Kucera v. State, Dept. of Transp.

• Decision Date: 16 March 2000
• Docket Number: No. 68428-6.,68428-6.
• Citation: 140 Wash.2d 200,995 P.2d 63
• Court: Washington Supreme Court
• Parties: Linda J. KUCERA, Donald W. Green, Jackie A. Rossworn, and Nancy Leonard, individually and on behalf of all others similarly situated, Respondents, v. The STATE of Washington, DEPARTMENT OF TRANSPORTATION, and the Washington State Ferries, Petitioners.

995 P.2d 63

140 Wash.2d 200

Linda J. KUCERA, Donald W. Green, Jackie A. Rossworn, and Nancy Leonard, individually and on behalf of all others similarly situated, Respondents, v.The STATE of Washington, DEPARTMENT OF TRANSPORTATION, and the Washington State Ferries, Petitioners.

No. 68428-6.

Supreme Court of Washington, En Banc.

Argued January 25, 2000.

Decided March 16, 2000.

Galen George Schuler, Seattle, Amicus Curiae on Behalf of Citizens for Reliable and Fair Trans.

Kent C. Meyer, Seattle, Amicus Curiae on Behalf of Kitsap Transit Authority.

Foster, Pepper & Shefelman, Richard L. Settle, Seattle, Amicus Curiae on Behalf of Passenger Vessel Association.

Brent David Lloyd, Seattle, Amicus Curiae on Behalf of Washington Environmental Council.

Glenna Malanca, Knute Rife, Asst. City Atty's, Bremerton, Christine Gregoire, Atty. Gen., William Williams, Heidi Irvin, Asst. Atty's Gen., Olympia, Russell Hauge, Kitsap County Prosecutor, Jacquelyn Aufderheide, Shelley Kneip, Deputies, Port Orchard, for Petitioners.

Steve Berman, Sean Matt, Andrew Volk, Seattle, for Respondents.

SANDERS, J.

PetitionersDepartment of Transportation, Washington State Ferries, Kitsap County, and the City of Bremerton seek relief from a preliminary injunction limiting the speed of a passenger ferry, the Chinook, along a portion of its run pending compliance with the State Environmental Policy Act of 1971 (SEPA), chapter 43.21C RCW.We granted petitioners' motion for direct discretionary review to consider whether the trial court properly granted injunctive relief pending compliance with SEPA.

We hold the trial court improperly disregarded the established prerequisites for issuance of a preliminary injunction by granting such relief without finding (1) the property owners have an inadequate remedy at law, and (2) the high-speed operation of the Chinook causes actual, substantial, and irreparable injury to the shoreline or the environment.In addition to these errors, the trial court erroneously refused to balance the relative interests of the parties and the general public.Accordingly, we dissolve the trial court's preliminary injunction slowing the Chinook.

FACTS

The Washington State Department of Transportation(DOT), through Washington State Ferries (WSF), operates passenger and automobile ferries throughout the Puget Sound and has been doing so since it acquired the former Puget Sound Navigation Company in 1951.¹

The Bremerton-Seattle route is part of State Route 304 and is served by both automobile and passenger-only ferries.RCW 47.17.556.On the route, ferries transit Rich Passage, a narrow one-mile long passage between the Kitsap Peninsula and the southern tip of Bainbridge Island.

Bremerton was served throughout the 1970s by 160-car, 2,500-passenger ferries of the Super Class.These vessels, with v-shaped hulls and very high length-to-beam ratio, could, despite their size, transit Rich Passageat 18 knots without an objectionable wake.In the 1980s, the introduction of the Issaquah-Class ferries, with a lower length-to-beam ratio, led to the first complaints from property owners along the shores of Rich Passage.Consequently, these vessels were slowed for the one-mile portion of the narrow Rich Passage.

When WSF instituted passenger-only service along the Bremerton-Seattle route with the Tyee, complaints increased and this vessel was slowed through Rich Passage.In 1990, WSF deployed two single-hulled vessels, the Skagit and Kalama.At their respective speeds of 25 and 27 knots, these single-hulled vessels generated very high wake wash, which caused increased complaints from residents at new locations outside the narrow choke point of Rich Passage.In response to these complaints, WSF voluntarily slowed these vessels to 11 knots from the start of Rich Passage all the way to Bremerton, a distance of 5.2 nautical miles.²

WSF then commissioned a study to determine whether the high-speed operations had caused any damage to the Rich Passage shoreline and what could be anticipated if the vessels continued to operate at the slower speeds.The study concluded the shoreline had not suffered significant damage, but noted that long term high-speed operation of those specific vessels could be problematic.The study also concluded the wake wash of the two vessels traveling at 11 knots would have a negligible effect on the shoreline.The WSF engineering staff used this conclusion to develop a wake wash performance standard for new vessels designed to provide high-speed passenger service along the route.The wave energy produced by the Skagit and Kalamaat 11 knots was measured and utilized to create a wave energy standard that was ultimately incorporated into the contracting process for the acquisition of the Chinook.

