State Department of Fisheries v. Gillette

A Washington State statute required a permit before commencing any hydraulic project that might interfere with streambeds in which salmon spawned. Cyril and Sharon Gillette (defendants) owned property bordering on a spawning stream thought to be one of the best spawning streams in the region. When flooding deposited soil and gravel on their pasture, the Gillettes had the bank rebuilt without a permit. During construction, a tractor drove through the stream, pushing material from the creek bed and adjacent field. Shortly after, fishermen downstream observed muddy water and dead fish. The Washington Department of Fisheries (the department) (plaintiff) investigated and brought an action in negligence against the Gillettes for damages for loss of the salmon. At trial, the department presented evidence that the Gillettes’ construction had removed gravel and increased the amount of silt. These conditions were not conducive to spawning, and fewer nests than expected were observed in the area. The trial court granted the department’s request for a directed verdict on the issue of liability. The jury was left to consider proximate cause and damages. The state’s expert testified to an estimated loss as high as $9,431 to reflect the ex-vessel price (i.e., the amount paid by a commercial processor to the fisher) and additional value to society. Upon cross-examination, the department’s expert confirmed the loss based on the ex-vessel price was $3,859.10. The Gillettes did not present expert testimony on the calculation of damages. The jury subsequently awarded the state $3,150. The Gillettes appealed, arguing that, although they violated the statute by failing to obtain a permit, the state lacked standing to seek an award of damages because the legislature had not granted the department that authority by statute. Although the Gillettes did not deny that their project disrupted the streambed, they argued the evidence supporting the jury’s finding of proximate cause was circumstantial and the calculation of damages was indirect and too remote.