Featured Case

Takings claim made against Washington dike project

Fitzpatrick v. Okanogan County

Contact: Brian T. Hodges

Status: Favorable decision issued by the Washington Supreme Court on Sept. 2, 2010.

Summary: Siblings Heather Fitzpatrick Sturgill and Don L. Fitzpatrick (the landowners) acquired property along the Methow River in Mazama, Washington, in the early 1980s. They built a log home and garage in the mid-1980s. Prior to June 16, 2002, the channel alignment of the Methow River was generally southwest and away from plaintiffs’ property. Their home was 80 to 100 feet from the Methow River, which was outside of the 100-year flood line.

On June 16, 2002, during a storm, the river avulsed—the channel changed course very quickly and resulted in a new channel alignment separate from the previous channel alignment. The change in channel alignment caused a substantial force of water to be redirected straight at the landowners’ property, resulting in a rapid erosion of the land and ultimately causing their house to collapse into the river. The landowners permanently lost their home, its contents, and a significant portion of land. The garage now is located immediately along the edge of the new riverbank.

The landowners filed an action against the State of Washington and Okanogan County claiming that the government entities’ construction of a dike upstream from their property caused the avulsion and the loss of their home. The landowners argued that in the 1970s the county and the state sponsored and constructed the Sloan-Witchert Slough Dike along the Methow River’s downstream right bank, approximately one and one half miles upstream from the landowners’ property. The dike was constructed as a public project to defend Washington State Highway 20, the Weeman Bridge, and several private properties from flooding. The dike was subsequently repaired and/or extended between 1978 and 1999. As a result of the dike’s construction and expansion, naturally occurring drainage channels for the river were blocked, channels that would have relieved the flow of water in the river and prevented the landowners’ loss.

The landowners argued that the County and State’s deliberate actions resulted in a taking of their property. In response, the County argued that the common enemy defense bars the landowners from recovering for the flooding of their land. In the alternative, the County argues that the landowners should have sued under a theory of negligence, not taking, and that therefore the landowners’ suit was barred and recovery precluded.

The trial court denied the County’s motion for summary judgment, and the Court of Appeals affirmed.
PLF’s brief to the Washington Supreme Court clarified that the constitutional guarantee of just compensation holds irrespective of the government’s intentions, and therefore such claims cannot be recharacterized as torts. The Court of Appeals reversed.

On Sept. 2, 2010, the Washington’s Supreme Court issued a 7-2 decision affirming the Court of Appeals and reinstating Fitzpatricks’ inverse condemnation suit. PLF filed an amicus brief demonstrating that the notion of "intent" in inverse condemnation claims is a relic of pre-Court of Claims/Tucker Act decisions, where takings claims were treated claims for breach of implied contract. PLF argued that questions going to government are irrelevant.

The Court agreed with our brief, stating unequivocally that the question whether the damage was contemplated by or necessarily incident to the government action is not an element of inverse condemnation. Instead, it asks whether the damage is a consequence of the public act and is properly treated as an inquiry under the public use prong.