Cowiche Canyon Conservancy v. Bosley

• Citation: 828 P.2d 549,118 Wn.2d 801
• Decision Date: 16 April 1992
• Docket Number: No. 56505-8,56505-8
• Parties: COWICHE CANYON CONSERVANCY, a Washington non-profit Corporation; Shields Bag and Printing Company, a Washington Corporation; and The State of Washington, Department of Ecology, Appellants, v. Bruce BOSLEY and Laurie K. Bosley, husband and wife, Respondents.
• Court: United States State Supreme Court of Washington

Page 801

118 Wn.2d 801

828 P.2d 549

COWICHE CANYON CONSERVANCY, a Washington non-profit

Corporation; Shields Bag and Printing Company, a

Washington Corporation; and The State

of Washington, Department of

Ecology, Appellants, v. Bruce BOSLEY and Laurie K. Bosley, husband and wife, Respondents.

No. 56505-8.

Supreme Court of Washington,

En Banc.

April 16, 1992.

Reconsideration Denied June 10, 1992.

Raymond L. Paolella, Yakima, for appellant Cowiche Canyon Conservancy.

Kenneth Eikenberry, Atty. Gen., Allen T. Miller, Jr., Asst., Olympia, for appellant State.

Meyer, Fluegge & Tenney, P.S., Walter G. Meyer, John A. Maxwell, Jr., Yakima, for respondents.

Wick Dufford, Ginsberg, Stanich & Dufford, Seattle, amicus curiae, for appellants on behalf of Washington Environmental Council.

BRACHTENBACH, Justice.

This action concerns alleged violations of the Shoreline Management Act of 1971 (SMA), RCW 90.58, by the removal, at defendant's request, of three railroad trestles which crossed Cowiche Creek. The private plaintiffs had no interest in the railroad trestles.

The Department of Ecology (Department) joined the suit as a plaintiff, with no investigation of the facts; the Department acted solely on a telephone report from the private plaintiffs' attorney and a telephone call to Yakima County.

Summary judgment in favor of plaintiffs was granted on the issue whether removal of the trestles was a substantial development within the meaning of the SMA, and the case went to trial on remaining SMA issues.

The trial court held that all plaintiffs lack standing to bring the action, that the SMA was not violated, and that RCW 90.58.140(1) and (2) are unconstitutional as applied to defendant. The trial court awarded attorney fees to defendant. ¹

We conclude that no violation of the SMA occurred, and uphold the award of attorney fees to defendant pursuant to RCW 90.58.230. Defendant is awarded attorney fees on appeal.

The events leading to this suit are briefly recounted below, with further detail provided in connection with analysis of the issues.

In 1984 Burlington Northern Railroad (Burlington) abandoned its railroad line through the Cowiche Canyon, a few miles from Yakima. Plaintiff Cowiche Canyon Conservancy (Conservancy) is a nonprofit organization organized in 1985 which sought to create a 3-mile stretch of the abandoned railroad right of way through the canyon as a public hiking and nature trail. The 3-mile section of the right of way had 11 trestles which crossed the Cowiche Creek, which flows through the canyon. The Conservancy wanted to use the 11 trestles as part of the trail. The Conservancy commenced negotiations with Burlington to obtain rights to the right of way passing through the canyon.

Defendant, Bruce Lee Bosley, is a landowner in the canyon area. The abandoned railroad right of way passes near his house. The trestles were not located on defendant's land nor was his property adjacent to the property on which the trestles were located. Defendant opposed creation of a trail using the abandoned railroad right of way, reasoning that creation of the trail would result in members of the public trespassing on private property, increased vandalism, and littering, among other things. Defendant became actively involved in opposing the proposed trail by joining neighbors opposing the trail and with quiet title actions in which reversionary rights to the abandoned right of way were asserted.

When the railroad was abandoned, Burlington arranged with a contractor for removal of the rails, ties, and several trestles along the right of way.

In April 1987, defendant contacted the contractor, and over a period of time had conversations with the contractor about removal of 3 of the 11 trestles which crossed the Cowiche Creek along the proposed nature trail. Defendant contacted the owners of the land through which the right of way containing these three trestles passed. He then advised the contractor that he had control of that land and that the owners did not object to removal of the trestles. The contractor dismantled the three trestles in late May or early June 1987.

In the spring of 1987 defendant constructed gates at each end of the 3-mile portion of the right of way constituting the proposed trail. The contractor, who believed he had control of the right of way while removing railroad ties and lines in the Cowiche Canyon location, did not object to the placement of the gates or signs by defendant. The contractor agreed that placement of the gates would protect his materials and equipment while he was performing work on the right of way.

