Chelan Basin Conservancy v. GBI Holding Co.

Citation: Not availableDocket: 93381-2

Court: Washington Supreme Court; July 6, 2017; Washington; State Supreme Court

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An opinion was recorded on July 6, 2017, in the Supreme Court of Washington regarding the Chelan Basin Conservancy's petition against GDI Holding Co., the State of Washington, and the City of Chelan. The Conservancy seeks the removal of six acres of fill material added by GDI in 1961 to keep the property above seasonal water fluctuations of Lake Chelan, asserting a violation of the public trust doctrine that protects the public's right to use navigable waters. The court found that the legislature had consented to the impairment of navigable waters under RCW 90.58.270 but incorrectly concluded that this consent did not violate public trust. The trial court had not addressed the factual aspects of the public trust issue, prompting the Supreme Court to reverse and remand for further examination of whether RCW 90.58.270 violates the public trust doctrine.

The state constitution grants the State ownership of navigable water beds and shores, interpreted as a private property interest subject to a public servitude for navigation and fishing. Lake Chelan is recognized as navigable, and GDI's property is subject to this public trust. Initially, GDI's land was dry year-round but became seasonally submerged after a dam installation. To counter this, GDI added fill to keep the land permanently elevated. The court referenced a precedent case, Wilbour, which had previously found that a neighboring fill violated public trust and ordered its abatement, raising questions about similarly situated fills along the lake. Wilbour's decision was significant in questioning the titles of many properties along Washington's shores, highlighting historical oversight of public trust rights during early state development.

By 1969, significant development of Washington's tidelands and shorelands had occurred, including the creation of Harbor Island. In response to the Wilbour decision, the legislature enacted the Savings Clause (RCW 90.58.270) to provide retroactive consent to pre-Wilbour improvements, protecting them from public trust challenges. This clause was part of the Shoreline Management Act of 1971 (SMA), which was ratified by the public, while Initiative 43, which did not provide similar protections for pre-Wilbour fills, was rejected.

Legal attention to pre-Wilbour fills diminished until 2010 when GBI applied to develop the Three Fingers fill but withdrew due to public opposition. GBI later sought to subdivide the property, receiving city approval contingent on public park reservations. GBI appealed the city’s conditional decision, which was stayed pending this action.

Simultaneously, the environmental group Conservancy filed suit against GBI, seeking removal of the Three Fingers fill based on the public trust doctrine and the Wilbour decision, naming the city of Chelan, the State of Washington, and Chelan County Public Utility District as interested parties. GBI sought summary judgment, arguing the Conservancy lacked standing and that the Savings Clause barred the public trust claim. The trial court ruled the Conservancy had standing and initially found the Savings Clause violated the public trust but later decided it was inapplicable and ordered the fill's removal.

GBI appealed, and the Court of Appeals reversed the trial court's order, affirming the Conservancy's standing but ruling that the Savings Clause applied and barred the public trust claims since the Conservancy did not demonstrate a violation of the public trust. The Conservancy sought review of the Savings Clause and public trust issues. GBI requested that standing be addressed if review was granted. The court agreed to review three issues: the applicability of the Savings Clause to the Three Fingers fill, whether it violates the public trust doctrine, and the standing of the Conservancy in this public trust action.

The public trust doctrine in Washington recognizes the public's right to use navigable waters for navigation, fishing, and related activities, with roots tracing back to historical Roman law and firmly established in common law by the 19th century. States have the authority to define the extent of lands held in public trust and to acknowledge private rights. In Washington, the state owns tidelands and shorelands under Article 17, which allows it to convey ownership while retaining public rights for navigation and fisheries. The state holds these lands in two capacities: as a fee simple title owner (jus privatum) and as a trustee for public benefit (jus publicum). The rights of public users and private landowners fluctuate with water levels—rising waters enhance public rights while reducing private rights, and vice versa. A private landowner cannot unilaterally eliminate public rights by raising property above the high-water mark without legislative consent. GBI claims that legislative consent was granted through the Savings Clause (RCW 90.58.270), which protects pre-existing improvements like the Three Fingers fill from public trust impairment challenges, unless those improvements violate statutes or are in trespass. The Conservancy contests this interpretation.

