Buchanan v. Simplot Feeders Ltd. Partnership

Alexander, J.

(dissenting) — While I do not necessarily disagree with the majority when it expresses the view that the defendants should not be permitted to rely on the *691Right-to-Farm Act in defense of the nuisance action that the Buchanans maintained in federal court against Simplot and IBR Inc., I feel compelled to point out that the federal court did not ask us whether or not the nuisance exemption may be raised by the defendants. While it is often tempting to answer questions of law that are not put to us, we should avoid answering questions of state law not certified to us by a federal court. See RCW 2.60.020; RAP 16.16; Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 77, 821 P.2d 18 (1991); Washington Water Power Co. v. Graybar Elec. Co., 112 Wn.2d 847, 852 n.3, 774 P.2d 1199, 779 P.2d 697 (1989) (“we decline to consider the matter, as it falls outside the scope of the federal district court’s order of certification”).

The only question we should answer is the one directed to us by the federal court. It is as follows:

Does the 1992 amendment to RCW § 7.48.305 which added the passage “Nothing in this section shall affect or impair any right to sue for damages” limit application of the balance of the section to actions seeking extraordinary relief?

Pet. to Determine Certified Question of Law and Certified R. at 2.

The majority answers the certified question “no.” I disagree with this answer because the plain language of the statute simply does not support such an answer. I reach that conclusion because the above-quoted damages sentence, which was added to RCW 7.48.305 in 1992, clearly and unambiguously allows the plaintiffs’ claim for damages. I am persuaded that while the first two paragraphs of RCW 7.48.305 create an exemption from nuisance actions for certain agricultural activities, the third paragraph limits that exemption by preserving actions for damages for nuisance. In short, the majority’s conclusion that the damages sentence should be read as referring to only the plaintiffs’ ability to seek damages in other causes of action, such as trespass, is not borne out by the plain language of the statute. While such an interpretation apparently accords with the majority’s view of the underlying purpose of *692the Right-to-Farm Act, we are not to apply rules of construction to create an ambiguity where none exists or to discern a meaning that is contrary to the plain meaning of the words of the statute. See Rettkowski v. Department of Ecology, 128 Wn.2d 508, 515, 910 P.2d 462 (1996).

Johnson, J., concurs with Alexander, J.