Conservancy v. Gbi Holding Co.

• Decision Date: 06 July 2017
• Docket Number: No. 93381-2,93381-2
• Citation: 399 P.3d 493,188 Wash.2d 692
• 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.

188 Wash.2d 692

399 P.3d 493

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.

Argued Feb. 28, 2017

Filed July 6, 2017

González, J.

¶ 1 Petitioner Chelan Basin Conservancy (Conservancy) seeks the removal of six acres of fill material that respondent GBI Holding Co. 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 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 and, if so, whether such consent violates the public trust doctrine.

¶ 2 As explained in this opinion, the Court of Appeals correctly concluded that the legislature consented to the fill's impairment of navigable waters under RCW 90.58.270 (the Savings Clause), but the Court of Appeals prematurely concluded such consent did not violate the public trust doctrine. Because the trial court never reached the highly factual public trust issue, we reverse and remand to the trial court to determine in the first instance whether RCW 90.58.270 violates the public trust doctrine.

FACTUAL 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 Wn.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 Wn.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 artificially raise the lake 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 permanently dry land became seasonally submerged by the lake's artificially elevated waters.

¶ 5 In 1961, GBI added fill to its property to elevate it once more permanently above the lake's seasonal fluctuations. The fill is locally referred to as "the Three Fingers" because it resembles, in aerial photographs, three rectangular fingers protruding 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 Wn. 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. & W. R. Co., 255 U.S. 56, 59, 41 S.Ct. 237, 65 S.Ct. 500 (1921); Ralph W. Johnson & Eileen M. Cooney, Harbor Lines and the Public Trust Doctrine in Wash. 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 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 Chelan Basin Conservancy v. GBI Holding Co., No. 93381-2 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.

¶ 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 Meanwhile, while GBI was going through the permitting and short plat process, a local environmental group, the Conservancy, filed this action against GBI, seeking the abatement and removal of the Three Fingers fill pursuant to the public trust doctrine and Wilbour.¹ The Conservancy additionally named as interested parties the city of Chelan, the State of Washington, and the owner of the dam, Chelan County Public Utility District.

¶ 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 SMA's Savings Clause, RCW 90.58.270. The Conservancy moved for summary judgment on the applicability of the Savings Clause and the public trust doctrine as well.

¶ 12 Regarding the justiciable question of standing, the trial court found the Conservancy had standing to raise its public trust claim. As for the Savings Clause and its interplay with the public trust, the trial court initially found the Savings Clause violated the public trust doctrine but later rescinded that decision, choosing instead to avoid the public trust question altogether by holding the Savings Clause did not apply. After finding the legislature never consented to the creation of the Three Fingers fill, the court ordered the fill be removed.

¶ 13 GBI appealed to the Court of Appeals, which reversed the trial court's order and remanded for further proceedings. Chelan Basin Conservancy v. GBI Holding Co., 194 Wn.App. 478, 495, 378 P.3d 222 (2016). The Court of Appeals agreed with the trial court that the Conservancy had standing to sue but departed from the trial court's analysis regarding the applicability of the Savings Clause. Id. at 487-95, 378 P.3d 222. The Court of Appeals held the Savings Clause applied and its bar on public trust claims was enforceable since the Conservancy failed to prove the statute violated the public trust. Id. at 488-95, 378 P.3d 222.

¶ 14 The Conservancy petitioned this court for review of the Savings Clause and public trust issues. In its answer, GBI requested pursuant to RAP 13.4(d) that if we grant review, we should also address the issue of standing. We granted review without limitation. Chelan Basin Conservancy v. GBI Holding Co., 186 Wn.2d 1032, 385 P.3d 769 (2016). We therefore address three issues: (1) whether the Savings Clause, RCW 90.58.270, applies to the Three Fingers fill, (2) if so, whether the clause violates the public trust doctrine, and (3) whether the Conservancy has standing to bring this public trust action.

WASHINGTON'S PUBLIC TRUST DOCTRINE

¶ 15 The public trust doctrine is an ancient common law doctrine that recognizes the public right to use navigable waters in place for navigation and fishing, and other incidental activities. E.g., Caminiti, 107 Wash.2d at 668-69, 732 P.2d 989. The principle that the public has an overriding interest in navigable waterways and the lands underneath them has been dated by some...