The Savings Clause is argued to be inapplicable due to the Three Fingers fill obstructing the passage of a river, constituting a public nuisance under state law, which disqualifies it from the protections offered by the Savings Clause. The Conservancy contends that this violation necessitates the removal of the fill, while GBI disputes the characterization of the fill as a public nuisance. The city of Chelan believes the public nuisance issue can be bypassed, asserting that the Savings Clause applies solely to existing structures and does not cover GBI's proposed developments. 

Statutory interpretation aims to reflect legislative intent, where clear statutes require no judicial construction and must be strictly construed to preserve public trust interests. The city misinterprets the Conservancy's position, as the complaint focuses on the removal of the existing fill rather than blocking future development. The general rule for public land grants is that they are interpreted liberally for the grantor and strictly for the grantee, with no implicit rights transferred.

RCW 7.48.140(3) defines obstruction of navigable waters as a public nuisance unless done under express statutory authority. GBI and the State argue that the Savings Clause provides such authority for the retention of pre-Wilbour improvements, insulating them from nuisance claims. The Savings Clause is understood to authorize the impairment of public navigation rights due to the retention of structures established before December 4, 1969, and ensures that such structures cannot be ordered for removal, thereby granting consent for their maintenance.

Consent related to structures on tidelands and navigable waters does not extend to those that are trespassory or violate state laws. The state and local governments retain authority to address nuisances and pollution. The Savings Clause aims to prevent private actions against improvements made before December 4, 1969, for impairing navigable waters, as clarified by Senator Gissberg during legislative discussions. This clause permits the continued existence of the Three Fingers fill and blocks public nuisance claims solely based on navigable water impairment. Claims regarding the fill's nuisance status for other reasons are not addressed, as they are outside the current case scope. The Conservancy has not pursued nuisance claims beyond the public trust context and lacks supporting facts for other legal precedents. The public trust doctrine emphasizes that state control over navigable waters can only be relinquished in ways that serve public interests or do not significantly impair those interests. Hence, evaluations of public trust claims must consider whether the state has surrendered its control and whether such actions promote or do not substantially impair public interests. The trial court did not address the factual analysis required, necessitating a remand for this determination. Additionally, legal questions regarding legislative preemption, burden of proof on public trust violations, state control over the Three Fingers property, and the geographical focus for assessing interests affected by the Savings Clause are to be clarified on remand. Legislative actions that impact public trust rights remain subject to judicial review, despite arguments for preemption by GBI and the State.

The public trust doctrine, while rooted in common law, is also constitutionally anchored in article 17 of the state constitution. Any legislation that undermines this doctrine, including the Shoreline Management Act (SMA), is subject to judicial review, as elevating legislative power above constitutional principles contradicts legal norms. The state’s lack of title ownership to the Three Fingers property does not negate the constitutional relevance of the public trust doctrine regarding that property. Article 17 establishes two separate interests: the state's duty to safeguard public trust interests and its title ownership of specific lands. Therefore, any legislative action that fails to uphold the state's constitutional duty to protect public trust interests is reviewable by the courts, irrespective of ownership status.

In challenging a legislative act's constitutionality, the burden of proof lies with the party contesting the act, a principle that holds true even in quasi-constitutional public trust claims. Despite the Conservancy's argument for heightened scrutiny in these cases, the burden of proof remains consistent with other constitutional challenges.

The first component of the Caminiti test examines whether the state has relinquished its control over the jus publicum through legislation. The parties dispute whether the enactment of the Savings Clause, which allowed for significant alterations to navigable waters, constituted an abdication of control. The distinction between exercising and abdicating control can be complex, but in this instance, precedents from the Illinois Central case clarify that the state cannot grant irrevocable rights over public lands to private entities for commercial purposes.

