Chelan Basin Conservancy v. GBI Holding Co. ( 2017 )

This opinion was filed for record
rrtrE
IN CLiRKS OFFICE
at. nn^
8UPRBE COUm;SmiE OF WMSHMOTON
JUl 0 6 28!?
SUSAN L. CARLSON
%iaA VjMfA-.(0 SUPREME COURT CLERK
GmB=MJSTtCe j
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
CHELAN BASIN CONSERVANCY, No. 93381-2
Petitioner,
V. En Banc
GDI HOLDING CO.,
STATE OF WASHINGTON,
and CITY OF CHELAN,
Filed JUL n 6 201
Respondents,
and
CHELAN COUNTY PUBLIC
UTILITY DISTRICT,
Additional Named Party.
GonzAlez, J.—^Petitioner Chelan Basin Conservancy (Conservancy)
seeks the removal of six acres of fill material that respondent GBI Holding
Co. added to its property in 1961 to keep the formerly dry property
permanently above the artificially raised seasonal water fluctuations ofLake
Chelan. The Conservancy brings this action pursuant to Washington's
public trust doctrine, which protects the public right to use water in place
along navigable waterways. At issue is whether the State consented to the
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2
fill's impairment ofthat right and, if so, whether such consent violates the
public trust doctrine.
As explained in this opinion, the Court of Appeals correctly
concluded that the legislature consented to the fill's impairment of navigable
waters under RCW 90.58.270 (the Savings Clause), but the Court of Appeals
prematurely concluded such consent did not violate the public trust doctrine.
Because the trial court never reached the highly factual public trust issue, we
reverse and remand to the trial court to determine in the first instance
whether RCW 90.58.270 violates the public trust doctrine.
Factual and Procedural Background
Our state constitution grants the State "ownership to the beds and
shores of all navigable waters in the state." Const, art. XVII, § 1 (article
17). We have interpreted this provision to mean the State possesses an
alienable fee-simple private property interest in those beds and shores
subject to an overriding public servitude to use the waters in place for
navigation and fishing, and other incidental activities. Caminiti v. Boyle,
107 Wash. 2d 662, 668-69, 732 P.2d 989(1987). The parties agree that Lake
Chelan is a navigable body of water and that GBI's property along the lake
is subject to the public trust servitude.
In its natural state, GBI's property stood above the lake's peak water
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2
levels and was continuously dry throughout the year. See Wilhour v.
Gallagher, 77 Wash. 2d 306, 307, 462 P.2d 232(1969). In 1927, GBFs
predecessor in interest granted a flowage easement over the property to a
power company to install a dam that would artificially raise the lake waters.
Id. at 307-08 (discussing covenants related to the construction ofthe dam).
After the dam was installed, GBFs once permanently dry land became
seasonally submerged by the lake's artificially elevated waters.
In 1961, GBI added fill to its property to elevate it once more
permanently above the lake's seasonal fluctuations. The fill is locally
referred to as "the Three Fingers" because it resembles, in aerial
photographs, three rectangular fingers protruding into the lake.
Eight years after GBI filled its property, we held in Wilbour, a case
involving a neighboring landfill abutting Lake Chelan,that the neighbor's
fill violated the public trust doctrine and ordered the fill be abated. Id. at
315-16. Although we acknowledged the existence of other similarly situated
fills along the lake, our Wilhour decision did not order their abatement. Id.
at 316 n.13. Despite its limited disposition, Wilhour was publicly hailed as a
watershed case that placed title to thousands of properties along
Washington's shores in question. See 1 Senate JOURNAL, 42dLeg., 1st Ex.
Sess., at 1411 (Wash. 1971). That is because much of Washington's shores
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2
and tidelands were improved during our early years of statehood, when
private settlement and development were widely encouraged with little
consideration given to the effect these developments would have on public
trust rights. See State v. Sturtevant, 76 Wash. 158, 171, 135 P. 1035 (1913).
By 1969, thousands of acres of Washington's tidelands and shorelands had
been reclaimed and developed with significant improvements, including the
creation of Harbor Island and much of downtown Seattle. Edward A.
Rauscher, The Lake Chelan Case—Another View, 45 WASH.L. Rev. 523,
531 (1970); Port ofSeattle v. Or. & W. R. Co., 255 U.S. 56, 59, 41 S. Ct.
237, 65 L. Ed. 500(1921); Ralph W. Johnson & Eileen M. Cooney,Harbor
Lines and the Public Trust Doctrine in Wash. Navigable Waters, 54 WASH.
L. Rev. 275, 289 n.64(1979)(noting that the state had sold approximately
60 percent of its tidelands to private parties between 1889 and 1971)(citing
Dep't of Ecology, Wash. State Coastal Zone Mgmt.Program 73
(1976)).
The legislature responded to the Wilbour decision by enacting the
Savings Clause, RCW 90.58.270, that gave post hoc consent to pre-Wilbour
improvements to protect them from public trust challenges. See 1 Senate
Journal at 1411. The Savings Clause was enacted as part of a much
broader piece of legislation known as the Shoreline Management Act of
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2
1971 (SMA),chapter 90.58 RCW,and directly responded to our directive to
the legislature in Wilbour that it, as trustee of public trust resources, was
responsible for determining how best to preserve and promote the State's
public trust interests. See Wilbour, 77 Wash. 2d at 316 n.13.
