Caminiti v. Boyle

• Court: Washington Supreme Court
• Writing for the Court: ANDERSEN; PEARSON, C.J., and DOLLIVER, UTTER, BRACHENBACH, CALLOW and DURHAM, JJ., and SCHUMACHER; DORE
• Citation: Caminiti v. Boyle, 732 P.2d 989, 107 Wn.2d 662 (Wash. 1987)
• Decision Date: 12 February 1987
• Docket Number: No. 52459-9
• Parties: Benella CAMINITI, an individual; Committee for Public Shorelines Rights, an association, Petitioners, v. Brian J. BOYLE, Commissioner of Public Lands of the State of Washington; Robert S. O'Brien, Treasurer of the State of Washington, Respondents.

Page 662

107 Wn.2d 662

732 P.2d 989

Benella CAMINITI, an individual; Committee for Public Shorelines Rights, an association, Petitioners, v. Brian J. BOYLE, Commissioner of Public Lands of the State of Washington; Robert S. O'Brien, Treasurer of the State of Washington, Respondents.

No. 52459-9.

Supreme Court of Washington En Banc.

Feb. 12, 1987.

[732 P.2d 991] Peter T. Jenkins, Seattle, for petitioners.

Kenneth Eikenberry, Atty. Gen., Nixon Handy, Sr. Asst. Atty. Gen., Ann C. Essko, Asst. Atty. Gen., Olympia, for respondents.

FACTS OF CASE

ANDERSEN, Justice.

This action was commenced by a petition filed in this court seeking a writ of mandamus directed to the Commissioner of Public Lands and the State Treasurer. ¹ Petitioners ask us to declare unconstitutional the state statute (RCW 79.90.105) which allows owners of residential property abutting state-owned tidelands and shorelands to install and maintain private recreational docks on such lands without payment to the state. We concluded that the petition met the necessary criteria for retention by this court and retained original jurisdiction. ² Having now considered the parties' briefs and oral argument on the merits, we decline to hold the statute unconstitutional. Issuance of the writ will be denied.

The case was submitted on agreed facts. Those pertinent to our disposition of the case are as follows: ³

"By the Laws of the State of Washington of 1983, 2nd ex. sess., ch. 2, sec. 2, p. 2160 (formerly SB 3290; now codified at RCW 79.90.105), the following legislation became effective on June 13, 1983:

'The abutting residential owner to state-owned shorelands, tidelands, or related beds of navigable waters, other than harbor areas, may install and maintain without charge a dock on such areas if used exclusively for private recreational purposes and the area is not subject to prior rights. This permission is subject to applicable local regulation governing construction, size, and length of the dock. This permission may be revoked by the department upon finding of public necessity which is limited to the protection of waterward access or ingress rights of other landowners or public health and safety. The revocation may be appealed as a contested case under chapter 34.04 RCW. Nothing in this section prevents the abutting owner from obtaining a lease if otherwise provided by law.'

"Prior to the effective date of RCW 79.90.105, approximately 370 residential owners of private land abutting public aquatic lands were paying the State approximately $35,000 in annual rental for private recreational docks on public aquatic lands, outside of harbor areas, pursuant to the then statutorily authorized leasing program. This amount includes all monies received by the Department of Natural Resources as lease application fees pursuant to RCW 79.01.088, RCW 79.90.100 and RCW 79.01.720. The administrative cost to the Department of Natural Resources of maintaining its leasing program for private recreational docks on public aquatic lands, outside of harbor areas, prior to the effective date of RCW 79.90.105 amounted to a substantial portion of the lease revenues.

"Since the effective date of RCW 79.90.105, the Department of Natural Resources has terminated the leasing program for private recreational docks on public aquatic lands, outside of harbor areas, and has not issued new leases or collected lease application fees or annual rental. The $35,000 in annual rental previously collected does not necessarily reflect the amount of annual rental that the State would have charged in succeeding years had RCW 79.90.105 never been enacted, which amount may have been more or less.

"Petitioner Caminiti has interests affected by the amount of revenue that the State generates each year from public resources.

"Petitioner Caminiti and the members of petitioner Committee for Public Shorelines Rights have recreational interests that are affected by their ability to acquire access to and use public aquatic lands and waters. These include, but are not limited to, their ability to fish, swim, navigate, water ski, beachcomb, procure shellfish, sunbathe, observe natural and undisturbed wildlife, play on open beaches, and enjoy seclusion. These interests are impacted to some extent by the presence, location, and private use of private recreational docks on these public aquatic lands and waters.