The Court clarified that while the State is obligated to protect its public trust resources, it may relinquish control over some public trust properties without breaching its obligations, provided that such actions promote trust interests or do not significantly impair remaining lands and waters. In this case, the legislature's authorization significantly impaired thousands of acres, far exceeding the previously acknowledged limit of a thousand acres, resembling the land grant situation in Illinois Central. The evaluation of whether this abdication aligns with the State's public trust obligations hinges on part two of the Caminiti test, which assesses if the legislation promotes public interests or does not substantially impair them. The Court determined that the public trust interests should be evaluated on a statewide basis rather than localized to the Three Fingers fill on Lake Chelan. 

The Savings Clause was enacted in response to the Wilbour decision, which had raised concerns over property titles and public trust claims, leading to economic stagnation due to a moratorium on tideland fill projects. The legislature aimed to resolve these issues with the Savings Clause, which cleared title for properties affected by the Wilbour ruling, enabling economic activity to resume. The Court noted that other jurisdictions had similarly enacted decisive legislation to protect historic fills from public trust claims. The analysis of the Savings Clause's impact on public trust interests will be factually dependent, necessitating a remand to the trial court for further determination. Additionally, the Conservancy has standing to assert a public nuisance claim grounded in a public trust violation.

The excerpt examines constitutional rights under the public trust doctrine, noting that heightened scrutiny does not equate to strict scrutiny requiring a compelling state interest. It references differing judicial opinions on applying a balancing test that weighs public interest against the impairment of public trust rights. Professor Johnson’s analysis highlights regional disparities in water use priorities between Washington's western and eastern areas, suggesting that significant impairments to recreational water use may be acceptable in the east for agricultural irrigation, but not in the west where tourism is crucial. Professor Sax supports the necessity of a balancing test, warning against rigid policy freezes that could hinder governmental adaptability to changing public needs. 

The document also addresses GBI's challenge to the Conservancy's standing, labeling the action as a public nuisance while the Conservancy insists it is a distinct public trust claim. The court acknowledges this as a public nuisance action linked to the public trust doctrine. Various public nuisance types are identified, with the removal of impediments affecting public waterway use categorized under public nuisance statutes. GBI argues that the Conservancy must demonstrate special injury to its members to have standing under RCW 7.48.210, a requirement deemed not overly stringent. The excerpt concludes that while special injury is necessary for standing in public trust claims, it does not impose a significant barrier.

An organization must demonstrate an injury in fact to establish standing for noneconomic claims, as outlined in SAVE v. City of Bothell. This requirement necessitates showing that the organization or its members will be specifically and perceptibly harmed by an action, with speculative or indirect interests being insufficient. In the context of public nuisance claims, "specially injurious" harms are treated similarly to the "specific and perceptible" injuries needed for noneconomic claims. 

The Chelan Basin Conservancy meets this standard, as its members, including James and Kitty Green, Tammy Hauge, and Bill Schultz, assert that their recreational rights and access to Lake Chelan are impaired by the Three Fingers fill. The complaint details how the fill obstructs their navigation, fishing, and recreational activities, affirming that these injuries are concrete rather than speculative. The court holds that the harms claimed are distinct from those of the general public, satisfying the standing requirements under RCW 7.48.210. Furthermore, the cited cases of Zampa v. Graham and Kemp v. Putnam do not support GBI's argument against the Conservancy's standing.

A fisherman has standing to challenge the construction of a wing dam if it negatively impacts his fishing activities, but not if the claim solely pertains to interference with navigation since that injury is common to the public. The Lampa decision was fact-specific, and in Kemp, it was established that an individual engaged in recreational fishing has standing to contest illegal obstructions in a stream. The Chelan Basin Conservancy seeks to remove fill material added by GBI that elevates property above Lake Chelan's waters, claiming it obstructs public navigable rights. The court affirms the Conservancy's standing to pursue this claim and finds legislative consent to the fill's impact on navigable waters under the Savings Clause, RCW 90.58.270. The court refrains from ruling on whether the Savings Clause violates the public trust doctrine due to the trial court not addressing the factual analysis. The case is reversed and remanded for further consideration on that issue. Additionally, the court will not consider GBI's laches defense, as it was raised only in supplemental briefs and not in the initial filings.