# Public Utility District No. 1 v. State > Washington Supreme Court · January 29, 2015 · 182 Wash. 2d 519 URL: https://www.frixlaw.com/law-library/cases/4715193 ## Case - **Full name:** Public Utility District No. 1 of Okanogan County v. The State of Washington, Christine Davis - **Court:** Washington Supreme Court - **Decided:** January 29, 2015 - **Citations:** 182 Wash. 2d 519; 342 P.3d 308 - **Precedential status:** Published - **Opinion:** Concurring in part by González - **Judges:** Dwyer, Fairhurst, González, Johnson, Madsen, McCloud, Owens, Stephens, Wiggins - **Cited by:** 18 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4715193 ## Opinion text González, J. ¶54 (concurring/dissenting) — I largely concur with the majority opinion. I write separately, however, because I have significant doubt whether the Department of Natural Resources’ (DNR) 13 use of the lands is compatible with the Public Utility District No. 1 of Oka-nogan County’s (PUD) proposed use of easement. In my view, courts should give due consideration to Conservation Northwest’s (CNW) environmental concerns when analyzing compatibility. Since the record does not convince me that due consideration was made, I would remand to the trial court for further findings on whether DNR’s use is compatible with PUD’s proposed use, including consideration of CNWs environmental concerns. Because the majority effectively brushes compatibility concerns aside, I dissent in part. *551 A. The Trial Court’s Findings ¶55 The trial court found: [T] here’s no evidence that ... a transmission line is not compatible with grazing leases or permits or that it will diminish income from grazing leases and permits. Cattle graze under power lines in many parts of Okanogan County and the state, including under the Loop Loop [sic] Route. Tr. of Proceedings (TP) at 18. The trial court’s conclusion finds some support in the record, though the trial court did not directly cite the record for its finding on compatibility and the record leaves me in more doubt than it does the majority. Derek Miller, chief engineer of PUD, declared that [a]fter completion, the transmission line will not impact or impair DNR’s ability to lease (or continued use of) the land for cattle grazing or other uses. Based on my experiences with electric transmission lines in Okanogan County, the presence of a transmission line does not limit cattle grazing in the area under or near the line. Just one example of cattle grazing under and near electric transmission lines is the PUD’s Loup Loup Transmission Line, which occupies an easement over DNR lands leased for grazing. Clerk’s Papers (CP) at 127. ¶56 The trial court also supported its conclusion on compatibility by reasoning that subsection 4.03 of DNR’s leases “address [ ] compatible purposes. A transmission line is a compatible purpose.” TP at 13. This citation is, at least, questionable. Subsection 4.03 of each of the five leases at issue actually provides that “[t]he State reserves the right to lease the premises for other uses which are compatible with the Lessee’s permitted uses. The Lessee’s permitted uses are set forth in Subsection 2.01.” CP at 233, 253, 275, 299, 321. Subsection 2.01 of each of the five leases list “[g]razing” and sometimes also “[w]ildlife,” but never “transmission line.” Id. at 231, 251, 272, 297, 318. None of theleases indicate that a transmission line is a compatible purpose. *552 ¶57 In issuing its ruling, the trial court noted that “[t]his case is before the Court on cross motions for summary judgment. All parties assert that there are no issues of material fact and the judgment should be granted as a matter of law.” TP at 5. This may have been an unwise assertion by the parties. The trial court reasoned that “there is no issue, but that the P.U.D.’s transmission line is compatible with grazing leases. There’s no evidence of any negative effect on grazing.” Id. at 12-13. B. DNR Challenges the Issue of Compatibility ¶58 DNR challenged the factual findings underpinning the trial court’s conclusion that the uses are compatible. First, DNR argued to this court that the trial court did not take testimony pertaining to the impacts of the proposed condemnation on the state’s existing or future use of the land or otherwise cite to evidence submitted by the parties. Rather, the trial court based its ruling largely on its own observation that “cattle graze under power lines in many parts of Okanogan county . . . .” Pet. for Review at 6 (quoting TP at 18). ¶59 Second, DNR challenged the trial court’s compatibility