Citizens for Responsible Wildlife v. State

• Decision Date: 07 December 2004
• Docket Number: No. 30940-8-II.,30940-8-II.
• Citation: 103 P.3d 203,124 Wash.App. 566
• Parties: CITIZENS FOR RESPONSIBLE WILDLIFE MANAGEMENT; Inland Northwest Wildlife Council; Washingtonians for Wildlife Conservation; Citizens for Washington Wildlife; Naia Trust; Ballot Issues Coalition; King County Outdoor Sports Council; Hunters Heritage Council; Washington Falconers Association; North American Falconers Association; Purse Seine Vessel Owners Association; Washington State Sheep Producers; and Washington Women for Commercial Fishing, Appellants, v. STATE of Washington, Respondent. and Protect Pets and Wildlife, Defendant/Intervenors.
• Court: Washington Court of Appeals

103 P.3d 203

124 Wash.App. 566

CITIZENS FOR RESPONSIBLE WILDLIFE MANAGEMENT; Inland Northwest Wildlife Council; Washingtonians for Wildlife Conservation; Citizens for Washington Wildlife; Naia Trust; Ballot Issues Coalition; King County Outdoor Sports Council; Hunters Heritage Council; Washington Falconers Association; North American Falconers Association; Purse Seine Vessel Owners Association; Washington State Sheep Producers; and Washington Women for Commercial Fishing, Appellants, v. STATE of Washington, Respondent. and Protect Pets and Wildlife, Defendant/Intervenors.

No. 30940-8-II.

Court of Appeals of Washington, Division 2.

December 7, 2004.

Richard Allan Dubey, Scott Michael Missall, Constance Susan M. Martin, Short, Cressman & Burgess, PLLC, Seattle, WA, for Appellants.

Shawn Timothy Newman, Attorney at Law, Mary Sue Wilson, Atty General's Office/Fish & Wildlife Div, Olympia, WA, for Respondents.

ARMSTRONG, J.

Citizens for Responsible Wildlife Management and twelve other organizations challenge Initiatives 655 and 713 (the Initiatives), which prohibit various hunting and trapping practices. Citizens argues that the Initiatives violate the State's duty to control and manage wildlife for the public's benefit (public trust doctrine). Assuming without deciding that the public trust doctrine applies, Citizens' challenge fails because the State did not relinquish control over the public's interest in the State's natural resources. Accordingly, we affirm summary judgment in favor of the State.

FACTS

In November 1996, Washington voters approved Initiative 655, which made it unlawful to hunt black bear with the aid of bait or to hunt black bear, cougar, bobcat, or lynx with the aid of dogs. Initiative 655 is codified at RCW 77.15.245. In November 2000, Washington voters approved Initiative 713, which prohibits the use of body-gripping traps and other devices to capture animals and bans the use of two poisons, sodium fluoroacetate and sodium cyanide. Initiative 713 is codified at RCW 77.15.192, .194, .196, and .198.

Citizens sued the State to enjoin implementation and enforcement of the Initiatives. Citizens alleged that the Initiatives violate the public trust doctrine. Both parties moved for summary judgment. The trial court granted the State's motion, ruling that the Initiatives do not violate the public trust doctrine.

ANALYSIS

I. Summary Judgment Standard

When reviewing a summary judgment order, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c).

II. The Scope of Washington's Public Trust Doctrine

Citizens argues that the public trust doctrine applies to upland wildlife. And, according to Citizens, I-655 and I-713 impermissibly relinquish the State's control over renewable natural resources and wildlife.

The public trust doctrine concerns the public's right to navigation and the incidental rights of fishing, boating, swimming, waterskiing, and other related recreational uses of public waters. Caminiti v. Boyle, 107 Wash.2d 662, 669, 732 P.2d 989 (1987) (quoting Wilbour v. Gallagher, 77 Wash.2d 306, 316, 462 P.2d 232 (1969)).

Title to animals ferae naturae¹ belongs to the state in its sovereign capacity and the state holds this title in trust for the peoples' use and benefit. Graves v. Dunlap, 87 Wash. 648, 651, 152 P. 532 (1915). As the Washington Supreme Court explained in Cawsey v. Brickey, 82 Wash. 653, 656, 144 P. 938 (1914):

Under the common law of England all property right in animals ferae naturae was in the sovereign for the use and benefit of the people. The killing, taking and use of game was subject to absolute governmental control for the common good. This absolute power to control and regulate was vested in the colonial governments as a part of the common law. It passed with the title to game to the several states as an incident of their sovereignty and was retained by the states for the use and benefit of the people of the states, subject only to any applicable provisions of the Federal constitution.

