March 15, 2018

Washington limits the reach of the public trust doctrine

By Brian T. Hodges Senior Attorney

The Washington Supreme Court, today, issued its final decision in the public trust case, Chelan Basin Conservancy v. GBI Holding Co. 

Broadly stated, the public trust doctrine holds that lands under navigable waters are open to the public for commerce, navigation, fishing, and recreation, regardless of who owns the submerged lands. Over the years, however, environmentalists have tried to convince courts to expand the doctrine in order to give the public (i.e., activist groups) a right to veto any private activity that could potentially impact water.

Which brings us to the Chelan Basin Conservancy case.

Back in the 1920s, the state built a dam that raised the water level of Lake Chelan by 21 feet.  Several decades later, 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.”

Later, as part of the Shoreline Management Act of 1971, the Legislature enacted a provision that recognized the lawfulness of such development, regardless of any claims of impaired navigational rights.

Fast-forward 40 years. In 2011, the owner of the Three Fingers announced plans to develop the vacant land.

Despite the passage of time and enactment the SMA, environmental activist group, Chelan Basin Conservancy, filed a lawsuit seeking demanding that the owner remove the fill and “restore” the lake to the public. (The irony of an environmentalist group arguing to preserve conditions created by a man-made structure shouldn’t go unnoticed).  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.

PLF filed an amicus brief arguing that the public trust doctrine cannot be construed to transfer control over private property to the public without violating the Takings Clauses of the State and U.S. Constitutions. Thus, properly understood, 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. Indeed, back in 1892, the U.S. Supreme Court, in Illinois Central Railroad v. Illinois, held that when the legislature gives riparian property to a private entity (say for a wharf or dock) it must consider and accommodate the public interest or trust. The doctrine does not create some kind of sacrosanct perpetual preservation easement on shoreline natural resources.

Today’s decision from the Supreme Court agreed with much of PLF’s argument limiting the reach of the doctrine and rejecting the environmentalists’ lawsuit.

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