The legislature referred the SMA to the people the following year for
ratification. State of Washington Voters Pamphlet, General Election 34-35,
(Nov. 7, 1972)(App. to Supp'l Br. of Resp't State of Wash.). The
legislature presented the SMA to Washington voters along with an
alternative measure. Initiative 43. Id. at 32-33. Although both the SMA and
Initiative 43 established guidelines for the development of Washington's
waterways and shorelines, one major difference between the two plans was
how they treated ^VQ-Wilbour fills. Id. at 108. The SMA provided
legislative consent to pre-Wilbour fills; whereas Initiative 43 did not. Id.
The people ratified the SMA and rejected Initiative 43 by a substantial
margin. WASH. Sec'y OF STATE,Initiative to the Leg. No. 43(General
Election Nov. 7, 1972)(285,721 voters preferred Initiative 43, while
611,748 voters preferred the SMA). Following ratification ofthe SMA,
little legal attention was given to pve-Wilbour fills.
The Three Fingers fill gained attention in 2010 when GBI submitted a
permit application to the city of Chelan to develop the fill. GBI later
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2
withdrew its application, following public opposition to the proposed
development. Eventually, GBI submitted a second application; this time to
subdivide the property into six short plats with no immediate plans for their
development. The city approved the short plat application conditioned on
the reservation of a public park and several public access points thereon.
GBI appealed the city's conditional land use decision, but the appeal has
been stayed pending resolution ofthis action.
Meanwhile, while GBI was going through the permitting and short
plat process, a local environmental group, the Conservancy, filed this action
against GBI, seeking the abatement and removal of the Three Fingers fill
pursuant to the public trust doctrine and Wilbour.^ The Conservancy
additionally named as interested parties the city of Chelan, the State of
Washington, and the owner ofthe dam, Chelan County Public Utility
District.
GBI moved for summary judgment, arguing, among other things, that
the Conservancy lacked standing to bring the present action and that any
public trust claim seeking the removal ofthe Three Fingers was barred by
the SMA's Savings Clause, RCW 90.58.270. The Conservancy moved for
'The Conservancy also asserted a trespass claim that is not at issue in this appeal. Chelan
Basin Conservancy v. GBIHolding Co., 194 Wn. App. 478,484 n.l, 378 P.3d 222, review
granted, 186 Wash. 2d 1032, 385 P.3d 769(2016).
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2
summary judgment on the applicability ofthe Savings Clause and the public
trust doctrine as well.
Regarding the justiciable question of standing, the trial court found
the Conservancy had standing to raise its public trust claim. As for the
Savings Clause and its interplay with the public trust, the trial court initially
found the Savings Clause violated the public trust doctrine but later
rescinded that decision, choosing instead to avoid the public trust question
altogether by holding the Savings Clause did not apply. After finding the
legislature never consented to the creation ofthe Three Fingers fill, the court
ordered the fill be removed.
GBI appealed to the Court of Appeals, which reversed the trial court's
order and remanded for further proceedings. Chelan Basin Conservancy v.
GBIHolding Co., 194 Wn. App. 478,495, 378 P.3d 222(2016). The Court
of Appeals agreed with the trial court that the Conservancy had standing to
sue but departed from the trial court's analysis regarding the applicability of
the Savings Clause. Id. at 487-95. The Court of Appeals held the Savings
Clause applied and its bar on public trust claims was enforceable since the
Conservancy failed to prove the statute violated the public trust. Id. at 488-
95.
The Conservancy petitioned this court for review ofthe Savings
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2
Clause and public trust issues. In its answer, GBI requested pursuant to
RAP 13.4(d) that if we grant review, we should also address the issue of
standing. We granted review without limitation. Chelan Basin Conservancy
V. GBIHolding Co., 186 Wash. 2d 1032, 385 P.3d 769(2016). We therefore
address three issues:(1) whether the Savings Clause, RCW 90.58.270,
applies to the Three Fingers fill,(2)if so, whether the clause violates the
public trust doctrine, and(3) whether the Conservancy has standing to bring
this public trust action.
Washington's Public Trust Doctrine
The public trust doctrine is an ancient common law doctrine that
recognizes the public right to use navigable waters in place for navigation
and fishing, and other incidental activities. E.g., Caminiti, 107 Wash. 2d at
668-69. The principle that the public has an overriding interest in navigable
waterways and the lands underneath them has been dated by some jurists as
far back as the Code of Justinian, which was developed in Rome during the
6th century. While there is some debate whether this attribution to Roman
law holds water, it is generally accepted even among the most skeptical of
critics that the public trust doctrine has a long history and was firmly
ingrained in English and American common law by the 19th century. See,
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2
e.g., James L. Huffman,Speaking ofInconvenient Truths—A History ofthe
Public Trust Doctrine, 18 DukeEnvtl.L.& POL'Y F. 1, 12-19(2007).
Although the public trust doctrine originates from a common source,
'"it has been long established that the individual [sjtates have the authority
to define the limits ofthe lands held in public trust and to recognize private
rights in such lands as they see fit.'" State v. Longshore, 141 Wash. 2d 414,
427-28, 5 P.3d 1256(2000){o^otmg Phillips Petrol. Co. v. Mississippi, 484
U.S. 469, 475, 108 S. Ct. 791,98 L. Ed. 2d 877(1988)); Grays Harbor
Boom Co. V. Lownsdale, 54 Wash. 83, 104, 104 P. 267(1909)(per curiam)
('"The whole question [regarding the scope ofthe public trust doctrine] is
for the state to determine for itself.'" (quoting Shively v. Bowlby, 152 U.S. 1,
56, 14 S. Ct. 548,38 L. Ed. 331 (1894))); Sequim Bay Canning Co. v.
