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SUSAN L. CARLSON

SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

CHELAN BASIN CONSERVANCY,

Petitioner,

V.

GDI HOLDING CO.,

STATE OF WASHINGTON,

and CITY OF CHELAN,

Respondents,

and

No. 93381-2

En Banc

Filed JUL n 6 201

CHELAN COUNTY PUBLIC

UTILITY DISTRICT,

Additional Named Party.

GonzAlez, J.—^Petitioner Chelan Basin Conservancy (Conservancy)

seeks the removal of six acres of fill material that respondent GBI Holding

Co. added to its property in 1961 to keep the formerly dry property

permanently above the artificially raised seasonal water fluctuations of Lake

Chelan. The Conservancy brings this action pursuant to Washington's

public trust doctrine, which protects the public right to use water in place

along navigable waterways. At issue is whether the State consented to the
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2

fill's impairment of that right and, if so, whether such consent violates the

public trust doctrine.

As explained in this opinion, the Court of Appeals correctly

concluded that the legislature consented to the fill's impairment of navigable

waters under RCW 90.58.270 (the Savings Clause), but the Court of Appeals

prematurely concluded such consent did not violate the public trust doctrine.

Because the trial court never reached the highly factual public trust issue, we

reverse and remand to the trial court to determine in the first instance

whether RCW 90.58.270 violates the public trust doctrine.

Factual and Procedural Background

Our state constitution grants the State "ownership to the beds and

shores of all navigable waters in the state." Const, art. XVII, § 1 (article

17). We have interpreted this provision to mean the State possesses an

alienable fee-simple private property interest in those beds and shores

subject to an overriding public servitude to use the waters in place for

navigation and fishing, and other incidental activities. Caminiti v. Boyle,

107 Wn.2d 662, 668-69, 732 P.2d 989 (1987). The parties agree that Lake

Chelan is a navigable body of water and that GBI's property along the lake

is subject to the public trust servitude.

In its natural state, GBI's property stood above the lake's peak water
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2

levels and was continuously dry throughout the year. See Wilhour v.

Gallagher, 77 Wn.2d 306, 307, 462 P.2d 232 (1969). In 1927, GBFs

predecessor in interest granted a flowage easement over the property to a

power company to install a dam that would artificially raise the lake waters.

Id. at 307-08 (discussing covenants related to the construction of the dam).

After the dam was installed, GBFs once permanently dry land became

seasonally submerged by the lake's artificially elevated waters.

In 1961, GBI added fill to its property to elevate it once more

permanently above the lake's seasonal fluctuations. The fill is locally

referred to as "the Three Fingers" because it resembles, in aerial

photographs, three rectangular fingers protruding into the lake.

Eight years after GBI filled its property, we held in Wilbour, a case

involving a neighboring landfill abutting Lake Chelan, that the neighbor's

fill violated the public trust doctrine and ordered the fill be abated. Id. at

315-16. Although we acknowledged the existence of other similarly situated

fills along the lake, our Wilhour decision did not order their abatement. Id.

at 316 n. 13. Despite its limited disposition, Wilhour was publicly hailed as a

watershed case that placed title to thousands of properties along

Washington's shores in question. See 1 Senate JOURNAL, 42dLeg., 1st Ex.

Sess., at 1411 (Wash. 1971). That is because much of Washington's shores
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2

and tidelands were improved during our early years of statehood, when

private settlement and development were widely encouraged with little

consideration given to the effect these developments would have on public

trust rights. See State v. Sturtevant, 76 Wash. 158, 171, 135 P. 1035 (1913).

By 1969, thousands of acres of Washington's tidelands and shorelands had

been reclaimed and developed with significant improvements, including the

creation of Harbor Island and much of downtown Seattle. Edward A.

Rauscher, The Lake Chelan Case—Another View, 45 WASH. L. Rev. 523,

531 (1970); Port of Seattle v. Or. & W. R. Co., 255 U.S. 56, 59, 41 S. Ct.

237, 65 L. Ed. 500 (1921); Ralph W. Johnson & Eileen M. Cooney, Harbor

Lines and the Public Trust Doctrine in Wash. Navigable Waters, 54 WASH.

L. Rev. 275, 289 n.64 (1979) (noting that the state had sold approximately

60 percent of its tidelands to private parties between 1889 and 1971) (citing

Dep't of Ecology, Wash. State Coastal Zone Mgmt. Program 73

(1976)).

The legislature responded to the Wilbour decision by enacting the

Savings Clause, RCW 90.58.270, that gave post hoc consent to pre-Wilbour

improvements to protect them from public trust challenges. See 1 Senate

Journal at 1411. The Savings Clause was enacted as part of a much

broader piece of legislation known as the Shoreline Management Act of
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2

1971 (SMA), chapter 90.58 RCW, and directly responded to our directive to

the legislature in Wilbour that it, as trustee of public trust resources, was

responsible for determining how best to preserve and promote the State's

public trust interests. See Wilbour, 77 Wn.2d at 316 n. 13.

The legislature referred the SMA to the people the following year for

ratification. State of Washington Voters Pamphlet, General Election 34-35,

(Nov. 7, 1972) (App. to Supp'l Br. of Resp't State of Wash.). The

legislature presented the SMA to Washington voters along with an

alternative measure. Initiative 43. Id. at 32-33. Although both the SMA and

Initiative 43 established guidelines for the development of Washington's

waterways and shorelines, one major difference between the two plans was

how they treated ^VQ-Wilbour fills. Id. at 108. The SMA provided

legislative consent to pre-Wilbour fills; whereas Initiative 43 did not. Id.

