Jackass Mt. Ranch, Inc. v. S. Columbia Basin Irrigation Dist.

Decision Date09 July 2013
Docket NumberNo. 30270–9–III.,30270–9–III.
Citation175 Wash.App. 374,305 P.3d 1108
CourtWashington Court of Appeals
PartiesJACKASS MT. RANCH, INC.; Dave and Ami MacHugh, d/b/a Jackass Mt. Ranch, Appellants, v. SOUTH COLUMBIA BASIN IRRIGATION DISTRICT, Respondent, Dick Conrad, d/b/a Conrad Orchards, Defendant.

OPINION TEXT STARTS HERE

Vicki L. Mitchell, Paine Hamblen LLP, John Charles Riseborough, Attorney at Law, Spokane, WA, for Appellant.

Andrew Christian Bohrnsen, The Law Office of Andrew C. Bohrnsen PS, Spokane, WA, for Respondent.

KULIK, J.

[175 Wash.App. 379]¶ 1 In 2006, a landslide damaged a cherry orchard belonging to Jackass Mountain Ranch and Dave and Ami MacHugh (collectively referred to as “JMR”). JMR brought suit against the South Columbia Basin Irrigation District (SCBID), contending that the landslide was a direct and proximate result of the creation and maintenance of the Ringold Wasteway (wasteway), which SCBID operated. JMR asserted multiple claims, including inverse condemnation, negligence, res ipsa loquitur, and trespass. Franklin County Superior Court granted summary judgment in favor of SCBID on all claims. Of importance, the court determined that the evidence clearly established that the seepage that caused the landslide was due to the design and construction of the wasteway by United States Bureau of Reclamation (USBR). Thus, liability for damages resulting from design and construction could not be imputed to SCBID. Furthermore, the court concluded that JMR failed to produce evidence that SCBID negligently operated or maintained the wasteway. JMR appeals. We agree with the trial court and affirm summary judgment in SCBID's favor.

FACTS

¶ 2 In 1935, the United States authorized construction, operation, and maintenance of the Grand Coulee Dam Project. Renamed the Columbia Basin Project, one of the purposes of the project is to provide water for agricultural irrigation to 1,029,000 acres of semi-arid land in central Washington. The irrigation system transports water from a storage facility called Banks Lake through canals to the irrigated lands. The Columbia Basin Project is divided into three irrigation districts, one of which is the SCBID. USBR planned, designed, engineered, and constructed the system operated by SCBID.

¶ 3 SCBID and the other irrigation districts contracted with USBR to provide maintenance and operation services for the Columbia Basin Project. USBR and SCBID entered into a repayment contract in December 1968. The contract transfers responsibility for the operation and maintenance of the transferred works to SCBID. The transferred works consists of all irrigation and drainage works, constructed or to be constructed, serving or to serve lands within the district. The repayment contract provides that the title to the transferred works remains with the United States.

¶ 4 The contract provides that SCBID is obligated to perform and administer the water service contracts of the United States by delivering water via the transferred works to the landowner. The United States retains ownership over all waters delivered to the farmers under the contract, including waste, seepage, or return flow waters attributable to the irrigation of lands. USBR determines which land receives water and the amount of water to be distributed to each unit of land. Any modification of existing water service contracts by SCBID requires approval by USBR.

¶ 5 SCBID is required to maintain the standard of care set by the USBR for operation and maintenance. SCBID is obligated to care for, operate, and maintain the transferred works in compliance with the terms of the contract and in such a manner that the transferred works remain in good and efficient condition. The contract states that no substantial change shall be made by SCBID in any of the major transferred works without first obtaining the written consent of USBR. However, SCBID is required to promptly make any and all repairs to the transferred works that are necessary for proper care, operation, and maintenance of the transferred works.

¶ 6 USBR, in conjunction with SCBID, may review the maintenance program of the district to determine the adequacy of the program. This review includes an inspection by USBR of the transferred works to determine if the terms of the contract are being satisfactorily performed by the district and what corrective measures need to be taken to correct any deficiencies in the maintenance of such transferred works.

¶ 7 If a transferred work is found deficient, the contract provides that USBR will modify, improve, or replace those transferred works that have been constructed but which do not perform satisfactorily or where the constructed facility is inadequate. USBR and SCBID shall provide to each other reports of the operation and maintenance program on the transferred works.

