Rains v. Washington Dept. of Fisheries, 44630

• Decision Date: 02 March 1978
• Docket Number: No. 44630,44630
• Citation: 575 P.2d 1057,89 Wn.2d 740
• Parties: George C. RAINS, Appellant, v. WASHINGTON DEPARTMENT OF FISHERIES, and Washington State Department of Game and the State of Washington, Respondents.
• Court: Washington Supreme Court

Page 740

89 Wn.2d 740

575 P.2d 1057

George C. RAINS, Appellant, v. WASHINGTON DEPARTMENT OF FISHERIES, and Washington State Department of Game and the State of Washington, Respondents.

No. 44630.

Supreme Court of Washington, En Banc.

March 2, 1978.

Niichel & Rutz, P. S., Richard Niichel, Port Angeles, for petitioner.

Slade Gorton, Atty. Gen., Earl McGimpsey, Asst. Atty. Gen., Olympia, for respondents.

HICKS, Associate Justice.

This case is certified to this court from the Court of Appeals, Division Two.

George C. Rains, appellant and plaintiff below, owns property in Clallam County through which flows Morse Creek, a nonnavigable fish-inhabited stream. He was denied a permit by the state to rechannel the bed of the creek. Thereafter the creek overflowed and damaged his property. Claiming the denial of the permit was the proximate cause of substantial damage to him, Rains brought an action against the State of Washington for negligence or, in the alternative, for inverse condemnation. The trial court granted the state a summary judgment on the negligence claim and dismissed the alternative cause for inverse condemnation on the grounds of failure to state a claim upon which relief can be granted. We affirm the trial court.

The stream bed of Morse Creek had moved over a period of several years and in its present channel the creek had started overflowing its banks during the late fall and winter. Rains conceived the idea of rechanneling the stream to its original bed where the creek crossed his property. His purpose was to prevent flood and erosion damage to his land.

On August 2, 1972, Rains applied to the Department of Fisheries and to the Department of Game (departments) for a hydraulic permit, as required by RCW 75.20.100, to "remove whole trees from creek bed, cut through 3 gravel bars that built up in last winter's flood and replace gravel to its former location & stream to its former location." Rains wished to do this work between August 15 and 17. On August 30, the departments issued a modified permit for the proposed work, but the request to realign the stream channel was denied.

Rains did the work that was authorized. He obtained a time extension on September 19 which permitted him until September 30 to complete the work. In the course of discussion with representatives of the departments, Rains was told that it was highly unlikely he would ever be allowed to realign the channel of the stream bed because of the probable harm to fish life, despite the potential of flooding to his property. When the request to return the stream to its former location was denied and he was informed it was unlikely that he would ever get a permit to rechannel Morse Creek, Rains did not demand a hearing as he could have done under RCW 34.04.090, the state's Administrative Procedure Act (APA). That was an unfortunate omission in this case.

Morse Creek overflowed its banks in December, 1972, causing extensive flood and erosion damage to Rains' property. This action for negligence or, in the alternative, for inverse condemnation followed. The creek again overflowed in January, 1974, for which a further claim of damage is made.

Rains contends the summary judgment in the negligence claim was improper because there were material facts at issue. One such "fact" was the futility of pursuing administratively an appeal of the denial to rechannel Morse Creek. Another such "fact" was the insufficiency of time to complete an appeal before the impending chum salmon run, upon which the permit denial was based. Thus, it was impossible to follow the administrative hearing procedure.

According to Rains, these "facts," when viewed in a light most favorable to him as they must be in a CR 56 proceeding, make entry of the summary judgment in favor of respondent erroneous. Ordinarily, he would be correct.

Rains cites and relies on RCW 4.92.090:

The state of Washington, whether acting in its governmental or proprietary capacity, shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation.

This statute, so clear on its face, is not as broad as it might seem. See Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965). In Evangelical, we held that the above statute did not bring within its reach all acts and omissions of government on the theory of continuing immunity for the truly discretionary acts of state officials, but liability was authorized under the statute for other executive and administrative processes sometimes characterized as "ministerial" conduct.

