Five Corners Family Farmers v. State

• Decision Date: 22 December 2011
• Docket Number: No. 84632–4.,84632–4.
• Citation: 268 P.3d 892,173 Wash.2d 296
• Parties: FIVE CORNERS FAMILY FARMERS, Scott Collin, The Center for Environmental Law and Policy, and Sierra Club, Appellants/Cross–Respondents, v. STATE of Washington, and Washington Department of Ecology, Respondents,Easterday Ranches, Inc., Respondent/Cross–Appellant,Washington Cattlemen's Association, Columbia Snake River Irrigators Association, Washington State Dairy Federation, Northwest Dairy Association, Washington Cattle Feeders Association, Cattle Producers of Washington, Washington State Sheep Producers, and Washington Farm Bureau, Respondents/Intervenors.
• Court: Washington Supreme Court

173 Wash.2d 296

268 P.3d 892

FIVE CORNERS FAMILY FARMERS, Scott Collin, The Center for Environmental Law and Policy, and Sierra Club, Appellants/Cross–Respondents,

v.STATE of Washington, and Washington Department of Ecology, Respondents,Easterday Ranches, Inc., Respondent/Cross–Appellant,Washington Cattlemen's Association, Columbia Snake River Irrigators Association, Washington State Dairy Federation, Northwest Dairy Association, Washington Cattle Feeders Association, Cattle Producers of Washington, Washington State Sheep Producers, and Washington Farm Bureau, Respondents/Intervenors.

No. 84632–4.

Supreme Court of Washington, En Banc.

Argued June 16, 2011.Decided Dec. 22, 2011.

Janette K. Brimmer, Kristen L. Boyles, Earthjustice, Seattle, WA, for Appellants/Cross–Respondents.

Mary Sue Wilson, Office of the Attorney General, Olympia, WA, for Respondents.

William Louis Cameron, Lee Smart PS Inc, Seattle, WA, R. Crane Bergdahl, Attorney at Law, Pasco, WA, for Respondent/Cross–Appellant.Gregory S. McElroy, McElroy Law Firm PLLC, Seattle, WA, James Laurence Buchal, Murphy & Buchal LLP, Portland, OR, Jeffrey David Slothower, Attorney at Law, Ellensburg, WA, for Respondents/Intervenors.David L. Monthie, DLM & Associates, Olympia, WA, amicus counsel for Aqua Permanente.Brian Cammiade Gruber, Ziontz Chestnut Varnell Berley & Slonim, Seattle, WA, amicus counsel for Colville Confederated Tribes.Lauren Patricia Rasmussen, Law Offices of Lauren P. Rasmussen PLLC, Seattle, WA, amicus counsel for Jamestown S'klallam Tribe & Port Gamble S'klallam Tribe.Diana Rae Bob, Lummi Nation, Bellingham, WA, amicus counsel for Lummi Nation.Bill Tobin, Attorney at Law, Vashon, WA, amicus counsel for Nisqually Tribe.Samuel Judge Stiltner, Lisa A. Brautigam, Puyallup Indian Tribe, Tacoma, WA, amicus counsel for Puyallup Tribe of Indians.Karen Allston, Quinault Indian Nation, Taholah, WA, amicus counsel for Quinault Indian Nation.Melody L. Allen, Suquamish Tribe, Office of Tribal Attorney, Suquamish, WA, amicus counsel for Suquamish Tribe.Emily Rae Hutchinson, Attorney at Law, La Conner, WA, amicus counsel for Swinomish Indian Tribal Community.Jeffrey S. Schuster, Attorney at Law, Seattle, WA, amicus counsel for Yakama Nation.OWENS, J.

[173 Wash.2d 300] ¶ 1 By statute, the legislature requires a permit to withdraw public groundwater or to construct a well to do so. RCW 90.44.050. The statute also provides exemptions from the permit requirement for certain uses. This case concerns the scope of one of those exemptions. We conclude that, under the plain language of the statute, withdrawals of groundwater for stock-watering purposes are not limited to any particular quantity by RCW 90.44.050. Accordingly, we affirm the superior court's grant of summary judgment to the respondents. We also affirm the superior court's refusal to grant summary judgment against the appellants on the basis of standing and its determination that Easterday Ranches Inc. (Easterday) is not entitled to attorney fees as a result of the change of venue.

FACTS

¶ 2 Easterday seeks to operate a large cattle feedlot in Franklin County. In order to provide water for the 30,000 head of cattle operation, Easterday drilled a well into the Grande Ronde aquifer. At the suggestion of the Department of Ecology (Department), Easterday acquired water rights from a neighboring farm. This transfer, referred to as the Pepiot Transfer, gave Easterday the right to withdraw 316 acre feet ¹ of water per year, which is approximately 282,106 gallons per day. This water is used both for stock drinking water and other feedlot purposes; under the transfer up to 66 acre feet per year, or approximately 58,921 gallons per day, may be used of stock drinking water. The estimated stock drinking water required is between 450,000 and 600,000 gallons per day. Easterday contends, and the Department agreed, that Easterday's withdrawal of the additional groundwater for stock-watering purposes is exempt from statutory permit requirements. See RCW 90.44.050.