¶ 8 In instances where the right-of-way has not been acquired, the contract provides that the United States shall proceed to acquire those rights-of-way for the storage, seepage and overflow, conveyance, release, and discharge of waters serving lands within the project or lands affected by the operation of the project. This includes rights-of-way that become necessary to serve the completed project. The contract states that SCBID shall not be held liable for any damages occasioned by the failure, neglect, or omission of the United States to secure the rights-of-way under the aforementioned provision.

¶ 9 “Drainage works” are defined in the contract as “project works to control and remove injurious excess surface and ground water resulting from operation of the irrigation system and the irrigation of project lands.” Clerk's Papers (CP) at 318. The contract places responsibility on USBR to determine whether drainage works are necessary or economically feasible. If both criteria were present, USBR has the responsibility for design and construction of the drainage system.

¶ 10 The Ringold Wasteway delivers water through SCBID's district. Originally, USBR designed and constructed the wasteway to carry water from the Potholes Canal to a location on the edge of the White Bluffs where it was returned to the Columbia River down a 350–foot box flume. The flume was constructed on the south edge of an ancient landslide.

¶ 11 In the late 1960s, a landslide destroyed the flume. The ancient landslide area became reactivated as soon as seepage from the wasteway and irrigation activity saturated the previously dry sediments. In response, USBR placed a dike on the west end of the wasteway to terminate discharge down the flume. USBR redesigned the wasteway so that the water within the wasteway flowed away from the White Bluffs area. USBR also constructed a system of underground drains in the irrigated fields and orchards to move excess water from irrigation back into the wasteway. These modifications, made by USBR, resulted in the wasteway being used as a combined water delivery and drainage system. The wasteway, as redesigned and constructed, was considered a transferred work, as defined in the repayment contract. Despite the redesign and modification of the system, three small slumps in the hillside occurred between 1981 and 1986. Another major landslide occurred in 1996.

¶ 12 In the 1970s, USBR investigated further development of the White Bluffs area. USBR recognized that the increase of groundwater from the proposed irrigation projects would create the danger of more landslides along the steep cliffs. As a result, USBR created the red line area, which designated the boundary area where added groundwater would directly affect the White Bluff's landslide problem. This area was found unsuitable for irrigation.

¶ 13 JMR's orchard is located at the base of the White Bluffs. The land at the top of the bluff, above JMR's orchard, is owned by Dick Conrad.1 The wasteway is also located on the top of the bluff, south of JMR's orchard and Mr. Conrad's orchard. This area along the White Bluff is located outside the boundaries of the red line area.

¶ 14 In the 1980s, USBR constructed a network of underground subdrains under Mr. Conrad's orchard to prevent soil from becoming saturated in the root zone. Water collected in this subdrain system flows into the collection facilities in the area.

¶ 15 In June 2006, a major landslide deposited approximately 100,000 cubic yards of material from the top of the slope onto JMR's property. The landslide covered and/or destroyed approximately seven to nine acres of JMR's orchard.

[175 Wash.App. 384]¶ 16 JMR initiated a claim for damages against SCBID on the theories of inverse condemnation, negligence, res ipsa loquitur, and trespass.2 JMR contended the slide was a direct and proximate result of the creation and maintenance of the wasteway, and that SCBID failed to take appropriate precautions to prevent the landslides.

¶ 17 SCBID moved for summary judgment, stipulating for the motion that the seepage from the wasteway was a proximate cause of the 2006 landslide. However, SCBID contended that it was not responsible for the landslide because the seepage from the wasteway was due to the design and construction by USBR. SCBID maintained that it inherited the wasteway and did not have ownership or contractual authority to alter the wasteway. Therefore, SCBID's only responsibility was to exercise reasonable care in the operation and maintenance of USBR's wasteway, which it had done.

¶ 18 To support its motion for summary judgment, SCBID presented the repayment contract between USBR and SCBID, which provided that USBR owned the wasteway and that SCBID would be responsible for operation and maintenance.

¶ 19 Additionally, SCBID presented an affidavit from operations and maintenance expert Robert Montgomery. Based on his investigations of the system and his knowledge and experience gained in 28 years in the field, Mr. Montgomery opined that SCBID's methods and practices were reasonable and well within the standard of practice for irrigation systems in the Columbia...

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