Maslonka v. Pub. Util. Dist. No. 1 of Pend Oreille Cnty.
| Citation | 505 P.3d 1190 |
| Decision Date | 03 March 2022 |
| Docket Number | 37747-4-III |
| Parties | Brock MASLONKA and Diane Maslonka, a Marital Community, Appellants, v. PUBLIC UTILITY DISTRICT NO. 1 OF PEND OREILLE COUNTY; and Port of Pend Oreille, Respondents. |
| Court | Court of Appeals of Washington |
Richard Todd Wetmore, Dunn & Black, P.S., 111 N Post St., Ste. 300, Spokane, WA, 99201-4911, for Appellant.
Elizabeth Ann Tellessen, Winston & Cashatt, 601 W Riverside Ave., Ste. 1900, Spokane, WA, 99201-0695, for Respondent.
PUBLISHED OPINION
Staab, J. ¶ 1 Public Utility District Number 1 (PUD) of Pend Oreille County owns and operates a dam that causes occasional flooding. Brock and Diane Maslonka own two parcels of agricultural land, one of which abuts the Pend Oreille River. The Maslonkas sued to enjoin future flooding and for compensation from past flooding. On summary judgment, the superior court declared a prescriptive easement in favor of the PUD to flood the Maslonkas’ property. It dismissed the Maslonkas’ damages claims for multiple reasons, including statute of limitations, public duty doctrine as a defense to negligence, and the subsequent purchaser rule as a defense to inverse condemnation. The Maslonkas appeal.
¶ 2 Although we conclude that a claim for prescriptive easement can be resolved on summary judgment with clear and convincing evidence, we recognize that proving the element of continuous and uninterrupted use is highly fact-specific. In this case, the PUD failed to demonstrate as a matter of law that it had continuously flooded the Maslonkas’ property up to an identified level for a specific 10-year period. For similar reasons, we conclude that the PUD failed to prove the defense of subsequent purchaser rule sufficient to bar the Maslonkas’ claim for inverse condemnation. The PUD's evidence does not clearly demonstrate that the PUD caused permanent damage to the Maslonkas’ property above the express easement prior to 1993 when the Maslonkas purchased their property.
¶ 3 We therefore reverse dismissal of the Maslonkas’ claims for inverse condemnation, trespass, and nuisance as to Parcel 2. We affirm summary judgment on all claims related to Parcel 1 on the alternative grounds that the Maslonkas have failed to present sufficient evidence to raise a genuine issue of material fact.
BACKGROUND
¶ 4 Brock and Diane Maslonka own 535 acres of farm and pasture land near Cusick, in central Pend Oreille County. The Maslonkas purchased the property in 1993. For purposes of this case, the parties refer to the property as Parcel 1 and Parcel 2. The following image is taken from the County's GIS1 database and is a reproduction of Clerk's Papers (CP) at 130.
¶ 5 The Pend Oreille River forms the eastern border of Parcel 2. The Maslonkas’ property abuts the river for approximately a mile. When purchasing the property in 1993, Mr. Maslonka was aware that the lower portion of Parcel 2 flooded periodically.
¶ 6 When the water is high for a day or two, it has little impact, but it has a substantial negative impact on Mr. Maslonka's farming operations when it is high for a month or two. According to Mr. Maslonka, the flooding that occurred when he purchased the property was of the former character. He contends that since about 1999, the flooding has increasingly taken on the latter character. He believes that the cause of this increased frequency and duration of flooding is the result of changes in the PUD's operations following an amendment to its license in 1999, granted by the Federal Energy Regulatory Commission (FERC). The history of that license amendment is detailed below in our discussion of the Tribal Litigation.
¶ 7 Perkins Slough runs through Parcel 1. Similar to Parcel 2, Parcel 1 has also developed a flooding problem. Mr. Maslonka believes that the cause of this flooding is a defect in diking improvements, allowing the Pend Oreille River to flow onto Parcel 1. Mr. Maslonka believes that the PUD's responsibility is to maintain these improvements in proper working order.
¶ 8 The slough's water levels are kept in check by a culvert and gate that lead to the river. The lines running diagonally through the image on the previous page are railroad tracks owned by the Port of Pend Oreille. The tracks sit atop an elevated embankment. The Perkins Slough culvert runs under this embankment and terminates at a gate installed on the river side of the embankment.
This image is the culvert gate on the river side of Perkins Slough, copied from CP at 397.
