Ellison v. Rayonier Incorporated

• Decision Date: 30 September 1957
• Docket Number: No. 2081.,2081.
• Citation: 156 F. Supp. 214
• Parties: H. R. ELLISON and J. N. Ellison, d/b/a Ellison Bros. Oyster Co., Plaintiffs, v. RAYONIER INCORPORATED, a corporation, Defendant.
• Court: U.S. District Court — Western District of Washington

156 F. Supp. 214

H. R. ELLISON and J. N. Ellison, d/b/a Ellison Bros. Oyster Co., Plaintiffs, v. RAYONIER INCORPORATED, a corporation, Defendant.

No. 2081.

United States District Court W. D. Washington, S. D.

September 30, 1957.

Lewis & Correa, Shelton, Wash., for plaintiff.

Holman, Mickelwait, Marion, Black & Perkins and DeForest Perkins, Seattle, Wash., B. Franklin Heuston, Shelton, Wash., for defendants.

BOLDT, District Judge.

In seventeen actions, of which the captioned case is typical, plaintiffs seek to recover damages for loss allegedly sustained by reason of water pollution resulting from the operation of defendant's pulp and cellulose mill at or near Shelton, Thurston County, Washington. Plaintiffs' properties include tidelands in the state waters of Puget Sound at varying distances up to several miles from defendant's plant from which an effluence of chemicals, unreclaimed wood products, and other waste materials is discharged into state waters of the Sound. The complaints allege the "wrongful" discharge of such effluence and that by tidal action it reaches and is deposited on oyster beds located on plaintiffs' tidelands resulting in deterioration and death of oysters in large quantities. Recovery is sought for damage by loss of profits in plaintiffs' oyster cultivation and harvesting operations already sustained and to be sustained in the future.

The complaints do not name the legal nature of the right of action on which recovery is sought but under the allegations of the complaints the asserted claims must sound either in trespass or nuisance. Arvidson v. Reynolds Metals Co., D.C., 125 F.Supp. 481; 9 Cir., 236 F.2d 224. Defendant's motions to dismiss raise two general contentions: (1) that the common law actions of trespass and nuisance based on water pollution damage have been abolished in the State of Washington by the Water Pollution Control Act, Chapter 216 Laws of 1945, as amended 1949 and 1955 (R.C.W. 90.48 et seq.); and (2) in any event, the Act referred to has vested primary jurisdiction to determine standards of actionable pollution of state waters in the Pollution Control Commission provided for by the Act.¹

The Act makes unlawful the discharge into state waters of any matter causing or tending to cause a condition of the water amounting to unreasonable pollution according to rules, regulations and standards determined by a commission created by R.C.W. 43.54.010 et seq. on the basis of such known and available technical, scientific information and opinion as the commission may deem pertinent. The policy section of the Act expressly provides that in setting water pollution rules, regulations and standards the commission shall consider and determine, among other things, the relative requirements and practical problems of various activities using or dependent upon water in categories including both plaintiffs' and defendant's commercial and industrial operations, all with regard to the industrial development of the state. Provisions of the Act as amended require permits for industrial and commercial disposal of solid or liquid waste material into waters of the state. The commission is required to issue permits for commercial and industrial disposal of waste material unless the commission finds that thereby the waters of the state will be unduly polluted in violation of the public policy declared in the Act. Commission hearings, appeals and various other procedures are provided for.

Right of action to recover damages for wrongful water pollution is well established in the common law recognized in Washington. Bales v. City of Tacoma, 172 Wash. 494, 20 P.2d 860; Bowman v. Helser, 143 Wash. 397, 255 P. 146; Sund v. Keating, 43 Wash.2d 36, 259 P.2d 1113. The Water Pollution Control Act contains no express declaration against continued recognition of such right of action. Neither the language of the Act nor the procedures provided for therein require or necessarily imply abolition of common law right of action.

"In testing the correctness of this proposition abrogation by the Interstate Commerce Act of right of action for recovery of excessive freight charges we concede that we must be guided by the principle that repeals by implication are not favored, and indeed, that a statute will not be construed as taking away a common-law right existing at the date of its enactment, unless that result is imperatively required; that is to say, unless it be found that the pre-existing right is so repugnant to the statute that the survival of such right would in effect deprive the subsequent statute of its efficacy; in other words, render its provisions nugatory." Texas & Pacific Railway Co. v. Abilene Cotton Oil Co., 204 U.S. 426, at pages 436-437, 27 S.Ct. 350, at page 354, 51 L.Ed. 553.

Washington law is in full agreement with the principles thus stated, by reason of which defendant's first contention is invalid and dismissal on such ground must be denied.

Defendant's second contention has more substance and raises questions difficult of solution. Plaintiffs brought the actions in this court invoking only diversity jurisdiction and Washington law is controlling on substantive issues. The Washington State Supreme Court has not had occasion to apply or interpret the Water Pollution Control Act and there are no Washington decisions directly concerned with the principle of primary administrative jurisdiction in any factual situation comparable to water pollution regulation and control. In these circumstances this court can only make a reasoned prophecy as to what content and effect, if any, the State Supreme Court will give to primary administrative jurisdiction as applied to the Act in question. The Court of Appeals for the Ninth Circuit recently has stated the duty of a federal court in such situation:

"It is our limited duty to discern the substantive law of California on the issues in controversy and to apply it accordingly. Our task is not to innovate, but to imitate. Where the course of the law remains uncharted, as is the situation with several of the issues in the instant case, it is the duty of the Federal court to examine germane precedents and analogous decisions in California and to endeavor to ascertain from those decisions how the California courts would decide the case at bar. In the absence of direct authority, we must heed such guideposts as the state courts have constructed, for even here true allegiance to the principle of Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, precludes unrestrained and independent determination in a diversity case." Young v. Aeroil Products Company, 9 Cir., 248 F.2d 185, 188.

The principle of primary administrative jurisdiction, while not so named therein, was early enunciated in Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., supra. In considering administrative jurisdiction in relation to the instant case, language in Home Building & Loan Ass'n v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413, quoted by the Washington Supreme Court with approval in State v. Dexter, 32 Wash.2d 551, 202 P.2d 906, 908, 13 A.L.R.2d 1081, is significant.

"It is manifest from this review of our decisions that there has been a growing appreciation of public needs and of the necessity of finding ground for a rational compromise between individual rights and public welfare. The settlement and consequent contraction of the public domain, the pressure of a constantly increasing density of population, the interrelation of the activities of our people and the complexity of our economic interests, have inevitably led to an increased use of the organization of society in order to protect the very bases of individual opportunity. Where, in earlier days, it was thought that only the concerns of individuals or of classes were involved, and that those of the state itself were touched only remotely, it has later been found that the fundamental interests of the state are directly affected; and that the question is no longer merely that of one party to a contract as against another, but of the use of reasonable means to safeguard the economic structure upon which the good of all depends."

A late exposition of primary administrative jurisdiction is found in United States v. Western Pac. R. Co., 352 U.S. 59, 77 S.Ct. 161, 165, 1 L.Ed.2d 126:

"The doctrine of primary jurisdiction, like the rule requiring exhaustion of administrative remedies, is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties. `Exhaustion' applies where a claim is cognizable in the first instance by an administrative agency alone; judicial interference is withheld until the administrative process has run its course. `Primary jurisdiction,' on the other hand, applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views. General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 433, 60 S.Ct. 325, 331, 84 L.Ed. 361.

"No fixed formula exists for applying the doctrine of primary jurisdiction. In every case the question is

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