Miotke v. City of Spokane

• Decision Date: 15 March 1984
• Docket Number: No. 49448-7,49448-7
• Citation: 101 Wn.2d 307,678 P.2d 803
• Court: Washington Supreme Court
• Parties: , 21 ERC 1171 Leonard J. MIOTKE and Lovetta Miotke; Delford and Marianne Phillips; and Robert and Byrdella Eisenbarth, Spokane County Residents, Donald and Carol Squires; Leroy and Pearl Thom; Harold M. and Lillian R. Clausen; James A. and Marjorie F. Schasre; John H. and Lucille J. Cline; and John E. and Opal D. Dechenne, Stevens County Residents, as CR 19(a) Party Plaintiffs, The Lake Spokane Environmental Association, a non-profit corporation on behalf of itself and its members who are residents of Spokane and Stevens County, as CR 19(a) Party Plaintiffs, Respondents, v. CITY OF SPOKANE; the State Department of Ecology; and Hoffman Construction Company, as CR 19(a) Party Defendants, Appellants.

Page 307

101 Wn.2d 307

678 P.2d 803, 21 ERC 1171

Leonard J. MIOTKE and Lovetta Miotke; Delford and Marianne

Phillips; and Robert and Byrdella Eisenbarth,

Spokane County Residents,

Donald and Carol Squires; Leroy and Pearl Thom; Harold M.

and Lillian R. Clausen; James A. and Marjorie F. Schasre;

John H. and Lucille J. Cline; and John E. and Opal D.

Dechenne, Stevens County Residents, as CR 19(a) Party Plaintiffs,

The Lake Spokane Environmental Association, a non-profit

corporation on behalf of itself and its members

who are residents of Spokane and Stevens

County, as CR 19(a) Party Plaintiffs, Respondents, v. CITY OF SPOKANE; the State Department of Ecology; and Hoffman Construction Company, as CR 19(a) Party

Defendants, Appellants.

No. 49448-7.

Supreme Court of Washington,

En Banc.

March 15, 1984.

James Sloane, Corp. Counsel, Robert Beaumier, Patrick Dalton, Spokane, Kenneth Eikenberry, Atty. Gen., Charles Lean, Charles Roe, Robert Jensen, Asst. Attys. Gen., Olympia, for appellants.

Maxey Law Office, Carl Maxey, Spokane, Mark Bennett, Edmonds, Professor Michael McClintock, Spokane, for respondents.

PEARSON, Justice.

This appeal arises from litigation which followed the discharge of raw sewage into the Spokane River. The trial court awarded plaintiffs, the owners of waterfront property, a total of $245,000 in damages and $88,500 in attorney fees. Defendants, the City of Spokane and the Department of Ecology, appealed the awards of both damages and attorney fees, and plaintiffs cross-appealed, seeking increased damages and attorney fees.

This case raises a plethora of issues, many of them novel, at least in this jurisdiction. Stated simply, however, the most important question raised by the appeal is whether any cause of action lies against governmental units for injuries allegedly caused by their actions taken in violation of various environmental laws. We hold in this case that discharging raw sewage into the Spokane River in violation of a waste disposal permit is a wrongful act which gives rise to an action for nuisance. We affirm the trial court's award of damages for injuries sustained by plaintiffs and recoverable under a nuisance theory.

In further holdings, we reject plaintiffs' argument that violations of the State Environmental Policy Act of 1971 (SEPA) give rise to an additional action in damages for infringement of plaintiffs' fundamental and inalienable right to a healthful environment; we reject defendants' arguments that plaintiffs' actions are precluded by the doctrine of eminent domain, by the discretionary nature of the decision to discharge the sewage into the Spokane River, or by the tort claims statute (RCW 4.92.110); and finally, we adopt the "private attorney general" theory and affirm the trial court's award of attorney fees for the injunctive phase of the litigation.

Plaintiffs are the owners of lakefront properties below a dam on the Spokane River. They filed suit against defendants in December 1975, after untreated sewage was discharged in October 1975 into the Spokane River during construction of a new sewage treatment facility for the City of Spokane. Plaintiffs requested an injunction against future dumping of untreated sewage into the river, and damages for injuries allegedly resulting from the October 1975 discharge.

Over the subsequent years, three distinct phases of litigation took place. The first phase comprised the trial court's determination of whether the injunction should issue and whether defendants were liable in damages to plaintiffs. A hearing on these issues was held in December 1976. The trial court, on January 31, 1977, issued an order enjoining further bypasses of untreated sewage, and on April 4, 1978, entered 47 findings of fact and 38 conclusions of law. The gist of these findings and conclusions was that defendants were liable in damages to plaintiffs.