The people ratified the SMA and rejected Initiative 43 by a substantial

margin. WASH. Sec'y OF STATE, Initiative to the Leg. No. 43 (General

Election Nov. 7, 1972) (285,721 voters preferred Initiative 43, while

611,748 voters preferred the SMA). Following ratification of the SMA,

little legal attention was given to pve-Wilbour fills.

The Three Fingers fill gained attention in 2010 when GBI submitted a

permit application to the city of Chelan to develop the fill. GBI later
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2

withdrew its application, following public opposition to the proposed

development. Eventually, GBI submitted a second application; this time to

subdivide the property into six short plats with no immediate plans for their

development. The city approved the short plat application conditioned on

the reservation of a public park and several public access points thereon.

GBI appealed the city's conditional land use decision, but the appeal has

been stayed pending resolution of this action.

Meanwhile, while GBI was going through the permitting and short

plat process, a local environmental group, the Conservancy, filed this action

against GBI, seeking the abatement and removal of the Three Fingers fill

pursuant to the public trust doctrine and Wilbour.^ The Conservancy

additionally named as interested parties the city of Chelan, the State of

Washington, and the owner of the dam, Chelan County Public Utility

District.

GBI moved for summary judgment, arguing, among other things, that

the Conservancy lacked standing to bring the present action and that any

public trust claim seeking the removal of the Three Fingers was barred by

the SMA's Savings Clause, RCW 90.58.270. The Conservancy moved for

' The Conservancy also asserted a trespass claim that is not at issue in this appeal. Chelan

Basin Conservancy v. GBI Holding Co., 194 Wn. App. 478, 484 n.l, 378 P.3d 222, review

granted, 186 Wn.2d 1032, 385 P.3d 769 (2016).
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2

summary judgment on the applicability of the Savings Clause and the public

trust doctrine as well.

Regarding the justiciable question of standing, the trial court found

the Conservancy had standing to raise its public trust claim. As for the

Savings Clause and its interplay with the public trust, the trial court initially

found the Savings Clause violated the public trust doctrine but later

rescinded that decision, choosing instead to avoid the public trust question

altogether by holding the Savings Clause did not apply. After finding the

legislature never consented to the creation of the Three Fingers fill, the court

ordered the fill be removed.

GBI appealed to the Court of Appeals, which reversed the trial court's

order and remanded for further proceedings. Chelan Basin Conservancy v.

GBI Holding Co., 194 Wn. App. 478, 495, 378 P.3d 222 (2016). The Court

of Appeals agreed with the trial court that the Conservancy had standing to

sue but departed from the trial court's analysis regarding the applicability of

the Savings Clause. Id. at 487-95. The Court of Appeals held the Savings

Clause applied and its bar on public trust claims was enforceable since the

Conservancy failed to prove the statute violated the public trust. Id. at 488-

95.

The Conservancy petitioned this court for review of the Savings
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2

Clause and public trust issues. In its answer, GBI requested pursuant to

RAP 13.4(d) that if we grant review, we should also address the issue of

standing. We granted review without limitation. Chelan Basin Conservancy

V. GBI Holding Co., 186 Wn.2d 1032, 385 P.3d 769 (2016). We therefore

address three issues: (1) whether the Savings Clause, RCW 90.58.270,

applies to the Three Fingers fill, (2) if so, whether the clause violates the

public trust doctrine, and (3) whether the Conservancy has standing to bring

this public trust action.

Washington's Public Trust Doctrine

The public trust doctrine is an ancient common law doctrine that

recognizes the public right to use navigable waters in place for navigation

and fishing, and other incidental activities. E.g., Caminiti, 107 Wn.2d at

668-69. The principle that the public has an overriding interest in navigable

waterways and the lands underneath them has been dated by some jurists as

far back as the Code of Justinian, which was developed in Rome during the

6th century. While there is some debate whether this attribution to Roman

law holds water, it is generally accepted even among the most skeptical of

critics that the public trust doctrine has a long history and was firmly

ingrained in English and American common law by the 19th century. See,
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2

e.g., James L. Huffman, Speaking of Inconvenient Truths—A History of the

Public Trust Doctrine, 18 DukeEnvtl. L. & POL'Y F. 1, 12-19 (2007).

Although the public trust doctrine originates from a common source,

'"it has been long established that the individual [sjtates have the authority

to define the limits of the lands held in public trust and to recognize private

rights in such lands as they see fit.'" State v. Longshore, 141 Wn.2d 414,

427-28, 5 P.3d 1256 (2000) {o^otmg Phillips Petrol. Co. v. Mississippi, 484

U.S. 469, 475, 108 S. Ct. 791, 98 L. Ed. 2d 877 (1988)); Grays Harbor

Boom Co. V. Lownsdale, 54 Wash. 83, 104, 104 P. 267 (1909) (per curiam)

('"The whole question [regarding the scope of the public trust doctrine] is

for the state to determine for itself.'" (quoting Shively v. Bowlby, 152 U.S. 1,

56, 14 S. Ct. 548, 38 L. Ed. 331 (1894))); Sequim Bay Canning Co. v.

Bugge, 49 Wash. 127, 132, 94 P. 922 (1908) (recognizing each state's

prerogative to define and decide how to protect or dispose of its public trust

property). We therefore "look solely to Washington law" when determining

the scope and application of our public trust rights and obligations.

Longshore, \A\'^n.2ddiXA2%.

