Northwest Land Matters Update - December 2017

December 6, 2017

FLOODPLAINS AND FLOOD RISK
A Brief Overview of Changing Management Responsibilities

Molly Lawrence

When it comes to how our communities address flood risk and protect populations and economies from flooding, no one government agency is in charge. Instead, there are multiple agencies at the federal, state, and local levels, and it can be difficult to figure out which agency carries out which responsibilities. The number of overlapping issues and authorities continues to grow as communities become more aware of flood risk. The goal of this article and our upcoming seminar in Seattle on December 8th, is to shed light on these complexities and to improve how critical flood risk decisions are made.

Co-Authored by Van Ness Feldman Partner Molly Lawrence and Downey Brand LLP Partner, Andrea Clark, this article focuses primarily on the role of the federal government through the Federal Emergency Management Agency (FEMA) and the US Army Corps of Engineers (Army Corps). It also summarizes how FEMA has responded to claims that its implementation of the National Flood Insurance Program has not complied with the federal Endangered Species Act.

Click here to read the full article.

IN BRIEF

The State Supreme Court to Consider the Application of the Recreational Use Statute

T.C. Richmond

Since its enactment in 1967, many public and private landowners have come to rely upon the immunity provided by Washington’s Recreational Use Statute, RCW 4.24.210, to open their property to the public for recreational activities. The Recreational Use Statute generally protects a property owner from liability for unintentional injury incurred by a recreational user as long as no fee is charged and warning signs were installed for the injury-causing conditions if that condition was dangerous, known by the owner, artificial, and not apparent to the user. The Recreational Use Statute also insulates the property owner from claims of adverse possession based on opening their property to others for recreational use.

That recreational use immunity has been placed in doubt by a decision of the Court of Appeals in 2017. In Lockner v. Pierce County (2017), the Court of Appeals Division II considered the application of the Recreational Use Statue in the case of a bicyclist who was injured on the Foothills Trail in Pierce County. The Court reversed the trial court’s summary judgement, holding there were questions central to the application of the Recreational Use Statute: whether the Foothills Trail could be closed to the public and whether the Foothills Trail was used solely for recreational use.

The Supreme Court accepted review of the Lockner decision and will be reviewing it in the context of its earlier 2014 decision in Camicia v. Howard S. Wright Const. Co. There, the Court denied the City of Mercer Island immunity in the case of a bicyclist thrown from her bicycle after colliding with a wooden post on a portion of transportation/bicycle trail along Interstate-90 located within the City of Mercer Island. The Camicia Court held that a factor in the application of the Recreational Use Statute is whether the property owner has “lawful possession and control” of the property and allows members of the public to use it such that the landowner has the authority to close the land to the recreating public.

This Lockner case is set for review by the Washington Supreme Court in 2018 and amici curiae (friends of the court) are lining up to explain the potential impact of the decision on the accommodation of the growing demand for public recreation in Washington State. Oral argument will be held in January or February.

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