Pub. Util. Dist. No. 1 of Okanogan Cnty., Corp. v. State

• Decision Date: 29 January 2015
• Docket Number: No. 88949–0.
• Citation: Pub. Util. Dist. No. 1 of Okanogan Cnty., Corp. v. State, 342 P.3d 308, 182 Wash.2d 519 (Wash. 2015)
• Parties: PUBLIC UTILITY DISTRICT NO. 1 OF OKANOGAN COUNTY, a municipal corporation, Petitioner/Cross–Appellant, v. STATE of Washington, Peter Goldmark, Commissioner of Public Lands, Petitioner/Cross–Respondent, and Conservation Northwest, a nonprofit corporation, Petitioner/Cross–Respondent, and Christine Davis, a single person, Trevor Kelpman, a single person, Dan Gebbers and Reba Gebbers, husband and wife, and William C. Weaver, custodian for Christopher C. Weaver, a minor, Respondents.
• Court: Washington Supreme Court

182 Wash.2d 519

342 P.3d 308

PUBLIC UTILITY DISTRICT NO. 1 OF OKANOGAN COUNTY, a municipal corporation, Petitioner/Cross–Appellant

v. STATE of Washington, Peter Goldmark, Commissioner of Public Lands, Petitioner/Cross–RespondentandConservation Northwest, a nonprofit corporation, Petitioner/Cross–RespondentandChristine Davis, a single person, Trevor Kelpman, a single person, Dan Gebbers and Reba Gebbers, husband and wife, and William C. Weaver, custodian for Christopher C. Weaver, a minor, Respondents.

No. 88949–0.

Supreme Court of Washington, En Banc.

Jan. 29, 2015.

Paul J. Lawrence, Sarah Christine Johnson, Pacifica Law Group LLP, Seattle, WA, for Petitioners.

P. Stephen DiJulio, Adrian Urquhart Winder, Foster Pepper PLLC, Seattle, WA, Michael D. Howe, Attorney at Law, Omak, WA, Michael S. Schechter, Alaska Department of Law–Civil Div., Anchorage, AK, for Respondents.

Elizabeth Ann Pauli, Attorney at Law, William Cody Fosre, Tacoma City Attorney's Office, Tacoma, WA, Peter Samuel Holmes, City of Seattle Law Department, Kelly Nicole Stone, Seattle City Attorney's Office, Seattle, WA, Amicus Curiae on behalf of Cities of Tacoma and Seattle.

Eric Christensen, Cairncross & Hempelmann, P.S., Seattle, WA, Amicus Curiae on behalf of Washington Public Utitlity Districts Assoc, Washington Rural Electric Cooperative Assoc, Public Utility Dist No. 1 of Snohomish County.

Philip Albert Talmadge, Talmadge/Fitzpatrick, Seattle, WA, Amicus Curiae on behalf of Western States Land Commissioners Assoc.

David Scott Mann, Gendler & Mann LLP, Seattle, WA, for Other Parties.

Opinion

STEPHENS, J.

¶ 1 This case arises from the protracted history between Public Utility District No. 1 of Okanogan County (PUD) and the Department of Natural Resources (DNR)¹ over the installation of an electrical transmission line through school lands managed by DNR in the Methow Valley. At issue is whether PUD is statutorily authorized to condemn a right of way through school trust lands for the construction of a transmission corridor and, if so, whether the particular school lands are nonetheless exempt from condemnation as a result of their trust status as school lands or present use for cattle grazing. The trial court and Court of Appeals concluded that PUD is statutorily authorized to condemn school lands and that the particular school lands at issue are subject to condemnation. We affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2 PUD is a nonprofit, public utility district tasked with the conservation of the state's water and power resources and the supply of public utility services to residents in Okanogan County. SeeLaws of 1931, ch. 1, § 1. To supply electricity to the region, PUD operates a high voltage transmission line connecting Twisp, Okanogan, and Pateros (the Loup–Loup line) and a lower voltage distribution line from Pateros to Twisp (the Methow–Valley Floor line). The existing system has long experienced reliability, capacity, and line loss problems. Gebbers v. Okanogan County Pub. Util. Dist. No. 1, 144 Wash.App. 371, 375, 183 P.3d 324 (2008). As a result, residents have suffered excessive and costly line losses and frequent power outages. Id. These problems are expected to increase as the service population in that region grows. Id.

¶ 3 In 1996, PUD proposed the installation of a new higher capacity transmission line from Pateros to Twisp that would ran roughly parallel to the existing Methow–Valley Floor line. Progress on the project slowed when PUD was required to conduct an extensive environmental impact study (EIS). In 2003, PUD and the United States Forest Service (USFS) held a public scoping period, encouraging members of the public, environmental groups, and governmental agencies to assist them in identifying areas of public concern. In 2004, PUD and the USFS released a scoping report. The report identified 15 alternatives, but only 6 alternatives and a no-action alternative were ultimately approved for detailed consideration in light of the project's objectives.² In January 2005, PUD released an extensive draft EIS report describing the viability of each alternative and its anticipated impact on air and soil quality, erosion, vegetation, fish, and wildlife. Id. at 376, 183 P.3d 324. PUD thereafter held several public hearings and meetings and responded to over 400 letters submitted during the comment period. Id.

