State, Dept. of Fisheries v. Gillette

• Decision Date: 10 December 1980
• Docket Number: No. 3686-II,3686-II
• Citation: 621 P.2d 764,27 Wn.App. 815
• Parties: The STATE of Washington, DEPARTMENT OF FISHERIES, Respondent, v. Cyril O. GILLETTE and Jane Doe Gillette, Appellants.
• Court: Washington Court of Appeals

Page 815

27 Wn.App. 815

621 P.2d 764

The STATE of Washington, DEPARTMENT OF FISHERIES, Respondent, v. Cyril O. GILLETTE and Jane Doe Gillette, Appellants.

No. 3686-II.

Court of Appeals of Washington, Division 2.

Dec. 10, 1980.

[621 P.2d 765] James R. Gregg, Vancouver, for appellants.

Dennis D. Reynolds, Asst. Atty. Gen., Olympia, for respondent.

REED, Chief Judge.

Defendants Cyril and Sharon Gillette appeal a verdict and judgment awarding damages to the Washington State Department of Fisheries for loss of salmon caused when the Gillettes reconstructed the bank of a stream bordering their property. Defendants challenge the Department of Fisheries' capacity and standing to bring this action, the sufficiency of the evidence of damages, and the court's instructions on the measure of damages. They also raise several evidentiary questions. We hold the Department has both the capacity and standing to bring the action and has shown itself entitled to recover. We find no error in regard to the evidentiary issues and therefore affirm the judgment of the trial court. ¹

Defendants live on farm property bordering Cedar Creek, a salmon spawning stream in Clark County. Seasonal flooding of the creek left unwanted deposits of soil and gravel in Gillettes' adjoining pasture. In the spring of 1976, the flooding washed away so much of the bank that a utility pole was left dangling unsupported along the edge of the creek. Mr. Gillette appealed to the local Public Utility District for assistance in resetting the pole. Although P.U.D. officials did not help, they evidently suggested the Gillettes reconstruct the bank themselves. Accordingly, one of Gillettes' employees, Ricky Smith, was directed to rebuild the bank. Gillette and the employee testified the reconstruction took place in September 1976. Smith testified that, using a caterpillar tractor with an attached blade, he drove back and forth through the stream and pushed material from the creek bed and the adjacent field into the bank. The dike thus created rose as much as 20 feet above the creek.

RCW 75.20.100 provides that anyone wishing to construct a hydraulic project that will interfere with any river or stream bed must obtain written approval from both the Director of Fisheries and the Director of Game. The statute's purpose is to ensure that such projects include adequate protection for the fish life involved. Violation of the statute is a gross misdemeanor. Being unaware of the statute's requirements, the Gillettes did not obtain the necessary hydraulics project permit.

Representatives of both the Department of Game and the Department of Fisheries responded to reports of the construction and inspected the scene. The Department of

                Fisheries then filed this action in negligence for damages for the loss to the salmon fishery caused by the project.  2 At the close of the evidence, the court granted Fisheries a directed verdict on the issue of [621 P.2d 766] liability.  3 The jury thus considered only proximate cause and damage issues and awarded the State $3,150.  Defendants appeal
                

CAPACITY AND STANDING

In their threshold argument that the Department of Fisheries could not bring a civil action for damages to the state's fishery, defendants raise two issues of first impression in this state. We find no merit in defendants' first argument that the Department of Game should have been joined as a necessary party because the statute requires project approval from that Department as well as from the Department of Fisheries. Defendants cite no authority in support of this argument nor is it meritorious on its face. We therefore need not address it. State v. Brewster, 75 Wash.2d 137, 449 P.2d 685 (1969). Because the statute requires that each department must approve a proposed project, it follows that either could complain if its approval were not obtained and damage resulted to fish under its protection. The legislature has charged the Department of Game with protecting game fish, RCW Title 77, which does not include food fish such as salmon (which are under the jurisdiction of the Department of Fisheries). RCW 77.08.020, RCW 75.04.040, WAC 220-12-010. The Department of Game would have to show damage to fish under its protection, such as trout, before it could seek compensation on behalf of the State. See Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). Finally, the people of the state of Washington are the real parties in interest to this action. Defendants may not use The second prong of defendants' argument opposing Department of Fisheries' standing raises a more significant question. Does the Department of Fisheries, or the State of Washington for that matter, have standing to bring a civil action for damage to fish, absent specific legislative authorization? Although no Washington cases have addressed this question, and other jurisdictions have divided on the issue, ⁴ we believe our statutes and court decisions provide the guidance necessary for its resolution.

the legislature's reasonable "division of labor" among executive departments to defeat this action on behalf of the people.

