Kootenai Environmental Alliance, Inc. v. Panhandle Yacht Club, Inc.

• Decision Date: 02 November 1983
• Docket Number: No. 13390,13390
• Citation: 671 P.2d 1085,105 Idaho 622
• Parties: , 21 ERC 1408 KOOTENAI ENVIRONMENTAL ALLIANCE, INC., Appellant, v. PANHANDLE YACHT CLUB, INC., State Board of Land Commissioners and Department of Lands, Respondents, PANHANDLE YACHT CLUB, INC., Cross-Appellant, v. STATE BOARD OF LAND COMMISSIONERS and Dept. of Lands, Cross-Respondents.
• Court: Idaho Supreme Court

Page 1085

671 P.2d 1085

105 Idaho 622, 21 ERC 1408

KOOTENAI ENVIRONMENTAL ALLIANCE, INC., Appellant, v. PANHANDLE YACHT CLUB, INC., State Board of Land Commissioners and Department of Lands, Respondents, PANHANDLE YACHT CLUB, INC., Cross-Appellant, v. STATE BOARD OF LAND COMMISSIONERS and Dept. of Lands, Cross-Respondents.

No. 13390.

Supreme Court of Idaho.

Nov. 2, 1983.

Scott W. Reed and Sue Solomon Flammia, Coeur d'Alene, for appellant David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., Don A. Olowinski, and L. Mark Riddoch, Deputys Attys. Gen., Boise, Samuel Eismann, Coeur d'Alene, for respondents

ON REHEARING

(The previously filed opinion is hereby withdrawn)

HUNTLEY, Justice.

By this appeal we are asked to determine whether the "public trust doctrine" precludes a grant by the Idaho Department of Lands of a lease to a private club for the construction, maintenance and use of private docking facilities on a bay in a navigable lake.

This appeal further raises the issue of whether the Idaho Lake Protection Act is violative of the public trust doctrine.

In April, 1978, an application for a permit to make an encroachment on Lake Coeur d'Alene was filed with the Department of Lands by Ewing Micken on behalf of Panhandle Yacht Club. The application was for an encroachment 470 feet in length waterward from the ordinary high water mark and 417 feet in width to a depth of 68 feet for the purpose of constructing 112 sailboat slips with pilings, waterways and related facilities for the use of the yacht club members. The permit was for issuance of a ten-year lease, with right to apply for successive ten-year terms.

The leasehold area was to encompass a five-acre area of surface water enclosed by a floating-log breakwater. The 112 slips would cover about one-half of the area within the breakwater. Lake Coeur d'Alene is approximately seventy square miles in size and thus the encroachment impedes navigation on about .01% (.0001) of the lake area.

Notice of the application was published in the Coeur d'Alene press and the Kootenai Environmental Alliance (hereinafter K.E.A.) requested a hearing which was held on June 21, 1978. On August 18, 1978, before a decision was reached by the hearing officer, the State Board of Land Commissioners imposed a moratorium on the issuance of further permits for encroachments on the beds or waters of Lake Coeur d'Alene. On August 21, 1978, the hearing officer granted the permit, entered findings of fact and conclusions of law and decision, which were adopted by the director of the Department of Lands. K.E.A. filed notice of appeal to the district court. An appellate review of the record was conducted before Judge Swanstrom resulting in a decision sustaining the decision of the Department of Lands. K.E.A. appeals.

I

An understanding of the origin and history of the public trust doctrine is essential to reach a proper decision of this appeal. That origin and history is well-encapsulated in the following three paragraphs from the University of Santa Clara Law Review: ¹

"One of the dominant principles of the English common law, at the time of the American revolution, was that navigable waters were under the exclusive control of the King. After the revolution, the King's control of navigable waters in the American colonies was assumed by the original thirteen states. The states, in turn, passed the right to regulate commerce among the states to the new federal government. This federal power includes an expansive right to protect the navigability of navigable waters, so that these waters can serve as highways of commerce. Otherwise, the original thirteen states retained control of their navigable waters. This retained power includes control, not only of the waters themselves, but also of the fisheries and of the underlying beds. When new states joined the Union, they were admitted on an 'equal footing' with the original thirteen states. The western states, including California, thus acquired the same control of their navigable waters and dependent resources as the original states.

