Conservancy v. GBI Holding Co.

• Decision Date: 14 June 2016
• Docket Number: No. 33196–2–III (consolidated with No. 33239–0–III),33196–2–III (consolidated with No. 33239–0–III)
• Court: Washington Court of Appeals
• Parties: Chelan Basin Conservancy, Respondent, v. GBI Holding Co. and State of Washington, Appellants and Cross Respondents, City of Chelan, Respondent and Cross Appellant, and Chelan County Public Utility District, Additional Named Party.

194 Wash.App. 478

378 P.3d 222

Chelan Basin Conservancy, Respondent,

v. GBI Holding Co. and State of Washington, Appellants and Cross Respondents,City of Chelan, Respondent and Cross Appellant,andChelan County Public Utility District, Additional Named Party.

No. 33196–2–III (consolidated with No. 33239–0–III)

Court of Appeals of Washington, Division 3.

FILED June 14, 2016

John Kirk Bromiley, Bromiley Law, PLLC, 227 Ohme Garden Rd., Wenatchee, WA, 98801–9047, Markham Allen Quehrn, Perkins Coie LLP, The Pse Bldg., 10885 NE 4th St. Ste. 700, Bellevue, WA, 98004–5579, David Scott Steele, Perkins Coie LLP, 1201 3rd Ave. Ste. 4900, Seattle, WA, 98101–3099, Terence Pruit, Attorney General's Office, 1125 Washington St. SE, P.O. Box 40100, Olympia, WA, 98504–0100, Counsel for Appellant(s).

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, Terence Pruit, Attorney General's Office, 1125 Washington St. SE, P.O. Box 40100, Olympia, WA, 98504–0100, Erik K. Wahlquist, Chelan County PUD, P.O. Box 1231, 327 N Wenatchee Ave., Wenatchee, WA, 98807–1231, Alexander Weal Mackie, Attorney at Law, P.O. Box 607, Winthrop, WA, 98862–0607, 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, Counsel for Defendant(s).

Michael W. Gendler, David Scott Mann, Gendler & Mann LLP, 615 2nd Ave. Ste. 560, Seattle, WA, 98104–2242, Russell John Speidel, David Joel Bentsen, Speidel Bentsen LLP, P.O. Box 881, Wenatchee, WA, 98807–0881, Counsel for Respondent(s).

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, Counsel for Respondent/Cross–Appellant.

John Maurice Groen, Pacific Legal Foundation, 930 G St., Sacramento, CA, 95814–1802, Amicus Curiae on behalf of Pacific Legal Foundation.

Erik K. Wahlquist, Chelan County PUD, P.O. Box 1231, 327 N Wenatchee Ave., Wenatchee, WA, 98807–1231, Terence Pruit, Attorney General's Office, 1125 Washington St. SE, P.O. Box 40100, Olympia, WA, 98504–0100, Counsel for Other Parties.

Pennell, J. ¶ 1 Since the early 1960s, GBI Holding Co. and its predecessors (collectively GBI) have maintained a private landfill commonly known as the “Three Fingers” on the shore of Lake Chelan. For members of the Chelan Basin Conservancy (CBC), the Three Fingers fill is a blot on the otherwise pristine shores of the lake and unreasonably interferes with access to the beach and navigable waters. After GBI initiated plans to develop the Three Fingers fill in 2010, CBC took legal action. Relying on the little-known “public trust doctrine,” CBC sought not simply to thwart GBI's development plans, but to force it to abate its long-held fill.

¶ 2 CBC's legal challenge to the Three Fingers fill requires analyzing the relationship between the public trust doctrine and the Shoreline Management Act of 1971 (SMA), ch. 90.58 RCW. The SMA was approved by voter referendum in 1972 and designed to handle public trust disputes through regulation. It also included a savings clause that grandfathered in preexisting landfills against claims for violation of the public rights of navigation. We are confronted with whether the SMA's savings clause applies to the Three Fingers fill and, if so, whether this portion of the SMA itself violates the public trust doctrine. We hold that (1) the SMA's savings clause does plainly protect long-held fills such as the Three Fingers, and (2) CBC has not shown the SMA to be invalid. We therefore reverse the superior court's orders requiring GBI to abate its fill.

FACTS

¶ 3 The Three Fingers fill is an area of land, approximately six to eight acres in size, owned by GBI. The fill is located on the southeastern shoreline of Lake Chelan, immediately west of the fill addressed in the Washington Supreme Court case of Wilbour v. Gallagher , 77 Wash.2d 306, 462 P.2d 232 (1969). As more fully described in Wilbour, the completion of Lake Chelan Dam in 1927 artificially raised the level of the lake from 1,079 feet to 1,100 feet above sea level during peak summer months. 77 Wash.2d at 307, 309, 462 P.2d 232. The Three Fingers fill is on lands that were dry when the lake was at its lowest level but covered with water during the spring and summer when the lake was at its peak level. In 1961, GBI acquired the property as part of a project to widen State Route 97A. From 1961 to 1962, GBI filled the property with materials excavated during roadway construction, raising the elevation of the land from 1,090 feet to 1,102 feet above sea level and extending it 250 to 300 feet into the lake. After GBI raised the property, it remained above lake level year round.

