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This oplhion was filed for record
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Pope Resources, LP, et al. v. Dep't ofNatural Resources (Gonzalez, J., dissenting)
No.94084-3
Gonzalez, J.(dissenting)—^The Model Toxics Control Act(MTCA), chs.
70.105 and 82.21 RCW,sets strict cleanup standards to ensure the protection of
human health and the environment. The Department of Natural Resources(DNR)
knew its tenant was contaminating the state's waters and did nothing. The
majority holds DNR is neither an owner nor an operator and therefore is not liable
under MTCA. I disagree. The majority's interpretation of MTCA owner or
operator liability undermines both the act's plain language and its strict liability
scheme. MTCA reflects an intentional policy choice that Washington voters made
in 1988 to hold those who have "any ownership interest in the facility or who
exercise[] any control over the facility" strictly liable. RCW 70.105D.020(22)(a)
(emphasis added); see generally State of Washington Voters Pamphlet,
General Election 6(Nov. 8, 1988){Voters Pamphlet)("Cleanups, not lawsuits.
[Initiative]-97 makes cleanups happen now—not later. The initiative prohibits
polluters from filing lawsuits that delay cleanups."). DNR's power to exclude.
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Pope Resources, LP, et al. v. Dep't ofNatural Resources, No. 94084-3 (Gonzalez, J., dissenting)
execute leases, and police violations amply constitutes "any control over the
facility," and thus DNR was liable as an "operator" ofthe site under MTCA.^
RCW 70.105D.020(22)(a). As the majority concludes otherwise, I respectfully
dissent.
MTCA broadly defines an "owner or operator" as "any person with any
ownership interest in the facility or who exercises any control over the facility."
RCW 70.105D.020(22)(a). The statute also explicitly includes state government
agencies in its definition of"person." RCW 70.105D.020(24). The majority
ignores this plain language and redefines "operator" liability with a narrower
standard taken from the judicial interpretation of the federal statute that was the
model for MTCA,the Comprehensive Environmental Response, Compensation
and Liability Act of 1980(CERCLA),42 U.S.C. §§ 9601-9675. Under CERCLA,
'"an operator is simply someone who directs the workings of, manages, or
conducts the affairs of a facility.'" Majority at 21 (internal quotation marks
omitted)(quoting Taliesen Corp. v. RazoreLand Co., 135 Wn. App. 106, 128, 144,
P.3dll85 (2006)).
^ We do not need to resolve whether DNR had an "ownership interest" in the contaminated site
because DNR is liable for remediation costs as an "operator." Nevertheless, because I disagree
with the premises on which the majority relies, I discuss ownership briefly.
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Pope Resources, LF, et al. v. Dep't ofNatural Resources, No. 94084-3 (Gonzalez, J., dissenting)
The majority relies on CERCLA jurisprudence simply because the Court of
Appeals in Unigard^ and Talieserf did so. Majority at 20. Under CERCLA,as
interpreted in United States v. Bestfoods, 524 U.S. 51, 66, 118 S. Ct. 1876, 141 L.
Ed. 2d 43 (1998), and applied in Unigard and Taliesen,"an operator must
'manage, direct, or conduct operations specifically related to pollution, that is,
operations having to do with the leakage or disposal of hazardous waste, or
decisions about compliance with environmental regulations.'" Unigard, 97 Wn.
App. at 429 Bestfoods, 524 U.S. at 66-67); see also Taliesen, 135 Wn.
App. at 127-28; 42 U.S.C. 9601(20)(A). But Bestfoods and its CERCLA analysis
should not apply here. We are not bound by the Court of Appeals decisions in
Unigard and Taliesen, and we have compelling state law reasons to depart from
them.
Although MTCA was heavily patterned after CERCLA,the statute's
definitions of"owner or operator" are not the same as MTCA's. Compare 42
U.S.C. § 9601(20)("[t]he term 'owner or operator' means ... in the case of an
onshore facility or an offshore facility, any person owning or operating such
^ Unigard Ins. Co. v. Leven, 97 Wn. App. 417, 429,431,983 P.2d 1155(1999)(the lessor was
liable under MTCA,but Leven as a sbarebolder ofthe company possessing the lease was not an
owner or operator because be did not "participate in, or actually exercise control over, the
operations ofthe facility.").
^135 Wn. App. at 127-28 (the lessor of the property was liable under MTCA,but the project's
drilling subcontractor was not liable as an operator because at the time of drilling, be bad no
control over where to drill or bow deep).
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Pope Resources, LP, et al. v. Dep't ofNatural Resources, No. 94084-3 (Gonzalez, J., dissenting)
facility"), with RCW 70.105D.020(22)(a)("any person with any ownership interest
in the facility or who exercises any control over the facility"). Differences in
language between a federal statute and our local equivalent are presumed to be
intentional and reflect a different intent. Bird-Johnson Corp. v. Dana Corp., 119
Wn.2d 423, 427-28, 833 P.2d 375 (1992); see also Seattle City Light v. Dep't of
Transp., 98 Wn. App. 165, 170, 989 P.2d 1164(1999)(MTCA makes strict and
joint and several liability express). The majority does not offer a compelling
reason to depart from these precedents. Its reliance on federal law is misguided.
Under the federal standard, as interpreted by the majority, DNR cannot be
liable because the agency did not make business deeisions for the company leading
to the contamination. Majority at 21 ('"an operator is simply someone who directs
the workings of, manages, or eonducts the affairs of a facility'"(internal quotation
marks omitted)(quoting Taliesen, 135 Wn. App. at 128)). This is incorrect. To
escape liability under MTCA in this case, DNR would have to establish that it is
neither an "owner" nor an "operator." RCW 70.105D.020(22)(a). The majority
focuses on whether a state agency could be liable as an "owner" with an
"ownership interest." Majority at 16-17; see RCW 70.105D.020(22)(a).