finding on the grounds that [t]he trial court did not take testimony to determine whether the PUD’s proposal to erect towers, build roads and run transmission lines was actually compatible with DNR’s existing and prospective use of these lands, and it lacked a sufficient basis to enter the factual finding underpinning its holding in this regard. Appellants State of Wash. & Peter Goldmark’s Opening Br. at 34, cited in Appellants State of Wash. & Peter Goldmark’s Suppl. Br. at 15. In addition, in a section entitled “In TheAlternative, Genuine Issues Of Material Fact Regarding The Compatibility Of The PUD’s Proposed Use With The State’s Current Public Use Preclude Summary Judgment,” DNR argues that “[t]he trial court should have *553 considered evidence, e.g., whether placing a transmission line and roads through the middle of state trust lands along with associated impacts impairs the long term revenue generating capacity of that land.” Id. at 39, cited in Appellants State of Wash. & Peter Goldmark’s Suppl. Br. at 15. DNR’s challenge deserves more critical attention than the majority gives it. C. CNW’s Environmental Concerns Have Been Ignored ¶60 More importantly, the majority’s analysis gives short shrift to CNW’s concerns. CNW argued before the trial court: The proposed transmission line would bisect the largest contiguous piece of publically owned shrub-steppe habitat in the Methow Valley and will have multiple adverse environmental impacts on the Methow Valley, including introduction of noxious weeds, fragmentation of wildlife habitat, increased fire risk, and exacerbating erosion, and sedimentation. CP at 585. CNW continued to point to critical environmental issues related to the PUD’s proposed use of the lands before this court. Appellant/Cross-Resp’t Conserv. Nw.’s Suppl. Br. at 1. These issues merit more careful consideration than they have received. ¶61 I am not without sympathy to PUD’s argument that DNR did not adequately raise issues of fact before the trial court regarding how DNR’s current use of the lands is incompatible with PUD’s proposed use. See, e.g., Suppl. Br.of Resp’t PUD at 2, 11. 14 The parties agreed that there were no issues of material fact before the trial court. 15 TP at *554 5. However, DNR and CNW did not know how the trial court would resolve the compatibility issue, let alone that the trial court would rely on its own observations in making the decision, and the trial court failed to apply the facts regarding CNW’s environmental concerns to its compatibility analysis. CNW and DNR deserve an opportunity to show more clearly how PUD’s proposed use is not compatible with DNR’s use in light of CNW’s concerns. D. Remand Is Proper ¶62 “The standard of review of an order of summary judgment is de novo, and the appellate court performs the same inquiry as the trial court.” Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300 , 45 P.3d 1068 (2002) (citing Lybbert v. Grant County, 141 Wn.2d 29, 34 , 1 P.3d 1124 (2000)). The court considers facts and inferences in a light most favorable to the nonmoving parties, here DNR and CNW Weyerhaeuser Co. v. Aetna Cas. & Sur. Co., 123 Wn.2d 891, 897 , 874 P.2d 142 (1994) (citing Wilson v. Steinbach, 98 Wn.2d 434, 437 , 656 P.2d 1030 (1982)). The court may grant summary judgment “if the pleadings, affidavits, and depositions establish that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Lybbert, 141 Wn.2d at 34 (citing Ruff v. County of King, 125 Wn.2d 697, 703, 887 P.2d 886 (1995)). ¶63 Based on a de novo review, I would remand to the trial court for robust factual finding on the compatibility *555 issue, including consideration of CNW’s environmental concerns. I respectfully concur in part and dissent in part. Johnson, J., concurs with González, J. DNR, Peter Goldmark, and the State are referenced herein collectively as DNR. Rather than arguing factual issues regarding compatibility, DNR focused its argument on what legal test should apply; essentially, DNR considered that the compatibility standard applied by the trial court and the Court of Appeals, and which is affirmed by the majority, is a new test, whereas PUD argued that the compatibility test dates back more than 100 years and provided factual evidence of compatibility. See Pet. for Review at 14; PUD’s Answer to Pet. for Review at 10. CNW, in its motion for summary judgment and dismissal pursuant to CR 56, stated that “[t]here are no genuine issues of material fact.” CP at 487. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4715193. Public record. Not legal advice.