¶ 4 The Three Fingers fill does not hold any structures. It has been used in the past for growing corn, parking, and as a staging area for work on the Holden Mine hazardous waste cleanup. In 2010, GBI filed an application with the City of Chelan (City) to improve the Three Fingers fill as a planned development district. CBC, a local group interested in protecting the “use and enjoyment of the navigable waters of Lake Chelan,” and others objected to the development. Clerk's Papers at 4. GBI thereafter withdrew its application for planned development and then filed a new application to subdivide the land into six parcels. CBC and others again objected and requested removal of the Three Fingers fill. In 2011, the City approved a short plat to subdivide the property subject to conditions, which included requiring (1) a public park be developed from two of the lots, and (2) public access to the lake for recreation. Both CBC and GBI appealed the short plat decision to the City's hearing examiner. In a preliminary ruling, the hearing examiner concluded the City lacked authority to order removal of the Three Fingers fill. CBC thereafter withdrew its administrative appeal and in late 2011 filed an action in superior court for removal of the Three Fingers fill.

¶ 5 CBC's complaint alleged the Three Fingers fill (1) constitutes a trespass against the public right of access to Lake Chelan,¹ (2) violates the public rights of navigation as described in Wilbour, and (3) violates rights to use and enjoy the waters of Lake Chelan as protected by the public trust doctrine. The complaint named GBI as the defendant and the City,² State,³ and Chelan County Public Utility District (PUD)⁴ as additional parties.

¶ 6 After several years of litigation, the superior court resolved CBC's complaint on summary judgment. The court held the Three Fingers fill violated the public trust doctrine, subsequently ordering GBI to abate the fill. We are now presented with the case on appeal.

ANALYSISStandard of Review

¶ 7 This court reviews summary judgment orders de novo, “engaging in the same inquiry as the trial court.” Weden v. San Juan County , 135 Wash.2d 678, 689, 958 P.2d 273 (1998). “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.” Citizens for Responsible Wildlife Mgmt. v. State , 124 Wash.App. 566, 569, 103 P.3d 203 (2004) ; see also CR 56(c).

¶ 8 At issue here are questions of both statutory construction and constitutional limits on state authority. “Issues of statutory construction and constitutionality are questions of law” also subject to de novo review. State v. Evans , 177 Wash.2d 186, 191, 298 P.3d 724 (2013). Regularly enacted statutes are presumed constitutional, unless the provision “involves a fundamental right or a suspect class, in which case the presumption is reversed.” Weden , 135 Wash.2d at 690, 958 P.2d 273. The statute's challenger has the heavy burden of overcoming the presumption of constitutionality. Island County v. State , 135 Wash.2d 141, 146, 955 P.2d 377 (1998).

The Public Trust Doctrine

¶ 9 The public trust doctrine has both common law and constitutional roots. With statehood, Washington asserted ownership to “the beds and shores of all navigable waters in the state....” Wash. Const. , art. XVII, § 1. Along with this right of ownership came a duty of public trust. Although not always clearly labeled as such, Washington courts have always recognized this duty under the “public trust doctrine.” Caminiti v. Boyle , 107 Wash.2d 662, 669–70, 732 P.2d 989 (1987). According to the doctrine, the State holds an interest in navigable waters akin to a permanent easement: while the State has the power to convey the title to lands covered by navigable waters, it can never alienate the public's right to use navigable waters. City of New Whatcom v. Fairhaven Land Co. , 24 Wash. 493, 499, 504, 64 P. 735 (1901). Instead, the State retains inalienable power over navigable waters “in trust for the whole people....” State v. Sturtevant , 76 Wash. 158, 165, 135 P. 1035 (1913). Under the public trust doctrine, the State's private interest, which may be sold, is referred to as the “jus privatum.” Caminiti , 107 Wash.2d at 668, 732 P.2d 989. The public interest that cannot be divested is called the “jus publicum.” Id.

¶ 10 Despite the public trust doctrine's ever presence, Washington's early history was marked by a preference for development over conservation. Robert F. Utter & Hugh D. Spitzer, The Washington State Constitution 232 (2d ed. 2013). This trend shifted in 1969 with the Wilbour v. Gallagher decision. As noted, Wilbour involved litigation over a landfill bordering the Three Fingers. The Wilbours lived next to the Gallaghers and filed suit shortly after construction of the Gallagher fill. The Wilbours argued the Gallagher fill must be abated...