EVERETT — A King County judge has begun making clear what claims may be pressed in the legal battle to decide whether anyone can be held responsible for the deaths and damage caused by the Oso mudslide.
Under state law that encourages governments to tackle flood problems, Snohomish County has immunity from mudslide claims that arise out of decisions made over the years to fight flooding along the North Fork Stillaguamish River, King County Superior Court Judge Roger Rogoff said in a written ruling Monday.
But that protection is not absolute, the judge held.
The county has flood-control immunity for work that modified the river’s course after it was blocked by a 2006 slide, Rogoff said. However, that legal protection doesn’t extend to the county’s involvement in a wooden cribwall that later was built at the toe of the slide
That cribwall, a project that had been sought by the Stillaguamish Tribe and others, was supposed to reduce erosion and limit sediment in the river, protecting spawning beds for fish. Lawyers for those harmed by the slide contend in court papers that the structure instead contributed to the March 22, 2014, disaster that claimed 43 lives.
“This revetment was designed to relieve the river’s pressure against the ‘toe’ of the Hazel Landslide,” the judge wrote. “Engineers and geologists believed that, by re-routing the river slightly away from the toe of the landslide, it would reduce the risk of future catastrophic landslides.”
Instead “this log revetment did not prevent the landslide from occurring and it did not prevent the landslide from causing harm to the Steelhead Haven community,” the judge wrote.
Rogoff also ruled the county can’t be sued over its 2004 decision to adopt a flood control plan that did not seek to buy out people who made their homes at Steelhead Haven.
The hill had been sliding for decades and was the focus of multiple studies by the state and others since the early 1950s.
The buyout idea was considered in 2000 by a U.S. Army Corps of Engineers consultant who examined options for stabilizing the hill, primarily to address effects on fish habitat. Tracy Drury, an engineer and geomorphologist, wrote at the time that based “on the available data, and assuming the future resembles the past, (the landslide) poses a significant risk to human lives and private property.”
One alternative Drury studied was having the government buy up private property to create room for a new river channel away from the hillside. The cost was estimated at up to $2.2 million and given little chance of success, in part because property owners were seen as unlikely to cooperate, records show.
Other problems along the river were given higher priorities in the county’s flood plan, including buyouts for neighborhoods then being devoured by the meandering Stilly.
Those decisions are protected by the state’s flood-control immunity, Rogoff ruled.
“However, the act of communicating its decisions to residents in the area of the slide, and the (effect) such communication may have had on the residents’ decisions, are not immunized,” the judge wrote.
Lawyers for those harmed by the slide contend state and county officials failed to adequately warn and inform people about the risk, particularly after the hill fell in 2006.
Rogoff is presiding over a case that consolidates separate lawsuits brought by most of the people who lost family and homes in the slide. Defendants include the county, the state and a Skagit County logging company.
The case is believed to be the largest-ever wrongful death action filed against the state, according to court papers filed by assistant attorneys general Mark Jobson, Rene Tomisser and Grady Williamson.
So far, the parties combined have disclosed more than 300 witnesses, including 52 experts, split evenly between the plaintiffs and defendants. As of early May, two dozen depositions already had been conducted, most taking at least a day.
Rogoff’s decision on flood-control immunity came in response to a motion filed by Snohomish County’s legal team. Many more pretrial motions are expected.
Lawyers are divided over a request by state attorneys general to continue the trial to June 2016. The state says the time is necessary to adequately prepare a defense to claims that forest practices on the hillside, particularly a 7.5-acre harvest on the Whitman Bench a decade ago, set the stage for the disaster by increasing the amount of water that could seep into the ground.
The state wants to drill into the hill and the slide mass and use other technology to develop a clearer understanding of conditions below ground, particularly how water moves through the hillside.
“Rain falling on the bench in the vicinity of the timber harvest may not move toward the landslide at all. If it does not, then the timber harvest would have had nothing at all to do with the landslide,” state attorneys wrote.
In support of the state’s continuance request, attorneys general filed a declaration from J. David Rogers, one of the geologists they’ve hired to be an expert witness in the case.
Rogers visited the slide site in the fall and has reviewed the many reports written over the years. Those reports are “based upon assumptions regarding subsurface geology and hydrologic conditions, not upon actual subsurface data,” Rogers wrote. He said the only data prior to 2014 comes from natural exposures on the hillside and three shallow borings made in 1952.
Conducting appropriate tests, including more drilling and analysis, could take up to eight months, but the information is “crucial to better understand the likely mechanism of slope failure,” Rogers said.
The state Department of Transportation in October conducted exploratory drilling at the site, boring two holes on the Whitman Bench and one on the slide’s south side, department spokesman Travis Phelps said Wednesday.
According to a state geologist’s email, filed along with the court in May, one hole bored into the Whitman Bench in October encountered a “highly pressurized aquifer” 625 feet down. The groundwater shot eight feet above the surface for most of a minute after being reached by the drill.
Plans for more drilling should be firmed up by later this month, Phelps said.
The judge is scheduled to consider the state’s request for continuance in July.
Scott North: 425-339-3431; north@heraldnet.com. Twitter: @snorthnews.
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