Bugge,49 Wash. 127, 132, 94 P. 922(1908)(recognizing each state's
prerogative to define and decide how to protect or dispose of its public trust
property). We therefore "look solely to Washington law" when determining
the scope and application of our public trust rights and obligations.
Longshore, \A\ '^n.2ddiXA2%.
Even though Washington's public trust right to use navigable waters
in place is sometimes described as a right that can be "neither destroy[ed]
nor abridge[d]," New Whatcom v. Fairhaven Land Co., 24 Wash. 493, 499,
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2
64 P. 735 (1901), this does not mean that the State must hold all the beds
and shores of navigable waters inviolate. Davidson v. State, 116 Wash. 2d 13,
16, 802 P.2d 1374(1991); Caminiti, 107 Wash. 2d at 668. Under article 17,
"the state of Washington has the power to dispose of, and invest persons
with, ownership of tidelands and shorelands subject only to the paramount
right of navigation and the fishery." Id. at 667. This is because the State
owns article 17 lands in two distinct capacities. Longshore, 141 Wash. 2d at
427; Caminiti, 107 Wash. 2d at 668-69; Orion Corp. v. State, 109 Wash. 2d 621,
639, 747 P.2d 1062(1987); Eisenbach v. Hatfield, 2 Wash. 236, 240-41, 26
P. 539(1891).
First, as title owner,"the state holds full proprietary rights in tidelands
and shorelands and has fee simple title to such lands" so that it "may convey
title to [those lands] in any manner and for any purpose not forbidden by the
state or federal constitutions and its grantees take title as absolutely as ifthe
transaction were between private individuals." Caminiti, 107 Wash. 2d at 668.
This title interest is referred to as the State's jus privatum interest.
Second, because such land is also held by the State in trust and for the
benefit ofthe people, any right conveyed generally remains subservient to
the public right to use water in place for navigation, see Hill v. Newell, 86
Wash. 227, 231, 149 P. 951 (1915), much like '"a covenant running with the
10
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2
land,'" Orion, 109 Wn.2d at 640(quoting Scott W.Reed, The Public Trust
Doctrine:Is it Amphibious?, 1 J. Envtl. L.& LiTIG. 107, 118 (1986)). This
public servitude is referred to as the State's jus publicum interest.
Although title to property burdened by the public trust remains
continuously subject to the servitude, the competing rights and interests of
the public and private owner rise and fall with the water. "As the level rises,
the rights ofthe public to use the water increase since the area of water
increases; correspondingly, the rights ofthe landowners decrease since they
cannot use their property in sueh a manner as to interfere with the expanded
public rights." Wilbour, 77 Wash. 2d at 315. "As the level and the area ofthe
water decreases, the rights ofthe public decrease and the rights of the
landowners increase as the waters drain off their land, again giving them the
right to exclusive possession until their lands are again submerged." Id.
A private landowner whose lands are burdened by the public trust
cannot unilaterally extinguish the public right to use navigable waters in
plaee by artificially elevating his or her property above the high-water mark
absent legislative consent. Id. at 314-16. GBI contends the legislature and
Washington voters consented to the retention ofthe Three Fingers fill when
the legislature enacted and the people ratified the Savings Clause. We agree.
11
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2
I. Legislative Consent under the Savings Clause
The Savings Clause, ROW 90.58.270, provides legislative consent to
the impairment of public trust rights by prQ-Wilbour improvements and bars
private actions challenging that impairment unless the improvements were
"in trespass or in violation of state statutes." RCW 90.58.270(1),(2). GBI
argues that because the Three Fingers fill was created pre-Wilbour, the
Savings Clause protects the fill and bars this action. The Conservancy
disagrees. It argues the Savings Clause is inapplicable in this case because
the Three Fingers fill "'obstruct[ed] or impede[d]. .. the passage of[a]
river, harbor, or collection of water'" in violation ofthe public nuisance
statute. Suppl. Br. ofPet'r Conservancy at 17(quoting RCW 7.48.140(3)).
According to the Conservancy, this public nuisance violation disqualified
the Three Fingers fill from the protections of the Savings Clause since the
fill was '"in violation of state statutes.'" Id, at 3 (quoting RCW
90.58.270(1)). GBI disagrees with the premise ofthe Conservancy's
argument; that is, that the Three Fingers fill constitutes a public nuisance.
To resolve this debate, we must construe the public nuisance statute as it
relates to the Savings Clause.^
^ The city of Chelan believes we can avoid this public nuisance question. The city
contends that since the Savings Clause consents only to the '"retention and
maintenance'" of existing structures, such consent does not extend to GBI's proposed
12
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2
"Issues of statutory construction ... are questions of law" subject to
de novo review. State v. Evans, 111 Wash. 2d 186, 191, 298 P.3d 724(2013).
"The purpose of statutory interpretation is to 'determine and give effect to
the intent ofthe legislature.'" Id. at 192(quoting State v. Sweany, 174
Wash. 2d 909, 914, 281 P.3d 305 (2012)). "'A statute that is clear on its face is
not subject to judicial construction.'" HomeStreet, Inc. v. Dep't ofRevenue,
166 Wash. 2d 444, 452, 210 P.3d 297(2009)(quoting State v. J.M., 144 Wash. 2d
472, 480, 28 P.3d 720 (2001)). "Ifthe plain language is subject to only one
interpretation, our inquiry ends because plain language does not require
construction." Id. at 451. Typically, where an act has a doubtful or
ambiguous meaning, it is the duty ofthe court to adopt a construction that is
reasonably liberal, in furtherance ofthe obvious or manifest purpose ofthe
legislature. Evans, 111 Wash. 2d at 193; State v. Rinkes, 49 Wash. 2d 664, 667,
306 P.2d 205 (1957). However, because we are dealing with a public trust
impairment, albeit one passed directly by the people, the statute must be
strictly construed in preservation ofthe public trust interest absent express
contrary language or necessary implication. See Hill, 86 Wash, at 229
2010 developments, which in its view should end our analysis. Supp'l Br. of City of
Chelan at 5-7(quoting RCW 90.58.270(1)). The city misapprehends the Conservancy's
claims. Although this litigation was triggered by GBFs development proposals, those
proposals do not form the bases ofthe Conservancy's complaint. The Conservancy seeks
the removal of the existing fill, not an injunction against future development. We
therefore cannot avoid the public nuisance question, as the city suggests.
