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Gary L. Baker

Abstract

A recent decision by the Washington State Supreme Court, Miotke v. City of Spokane, may broadly affect the right to and type of recovery that will be available to persons whose property rights are infringed either by an agent of the state or by private parties. Miotke involved the dumping of untreated sewage into a river, with the sewage flowing into a lake and interfering with lakefront property owners' enjoyment of their property. The court in Miotke faced a set of claims in property, tort, and state environmental law. The court recognized the significance of its decision and the novel issues before it, yet the opinion left important questions unanswered and raised new ones. The Miotke court faced several important issues in this admittedly complex case. First, when should a unit of state government be held liable for certain conduct under a tort theory rather than under an eminent domain theory?" Second, when liability is based upon tort, can a common law tort provide in essence a private right of action for the violation of certain environmental laws that themselves provide no express right of action? Finally, are injured parties entitled to additional damages based upon a "novel theory" of tort recovery for the violation of one's "fundamental right" to a healthful environment as guaranteed by the State Environmental Policy Act (SEPA)? The Miotke court's resolution, or lack thereof, of each of these issues is likely to have far reaching effects, some of them perhaps unintended. This Note addresses the Miotke court's choice of a statutory nuisance remedy over a constitutionally-based eminent domain theory. In addition, this Note addresses the court's potentially significant denial of additional SEPA-based damages, but suggests that the court may in the future use this SEPA-based theory to provide tort recovery.

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