Maslonka v. Pub. Util. Dist. No. 1 of Pend Oreille Cnty.

• Docket Number: 101241-1
• Decision Date: 03 August 2023
• Parties: BROCK MASLONKA and DIANE MASLONKA, a marital community, Respondents, v. PUBLIC UTILITY DISTRICT NO. 1 OF PEND OREILLE COUNTY and PORT OF PEND OREILLE, Petitioners.
• Court: Washington Supreme Court

1

BROCK MASLONKA and DIANE MASLONKA, a marital community, Respondents,
v.
PUBLIC UTILITY DISTRICT NO. 1 OF PEND OREILLE COUNTY and PORT OF PEND OREILLE, Petitioners.

No. 101241-1

Supreme Court of Washington, En Banc

August 3, 2023

OWENS, J.

Eminent domain principles apply when a governmental entity takes or damages private property for public use. If a taking occurs without the formal exercise of eminent domain, a landowner may file an inverse condemnation claim to recover the loss of property value. The right to inverse condemnation belongs to the property owner at the time of the taking; the right does not pass to a subsequent purchaser unless expressly conveyed.

In 1993, respondents Brock and Diane Maslonka purchased land bordering the Pend Oreille River. The Pend Oreille Public Utility District (PUD) constructed a dam

2

on the river in 1955. The PUD operates the dam, raising and lowering the water levels based on seasonal flow. The previous owners informed the Maslonkas that the land occasionally floods.

In 2016, the Maslonkas sued the PUD, alleging its operation of the dam entitled them to damages based on inverse condemnation, trespass, nuisance, and negligence. The trial court found the subsequent purchaser rule barred the inverse condemnation claim, and that the PUD established a prescriptive easement barring the trespass and nuisance claims. The Court of Appeals reversed, holding that the PUD could not benefit from the subsequent purchaser rule because it failed to prove its conduct constituted a taking prior to the Maslonkas' purchase. The Court of Appeals also rejected the PUD's alternative argument that the Maslonkas could not bring their tort claims alongside their inverse condemnation claim.

This case asks us to decide who bears the burden of proving whether the "subsequent purchaser rule" applies; in other words, whether the rule is a doctrine of standing or an affirmative defense. Also at issue is whether an inverse condemnation claimant who is barred by the subsequent purchaser rule may nonetheless pursue tort claims based on the same alleged governmental conduct.

We hold that an inverse condemnation claimant must show that the subsequent purchaser rule does not bar their suit. It is a doctrine of standing in that it limits who may bring a claim; it is not a defense that must be proved by the government. We

3

also hold that an inverse condemnation claimant who is barred from suit by the subsequent purchaser rule has no viable tort claim if the tort is based on the same governmental conduct. Accordingly, we reverse the Court of Appeals and remand for the trial court to reinstate its summary judgment orders.

FACTS

Box Canyon Hydroelectric Project

The Box Canyon Hydroelectric Project is a run-of-river^[1] facility located on the Pend Oreille River in northeastern Washington. Clerk's Papers (CP) at 74. The Box Canyon Dam was built in 1955 to generate low-cost electricity for customers and is owned and operated by the PUD. Id. The dam's turbine and spillway gates control the water surface elevation of the river. Id. at 75. The level of the gates affects the backwater, which is the difference in surface elevation between the natural water (without the dam) and the raised water (caused by the dam). Id. Generally, the PUD raises the gates when the river flowrate increases and lowers the gates when the flowrate decreases. Id. Before the dam was constructed, the natural high-water elevation at the Cusick Gage^[2] was 2,028.0 feet above sea level, id. at 12; it is now 2,030.6 feet above sea level, id. at 75.

4

The PUD operates the dam within the constraints of its Federal Energy Regulatory Commission (FERC) license. Id. at 74. As they now stand, the first constraint requires that the water surface level at the Cusick Gage not exceed elevation 2,041 feet. Id. at 75. The second requires that the backwater below Albeni Falls Dam (which regulates the upstream flow to the dam) not exceed 2 feet above natural levels. Id. The third requires the drawdown not to exceed three 3 per hour. Id. at 99, 203. To comply with its operational parameters, the PUD monitors the river's elevation and adjusts the gates on a daily and sometimes hourly basis. Id. at 1630-32.

The dam's FERC license has been amended several times since its issuance. A 1963 amendment allowed 2 feet rather than 1 foot of backwater at Albeni Falls Dam. Id. at 78-79. A 1999 amendment, which incorporated a settlement between the PUD and the Kalispel Tribe, "include[d] in the project boundary the full extent of the lands inundated by the project reservoir" up to elevation 2,041 feet. Id. at 199-200, 654-61, 666-69. The "lands inundated" include the Maslonkas' property up to elevation 2,041 feet. Id. at 205. The order approving the amendment recognizes that under the proposed changes, "the project would continue operating as it has under the 1963 license amendment." Id. at 669. In expanding the project boundary, FERC acknowledged that a denial of the amendment "would likely force the PUD to change project operations so that waters from the Box Canyon reservoir did not rise above

5

elevation 2028 [feet] at Cusick, except at times when water would be that high naturally." Id. at 670. A 2005 amendment imposed the drawdown rate of 3 inches per hour, which requires the spillway gates to be raised or lowered gradually. Id. at 99, 203.

In addition to the license amendments, the PUD updated its equipment and gate hoists in 2015. Id. at 102. "Neither of these projects, separately or combined, has changed how the Box Canyon Project affects water levels in the Pend Oreille River." Id.

The Maslonkas' property

In July 1993, the Maslonkas bought 535 acres of pastureland bordering the Pend Oreille River from Herbert and Evelyn Cordes. Id. at 127, 420. The property is upstream of the Box Canyon Dam and downstream of Albeni Falls Dam. Id. at 486. Prior to the sale, Cordes and the Maslonkas discussed the flood hazards on the property. Id. at 880-81. Specifically, Cordes informed them that the lower part of the river flooded periodically, in "abnormally wet years or high water years." Id. at 15355, 159-60.

When the dam was constructed, the Maslonkas' predecessors in interest (J. Lester and Florine Sullivan) sold express easements to the PUD. Id. at 328-33. The easements, recorded in 1955 and 1960, allow the PUD to "intermittently or continuously overflow, flood and submerge, or to damage by wash, erosion,

6

sloughage, seepage, inundation, or other cause," the land with water from the river "in the construction, operation and maintenance" of the dam. Id. at 328. The easements cover the majority of the flooding caused by the river and dam up to elevation 2,041.0 feet. Id. at 1412. When the river's flow rate exceeds 90,000 cubic feet per second, which occurs seasonally due to snow melt, the PUD lifts all the gates and the river floods above elevation 2,041.0 feet as if there were no dam in place. Id. at 75-76, 116. When this happens, the river's elevation surpasses the PUD's express easements. Verbatim Tr. of Proc. (VTP) (July 16, 2019) at 60; CP at 75-76, 1235. Since 1955, the river has flooded above elevation 2,035.5 feet about 12 percent of the year. CP at 75-80. The flooding erodes the shoreline and causes related property damage; these damages form the basis of these proceedings.

Procedure

In December 2016, the Maslonkas filed a complaint against the PUD for (1)...