13
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2
('"The general rule of construction applying to grants of public lands by a
sovereignty to corporations or individuals is that the grant must be construed
liberally as to the grantor and strictly as to the grantee, and that nothing shall
be taken to pass by implication.'"(quoting 26 AMERICAN AND ENGLISH
Encyclopaedia of Law 425(2d ed. 1904))); City ofBerkeley v. Superior
Ct., 26 Cal. 3d 515, 528, 606 P.2d 362, 162 Cal. Rptr. 327(1980)
("[SJtatutes purporting to abandon the public trust are to be strictly
construed; the intent to abandon must be clearly expressed or necessarily
implied; and if any interpretation ofthe statute is reasonably possible which
would retain the public's interest in tidelands, the court must give the statute
such an interpretation.").
RCW 7.48.140(3) declares it a public nuisance, among other
enumerated actions, "[t]o obstruct or impede, without legal authority, the
passage of any river, harbor, or collection of water." (Emphasis added.)
Another statute further explains that "[njothing which is done or maintained
under the express authority ofa statute, can be deemed a nuisance." RCW
7.48.160 (emphasis added). GBI and the State interpret the Savings Clause
as providing the requisite legal and express statutory authority for the
retention and maintenance of pvQ-Wilbour improvements on navigable
14
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2
waterways to insulate them from any public nuisance claim based on that
same impairment of navigable waters. We agree.
The Savings Clause provides legislative "consent and authorization"
"to the impairment of public rights of navigation, and corollary rights
incidental thereto, caused by the retention and maintenance of "structures,
improvements, docks, fills, or developments placed in navigable waters prior
to December 4, 1969." RCW 90.58.270(1).^ The only way for the Savings
Clause to have any practical effect is to interpret it as giving pre-Wilboiir
improvements the requisite legal and statutory authority to impair navigable
waters so they no longer violate the public nuisance statute. Otherwise,
^ RCW 90.58.270 provides in relevant part;
(1)Nothing in this section shall constitute authority for requiring or ordering
the removal of any structures, improvements, docks, fills, or developments
placed in navigable waters prior to December 4, 1969, and the consent and
authorization of the state of Washington to the impairment ofpublic rights of
navigation, and corollary rights incidental thereto, caused by the retention and
maintenance of said structures, improvements, docks, fills or developments
are hereby granted: PROVIDED,That the consent herein given shall not relate
to any structures, improvements, docks, fills, or developments placed on
tidelands, shorelands, or beds underlying said waters which are in trespass or
in violation of state statutes.
(2)Nothing in this section shall be construed as altering or abridging
any private right of action, other than a private right which is based upon the
impairment of public rights consented to in subsection(1)ofthis section.
(3) Nothing in this section shall be construed as altering or abridging
the authority ofthe state or local governments to suppress or abate nuisances
or to abate pollution.
(4) Subsection(1)ofthis section shall apply to any case pending in the
courts ofthis state on June 1, 1971 relating to the removal of structures,
improvements, docks, fills, or developments based on the impairment of
public navigational rights.
15
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2
prior consent would be a necessary prerequisite for obtaining post hoc
consent under the Savings Clause. That reading is absurd and renders the
entire statute practically meaningless; we therefore avoid it. State v.
Riles, 135 Wash. 2d 326, 340, 957 P.2d 655 (1998)("Courts should not
construe statutes to render any language superfluous and must avoid strained
or absurd interpretations."(citing Wright v. Engum, 124 Wash. 2d 343, 351-52,
878 P.2d 1198 (1994))). Worse,that reading would require us to construe
the statute's limited proviso exception so broadly that it swallows the
general rule entirely. Wash. State Legislature v. Lowry, 131 Wash. 2d 309,
327, 931 P.2d 885 (1997)(Provisos '"should be strictly construed with any
doubt to be resolved in favor ofthe general provisions, rather than the
exceptions.'"(quoting State v. Wright, 84 Wash. 2d 645, 652, 529 P.2d 453
(1974))).
The legislature undeniably intended the Savings Clause to foreclose
private actions for the removal of pve-Wilbour improvements based on their
impairment of navigable waters alone. As one ofthe prime sponsors ofthe
statute. Senator Gissberg, explained during a senate floor debate, the purpose
of the Savings Clause was to "make[] legal any fills that took place prior to
December 4, 1969," which is the date Wilbour was decided. 1 Senate
16
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2
Journal at 1411. Senator Gissberg further explained the reasoning for and
the intended effect ofthe Savings Clause as follows:
Yes,I think in the entire section in subsection [(h^)], you are, the
state of Washington is giving its consent to the impairment of public
rights of navigation as to those structures, improvements, docks, fills
or developments which were placed in navigable waters prior to
December 4, 1969. And it is a savings clause for those structures
that were placed there prior to Wilbour vs. Gallagher. If it is not
there, then every dock, most of industry in the state that is on the
water, of course, is there illegally and subject to mandatory
uijunction to being removed by anyone that wants to bring the
lawsuit. Consequently, that is why the savings clause is there, and
the state is giving, or purports to give its consent to the impairment
ofthe navigable rights of the public generally which are impeded by
the construction ofthose docks and facilities that are in navigable
waters.
