Along the shore of Washington’s Lake Chelan, a large fill known as “Three Fingers” has been in place since 1961. The placement of this fill was retroactively authorized by the state’s Shoreline Management Act, which grants consent and authorizes impairment of public rights of navigation, fishing, and recreation caused by fill placed in navigable waters prior to December 4, 1969. An environmental group, Chelan Bay Conservancy, sued the owner of Three Fingers to remove the fill on the basis that it allegedly violates the public trust doctrine. The Washington Supreme Court issued a decision largely adopting the legal principles espoused in PLF’s amicus brief in favor of the property owner and remanded the public trust question for trial.
In the 1920s, the state of Washington built a dam that raised the water level of Lake Chelan by 21 feet. In the 1960s, one lakefront owner reclaimed some of its lost land by placing fill on the lake shore in an area known as “the Three Fingers.” The state legislature later ratified this action by enacting the Shoreline Management Act of 1971, which recognized the lawfulness of such development, regardless of any claims of impaired navigational rights. In 2011, the owner of the Three Fingers announced plans to develop the vacant land.
Despite the passage of time and ratification provision of the Shoreline Management Act (SMA), an environmental activist group, Chelan Basin Conservancy, filed a lawsuit demanding that the owner remove the fill and “restore” the lake to the public. To get around the SMA, the Conservancy argued that the public trust doctrine prohibits any impacts to water, thus the state was not allowed to authorize the fill in the 1960s and the Legislature was not authorized to enact the SMA provision in the 1970s. This plainly mischaracterizes the public trust doctrine, which simply holds that the state holds title to certain waters open to the public for commerce, navigation, fishing and recreation. The Conservancy would define it as giving the public (that is, environmental activist groups) veto power over any private activity that could potentially impact water.
PLF filed an amicus brief in the Washington Supreme Court arguing that the public trust doctrine cannot be expanded without violating the Takings Clauses of the State and U.S. Constitutions. The doctrine prohibits only those uses that will substantially impair the public’s use of water. Without such a showing, the environmentalists’ claim must fail. The court adopted much of PLF’s argument limiting the reach of the doctrine and remanded the public trust question for a trial.