject the Department's argument.
[12] We hold that the change in diversion point was erroneously
granted. The 1912 right has been abandoned.
OWL seeks an award of attorney fees on this appeal under RCW 90.14.190, which authorizes the superior court to award fees to
the appellant if it finds that the appellant was injured by an
arbitrary, capricious, or erroneous order of the Department of
Ecology. The Department of Ecology maintains that OWL has shown
no injury or invasion of any legally protected interest. See
Rettkowski v. Department of Ecology, 128 Wn.2d 508, 518, 910 P.2d
462 (1996) (Madsen, J. dissenting) (Rettkowski II). The
Department says that no injury occurred because Ecology granted a
change in point of diversion to two proposed wells, unlike
Rettkowski II, where the appropriators were ordered to cease
exercising their rights. We agree. In Rettkowski II the
appropriators were forced to stop irrigating and to expend time
and effort in quashing cease and desist orders. Id. Here, in
contrast, there has been no order or decision having any actual
impact on any water rights. We deny OWL's request for attorney
fees.
Reversed.
DOLLIVER, SMITH, GUY, JOHNSON, ALEXANDER, and SANDERS, JJ., concur.
787 Dec. 1997
DURHAM
DURHAM, C.J. (concurring) - Our review of this important water
rights case might have ended, without a decision on the merits,
when Respondents moved to dismiss this appeal due to the failure
of the Okanogan Wilderness League (OWL) to properly serve its
petition for judicial review on the Town of Twisp (Twisp). We
cannot fault Respondents for trying; the plain language of this
court's decision in Union Bay Preservation Coalition v. Cosmos
Dev. & Admin. Corp., 127 Wn.2d 614, 902 P.2d 1247 (1995) would
require dismissal. Yet the majority dodges Union Bay, holding
that, due to an unidentified "conflict" between RCW 34.05.542(2)
and former RCW 43.21B.190, Union Bay does not apply. /5
I see no reason to pay lip service to Union Bay. Union Bay
holds that service of process for judicial review under RCW 34.05.542(2) must be made upon the actual party of record and not
the party's attorney. /6 Although Union Bay also suggests that a
party's technical noncompliance with the service of process
statute divests the court of subject matter jurisdiction, /7
this assertion is incorrect and should be rejected.
Union Bay's motion to dismiss was filed in the trial court just
one week after the petition for judicial review was improperly
served on the parties' attorneys. /8 Because the defect was
raised immediately after it occurred, Union
_______________
5 Majority at 776.
6 Union Bay Preservation Coalition v. Cosmos Dev. & Admin. Corp., 127 Wn.2d 614, 902 P.2d 1247 (1995).
7 The Union Bay majority noted that the respondent had argued that the failure to serve the party "deprived the Superior Court of subject matter jurisdiction." Union Bay also states that compliance with RCW 34.05.542(2) is a "necessary condition for appellate jurisdiction." Union Bay, 127 Wn.2d at 617. Union Bay quotes City of Seattle v. Public Employees Relations Comm'n, 116 Wn.2d 923, 809 P.2d 1377 (1991), which in turn cites Fay v. Northwest Airlines, Inc., 115 Wn.2d 194, 796 P.2d 412 (1990), for the proposition that compliance with procedural requirements is necessary to invoke the Superior Court's "appellate jurisdiction." Union Bay, 127 Wn.2d at 617-18. Finally, Union Bay concludes that the petitioner "did not perfect jurisdiction in the Superior Court." Union Bay, 127 Wn.2d at 621.
8 Union Bay, 127 Wn.2d at 617.
_______________
788 Dec. 1997
Bay does not address whether a party may raise technical
noncompliance with service of process for the first time on
appeal. Twisp now invokes Union Bay, arguing that because the
defect in service goes to subject matter jurisdiction, it may be
raised in this court, despite Twisp's failure to raise it before
the Superior Court. Rather than distinguishing Union Bay, I would
hold that a party's technical noncompliance with the
Administrative Procedures Act (APA) service of process statute (RCW 34.05) does not deprive the court of jurisdiction, and thus
cannot be raised for the first time on appeal. /9 To the extent
that Union Bay suggests otherwise, it should be reversed.