Id. We therefore interpret the Savings Clause as authorizing the retention
and maintenance ofthe Three Fingers fill and barring private public
nuisance claims based on the fill's impairment of navigable waters.^ Unless
that legislative authorization itself violates the public trust doctrine, the
According to the Senate Joumal, the senator said "subsection (3)," hut that reference
must have been a mistake or scrivener's error heeause subsection(3) addresses the
authority of state and local governments to bring nuisance and abatement actions
notwithstanding the legislative consent provided in subsection (1). See Laws OF 1971,
1st Ex. Sess., ch. 286, § 27.
^ We decline to address whether the Three Fingers fill is abatable as a public nuisance for
reasons other than its impairment of navigable waters because that issue is not before us.
The Conservancy has expressly disavowed bringing a public nuisance claim based on any
reason other than the public trust. Chelan Basin, 194 Wash. App. at 492; Supp'l Br. of
Pet'r Conservancy at 20("[TJhis case was not brought as a nuisance action."). Nor has
the Conservancy presented any facts that would trigger the application of Grundy v.
Thurston County. 155 Wash. 2d 1, 7 n.5, 117 P.3d 1089(2005)("'[E]ven though an act or a
structure was lawful when made or erected, iffor any reason it later becomes or causes a
nuisance, the legitimate character of its origin does notjustify its continuance as a
nuisance.'"(footnote omitted)(quoting 66 C.J.S. Nuisances § 15, at 551-52(1998))).
17
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2
Conservancy's claims for the abatement ofthe Three Fingers fill based on
the fill's impairment of navigable waters must be dismissed.
II. The Legislature's Public Trust Obligations under Caminiti
Washington's public trust doctrine operates under the principle that
"'[t]he control ofthe State for purposes ofthe trust can never be lost, except
as to such parcels as are used in promoting the interests of the public therein,
or can be disposed of without any substantial impairment ofthe public
interest in the lands and water remaining,"' Caminiti, 107 Wash. 2d at 670
(quoting III. Cent. R.R. Co. v. Illinois, 146 U.S. 387,453, 13 S. Ct. 110, 36
L. Ed. 1018 (1892)); Palmer v. Peterson, 56 Wash. 74, 76, 105 P. 179
(1909)(adopting Illinois Centrals description ofthe public trust doctrine as
consistent with Washington's public trust doctrine). This means the
legislature can dispose ofthe public right to use navigable waters in place
only to promote the interests protected by the public trust doctrine or to
further some other interest if doing so does not substantially impair the
public trust resource. 2 Waters and Water Rights § 30.02(d)(3), at 30-46
(Amy K. Kelley ed., 3d ed. 2013). Accordingly, when evaluating a public
trust claim, we consider: "(1) whether the State, by the questioned
legislation, has given up its right of control over the jus publicum and (2)if
so, whether by so doing the State(a) has promoted the interests of the public
18
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2
in the jus publicum, or(b) has not substantially impaired it." Caminiti, 107
Wash. 2d at 670.
The answers to those questions are factually dependent. Because the
trial court never reached Caminiti's factual analysis, we reverse and remand
to the trial court to decide the matter in the first instance. To assist the trial
court on remand, we answer the following legal questions presented by the
parties:(a)Is judicial review ofthe Savings Clause precluded by legislative
preemption?(b) Who bears the burden of proving a legislative action
violates the public trust doctrine? (c)Did the State abdicate control over the
Three Fingers property when it enacted the Savings Clause? And finally,(d)
what is the proper geographical focus for evaluating the interests affected by
the Savings Clause under Caminiti!
a. Legislation ThatImpairs Public Trust Rights Is Subject to Judicial
Review
GBI and the State argue that since legislative action preempts the
common law, it follows that the SMA and its corresponding Savings Clause
should preempt Washington's common law public trust doctrine and
preclude judicial review as well. We disagree. While GBI and the State
correctly identify the doctrine's common law origin, they overlook the
doctrine's constitutional footing.
19
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2
As we have explained, the public trust doctrine is "partially
encapsulated" in article 17 of our state constitution. Rettkowski v. Dep 't of
Ecology, 122 Wash. 2d 219, 232, 858 P.2d 232(1993). Because of the
doctrine's constitutional underpinning, any legislation that impairs the public
trust remains subject to judicial review. This includes the SMA. "Holding
otherwise [would] elevate[]an exercise ofthe legislative power above the
constitution, which is anathema to our system oflaw." Freedom Found, v.
Gregoire, 178 Wash. 2d 686, 706, 310 P.3d 1252 {citing Marbury v. Madison,
5 U.S.(1 Cranch) 137, 178,2 L. Ed. 60(1803)). While we have at times
described the SMA as embod3dng the common law public trust rights, e.g..