First, the legislature has specifically charged the Department of Fisheries with the duty

to preserve, protect, perpetuate and manage the food fish and shellfish in the waters of the state ... (T)he department shall seek to maintain the economic well-being and stability of the commercial fishing industry in the state of Washington.

RCW 75.08.012. Our courts have long recognized the rule that

when a statute contains a grant of authority to achieve a lawful objective there is included in the grant by implication the doing of such acts as are reasonably necessary to properly attain such objective.

State v. Melton, 41 Wash.2d 298, 300, 248 P.2d 892 (1952); accord, State ex rel. Hunter v. Superior Court, 34 Wash.2d 214, 208 P.2d 866 (1949); State ex rel. Becker v. Wiley, 16 Wash.2d 340, 133 P.2d 507 (1943); Pacific County v. Sherwood Pacific, Inc., 17 Wash.App. 790, 567 P.2d 642 (1977). ⁵ There is no question that the Hydraulics Act furthers the lawful objectives outlined in RCW 75.08.012. Nor does it seem unreasonable for the Department to protect the fish in its charge through a damage action when individuals have caused a loss to the fishery.

Second, the state's proprietary interest in animals ferae naturae dates at least from the common law of England. See 2 W. Blackstone, Commentaries 403 (1803). Our courts have incorporated this concept in cases upholding the state's authority to regulate fish and game. State Department of Fisheries v. Chelan County P.U.D. 1, 91 Wash.2d 378, 588 P.2d 1146 (1979) and cases cited therein. Washington courts have emphasized that the food fish of the state are the sole property of the people and that the state, acting for the people, is dealing with its own property, "over which its control is as absolute as that of any other owner over his property." State ex rel. Bacich v. Huse, 187 Wash. 75, 79, 59 P.2d 1101 (1936). See, e. g., Judd v. Bernard, 49 Wash.2d 619, 304 P.2d 1046 (1956); accord, State ex rel. Campbell v. Case, 182 Wash. 334, 47 P.2d 24 (1935). See also, State v. Cramer, 167 Wash. 159, 164, 8 P.2d 1004 (1932) ("The fish were the property of (the state) until such time as they were lawfully reduced to possession (of individual)"). In addition to recognizing the state's proprietary interest in its fish, our courts have also held that the state holds its title as trustee for the common good. State ex rel. Bacich v. Huse, supra.

In bringing this action, the Department of Fisheries specifically relied on its capacity as trustee and its responsibilities under RCW Title 75 to protect the state's fisheries. Violation of a statute is negligence per se and an individual in the class protected by the statute has a cause of action for damages proximately caused by the violation. Currie v. Union Oil Co., 49 Wash.2d 898, 901, 307 P.2d 1056 (1957); Engelker v. Seattle Elec. Co., 50 Wash. 196, 96 P. 1039 (1908). Defendants admit they violated RCW 75.20.100, which is designed to protect society's interest in preserving the fishery and fish habitat. Representing the people of the state the owners of the property destroyed by violation of the statute the Department of Fisheries thus has a right of action for damages. In addition, the state, through the Department, has the fiduciary obligation of any trustee to seek damages for injury to the object of its trust. We note

in passing that if the state were denied a right of recovery for the damage which the jury found this construction did to the state's fishery, no one would have standing to recover for the injury. Department of Environmental Protection v. Jersey Central Power & Light Co., 133 N.J.Super. 375, 336 A.2d 750, 759 (1975), rev'd on other grounds, 69 N.J. 102, 351 A.2d 337 (1976) (questionable whether, absent special interest, anyone but state is proper party to sue for damages to environment); 35 Am.Jur.2d Fish and Game § 22 (1967). We therefore hold that where the violation of a statute designed to protect the state's property causes injury to that property, the state or a responsible executive agency of the state has standing to seek compensation for the injury. ⁶

DAMAGE ARGUMENTS

Addressing defendants' damage arguments, we turn first to their challenge to the sufficiency of the evidence that their activities caused any damage to fish at all. Defendants argue that the only way to show damage would be to compare the actual number of salmon hatched in Cedar Creek in years prior to the construction work with the actual number hatched in 1976. Defendants present no authority in support of this argument and we therefore need not consider it. Roberts v. Atlantic Richfield Co., 88 Wash.2d 887, 568 P.2d 764 (1977). We note, however, that our courts consider circumstantial evidence to be as competent as direct evidence. State v. Gosby, 85 Wash.2d 758, 539 P.2d 680...