A Message From the Editors

Welcome the ELUL Articles Blog, a newly minted and reformatted version of the ELUL Newsletter from yesteryear. This launch has been a long time coming. We have worked with the WSBA ELUL Executive Committee and section members for two years to move the old newsletter to a new online resource. Several goals animated this change in approach. First, there was a desire for a more nimble and responsive resource for members. This meant seeking a user-friendly, online platform through which we could quickly address newsworthy events affecting ELUL practitioners. By removing formal elements that slowed publication of the previous newsletter, we hope to notify members about significant developments in the law in a timelier manner. Our second aim was to present shorter, easier to digest articles. People do not read the web, they skim it. We want to make information readily accessible and engaging.

Today, we are posting a collection of the initial articles we requested from attorneys as we have attempted to launch this online resource through a series of full-fits and half-starts. It seems inconceivable that we first requested articles in 2018, when we began the transition from a newsletter to an online vehicle. This transition has taken longer than expected, and the delay in posting these articles rests solely with us as editors. Each author provided timely, relevant material, and we thank the authors for their efforts and their patience.

With that being said, we are thrilled to launch this blog with three articles that contain valuable summaries and insights. First, you will find an article written in 2018 about the Washington Supreme Court’s Pope Resources decision, which addresses owner/operator liability under the Model Toxics Control Act. Second, we have included an article discussing the Washington State Court of Appeals decision in the water resources case Crown West v. Ecology, centering on the interpretation and application of the Municipal Water Law. Finally, you’ll find a discussion of the 2019 Knick v. Township of Scott decision from the United States Supreme Court, which centered on whether property owners must exhaust state remedies before pursuing takings claims in federal court.

Although the COVID-19 pandemic has upended our daily routines, it has not prevented new decisions with wide-ranging implications to our legal practices. Developments in environmental and land use law march on. COVID-19 itself has affected how lawyers work, and how land use, environmental cleanup, enforcement, and defense operate. There is plenty about which to keep ELUL members apprised. Again, we thank the initial article writers, and look forward to building this resource moving forward.

If you have an idea for an article concerning a recent development and can discuss it in 800–1000 words, please contact us. In light of recent protests and demonstrations, we would be particularly interested in perspectives on environmental justice and diversity and inclusion in environmental and land use law. In the meantime we will be reaching out to attorneys, policymakers, wonks, law students and professors, and everyone in between to build this new resource. We welcome your thoughts and input, and look forward to crafting a useful tool for your practices.

Knick v. Township of Scott: Holding and Implications

Roger Wynne*

Since 1985, when the U.S. Supreme Court issued Williamson County Regional Planning Commission v. Hamilton Bank,[1] governments had a procedural defense to federal takings claims: if the state provided an adequate procedure for seeking just compensation from a state or local government, the property owner could not claim a violation of the Fifth Amendment’s just-compensation clause until the owner had used the procedure and been denied just compensation.

No longer. On June 21, 2019, the Court overruled that portion of Williamson County in Knick v. Township of Scott.[2] But Knick’s impacts should be modest: removing a procedural defense government attorneys had enjoyed and perhaps channeling more cases into federal courts instead of state courts.

Continue reading “Knick v. Township of Scott: Holding and Implications”

The Court of Appeals Takes on the Relinquishment Exemption for Municipal Water Rights

David Stearns*

Originally Submitted Fall 2019

In Crown West Realty v. Department of Ecology,[1] a case watched closely by municipal water rights holders looking for certainty in their water rights portfolios, Division 3 of the Court of Appeals engaged for the first time with the definition of “municipal water supply purposes” in the statutory relinquishment exemption for rights claimed for such uses. The Court held that water used for a hotel did not qualify for the exemption. While the decision answers one set of questions, it raises a host of new ones that will give the courts, Ecology, and municipal water rights holders plenty to grapple with in the years to come. Unfortunately, the Washington State Supreme Court passed up an opportunity to iron out some of the wrinkles in Washington water law that Crown West is sure to leave for others to sort out. Continue reading “The Court of Appeals Takes on the Relinquishment Exemption for Municipal Water Rights”

Who is an “Owner or Operator” under MTCA? The Washington Supreme Court Just Narrowed the List of Candidates

Andy Rigel and Lisa Chaiet Rahman*

Originally Submitted Summer 2018

On May 24, 2018, the Washington Supreme Court issued its highly-anticipated opinion analyzing the scope of “owner or operator” liability under Washington’s Model Toxics Control Act (“MTCA”). In Pope Resources, LP v. Washington State Department of Natural Resources,[1] the Court considered whether the Department of Natural Resources (“DNR”) was an “owner or operator” of contaminated aquatic lands that it managed on behalf of the State of Washington. The Court held that (1) a state agency’s delegated land management authority does not constitute an “ownership interest” under MTCA and (2) “an operator must manage, direct, or conduct operations specifically related to the pollution” in order to trigger MTCA liability.[2] This case has significant implications because it provides definitive guidance regarding who is liable as an owner or operator, which is perhaps the most fundamental aspect of MTCA’s liability framework. Continue reading “Who is an “Owner or Operator” under MTCA? The Washington Supreme Court Just Narrowed the List of Candidates”