Peterson v. Department of Ecology, 45471

• Citation: 92 Wn.2d 306,596 P.2d 285
• Decision Date: 14 June 1979
• Docket Number: No. 45471,45471
• Parties: , 13 ERC 1785 Lloyd A. PETERSON, Respondent, v. DEPARTMENT OF ECOLOGY, of the State of Washington, and John Arnquist, Regional Manager of the Eastern Regional Office of the Department of Ecology, Appellants.
• Court: United States State Supreme Court of Washington

Page 306

92 Wn.2d 306

596 P.2d 285, 13 ERC 1785

Lloyd A. PETERSON, Respondent, v. DEPARTMENT OF ECOLOGY, of the State of Washington, and John Arnquist, Regional Manager of the Eastern Regional Office of the Department of Ecology, Appellants.

No. 45471.

Supreme Court of Washington, En Banc.

June 14, 1979.

Slade Gorton, Atty. Gen., Charles B. Roe, Jr., Robert E. Mack, Asst. Attys. Gen., Olympia, for appellants.

Schillberg & Sorlien, Charles T. Schillberg, Moses Lake, for respondent.

WILLIAMS, Justice.

The State Department of Ecology appeals a writ of mandamus issued by the trial court ordering the department to issue a permit to respondent Peterson for the withdrawal of public ground waters. We reverse.

The complex factual and procedural history of this case can be summarized as follows:

Peterson owns property located within the boundaries of the state's Quincy Ground Water Management Subarea (Quincy Subarea). See WAC 173-124 and 173-134. In or about 1948, a previous owner, Zimmerman, dug a well on the property without a permit to do so. Zimmerman's successor, Shinn, installed a pump in 1956. Since that time, water has been withdrawn at the rate of 640 gallons per minute (g.p.m.) for the seasonal irrigation of crops. In 1973, Shinn filed a water right claim with the Department of Ecology (department) pursuant to RCW 90.14.041.

In 1974, Shinn sold the property to Peterson. Then, in January 1975, a hold was placed on the processing of applications for the use of public ground waters in the Quincy Subarea by the department pending further investigation of water availability. In February 1975, Peterson filed with the department two applications involving the use of water. One was for a permit to use artificially stored ground water pursuant to WAC 173-136 and the other was for a permit to withdraw public ground waters pursuant to RCW 90.44.050. The department returned the applications with notice that (1) the application for natural ground water must be resubmitted to obtain a priority date, and (2) no permits would be issued by the department pending further study of the Quincy Subarea. Peterson resubmitted the application for a permit to appropriate public ground water, and the department gave him a priority date of January 23, 1976. No action was taken on either of the applications by the department.

In 1977, the department issued a cease and desist order, as authorized by RCW 43.27A.190, which prohibited Peterson from making any further withdrawals from the well in excess of the amounts exempt under RCW 90.44.050 without a permit. Peterson filed an appeal of the order with the Pollution Control Hearings Board (PCHB). The notice of appeal, however, went beyond the question of whether Peterson was withdrawing water without a permit in violation of RCW 90.44.050. It also raised the issues of the propriety of the priority date assigned to the application, the validity of the department's finding that ground water was in short supply, and the due process afforded Peterson. An amended notice of appeal raised the additional questions of the effect of a water right claim filed under RCW 90.14, prescriptive rights, unconstitutional taking, and the department's abuse of discretion. In short, the appeal of the cease and desist order raised those issues germane to the question of whether the department had unlawfully failed to issue Peterson a permit to withdraw ground waters.

A prehearing conference was held in July 1977 with attorneys for Peterson and the department. The prehearing conference report contained the following provisions:

I. CONTENTIONS

Appellant Peterson will rely at the formal hearing on the factual and legal contentions set forth in his Appeal of Order (filed February 16, 1977) and Amended Notice of Appeal of Order (dated March 15, 1977) . . .

IV. ACTION OF PRESIDING OFFICER

1. Issues, exhibits, and witnesses at the hearing on the merits will be limited to those identified herein, . . .

A formal hearing for the appeal of the cease and desist order was held before the PCHB. The chairman of the board stated at the outset that he would allow Peterson to present testimony beyond the scope of the issue of the lawfulness of the cease and desist order, not because he was convinced that it was dispositive of the issues of this case but "to preserve a record for him and to avoid a piecemeal determination of this matter perhaps at another time by another body." Peterson then presented testimony and argument with regard to the merits of the permit application.

