§ 18.6 - Testing the Waters-Modern Public Trust Claims

• Jurisdiction: Washington

§18.6 Testing the Waters—Modern Public Trust Claims

Since Caminiti v. Boyle, 107 Wn.2d 662, 668, 732 P.2d 989 (1987), cert. denied, 484 U.S. 1008 (1988), and Orion Corp. v. State (Orion II), 109 Wn.2d 621, 747 P.2d 1062 (1987), cert. denied, 486 U.S. 1022 (1988), litigants have raised the Public Trust Doctrine in numerous nontraditional contexts, mostly without success. Some litigants have unsuccessfully challenged various state and local laws or regulations as violating the public trust. Some unpublished Court of Appeals decisions have declined to extend the public trust to beach walking across privately owned tidelands. Despite these various creative applications of the Public Trust Doctrine, the courts have generally been unreceptive to expanding the scope of the doctrine beyond that previously articulated in Caminiti and Orion II.

(1) Crashing the public trust on "jet skis"

In Weden v. San Juan County, 135 Wn.2d 678, 958 P.2d 273 (1998), a group of plaintiffs challenged the county's ordinance banning all personal watercraft, or "jet skis," from operating on all marine waters and on one lake within the county's jurisdiction. Plaintiffs claimed that the ban violated the Public Trust Doctrine. The court quickly disposed of the argument by finding that, although the ordinance bans one particular kind of watercraft, the county retains control over the waters and all members of the public can navigate with other conveyances. Id. at 699.

Three points of interest can be found in Weden's discussion of the Public Trust Doctrine. First, the court quoted several provisions from a law review article by Professor Ralph Johnson, including the statement that the Public Trust Doctrine protects "‘public ownership interests in certain uses of navigable waters and underlying lands, including navigation, commerce, fisheries, recreation, and environmental quality.'" Id. at 698 (quoting Ralph W. Johnson et al., The Public Trust Doctrine and Coastal Zone Management in Washington State, 67 Wash. L. Rev. 521, 524 (1992)). The last phrase about the Public Trust Doctrine protecting "environmental quality"—an ambiguous concept at best—finds no direct support in Washington case law. On the other hand, Professor Johnson's statement was not purporting to summarize the Public Trust Doctrine as developed in Washington. This reference to "environmental quality" warrants mention because the statement has been repeated, as dicta, in subsequent Washington cases. See, e.g., Citizens for Responsible Wildlife Mgmt. v. State, 124 Wn.App. 566, 571, 103 P.3d 203 (2004).

The second interesting point from Weden again comes from a quote from the same law review article: "Due to the ‘universally recognized need to protect public access to and use of such unique resources as navigable waters, beds, and adjacent lands,' courts review legislation under the public trust doctrine with a heightened degree of judicial scrutiny, ‘as if they were measuring that legislation against constitutional protections.'" Weden, 135 Wn.2d at 698 (quoting Johnson, 67 Wash. L. Rev. at 525, 526-27). This statement overstates Professor Johnson's point. Professor Johnson had written that Caminiti described the Public Trust Doctrine as a limit on legislative power, akin to constitutional restrictions, but neither Professor Johnson nor Caminiti supports the Weden court's statement that legislation alleged to violate the Public Trust Doctrine requires a "heightened degree of judicial scrutiny" or that the rights flowing from the Public Trust Doctrine are constitutionally protected rights. Professor Johnson characterized the Public Trust Doctrine as a special concept lying somewhere in between an "ordinary law" and a "constitutional requirement," but not having the same power as constitutional provisions. Johnson, 67 Wash. L. Rev. at 527. Similarly, Caminiti did not elevate the Public Trust Doctrine to a constitutional principle, nor did any of the earlier state cases cited in Caminiti. The Weden court's unprecedented "constitutionalization" of the Public Trust Doctrine has been cited favorably in subsequent cases. See Wash. State Geoduck Harvest Ass'n v. State Dep't of Natural Res., 124 Wn.App. 441, 451, 101 P.3d 891 (2004); Citizens for Responsible Wildlife Mgmt., 124 Wn.App. at 570-71.

