Miotke v. City of Spokane

Dolliver, J.

(concurring in part, dissenting in part) — I concur with the majority except for the question of attorney fees. On this issue I dissent. As the majority recognizes, this court has repeatedly expressed its reluctance to award attorney fees as costs of litigation unless there is a contractual, statutory, or recognized equitable basis for the award. See, e.g., Asarco Inc. v. Air Quality Coalition, 92 Wn.2d 685, 715 , 601 P.2d 501 (1979); Crane Towing, Inc. v. Gorton, 89 Wn.2d 161, 176 , 570 P.2d 428 , 97 A.L.R.3d 482 (1977); Swift v. Island Cy., 87 Wn.2d 348, 362 , 552 P.2d 175 (1976). In PUD 1 v. Kottsick, 86 Wn.2d 388 , 545 P.2d 1 (1976), we suggested in dicta that attorney fees might be recoverable under the doctrine of "private attorney general" when the litigant (1) incurs considerable economic expense, (2) to effectuate an important legislative policy, *342 (3) which benefits a large class of people. Kottsick, 86 Wn.2d at 392 . In Swift v. Island Cy., supra, however, we rejected the private attorney general doctrine as a basis for recovery. See Swift, 87 Wn.2d at 362-63 . I see no reason to depart from our holding in Swift. See Talmadge, The Award of Attorneys' Fees in Civil Litigation in Washington, 16 Gonz. L. Rev. 57 , 65-67 (1980). See generally 51 Wash. L. Rev. 1047 (1976).

The present case is a tort action for nuisance. As the majority evidently concedes, plaintiffs fail to demonstrate that a private cause of action, either express or implied, exists under the Federal Water Pollution Control Act Amendments of 1972 ( Pub. L. No. 92-500, § 2 , 86 Stat. 880 (1972), 33 U.S.C. § 1342 (1976 & Supp. 4, 1981)) or the environmental legislation of this state, including RCW 43.21C, the State Environmental Policy Act of 1971 (SEPA), and RCW 90.48, the Coastal Waters Protection Act of 1971. See RCW 90.48.037; RCW 43.21C.080-.085; RCW 43.21B.250. See generally California v. Sierra Club, 451 U.S. 287, 292-98 , 68 L. Ed. 2d 101 , 101 S. Ct. 1775 (1981); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-19 , 62 L. Ed. 2d 146 , 100 S. Ct. 242 (1979). See also Baerlein v. State, 92 Wn.2d 229, 231 , 595 P.2d 930 (1979). In fact, federal courts considering the question have found that no private cause of action exists under the Water Pollution Control Act Amendments. E.g., District of Columbia v. Schramm, 631 F.2d 854, 863 (D.C. Cir. 1980); Chesapeake Bay Found., Inc. v. Virginia State Water Control Bd., 495 F. Supp. 1229, 1236-37 (E.D. Va. 1980). See also California v. Sierra Club, supra at 298. Furthermore, there is nothing in the language of the state or federal statutes, in direct language or by implication, to indicate that they were intended to create state or federal rights for a special "large class of people". PUD 1 v. Kott-sick, supra at 392. Rather, in the language of the Supreme Court in California v. Sierra Club, supra at 298, the statutes were "intended to benefit the public at large through a general regulatory scheme".

*343 I cannot see how an "important legislative policy" is served by this litigation since both Congress and the Legislature failed even to provide for the litigation in the legislation it purportedly serves. It may be the majority believes all legislative enactments are "important legislative policy" and any private litigation which involves the implementation or enforcement of legislation qualifies under the test. This, of course, would make the test meaningless. At the very least I believe there should be some guidelines and the authorization of some private cause of action would be a useful guideline in determining whether important legislative policy is being implemented. See, e.g., the Consumer Protection Act, RCW 19.86. Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 264 , 44 L. Ed. 2d 141 , 95 S. Ct. 1612 (1975).

Finally, I am not certain whether there has been "a considerable economic expense". The attorney fees are $88,500. There are nine families who are plaintiffs. Dividing 9 into $88,500 results in attorney fees for each family of $9,833. If plaintiff Lake Spokane Environmental Association is added, the total fees for each plaintiff equal $8,850. This may or may not be "a considerable economic expense". Nothing in the record indicates the ability of plaintiffs to pay, nor are any criteria for defining the term suggested by the majority. Plaintiffs have been awarded $245,000 in damages which, of course, will more than cover any attorney fees.

While I do not believe we should adopt the private attorney general theory under any circumstances, it is apparent that in this case none of the tests suggested in PUD 1 v. Kottsick, supra, for such an award have been met. Therefore, I would deny payment of attorney fees by defendants to plaintiffs.

Utter, Brachtenbach, and Dimmick, JJ., concur with Dolliver, J.