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Friends of Moon Creek v. Diamond Lake Improvement, Association, Inc.

United States District Court, E.D. Washington

February 5, 2015

FRIENDS OF MOON CREEK, an unincorporated association, Cheryl and Robert Balentine, George A. and Jane Doe Tyler; Douglas M. and Jane Doe Anderson; Tom and Michele Bowyer Joe F. and Jane Doe Struther; Mark and Jane Doe Moeser; Gaylan and Jane Doe Warren, and Michael and Jane Doe Jeffrey,
DIAMOND LAKE IMPROVEMENT, ASSOCIATION, INC., PHIL ANDERSON, Director Department of Fish & Wildlife, SHARON SORBY, Coordinator Pend Oreille County Noxious Weed Control Board, Defendants/Cross-/Counter-Claimants.


JUSTIN L. QUACKENBUSH, Senior District Judge.

BEFORE THE COURT is Defendant Phil Anderson's, Director of the Washington Department of Fish & Wildlife, Motion for Summary Judgment. (ECF No. 140). Plaintiffs have responded by filing a "Cross-Motion for Summary Judgment" (ECF No. 148). The parties have filed Response and Reply briefs. The Motions were submitted for decision without oral argument. (See Order at ECF No. 163).

I. Procedural History

This action was commenced November 21, 2013. The procedural history has been set forth at length in prior filings and will not be repeated here. There has been extensive motion practice. The court denied Motions to Dismiss by each of the three Defendants. The court granted in part Plaintiffs' Motion for Preliminary Injunction as to Defendant Diamond Lake Improvement Association ("DLIA"). The court has more recently denied Plaintiffs' Motion for Attorney Fees and Anti-SLAAP Motion. Discovery has been bifurcated into two phases. Discovery on liability will close on February 17, 2015, and the deadline for filing any further dispositive motion is March 2, 2015. (See Scheduling Order, ECF No. 100).

II. Factual Background

The court has set forth the general factual background in prior Orders. (See for example ECF No. 71, 80, 133, & 139). For the purpose of adjudicating these Motions, the court looks to the factual statements submitted by the parties and the supporting evidentiary record. According to Defendant Anderson's Statement of Facts (ECF No. 141), DLIA applied for a Hydraulic Project Approval permit ("HPA") in 2012 for the removal of vegetation from Moon Creek. DLIA contends that Diamond Lake was flooding and it sought to correct the drainage problem by removing vegetation and altering beaver dams. The Department of Fish & Wildlife ("Department") issued the HPA in June 2012. The permit was twice revised/reissued in 2013. Anderson contends the Department did not initiate the project, its role was regulatory, and that DLIA undertook the project for a private purpose. Anderson states the HPAs did not authorize trespass and DLIA was aware the permits did not authorize trespass. Anderson further contends that the Department's enforcement officer, Severin Erickson, did respond to reports of trespass and at one point issued written warnings. (ECF No. 141, ¶ 14).

Plaintiffs sets forth their own Statement of Facts in Opposition (ECF No. 149). Plaintiffs admit that in "the winter and spring of 2012, some Diamond Lake residents began to experience higher than normal lake water levels", and that DLIA "began to explore projects which would alleviate the high water levels". (ECF No. 149, ¶ 4). Plaintiffs contend that DLIA sought the assistance of the Department in authorizing the project, and the Department issued an HPA. Plaintiffs contend the HPA identifies the project location as land which Plaintiffs own or on which they reside. Plaintiffs contend they were not made aware or given notice of the application for an HPA prior to its issuance in June 2012. Plaintiffs contend the HPA issued in 2012, and twice revised in 2013, "were issued to an entity, DLIA, that owns no property in the areas to be subjected to HPA project activity." (Id. at ¶ 13). Plaintiffs contend that George Tyler only consented to DLIA members entering his property for purposes of inspection, but not to carry out projects. Plaintiffs argue that DLIA was responsible for the herbicide application, removing a beaver dam, killing beavers, and dredging Moon Creek "adjacent to Plaintiff's properties." (Id. at ¶ 18).

Defendant Anderson filed a "Contrary Statement of Facts" (ECF No. 165) and objections to some of Plaintiffs' asserted facts. Anderson disputes the characterization that DLIA sought assistance from the Department, as opposed to merely applying for an HPA. Anderson disputes that Cheryl Balentine learned of the HPA "one month after it was issued on June 6, 2012, " and states that an e-mail from her demonstrates she knew of it no later than June 25, 2012. (ECF No. 165, p. 2). Whether she learned of it 19 days after, or 30 days after its issuance is immaterial. Anderson objects to the assertion by some of the Plaintiffs that the entire area is "now a riparian dead zone" as not being supported by expert opinions or studies. Anderson further takes issue with whether beavers were trapped and killed, arguing that the HPA only authorized beaver tube installation. However, Defendant Anderson admits that the HPA did allow for removal of newly built beaver dams. (ECF No. 165, p. 4). Anderson also objects to characterizations by Plaintiffs that the project was a Department of Fish & Wildlife project, or a Department/DLIA project.

III. Discussion

A. Plaintiffs' Argument for Partial Summary Judgment

Plaintiffs seek a summary adjudication in their favor finding that Defendant Anderson, of the Washington Department of Fish & Wildlife, "violated rights secured to Plaintiffs by the Due Process clause of the Fifth and Fourteenth Amendments" by entering upon and damaging Plaintiffs' properties without notice and an opportunity to be heard. Plaintiffs further assert that such trespass constituted a taking of property without just compensation. (ECF No. 148, p. 2). Plaintiffs also ask the court to find, as a matter of law, that Defendant DLIA was acting under color of law. (Id. at 4).

B. Defendant's Argument for Summary Judgment

Defendant Anderson's argument is essentially a contention that the alleged violations of Plaintiffs' rights were committed, if at all, by DLIA, and Anderson is not liable. (ECF No. 140). Anderson contends that the Department "did not fund, promote, or support the project, " and that its role was "purely regulatory". (ECF No. 140, p. 3). Anderson argues that the Washington state Hydraulic Code cannot itself be a basis for this action because RCW 77.04.012 expressly protects private property rights: "Nothing in this title shall be construed to infringe on the right of a private property owner to control the owner's private property." ...

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