A third point worthy of correction involves the Weden court's mischaracterization of Caminiti as being the first opinion since statehood to expressly adopt the Public Trust Doctrine. To the contrary, the Caminiti court expressly acknowledged that the "jus publicum" interests of navigation and fishing have existed in this state as a common-law principle "from earliest statehood," and the court in Caminiti cited five early statehood cases in support of this proposition. Caminiti, 107 Wn.2d at 669, 669 n.15 (citations omitted). Although Caminiti was the first opinion in which the court articulated a multifaceted test to review legislation in the face of a Public Trust Doctrine challenge, the factors of that test derived directly from language in Illinois Central Rail Co. v. Illinois, 146 U.S. 387, 13 S. Ct. 110, 36 L. Ed. 1018 (1892), which language had been expressly quoted and applied by two earlier state Supreme Court cases. See Hill v. Newell, 86 Wash. 227, 231, 149 P. 951 (1915); Palmer v. Peterson, 56 Wash. 74, 76, 105 P. 179 (1909). Subsequent cases have perpetuated the Weden court's erroneous statement that Caminiti was the first case in the state to adopt the Public Trust Doctrine. See, e.g., Citizens for Responsible Wildlife Mgmt., 124 Wn.App. at 576 (Quinn-Brintnall, C.J., concurring).

(2) Revisiting the Public Trust Doctrine and ownership and control of shellfish resources

On October 6, 1997, Timothy Longshore and two others entered privately owned tidelands and harvested 340 pounds of manila clams from a natural bed without the landowner's permission. State v. Longshore, 97 Wn.App. 144, 146, 982 P.2d 1191 (1999), aff'd, 141 Wn.2d 414, 5 P.3d 1256 (2000). Longshore was caught and charged with and found guilty by a jury of theft. Longshore argued on appeal that theft could not occur because theft requires the taking of property of another, but the naturally occurring shellfish were not the property of anyone. Instead, he claimed the shellfish were animals ferae naturae and the Public Trust Doctrine further supported his right to harvest the shellfish. Id. at 421.

The state Supreme Court agreed that the general common-law rule considered shellfish as ferae naturae, but the court pointed out that Washington common law had rejected the general rule as far back as Sequim Bay Canning Co. v. Bugge, 49 Wash. 127, 94 P. 922 (1908). The court reaffirmed Sequim Bay Canning and held that natural shellfish embedded on private property are the private property of the landowner. Longshore, 141 Wn.2d at 422-26. The court declined to specify whether the shellfish constituted real property or personal property, finding that distinction irrelevant for purposes of the theft charge.

Longshore also argued that the naturally occurring shellfish were subject to the Public Trust Doctrine such that the state could not convey private rights in the shellfish with the sale of the lands. Longshore relied, in part, upon three United States Supreme Court cases and case law from other states that had referenced shellfish in the context of Public Trust Doctrine analysis. Id. at 427. The state Supreme Court held that state courts were free to define the limits of the Public Trust Doctrine, citing Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 108 S. Ct. 791, 98 L. Ed. 2d 877 (1988), reh'g denied, 486 U.S. 1018 (1988), and the court again relied upon Sequim Bay Canning as rejecting application of the Public Trust Doctrine to embedded shellfish on private property. "‘It is manifest that there can be no navigation except upon the waters, and at such times only as the waters engulf the soil.... It is common knowledge, however, that clam digging must be done when the waters have subsided....'" Id. at 428 (quoting Sequim Bay Canning Co., 49 Wash. at 130-31). Because the Public Trust Doctrine did not apply to the embedded shellfish on private tidelands, the shellfish were the property of the landowner so as to support Longshore's theft conviction. The court in Longshore declined to address "whether and under what circumstances the public has a right to enter upon or cross over private tidelands on foot." Id. at 429 n.9.

In Washington State Geoduck Harvest Ass'n, 124 Wn.App. 441, commercial geoduck harvesters challenged the statutory regime under which the Department of Natural Resources (DNR) auctions the right to harvest naturally occurring geoduck clams on subtidal beds. In a rather ironic argument, the harvesters claimed that DNR's management of the shellfish resource violates the Public Trust Doctrine because the private harvesters should have greater rights to the publicly owned shellfish resources.

The court quoted the Caminiti test, but also quoted Weden for the unsupported statement that the court should apply "heightened scrutiny" because the challenged "statutes are essentially being measured against constitutional protections for public access to unique resources." Id. at 451 (citing Weden, 135...