Washington Appellate Court Stays the Course in Water Appropriation
The Washington Court of Appeals recently declined an invitation to adopt a common law doctrine of water law appropriation called the “futile call” doctrine, leaving any change in water appropriation rules to the legislative branch. The futile call doctrine provides that a senior water appropriator may prevent a junior appropriator from diverting water only when doing so will be of some benefit to the senior. Many Western states have adopted the doctrine, but Washington courts have consistently rejected it, and did so again, in a May 23, 2006 decision of the Washington Court Appeals, Division III, Fort v. Department of Ecology, --- P.3d ----, 2006 WL 1390578. The Court relied on the plain language of a 1921 Decree establishing classes of water rights based solely upon seniority.
The Fort case involves Ecology’s efforts to regulate use of water from Beaver Creek, in Okanogan County, Washington, based on an adjudication decree entered in September 1921. The decree designates eighteen classes of water rights. It provides that when there is insufficient water to supply all eighteen classes, the rights of the superior, or senior, classes, beginning with class 1, will be satisfied first before members of the subordinate, or junior, classes will be permitted to draw water from the creek.
In 2001, insufficient water was available to satisfy all classes of water users on Beaver Creek. Ecology issued a regulatory order requiring plaintiff Fort to limit his exercise of surface water rights based on quantity and priority. Fort holds Class 1, 8, and 9 adjudicated water rights on Beaver Creek. Ecology required him to cease diverting in excess of the maximum quantity specified in the decree for his Class 1 water right (the most senior right on Beaver Creek). The order also cited Fort and penalized him for continuing to divert under his junior Class 8 and 9 water rights after those classes of rights had been shut off in order to satisfy more senior rights on Beaver Creek.
Fort appealed Ecology’s order to Washington's Pollution Control Hearings Board (Board), which affirmed. Fort then petitioned for review in Okanogan County Superior Court, which upheld the Board decision. Fort then appealed to the Washington Court of Appeals, Division III
Fort's first contention was that the Board erred by refusing to allow him to withdraw his class 8 and 9 water when he can do so without interfering with water rights held by superior classes. Fort argued that since his diversion point is farthest downstream, his diversion did not interfere with the parties' respective priorities. While the 1921 decree does contain a non-interference clause, Ecology argued that interference is measured not by interference with individual users but by interference with the decree's priority scheme. The Court agreed with Ecology and held that the water users on Beaver Creek must respect the decree's priority system regardless of the location of their point of withdrawal from the creek.
Fort's second contention was that the futile call doctrine entitled him to continue to divert water under his Class 8 and 9 rights after those classes of rights were ordered to be shut off along Beaver Creek due to low summer flows. The futile call doctrine was created at common law to address "circumstances where a senior water right holder may receive no benefit if the junior water rights are shut off, making it futile to require the junior to cease using water." C. Gregoire, J. Pharris, and P. McDonald, An Introduction to Washington Water Law, Office of the Attorney General, 2000 at III:25; citing, Washington ex rel. Cary v. Cochran, 138 Neb. 163, 292 N.W.2d 239 (1940). Under the doctrine, the junior water rights holder is not required to cease using the water if he can prove the water would not reach the senior. Other western states have adopted the doctrine and Fort argued that the Court of Appeals should do the same, because Washington courts have traditionally considered long established principles of western water law. The Court of Appeals addressed the argument by first noting that "'[W]ater management is a huge issue in this state. There is clearly controversy as to the best way to manage this state's water resources. However, policy decisions are the province of the Legislature, not of this court.'" Fort v. Department of Ecology, --- P.3d ----, 2006 WL 1390578, citing Department of Ecology v. Campbell v. Gwinn, L.L.C., 146 Wn.2d 1, 17 n. 7, 43 P.3d 4 (2002). Thus, the Court held that whether Washington should adopt the futile call doctrine is "a matter for the legislature's consideration." Id.
In related litigation (Okanogan Superior Court No. 04-2-00519-3), Mr. Fort filed a separate declaratory judgment action against Ecology in Okanogan County Superior Court. This lawsuit alleges that Ecology has unlawfully limited the duration of the period of use for irrigation under Fort’s Beaver Creek water rights based on the period of use specified on certificates issued pursuant to the Beaver Creek Decree. The court denied Fort’s motion for summary judgment, and required him to join indispensable parties, i.e., all adjudicated water right holders on Beaver Creek and eighteen interruptible water right holders on the Methow River below its confluence with Beaver Creek. On March 22, 2006, Fort filed a second amended complaint naming as defendants more than one hundred current water right holders on the Methow River and Beaver Creek. Fort is apparently working to serve his complaint on these new defendants.
The Fort decision maintains Washington's practice of regulating water rights based on the plain language of water rights decrees and continues Washington's longstanding position of rejecting the futile call doctrine. It will be interesting to see if the case encourages any legislative action to take up the policy debate underlying the doctrine.
For more information, please contact Jeff Kray.