Even though Washington's public trust right to use navigable waters

in place is sometimes described as a right that can be "neither destroy[ed]

nor abridge[d]," New Whatcom v. Fairhaven Land Co., 24 Wash. 493, 499,
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2

64 P. 735 (1901), this does not mean that the State must hold all the beds

and shores of navigable waters inviolate. Davidson v. State, 116 Wn.2d 13,

16, 802 P.2d 1374 (1991); Caminiti, 107 Wn.2d at 668. Under article 17,

"the state of Washington has the power to dispose of, and invest persons

with, ownership of tidelands and shorelands subject only to the paramount

right of navigation and the fishery." Id. at 667. This is because the State

owns article 17 lands in two distinct capacities. Longshore, 141 Wn.2d at

427; Caminiti, 107 Wn.2d at 668-69; Orion Corp. v. State, 109 Wn.2d 621,

639, 747 P.2d 1062 (1987); Eisenbach v. Hatfield, 2 Wash. 236, 240-41, 26

P. 539 (1891).

First, as title owner, "the state holds full proprietary rights in tidelands

and shorelands and has fee simple title to such lands" so that it "may convey

title to [those lands] in any manner and for any purpose not forbidden by the

state or federal constitutions and its grantees take title as absolutely as if the

transaction were between private individuals." Caminiti, 107 Wn.2d at 668.

This title interest is referred to as the State's jus privatum interest.

Second, because such land is also held by the State in trust and for the

benefit of the people, any right conveyed generally remains subservient to

the public right to use water in place for navigation, see Hill v. Newell, 86

Wash. 227, 231, 149 P. 951 (1915), much like '"a covenant running with the

10
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2

land,'" Orion, 109 Wn.2d at 640 (quoting Scott W. Reed, The Public Trust

Doctrine: Is it Amphibious?, 1 J. Envtl. L. & LiTIG. 107, 118 (1986)). This

public servitude is referred to as the State's jus publicum interest.

Although title to property burdened by the public trust remains

continuously subject to the servitude, the competing rights and interests of

the public and private owner rise and fall with the water. "As the level rises,

the rights of the public to use the water increase since the area of water

increases; correspondingly, the rights of the landowners decrease since they

cannot use their property in sueh a manner as to interfere with the expanded

public rights." Wilbour, 77 Wn.2d at 315. "As the level and the area of the

water decreases, the rights of the public decrease and the rights of the

landowners increase as the waters drain off their land, again giving them the

right to exclusive possession until their lands are again submerged." Id.

A private landowner whose lands are burdened by the public trust

cannot unilaterally extinguish the public right to use navigable waters in

plaee by artificially elevating his or her property above the high-water mark

absent legislative consent. Id. at 314-16. GBI contends the legislature and

Washington voters consented to the retention of the Three Fingers fill when

the legislature enacted and the people ratified the Savings Clause. We agree.

11
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2

I. Legislative Consent under the Savings Clause

The Savings Clause, ROW 90.58.270, provides legislative consent to

the impairment of public trust rights by prQ-Wilbour improvements and bars

private actions challenging that impairment unless the improvements were

"in trespass or in violation of state statutes." RCW 90.58.270(1), (2). GBI

argues that because the Three Fingers fill was created pre-Wilbour, the

Savings Clause protects the fill and bars this action. The Conservancy

disagrees. It argues the Savings Clause is inapplicable in this case because

the Three Fingers fill "'obstruct[ed] or impede [d] . .. the passage of [a]

river, harbor, or collection of water'" in violation of the public nuisance

statute. Suppl. Br. of Pet'r Conservancy at 17 (quoting RCW 7.48.140(3)).

According to the Conservancy, this public nuisance violation disqualified

the Three Fingers fill from the protections of the Savings Clause since the

fill was '"in violation of state statutes.'" Id, at 3 (quoting RCW

90.58.270(1)). GBI disagrees with the premise of the Conservancy's

argument; that is, that the Three Fingers fill constitutes a public nuisance.

To resolve this debate, we must construe the public nuisance statute as it

relates to the Savings Clause.^

^ The city of Chelan believes we can avoid this public nuisance question. The city

contends that since the Savings Clause consents only to the '"retention and

maintenance'" of existing structures, such consent does not extend to GBI's proposed

12
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2

"Issues of statutory construction ... are questions of law" subject to

de novo review. State v. Evans, 111 Wn.2d 186, 191, 298 P.3d 724 (2013).

"The purpose of statutory interpretation is to 'determine and give effect to

the intent of the legislature.'" Id. at 192 (quoting State v. Sweany, 174

Wn.2d 909, 914, 281 P.3d 305 (2012)). "'A statute that is clear on its face is

not subject to judicial construction.'" HomeStreet, Inc. v. Dep't ofRevenue,

166 Wn.2d 444, 452, 210 P.3d 297 (2009) (quoting State v. J.M., 144 Wn.2d

472, 480, 28 P.3d 720 (2001)). "If the plain language is subject to only one

interpretation, our inquiry ends because plain language does not require

construction." Id. at 451. Typically, where an act has a doubtful or

ambiguous meaning, it is the duty of the court to adopt a construction that is

reasonably liberal, in furtherance of the obvious or manifest purpose of the

legislature. Evans, 111 Wn.2d at 193; State v. Rinkes, 49 Wn.2d 664, 667,

306 P.2d 205 (1957). However, because we are dealing with a public trust

impairment, albeit one passed directly by the people, the statute must be

strictly construed in preservation of the public trust interest absent express

contrary language or necessary implication. See Hill, 86 Wash, at 229

2010 developments, which in its view should end our analysis. Supp'l Br. of City of

Chelan at 5-7 (quoting RCW 90.58.270(1)). The city misapprehends the Conservancy's

claims. Although this litigation was triggered by GBFs development proposals, those

proposals do not form the bases of the Conservancy's complaint. The Conservancy seeks

the removal of the existing fill, not an injunction against future development. We

therefore cannot avoid the public nuisance question, as the city suggests.