No Washington case has applied the public trust doctrine to terrestrial wildlife or resources. See, e.g., State v. Longshore, 141 Wash.2d 414, 5 P.3d 1256 (2000)

(second degree theft conviction for stealing naturally occurring clams on private tidelands); R.D. Merrill Co. v. State, 137 Wash.2d 118, 969 P.2d 458 (1999) (water rights); Weden v. San Juan County, 135 Wash.2d 678, 958 P.2d 273 (1998) (county ordinance banning personal watercraft on all marine waters and one lake); Rettkowski v. Dep't of Ecology, 122 Wash.2d 219, 858 P.2d 232 (1993) (public trust doctrine not germane to issues concerning water rights to non-navigable stream); Caminiti, 107 Wash.2d at 663,

732 P.2d 989 (private recreational docks on state-owned tidelands and shorelands). But we need not decide whether the public trust doctrine applies here because, even if it does, Citizens' challenge fails.

III. The Public Trust Doctrine and the Challenged Initiatives

A statute enacted through the initiative process is presumed constitutional and the party challenging it bears the burden of proving it unconstitutional beyond a reasonable doubt. Amalgamated Transit Union Local 587 v. State, 142 Wash.2d 183, 205, 11 P.3d 762 (2000). Nonetheless, courts review legislation under the public trust doctrine with a heightened degree of judicial scrutiny, as if measuring the legislation against constitutional protections. Weden, 135 Wash.2d at 698, 958 P.2d 273 (quoting Ralph W. Johnson, et al., The Pub. Trust Doctrine and Coastal Zone Mgmt. in Washington State, 67 WASH. L.REV. 521, 525-27 (1992)).

The public trust doctrine developed out of the public's need for access to navigable waters. Caminiti, 107 Wash.2d at 669-70, 732 P.2d 989; Orion Corp. v. State, 109 Wash.2d 621, 640, 747 P.2d 1062 (1987). This policy is expressed, in part, in article 17, section 1 of the Washington Constitution, which asserts the state's ownership of the beds and shores of the state's navigable waters. Rettkowski, 122 Wash.2d at 232, 858 P.2d 232.

Washington's ownership of tidelands and shorelands has two parts. Caminiti, 107 Wash.2d at 668, 732 P.2d 989. The jus privatum is the private property interest under which the state may convey title to these lands. Caminiti, 107 Wash.2d at 668, 732 P.2d 989. But at issue here is the jus publicum, or public authority interest. Caminiti, 107 Wash.2d at 668, 732 P.2d 989.

The public trust doctrine protects "public ownership interests in certain uses of navigable waters and underlying lands, including navigation, commerce, fisheries, recreation, and environmental quality." Weden, 135 Wash.2d at 698,958 P.2d 273 (quoting Johnson, supra, at 524). In other words, the public trust doctrine grants the state dominion and sovereignty over these lands to hold in trust for the public. Caminiti, 107 Wash.2d at 669,732 P.2d 989. And this duty devolves on the state, not on a particular agency. Rettkowski, 122 Wash.2d at 232,858 P.2d 232.

When deciding if challenged legislation violates the public trust doctrine, we ask: (1) whether the state has given up its right of control over the jus publicum; (2) if so, whether the state (a) has promoted the public's interest in the jus publicum, or (b) has not substantially impaired it. Caminiti, 107 Wash.2d at 670, 732 P.2d 989 (citing Illinois Cent. R.R. v. Illinois, 146 U.S. 387, 453, 13 S.Ct. 110, 36 L.Ed. 1018 (1892)). Individual states have the authority to define the limits of the lands held in public trust and to recognize the private rights in these lands as they see fit. Longshore, 141 Wash.2d at 428, 5 P.3d 1256 (looking "solely to Washington law to determine" the scope of the public trust doctrine).

"An exercise of the initiative power is an exercise of the reserved power of the people to legislate." Amalgamated Transit, 142 Wash.2d at 204, 11 P.3d 762 (citing State ex rel. Heavey v. Murphy, 138 Wash.2d 800, 808, 982 P.2d 611 (1999)). And when the voters approve an initiative, they exercise the same power of sovereignty as the legislature does when it enacts a statute. Amalgamated Transit, 142 Wash.2d at 204, 11 P.3d 762 (citing Wash. Fed'n of State Employees v. State, 127 Wash.2d 544, 556, 901 P.2d 1028 (1995)).

In Caminiti, the Supreme Court held that RCW 79.90.105 did not violate the public trust doctrine; the statute allows owners of residential property abutting state-owned tidelands and shorelands to build recreational docks on these lands without paying the state. Caminiti, 107 Wash.2d at 665-66, 732 P.2d 989. The court concluded that the legislature had given up relatively little right of control over the jus publicum. For example, the challenged statute did not apply to harbor areas in navigable waters in front of and one mile on either side of cities bordering navigable waters. And the statute limited dock use to private recreational purposes, specifically authorized the Department of Natural Resources to regulate the docks, and subjected the docks to local regulations. Finally, the court identified the legislature's ability to repeal the statute as the "ultimate state control." Caminiti, 107 Wash.2d at 672-73, 732 P.2d 989.

In Weden, the court held that a San Juan County ordinance banning the use of motorized personal watercraft on all marine waters and one lake did not violate the public trust doctrine because the county had not given up control over its waters. Weden, 135 Wash.2d at 699, 958 P.2d 273. The court found that while the ordinance prohibited a particular form of recreation, the waters were open to the entire public, including personal watercraft owners who use other recreational methods. And the court noted that "it would be an...