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Municipal Water Law Archive

The following is a collection of documents and links to historical information leading up to and including the October 28, 2010 Supreme Court Decision in Lummi Indian Nation v. State, the constitutional challenge to the Municipal Water Law.

Legal Challenges to the Municipal Law

October 28, 2010

Supreme Court Decision in Lummi Indian Nation v. State, the constitutional challenge to the Municipal Water Law Washington state Supreme Court decision of 10-28-10 affirms the constitutionality of the Municipal Water Law.  The Court upheld all the sections of the MWL challenged in Lummi Indian Nation v. State, holding that they do not violate the separation of powers, and do not facially violate the right to due process.

• Ecology News Release - October 28, 2010  State Supreme Court upholds constitutionality of Municipal Water Law OLYMPIA — The Washington state Supreme Court today upheld the constitutionality of Washington’s Municipal Water Law (MWL), removing uncertainty over water right certificates issued as far back as the 1950s.
• Oral arguments: Lummi Indian Nation, et al v. State of WA, et al. - TVW - January 12, 2010 10:00am (Legislature amended the Municipal Water Act to include non-municipally-owned suppliers and to make that definition retroactive - were these amendments constitutional?)
• Seattle Times October 28, 2010 - State Supreme Court upholds change to water law The Washington State Supreme on Thursday unanimously upheld changes the Legislature made to state water law in 2003 - changes that environmentalists fear will encourage sprawl and water speculation.

December 18, 2009

• Plaintiffs’ response to the amicus brief - filed recently by the “private purveyors” (Spanaway Water Co., Nob Hill Water Co., et al.)

November 24, 2009

• Amicus Motion and Brief - Motion to file Amicus Curiae Brief by Spanaway Water Company, Firgrove Mutual Water, Mt. View-Edgewood Water Company, Rainier View Water Company, Washington Water Services Company, Fruitland Mutual Water Company, Summit Water and Supply Company, Nob Hill Water Association and Graham Hill Mutual Water Company, Inc.

November 11, 2009

• Case set for Oral Argument on January 12, 2010 In the Courtroom of the Temple of Justice, Olympia  WA

April 8, 2009

• Reply Brief of Respondents/Cross-appellants Lummi Nation, et al.
• Reply Brief of Respondents/Cross-appellants Joan Burlingame, et al. 

March 3, 2009

• WA Supreme Court accepts direct review of the Municipal Water Law case (Lummi Nation, et al. v. State)

February 23, 2009

• Response and Reply Brief of Appellant/Cross Respondent State of Washington
• Reply Brief of Appellant/Cross Respondent Washington State University
• Reply Brief of Appellant/Cross Respondent Cascade Water Alliance
• Reply Brief of Appellant/Cross Respondent Washington Water Utilities Council

January 9, 2008

• State of Washington Motion for an Extension of Time to File Response/Reply Briefs - January 8, 2009 Motion granted

December 24, 2008

Opening Briefs - State Supreme Court Appeals

• Opening/response brief filed by the Burlingame Plaintiffs
• Opening/response Brief filed by the Plaintiff Tribes

October 28, 2008

Opening Briefs

• Opening Brief of Appellant/Cross-Respondent State of Washington
• Appellant/Cross-Respondent Washington State University's Opening Brief
• Brief of Appellant/Cross Respondent Cascade Water Alliance
• Washington Water Utilities Council's Opening Brief

July 17, 2008

Burlingame plaintiffs and the plaintiff tribes file cross appeals to the Supreme Court to challenge parts of Judge Rogers’ rulings on certain sections of the MWL .

• Notice of appeal to Washington Supreme Court
• Certificate of Service

July 7, 2008

As you may already be aware, on June 11, King County Superior Court Judge Jim Rogers struck three sections of the Municipal Water Law.  One section concerns water rights, and the others provide definitions of the terms “municipal water supplier” and “municipal water supply purposes.” 

On July 7, the Office of the Attorney General filed a notice of appeal on behalf of the Governor and our agencies to the state Supreme Court, seeking to overturn the ruling.  The issues are complex, as you know, and the appeal process will take time to resolve.