13
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2

('"The general rule of construction applying to grants of public lands by a

sovereignty to corporations or individuals is that the grant must be construed

liberally as to the grantor and strictly as to the grantee, and that nothing shall

be taken to pass by implication.'" (quoting 26 AMERICAN AND ENGLISH

Encyclopaedia of Law 425 (2d ed. 1904))); City of Berkeley v. Superior

Ct., 26 Cal. 3d 515, 528, 606 P.2d 362, 162 Cal. Rptr. 327 (1980)

("[SJtatutes purporting to abandon the public trust are to be strictly

construed; the intent to abandon must be clearly expressed or necessarily

implied; and if any interpretation of the statute is reasonably possible which

would retain the public's interest in tidelands, the court must give the statute

such an interpretation.").

RCW 7.48.140(3) declares it a public nuisance, among other

enumerated actions, "[t]o obstruct or impede, without legal authority, the

passage of any river, harbor, or collection of water." (Emphasis added.)

Another statute further explains that "[njothing which is done or maintained

under the express authority of a statute, can be deemed a nuisance." RCW

7.48.160 (emphasis added). GBI and the State interpret the Savings Clause

as providing the requisite legal and express statutory authority for the

retention and maintenance of pvQ-Wilbour improvements on navigable

14
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2

waterways to insulate them from any public nuisance claim based on that

same impairment of navigable waters. We agree.

The Savings Clause provides legislative "consent and authorization"

"to the impairment of public rights of navigation, and corollary rights

incidental thereto, caused by the retention and maintenance of "structures,

improvements, docks, fills, or developments placed in navigable waters prior

to December 4, 1969." RCW 90.58.270(1).^ The only way for the Savings

Clause to have any practical effect is to interpret it as giving pre-Wilboiir

improvements the requisite legal and statutory authority to impair navigable

waters so they no longer violate the public nuisance statute. Otherwise,

^ RCW 90.58.270 provides in relevant part;

(1) Nothing in this section shall constitute authority for requiring or ordering

the removal of any structures, improvements, docks, fills, or developments

placed in navigable waters prior to December 4, 1969, and the consent and

authorization of the state of Washington to the impairment of public rights of

navigation, and corollary rights incidental thereto, caused by the retention and

maintenance of said structures, improvements, docks, fills or developments

are hereby granted: PROVIDED, That the consent herein given shall not relate

to any structures, improvements, docks, fills, or developments placed on

tidelands, shorelands, or beds underlying said waters which are in trespass or

in violation of state statutes.

(2) Nothing in this section shall be construed as altering or abridging

any private right of action, other than a private right which is based upon the

impairment of public rights consented to in subsection (1) of this section.

(3) Nothing in this section shall be construed as altering or abridging

the authority of the state or local governments to suppress or abate nuisances

or to abate pollution.

(4) Subsection (1) of this section shall apply to any case pending in the

courts of this state on June 1, 1971 relating to the removal of structures,

improvements, docks, fills, or developments based on the impairment of

public navigational rights.

15
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2

prior consent would be a necessary prerequisite for obtaining post hoc

consent under the Savings Clause. That reading is absurd and renders the

entire statute practically meaningless; we therefore avoid it. State v.

Riles, 135 Wn.2d 326, 340, 957 P.2d 655 (1998) ("Courts should not

construe statutes to render any language superfluous and must avoid strained

or absurd interpretations." (citing Wright v. Engum, 124 Wn.2d 343, 351-52,

878 P.2d 1198 (1994))). Worse, that reading would require us to construe

the statute's limited proviso exception so broadly that it swallows the

general rule entirely. Wash. State Legislature v. Lowry, 131 Wn.2d 309,

327, 931 P.2d 885 (1997) (Provisos '"should be strictly construed with any

doubt to be resolved in favor of the general provisions, rather than the

exceptions.'" (quoting State v. Wright, 84 Wn.2d 645, 652, 529 P.2d 453

(1974))).

The legislature undeniably intended the Savings Clause to foreclose

private actions for the removal of pve-Wilbour improvements based on their

impairment of navigable waters alone. As one of the prime sponsors of the

statute. Senator Gissberg, explained during a senate floor debate, the purpose

of the Savings Clause was to "make[] legal any fills that took place prior to

December 4, 1969," which is the date Wilbour was decided. 1 Senate

16
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2

Journal at 1411. Senator Gissberg further explained the reasoning for and

the intended effect of the Savings Clause as follows:

Yes, I think in the entire section in subsection [(h^)], you are, the

state of Washington is giving its consent to the impairment of public

rights of navigation as to those structures, improvements, docks, fills

or developments which were placed in navigable waters prior to

December 4, 1969. And it is a savings clause for those structures

that were placed there prior to Wilbour vs. Gallagher. If it is not

there, then every dock, most of industry in the state that is on the

water, of course, is there illegally and subject to mandatory

uijunction to being removed by anyone that wants to bring the

lawsuit. Consequently, that is why the savings clause is there, and

the state is giving, or purports to give its consent to the impairment

of the navigable rights of the public generally which are impeded by

the construction of those docks and facilities that are in navigable

waters.