Union Bay mischaracterized and therefore incorrectly applied
the doctrine of subject matter jurisdiction. In general, subject
matter jurisdiction is an "elementary prerequisite to the
exercise of judicial power." /10 Where a court has no subject
matter jurisdiction, the proceeding is void. /11 A court's lack
of subject matter jurisdiction may be raised by a party or the
court at any time in a legal proceeding. /12
However, the character of subject matter jurisdiction differs
in courts of general and limited jurisdiction. A court of general
jurisdiction has subject matter jurisdiction where it has the
authority to adjudicate the type of controversy or action. /13
If the type of controversy is within the subject matter
jurisdiction of a court, then all other defects or errors go to
something other than subject matter jurisdiction. /14
In contrast, the authority of a court of limited jurisdiction
_______________
9 RAP 2.5(a)(1).
10 In re Adoption of Buehl, 87 Wn.2d 649, 655, 555 P.2d 1334 (1976).
11 In re Marriage of Ortiz, 108 Wn.2d 643, 649, 740 P.2d 843 (1987).
12 Bour v. Johnson, 80 Wn. App. 643, 646-47, 910 P.2d 548 (1996) (citing CR 12(h)(3)).
13 Marley v. Department of Labor & Indus., 125 Wn.2d 533, 539, 886 P.2d 189 (1994).
14 Marley, 125 Wn.2d at 539 (quoting Robert J. Martineau, Subject Matter Jurisdiction as a New Issue on Appeal: Reining in an Unruly Horse, 1988 BYU L. REV. 1, 28).
_______________
789 Dec. 1997
is confined by the terms of its authorizing statute. When a
statute creates a cause of action that otherwise would not exist,
such as an appeal of an administrative decision, the Legislature
confers limited jurisdiction on the courts. In that instance, as
in Union Bay, the Superior Court is exercising appellate
jurisdiction, derived solely from the statute. Because the
Legislature confers jurisdiction, it may necessarily condition
that grant and a court has no power to assume jurisdiction
greater than that conveyed by the statute. /15
Relying on the rationale that the Legislature may limit or
condition a grant of limited jurisdiction, a line of Washington
cases has held that compliance with statutory procedures is a
condition affecting a grant of appellate jurisdiction to the
Superior Court. /16 Union Bay has applied this conception of
limited subject matter jurisdiction to encompass incorrect
service of process on a party's attorney, rather than the party.
This approach is overly formulaic and ill advised. To find its
origins, one must follow this line of cases back to the
Depression.
"A court of special, limited, or inferior jurisdiction must by its record show all essential or vital jurisdictional facts of its authority to act in the particular case, and in what respect it has jurisdiction. This rule also applies to jurisdiction over special statutory proceedings exercised in derogation of, or not according to, the course of the common law. So the necessary jurisdictional facts must affirmatively appear by averment
_______________
15 See Prince v. Saginaw Logging Co., 197 Wash. 4, 20, 84 P.2d 397 (1938); see also 21 C.J.S. Courts SS 12 (1990).
16 See, e.g., City of Seattle v. Public Employees Relations Comm'n, 116 Wn.2d 923, 809 P.2d 1377 (1991) (service of process on all parties within 30 days necessary for jurisdiction); Fay v. Northwest Airlines, Inc., 115 Wn.2d 194, 796 P.2d 412 (1990) (party must both file and serve notice within 30 days); Wiles v. Department of Labor & Indus., 34 Wn.2d 714, 209 P.2d 462 (1949) (existence of final order is a prerequisite to the Superior Court's jurisdiction); MacVeigh v. Division of Unemployment Compensation, 19 Wn.2d 383, 142 P.2d 900 (1943) (failure to file notice of appeal with the superior court clerk considered jurisdictionally fatal); Nafus v. Department of Labor & Indus., 142 Wash. 48, 251 P. 877, 255 P. 148 (1927) (untimely appeal from a decision of the Department of Labor and Industries divests the court of jurisdiction).
_______________
790 Dec. 1997
and proof to bring the case within the jurisdiction of such court." /[17]
The rule states simply that all jurisdictional requirements must
be met to empower a court of limited jurisdiction, but this still
leaves open the issue of what is a jurisdictional requirement.
Unfortunately, Union Bay and its predecessors assume that the
"necessary jurisdictional facts" refers to compliance with
procedural rules. /18 Normally, failure to comply with mandatory
procedures may be grounds for dismissal if raised in time. But
where procedural requirements are equated with jurisdictional
necessities, a party's technical failure to comply with a
statutory procedure can be raised at any stage in the
proceedings, even after a final judgment has been entered. A
party's ability to raise procedural defects at any time could
result in abuse and cause a huge waste of judicial resources.
Allowing the issue of subject matter jurisdiction to be raised for the first time on appeal has enormous implications for the parties to a legal proceeding, the trial and appellate courts, and the proper functioning of a judicial system. If a case can be litigated for years in the trial court, briefed, argued, and considered first in an intermediate appellate court and subsequently in a supreme court, and after a decision on the merits by the supreme court the party who initially filed the suit or the supreme court itself can for the first time challenge the subject matter jurisdiction of [the] trial court and have the entire matter dismissed, the waste of private and public resources is enormous. Before this waste should be tolerated, an examination should be made to ascertain whether courts limit the exception [to the general rule against raising issues for the first time on appeal] to those
_______________
17 Nafus v. Department of Labor & Indus., 142 Wash. at 51-52 (quoting 11 Cyc. 696).
18 Academic treatises clearly reject this approach: Subject matter jurisdiction "is not dependent on the existence of a good cause of action in [the] plaintiff in a cause pending before the court, or upon the sufficiency of the pleadings, the validity of the demand set forth in the complaint, or [the] plaintiffs right to the relief demanded, the regularity of the proceedings, or the correctness of the decision rendered." 21 C.J.S. Courts SS 18 (1990) (footnotes omitted).
