(concurring in part, dissenting in part) — I concur in the majority’s conclusion that the public nuisance claims should be dismissed, although I would address them in greater detail and affirm the Court of Appeals’ conclusion that Evelyne Grundy cannot base a public nuisance claim on the illegality of underlying permits unless she successfully challenges the issuance of those permits under the Land Use Petition Act (LUPA), chapter 36.70C RCW.
¶30 A short review of Grundy’s legal theories is necessary to place the majority’s erroneous analysis in context.
¶31 Grundy makes three nuisance claims. Nuisance is a statutory cause of action in Washington. Grundy claimed a public nuisance under RCW 7.48.130 (under two separate legal theories) and a private nuisance under RCW 7.48.150. “A public nuisance is one which affects equally the rights of an entire community or neighborhood, although the extent of the damage may be unequal.” RCW 7.48.130. “Every nuisance not included in the definition of RCW 7.48.130 is private.” RCW 7.48.150.
¶32 Grundy asserts heightening the seawall is a public nuisance for two reasons: (1) increasing the height of the seawall violates RCW 7.48.140(3), and (2) building the seawall without an allegedly required permit is a per se public nuisance.
¶33 RCW 7.48.140 is titled “[p]ublic nuisances enumerated.” Grundy’s First Amended Complaint alleged increasing the height of the seawall falls within the ambit of subsection (3): “[t]o obstruct or impede, without legal au*12thority, the passage of any river, harbor, or collection of water.” Clerk’s Papers (CP) at 9 (emphasis added). Since the Bracks’ building permit constitutes “legal authority” to raise the height of the seawall, Grundy attacks the validity of the permit. She tries to do this by alleging that the building permit should not have been issued absent a shoreline substantial development permit. CP at 9-12.
¶34 Grundy also claims that any structure built without the proper permits is a public nuisance per se. Of course, in order to make this dubious claim,9 Grundy must show that the structure was actually built without proper permits.
¶35 RCW 7.48.160 provides further impetus for Grundy to attack the Bracks’ permit. It states, “[njothing which is done or maintained under the express authority of a statute, can be deemed a nuisance.” The trial court clearly considered this statute when granting summary judgment, Report of Proceedings (RP) at 5, 35 (stating that there was no nuisance because the Bracks had “valid permits”). Since this statute could arguably be interpreted to immunize any improvement to real property from being the source of a nuisance complaint if built according to a permit, the statute leads Grundy to attack Bracks’ permit.10
*13¶36 Grundy’s public nuisance action was dismissed on summary judgment because the trial court concluded Grundy’s attack on the permit was barred by the LUPA since no action was filed within 21 days of issuance. It is this determination that is the subject of the majority’s first error.
I. Public Nuisances and Permits
¶37 The majority contends the public nuisance claims are not properly before the court because Thurston County is not a party to this appeal. Majority at 8. I agree when a public nuisance action is premised on the alleged illegality of a permit, the issuing authority may be a necessary party.* 11 However, Thurston County is respondent in this action and filed an appellate brief.12 The majority also states that “the trial court did not determine the legality of the exemption the county issued to the Bracks.” Majority at 7. The record clearly belies this statement.
¶38 Grundy’s failure to attack the underlying permit in a LUPA action was a central issue at oral argument on the motion for summary judgment. RP at 5,10, 23, 29. The trial court specifically stated:
The Court will hold the following: the failure to challenge the decision of a granted permit under LUPA, under the time stated of the seawall, constitutes what I consider summary *14judgment and order; I specifically reject the fact the bulkhead was built pursuant to an invalid permit; and I grant summary judgment for the Bracks to continue [to] have the seawall. However, I deny summary judgment to Thurston County as to whether or not the permit is illegal.
RP at 33.
¶39 These statements must be viewed in light of the claims Grundy made in her first amended complaint and the circumstances of summary judgment. The County did not seek summary judgment, only the Bracks. See CP at 14;13 RP at 15 (where the attorney for Thurston County states “We didn’t provide any materials. It’s not our summary judgment.”). As the majority noted, Grundy only sought abatement against the Bracks. But Grundy also sought a declaration that the permit was “null and void as contrary to law” and attorney fees on the grounds of “the bad faith of the county in issuance of the permit.” First Am. Compl. (CP at 12). The trial court granted the Bracks’ motion for summary judgment dismissing the nuisance claims but withheld any decision regarding the illegality of the permit as to the claims against the county.14 RP at 33, 35; CP at 94.
