Gerald Richert v. City Of Tacoma

Citation: Not availableDocket: 43825-9

Court: Court of Appeals of Washington; March 3, 2014; Washington; State Appellate Court

Original Court Document: View Document

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The Court of Appeals of Washington, Division II, has granted the City of Tacoma's motion for reconsideration regarding the published opinion from March 4, 2014, in case number 43825-9-II. This order includes an amendment to the previous opinion, which is attached to the document. The panel deciding this matter consists of Judges Worswick, Hunt, and Penoyar. The order was filed on May 13, 2014. The case involves multiple respondents, including Gerald G. Richert on behalf of Skokomish Farms Inc. and various individuals and partnerships, in a dispute against Tacoma Power Utility and the City of Tacoma.

The court has amended its opinion from March 4, 2014, regarding a class action lawsuit for property damage due to increased water flow. Key amendments include the removal and replacement of language in paragraph 1 on page 2, clarifying the term "other plaintiffs" instead of "members of his class." A footnote was added on page 3, stating that the facts are presented favorably to the Richerts due to the nature of the superior court orders under review. Additionally, on page 7, paragraph 1 was modified to refer to "the other plaintiffs" rather than "the members of his class." The footnote after this segment remains unchanged. The document concludes with the filing details and listing of the parties involved in the appeal against the City of Tacoma and Tacoma Power Utility.

In a class action lawsuit regarding property damage from increased water flow, the City of Tacoma is appealing two rulings from the superior court concerning summary judgment motions. The first ruling granted partial summary judgment, striking one of Tacoma's affirmative defenses against claims made by Gerald Richert and his class. The second ruling denied Tacoma's motion for summary judgment seeking dismissal of the Richerts' claims. The court determined that a 1920 condemnation case (City v. Funk) did not preclude the Richerts' claims for flood and groundwater damage, a legal issue resolved in favor of the Richerts. Tacoma contends that the Funk case should bar the Richerts' claims under res judicata, but the court affirmed the lower ruling, as Tacoma did not demonstrate that the claims coincided with the final judgment in Funk.

The Skokomish River's main stem, fed by the North Fork, South Fork, and Vance Creek, has been affected by Tacoma's dams since 1926, which now operate under FERC licenses and divert significant water flow. The Funk condemnation in 1923 involved Tacoma taking property rights from over 80 parcels, classifying them into two types based on damage potential from the dams: Type One parcels were fully condemned, while Type Two parcels had only their riparian and water rights condemned. Tacoma justified this condemnation by stating that the dams would divert water from the North Fork, necessitating the acquisition of water rights for downstream use. Compensation for Type One parcels totaled $90,200, while Type Two parcels received $50,670.30, with payments determined individually for each property owner.

Tacoma, after compensating for land rights, received two court decrees from the Funk superior court condemning land rights for hydro-electric power generation on the North Fork of the Skokomish River and Lake Cushman. The first decree vested Tacoma with fee simple rights over Type One parcels, granting ownership of land, water rights, easements, and the right to divert water from the North Fork. The second decree similarly granted Tacoma fee simple rights over the riparian and water rights of the Type Two parcels, allowing Tacoma to appropriate and use these rights indefinitely for public use.

From 1926 to 1988, Tacoma's dams significantly reduced the water flow to only 10 cubic feet per second (cfs) released into the main stem. Following FERC's requirements, Tacoma increased this flow incrementally, reaching 30 cfs in 1988, and later 60 cfs in 1999 and 240 cfs in 2008. A 2010 amendment created a flow release schedule that maintained an average flow much higher than the historical 10 cfs.

The Richerts, owners of 88 Type Two parcels below the dams, are suing Tacoma, claiming that the increased water flow has caused flooding and damage to their properties. They assert that the historic diversion of water prevented natural gravel removal from the main stem, exacerbating the flooding issues.

