State v. Norman

• Citation: 40 P.3d 1161,145 Wash.2d 578,145 Wn.2d 578
• Decision Date: 21 February 2002
• Docket Number: No. 69417-6.,69417-6.
• Court: United States State Supreme Court of Washington
• Parties: STATE of Washington, Respondent, v. Helen NORMAN, Kevin Belen, and Laura Stradwick, Petitioners.

40 P.3d 1161

145 Wn.2d 578

145 Wash.2d 578

STATE of Washington, Respondent, v. Helen NORMAN, Kevin Belen, and Laura Stradwick, Petitioners.

No. 69417-6.

Supreme Court of Washington, En Banc.

Argued September 11, 2001.

Decided February 21, 2002.

Christine Gregoire, Atty. Gen., Jeffrey Todd Even, Asst., Olympia, amicus curiae on behalf of Atty. Gen.

Whatcom County Public Defenders Assoc., Jon Christopher Komorowski, Eric Michael Weight, Brett & Daugert, Philip James Buri, Bellingham, for petitioners.

David McEachran, Whatcom County Prosecutor, David M. Grant, Deputy, Bellingham, for respondent.

MADSEN, J.

The defendants in these consolidated cases maintain that the State lacks jurisdiction to prosecute them for alleged crimes committed north of the 49th parallel, as located by present day geographers and surveyors, but south of the international boundary between the United States and Canada. Our state constitution provides that Washington State's northern boundary in the relevant area is "west along said forty-ninth parallel of north latitude." Const. art. XXIV, § 1. At the time the United States Canada border was originally surveyed, prior to Washington's admission into the Union as a state, the surveyors used an astronomic method of locating the 49th parallel that failed to account for local gravitational pulls. For this and other reasons, the international border does not lie on the 49th parallel as currently located.

We hold that this state's northern boundary is coextensive with the international boundary as marked, and accordingly affirm the trial court's denial of the defendants' motion to dismiss for want of subject matter jurisdiction.

Facts

In 1996, United States Customs officials at border crossings in Whatcom County searched each of the defendants, Helen J. Norman, Kevin C. Belen, and Laura Lee Stradwick. The site of each search is north of the 49th parallel as presently recognized, but south of the United States Canada border. The searches of Norman and Stradwick led to state charges against them of being in possession of controlled substances, while the search of Belen led to his being charged with possession of stolen property. The defendants' cases were consolidated in Whatcom County Superior Court for purposes of a defense motion to dismiss for lack of subject matter jurisdiction. The defendants argued that the alleged crimes were committed north of the Washington border because they were committed north of the 49th parallel. The trial court held a pretrial hearing on the motion (continuing it as necessary) and considered expert testimony and numerous exhibits pertaining to the location of Washington's border north of Whatcom County. The court denied the motion to dismiss, reasoning that although present day geographers place the 49th parallel at a location different from that of the marked international boundary between the United States and Canada, the political and conceptual location of the international boundary is the 49th parallel and the state constitution defines the state's boundary to follow the international boundary.

The defendants sought discretionary review of the trial court's order and this court granted interlocutory review. We consider the history of the United States Canada international boundary and the history of Washington's admission into the Union and its boundary in order to decide the issue presented.

The territory west of the Rocky Mountains and north of the 42nd parallel (California's northern border) was jointly occupied by the United States and Great Britain for a period of time prior to 1846, when the conflicting claims were resolved by The Oregon Treaty[-]Treaty Establishing the Boundary in the Territory on the Northwest Coast of America Lying Westward of the Rocky Mountains (hereafter the Oregon Treaty), reprinted in Dep't of State, Int'l Boundary Comm'n, Joint Report upon the Survey and Demarcation of the Boundary between the United States and Canada 191-92 (1937) (hereafter Report of the Comm'n). The Oregon Treaty provided that the boundary between the two nations "shall be continued westward along the said forty-ninth parallel of north latitude to the middle of the channel which separates the continent from Vancouver's Island." Oregon Treaty, reprinted in Report of the Comm'n at 191. Shortly thereafter, in 1848, Congress created the Oregon Territory, which described the territory as all the United States territory west of the summit of the Rocky Mountains and north of the 42nd parallel. 9 Stat. ch. 177, § 1, at 323 (1848). Then, in 1853, Congress created the Washington Territory from part of the Oregon Territory. Section 1 of the Organic Act described the northern boundary of the new territory when it defined the Washington Territory, in part, as "that portion of Oregon Territory lying and being south of the forty-ninth degree of north latitude." 10 Stat. ch. 90, at 172 (1853). In 1859, the Oregon Enabling Act was passed, setting the northernmost boundary of Oregon along the middle of the Columbia River to the point where it intersects the 46th parallel and then easterly to the Snake River. 11 Stat. ch. 33, § 5, at 384(1859). The act further provided that the "residue of the Territory of Oregon shall be, and is hereby, incorporated into, and made part of the Territory of Washington." Id.

