Belle Fourche Pipeline Co. v. Elmore Livestock Co.
| Decision Date | 30 August 1983 |
| Docket Number | No. 5829,5829 |
| Citation | 669 P.2d 505 |
| Parties | BELLE FOURCHE PIPELINE COMPANY, a Wyoming corporation, Appellant (Defendant), v. ELMORE LIVESTOCK COMPANY, a Wyoming corporation, and Mike Elmore and Rita Elmore, d/b/a Elmore Livestock Company, Appellees (Plaintiffs). |
| Court | Wyoming Supreme Court |
Richard E. Day and Patricia M. Baird of Williams, Porter, Day & Neville, P.C., and Robert Stanley Lowe, Casper, for appellant.
Kim D. Cannon and Rebecca W. Thomson of Burgess & Davis, Sheridan, for appellees.
Before ROONEY, C.J., and RAPER *, THOMAS, ROSE and BROWN, JJ.
RAPER, Justice, Retired.
In this case, the Elmores (appellees) filed suit against Belle Fourche Pipeline Company (appellant) for the damage done to their land and the groundwater beneath it when appellant's high pressure crude oil pipeline ruptured and spilled oil on appellees' land. After a jury trial, appellees were awarded $40,000 for the damage done to their land. Additionally, appellant was required to pay $57,250 into the court registry to restore the groundwater to its prior condition, to be expended subject to stipulation or order of the court. Appellant questions both the amount of damages awarded for appellees' land and the propriety of appellees' suit to restore the condition of the groundwater. Appellant phrases the issues raised as follows:
We will reverse as to the $57,250 and reverse and remand for new trial as to the $40,000.
On October 8, 1976, a high pressure crude oil pipeline owned and operated by appellant ruptured spilling approximately 300 to 500 barrels of crude oil onto appellees' land. The area covered by the spilled oil amounted to approximately three acres. The oil flowed downhill from the point of the rupture over moderately sloping range land and into a gently sloping alfalfa field. The oil followed a natural drainage way. The size of the oil spill ranged from 20 to 150 feet wide by approximately 6/10ths of a mile long. The oil penetrated the soil from a depth of six inches at the top of the slope to seven feet at the bottom.
Although appellant attempted to clean up the site immediately after the spill, its efforts were neither completely successful nor satisfactory to appellees. Appellant has never contested the fact that it was liable for the damage to appellees' land and that the damage was permanent. The only dispute in that regard is to the amount owed by appellant and how that figure is to be reached. Additional facts regarding that issue will be addressed later in this opinion.
In May 1980, three and one-half years after the spill, appellees obtained the services of a consulting engineering firm to determine what could be done to restore the land within the oil spill site. In the course of their efforts, the consultants took various soil samples and groundwater samples. Their water samples were obtained from a pit dug to a depth of seven feet near the terminus of the oil's travel. The sampling pit cut into a shallow groundwater acquifer. In September 1980, when the water samples were analyzed, analysis revealed that the water samples contained more than acceptable amounts of oil. Later tests on water samples taken from the same location also revealed unacceptably high amounts of oil in the water. The conclusions concerning water quality were reached by using state water quality standards found in the rules and regulations of the Wyoming Department of Environmental Quality (DEQ), Water Quality Division. 1 The water analysis indicating possible groundwater pollution caused by the spill became known to appellees in November 1980 when the consulting firm submitted a report of its findings to them.
In appellees' original complaint, filed in September 1980, no claim for relief was based on pollution of the groundwater. After the consultant's report was submitted to appellees, an amended complaint was filed in September 1981. That amended complaint formed the basis for trial in this case. In it, appellees, in addition to complaining about the damage done to the surface of the land, alleged that appellant had polluted the groundwater beneath the land thereby damaging the land itself.
Since the oil spill, appellees have not suffered any harmful effects from alleged oil pollution of the water upon or underlying their land. Appellees admitted that at trial. In fact prior to late 1980, appellees could not have been affected by polluted underground water since they had yet to seek permits from the state engineer to drill and appropriate the water underlying their land. In August 1980 and in April 1981, appellees sought and were granted permits to drill a total of three irrigation wells within the general area of the spill site. At the time of trial, the three irrigation wells were in the process of being completed. Where water had been produced, no oil pollution was apparent; therefore, no harm resulting from oil pollution had occurred. The water from these wells, at the time of trial, had yet to be put to any beneficial use.
The case was tried before a jury on the issues of (1) the amount of damages appellees were entitled to for injury to their land; (2) whether the oil spill polluted the surface or groundwater; and (3) if the waters were polluted by the oil spill, what damages appellees were entitled to for that pollution. After the presentation of evidence, the jury was instructed on the law as the trial judge visualized it and at appellant's request, made pursuant to Rule 49, W.R.C.P., the jury was required to complete a special verdict form which contained several interrogatories. The jury found that appellees' lands were damaged by the spill and that the amount owed by appellant was the difference in values before and after the spill which amounted to $40,000. The jury further found that the oil spill had polluted the groundwater and that appellant should pay $57,250 to restore it to its prior condition.
Appellant, after entry of judgment, filed a timely motion for new trial or in the alternative for a judgment notwithstanding the verdict, complaining primarily about the assessment of $57,250 to restore the groundwater. 2 After hearing arguments on the motions, the trial court entered an order denying the motions and amending the judgment. The judgment was amended to the extent that the $57,250 awarded for restoration of the water was to be paid into the registry of the court subject to disbursement only upon stipulation of the parties or order of the court. This appeal followed.
Since appellees suffered no harmful effects from alleged water pollution, their theory for recovery of damages is based on the mere fact that the underground water is polluted. Appellant argues essentially that any cause of action appellees may have had based on pollution of the underground water underlying their land was improperly brought. We agree.
The groundwater at issue is water of the state as defined in § 35-11-103(c)(vi), W.S.1977. That statute defines waters of the state to mean "all surface and ground water within Wyoming." Section 35-11-301(a)(i), W.S.1977, prohibits, except when authorized by permit, the discharge of pollution into the waters of the state. We have previously held that crude oil entering the waters of the state from a ruptured pipeline is a discharge of pollution prohibited by § 35-11-301(a)(i), supra. People v. Platte Pipe Line Company, Wyo., 649 P.2d 208 (1982). We further held in People v. Platte Pipe Line Company, supra, that owners of pipelines which discharge oil into waters of the state are liable to the state regardless of fault for damages and the civil penalties set out in § 35-11-901, W.S.1977, Cum.Supp.1983. Id., 649 P.2d at 214. Therefore, if in fact oil from appellant's ruptured pipeline did enter the groundwater, appellant is strictly liable to the state for any damages it caused and the civil penalties set out in § 35-11-901, supra.
Section 35-11-901, supra, provides for penalties for the violation of the Wyoming Environmental Quality Act, § 35-11-101 et seq., W.S.1977, of which § 35-11-301, supra, is a part. It provides the means by which the DEQ proceeds against violators of the act after investigations of alleged violations have been conducted pursuant to § 35-11-701, W.S.1977, Cum.Supp.1983.
Although § 35-11-901, supra, deals with the state's action against violators of the act, individual citizens are not prevented from seeking redress in the courts for violations or for damages resulting from violations of the act or rules, regulations, etc. promulgated thereunder. Section 35-11-902, W.S.1977, Cum.Supp.1983, provides both for suits by interested citizens acting as private attorneys general and for existing personal claims resulting from violations of the Wyoming Environmental Quality Act; it provides in pertinent part:
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