The Richerts allege that Tacoma's failure to remove gravel from the riverbed over decades resulted in aggradation, limiting the river's capacity to handle increased water flow, leading to overflow and a rise in the groundwater table. They filed a lawsuit against Tacoma for various claims, including violations of riparian rights and negligence. Tacoma claimed that a prior judgment in a related case (Funk's decrees) barred the Richerts' claims under res judicata. The superior court granted the Richerts' motion for partial summary judgment, dismissing Tacoma's affirmative defense and ruling that their claims were not covered by the Funk litigation. The court denied Tacoma's motion for summary judgment and issued a limited final judgment for interlocutory review, focusing solely on the impact of the Funk judgment on the Richerts' claims. Tacoma appealed, maintaining that res judicata should apply. The analysis section states that res judicata does not bar the Richerts' claims, and summary judgment is appropriate if no material facts are in dispute. It is noted that Washington State abolished riparian rights in 1917 but preserved existing rights from that time, which can still be condemned under eminent domain. Rights associated with riparian ownership include maintaining natural stream flow and limited use of water.

A riparian owner is prohibited from diverting water in a natural watercourse, as doing so may result in liability for damages to other riparian owners. These owners have rights to maintain their water levels, and water use rights can be condemned through eminent domain. However, even if a party has a right to use water, they cannot flood properties without compensation and must not exceed the ordinary high-water mark, which indicates the point where water prevents the growth of typical terrestrial vegetation.

Res judicata is a legal principle that prevents parties from relitigating claims that have been previously decided or could have been raised in prior litigation. For res judicata to apply, there must be a concurrence of identity in four elements: subject matter, cause of action, parties involved, and the quality of the parties. The burden of proof lies with the party asserting res judicata. When assessing whether two causes of action are the same, factors such as the potential impairment of rights established in the earlier case, similarity of evidence, allegations of the same right, and the factual context must be considered.

In the specific context of riparian rights, Tacoma argues that a final judgment in a previous case (Funk) bars the Richerts' claims under res judicata. However, it is determined that Tacoma has not established sufficient identity between Funk's judgment and the Richerts' claims, nor that the Richerts' claims should have been included in the prior litigation.

Tacoma contends that the Richerts' claims are barred by res judicata due to their shared identity with Funk's final judgment. However, the court disagrees, noting that Funk only addressed Tacoma's condemnation of the right to use water from the Type Two parcels and not the right to flood the Richerts' parcels. Tacoma's petition in Funk indicates the specific rights being condemned, which allows comparison with the Richerts' claims to assess identity of subject matter and cause of action.

The Richerts assert various claims, including violation of riparian rights and negligence, all linked to flooding and groundwater issues allegedly caused by Tacoma's excessive water release. The court finds that the subject matter of the Richerts' claims differs from those in Funk, which solely involved the deprivation of water use rather than direct flooding damage. 

Regarding the cause of action, Tacoma fails to demonstrate that the Richerts' claims are identical to Funk's, as Funk was limited to water use rights whereas the current claims involve land damage from flooding and high water tables. The claims do not impair the same rights or deal with the same evidence, thus failing the res judicata test. Furthermore, Tacoma's assertion that the Richerts conceded to limiting their claims is unsupported by the cited record pages.

Funk's final judgment was confined to condemnation, while the Richerts' claims—failure to provide proper outflow for surface waters, violation of RCW 4.24.630, trespass, nuisance, and negligence—do not relate to the same cause of action as litigated in Funk. The Tacoma entity did not demonstrate that these claims share the same subject matter or cause of action, failing to meet the first two elements required for res judicata to apply. Consequently, the court need not consider the other elements of res judicata. 

Tacoma contended that the Richerts' claims should have been raised in Funk, but the court disagreed for three reasons: (1) The Richerts' claims were based on aggradation occurring over eight decades, which could not have been reasonably predicted by the Funk litigants; (2) The increased water flow from Tacoma's dams resulted from FERC-imposed requirements beginning in 1988, which were unforeseeable at the time of the original litigation; (3) Tacoma's own petition in Funk indicated that the concern was with diminished water availability, not potential flooding caused by excessive water flow.

The court held that Tacoma has not proven that the Richerts' claims are barred by res judicata. The issue of whether Tacoma should be estopped from arguing the predictability of aggradation was not addressed, as it was not resolved in the lower court's judgment and fell outside the appeal's scope. Additionally, the question of Tacoma's duty regarding its water diversion operations was also not addressed, as it similarly did not pertain to the effect of Funk on the Richerts' claims. Finally, the court refrained from deciding all issues related to Tacoma v. Funk, as such a determination would constitute an impermissible advisory opinion.