Rettkowski v. Department of Ecology

• Decision Date: 01 February 1996
• Docket Number: No. 62718-5,62718-5
• Citation: 128 Wn.2d 508,910 P.2d 462
• Court: Washington Supreme Court
• Parties: Craig RETTKOWSKI and Gale Rettkowski; Patrick Quirk; Richard Quirk; Richard Dreger, Dale Dreger and Dean Dreger; Merwin and Elaine Houger; Everett Cole; Herman F. Rux, Jr.; Rux Farms; and Wilbur Security, Inc., Petitioners, August and Randy Dreger; William Dreger; and John C. Watson, Defendants, v. The DEPARTMENT OF ECOLOGY, Respondent, William F. Rosman; John Rosman; Clarence Wagner; Keith Nelson; Robert J. Bauer; Robert Rosman; James F. Rosman; Pollution Control Hearings Board; and Sinking Creek Surface Water Project, Defendants.

Page 508

128 Wn.2d 508

910 P.2d 462

Craig RETTKOWSKI and Gale Rettkowski; Patrick Quirk Richard Quirk; Richard Dreger, Dale Dreger and Dean Dreger Merwin and Elaine Houger; Everett Cole; Herman F. Rux Jr.; Rux Farms; and Wilbur Security, Inc., Petitioners August and Randy Dreger; William Dreger; and John C. Watson, Defendants, v. The DEPARTMENT OF ECOLOGY, Respondent, William F. Rosman; John Rosman; Clarence Wagner; Keith Nelson; Robert J. Bauer; Robert Rosman; James F. Rosman; Pollution Control Hearings Board; and Sinking Creek Surface Water Project, Defendants.

No. 62718-5.

Supreme Court of Washington, En Banc.

Feb. 1, 1996.

Stephen Eugster, Spokane, Grant D. Parker, Missoula, MT, Christine Gregoire, Attorney General, Richard Heath, Asst. Atty. Gen., Olympia, Huppin, Ewing, Anderson & Paul, Joseph Nappi, Jr., Spokane, for Defendants.

Cutler & Nylander, Robert Nylander, Jr., Seattle, Paine, Hamblen, Coffin & Brooke, John Riseborough, Simon Collins, Spokane, Robert Dellwo, Spokane, Kraft, Kimbrough & Ganz, Charles Kimbrough, Bellevue, Bohrnsen & Owen, Andrew Bohrnsen, Spokane, for Petitioners.

Christine Gregoire, Attorney General, Deborah Mull and Philip McDonald, Asst. Attys. Gen., Olympia, for Respondent.

JOHNSON, Justice.

The Department of Ecology

Department) petitioned for review of a Court of Appeals decision allowing for an award of attorneys' fees to several aggrieved eastern Washington irrigation farmers (Irrigators). The Irrigators cross-petitioned for review of the part of the decision remanding the case to determine whether the Irrigators had demonstrated an injury distinct from incurring attorneys' fees. We accepted both petitions for review and find (1) RCW 90.14.190 does allow for an award of attorneys' fees in this case, and (2) the Irrigators were injured by the Department, supporting an award of damages under RCW 90.14.190. The Court of Appeals is affirmed in part and reversed in part.

FACTS

In 1990, the Department ordered several irrigation farmers in Adams County to cease and desist pumping groundwater from the Sinking Creek basin. The orders were issued after several cattle ranchers in the basin complained the surface water was drying up due to the Irrigators' pumping of ground water. ¹ After the ranchers complained, the Department determined the Sinking Creek basin no longer could support all the demands for water made by its registered users. Because the Department determined the cattle ranchers had senior water rights, it ordered the Irrigators to cease and desist pumping groundwater.

The Irrigators filed an action challenging the orders before the Pollution Control Hearings Board (PCHB) and filed a motion to quash the orders. The Irrigators argued the Department had illegally conducted an adjudication of water rights contrary to the procedures set forth in RCW 90.03.110-.240 and RCW 90.44.220. The Department asserted it had only regulated existing water rights based on seniority under its authority in RCW 90.03, RCW 90.44, and RCW 43.27A.190. The Department also referred to The Irrigators appealed the decision to the Lincoln County Superior Court. The Superior Court granted the motion to quash the orders finding: (1) the Department had no authority to adjudicate competing water rights; (2) the Department violated the Irrigators' due process rights in issuing the orders; and (3) the orders were invalid on their face.

RCW 90.14 in determining the cattle ranchers had senior water rights, but it did not cite RCW 90.14 for authority in issuing the cease and desist orders. The PCHB denied the Irrigators' motion to quash the orders, finding the Department did have the authority to regulate water resources in this manner under RCW 43.27A.190.

The Department petitioned for direct review to this court of that decision. We affirmed the trial court's decision holding the Department had acted without authority. Rettkowski v. Department of Ecology, 122 Wash.2d 219, 858 P.2d 232 (1993) (Rettkowski I ).