• July 7, 2008 Washington State Office of the Attorney General Press Release - McKenna announces appeal of water rights decision 
  • July 3, 2008 Defendant State of Washington's Notice of Appeal to Washington Supreme Court and Certificate of Service NO. 06-2-40103SEA

In the meantime, we wanted to share with you how the Departments of Health and Ecology will do business until the appeal is resolved. 

Because the ruling immediately affects the administration of water rights by Ecology and the oversight of public water systems by Health, the agencies are developing interim policies for staff to follow. 

Until final court action occurs, we will not change any reviews and decisions made between the time the Municipal Water Law was enacted in 2003 and June 11, 2008, when the judge announced his ruling.

Given the current uncertainties, our goal is to minimize inconvenience to the public and provide clear guidance to water suppliers.

We’ll keep you informed as the case progresses. Please let us know if you have questions and concerns.

Best regards,

Denise Clifford Director, Office of Drinking Water Department of Health
Ken Slattery Manager, Water Resources Program Department of Ecology

Background

Below is information about requests for action regarding the constitutionality of the municipal water law and subsequent legal challenges to the law. For those already familiar with the lawsuits, current status links are provided immediately below:

• Transcribed oral ruling of the Honorable Jim Rogers from June 11, 2008 in the Lummi Municipal Water Law case  6-25-08
• Order Granting In Part & Denying In Part Summary Judgment Motions in the Municipal Water law case.  6-11-08
• Notice of Hearing  – LUMMI NATION, et al., Plaintiffs v. STATE OF WASHINGTON. ET AL., DEFENDANTS. May 23, 2008 at 1:30 p.m.
• Claims Pertaining to RCW 90.03.330(2)  - Defendant State of Washington's memorandum in response to plaintiff's new claims pertaining to RCW 90.03.330(2)
  • Plaintiff Tribes' Reply in Support of Motion for Summary Judgment RE. 90.03.330(2)
  • Burlingame Plaintiffs' Reply as to Procedural Due Process Challenge to RCW 90.03.330(2)

Defendants, Interveners, and Plaintiffs reply briefs regarding motions for Summary Judgment in Lummi/Burlingame, et al. v. Ecology/Health, et al.

• State’s reply brief to Plaintiff Tribes’ responses to the State’s summary judgment motion
• State’s reply brief to Burlingame Plaintiffs’ responses to the State’s summary judgment motion
• Plaintiff Tribes’ Reply In Support of Motion for Summary Judgment
• Burlingame Plaintiffs' Reply in Support of Motion for Summary Judgment
• Defendant - Intervenor Cascade Water Alliance's Reply to Plaintiffs' Response to Motions for Summary Judgment
• WWUC's Reply to State’s Memorandum in Response to WWUC’s Motion for Summary Judgment
• WWUC’s Reply to Plaintiffs’ Memoranda in Response to WWUC’s Motion for Summary Judgment

Washington State University, Plaintiff Tribes’, Burlingame Plaintiffs’, and Washington Water Utilities Council’s summary judgment motionss

• Defendant-Intervenor Washington State University's Response to Plaintiffs' Motions for Summary Judgment
• Defendant-Intervenor Cascade Water Alliance's Response to Plaintiffs' Motions for Summary Judgment
• Defendant-Intervenor Washington Water Utilities Council's Response to Plaintiffs' Motions for Summary Judgment
• Plaintiff Tribes' Response to Defendants and Defendant-Interveners' Motions for Summary Judgment
• Burlingame Plaintiffs' Response to Defendants' Motions for Summary Judgment

State’s responses to the Plaintiff Tribes’, Burlingame Plaintiffs’, and Washington Water Utilities Council’s summary judgment motions

• State of Washington's Memorandum in Opposition to Plaintiff Tribes' Motion for Summary Judgment
• State of Washington's Memorandum in Opposition to Burlingame Plaintiffs' Motion for Summary Judgment
• State of Washington's Memorandum in Response to Defendant-Intervenor Washington Water Utilities Council's Motion for Summary Judgment

Motions for Summary Judgment

Following are the motions for Summary Judgment filed by the environmental tribal plaintiffs and state defendants in the consolidated Lummi-Burlingame case.  Attachments are omitted.