Id. We therefore interpret the Savings Clause as authorizing the retention

and maintenance of the Three Fingers fill and barring private public

nuisance claims based on the fill's impairment of navigable waters.^ Unless

that legislative authorization itself violates the public trust doctrine, the

According to the Senate Joumal, the senator said "subsection (3)," hut that reference

must have been a mistake or scrivener's error heeause subsection (3) addresses the

authority of state and local governments to bring nuisance and abatement actions

notwithstanding the legislative consent provided in subsection (1). See Laws OF 1971,

1st Ex. Sess., ch. 286, § 27.

^ We decline to address whether the Three Fingers fill is abatable as a public nuisance for

reasons other than its impairment of navigable waters because that issue is not before us.

The Conservancy has expressly disavowed bringing a public nuisance claim based on any

reason other than the public trust. Chelan Basin, 194 Wn. App. at 492; Supp'l Br. of

Pet'r Conservancy at 20 ("[TJhis case was not brought as a nuisance action."). Nor has

the Conservancy presented any facts that would trigger the application of Grundy v.

Thurston County. 155 Wn.2d 1, 7 n.5, 117 P.3d 1089 (2005) ("'[E]ven though an act or a

structure was lawful when made or erected, if for any reason it later becomes or causes a

nuisance, the legitimate character of its origin does not justify its continuance as a

nuisance.'" (footnote omitted) (quoting 66 C.J.S. Nuisances § 15, at 551-52 (1998))).

17
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2

Conservancy's claims for the abatement of the Three Fingers fill based on

the fill's impairment of navigable waters must be dismissed.

II. The Legislature's Public Trust Obligations under Caminiti

Washington's public trust doctrine operates under the principle that

"'[t]he control of the State for purposes of the trust can never be lost, except

as to such parcels as are used in promoting the interests of the public therein,

or can be disposed of without any substantial impairment of the public

interest in the lands and water remaining,"' Caminiti, 107 Wn.2d at 670

(quoting III. Cent. R.R. Co. v. Illinois, 146 U.S. 387, 453, 13 S. Ct. 110, 36

L. Ed. 1018 (1892)); Palmer v. Peterson, 56 Wash. 74, 76, 105 P. 179

(1909) (adopting Illinois Centrals description of the public trust doctrine as

consistent with Washington's public trust doctrine). This means the

legislature can dispose of the public right to use navigable waters in place

only to promote the interests protected by the public trust doctrine or to

further some other interest if doing so does not substantially impair the

public trust resource. 2 Waters and Water Rights § 30.02(d)(3), at 30-46

(Amy K. Kelley ed., 3d ed. 2013). Accordingly, when evaluating a public

trust claim, we consider: "(1) whether the State, by the questioned

legislation, has given up its right of control over the jus publicum and (2) if

so, whether by so doing the State (a) has promoted the interests of the public

18
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2

in the jus publicum, or (b) has not substantially impaired it." Caminiti, 107

Wn.2d at 670.

The answers to those questions are factually dependent. Because the

trial court never reached Caminiti's factual analysis, we reverse and remand

to the trial court to decide the matter in the first instance. To assist the trial

court on remand, we answer the following legal questions presented by the

parties: (a) Is judicial review of the Savings Clause precluded by legislative

preemption? (b) Who bears the burden of proving a legislative action

violates the public trust doctrine? (c) Did the State abdicate control over the

Three Fingers property when it enacted the Savings Clause? And finally, (d)

what is the proper geographical focus for evaluating the interests affected by

the Savings Clause under Caminiti!

a. Legislation That Impairs Public Trust Rights Is Subject to Judicial

Review

GBI and the State argue that since legislative action preempts the

common law, it follows that the SMA and its corresponding Savings Clause

should preempt Washington's common law public trust doctrine and

preclude judicial review as well. We disagree. While GBI and the State

correctly identify the doctrine's common law origin, they overlook the

doctrine's constitutional footing.

19
Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2

As we have explained, the public trust doctrine is "partially

encapsulated" in article 17 of our state constitution. Rettkowski v. Dep 't of

Ecology, 122 Wn.2d 219, 232, 858 P.2d 232 (1993). Because of the

doctrine's constitutional underpinning, any legislation that impairs the public

trust remains subject to judicial review. This includes the SMA. "Holding

otherwise [would] elevate[ ] an exercise of the legislative power above the

constitution, which is anathema to our system of law." Freedom Found, v.

Gregoire, 178 Wn.2d 686, 706, 310 P.3d 1252 {citing Marbury v. Madison,

5 U.S. (1 Cranch) 137, 178, 2 L. Ed. 60 (1803)). While we have at times

described the SMA as embod3dng the common law public trust rights, e.g..

Portage Bay-Roanoke Park Cmty. Council v. Shorelines Hr 'gs Bd., 92

Wn.2d 1, 4, 593 P.2d 151 (1979), we have always embraced our

constitutional responsibility to review challenged legislation, even

legislation encompassed by the SMA, to determine whether that legislation

comports with the State's public trust obligations. Caminiti, 107 Wn.2d at

670. We decline to abdicate that responsibility now.

The fact that the State never acquired title ownership to the Three

Fingers property under article 17 does not mean the public trust doctrine has

no constitutional force as to this property. As previously mentioned, article

17 recognized two distinct interests: the State's responsibility to protect

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Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2

Washington's public trust interests and the State's title ownership in specific

lands. See id. at 666-67. Therefore, any legislative act arguably in

dereliction of the State's constitutional responsibility to protect the public

trust interest is subject to judicial review regardless of article 17 title

ownership.

b. The Party Challenging a Legislative Act Violates the Public Trust

Doctrine Bears the Burden of Proving that Violation

The party challenging the constitutionality of a legislative act, whether

enacted by the legislature itself or the people through their initiative power,

generally bears the burden of proving the act's invalidity. Lee v. State, 185

Wn.2d 608, 619, 374 P.3d 157 (2016). Even though public trust claims are

only "quasi-constitutional," Ralph W. Johnson et al.. The Public Trust

Doctrine and Coastal Zone Management in Washington State, 67 WASH. L.

