Facts: The respondent Lummi Indian Nation filed suit against the petitioner state of Washington in the Superior Court for King County seeking a declaratory judgment that Washington Revised Code §90.03.015 and Washington Revised Code §90.03.330, which changed the definition of the term municipal water supplier for purposes of determining when water rights vest to include some private developers and declared the change retroactive, violated the separation of powers insofar as they effectively reversed the Court’s decision in Department of Ecology v. Theodoratus, which had declared that private (as opposed to municipal) water rights vest whenever water is put to a beneficial use. The trial court ruled that §90.03.015 and §90.03.330 violated the separation of powers by changing the requirements for the vesting of private water rights set forth in Theodoratus. The state of Washington appealed this decision to the Supreme Court of Washington.

Question(s): Do §90.03.015 and §90.03.330 violate the separation of powers on their face?

Conclusion: Justice Chambers’ opinion for a unanimous Court reversed the trial court, concluding that §90.03.015 and §90.03.330 did not violate the separation of powers on their face as they neither affected the rights of the parties to the Court’s judgment in Theodoratus nor interfered with any judicial function but rather simply amended existing law. Thus, as no vested judicially recognized rights were implicated in the case, the Court concluded that although it might reach a different conclusion in response to an “as applied” challenge, it could not declare §90.03.015 and §90.03.330 facially unconstitutional.

Docket No. 81809-6 (from King Case No. 06-2-40103-4 SEA & 06-2-28667-7 SEA)

Petitioner: State of Washington

(Counsel: Michael Paul Ruark, Alan Myles Reichman, Mark Hodgeman Calkins, Stephen H. North, Adam Waldon Gravley, Tadas A. Kisielius, Philip Thomas McDonald, Joseph Anthony Rehberger, and Mary E. McCrea)

Respondent: Lummi Indian Nation

(Counsel: Harry Laurence Johnsen, III, John B. Arum, Brian Cammiade Gruber, Karen Allston, Kevin R. Lyon, Melody L. Allen, Mason D. Morisset, Kimberly Louise Ordon, A. Reid Allison, III, Kristen L. Boyles, Shaun Alaric Goho, and Janette K. Brimmer)

Briefs:

Argument: Tuesday, January 12, 2010 10:00am

[Source: TVW, http://tvw.org]

Decided: Thursday, October 28th, 2010

Prevailing Party: State of Washington (Petitioner)

Vote: 9-0

Citation: Pending

Court: Madsen1 Court (2010-2011)

Madsen

Johnson

Alexander

Sanders

Chambers
(Majority)

Owens

Fairhurst

Johnson

Stephens