Closely Divided State Supreme Court Redefines “Known Dangerous Artificial Latent Condition” for Purposes of the Recreational Use Immunity Statute

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Andy Woo

*This article reflects the personal views, analyses, or opinions of the author, and not the official position or opinion of the Attorney General or the Office of the Attorney General. It should not be construed as legal advice and does not constitute an official opinion of the State of Washington.

On September 1, 2022, the Washington State Supreme Court issued a 5-4 decision in Schwartz v. King County, 200 Wn.2d 231, 516 P.3d 360 (2022), that has significant implications for those who open their property to public outdoor recreation. This case is the latest in a line of recent Supreme Court and Court of Appeals cases reflecting a continued tension between the legislative and societal policy underlying Washington’s recreational use immunity statute, RCW 4.24.200-210—which is to encourage landowners or others to make lands and water areas available to the public for recreation—on the one hand, and the modern judicial trend towards abrogating both common law and statutory immunities for negligence liability, on the other. In this most recent effort by the Court to resolve that tension, those who open lands and water areas to public outdoor recreation [hereinafter collectively “landowners and occupiers”] now face added uncertainty as to the scope of recreational use immunity and increased potential liability.

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DOJ Restores Supplemental Environmental Projects in a Slate of Environmental Justice Initiatives

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Mike Farber, Britt Fleming, Rachael Lipinski, Paul Libus, and Savian Gray-Sommerville

*This article was originally published as a firm alert and is being republished with the permission of Van Ness Feldman. 

In May 2022, the United States Department of Justice (“DOJ”) introduced a slate of environmental justice initiatives to address pollution and climate impacts in underserved communities.  Included in these initiatives is the restoration of federal prosecutors’ authority to use supplemental environmental projects (SEPs), which allow defendants to undertake such projects as part of environmental enforcement settlements.  Additionally, DOJ also announced its new environmental justice strategy and launched the new DOJ Office of Environmental Justice.  These initiatives fall under the Comprehensive Environmental Justice Enforcement Strategy which was created in response to President Biden’s Executive Order 14008, Tackling the Climate Crisis at Home and Abroad.

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Timber Briefing: U.S. Lumber Prices Could Be Affected By Sanctions On Russia

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Danny C. Kelly-Stallings, Marisa N. Bocci, Christopher J. Voss, Michael E. Ruck

*This article was originally published as a K&L Gates Client Alert and is being republished with the permission of K&L Gates.

The U.S. lumber market has seen unprecedented price rises in recent years. Prices could climb even higher as the world responds to the conflict between Russia and Ukraine. Russia is a major exporter of wood in the global market, particularly in China and the European Union. If these countries restrict wood products imports from Russia, or if Russia refuses to export to them, the strain on global supply could drive domestic prices to new heights as Russia-dependent markets look for new sources of wood. 

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A Dollar for Your Thoughts? Potential Outcomes of Uzuegbunam v. Preczewski for Climate Litigants

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David Wang*

In what could prove to be a boon for climate litigants, the U.S. Supreme Court decided earlier this year that nominal damages can sufficiently satisfy the “redressability” prong of Article III standing. In Uzuegbunam v. Preczewski, the Supreme Court considered whether Chike Uzuegbunam, a student at Georgia Gwinnett College, could still allege First Amendment violations against college officials even after the officials abandoned the speech restrictions at issue.[1] The Supreme Court decided in March that Mr. Uzuegbunam still had standing to make the claim if he claimed nominal damages—a trivial monetary award for a plaintiff whose legal right was technically violated but is otherwise not entitled to compensation because of no accompanying loss or harm. As a result, Uzuegbunam may have opened up an avenue for many litigants (including climate litigants) to overcome the ever-present thorns of Article III standing requirements.

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Clarifying the Scope of Transportation Facility Stormwater Regulation in Washington

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Erika Spanton*

The United States District Court for the Western District of Washington and Washington Pollution Control Hearings Board recently ruled that in the context of transportation facilities, the scope of Washington’s former 2015 and current 2020 Industrial Stormwater General Permit (ISGP) are limited to only the portions of the facility involved in specified auxiliary operations, not the entire transportation facility. 

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