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.
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,  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
and Procedural Background
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
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.
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.
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))).
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.
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
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 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 of this action.
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 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.
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.
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.
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.
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.
Public Trust Doctrine
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).
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.
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.
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.
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.
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
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.
The Legislature Consented to the Impairment of Navigable
Waters by the Three Finger Fill When It Enacted the Savings
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.
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
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.
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-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))).
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
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 ...