Chelan Basin Conservancy v. GBI Holding Co.

• Decision Date: 15 March 2018
• Docket Number: No. 93381-2,93381-2
• Citation: 190 Wash.2d 249,413 P.3d 549
• Court: Washington Supreme Court
• Parties: CHELAN BASIN CONSERVANCY, Petitioner, v. GBI HOLDING CO., State of Washington, and City of Chelan, Respondents, and Chelan County Public Utility District, Additional Named Party.

190 Wash.2d 249

413 P.3d 549

CHELAN BASIN CONSERVANCY, Petitioner,

v. GBI HOLDING CO., State of Washington, and City of Chelan, Respondents,andChelan County Public Utility District, Additional Named Party.

No. 93381-2

Supreme Court of Washington.

Filed MARCH 15, 2018

Michael W. Gendler, GendlerLaw PLLC, 5006 Greenwood Ave. N, Seattle, WA, 98103-6015, Russell John Speidel, David Joel Bentsen, Speidel Bentsen LLP, Po Box 881, Wenatchee, WA, 98807-0881, Brendan Wesley Donckers, Daniel Foster Johnson, Roger M. Townsend, Breskin Johnson & Townsend, PLLC, 1000 Second Avenue Suite 3670, Seattle, WA, 98104, for Petitioner.

Erik K. Wahlquist, Chelan County PUD, Po Box 1231 Wenatchee, WA, 98807-1231, Allan Galbraith, Allan Galbraith, PLLC, 949 Wheeler Hill Rd., Wenatchee, WA, 98801-9705, Nicholas James Lofing, Davis, Arneil Law Firm, 617 Washington St., Wenatchee, WA, 98801-2600, Katherine Gustafson Galipeau, Perkins Coie LLP, 1201 3rd Ave. Ste. 4900, Seattle, WA, 98101-3099, John Kirk Bromiley, Bromiley Law, PLLC, 227 Ohme Garden Rd., Wenatchee, WA, 98801-9047, Terence Pruit, Attorney General's Office, Po Box 40100, Olympia, WA, 98504-0100, for Defendant.

John Kirk Bromiley, Bromiley Law, PLLC, 227 Ohme Garden Rd., Wenatchee, WA, 98801-9047, Markham Allen Quehrn, Perkins Coie LLP, 10885 Ne 4th St. Ste. 700 Bellevue, WA, 98004-5579, David Scott Steele, Eric David Miller, Perkins Coie LLP, 1201 3rd Ave. Ste. 4900, Seattle, WA, 98101-3099, Terence Pruit, Attorney General's Office, Po Box 40100, Olympia, WA, 98504-0100, Jay Douglas Geck, Office of the Attorney General, Po Box 40100, Olympia, WA, 98504-0100, Allan Galbraith, Allan Galbraith, PLLC, 949 Wheeler Hill Rd., Wenatchee, WA, 98801-9705, Nicholas James Lofing, Davis, Arneil Law Firm, 617 Washington St., Wenatchee, WA, 98801-2600, for Respondents.

Allan Galbraith, Allan Galbraith, PLLC, 949 Wheeler Hill Rd., Wenatchee, WA, 98801-9705, Nicholas James Lofing, Davis, Arneil Law Firm, 617 Washington St., Wenatchee, WA, 98801-2600, Kenneth W. Harper, Menke Jackson Beyer, LLP, 807 N. 39th Ave., Yakima, WA, 98902-6389, for Respondent/Cross-Appellant.

Rachael Paschal Osborn, Attorney at Law, Po Box 362, Vashon, WA, 98070-0362, for Amicus Curiae on behalf of Center for Environmental Law & Policy.

John Maurice Groen, Pacific Legal Foundation, 930 G. St., Sacramento, CA, 95814-1802, Brian Trevor Hodges, Pacific Legal Foundation, 10940 Ne. 33rd Pl. Ste. 210 Bellevue, WA, 98004-1432, for Amicus Curiae on behalf of Pacific Legal Foundation.

Erik K. Wahlquist, Chelan County PUD, Po Box 1231, Wenatchee, WA, 98807-1231, Terence Pruit, Attorney General's Office, Po Box 40100, Olympia, WA, 98504-0100, Jay Douglas Geck, Office of the Attorney General, 1125 Washington St. Se., Olympia, WA, 98504-0100, for Other Parties.

González, J.¶ 1 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.

¶ 2 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

¶ 3 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 Wash.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.

¶ 4 In its natural state, GBI's property stood above the lake's peak water levels and was continuously dry throughout the year. See Wilbour v. Gallagher, 77 Wash.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, 462 P.2d 232 (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.

¶ 5 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.

¶ 6 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, 462 P.2d 232. Although we acknowledged the existence of other similarly situated fills along the lake, our Wilbour decision did not order their abatement. Id. at 316, 462 P.2d 232 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) ) ).

¶ 7 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 Wash.2d at 316 n.13, 462 P.2d 232.

¶ 8 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

¶ 9 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 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.

¶ 10 Turning to the underlying action, the Conservancy, a local environmental group, responded to GBI's 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.

¶ 11 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...