06.15.2016

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Updates

The Washington State Court of Appeals, Division III, ruled on June 14, 2016 that the Three Fingers Fill on Lake Chelan, placed in shoreline areas prior to December 4, 1969, was authorized by a “savings clause” contained in the Shoreline Management Act and therefore did not violate the Public Trust Doctrine or otherwise create a public nuisance.  GBI Holding Co., City Of Chelan, and State Of Washington v. Chelan Basin Conservancy, No. 33196-2-111 (consolidated with No. 33239-0-111) (2016).

Pre-1969 Fill of State Shoreline Areas

Prior to the enactment of the 1971 Washington State Shoreline Management Act (SMA) the placement of fill in the shorelines and waters of the state of Washington was generally allowed subject to minimal regulatory oversight.  In 1969, the Washington State Supreme Court in Wilbour v. Gallagher, 77 Wn.2d 306, 462 P.2d 232 (1969) determined that such fill areas impaired the public rights of navigation and the corollary rights of fishing, boating, swimming and recreation, which were protected by the Public Trust Doctrine.  The Wilbour court held that the fill areas in question be removed and the public’s right to use these areas for navigation and recreational be restored.   

The decision in Wilbour created much controversy at the time.  It called into question the legality of all fill previously placed in shoreline areas.  Port districts, cities, counties and private developers with properties developed on fill in shoreline areas were at risk of having these developments judicially declared to be an interference with the public’s right of navigation and ordered to be removed.  Shortly after Wilbour, Governor Daniel J. Evans imposed a moratorium on all tideland fill projects until 1971 when the SMA was enacted and new rules governing fill in shoreline areas could be established.  Importantly, the SMA included a “savings clause” that authorized pre-1969 fill.  Until recently, it was thought to be settled law that the legislature overruled Wilbour and pre-1969 fills were immune from these claims.

However, in 2010, Chelan Basin Conservancy (CBC) sought to have an eight acre fill, known as the Three Fingers, placed in Lake Chelan in the early 1960s removed on the grounds that it violated the Public Trust Doctrine.  In pressing these claims, CBC argued for a very narrow reading of the SMA savings clause that would have revived the ability of environmental groups to assert Wilbour claims, on a case-by-case basis, against virtually all pre-1969 fills.  The property owner in this case, represented by Perkins Coie, defended these claims and the state of Washington and the City of Chelan also intervened in the case.  CBC prevailed at the trial court.  The property owner, the state of Washington and the City of Chelan, appealed.   

Recent Decision

CBC’s proposed narrow reading of the SMA savings clause was soundly rejected by the court.  The court, referring to the controversy created by the Wilbour decision and the legislature’s express intent to provide certainty to property owners that had legally filled shoreline areas prior to 1969 stated:

CBC's construction of the savings clause would undermine this intent. At the time the SMA was enacted in 1971, Senator Gissberg recognized most if not all of the State's numerous landfills violated the terms of Wilbour. The goal of the savings clause was to avoid the automatic removal of preexisting fills that was threatening to take place post-Wilbour. If CBC's analysis was correct, then vast numbers of preexisting fills would again be put at risk [emphasis added].

The court went on to consider whether the fill could be abated as a public nuisance and concluded that the SMA savings clause precluded these claims as well.  Finally, the court considered CBC’s claims that the SMA savings clause was unconstitutional on its face.  Rejecting this argument, the court held: 

Reviewing the SMA's savings clause . . . . . requires looking at the legislation as a whole, not a particular application.  Indeed, Caminiti did not review the reasonableness of the legislation at issue by examining its application to a specific dock. Instead, the court examined the statute's statewide impact. . . . . . . Because vast areas of water were unaffected, the court concluded the legislature had not substantially given up control over the public's navigational rights [emphasis added].

Implications

A successful challenge to the SMA savings clause and the legality of pre-1969 fill of shoreline areas would have called into question the certainty and integrity of public and private developments that have been in place on state shore lands for many years.  As the state of Washington argued in this case, “[i]n the absence of the certainty provided by the [SMA savings clause] development in navigable waters, including substantial fills and developments along the water fronts of cities all across Washington, would have remained under a threat of removal indefinitely.”  The court firmly rejected this threat and the legal grounds upon which it was based. 

There is a chance this decision may be appealed.  As matters now stand, GBI v. Chelan Basin Conservancy resolves any ambiguity at this intersection of the principles embodied in the Public Trust Doctrine with the principles embodied in the SMA.

© 2016 Perkins Coie LLP


 

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