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May 20, 1964

OLYMPIA OYSTER CO., Inc., a corporation, Plaintiff,
RAYONIER INCORPORATED, a corporation, Defendant

The opinion of the court was delivered by: BOLDT

In this action plaintiff seeks recovery of damage for the loss of oysters alleged to have been caused by water pollution resulting from the operation of defendant's pulp manufacturing plant at Shelton, Washington. *fn1" After extended discovery and other pretrial procedures the case came on for jury trial. At the conclusion of plaintiff's evidence defendant submitted a motion under F.R.Civ.P. 50(a) for a directed verdict in favor of defendant. Of fifteen separate grounds advanced in support of the motion, nine attack the nature and quantum of plaintiff's evidence which defendant challenges as insufficient to support any of the several essential elements of plaintiff's claim.

It has been the practice of this court to withdraw a case from jury consideration only in those comparatively few instances in which it has appeared beyond reasonable doubt that no factual issue for jury determination was raised on the evidence presented. This is mentioned to emphasize that the challenge to the sufficiency of the proof in this case has been considered with utmost caution and with full awareness of the jury's prerogative to determine facts on conflicting testimony where there is any substantial evidence sufficient to support a verdict.

 This case is one of a group of related cases to which the doctrine of primary administrative jurisdiction was held applicable in Ellison v. Rayonier, Inc., d. C., 156 F.Supp. 214 (1957). Plaintiff chose not to seek appellate review of that ruling although specifically invited to do so. Consequently the Ellison decision now must be regarded as the law of this case. Gheen v. Const. Equip. Co., 49 Wash.2d 140, 298 P.2d 852 (1956); Golden West Brewing Co. v. Milonas & Sons, Inc., 9 Cir., 104 F.2d 880 (1939).

 'In plaintiffs' complaints there is no reference to the State Water Pollution Control Commission or any action taken by it with respect to the pollution complained of. In the absence of contrary allegations it must be assumed that defendant's plant has been operated pursuant to Commission permit from the time required; that rules, regulations and standards for such operation have been established by the Commission which are not arbitrary, capricious or unreasonable; and that defendant has not discharged effluence into the waters of the Sound in violation of the standards prescribed. If so, the alleged discharge of waste from defendant's plant was not unlawful or unreasonable as determined by the Commission, and on the present pleadings recovery for damage resulting therefrom could not be granted on the basis of either trespass or nuisance.'

 The permit to Rayonier for operation of the Shelton plant, issued by the State Pollution Control Commission contains fourteen conditions stated in numbered paragraphs. The six conditions claimed by plaintiff to have been violated by defendant read as follows:

 '1. Sulphite waste cooking liquor solids are to be either burned or reused * * * Burner residues are to be re-burned or be disposed of in such a manner as to not affect a watercourse of the State.

 '2. All leakage and overflows of sulphite waste liquor is to be prevented or eliminated including that within the mill, at the storage tanks, the waste liquor lines and the burner area.

 '3. All drains from the blow pit area to the mill sewers are to be disconnected and sealed.

 '4. Sulphite waste liquor produced as a result of experimental digester operations is to be collected and burned, while the mill is operating.

 '5. * * * spills involving the loss of sulphite waste liquor solids are to be rapidly corrected * * *

 '7. The average losses of broken fibers, and bark and cellulose fines are not to exceed 66 pounds per ton of pulp produced, and efforts are to be continuously directed towards reducing these losses even further. A settling area in the mill estuary is to be maintained in such a manner as to collect 60% Or more of the suspended combustible solids contained in the mill effluent. * * *'

 Condition No. 14 of the permit, not claimed by plaintiff to have been violated by defendant, provides:

'14. Failure to comply with any of the foregoing or following conditions shall be cause for revocation of the permit ...

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