Essentially, it determines that a state agency cannot be held liable as an "owner"
because the agency is merely a lessor for the property owned by the state.
Majority at 16-17. But MTCA clearly contemplates that state government
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Pope Resources, LP, et al. v. Dep 't ofNatural Resources, No. 94084-3 (Gonzalez, J., dissenting)
agencies can be owners for purposes ofthe act, despite the majority's contention
that an "owner" must hold a deed. Id. at 9. But see RCW 70.105D.020(22)(a),
(24)("[a]ny person with any ownership interest in the facility or who exercises any
control over the facility"; "'[pjerson' means an individual, firm, corporation,
association, partnership, consortium,joint venture, commercial entity, state
government agency, unit oflocal government, federal government agency, or
Indian tribe"). Under the majority's interpretation ofthe term "owner," its
explanation ofthe State's constitutional ownership ofthe public trust, and its
ability to delegate managerial duties, a state agency could never be an "owner"
under MTCA. However, legislative enactments suggest otherwise. See, e.g.,
Laws of 2005, ch. 155, § 121 (appropriating funds to DNR for "settlement costs
for aquatic lands cleanup"), ch. 518, § 1205 (appropriating funds to DNR to settle
MTCA litigation brought against DNR by a private party). Washington State has
never required title to be transferred to a government agency for that government
agency to be liable as an owner. Cf. Wasser & Winters Co. v. Jefferson County, 84
Wn.2d 597,600, 528 P.2d 471 (1974)(title is not the only indicia of ownership).
Nonetheless, it is unnecessary to determine if DNR is liable as an owner because
DNR is clearly liable as an operator.
DNR is undoubtedly liable as an "operator" under MTCA. DNR's ability to
exercise the right of exclusion, execute leases, attach conditions to the leases, and
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Pope Resources, LP, et al. v. Dep't ofNatural Resources, No. 94084-3(GonzMez, J., dissenting)
police violations constitutes ''any control over the facility." RCW
70.105D.020(22)(a)(emphasis added). Holding DNR strictly liable here will
ensure state agencies enforce their covenants and prevent pollution that they would
otherwise be partly responsible for, as the voters intended. RCW
70.105D.020(24); see also Debra L. Stephens & Bryan P. Hametiaux, The Value of
Government Tort Liability: Washington State's Journeyfrom Immunity to
Accountability, 30 SEATTLE U.L. Rev. 35,59(2006)("any suggestion that tort
liability is not an impetus for change in the context of governmental conduct rests
on the doubtful premise that the government is uniquely unable to reform"). Voters
approved MTCA to "eliminate[]polluters' loopholes." Voters Pamphlet,supra, at
MTCA does not specifically define the term "control," so we look to its
usual and ordinary meaning. Fraternal Order ofEagles, Tenino Aerie No. 564 v.
Grand Aerie ofFraternal Order ofEagles, 148 Wn.2d 224, 239, 59 P.3d 655
(2002). "Control" means the "power or authority to guide or manage: directing or
restraining domination." Webster's Third New International Dictionary 496
(1971); see also Black's Law Dictionary 403 (10th ed. 2014)("control" means
"[t]o exercise power or influence over"). DNR's ability to lease aquatic land
amounts to any control ofthe facility. As the majority explains, the legislature
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Pope Resources, LP, et al. v. Dep't ofNatural Resources, No. 94084-3 (Gonzalez, J., dissenting)
explicitly delegated to DNR the duty to manage aquatic lands, including the Port
Gamble Bay site. Majority at 10 (citing RCW 79.105.010).
DNR undertook its duty to affirmatively manage the 72 acres of state-owned
aquatic land. It executed three leases for the 72-acre shoreline over approximately
20 years. The first lease, signed in 1974, allowed Pope and Talbot to store, raft,
and boom logs on about 70 acres ofthe land. Provisions in the 1974 lease required
Pope and Talbot to "provide facilities for lowering logs into the water without
tumbling, which loosens the bark." Clerk's Papers at 105. Such handling
minimizes wood waste. When wood waste breaks down, it releases sulfide and
ammonia, which are harmful to bottom-dwelling creatures. Wood waste also
affects sediment by smothering aquatic habitat and bottom-dwelling creatures,
such as clams.
In 1991,DNR removed the protective provisions and identified the bay as an
ideal place for log storage in the renewed lease agreement with Pope and Talbot.
Toxic wood waste inevitably corresponds with log storage, and DNR knew that
Pope and Talbot had been polluting in Port Gamble Bay. See id. at 134 (internal
memorandum recognizing contamination problems created by wood waste from
Pope and Talbot's operations). Yet, DNR's lease with Pope and Talbot expressly
authorized overwater log storage in a specific area ofthe bay that DNR determined
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Pope Resources, LP, et al. v. Dep't ofNatural Resources, No. 94084-3 (Gonzalez, J., dissenting)
to be "highly suitable" for that purpose. Id. at 39. DNR continued to collect rent
while failing to mitigate the damage or deter pollution.
DNR exercised control as an operator. MTCA specifies that liability
attaches when there is ''any ownership interest" or "any control over the facility."
RCW 70.105D.020(22)(a)(emphasis added). The majority's interpretation of
MTCA owner or operator liability undermines the act's plain language and strict
liability scheme. Plainly, MTCA defines "owner or operator" liability more
broadly than CERCLA. Through its ability to exclude, execute leases, and police
violations, which constitutes "any control over the facility," DNR was liable as an
"operator" ofthe site under MTCA. Accordingly, I respectfully dissent.
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Pope Resources, LP, et al. v. Dep't ofNatural Resources,'Ho. 94084-3 (Gonzalez, J., dissenting)