_______________
791 Dec. 1997
matters that properly fall within the definition of subject matter jurisdiction. /[19]
Elevating procedural requirements to the level of
jurisdictional imperative has little practical value and
encourages trivial procedural errors to interfere with the
court's ability to do substantive justice. Apparently in
recognition of this, we have shown remarkable agility in avoiding
Union Bay's unfortunate holding. In Continental Sports Corp. v.
Department of Labor & Indus., 128 Wn.2d 594, 910 P.2d 1284
(1996), we distinguished Union Bay and held that service by
private courier substantially complies with RCW 51.48.131
(appeals from assessments for industrial insurance taxes) even
though we interpreted the statute to require service by regular
United States mail. In Black v. Department of Labor & Indus., 131 Wn.2d 547, 933 P.2d 1025 (1997), we distinguished Union Bay
again, holding that service of a notice of appeal on the
assistant attorney general representing the Department of Labor
and Industries substantially complied with RCW 51.52.110 even
though the statute clearly required service on the director of
the Department. Today the majority transparently avoids the clear
application of Union Bay by citing to an unidentified "conflict"
between RCW 34.05.542(2) and former RCW 43.21B.190. /20 Not
surprisingly, the majority is unable to identify what this
conflict is or how it excuses parties from complying with the
service of process requirements of RCW 34.05.542(2) in appeals
from final decisions of the Pollution Control Hearings Board.
Not only has this court been unwilling to apply Union Bay in
subsequent cases, but also Union Bay's underlying rationale has
been rejected in recent cases that narrowly define the term
"subject matter jurisdiction" and avoid equating procedural
requirements with jurisdictional
_______________
19 Robert J. Martineau, Subject Matter Jurisdiction as a New Issue on Appeal: Reining in an Unruly Horse, 1988 BYU L. REV. 1, 3.
20 Majority at 776.
_______________
792 Dec. 1997
necessities. /21 These cases strictly construe subject matter
jurisdiction and reflect the prudent approach that this court
should adopt as the rule. The jurisdiction of a trial court
exercising appellate authority should not rest on a party's
compliance with procedural technicalities. Where the Legislature
confers jurisdiction to the courts, it may limit that grant.
However, "if the legislature has shown no indication of its
intention to limit jurisdiction, the act in question must be
construed as imposing no limitation [on jurisdiction]." /22 Such
an indication may be found in the language of the statute or from
the purpose of the procedural requirement.
The service of process requirement of RCW 34.05.542(2) states
that "[a] petition for judicial review of an order shall be . . .
served . . . on all parties of record within thirty days. . . ."
(Emphasis added.) Although this requirement is couched in
mandatory language, that alone does not make it jurisdictional.
Failure to comply with mandatory rules may divest a person of
right to relief, but it does not divest the court of the ability
to grant relief. /23 When a party appeals to a court of limited
jurisdiction, it must necessarily comply with all the rules
necessary to perfect its appeal. Technical noncompliance with
mandatory procedures may be grounds for dismissal if raised at
the proper time. However, the noncompliance does not affect the
court's subject matter jurisdiction and thus such a defect cannot
be raised for the first time on appeal. To allow a party to wave
the banner of subject matter jurisdiction
_______________
21 See State v. Moen, 129 Wn.2d 535, 545, 919 P.2d 69 (1996) (rejecting the argument that the trial court's failure to comply with 60-day time limit on the entry of restitution orders deprived the court of subject matter jurisdiction to enter such an order); State v. Werner, 129 Wn.2d 485, 493, 918 P.2d 916 (1996) (rejecting the suggestion that the superior court lacked subject matter jurisdiction over a juvenile offender where the case was improperly captioned as an adult court case); Marley v. Department of Labor & Indus., 125 Wn.2d 533, 541, 886 P.2d 189 (1994) (rejecting the argument that errors in a decision of the Department of Labor and Industries affected the Department's subject matter jurisdiction, thereby rendering its order void).
22 21 C.J.S. Courts SS 13(b) (1990) (footnotes omitted).
23 21 C.J.S. Courts SS 16 (1990).
_______________
793 Dec. 1997
and have a claim dismissed at any time, even after a final
resolution, would misconstrue the doctrine of subject matter
jurisdiction.
In this case, OWL failed to properly serve the parties of
record. Had Twisp raised this procedural flaw earlier, dismissal
may have been appropriate. However, Twisp waived its objection to
imperfect service of process when it failed to raise the issue in
the Superior Court. Because the service of process requirement of
RCW 34.05.542(2) does not affect subject matter jurisdiction, it
cannot be raised for the first time on appeal. To the extent that
Union Bay suggests otherwise, it should be overruled.
TALMADGE, J., concurs with DURHAM, C.J.
Reconsideration denied January 21, 1998.