¶40 The trial court clearly dismissed the public nuisance claims on the ground that Grundy could not collaterally attack the permits absent a timely challenge under LUPA. I fail to see how the county’s status in this appeal is at all relevant. The majority fails to explain how the determination that the permits should be deemed valid because their issuance was not challenged rests on whether the issuing authority is party to an appeal. I see no connection, but the county is a respondent in any event.
*15¶41 The majority continues, “Whether the county illegally issued an administrative shoreline exemption to the Bracks was not decided by the trial court, so it is not properly before us.” Majority at 8. But the reason the trial court didn’t reach the illegality of the administrative shoreline exemption was because Grundy didn’t challenge the exemption, or the building permit linked to the exemption, under LUPAl And Grundy’s appeal rests largely on the assertion that this determination by the trial court was in error. If Grundy was right that LUPA does not foreclose her collateral attack on the legality of the permit, she would likely be entitled to relief.
¶42 Grundy deserves her day in court, by which I mean consideration of all the legal arguments she advances. I give her the analysis she is due.
II. Does LUPA apply?
¶43 Because the majority errs in its claim that Grundy’s public nuisance claim is not before this court, we must determine if Grundy is foreclosed from claiming the permit is illegal because Grundy didn’t challenge the permit through a LUPA action.
¶44 I would follow the learned Court of Appeals opinion to hold because Grundy did not challenge the permit in a LUPA action, she is foreclosed from claiming the illegality of the permit as the basis of her public nuisance claim. Such would simply be a collateral attack on the permit and would allow any party to avoid the procedural requirements of LUPA by claiming development authorized by an unchallenged permit is a “public nuisance” and later suing to abate the alleged public nuisance. By explicitly stating that LUPA is the “exclusive means of judicial review of land use decisions,” RCW 36.70C.030(1), the legislature clearly did not intend for public nuisance actions premised on permit invalidity to “end run” around chapter 36.70C RCW.15
*16III. The Common Enemy Rule Bars Grundy’s Private Nuisance Claim
¶45 The Bracks cited the need to defend against “storm-driven seawater” and “winter storms.”16 The Court of Appeals described the surface waters at issue as “ ‘ocean surge water’ ”17 and quoted our definition of surface waters from Miller v. Eastern Railway & Lumber Co.:
Surface waters that may “become vagrant and subject to outlawry are waters accumulating and spreading in consequence of heavy rains and storms.”
Grundy v. Brack Family Trust, 116 Wn. App. 625, 635, 67 P.3d 500 (2003) (emphasis added) (quoting Miller v. E. Ry. & Lumber Co., 84 Wash. 31, 34-35, 146 P. 171 (1915)).
¶46 Citing our decision in Halverson,18 the majority asserts that “[s]torm-driven waves in Puget Sound remain part of a definite and identifiable body of water when splashing onto waterfront property.” Majority at 10. I cannot see how storm-driven waves which overflow the normal high-water mark differ from storm-swollen river waters that overflow their banks.
¶47 The waters of Puget Sound within the boundaries of ordinary high tides might well not meet the definition of “surface waters” from our case law, just as the waters traveling within the banks of a defined river are not “surface waters.” But just as the waters that escaped the *17banks of a river are surface waters,19 Puget Sound waters driven by storms past the regular high tide marks are surface waters.
¶48 The majority cites the “ ‘chief characteristic’ ” of surface water “ ‘is its inability to maintain its identity and existence as a body of water.’ ” Majority at 10 (quoting Halverson v. Skagit County, 139 Wn.2d 1, 15, 983 P.2d 643 (1999)). But the majority fails to distinguish between river floodwater that overflows its banks, gradually losing its “ ‘identity and existence’ ” as a river while becoming pools and then evaporating altogether, and the exact same action by storm-driven waves which respond similarly as storm conditions subside.
¶49 In fact, all the reasons supporting the application of the common enemy rule against storm-generated flooding from rivers apply equally against storm-generated flooding from Puget Sound. It was precisely because the reasons for applying this rule are identical that the application of the common enemy rule to Puget Sound has not been questioned in the more than 100 years since this court first acknowledged that the rule applied in Cass v. Dicks, 14 Wash. 75, 44 P. 113 (1896).20
¶50 Although the majority fails to anchor its holding on the rationale underlying the common enemy rule, that rationale is set forth in Cass and is worth recalling:
The rule is based upon the principle that such water is a part of the land upon which it lies, or over which it temporarily flows, and that an owner of lands has a right to the free and unrestrained use of it, above, upon and beneath the surface.
Id. at 78.
*18¶51 This applies equally to landowners located on the banks of the Puget Sound as to those on the banks of the Skagit River.
¶52 I see no reason to abandon over 100 years of precedent applying the common enemy rule against storm-driven seawater in Washington.
