(concurring) — I concur that the opinion of the Court of Appeals should be affirmed and this matter should be remanded for trial.
However, I disagree with the majority that a takings analysis is at all appropriate, as this is a case between private parties involving trespass and conversion, not eminent domain or inverse condemnation. In this regard the majority states, “More fundamentally, applying takings law to this case is inappropriate.” Majority at 252. If so, why discuss it?
Whether Saddle Mountain might have a viable claim against the government is not before us and is not relevant to the outcome here. Moreover, I question the majority’s dicta analysis in several respects. Use regulations may yield a taking; however, a physical appropriation or trespass or illegitimate permit condition or exaction may also constitute a taking.4 And a mere “damaging” under article I, section 16 of our state constitution is also actionable even where a “taking” has not occurred. See, e.g., Brown v. City of Seattle, 5 Wash. 35, 40-41, 31 P. 313 (1892).
Therefore, I think it better to leave development of our takings jurisprudence to cases which require resolution of a takings issue, which this does not.
A taking may occur if the regulation “ ‘does not substantially advance legitimate state interests,... or denies an owner economically viable use of his land.’” Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 485, 107 S. Ct. 1232, 94 L. Ed. 2d 472 (1987) (quoting Agins v. Tiburon, 447 U.S. 255, 260, 100 S. Ct. 2138, 65 L. Ed. 2d 106 (1980)).