Plaintiff Shields Bag and Printing Company is a for-profit corporation. In December 1987, Shields Bag and Printing Company purchased the land through which the 3-mile stretch of right of way passed, for use by the Conservancy. It is important to note that the trial court found that the land did not include the trestles or the right of way on which any trestles were located.

On January 4, 1988, the private plaintiffs (Cowiche Canyon Conservancy and Shields Bag and Printing Company) commenced this action, alleging, among other things, violations of the SMA. On the same date that the action was commenced, the private plaintiffs' attorney telephoned the Department's shoreline enforcement coordinator and officer, Don Beery, who entered information on a "Shorelands Complaint Form". Beery recorded the complaint as follows: "adjacent property owner has hired contractor to burn abandoned rail brides [sic ] to prevent railroad right-of-way from becoming a public trail system." Deposition of Beery, exhibit 1, at 1. The Department joined the action as a plaintiff, based upon this complaint and an affidavit from the contractor which stated that defendant told the contractor that he (defendant) had purchased the railroad right of way from some people in Idaho and that he wanted the contractor to remove some of the railroad bridges from the property defendant said he now owned.

The Department made no investigation of the facts before joining the suit.

In the amended complaint, plaintiffs alleged both common law and SMA claims. The parties filed motions for summary judgment. Plaintiffs' motion for partial summary judgment was granted, with the court ruling that removal of the trestles constituted a violation of the SMA, but leaving liability and causation issues for trial. Defendant's motion for summary judgment dismissal of the common law claims was granted on the basis that the private plaintiffs lacked standing to assert the claims.

A 3-day bench trial on the SMA claims followed. At the conclusion of the trial, the trial court (not the same as the court ruling on the summary judgment motions) entered findings and conclusions. Among its conclusions, the trial court held that all of the plaintiffs lacked standing to bring the action under the SMA, that placement of the gates did not constitute a substantial development within the meaning of the SMA, and that RCW 90.58.140(1) and (2) are unconstitutional as applied to defendant. The trial court awarded attorney fees to defendant alternatively pursuant to RCW 4.84.185 and RCW 90.58.230.

Plaintiffs sought direct review by this court, which was granted. Defendant cross-appealed. We first address the question of plaintiffs' standing to bring this action.

Standing

The trial court held that neither the private plaintiffs nor the Department have standing to bring this action. We agree that the private parties lack standing.

RCW 90.58.230 provides that private persons have the right to bring suit for damages on their own behalf and on behalf of other persons similarly situated. Here, the private plaintiffs owned no property adjacent to or even in the vicinity of Cowiche Creek at the time the trestles were removed and the gates were placed on the right of way.

The trial court found:

At the time of the removal of the three railroad trestles by [the contractor] and the placement of the gates by defendant Bruce Bosley, neither Cowiche Canyon Conservancy nor Shields Bag and Printing had any right, title or interest to the trestles, the property upon which they were situated, or any adjacent property.

Finding of fact 19. This finding is unchallenged. It is therefore a verity on appeal. Nearing v. Golden State Foods Corp., 114 Wash.2d 817, 818, 792 P.2d 500 (1990).

The private plaintiffs have belatedly tried to establish their right to bring suit pursuant to an alleged assignment of claims.

The trial court found that Burlington Northern Railroad owned the right of way from which the trestles were removed. A third party, the Clarks, owned the adjacent property. Finding of fact 24. The private plaintiffs challenge this finding, evidently to lend support to a claim that a valid assignment of claims was made to them by the Clarks. If the Clarks did not own the property, of course, such an assignment would obviously be of no import.

The trial court found that

No assignment of a claim for damages to the trestles or any real property was ever made to Shields Bag and Printing Co. or to Cowiche Canyon Conservancy or to the State of Washington from Burlington Northern, Clarks, or any other potentially interested party.

Finding of fact 22. The private plaintiffs assign error to this finding. However, the private plaintiffs present no argument in their opening brief on any claimed assignment. (Indeed, the only mention of the alleged assignment in the opening brief is a statement of an issue relating to a claim of trespass, not an SMA action; the trespass issue is not addressed in the brief, either.) Accordingly, the assignment of error is waived. Smith v. King, 106 Wash.2d 443, 451-52, 722 P.2d 796 (1986).

No assignment of claims from any property owners, Burlington Northern Railroad or the Clarks was introduced at trial. Private plaintiffs claim, for the first time in their reply brief, that an assignment from the Clarks is in the Clerk's...