This brief historical glimpse describes the powers of the states over navigable waters in our federal system and how that power relates to other states and the federal government. It does not, however, describe the power of the states in relation to their citizens. It describes how the states got their power, but not how they exercise it. The latter subject is governed by the public trust doctrine, an ancient common law doctrine providing for sovereign control of navigable waters.

Under the public trust doctrine, the state, acting on behalf of the people, has the right to regulate, control and utilize navigable waters for the protection of certain public uses, particularly navigation, commerce and fisheries. The state, it is often said, retains a dominant 'easement' or 'servitude' in navigable waters for this purpose. More recent cases have held that the trust includes a broader range of public uses than were recognized in earlier cases; it is now held that the trust protects varied public recreational uses in navigable waters, such as the right to fish, hunt and swim. The trust is a dynamic, rather than static, concept and seems destined to expand with the development and recognition of new public uses." (Footnotes omitted.)

The State of Idaho holds title to the beds of all navigable bodies of water below the natural high water mark for the use and benefit of the public. ² The power to direct, control and dispose of the public lands is vested in the State Board of Land Commissioners pursuant to I.C. § 58-101.

Illinois Central R.R. Co. v. Illinois, 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018 (1892), is the seminal case on the scope of the public trust doctrine and remains the primary authority today. That decision established the principle that a state, as administrator of the trust in navigable waters on behalf of the public, does not have the power to abdicate its role as trustee in favor of private parties. Illinois Central involved the grant to the railroad by the legislature in fee simple of 1000 acres of submerged lands, representing virtually the entire waterfront of Chicago. Four years later the legislature sought to revoke the grant which revocation was challenged by the railroad. The court held that the grant was revocable because one legislature does not have the power to give away nor sell the discretion of its successors. In discussing the grant, 146 U.S. at 452, 13 S.Ct. at 118, 36 L.Ed. at 1042, the court stated:

"That the state holds the title to the lands under the navigable waters of Lake Michigan, within its limits, in the same manner that the state holds title to soils under tide water, by the common law, we have already shown; and that title necessarily carries with it control over the waters above them, whenever the lands are subjected to use. But it is a title different in character from that which the state holds in lands intended for sale. It is different from the title which the United States hold in the public lands which are open to pre-emption and sale. It is a title held in trust for the people of the state, that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein, freed from the obstruction or interference of private parties. The interest of the people in the navigation of the waters and in commerce over them may be improved in many instances by the erection of wharves, docks, and piers therein, for which purpose the state may grant parcels of the submerged lands; and, so long as their disposition is made for such purpose, no valid objections can be made to the grants. It is grants of parcels of lands under navigable waters that may afford foundation for wharves, piers, docks, and other structures in aid of commerce, and grants of parcels which, being occupied, do not substantially impair the public interest in the lands and waters remaining, that are chiefly considered and sustained in the adjudged cases as a valid exercise of legislative power consistently with the trust to the public upon which such lands are held by the state." (Emphasis supplied.)

And, the court in discussing the legislative power, went on to state:

"A grant of all the lands under the navigable waters of a state has never been adjudged to be within the legislative power; and any attempted grant of the kind would be held, if not absolutely void on its face, as subject to revocation. The state can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties, except in the instance of parcels mentioned for the improvement of the navigation and use of the waters, or when parcels can be disposed of without impairment of the public interest in what remains, than it can abdicate its police powers in the administration of government and the preservation of the peace. In the administration of government the use of such powers may for a limited period be delegated to a municipality or other body, but there always remains with the state the right to revoke those powers and exercise them in a more direct manner, and one more conformable to its wishes. So with trusts connected with public property, or property of a special character, like lands under navigable waters; they cannot be placed entirely beyond the direction and control of the state." (Emphasis supplied.)

Therefore, a two part test emerges to determine the validity of the grant of public trust property. One, is the grant in aid of navigation, commerce, or other trust purposes, and two, does it substantially impair the public interest in the lands and waters remaining? The specific holding of Illinois Central is contained at 146 U.S. at 460, 13 S.Ct. at 121, 36 L.Ed. at 1045:

"The legislature could not give away nor sell the discretion of its...