The board issued findings of fact and conclusions of law and an order. In conclusion of law 5, the PCHB stated:

Appellant has failed to successfully challenge the issuance of the Cease and Desist Order and it will be affirmed. Further, The Board concludes that it has no jurisdiction to compel the Department of Ecology to process an application for a ground water permit. A hearing before this Board of an appeal which challenges the validity of the Department's Cease and Desist Order does not open up, nor confer original jurisdiction upon the Board to determine, the merits of an application for a water right which has not yet been acted upon by the Department. Only in Superior Court will a Writ of Mandamus properly lie to compel the exercise of discretion.

(Footnote omitted.)

Despite this conclusion, the PCHB stated in its finding of fact 4 that "(i)n summary, there would appear to be ground water available for appropriation by Mr. Peterson." The board further refused to consider the water right claim filed in 1973 as an application for a permit, but it changed Peterson's priority date from January 23, 1976 to February 14, 1975, the date he originally filed his application for the permits.

Peterson appealed to the Superior Court for Grant County for a review of one issue only: the PCHB's refusal to treat Shinn's water right claim under RCW 90.14.041 as an application for a permit which would result in his receiving an earlier priority date. In his appeal he did not challenge conclusion of law 5, in which the board stated that in this particular action it had no jurisdiction to determine the merits of the permit application or to compel the department to process an application for a ground water permit. At the same time that he filed his appeal, Peterson filed in a separate action in the same court an alternative petition for mandamus to order the department to issue a permit for the use of public ground water. Peterson, on an ex parte order, had the record of the Pollution Control Hearings Board appeal transferred to the mandamus cause. It is the mandamus action that is presently before this court.

In its defense in the mandamus action, the State answered by admitting certain allegations, denying others, and asserting 10 affirmative defenses. At trial, the court allowed no evidence to be presented. Counsel were allowed to argue the evidence introduced at the PCHB hearing as well as the findings of that board. At the conclusion of arguments, the trial court judge announced his intention to issue the writ of mandamus directing the department to grant Peterson a permit. He based his decision in part on the PCHB's finding that there appeared to be ground water available for appropriation. The department's motion for reconsideration was denied and the writ of mandamus was issued.

On appeal, the department contends that the trial court erred in refusing to take evidence in the mandamus action and in basing his decision on the PCHB's findings in the appeal of the department's cease and desist order. We agree with these contentions.

The Superior Court Civil Rules apply to all civil actions, including mandamus proceedings. Chief Seattle Properties, Inc. v. Kitsap County, 86 Wash.2d 7, 541 P.2d 699 (1975). An application for a writ of mandamus has all the elements of a civil action. Chief Seattle Properties; State ex rel. Amende v. Bremerton, 33 Wash.2d 321, 205 P.2d 1212 (1949). If issues of fact are raised, they may be tried before the court or a jury, and an appropriate judgment may be entered upon the verdict or findings. Amende; State ex rel. Ryder v. Pasco, 3 Wash.App. 928, 478 P.2d 262 (1970). The department argues that it raised in its answer a number of factual issues, including that of whether public ground water was available. The department therefore concludes that it was entitled to introduce evidence on this point at the trial.

Peterson contends that the department was not entitled to give testimony because the answer raised only questions of law, the facts having been determined by the PCHB. RCW 7.16.250 provides, in part, that:

If the answer raises only questions of law, or puts in issue immaterial statements not affecting the substantial rights of the party, the court must proceed to hear or fix a day for hearing the argument of the case.

Peterson claims that the department answer raised only one valid question of fact, I. e., of the availability of public ground water. He argues that the PCHB's finding of fact 4 collaterally estopped the department from denying that public ground water is available for appropriation at the Peterson site. The department argues that the application of the doctrine of collateral estoppel was not appropriate in this case. We find the department to be correct on this point.

An order or determination of an administrative body acting with jurisdiction and under authority of law is not subject to collateral attack in the absence of fraud or bad faith. Charles Pankow, Inc. v. Holman Properties, Inc., 13 Wash.App. 537, 536 P.2d 28 (1975). See Knestis v. Unemployment Compensation and Placement Div., 16 Wash.2d 577, 134 P.2d 76 (1943).

The doctrine of collateral estoppel precludes parties from relitigating issues which have been actually and necessarily contested and determined in prior actions between the same parties. Haslund v. Seattle, 86 Wash.2d 607, 547 P.2d 1221 (1976); King v. Seattle, ...