Portage Bay-Roanoke Park Cmty. Council v. Shorelines Hr'gs Bd., 92
Wash. 2d 1, 4, 593 P.2d 151 (1979), we have always embraced our
constitutional responsibility to review challenged legislation, even
legislation encompassed by the SMA,to determine whether that legislation
comports with the State's public trust obligations. Caminiti, 107 Wash. 2d at
670. We decline to abdicate that responsibility now.
The fact that the State never acquired title ownership to the Three
Fingers property under article 17 does not mean the public trust doctrine has
no constitutional force as to this property. As previously mentioned, article
17 recognized two distinct interests: the State's responsibility to protect
20
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2
Washington's public trust interests and the State's title ownership in specific
lands. See id. at 666-67. Therefore, any legislative act arguably in
dereliction ofthe State's constitutional responsibility to protect the public
trust interest is subject to judicial review regardless of article 17 title
ownership.
b. The Party Challenging a Legislative Act Violates the Public Trust
Doctrine Bears the Burden ofProving that Violation
The party challenging the constitutionality of a legislative act, whether
enacted by the legislature itself or the people through their initiative power,
generally bears the burden of proving the act's invalidity. Lee v. State, 185
Wash. 2d 608, 619, 374 P.3d 157 (2016). Even though public trust claims are
only "quasi-constitutional," Ralph W. Johnson et al.. The Public Trust
Doctrine and Coastal Zone Management in Washington State, 67 WASH.L.
Rev. 521, 527(1992)), our courts have generally treated public trust claims
as constitutional challenges in presuming the constitutionality ofthe
challenged legislation and placing the burden on the challenging party to
prove otherwise. E.g., Chelan Basin, 194 Wash. App. at 494; Samson v. City
ofBainbridge Island, 149 Wash. App. 33, 58, 202 P.3d 334(2009); Citizens
for Responsible Wildlife Mgmt. v. State, 124 Wash. App. 566, 570, 103 P.3d
203(2004); Wash. State Geoduck Harvest Ass'n v. Dep'tofNat. Res., 124
Wn. App. 441,447, 101 P.3d 891 (2004).
21
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2
The Conservancy disagrees with this approach, arguing it is
inconsistent with our duty to review legislation that impairs public trust
rights with a heightened degree ofscrutiny. The Conservancy misconstrues
that duty. Heightened scrutiny does not mean the party bearing the burden
of proof should be different in the context of public trust challenges than
constitutional challenges. As we explained in Weden v. San Juan County,
we "review legislation under the public trust doctrine with a heightened
degree ofjudicial scrutiny, 'as if[we] were measuring that legislation
against constitutional protections.'" 135 Wn.2d 678,698, 958 P.2d 273
(1998)(quoting Johnson et ah,supra, at 526-27). Thus,just like with other
constitutional challenges, the party claiming a legislative act violates the
public trust doctrine bears the burden of proving that violation. See id. at
693 (placing the burden on the party challenging a governmental action to
prove it violates the public trust doctrine).
Having addressed the parties' threshold questions regarding judicial
review and allocation of proof, we now address their substantive arguments
relating to the proper application of CaminitVs two-part test.
c. The State Abdicated Its Right ofControl over the Jus Publicum
When It Enacted the Savings Clause
The first part ofthe Caminiti test asks "whether the state, by the
questioned legislation, has given up its right of control over the jus
22
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2
publicum." 107 Wash. 2d at 670. The parties disagree whether the State
abdicated control over the jus publicum when it consented under the Savings
Clause to the permanent impairment of navigable waters by thousands of
pvQ-Wilbour improvements. GBI and the State argue the enactment ofthe
Savings Clause was an exercise of control rather than an abdication of it.
While the line between the exercise and abdication of control may be
difficult at times to discern, it is clear in this case.
The Caminiti test derives from the Supreme Court's opinion in Illinois
Central. Caminiti, 107 Wash. 2d at 670. At issue in Illinois Central was
whether Illinois could grant to a private railroad company an irrevocable
interest to fill or otherwise develop more than 1,000 acres of submerged
lands comprising a substantial portion of Lake Michigan and the entire
shoreline along the city of Chicago to support the railroad's private
commercial enterprise. 146 U.S. at 454. The Supreme Court held the State
could not. Id. at 452-55. The Court explained that while the State must
generally protect its public trust resources, a state may abdicate control over
some public trust properties without violating its public trust obligations if in
doing so it promotes trust interests or does not substantially impair the
public trust interest in the lands and waters remaining. See id. at 452.
Appljdng that rule, the Court found Illinois had abdicated control when it
23
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2
granted to a private eompany the authority to fill and develop more than
1,000 acres of submerged public trust lands. Id. at 452-54.
Here, the legislature consented to the impairment of significantly
more property. Rather than a thousand acres, the Savings Clause impairs
thousands of acres. See Rauscher,supra, at 531;Port ofSeattle, 255 U.S. at
59; Johnson & Cooney,supra, at 289. Such authorization clearly constitutes
an abdication of control comparable to the land grant in Illinois Central.
Whether the abdication of control comports with the State's public trust
obligations depends on part two ofthe Caminiti test.
d. The Interests Promoted and Impaired by the Savings Clause
Should Be Analyzed on a Statewide Basis
The second part of the Caminiti test asks whether the challenged
legislation "has promoted the interests ofthe public in the jus publicum" or
"has not substantially impaired it." 107 Wash. 2d at 670. If the Savings Clause
satisfies either question, then it also satisfies judicial scrutiny under the
public trust doctrine. See id. The parties debate whether the public trust
interests promoted or impaired by the Savings Clause should be analyzed on
24
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2
a statewide basis or as it relates to the Three Fingers fill on Lake Chelan.
