Leonard and Jeanne Halverson, et al. v. Skagit County and State of Washington

Inverse Condemnation - Before the Skagit River empties into Skagit Bay on the Puget Sound, it flows through 90,000 acres of property lying in a floodplain. The Skagit River delta floodplain is approximately 11 miles across an east-west axis, and 19 miles along a north-south axis. The Nookachamps area, located upstream from the City of Mount Vernon and across the river from the City of Burlington, lies in the Skagit floodplain and has historically been subject to flooding. The Skagit River has reached flood stage 41 times between 1900 and 1991, an average of once every 2.2 years.

To combat the flooding, landowners along the Skagit River began building dikes as early as 1863. In 1895, the Legislature passed legislation allowing landowners to organize and create public diking districts, which are independent of any other governmental authority. They have the power of eminent domain, the power to assess taxes against district properties proportionate to the benefits the properties receive from the creation of the dikes, and the power to issue bonds to fund construction of the dikes. By 1990, 16 diking districts had been created to maintain approximately 56 miles of levees and 39 miles of sea dikes in the Skagit River delta.

A Burlington Northern Railroad bridge crosses the Skagit River near Mount Vernon. Diking Districts No. 12 and No. 17 maintain levees upstream from the bridge. Diking District No. 12 owns the dikes on the north side of the river, and Diking District No. 17 owns dikes on the south side. Diking District No. 12's levees are located between 50 and 1,000 feet from the Skagit River's banks. The river waters do not come into contact with the levees until the waters leave the banks of the river channel. The Nookachamps area lies on the south banks of the river, upstream from both the railroad bridge and Diking District No. 17, and across the river from dikes owned by Diking District No. 12. Landowners of the Nookachamps area have never utilized the available statutory process for creating a diking district in their own area. As a result, the portion of the south side of the Skagit River along the Nookachamps area is unprotected from floodwaters. The downstream railroad bridge, the downstream levees, and the levees across the river from the Nookachamps area form a constriction during high floodwaters. The County does not contest that this constriction causes floodwaters to back upstream and flow into the low-lying Nookachamps area.

In November 1990, the Skagit River flooded twice, causing damage to various homeowners living on this historic floodplain. In response, 118 plaintiffs brought this inverse condemnation action against Skagit County and Diking Districts Nos. 12 and 17. The districts were voluntarily dismissed from the action, leaving the County as the sole defendant. Nonetheless, Plaintiffs pursued their action against the County, alleging the County acted in concert with the diking districts in the maintenance, improvement, and operation of the diking system. The County's actions allegedly caused an increase in the amount of flooding experienced on Plaintiffs' lands. Plaintiffs claimed this levee-induced flooding constituted an inverse condemnation - that is, a taking without payment of just compensation. The trial judge excluded the County's immunity defense and its prescriptive easement and common enemy jury instructions, and instructed the jury on joint and several liability as to a tort theory of "acting in concert."

The jury found for Plaintiffs and awarded over $1.62 million in damages. Skagit County was found 69 percent liable while the State of Washington was found liable for 31 percent. The trial court then awarded over $1.3 million in prejudgment interest, $2.8 million in attorneys' fees, and $400,000 in expenses, bringing the total judgment against Skagit County and the State of Washington to $6.3 million. In addition, the trial court issued a writ of mandamus, compelling the County to comply with numerous ordinances.

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The Supreme Court of Washington, En Banc, reserved the judgment, vacated the writ of mandamus, and remanded for dismissal of the action.. See: 983 P.2d 643, 139 Wn.2d 1 (1999). Note: The above date reflects the appellate court decision date, not the original trial date. Reported by JAB.