In this instance we do not find it necessary to categorize the state's action, for we do not reach Evangelical. Rather, we resolve this case by viewing the APA (RCW 34.04) procedures for hearing together with RCW 4.92.090 (allowing the state to be sued in tort) and we find no inconsistency in requiring a "second look", in fact, there is an apparent legislative intent to provide under RCW 34.04.090 such a "second look" before any action (direct review, or, as here, an action for damages) will be sanctioned in the courts. Therefore, we hold it to be the policy of this state that the administrative procedures for a hearing must be invoked or attempted to be invoked before liability in tort may be charged to the state for failure to issue a license or permit. There is no sound reason to permit one who may suffer damage from a possible erroneous initial administrative decision regarding a license or permit to sit back and wait until after damage has occurred and then bring an action. If utilized, RCW 34.04.090 could well eliminate erroneous decisions in many instances by its "second look" which will normally involve officials higher in the chain of command than those who made the initial decision. The question of when legal liability attaches to one's acts is a policy question. "(Legal liability) is always to be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy, and precedent. . . ."

King v. Seattle, 84 Wash.2d 239, 250, 525 P.2d 228, 235 (1974). See also W. Prosser, Torts § 42 at 244 (4th ed. 1971).

We find rationale for such a policy determination in the fact that the legislature set up the procedure between agencies and applicants. Such legislative scheme for an administrative hearing implies that any other remedy is precluded, absent such hearing, and further it can be said there was no final determination made by the departments. Consequently, no liability will attach.

The trial court based its decision on (1) failure to exhaust administrative remedies, (2) collateral estoppel, and (3) failure to avoid or mitigate damages. However, since we are affirming on the basis of policy, we do not find it necessary to discuss the trial court's grounds for its decision. Even if our decision is not based on all theories advanced by the trial court, the law is well settled that a reviewing court may affirm on any proper theory whether or not considered by the trial court in reaching its conclusion. Cheney v. Mountlake Terrace, 87 Wash.2d 338, 552 P.2d 184 (1976).

In this case, we do not wish to be understood as holding more than that utilization of RCW 34.04.090 is a threshold step which must first be taken. Thereafter, the tests of Evangelical must be met in order to come within RCW 4.92.090. In this instance, the threshold step was not taken.

The trial court was correct in its ruling on the issue of negligence.

We turn to the contention of a taking or damaging of appellant's property for public use (inverse condemnation). If there was such a taking or damaging by the state, compensation must be paid. Const. art. 1, § 16 provides:

No private property shall be taken or damaged for public or private use without just compensation having been first made The critical determination under this constitutional provision is between a "taking" and a regulation or restriction on the use of private property in the public interest, which is deemed to be a valid exercise of the police power of the state for which there is no right to compensation. It is clear that protection of fish life is a legitimate state interest and fish and game regulations have been a valid exercise of the police power ever since territorial days. Hayes v. Territory, 2 Wash.Terr. 286, 5 P. 927 (1884). But appellant asserts that the departments' denial of the rechanneling permit was not simply regulatory but amounts to a taking of his property, and that as such he is entitled to compensation. He cites Conger v. Pierce County, 116 Wash. 27, 198 P. 377 (1921), to support his position.

Discussing police power, we said in Conger at pages 35-36, 198 P. at page 380:

It is easy to understand the principles upon which the police power doctrine is based, but difficult to define in language its limitations. . . . Eminent domain takes private property for a public use, while the police power regulates its use and enjoyment, or, if it takes or damages it, it is not a taking or damaging for the public use, but to conserve the safety, morals, health, and general welfare of the public.

In Conger, the plaintiff was allowed to recover for damage to his land resulting from a governmental undertaking to straighten the Puyallup River. In doing the work, the course of the river's current was changed and it eroded the plaintiff's property. There, as in all cases that we have examined which found a taking or damaging amounting to inverse condemnation, affirmative action on the part of the government was involved. Such affirmative action was absent in this case. See Damage to private property caused by negligence of governmental agents as "taking," "damages" or "use" for public purposes, in constitutional sense, Annot., 2 A.L.R.2d 677 (1948).

We recently had occasion to consider Conger, and the issue of "public taking" in Maple Leaf Investors v State, 88 Wash.2d 726, 565 P.2d 1162 ...