We hold, in this case, that the interests should be evaluated statewide.^
As discussed earlier, the legislature enacted the Savings Clause in
response to our decision in Wilbour. The Wilbour decision had a significant
effect on land titles throughout Washington not because it ushered in a new
rule (the public trust doctrine had already been recognized), but because it
awoke the doctrine from a decades-long slumber. See Caminiti, 107 Wash. 2d
at 670("Although not always clearly labeled or articulated as such ... the
doctrine has always existed in the State of Washington."(citing Johnson &
Cooney,supra, at 285-87)). Following the doctrine's awakening, the
legislature grappled with the possibility that the long-settled property
expectations of Washington residents and businesses who had relied on
legislative encouragement in building homes and investing significant
resources in the improvement of Washington's shorelands and tidelands
could be upended by public trust claims. Sturtevant, 76 Wash, at 171; 1
Senate Journal at 1411 (explaining "most ofindustry in the state that is on
the water ... is there illegally and subject to mandatory injunction to being
removed by anyone that wants to bring the lawsuit"). Indeed, Washington's
^ We reserve ruling on whether the same state- or jurisdiction-wide analysis should apply
in cases challenging different state statutes or local ordinances since that question is not
presented in this case.
25
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2
then governor, Governor Evans, was so concerned about color of title in
these properties that he placed a statewide moratorium on all tideland fill
projects, which caused Washington's economy to stagnate. See Orion, 109
Wash. 2d at 627. The legislature quickly responded with a single piece of
legislation, the Savings Clause, that cleared title to all properties placed in
legal limbo by Wilbour and allowed industry to flourish once again. See 1
Senate Journal at 1411.
Other jurisdictions faced with similar problems regarding historic
improvements also acted swiftly through a single decisive action. Maine
responded to the issue of historic fills by enacting legislation that granted all
fills a 30-year easement to protect them temporarily from public trust claims.
Op. ofJustices, 437 A.2d 597, 599(Me. 1981). In 1981, Maine sought a
permanent solution and enacted a single bill to release all filled lands from
any public trust servitude. See id. The California Supreme Court took a
similar approach as the Maine legislature and extinguished the public trust
interest over all historical fills in a single opinion. Berkeley, 26 Cal. 3d at
534-35.
Piecemeal scrutiny of such legislative actions would undermine the
very purpose of these actions, which was to provide security to settled
property expectations and protect the state's economy from languishing in
26
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2
protracted litigation while waiting for titles to clear in thousands of cases.
For the foregoing reasons, the question of whether the Savings Clause
sufficiently promotes or does not substantially impair public trust interests
should be evaluated on a statewide basis. Because that analysis is factually
dependent, we remand to the trial court to determine in the first instance
whether the Savings Clause comports with the public trust doctrine.^
III. The Conservancv Has Standing To Raise Its Public Nuisance
Claim Based on a Public Trust Violation
^ Although the Conservancy likens the public right to navigation to '"inalienable"' and
"fundamental" constitutional rights, it did not argue that "heightened scrutiny" under the
public trust doctrine is akin to strict scrutiny, thereby requiring state action to have a
compelling state interest that is narrowly tailored to pass judicial muster. Supp'l Br. of
Pet'r Conservancy at 10(quoting Johnson et al., supra, at 539-40). In contrast, some
jurists have advocated for a balancing test that considers the importance of the public
interest being promoted in comparison to the impairment on the public trust rights. As
Professor Johnson highlights, the priorities given to competing water needs for
recreation, commerce, hydroelectric power, and agricultural irrigation vary among
Washington's water-rich western regions and its arid eastem regions. Ralph W.Johnson,
Riparian and Public Rights to Lakes and Streams, 35 WASH. L. Rev.& ST. B. J. 580,
583-86(1960). This suggests that under Professor Johnson's view, a significant
impairment ofthe public right to use waters in place for recreational use might be
acceptable for irrigation in eastem Washington, where irrigation is important, though the
same impairment for the same reason might not be acceptable in westem Washington,
where tourism and recreation are vital. Professor Sax, who is often credited as the
catalyst for the public tmst's resurgence in the 1970s, seems to agree that a balancing test
is needed, explaining that "[hjowever strongly one might feel about the present
imbalance in resource allocation, it hardly seems sensible to ask for a freezing of any
future specific configuration of policy judgments, for that result would seriously hamper
the government's attempts to cope with the problems caused by changes in the needs and
desires ofthe citizenry." Joseph L. Sax, The Public Trust Doctrine in Nat'l Resource
Law:Ejfective Judicial Intervention, 68 MiCH. L. Rev. 471,482(1970). We make no
determination on this matter at this time.
27
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2
Finally, we address GBI's challenge to the Conservancy's standing to
raise a public trust claim. GBI classifies this action as a public nuisance
action and argues the Conservancy has failed to allege the Three Fingers fill
is "specially injurious" to its members as is statutorily required under RCW
7.48.210.^ The Conservancy denies it is raising a public nuisance claim.
Instead, the Conservancy describes this action as a public trust action
distinct from a public nuisance action. Both parties are partially correct in
that this is a public nuisance action based on an alleged breach ofthe public
trust doctrine.
There are many types of public nuisance actions, including actions to
remove an animal carcass or an impediment on a river or highway and
actions to abate pollution or the manufacture of dangerous chemicals near
businesses. RCW 7.48.140. An action seeking the removal of an
impediment on a waterway because it interferes with the public right to use
that waterway is simply a specific type of public nuisance action. RCW
7.48.140(3). "Where the state has not approved impairment of state
sovereign resources, private encroachment upon public use ofthe resources
is treated as a public nuisance." 2 Waters and Water Rights,supra §
30.02(c), at 30-35. GBI is therefore correct that a plaintiff must be
^ RCW 7.48.210 provides,"A private person may maintain a civil action for a public
nuisance, if it is specially injurious to himself or herself but not otherwise."
28
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2
"specially injur[ed]" in order to have standing to raise a public trust claim,
but that requirement is not a particularly high bar.