"The elimination of lease fees may be a factor considered by some upland owners in deciding whether to build a private recreational dock on abutting public aquatic lands, although it is not known to what extent this factor would actually influence such decisions."

There is one principal issue.

ISSUE

Does RCW 79.90.105, which allows owners of residential property abutting state-owned tidelands and shorelands ⁴ to install and maintain private recreational docks on such lands free of charge, violate article 17, section 1 of the Washington State Constitution or the "public trust doctrine"?

DECISION

The short answer to the question posed by this issue is "no". Upon admission into the Union, the state of Washington was vested with title in, and dominion over, its tidelands and shorelands. Since statehood, the Legislature has had the power to sell and convey title to state tidelands and shorelands. Prior to 1971, when the Legislature by statute changed its policy, the state had sold approximately 60 percent of its tidelands and 30 percent of its shorelands. The Legislature has never had the authority, however, to sell or otherwise abdicate state sovereignty or dominion over such tidelands and shorelands. By enacting the statute at issue in this case (RCW 79.90.105), the Legislature has seen fit to grant only a revocable license allowing owners of land abutting state-owned tidelands and shorelands to build recreational docks thereon subject to state regulation and control. The Legislature did not thereby surrender state sovereignty or dominion over these tidelands and shorelands, but through the Department of Natural Resources and local subdivisions of state government continues to exercise control over them.

By our state constitution, "[t]he state of Washington asserts its ownership to the beds and shores of all navigable waters in the state up to and including the line of ordinary high tide, in waters where the tide ebbs and flows, and up to and including the line of ordinary high water within the banks of all navigable rivers and lakes ..." Const. art. 17, § 1 (part). This was but a formal declaration by the people of rights which our new state possessed by virtue of its sovereignty, ⁵ and which declaration had the effect of vesting title to such lands in the state. ⁶

As this court has repeatedly held, under the foregoing constitutional provision the state of Washington has the power to dispose of, and invest persons with, ownership of tidelands and shorelands subject only to the paramount public right of navigation and the fishery. ⁷ Perhaps the clearest exposition of the nature of the state's ownership in this regard is that contained in this court's opinion in the early case of New Whatcom v. Fairhaven Land Co., 24 Wash. 493, 499, 64 P. 735 (1901):

The title to lands under tide waters in the sea, arms, and inlets thereof, and in tidal rivers, within the realm of England, was, by the common law, deemed to be vested in the king, as a public trust, to subserve and protect the public right to use them as a common highway for commerce, trade, and intercourse. The king, by virtue of his proprietary interest, could grant the soil so that it should become private property; but his grant was subject to the paramount right of the public use of navigable waters, which he could neither destroy nor abridge. In every such grant there was an implied reservation of the public right. Upon the American Revolution the title and dominion of the tide waters, and of the lands under them, vested in the several states of the Union within their respective borders, subject to the rights surrendered by the constitution to the United States.

And further:

The provision of art. 17, § 1, of the constitution was evidently for the purpose of establishing the right of the state to the beds of all navigable waters in the state, whether lakes or rivers, or fresh or salt, to the same extent the crown had in England in the sea, and in the arms and inlets thereof, and in the tidal rivers, and to eliminate the distinctions existing under the rule of the common law in this respect.

New Whatcom, 24 Wash. at 500, 64 P. 735.

The New Whatcom court also stated that

the public has an easement in such waters for the purposes of travel, as on a public highway, which easement, as it pertains to the sovereignty of the state, is inalienable and gives to the state the right to use, regulate, and control the waters for the purposes of navigation; ...

New Whatcom, 24 Wash. at 504, 64 P. 735.

From the foregoing it is clear that the state's ownership of tidelands and shorelands is not limited to the ordinary incidents of legal title, but is comprised of two distinct aspects.

The first aspect of such state ownership is historically referred to as the jus privatum or private property interest. ⁸ As owner, the state holds full proprietary rights in tidelands and shorelands and has fee simple title to such lands. Thus, the state may convey title to tidelands and shorelands 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. ⁹ In the case before us, the state has not by this statute conveyed title to the land, but as will be discussed shortly, has given a revocable license only. ¹⁰

The second aspect of the state's ownership of tidelands and shorelands is historically referred to as the jus publicum or public authority interest. ¹¹ The principle that the public has an overriding interest in navigable...