The second phase of litigation was concerned principally with a single factual issue: whether algae blooms in 1976, 1977, and 1978 were caused by the 1975 bypass of untreated sewage into the Spokane River. On July 20, 1979, the trial court in a memorandum opinion concluded that the algae blooms were not caused by the 1975 bypass. No appeal is taken from this phase of the case.

The third phase of the litigation was the determination of damages. The trial court heard evidence from plaintiffs and several expert witnesses. On May 23, 1980, in a memorandum opinion, the trial court awarded the 11 plaintiff married couples a total of $245,000 damages, together with $88,500 in attorney fees, for phase 1 of the litigation, and $37,096.05 costs. Formal findings of fact and conclusions of law were entered on November 2, 1980, incorporating the substance of the memorandum opinion. These findings and conclusions were set forth as a numerical continuation of those of April 4, 1978, and made a total of 82 findings and 59 conclusions.

In this appeal and cross appeal, the parties raise issues relating to virtually every aspect of this protracted and complex litigation. Many of the trial court's findings of fact are disputed by the parties, and there are challenges to the sufficiency of the evidence supporting the trial court's conclusions. It is, therefore, necessary to consider in some detail the facts of this case.

The facts may conveniently be grouped as follows: first, the circumstances giving rise to the construction of the new sewage facility in Spokane; second, the events leading up to the bypass itself; third, the procedural background to the first phase of the litigation, and the immediate results of that litigation; fourth, the facts relevant to the second (algae bloom) phase of the litigation; and finally, the testimony and other evidence on which the trial court based its decisions on the third phase of the litigation.

We begin with a brief review of the background to the 1975 bypass.

Spokane's sewer system was established in 1890, and has been expanded significantly since that time. The original system was a combination sewage and stormwater system, designed to collect both sanitary sewage and stormwater, and discharge it directly into the Spokane River. The discharge of raw, untreated sewage into the Spokane River resulted in substantial pollution of both the river and two artificial lakes created by concrete dams on the river: Nine Mile Reservoir and Long Lake.

The City's first sewage treatment plant was completed in 1958 and expanded in 1962. This was a primary treatment plant in which solid matter was allowed to settle out of the raw sewage in large settling basins. The solid matter was then disposed of in sanitary landfills and the liquid sewage (effluent) was released into the river after being treated with chlorine. This process removed approximately 50 percent of the suspended solids, 50 percent of the biochemical oxygen demand, and 99 percent of the fecal coliform bacteria from the sewage prior to its being released into the river.

The primary treatment plant had sufficient hydraulic capacity to handle a maximum flow rate of about 60 million gallons per day, (60 MGD). In dry weather, the average daily output of sewage was only 30 MGD. During times of rainfall or snowmelt, however, the capacity of the plant was often exceeded. At such times of excess flow, the treatment plant was bypassed to protect it from flooding and destruction, and raw sewage diluted with stormwater was discharged directly into the Spokane River. Approximately 1.1 billion gallons of combined stormwater and sanitary sewage each year was bypassed directly into the river in such circumstances.

In 1967, the predecessor agency to the Department of Ecology, the Washington Water Pollution Control Commission, adopted water quality standards. The classifications applied to the Spokane River and Long Lake are "Class A" and "Lake Class" respectively. WAC 173-201-080(95); WAC 173-201-070(4). The DOE, which was created in 1970 (RCW 43.21A), determined that the Spokane River and Long Lake failed to meet these water quality standards because the level of sewage treatment provided by the City of Spokane's primary treatment plant was inadequate. On March 28, 1973, the DOE ordered the City to modify the sewage treatment plant by June 30, 1976. The City, through its engineering consultant, Bovay Engineers, determined that the most cost effective measure available was to convert the primary treatment plant into a secondary treatment plant on the same site as the existing plant. A secondary treatment plant uses living organisms to break down the sewage and remove pollution, in addition to the physical and chemical processes used in primary treatment. The proposed new plant was also designed to remove phosphorus from the sewage. This was intended to limit algae growth in the waters of the Spokane River, phosphorus being a nutrient of algae. Seventy-five percent of the funding for the new plant was provided by a grant from the United States Environmental Protection Agency (EPA).

The City was required by the National Environmental Policy Act of 1969 (NEPA) and by the State Environmental Policy Act (SEPA) to submit environmental assessment statements to the EPA and to the DOE. A draft statement was prepared in June 1973, public hearings were conducted in July 1973, and the final environmental assessment was submitted to the EPA and DOE in September 1973. The final assessment recognized that the treatment plant might have to be bypassed during reconstruction of the headworks of the treatment plant, but declared that such a bypass would occur during maximum high water, when the assimilative capacity of the river is at its peak.

On January 2, 1974, the City of Spokane filed with the EPA and the DOE a declaration that the sewage plant modification was not a "major action significantly affecting the quality of the environment". The EPA issued its negative declaration on June 10, 1974.

The next step was the granting of a Waste...