Landowners charge flood negligence

John Henderer, The Chronicle, 7/8/97

A group of 78 property owners in Lewis and Cowlitz counties filed a $5 million suit Thursday in Lewis County Superior Court, claiming Tacoma City Light and the state of Washington acted negligently in failing to control recent floodwaters.

The complaint accuses Tacoma City Light of releasing too much water from its Mayfield and Mossyrock dams during the height of devastating floods in November 1995 and February 1996.

It accuses the Lewis and Cowlitz counties' emergency management departments - defended here by the state - of failing to warn residents of the impending doom, worsening damages that could have been reduced.

One man had only about 20 minutes to rescue his 85-year-old invalid father, said Seattle attorney Ken Sheppard of the firm Simburg, Ketter, Sheppard & Purdy, representing about 49 Toledo-area plaintiffs.

Others lost livestock, cars, houses, farm equipment and riverfront property because of erosion.

"What are they going to do? Do you save the livestock, do you save the construction equipment?" Sheppard said. "In a number of cases, these folks just had to make choices, and they couldn't take everything."

As required by state law, each of the plaintiffs represented by Sheppard filed claims for damages against Tacoma City Light and the state. The claims were rejected. They ranged from about $20,000 to $400,000 each, Sheppard said.

Some 29 of the plaintiffs, represented by Longview attorney John Barlow, have yet to file claims for damages against the state, but they will do so, according to the suit.

Korte Brueckman, a Tacoma City Light spokesman, said Monday the utility's attorneys would not comment on the suit because they had not yet seen it.

Authorities at the state could not be reached for comment.

Groundwork for the lawsuit began in December 1995, shortly after the first major flooding in question began. Sheppard's firm also represents Friends of the Cowlitz, a local fisheries group.

The suit was not inspired by a $1.6 million jury verdict in favor of Skagit County households and businesses issued last month, Sheppard said.

"I didn't even know they won," he said. "That's good to hear."

In the Skagit County case, jurors found the county 69 percent liable and the state 31 percent liable for damages caused by 1990 flooding, according to a report in The Skagit Valley Herald. The county improved dikes with the state's consent that worsened flooding in some areas, jurors found.

Tacoma City Light also faces its first formal complaint of noncompliance before the Federal Energy Regulatory Commission under its operating license. The complaint, filed in May by Friends of the Cowlitz and Cowlitz Plan for Restoration-Fish, accuses the utility of failing to produce guaranteed fish returns. The utility denies those allegations.

The utility is working to renew its license which expires in 2001.

The complaint against Tacoma City Light hinges on the utility's federal license to operate the dams. The license sets parameters for water levels in the reservoirs behind the Mossyrock and Mayfield dams and for releases into the Cowlitz River.

"Tacoma has not carried out the flood-control duties that it assumed under the license," Sheppard said.

Prior to the November 1995 flood, the utility did not release enough water, and then at its height, utility operators released too much, the suit alleges. Flows at Castle Rock allegedly exceeded 70,000 cubic feet per second, the limit allowed under the federal license.

As the water rose, Tacoma City Light notified Lewis and Cowlitz county authorities, but the counties did not activate their emergency operations centers or did not activate them in a timely manner, the suit alleges.

A similar case in 1975 against the Utah Power & Light Co. found that utility negligent even though it offered flood control voluntarily as a side benefit of a hydroelectric project, Sheppard said.

"The court said, 'Hey look, once you undertake this duty, you've got to do it right,'" he said.

Damages awarded in the case were upheld on appeal to the federal Ninth Circuit Court of Appeals in San Francisco.

The local lawsuit does not request a specific amount of compensation, but it places a minimum figure at $5 million.

"At this stage we are still in the process of gathering information," Sheppard said.