Rev. 521, 527 (1992)), our courts have generally treated public trust claims

as constitutional challenges in presuming the constitutionality of the

challenged legislation and placing the burden on the challenging party to

prove otherwise. E.g., Chelan Basin, 194 Wn. App. at 494; Samson v. City

of Bainbridge Island, 149 Wn. App. 33, 58, 202 P.3d 334 (2009); Citizens

for Responsible Wildlife Mgmt. v. State, 124 Wn. App. 566, 570, 103 P.3d

203 (2004); Wash. State Geoduck Harvest Ass'n v. Dep'tofNat. Res., 124

Wn. App. 441, 447, 101 P.3d 891 (2004).

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Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2

The Conservancy disagrees with this approach, arguing it is

inconsistent with our duty to review legislation that impairs public trust

rights with a heightened degree of scrutiny. The Conservancy misconstrues

that duty. Heightened scrutiny does not mean the party bearing the burden

of proof should be different in the context of public trust challenges than

constitutional challenges. As we explained in Weden v. San Juan County,

we "review legislation under the public trust doctrine with a heightened

degree of judicial scrutiny, 'as if [we] were measuring that legislation

against constitutional protections.'" 135 Wn.2d 678, 698, 958 P.2d 273

(1998) (quoting Johnson et ah, supra, at 526-27). Thus, just like with other

constitutional challenges, the party claiming a legislative act violates the

public trust doctrine bears the burden of proving that violation. See id. at

693 (placing the burden on the party challenging a governmental action to

prove it violates the public trust doctrine).

Having addressed the parties' threshold questions regarding judicial

review and allocation of proof, we now address their substantive arguments

relating to the proper application of CaminitVs two-part test.

c. The State Abdicated Its Right of Control over the Jus Publicum

When It Enacted the Savings Clause

The first part of the Caminiti test asks "whether the state, by the

questioned legislation, has given up its right of control over the jus

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Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2

publicum." 107 Wn.2d at 670. The parties disagree whether the State

abdicated control over the jus publicum when it consented under the Savings

Clause to the permanent impairment of navigable waters by thousands of

pvQ-Wilbour improvements. GBI and the State argue the enactment of the

Savings Clause was an exercise of control rather than an abdication of it.

While the line between the exercise and abdication of control may be

difficult at times to discern, it is clear in this case.

The Caminiti test derives from the Supreme Court's opinion in Illinois

Central. Caminiti, 107 Wn.2d at 670. At issue in Illinois Central was

whether Illinois could grant to a private railroad company an irrevocable

interest to fill or otherwise develop more than 1,000 acres of submerged

lands comprising a substantial portion of Lake Michigan and the entire

shoreline along the city of Chicago to support the railroad's private

commercial enterprise. 146 U.S. at 454. The Supreme Court held the State

could not. Id. at 452-55. The Court explained that while the State must

generally protect its public trust resources, a state may abdicate control over

some public trust properties without violating its public trust obligations if in

doing so it promotes trust interests or does not substantially impair the

public trust interest in the lands and waters remaining. See id. at 452.

Appljdng that rule, the Court found Illinois had abdicated control when it

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Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2

granted to a private eompany the authority to fill and develop more than

1,000 acres of submerged public trust lands. Id. at 452-54.

Here, the legislature consented to the impairment of significantly

more property. Rather than a thousand acres, the Savings Clause impairs

thousands of acres. See Rauscher, supra, at 531; Port ofSeattle, 255 U.S. at

59; Johnson & Cooney, supra, at 289. Such authorization clearly constitutes

an abdication of control comparable to the land grant in Illinois Central.

Whether the abdication of control comports with the State's public trust

obligations depends on part two of the Caminiti test.

d. The Interests Promoted and Impaired by the Savings Clause

Should Be Analyzed on a Statewide Basis

The second part of the Caminiti test asks whether the challenged

legislation "has promoted the interests of the public in the jus publicum" or

"has not substantially impaired it." 107 Wn.2d at 670. If the Savings Clause

satisfies either question, then it also satisfies judicial scrutiny under the

public trust doctrine. See id. The parties debate whether the public trust

interests promoted or impaired by the Savings Clause should be analyzed on

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Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2

a statewide basis or as it relates to the Three Fingers fill on Lake Chelan.