¶ 9 When the river floods its banks, the gate is closed and the railroad embankment acts as an earthen dam or dike, keeping the river from flooding Parcel 1. When the river recedes, the gate is opened and a pump is activated, allowing water to drain out of the slough and into the river. Water accumulates naturally in the slough from precipitation and the river's tributaries ( Trimble Creek); thus, the need to drain the slough.
¶ 10 The culvert was initially installed by the Idaho and Washington Northern Railroad, the predecessor of the current owner, Port of Pend Oreille. In 1909, Diking District No. 1 of Pend Oreille County installed a gate at the end of the culvert. Throughout the early 1900s, the diking improvements benefitting Perkins Slough were operated by the Diking District.2
¶ 11 In 1962, the railroad replaced the culvert. At that same time, the PUD replaced the gate and installed a pumping station. In 1963, the PUD entered an agreement with the Diking District, and the PUD assumed responsibility for both operating and maintaining the gate and pump. Absent from that document is any responsibility for maintaining the culvert, which was owned and installed by the railroad.
¶ 12 The PUD assumed responsibility for maintaining many of the diking improvements along the river because its federal "license requires that project operations not add or cause flooding in the diking districts." CP at 673. For a long time, the Diking District still operated the gate, while the PUD handled maintenance. During some periods, the Diking District operated the gate to impound water, which could then be diverted for irrigation.
¶ 13 In 2008, the PUD entered into another agreement with the Diking District. This agreement superseded the 1963 agreement. Again, this agreement obligated the PUD to maintain and operate the gate, but explicitly disclaimed any obligation for "replacement or repair to the culvert." CP at 324. The agreement details when the gate is supposed to be raised and lowered and also obligates the PUD to "use its best efforts" to accommodate any requested variances to facilitate "specific agricultural needs." CP at 324, 325. For years, Mr. Maslonka served as a commissioner on the Diking District. Mr. Maslonka signed the 2008 agreement in his capacity as a Diking District Commissioner.
¶ 14 In 2015, the Diking District voted to disband. In 2016, Pend Oreille County accepted the Diking District's vote to suspend operations. Upon disbanding, the County took over the Diking District's statutory obligations, as required by RCW 85.38.220.3
¶ 15 In 1955, the PUD completed construction of the Box Canyon Dam on the Pend Oreille River. The dam is located approximately 32 miles downriver (North) of the Maslonkas, near Ione. The dam produces about 50-55 MW4 per hour, year-round. The purpose of the dam is to generate low-cost electricity for customers.
¶ 16 Box Canyon Dam is considered a "run of the river" (ROR) dam. A dam is considered ROR if it stores little or no water. ROR dams attempt to maintain relatively similar flow rates upstream and downstream. What little water these dams do store is called pondage. Pondage allows ROR dams to balance hourly load fluctuations. While the pondage is much smaller than the reservoirs maintained by some reclamation projects, such as the Grand Coulee,5 the pondage still affects substantial acreage. According to FERC, Box Canyon's reservoir covers between 7,000 and 9,000 acres of surface area.
¶ 17 Because ROR dams store little or no water, their ability to generate electricity is subject to seasonal variations in flow rates. To firm up the supply of electricity, ROR dams are often built in conjunction with larger reservoir dams. In this instance, Albeni Falls Dam, 55.7 miles upriver (SE) from Box Canyon Dam, impounds the waters of Lake Pend Oreille. By storing water year-round, Albeni Falls is able to maintain minimum flow rates on the Pend Oreille River, which allows Box Canyon and other downriver ROR dams to generate electricity year-round.
¶ 18 The United States Army Corps of Engineers operates Albeni Falls Dam. While the PUD has no authority over Albeni Falls Dam, the dams’ operators communicate regularly, coordinating operations daily. According to FERC, it takes anywhere from 1.7 days to 34 days for water leaving Albeni Falls to reach Box Canyon, depending on velocities. The dam operators communicate so that the PUD can accurately plan how much electricity it can generate and accurately adjust its operations to stay within the parameters of its FERC license.
¶ 19 In its natural state, the Pend Oreille River's high water mark is 2028 feet above sea level.6 The dam gives the PUD the ability to raise the river's upriver high water mark significantly higher than 2028 feet. The difference between the natural high water mark and the artificial high water mark created by the dam is referred to as the dam's "backwater effect." Disregarding the high flow months (May–July), the dam causes approximately 6-8 feet of backwater.
¶ 20 In other words, during times when the river would naturally submerge lands up to 2022 feet, the dam will submerge additional land up to 2028–2030 feet.
¶ 21 However, this effect is not uniform throughout the project's boundaries (i.e., the land between the Albeni Falls Dam and Box Canyon Dam). Box Canyon Dam causes significantly higher water levels at...
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