IV. Conclusion
¶53 LUPA time bars the collateral attack on the legality of the shoreline exemption and building permit, an attack which Grundy must make in order to prove her public nuisance claims. Thus, I concur in the result reached by the majority as to the public nuisance claims. However, the common enemy rule has insulated property owners from liability for protecting themselves from Puget Sound storm-driven floodwaters for over 100 years, and now is no time to change.
¶54 I would affirm the trial court’s dismissal in its entirety and dissent.
Reconsideration denied October 7, 2005.
Grundy has cited two cases to support this claim, Kitsap County v. Kev, Inc., 106 Wn.2d 135, 720 P.2d 818 (1986), and State v. Boren, 42 Wn.2d 155, 253 P.2d 939 (1953). But neither of these cases is on point. Neither dealt with the construction of an improvement to real property without allegedly necessary permits. Both dealt with engaging in a regulated business or profession “in defiance of a law regulating or prohibiting the same.” Kev, Inc., 106 Wn.2d at 138. In Kev, Inc., the business was a strip parlor which violated numerous regulatory and criminal laws. In Boren the per se public nuisance was practicing dentistry without a license. Similarly, in every case in which the term “nuisance per se” has been used by this court, the term has been applied to the operation of a business. Grundy has not provided any rationale for extending such an action to improvements to real property built without proper permits, let alone improvements to real property built under permits that were alleged to have been erroneously issued by the government.
I am not convinced that this statute immunizes a property owner who obtains required government permits from a nuisance action. The statute was originally drafted in 1875 by the Territorial Legislative Assembly and has not been amended since. Second, when this statute was drafted there was no requirement to get any kind of permit to improve real property. There was no requirement to obtain a building permit, let alone any of the vast array of so-called “environmental” permits now issued by state and local governments. Therefore it is very unlikely *13that the drafters of this statute had in mind what we now call “permits” when they used the phrase “done or maintained under the express authority of a statute.” Further, our past cases have not treated this statute as a bar to analysis of potential liability for a private nuisance. See Bruskland v. Oak Theater, Inc., 42 Wn.2d 346, 350-51, 254 P.2d 1035 (1953).
However, the issue of the meaning of this statute is not central to this dissent, since I would affirm the Court of Appeals’ determination that failure to appeal the building permit under LUPA forecloses the public nuisance actions and that the common enemy doctrine immunizes the Bracks from the private nuisance claim.
“A necessary party is one which has sufficient interest in the litigation that the judgment cannot be determined without affecting that interest or leaving it unresolved.” Harvey v. Bd. of County Comm’rs of San Juan County, 90 Wn.2d 473, 474, 584 P.2d 391 (1978) (citing Civil Rule 19(a)).
Br. of Resp’t Thurston County filed in the Court of Appeals, Division Two, No. 26347-5-II.
The Bracks’ motion for summary judgment further demonstrates the centrality of the LUPA argument, since it constitutes the centerpiece of the motion. CP at 17-20.
Admittedly, those “claims” were ill-pleaded, perhaps not even sufficient to meet the liberal standards of CB. 8, particularly if Grundy actually sought a declaratory judgment against the county regarding the permit. However, the county did not raise that, and the trial court reserved such issues, along with all “claims” against the county, for another day.
Grundy also alleges that if LUPA were applied to bar her claim, her constitutional right to due process of law under the fourteenth amendment to the United States Constitution would he violated. I simply note that the Fourteenth *16Amendment applies only to government action that deprives one of “life, liberty, or property.” Grundy has certainly not demonstrated a liberty or property interest in her neighbor’s receipt of a permit.
LUPA does not apply to claims for monetary damages or compensation, ROW 36.70C.030(l)(c), but this action is for abatement, not damages or compensation.
See Answer to Resp’t’s Pet. for Review at 8; Court of Appeals Resp. Br. of Brack Resp’ts at 6; and Resp. to Amicus Br. of Wash. Environmental Council at 8 (“The common enemy rule permits a land owner to protect his or her property from damage when some unusual event, such as a winter storm, drives vagrant seawater past the line of ordinary high tide.” (emphasis added)).
Grundy v. Brack Family Trust, 116 Wn. App. 625, 635, 67 P.3d 500 (2003).
Halverson v. Skagit County, 139 Wn.2d 1, 14-15, 983 P.2d 643 (1999).
Halverson, 139 Wn.2d at 14-15.
In fact, the common enemy rule has its roots in protection from encroachment of the sea. See discussion of The King v. Commissioners of Sewers of Pagham, (1828) 108 Eng. Rep. Full Reprint 1075 (K.B.), as discussed in Miller v. Letzerich, 121 Tex. 248, 49 S.W.2d 404, 410 (1932).