We hold, in this case, that the interests should be evaluated statewide.^

As discussed earlier, the legislature enacted the Savings Clause in

response to our decision in Wilbour. The Wilbour decision had a significant

effect on land titles throughout Washington not because it ushered in a new

rule (the public trust doctrine had already been recognized), but because it

awoke the doctrine from a decades-long slumber. See Caminiti, 107 Wn.2d

at 670 ("Although not always clearly labeled or articulated as such ... the

doctrine has always existed in the State of Washington." (citing Johnson &

Cooney, supra, at 285-87)). Following the doctrine's awakening, the

legislature grappled with the possibility that the long-settled property

expectations of Washington residents and businesses who had relied on

legislative encouragement in building homes and investing significant

resources in the improvement of Washington's shorelands and tidelands

could be upended by public trust claims. Sturtevant, 76 Wash, at 171; 1

Senate Journal at 1411 (explaining "most of industry in the state that is on

the water ... is there illegally and subject to mandatory injunction to being

removed by anyone that wants to bring the lawsuit"). Indeed, Washington's

^ We reserve ruling on whether the same state- or jurisdiction-wide analysis should apply

in cases challenging different state statutes or local ordinances since that question is not

presented in this case.

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Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2

then governor, Governor Evans, was so concerned about color of title in

these properties that he placed a statewide moratorium on all tideland fill

projects, which caused Washington's economy to stagnate. See Orion, 109

Wn.2d at 627. The legislature quickly responded with a single piece of

legislation, the Savings Clause, that cleared title to all properties placed in

legal limbo by Wilbour and allowed industry to flourish once again. See 1

Senate Journal at 1411.

Other jurisdictions faced with similar problems regarding historic

improvements also acted swiftly through a single decisive action. Maine

responded to the issue of historic fills by enacting legislation that granted all

fills a 30-year easement to protect them temporarily from public trust claims.

Op. of Justices, 437 A.2d 597, 599 (Me. 1981). In 1981, Maine sought a

permanent solution and enacted a single bill to release all filled lands from

any public trust servitude. See id. The California Supreme Court took a

similar approach as the Maine legislature and extinguished the public trust

interest over all historical fills in a single opinion. Berkeley, 26 Cal. 3d at

534-35.

Piecemeal scrutiny of such legislative actions would undermine the

very purpose of these actions, which was to provide security to settled

property expectations and protect the state's economy from languishing in

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Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2

protracted litigation while waiting for titles to clear in thousands of cases.

For the foregoing reasons, the question of whether the Savings Clause

sufficiently promotes or does not substantially impair public trust interests

should be evaluated on a statewide basis. Because that analysis is factually

dependent, we remand to the trial court to determine in the first instance

whether the Savings Clause comports with the public trust doctrine.^

III. The Conservancv Has Standing To Raise Its Public Nuisance

Claim Based on a Public Trust Violation

^ Although the Conservancy likens the public right to navigation to '"inalienable"' and

"fundamental" constitutional rights, it did not argue that "heightened scrutiny" under the

public trust doctrine is akin to strict scrutiny, thereby requiring state action to have a

compelling state interest that is narrowly tailored to pass judicial muster. Supp'l Br. of

Pet'r Conservancy at 10 (quoting Johnson et al., supra, at 539-40). In contrast, some

jurists have advocated for a balancing test that considers the importance of the public

interest being promoted in comparison to the impairment on the public trust rights. As

Professor Johnson highlights, the priorities given to competing water needs for

recreation, commerce, hydroelectric power, and agricultural irrigation vary among

Washington's water-rich western regions and its arid eastem regions. Ralph W. Johnson,

Riparian and Public Rights to Lakes and Streams, 35 WASH. L. Rev. & ST. B. J. 580,

583-86 (1960). This suggests that under Professor Johnson's view, a significant

impairment of the public right to use waters in place for recreational use might be

acceptable for irrigation in eastem Washington, where irrigation is important, though the

same impairment for the same reason might not be acceptable in westem Washington,

where tourism and recreation are vital. Professor Sax, who is often credited as the

catalyst for the public tmst's resurgence in the 1970s, seems to agree that a balancing test

is needed, explaining that "[hjowever strongly one might feel about the present

imbalance in resource allocation, it hardly seems sensible to ask for a freezing of any

future specific configuration of policy judgments, for that result would seriously hamper

the government's attempts to cope with the problems caused by changes in the needs and

desires of the citizenry." Joseph L. Sax, The Public Trust Doctrine in Nat'l Resource

Law: Ejfective Judicial Intervention, 68 MiCH. L. Rev. 471, 482 (1970). We make no

determination on this matter at this time.

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Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2

Finally, we address GBI's challenge to the Conservancy's standing to

raise a public trust claim. GBI classifies this action as a public nuisance

action and argues the Conservancy has failed to allege the Three Fingers fill

is "specially injurious" to its members as is statutorily required under RCW

7.48.210.^ The Conservancy denies it is raising a public nuisance claim.

Instead, the Conservancy describes this action as a public trust action

distinct from a public nuisance action. Both parties are partially correct in

that this is a public nuisance action based on an alleged breach of the public

trust doctrine.

There are many types of public nuisance actions, including actions to

remove an animal carcass or an impediment on a river or highway and

actions to abate pollution or the manufacture of dangerous chemicals near

businesses. RCW 7.48.140. An action seeking the removal of an

impediment on a waterway because it interferes with the public right to use

that waterway is simply a specific type of public nuisance action. RCW

7.48.140(3). "Where the state has not approved impairment of state

sovereign resources, private encroachment upon public use of the resources

is treated as a public nuisance." 2 Waters and Water Rights, supra §

30.02(c), at 30-35. GBI is therefore correct that a plaintiff must be

^ RCW 7.48.210 provides, "A private person may maintain a civil action for a public

nuisance, if it is specially injurious to himself or herself but not otherwise."

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Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2

"specially injur[ed]" in order to have standing to raise a public trust claim,

but that requirement is not a particularly high bar.