¶ 3 Scott Collin, Five Corners Family Farmers, the Center for Environmental Law and Policy (CELP), and the Sierra Club (collectively Appellants) filed a declaratory judgment action against the State of Washington, the Department, and Easterday in Thurston County Superior Court. Appellants sought a declaration that the stock-watering exemption from the permit requirement in RCW 90.44.050 is limited to uses of less than 5,000 gallons per day. Appellants further sought an injunction ordering Easterday to cease groundwater use without a permit. Thurston County Superior Court granted Easterday's motion to change venue to Franklin County but denied Easterday's request for attorney fees pursuant to RCW 4.12.090.

¶ 4 Franklin County Superior Court allowed multiple agricultural organizations to intervene as defendants. The parties filed cross motions for summary judgment. The court concluded that genuine issues of material fact precluded Easterday's motion for summary judgment on the basis of standing but granted the summary judgment motions of Easterday, the Department, and the intervenors (collectively Respondents) with respect to the interpretation of RCW 90.44.050, which the court held unambiguously provides an exemption from the permit requirement for withdrawal of any amount of groundwater for stock-watering purposes. Appellants filed a notice of appeal, seeking direct review by this court. Easterday filed a notice of cross appeal, seeking review of Thurston County Superior Court's refusal to grant Easterday attorney fees for the change of venue and Franklin County Superior Court's failure to dismiss for lack of standing. We retained the case for decision.

ISSUES

¶ 5 1. Do Appellants possess standing to bring this declaratory judgment action?

¶ 6 2. Is the stock-watering exemption in RCW 90.44.050 limited to 5,000 gallons per day?

¶ 7 3. Is Easterday entitled to attorney fees under RCW 4.12.090?

ANALYSIS

I. Standing

¶ 8 Appellants have standing to bring this declaratory judgment action. Standing for purposes of the Uniform Declaratory Judgments Act, chapter 7.24 RCW, is set forth in RCW 7.24.020, which provides, in relevant part, that

[a] person ... whose rights, status or other legal relations are affected by a statute ... may have determined any question of construction or validity arising under the ... statute ... and obtain a declaration of rights, status or other legal relations thereunder.

In order to establish that a party's “rights, status or other legal relations are affected by a statute,” id., we employ a two part standing test: ² (1) the interest asserted must be “ ‘arguably within the zone of interests to be protected or regulated by the statute ... in question,’ ” and (2) the challenged action must have “caused ‘injury in fact,’ economic or otherwise, to the party seeking standing.” Grant County Fire Prot. Dist. No. 5 v. City of Moses Lake, 150 Wash.2d 791, 802, 83 P.3d 419 (2004) (internal quotation marks omitted) (quoting Save a Valuable Env't v. City of Bothell, 89 Wash.2d 862, 866, 576 P.2d 401 (1978)).

¶ 9 Where the injury complained of is procedural in nature, standing requirements are relaxed. Seattle Bldg. & Constr. Trades Council v. Apprenticeship & Training Council, 129 Wash.2d 787, 794–95, 920 P.2d 581 (1996) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n. 7, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). In order to show a procedural injury, a party must (1) identify a constitutional or statutory procedural right that the government has allegedly violated, (2) demonstrate a reasonable probability that the deprivation of the procedural right will threaten a concrete interest of the party's, and (3) show that the party's interest is one protected by the statute or constitution. See Summers v. Earth Island Inst., 555 U.S. 488, 129 S.Ct. 1142, 1151, 173 L.Ed.2d 1 (2009); Hall v. Norton, 266 F.3d 969, 977 (9th Cir.2001); Seattle Bldg. & Constr. Trades Council, 129 Wash.2d at 795, 920 P.2d 581. The third element is a specific application of the “zone of interests” component of the standing inquiry.

¶ 10 Appellants have standing. First, Appellants have identified a procedural injury sufficient to establish an injury in fact. The procedural right Appellants were allegedly denied was to have the Department review a permit application and consider, among other things, whether the withdrawal of groundwater would “impair existing rights or be detrimental to the public welfare.” RCW 90.03.290(3). Appellants have also demonstrated a concrete interest that would be affected by the deprivation of that procedural right. Collin, a member of Five Corners Family Famers and CELP, has applied for a permit to drill a new well. Because Easterday's water right established by beneficial use of its permit-exempt withdrawals would have a senior interest, Easterday would have priority to use the water over Collin and, if there is insufficient water, Easterday's well would preclude Collin from obtaining a permit. Collin also employs an existing well that draws from either the Wanapum or Grande Ronde aquifer. Collin has a concrete interest in protecting his existing use of water and obtaining a permit to drill a new well. Cumulatively, this is sufficient to establish a genuine issue of material fact as to whether there is a reasonable probability that Collin would be affected by the Department's failure to require a permit for Easterday's stock-watering withdrawals.

¶ 11 Organizations have standing to assert the interests of their members, so long as members of the organization would otherwise have standing to sue, the purpose of the organization is germane to the issue, and neither the claim nor the relief requires the participation of individual members. Int'l Ass'n of Firefighters, Local 1789 v. Spokane Airports, 146 Wash.2d 207, 213–14, 45 P.3d 186, 50 P.3d 618 (2002). Collin's standing and his membership support standing for Five...