January 18, 2017

Washington Supreme Court to consider the limits of the public trust doctrine

By Brian T. Hodges Senior Attorney

The Washington State Supreme Court is set to hear arguments next month in Chelan Basin Conservancy v. GBI Holding Co., which is a very important and far-reaching case concerning the public trust doctrine.

Broadly stated, the public trust doctrine holds certain waters open to the public for commerce, navigation, fishing, and recreation, regardless of who owns the submerged lands. The doctrine—which finds its origins in Roman law’s recognition the land beneath the sea is unsuitable for private use—directs the sovereign to manage and administer waters in a manner that does not substantially impair the public rights.

Over the years, however, environmentalists have tried to convince courts to expand the “public trust 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.

Earlier this week, PLF attorneys filed an amicus brief with 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. 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.

PLF’s brief argues that the environmentalists’ argument, if credited, would threaten the social and economic resources throughout the State. Much of downtown Seattle, after all, is built on fill, including the stadium district, railroad terminal, and Ferris wheel. And over 30,000 acres of agricultural land located in the regions breadbasket was reclaimed from tidal inundation by a system of pumps, seawalls and dikes. The environmentalist argument to expand the public trust would direct threaten those and other resources throughout the state.

The case is scheduled for argument on February 28, 2017, and should be decided by the end of the year.

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Chelan Basin Conservancy v. GBI Holding Company

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.

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