Brusco Towboat Co. v. State, By and Through Straub
Decision Date | 27 December 1978 |
Docket Number | 406393 and 412017,Nos. 412016,s. 412016 |
Citation | 589 P.2d 712,284 Or. 627 |
Parties | , 1979 A.M.C. 1246 BRUSCO TOWBOAT CO., Knappton Towboat Co., the Mirene Co., Pacific Inland Navigation Co., Ramona Towboat Co., Inc., Sause Bros. Ocean Towing Co., Inc., Shaver Transportation Co., Shepard Towing Co., Smith Tug and Barge Co., Tidewater Barge Lines, Inc., Western Transportation Co., and Willamette Tug and Barge Co., Appellants, v. The STATE of Oregon, acting By and Through Robert W. STRAUB, Clay Myers and James Redden, constituting the State Land Board, Respondent. The STATE of Oregon, Respondent, v. FORT VANCOUVER PLYWOOD CO., a corporation, Appellant. PORT OF ASTORIA, Port of Alsea, Port of Arlington, Port of Bay City, Port of Brookings, Port of Cascade Locks, Port of Coos Bay, Port of Gold Beach, Port of Hood River, Port of Morrow, Port of Newport, Port of Portland, Port of Port Orford, Port of Siuslaw, Port of St. Helens, Port of the Dalles, Port of Tillamook Bay, Port of Toledo, Port of Umatilla, and Port of Umpqua, Appellants, v. The STATE of Oregon, acting By and Through Robert W. STRAUB, Clay Myers and James Redden, constituting the State Land Board, Respondent. ; CA 6407, CA 5989; SC 25702. |
Court | Oregon Supreme Court |
[284 Or. 628-B] Alex L. Parks, Portland, argued the cause for petitioners. With him on the brief were Malcolm J. Montague, and White, Sutherland, Parks & Allen, Portland.
Peter S. Herman, Senior Counsel, Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and James C. Rhodes, Asst. Atty. Gen., Salem. HOWELL, Justice.
At issue in these three consolidated cases is the validity of the State Land Board's (hereinafter Board) requirement that, with some exceptions, anyone who maintains a permanent structure on or over state-owned submerged and submersible lands under navigable waters enter into a lease and pay rent. Upon petitions from all parties, we granted review of the decision of the Court of Appeals 1 to consider primarily the following issues:
(1) Whether the state has the power to lease its submerged and submersible lands in this manner, and whether the authority to do so has been given to the State Land Board.
(2) Whether the Board, if it has the authority to impose this leasing program, it is calculating its rentals on an improper basis.
(3) Whether the leasing program impairs, or is constitutionally limited by, the rights of riparian owners.
(4) Whether the lease program, if otherwise valid, may be applied to the port districts. 2
The status of these cases and the details of the Board's leasing program were well described in the Court of Appeals' opinion:
The Board's authority to require leases
The Court of Appeals correctly concluded that the Board has the authority to require users of these lands to enter into leases and to pay rental for their use. Plaintiffs do not contest the state's title to the lands in question. See Land Bd. v. Corvallis Sand & Gravel, 283 Or. 147, 582 P.2d 1352 (1978). The legislature has specifically authorized the Division of State Lands 7 to lease state-owned submerged and submersible land. ORS 274.915 provides:
"Except as otherwise provided in ORS 274.905 to 274.940, the division may sell, lease or trade submersible or submerged lands owned by the state * * *."
See also ORS 274.040(1). Plaintiffs argue that this authority was not intended to extend to requiring rental for uses related to navigation, such as moorage facilities, log booms, and other permanent installations maintained by the plaintiffs. They rely on the legislative history of this provision. That history evidences an urgent concern with providing a mechanism for facilitating waterfront commercial and industrial development. 8 However, we do not find, either in the language of the statute or in the legislative history, any suggestion that the leasing authority was to be limited to lands used for purposes unrelated to navigation.
The power of the legislature is plenary, except as it may be limited by the federal or state constitution. State ex rel. Overhulse et al. v. Appling, 226 Or. 575, 585, 361 P.2d 86 (1961). Plaintiffs' federal constitutional challenges to the leasing program are addressed later in this opinion. They have not suggested any state constitutional limitations on the legislature's power to authorize the collection of revenue for the use of state-owned lands. In fact, general authority for such legislation is found in article VIII, § 5(2) of the state constitution, which provides:
"The (State Land) board shall manage lands under its jurisdiction with the object of obtaining the greatest benefit for the people of this state, consistent with the conservation of this resource under sound techniques of land management." 9
Subsection (2) was part of an initiative measure adopted in 1968. Material concerning that measure in the voters' pamphlet shows that the amendment was presented to the voters primarily as a vehicle for enhancing the revenue produced by state lands. Although those materials do not indicate that the measure was intended to provide any new authority for the legislature to authorize the leasing of state-owned lands, there was no suggestion that any limitation on the legislature's plenary power was intended. We find no provision in the state constitution which denies to the legislature (or to the Board) the power to require occupiers of state-owned submerged and submersible lands to enter into leases and compensate the state for their use.
The Court of Appeals' opinion discusses at some length the distinction between the state's proprietary interest in...
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