Although RCW 7.48.210 requires the plaintiff be "specially
injur[ed]," it does not indicate the injury needed to satisfy that requirement is
more demanding or exacting than the injury needed for noneconomic
standing generally. For an organization to have standing to raise
noneconomic injuries, it must allege an "'injury in fact.'" Save a Valuable
Env't(SAVE) v. City ofBothell, 89 Wash. 2d 862, 866, 576 P.2d 401 (1978)
(quoting United States v. Students Challenging Regidatory Agency
Procedures (S.C.R.A.P.), 412 U.S. 669, 722, 93 S. Ct. 2405, 37 L. Ed. 2d
254(1973)(White, J., dissenting in part)). That means the organization
"must show that it or one of its members will be specifically and perceptibly
harmed by the action." Id. (citing S.C.R.A.P., 412 U.S. 669). An interest
that is only speculative or indirect is not enough. Id. at 867 (citing Warth v.
Seldin, 422 U.S. 490, 514, 95 S. Ct. 2197,45 L. Ed. 2d 343 (1975)). Thus,
in the absence of a statutory definition, we will treat "specially injurious"
harms needed for public nuisance claims the same as "specific and
perceptible" "injuries in fact" needed for noneconomic claims.
Injury to the aesthetic appeal and environment of an area is sufficient
to support standing if the plaintiff establishes that he or she uses that area for
29
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2
recreational purposes. Sierra Club v. Morton,405 U.S. 727, 734-35,92 S.
Ct. 1361, 31 L. Ed. 2d 636 (1972). The Conservancy satisfies that showing.
Its members claim that they are recreational users of Lake Chelan and that
the Three Fingers fill obstructs their desire and right to use navigable waters
over the property during the lake's high-water season. According to the
Conservancy's complaint:
Chelan Basin Conservancy's members include James and Kitty
Green, who own property and live in close proximity to the eastem
side of the [Three Fingers] fill. The Greens are adversely affected
by the existence ofthe fill which impairs their rights of public
access, navigation, fishing, recreation, and view. Tammy Hauge is
another member whose protected rights and interests similarly are
threatened. Ms. Hauge lives in Lakeside, a short distance from the
[Three Fingers] fill. She uses existing public access points to Lake
Chelan but is denied the opportunity for additional and better access
by the [Three Fingers] fill, and by the owners' exclusion of the
public including Ms. Hauge from land over which there is a
perpetual public right of access. Another member is Bill Schultz,
whose fishing activities are restricted by the [Three Fingers] fill.
Members John and Trisha Page kayak in Lake Chelan[,] including
the area of the [Three Fingers] fill and similarly are affected
adversely by the [Three Fingers] fill with respect to their rights of
navigation and recreation.
Clerk's Papers at 4; see also id. at 374-76 (Deel. of Tammy Hauge)
(explaining how she could access the lake more easily if the fill was not
there), 379-81 (Decl. of William Schuldt)(declaring the same and adding
that he fishes in the lake too), 384-86 (Decl. of John Page Jr.)(explaining
how the fill has made kayaking dangerous for him). We hold the harms
alleged by the Conservancy's members are sufficiently distinct from the
30
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2
general public to satisfy the standing requirements of RCW 7.48.210. The
fact that the Conservancy's members have never been able to use the lake
waters over GBFs property despite their desire to do so further shows their
injury is real, not just speculative.
Contrary to GBI's arguments, neither Zampa v. Graham nor Kemp v.
Putnam support its claim that the Conservancy lacks standing. Lampa v.
Graham, 179 Wash. 184, 36 P.2d 543(1934); Kemp v. Putnam,47 Wn.2d
530, 288 P.2d 837(1955). In Lampa, we held a fisherman would have
standing to challenge the construction of a wing dam on a river channel if
the dam harmed his fishing activities along that channel, but later opined that
he would not have standing if his sole claim was an interference with his
right to navigate along the channel since that injury would be the same as the
injury sustained by the public generally. 179 Wash, at 186. We,however,
later clarified the Lampa decision was fact-specific. Kemp,47 Wn.2d at
535-36, overruled on other grounds by SAVE,89 Wn.2d at 867 n.l. After
Lampa, we held in Kemp that a person who regularly engages in recreational
fishing in a stream would have standing to challenge the unlawful
obstruction ofthat stream. 7(7. at 536.
Conclusion
The Conservancy seeks the abatement of fill material GBI added to its
31
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2
property to elevate it above the waters of Lake Chelan because the increased
property elevation obstructs the public right to use navigable waters in place
over that property. We hold the Conservancy has standing to bring this
claim and conclude the legislature expressly consented to the fill's
impairment of navigable waters under the Savings Clause, RCW 90.58.270.
We reserve ruling on whether the Savings Clause violates the public trust
doctrine since the trial court never reached CaminitVs factual analysis. We
therefore reverse and remand to the trial court to decide that issue. ^
^ We decline to address GBI's defense oflaches, which it raised for the first time in its
briefs before this court. Supp'l Br. for Resp't GBI Holding Co. at 12 n.l3; Answer to
Amieus Curiae Br. of Center for Envt'l Law & Policy at 19 n.9; see Cummins v. Lewis
County, 156 Wash. 2d 844, 851,133 P.3d 458(2006)("It is a well-established maxim that
this court will generally not address arguments raised for the first time in a supplemental
brief and not made originally by the petitioner or respondent within the petition for
review or the response to the petition."(citing Douglas v. Freeman, 117 Wn.2d 242,258,
814 P.2d 1160 (1991))).
32
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2
//
WE CONCUR:
33