WSF acquired the Chinook through a legislatively authorized design-build contract.With a twin-hulled catamaran design, the Chinook was designed to meet the wake wash ("no-harm")³ standard developed by WSF to attain the self-imposed goal of making vessel operation relatively imperceptible on the Rich Passage shoreline.

In May 1998 WSF commenced operation of the Chinook to provide high-speed passenger service on the Bremerton-Seattle ferry route.The Chinook is the first of two passenger-only ferries acquired by WSF to provide high-speed passenger service along the Bremerton-Seattle route.The vessel has a 34-knot service speed, allowing a crossing time of approximately 30 minutes, a considerable improvement over existing vessels.In addition, the faster crossing time allows for more frequent departure times.A sister ship, the Snohomish, was scheduled to begin service in September 1999.

Early results indicated the Chinook was an immediate success with ferry commuters.In the first three quarters of operation, passenger travel on the Bremerton-Seattle route increased by 210%, 182%, and 156%, respectively, as compared with the same periods the previous year.Simultaneously, the number of automobiles on the Bremerton-Seattle route decreased, even though total ridership continued to increase.

However not long after the Chinook began operating, a number of property owners along Rich Passage again complained that the wake from the vessel was damaging the shoreline in front of their homes.On April 22, 1999, property owners instituted the present class action lawsuit against the State seeking monetary damages and injunctive relief for inverse condemnation and violation of the Shoreline Management Act of 1971 (SMA), chapter 90.58 RCW.⁴Later, the property owners filed an amended complaint for declaratory and injunctive relief and damages, adding causes of action for trespass, negligence, nuisance, and violation of SEPA.

On May 19, 1999, the property owners moved for a preliminary injunction, requesting the court to order WSF to slow the Chinook while transiting Rich Passage.The property owners relied on their trespass, negligence, nuisance, SMA, andSEPA claims to justify the preliminary relief sought.The State vigorously objected to the request for a preliminary injunction, arguing that deployment and operation of a vessel along an established ferry route is not an "action" as that term is defined in WAC 197-11-704 for purposes of SEPA.The State also asked the court to balance the equities and competing interests of the parties before granting even a temporary injunction.

The trial court conducted an evidentiary hearing on the motion for preliminary injunction on July 13-15 and July 20, 1999.Both parties submitted voluminous evidence on the issue of whether alleged changes to the shoreline of Rich Passage were the result of the operation the Chinook, as contended by the property owners, or resulted from other causes.

In its order granting a preliminary injunction, the trial court concluded "the requirements of SEPA clearly apply to the deployment and operation of the Chinook in the wave impact area."Clerk's Papers(CP)at 2644.Although the court found "[i]t is undisputed that significant erosion has occurred to certain properties in the wave impact area since the introduction of the Chinook,"CPat 2643, the court declined to find the operation of the Chinook in fact caused these changes to the shoreline along Rich Passage.Nevertheless, the court found "[t]he introduction of high-speed ferry operations in Rich Passage had at least the potential for affecting the environment,"CPat 2642, and thus concluded the State violated SEPA as no formal and public environmental analysis was done prior to the commencement of the Chinook's operations in the wave impact area.The trial court also reasoned:

Although at this time it is not entirely clear to the Court at which point the Washington State Ferry System should have made a threshold determination, nevertheless the Court holds that SEPA clearly applies to the Ferry System's placing the Chinook in service for high-speed operations.

CPat 2646-47.

The trial court rejected the argument that, in deciding whether to issue a preliminary injunction, it should consider whether the property owners had an adequate remedy at law and balance the competing interests of the property owners with those of the general public.Instead, the court reasoned:

[B]oth the caselaw and the policy underlying the Act strongly suggest that a total failure to follow the minimum requirements of SEPA in an environmentally sensitive area does not require further proof of harm or a balancing of interests.

CPat 2647.Accordingly, the trial court granted the property owners' motion for a preliminary injunction and ordered the Chinook slowed to 12 knots or less through the "wave impact area"⁵ pending full compliance with SEPA.

On August 13, 1999, the court issued its order regarding the preliminary injunction bond, requiring the property owners to post a bond of $10,000.In its memorandum opinion, the trial court concluded the State failed to present significant evidence of potential...