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Chelan Basin Conservancy v. GBI Holding Co.

Supreme Court of Washington, En Banc

March 15, 2018


          GONZALEZ, J.

         Petitioner Chelan Basin Conservancy (Conservancy) seeks the removal of six acres of fill material that respondent GBI Holding Company added to its property in 1961 to keep the formerly dry property permanently above the artificially raised seasonal water fluctuations of Lake Chelan. The Conservancy brings this action more than 50 years later 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 fill's impairment of that right in 1971 and, if so, whether such consent violates the public trust doctrine.

         The Court of Appeals held the "Three Fingers" fill was expressly protected by RCW 90.58.270 (the Savings Clause) from public trust challenges. We agree. As explained in this opinion, [1] the legislature expressly consented to the placement of pre-1969 fills, which includes the Three Fingers fill, when it enacted the Savings Clause and that consent does not violate the public trust doctrine. We therefore affirm.

         Facts 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 Wn.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, GBFs property stood above the lake's peak water levels and was continuously dry throughout the year. See Wilbour v. Gallagher, 77 Wn.2d 306, 307, 462 P.2d 232 (1969). In 1927, GBI's predecessor in interest granted a flowage easement over the property to a power company to install a dam that would raise the lake's waters. Id. at 307-08 (discussing covenants related to the construction of the dam). After the dam was installed, GBI's once dry land became seasonally submerged by the lake's elevated waters.

         In 1961, GBI added fill to its property to elevate it once more above the lake's seasonal fluctuations. The fill is locally referred to as "the Three Fingers" because it resembles, in aerial photographs, three rectangular protrusions 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 Wilbour decision did not order their abatement. Id. at 316 n. 13. Despite its limited disposition, Wilbour was publicly hailed as a watershed case that placed title to thousands of properties along Washington's shores in question. See 1 Senate Journal, 42d Leg., 1st Ex. Sess., at 1411 (Wash. 1971). That is because much of Washington's shores 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 of Seattle v. Or. & Wash. R. 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 Washington 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 expressly 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 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 Wn.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 pre-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 of the SMA, little legal attention was given to pre-Wilbour fills.[2]

         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 withdrew its application, following public 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 of this action.

         Turning to the underlying action, the Conservancy, a local environmental group, responded to GBFs permit applications by filing this action against GBI, which seeks the abatement and removal of the Three Fingers fill pursuant to the public trust doctrine and Wilbour[3] The Conservancy additionally named the city of Chelan, the State of Washington, and the owner of the dam, Chelan County Public Utility District, as interested parties in this action.

         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 of the Three Fingers was barred by the SMA's Savings Clause, RCW 90.58.270. The Conservancy moved for summary judgment on the applicability of the 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 doctrine, 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 to the Three Fingers fill. After finding the legislature never consented to the creation of the 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. GBI Holding 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 to the Three Fingers fill and the statute's corresponding bar on public trust claims was enforceable against the Conservancy's public trust claims since the Conservancy failed to prove the statute violated the public trust doctrine. Id. at 488-95.

         The Conservancy petitioned this court for review regarding the applicability of the Savings Clause to the Three Fingers fill and whether the Savings Clause violates the public trust doctrine. 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. GBI Holding Co., 186 Wn.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. We hold that while the Conservancy has standing to bring this public trust action, it nevertheless is barred by the Savings Clause from raising a public trust claim for the removal of the Three Fingers fill.

         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 Wn.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, e.g., James L. Huffman, Speaking of Inconvenient Truths-A History of the 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 [s]tates have the authority to define the limits of the lands held in public trust and to recognize private rights in such lands as they see fit.'" State v. Longshore, 141 Wn.2d 414, 427-28, 5 P.3d 1256 (2000) (quoting 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 of the 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, 141 Wn.2d at 428.

         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, 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 Wn.2d 13, 16, 802 P.2d 1374 (1991); Caminiti, 107 Wn.2d at 668. Under article 17 of our state constitution, "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 Wn.2d at 427; Caminiti, 107 Wn.2d at 668-69; Orion Corp. v. State, 109 Wn.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 [S]tate 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 if the transaction were between private individuals." Caminiti, 107 Wn.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 of the 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 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 of the public to use the water increase since the area of water increases; correspondingly, the rights of the landowners decrease since they cannot use their property in such a manner as to interfere with the expanded public rights." Wilbour, 77 Wn.2d at 315. "As the level and the area of the water decreases, the rights of the 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 place 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 of the Three Fingers fill when the legislature enacted and the people ratified the Savings Clause. We agree.

         I. The Legislature Consented to the Impairment of Navigable Waters by the Three Finger Fill When It Enacted the Savings Clause

         The Savings Clause, RCW 90.58.270, provides legislative consent to the impairment of public trust rights by pre-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 of the public nuisance statute. Suppl. Br. of Pet'r Conservancy at 17 (quoting RCW 7.48.140(3)). According to the Conservancy, this violation of the public nuisance statute disqualifies the Three Fingers fill from the protections of the Savings Clause since the fill was '"in violation of state statutes'" at the time the Savings Clause was enacted. Id. at 3 (quoting RCW 90.58.270(1)). GBI disagrees with the premise of the Conservancy's argument 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.[4]

         "Issues of statutory construction ... are questions of law" subject to de novo review. State v. Evans, 177 Wn.2d 186, 191, 298 P.3d 724 (2013). 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 of the public trust interest absent express contrary language or necessary implication. See Hill, 86 Wash, at 229 ('"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 of Berkeley v. Superior Ct, 26 Cal.3d 515, 528, 606 P.2d 362, 162 Cal.Rptr. 327 (1980) ("[S]tatutes 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 of the 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 "[n]othing which is done or maintained under the express authority of a 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 pre-Wilbour improvements on navigable waterways and thereby insulating 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).[5] The only way for the Savings Clause to have any practical effect is to interpret it as giving pre-Wilbour improvements the requisite legal and statutory authority to impair navigable waters so they no longer violate the public nuisance statute. Otherwise, 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 Wn.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 Wn.2d 343, 351-52, 878 P.2d 1198 (1994))). Worse, such a 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 Wn.2d 309, 327, 931 P.2d 885 (1997) (Provisos '"should be strictly construed with any doubt to be resolved in favor of the general provisions, rather than the exceptions."' (quoting State v. Wright, 84 Wn.2d 645, 652, 529 P.2d 453 (1974))).

         The legislature undeniably intended the Savings Clause to foreclose private actions for the removal of pre-Wilbour improvements based on their impairment of navigable waters alone. As one of the prime sponsors of the 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 Journal at 1411. Senator Gissberg further explained the reasoning for and the intended effect of the Savings Clause as follows:

Yes, I think in the entire section in subsection (1)[6], 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 injunction 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 ...

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