In 1856, Congress enacted legislation for the purpose of carrying out a survey of the border as established by the 1846 Oregon Treaty. Congress directed that the "demarcation of that part of the said line of boundary which forms the boundary line between Washington Territory and the British possessions" be located. 11 Stat. ch. 87, § 4, at 42 (1856). At the time, the Washington Territory extended eastward to the summit of the Rocky Mountains. The survey was carried out between 1858 and 1862 (though some materials in the record say 1857-61). Report of the Comm'n at 194-97. The method used is described:

In the absence of any previous geodetic surveys in the country traversed by this section of the boundary, astronomic observations for latitude had to be made in order to determine the parallel of forty-nine degrees. Such observations were made at selected stations within easily measurable distances of the parallel. The observations were made with great care and a high degree of precision was attained.... After the latitude of the station had been determined, a point on the parallel was established by measuring the required distance north or south, as the case might be, from the station to the parallel.

The boundary was then traced along the parallel from the established point by the method of offsets from the tangent to the parallel, the tangent being determined by means of astronomic observations from azimuth.

Report of the Comm'n at 210-11.

Even at the time, the surveyors recognized that the line marked was not always on the 49th parallel. For example, the English Commissioner reported that survey errors were discovered as great as 860 feet and none less than 180 feet on the boundary between Similkameen to the Kettle River. These errors were discovered when attempts were made to link United States and British points on the boundary, and were resolved by running a "mean parallel." Id. at 213 (quoting letter from Comm'r Hawkins dated Apr. 12, 1861). The errors were attributed to "local causes affecting the astronomical observations" and were apparently due to "local station deflection of the plumb line." Id. at 213 & n. 3 (including footnote in letter). The attribution was apt. As experts for both parties agreed, and as is universally recognized, local land masses can create variations in gravitational pulls, which cause deflections of plumb lines used in astronomical observations to establish lines of latitude.

Another cause was recognized for variation from the astronomic 49th parallel. Once points on the boundary were marked, the boundary between the marks was agreed to be a straight line. Report of the Comm'n at 201 (quoting letter from Comm'r Hawkins dated May 7, 1869) (ex. 61). Since a line of latitude by definition is a curved line, this use of connecting straight lines also meant the marked boundary was not truly on the astronomic 49th parallel.

The survey commission prepared a series of seven maps, dated May 7, 1869, showing the location of the original boundary markers. The United States and Great Britain adopted this set of maps in an 1870 declaration stating that

it appearing that they do correctly indicate the said Boundary from the point where the Boundary laid down in Treaties and Conventions prior to June 15th, 1846, terminates Westward on the 49th Parallel of North Latitude to the Eastern shore of the Gulf of Georgia [now Boundary Bay], which Boundary has been defined by the Commissioners by marks upon the ground;

The Undersigned ... hereby declare that the said maps ... are approved, agreed to, and adopted by both Governments.

1870 Declaration,¹reprinted in Report of Comm'n at 197-98 (emphasis added). Thus, despite the known irregularities,² in the 1870 Declaration the United States and Great Britain recognized the boundary as marked on the ground as the international boundary along the 49th parallel.

On February 22, 1889, Congress passed the Enabling Act authorizing Washington's entry into the Union as a state. 25 Stat. ch. 180, at 676 (1889). Unlike the cases involving some other enabling acts, ours did not contain a metes and bounds description of the area that would form the new state of Washington. Instead, the Enabling Act said:

[T]he inhabitants of all that part of the area of the United States now constituting the Territories of Dakota, Montana, and Washington, as at present described, may become the States of North Dakota, South Dakota, Montana, and Washington, respectively, as hereinafter provided.

Id. § 1 (emphasis added).

The people of the Washington Territory then set about proposing and adopting a state constitution. In 1...