Court: Court of Appeals of Washington; December 20, 1994; Washington; State Appellate Court
The Lincoln County Superior Court quashed cease and desist orders issued by the Department of Ecology (DOE) and awarded attorney fees to the Respondents (Irrigators). DOE argues against the fee award on several grounds, including the lack of statutory basis, inapplicability of exceptions to the American rule for injunction actions, a late-filed fee petition, lack of authority for appellate fee awards, unreasonableness of awarded fees, refusal to allow discovery and an evidentiary hearing, and lack of authorization for extraordinary expenses. The Irrigators are also seeking fees on appeal and wish to present additional evidence.
The case is part of a broader water dispute involving ranchers and farmers in the Sinking Creek basin. Ranchers, who own cattle operations, depend on surface water, while the Irrigators use deep well water for irrigation. Tensions arose in the 1960s due to the Irrigators' pumping affecting surface water levels, leading to DOE's 1990 determination that Ranchers had superior water rights and subsequent cease and desist orders against the Irrigators.
The Irrigators appealed to the Pollution Control Hearings Board (PCHB), which stayed the cease and desist orders. They then sought to quash the orders in superior court, arguing that DOE lacked authority, that the orders were invalid, and that due process was violated. PCHB upheld DOE's authority but did not address the due process issue. Upon returning to superior court, the trial judge found the orders facially invalid and ruled that DOE exceeded its authority and violated the Irrigators' due process rights.
DOE's challenge to the trial court's jurisdiction was unsuccessful, and the Supreme Court affirmed the trial court's ruling regarding DOE's ultra vires action. Subsequently, the trial court awarded fees to the Irrigators based on RCW 90.14.190 and the precedent set in Cecil v. Dominy, which allows for fee recovery in cases of wrongful injunctions.
The court deemed the Department of Ecology's (DOE) defense as frivolous and awarded attorney fees under RCW 34.05.598, which incorporates RCW 4.84.185. Following this, an appeal was filed, but the Supreme Court chose not to consolidate the appeals and instead transferred the fee issue to a lower court after addressing the main case in Rettkowski. The primary legal basis for the fee award is RCW 90.14.190, which has been cited only once in a prior case involving relinquishment (Sheep Mt. Cattle Co. v. Department of Ecology). The statute allows any aggrieved person to seek review of DOE decisions, where the findings of fact are prima facie evidence in cases of water rights waiver or relinquishment.
The DOE interprets the statute to limit fee awards to decisions related to waiver or relinquishment, while the Irrigators argue that the first sentence broadly covers any decision, and the second merely shifts the burden of proof. The court emphasizes that it cannot add language to the statute and must interpret it as written, noting that the phrase “In any such review” does not narrow the scope of the first sentence. The DOE contends that its cease and desist orders were based on different statutory authorities (RCW 43.21A, RCW 43.27A, and RCW 90.44) and not RCW 90.14. In contrast, the Irrigators assert that RCW 90.14 is crucial since it pertains to determining water rights priorities necessary for regulatory actions.
Previously, the DOE argued that RCW 90.14 justified its regulatory actions. The court clarifies that the relevant decision was not the issuance of cease and desist orders but the recognition of the Ranchers' superior rights. The language in RCW 90.14.190 was amended in 1987 to replace “order” with “decision,” broadening its scope. The Irrigators qualify as aggrieved parties under the statute, which does not necessitate that agency actions be deemed arbitrary, capricious, or erroneous, as it suffices for them to be any of those factors. The issuance of cease and desist orders in Rettkowski was found to be erroneous, and the Irrigators claim they incurred substantial legal fees due to these orders.
Attorney fees incurred in pursuing or defending a cause of action may be considered special damages, but this case does not apply such a principle. Washington follows the American rule, which typically does not allow recovery of attorney fees. Sovereign immunity also applies, meaning the state cannot be sued without its consent, as outlined in relevant statutes. The Irrigators must demonstrate injury beyond just legal fees to proceed. The prior award of fees under specific statutes was deemed unwarranted, as a court cannot selectively identify frivolous aspects of an action; the action must be evaluated as a whole. An action is considered frivolous only if it serves purposes like harassment or cannot be supported by any rational legal argument. The primary issue in this case was the Department of Ecology's (DOE) authority to adjudicate competing claims, which was found improper. Notably, a dissenting opinion suggested that reasonable disagreement exists over the case's public policy implications, indicating that a position cannot be labeled frivolous when it has some support among justices. The Irrigators cited a statute treating the State as any civil litigant regarding costs, but “costs” do not encompass attorney fees. Consequently, the fee award was vacated, negating the need to address other arguments. The Irrigators' request for appeal fees was also denied. The decision was reversed and remanded.