• Defendant Intervenor Cascade Water Alliance’s Motion for Summary Judgment
• Defendant Intervenor Washington Water Utility Council’s Motion for Summary Judgment
• Plaintiff Tribes' Motion for Summary Judgment
• Burlingame Plaintiffs' Motion for Summary Judgment
• Defendant State of Washington's Motion for Summary Judgment
• Proposed Order Granting Defendant State of Washington's Motion for Summary Judgment

Current Status of Consolidated Lummi/Burlingame Litigation

1. State Defendants' First Set of Answers and Responses to Plaintiffs First Interrogatories
2. Plaintiffs First Interrogatories: Lummi-Burlingame case

Request for Action Regarding the Constitutionality of the Municipal Water Law - June, 2006

• Request for Action Regarding the Constitutionality of the Municipal Water Law - Letter from the "Petitioners"
  • Attorney General Response to Request for Action Regarding the Constitutionality of the Municipal Water Law - Maureen A. Hart, Solicitor General
• Request for Action Regarding the Constitutionality of the Municipal Water Law - Letter from the "Tribes"
  • Attorney General Response to Request for Action Regarding the Constitutionality of the Municipal Water Law - Maureen A. Hart, Solicitor General

Complaint for Declaratory and Injunctive Relief - September, 2006

A complaint for declaratory and injunctive relief from certain provisions of the 2003 Municipal Water Law (SESSHB 1338), was filed in King County Superior Court on September 1, 2006. Plaintiffs are Joan Burlingame, Lee Bernheisel, Scott Cornelius, Peter Knutson, Puget Sound Harvesters; Washington Environmental Council; Sierra Club; and the Center for Environmental Law and Policy. Defendants are the State of Washington, Washington State Department of Ecology, and Washington State Department of Health.

• Complaint for Declaratory and Injunctive Relief
• Ecology/Department of Health Response to Complaint - 09/26/2006 Answer of the defendants; State of Washington, Department of Ecology and Department of Health, to Plaintiffs complaint for Declaratory and Injunctive Relief

Complaint for Declaratory and Injunctive Relief – December, 2006

A complaint for declaratory and injunctive relief from certain provisions of the 2003 Municipal Water Law (SESSHB 1338), was filed in King County Superior Court on December 26, 2006. Plaintiffs are Lummi Indian Nation, Makah Indian Tribe, Quileute Indian Tribe, Quinault Indian Nation, Squaxin Island Indian Tribe, Suquamish Indian Tribe, and the Tulalip Tribes, federally recognized Indian tribes. Defendants are the State of Washington; Christine Gregoire, Governor of the State of Washington; Washington Department of Ecology; Jay Manning, Director of the Washington Department of Ecology; Washington Department of Health; and Mary Selecky, Secretary of Health for the State of Washington.

• Tribal Complaint for Declaratory and Injunctive Relief
• Answer of the Defendants 01/10/2007 - Defendants Response to Tribal summons and complaint - 01/10/2007 Answer of the defendants; State of Washington; Christine Gregoire, Governor of the State of Washington; Washington Department of Ecology; Jay Manning, Director of the Washington Department of Ecology; Washington Department of Health; and Mary Selecky, Secretary of Health for the State of Washington; to Plaintiffs' summons and complaint for Declaratory and Injunctive Relief.

Consolidation of Burlingame and Lummi Indian Nation Complaints – March 2007

A joint motion to consolidate the above cases was granted in March of 2007. The cases were consolidated under the case number for the original Lummi Indian Nation complaint.  The case will be heard in King County Superior Court in 2008. See above links under “Current Status of Consolidated Lummi/Burlingame Litigation” for further updates.

Please send questions to:

Don Davidson
Water Resources Program
360 407-6636
ddav461@ecy.wa.gov

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