Although RCW 7.48.210 requires the plaintiff be "specially

injur[ed]," it does not indicate the injury needed to satisfy that requirement is

more demanding or exacting than the injury needed for noneconomic

standing generally. For an organization to have standing to raise

noneconomic injuries, it must allege an "'injury in fact.'" Save a Valuable

Env't (SAVE) v. City ofBothell, 89 Wn.2d 862, 866, 576 P.2d 401 (1978)

(quoting United States v. Students Challenging Regidatory Agency

Procedures (S.C.R.A.P.), 412 U.S. 669, 722, 93 S. Ct. 2405, 37 L. Ed. 2d

254 (1973) (White, J., dissenting in part)). That means the organization

"must show that it or one of its members will be specifically and perceptibly

harmed by the action." Id. (citing S.C.R.A.P., 412 U.S. 669). An interest

that is only speculative or indirect is not enough. Id. at 867 (citing Warth v.

Seldin, 422 U.S. 490, 514, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975)). Thus,

in the absence of a statutory definition, we will treat "specially injurious"

harms needed for public nuisance claims the same as "specific and

perceptible" "injuries in fact" needed for noneconomic claims.

Injury to the aesthetic appeal and environment of an area is sufficient

to support standing if the plaintiff establishes that he or she uses that area for

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Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2

recreational purposes. Sierra Club v. Morton, 405 U.S. 727, 734-35, 92 S.

Ct. 1361, 31 L. Ed. 2d 636 (1972). The Conservancy satisfies that showing.

Its members claim that they are recreational users of Lake Chelan and that

the Three Fingers fill obstructs their desire and right to use navigable waters

over the property during the lake's high-water season. According to the

Conservancy's complaint:

Chelan Basin Conservancy's members include James and Kitty

Green, who own property and live in close proximity to the eastem

side of the [Three Fingers] fill. The Greens are adversely affected

by the existence of the fill which impairs their rights of public

access, navigation, fishing, recreation, and view. Tammy Hauge is

another member whose protected rights and interests similarly are

threatened. Ms. Hauge lives in Lakeside, a short distance from the

[Three Fingers] fill. She uses existing public access points to Lake

Chelan but is denied the opportunity for additional and better access

by the [Three Fingers] fill, and by the owners' exclusion of the

public including Ms. Hauge from land over which there is a

perpetual public right of access. Another member is Bill Schultz,

whose fishing activities are restricted by the [Three Fingers] fill.

Members John and Trisha Page kayak in Lake Chelan[,] including

the area of the [Three Fingers] fill and similarly are affected

adversely by the [Three Fingers] fill with respect to their rights of

navigation and recreation.

Clerk's Papers at 4; see also id. at 374-76 (Deel. of Tammy Hauge)

(explaining how she could access the lake more easily if the fill was not

there), 379-81 (Decl. of William Schuldt) (declaring the same and adding

that he fishes in the lake too), 384-86 (Decl. of John Page Jr.) (explaining

how the fill has made kayaking dangerous for him). We hold the harms

alleged by the Conservancy's members are sufficiently distinct from the

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Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2

general public to satisfy the standing requirements of RCW 7.48.210. The

fact that the Conservancy's members have never been able to use the lake

waters over GBFs property despite their desire to do so further shows their

injury is real, not just speculative.

Contrary to GBI's arguments, neither Zampa v. Graham nor Kemp v.

Putnam support its claim that the Conservancy lacks standing. Lampa v.

Graham, 179 Wash. 184, 36 P.2d 543 (1934); Kemp v. Putnam, 47 Wn.2d

530, 288 P.2d 837 (1955). In Lampa, we held a fisherman would have

standing to challenge the construction of a wing dam on a river channel if

the dam harmed his fishing activities along that channel, but later opined that

he would not have standing if his sole claim was an interference with his

right to navigate along the channel since that injury would be the same as the

injury sustained by the public generally. 179 Wash, at 186. We, however,

later clarified the Lampa decision was fact-specific. Kemp, 47 Wn.2d at

535-36, overruled on other grounds by SAVE, 89 Wn.2d at 867 n.l. After

Lampa, we held in Kemp that a person who regularly engages in recreational

fishing in a stream would have standing to challenge the unlawful

obstruction of that stream. 7(7. at 536.

Conclusion

The Conservancy seeks the abatement of fill material GBI added to its

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Chelan Basin Conservancy v. GBIHolding Co., No. 93381-2

property to elevate it above the waters of Lake Chelan because the increased

property elevation obstructs the public right to use navigable waters in place

over that property. We hold the Conservancy has standing to bring this

claim and conclude the legislature expressly consented to the fill's

impairment of navigable waters under the Savings Clause, RCW 90.58.270.

We reserve ruling on whether the Savings Clause violates the public trust

doctrine since the trial court never reached CaminitVs factual analysis. We

therefore reverse and remand to the trial court to decide that issue. ^

^ We decline to address GBI's defense of laches, which it raised for the first time in its

briefs before this court. Supp'l Br. for Resp't GBI Holding Co. at 12 n.l3; Answer to

Amieus Curiae Br. of Center for Envt'l Law & Policy at 19 n.9; see Cummins v. Lewis

County, 156 Wn.2d 844, 851,133 P.3d 458 (2006) ("It is a well-established maxim that

this court will generally not address arguments raised for the first time in a supplemental

brief and not made originally by the petitioner or respondent within the petition for

review or the response to the petition." (citing Douglas v. Freeman, 117 Wn.2d 242, 258,

814 P.2d 1160 (1991))).

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WE CONCUR:

//

33