While the appeal was pending before this court, the Irrigators filed motions in the Superior Court for awards of attorneys' fees. The Irrigators based their request for attorneys' fees on five separate theories. The trial court found three of those theories supported an award of attorneys' fees in this case: (1) RCW 90.14.190 (attorneys' fees to parties on review of Department water resource decisions if the party was injured by an arbitrary, capricious, or erroneous order of the Department); (2) attorneys' fees incurred in overturning wrongful temporary injunctions (Cecil v. Dominy, 69 Wash.2d 289, 418 P.2d 233 (1966)); and (3) RCW 34.05.598 and RCW 4.84.185 (recovery of attorneys' fees for frivolous defense under the Administrative Procedure Act). The trial court limited the award to those fees and costs incurred as a direct result of the action before the court on the three legal issues, excluding expenses incurred by the Irrigators to prove the priority of their water rights. The trial court issued its decision granting attorneys' fees on October 13, 1992, and requested the Irrigators to submit their specific requests for fees.

Notice of presentment of the requests for attorneys' fees was given by the Irrigators on January 12, 1993; the hearing on these requests was set for January 28, 1993. One day prior to the hearing, the Department filed a memorandum objecting to the requests for attorneys' fees and requesting a hearing and additional discovery on the reasonableness of the fee requests. The trial court heard argument on the Department's motion and then held the Department had waived any objections it may have had by waiting until the day before the hearing to raise those objections. Based upon the affidavits submitted by the Irrigators, the trial court awarded the fees requested as reasonable, necessary, and limited as required by its earlier decision. The court awarded attorneys' fees and costs to the Irrigators in the total amount of $197,853.17.

The Department filed a petition for direct review of the attorneys' fees award in this court. We denied the petition and transferred the case to the Court of Appeals.

The Court of Appeals reversed the award of attorneys' fees and remanded for further proceedings. Rettkowski v. Department of Ecology, 76 Wash.App. 384, 885 P.2d 852 (1994) (Rettkowski II ). It found only one of the three grounds cited by the trial court supported an attorneys' fees award in this case, RCW 90.14.190. However, the Court of Appeals also held RCW 90.14.190 required a showing of injury beyond the incurring of attorneys' fees, which the Irrigators had not yet demonstrated. Rettkowski II, 76 Wash.App. at 389-90, 885 P.2d 852. It remanded the case to the trial court to give the Irrigators the opportunity to prove they had been injured. Rettkowski II, 76 Wash.App. at 390-91, 885 P.2d 852.

We find the Court of Appeals was correct in determining RCW 90.14.190 applies to the facts of this case and the statute requires a showing of injury beyond the incurring of legal fees. Based on the record before this court, we also find the Irrigators have shown they were injured as required by RCW 90.14.190. Because we hold attorneys' fees are properly awarded under RCW 90.14.190, we do

not reach the second issue raised by the Irrigators of whether attorneys' fees are also proper under the rule from Cecil v. Dominy, 69 Wash.2d 289, 418 P.2d 233 (1966).

ANALYSIS

Washington has long followed the American rule on the award of attorneys' fees. Rorvig v. Douglas, 123 Wash.2d 854, 861, 873 P.2d 492 (1994); State ex rel. Macri v. City of Bremerton, 8 Wash.2d 93, 102-03, 111 P.2d 612 (1941). The rule states attorneys' fees are not recoverable by the prevailing party as a cost of litigation absent a contract, statute, or recognized ground of equity. Rorvig, 123 Wash.2d at 861, 873 P.2d 492. In this case, the trial court found RCW 90.14.190 provided a statutory basis for awarding attorneys' fees to the prevailing Irrigators.

The statute reads:

Water resources decisions--Appeals--Attorneys' fees. Any person feeling aggrieved by any decision of the department of ecology may have the same reviewed pursuant to RCW 43.21B.310. In any such review, the findings of fact as set forth in the report of the department of ecology shall be prima facie evidence of the fact of any waiver or relinquishment of a water right or portion thereof. If the hearings board affirms the decision of the department, a party seeks review in superior court of that hearings board decision pursuant to chapter 34.05 RCW, and the court determines that the party was injured by an arbitrary, capricious, or erroneous order of the department, the court may award reasonable attorneys' fees.

RCW 90.14.190. To determine whether this statute applies to the facts of this case, we must answer three questions: (1) what is the scope of Department decisions to which this statute applies; (2) are the Department's decisions and orders at issue in this case within that scope; and (3) if yes, were the Irrigators injured as required by this statute?

Scope of RCW 90.14.190

The first question is an issue of statutory construction.

Construction of a statute is a question of law which is reviewed de novo. Waste Management of Seattle, Inc. v. Utilities & Transp. Comm'n, 123 Wash.2d 621, 627, 869 P.2d 1034 (1994). When a statute is clear and unambiguous on its face, there is no need to resort to methods of statutory construction. Harris v. Department of Labor & Indus., 120 Wash.2d 461, 474, 843 P.2d 1056 (1993). The first sentence of the statute begins, "Any person feeling aggrieved by any decision...." RCW 90.14.190. "Person" is defined in the statute as "an individual, partnership, association, public or private corporation, city or other municipality, county, or a state agency...." RCW 90.14.031(1). The section at issue is titled, "Water resources decisions--Appeals--Attorneys' fees." RCW 90.14.190. The plain language of ...