¶ 4 In February 2006, PUD indicated its preferred plan was “Alternative 2,” which involved the installation of a new transmission line from Pateros to Twisp (the Pateros–Twisp line). Id. at 376–77, 183 P.3d 324. The Pateros–Twisp line meets all of the project's objectives, provides a secondary backup power source for the area, and is significantly less expensive than simply upgrading the existing Loup–Loup line. Id. at 377–78, 183 P.3d 324. The Pateros–Twisp line is a modified version of the original 1996 plan. Methow Transmission Project Summary: Final Envtl. Impact Statement at S–6 (Mar.2006), https://www.okanoganpud.org/sites/default/files/pdfs/environ-mental_ generation/methow_transmission/feis/Summary.pdf. The principal change eliminated all permanent road construction, requiring PUD to use temporary track roads, hand-dig holes, and deliver structures by helicopter. Id.

¶ 5 Installation of the Pateros–Twisp line requires PUD to obtain an 11.6–mile easement across school lands managed by DNR. Br. of Resp't PUD—PUD Statutory Condemnation Auth. at 7–8. These lands were granted to the state in trust for the people and for the support of a common school fund. They comprise a portion of the largest publicly owned tract of shrub-steppe habitat in the Methow Valley. Appellant/Cross–Resp't Conservation Northwest's Suppl. Br. at 1. The lands are currently leased for cattle grazing and generate approximately $3,000 of annual income for the benefit of Washington schools. Clerk's Papers (CP) at 232, 252, 273, 298, 319. The grazing leases expressly recognize that they are subject to the easement rights of others and provide remedies in the event that all or part of the land is condemned by a public authority. See, e.g., id. at 233, 240.

¶ 6 PUD released a final EIS report on March 7, 2006, indicating its preference for Alternative 2. Gebbers, 144 Wash.App. at 376, 183 P.3d 324. The PUD commissioners officially selected Alternative 2 for the project later that month. Id. Various citizen groups subsequently filed suit challenging the sufficiency of the EIS report under the State Environmental Policy Act, chapter 43.21C RCW, and the prudence of the commissioners' selection. 144 Wash.App. at 378–79, 183 P.3d 324. The trial court dismissed these challenges, and the Court of Appeals affirmed. Id. at 393, 183 P.3d 324. We denied review. Gebbers v. Okanogan County Pub. Util. Dist. No. 1, 165 Wash.2d 1004, 198 P.3d 511 (2008).

¶ 7 While the EIS challenges were pending, PUD applied for the necessary easements through the school lands using DNR's easement application process. CP at 125–26. Between May 2007 and February 2010, PUD and DNR communicated extensively about the proposed easements. Id. PUD submitted a formal application in October 2008 and was told the application would take approximately two to three months to process. Id. at 126. PUD's application has been pending now for over five years. PUD Answer to Amicus Curiae Br. of Western States Land Comm'rs Ass'n at 16. And, approximately 18 years have passed since the project was proposed in 1996.

¶ 8 In 2010, PUD filed a petition to condemn the necessary easements for the project. Prior to condemnation hearing on public use and necessity, Conservation Northwest (CNW), a group engaged in conservation activities, moved to intervene. CP at 594–606. DNR objected. The trial court granted CNW limited intervention to address the scope of PUD's condemnation authority. Id. at 506–08. CNW and DNR filed separate motions for summary judgment, arguing PUD does not have the authority to condemn the subject school lands given their trust status and present use as grazing land. Id. at 460–505. The trial court denied CNW's and DNR's motions and granted summary judgment in favor of PUD, concluding PUD has the authority to condemn the subject school lands. Id. at 22–24.³

¶ 9 The Court of Appeals affirmed the trial court's determination that PUD has the authority to condemn the relevant school lands, but did not address the propriety of CNW's intervention. Pub. Util. Dist. No. 1 of Okanogan County v. State, 174 Wash.App. 793, 301 P.3d 472 (2013). The court held that the subject school lands were not exempt from condemnation because they were not dedicated to a public use by virtue of their trust status or reserved for a particular purpose in light of their grazing leases. Id. at 802–07, 301 P.3d 472. Additionally, the court held that even if the lands were devoted to a public use or reserved for a particular purpose, PUD could still condemn an easement through them because PUD's proposed use is compatible with DNR's present use. Id. at 807–08, 301 P.3d 472.

¶ 10 DNR petitioned for review on the issue of condemnation, and PUD sought cross review on the issue of intervention. We granted review. Pub. Util. Dist. No. 1 of Okanogan County v. State, 178 Wash.2d 1025, 312 P.3d 652 (2013).

ANALYSIS

I. Limited Intervention of Conservation Northwest

¶ 11 The trial court granted CNW limited intervention under CR 24 to address whether PUD has the authority to condemn school lands. As a threshold matter, PUD contends that CNW's intervention in this case is contrary to law. PUD argues that RCW 8.12.120 supersedes CR 24 and allows only those with compensable land interests (i.e., those with real property interests) to be parties in a condemnation proceeding. Alternatively, PUD argues that the trial court's CR 24 analysis was in error. We disagree.

A. RCW 8.12.120 Does Not Prohibit Intervention by Those Challenging a Condemnor's Authority to Condemn Certain Property

¶ 12 Chapter 8.12 of the Revised Code of Washington sets out the process of...