The Public Trust Doctrine in Washington

• Publication year: 1987

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 10, No. 3SPRING 1987

The Public Trust Doctrine in Washington

A. Reid Allison III(fn*)

I. Introduction

The Washington Supreme Court recently held that the public trust doctrine "has always existed in the State of Washington."(fn1) This observation is difficult to accept uncritically, however, after the scores of court decisions over the years that, while implicating public trust values, have virtually ignored the doctrine's existence. What makes the observation in Caminiti v. Boyle particularly vexing is that the Washington courts have consistently been reluctant to asume an active role in protecting and promoting public access to the sea and its wealth. In a state whose citizens place a premium on the quality of their natural surroundings, it is a curious phenomenon that the Washington courts have failed to promote shorelines and aquatic lands conservation within the established realm of the public trust doctrine.

A survey of the resource places the issues in perspective. Washington has 2,337 miles of marine coastline(fn2) adjoining 15 counties,(fn3) approximately 40 cities of significant size, and more than 200 islands. Geographic features framing Washington's coastal region vary widely: precipitous, 500 foot rocky bluffs rim portions of Puget Sound,(fn4) while the state's Pacific Coastal Dune Area extends to 7,000 feet in width. Broad reaches of the Washington coast form one leg of the western flyway and constitute a rookery for numerous species of migratory and resident water fowl. The 50 mile Pacific Ocean Strip of the Olympic National Park, created by executive order of President Theodore Roosevelt, constitutes one of the few remaining stretches of wilderness beach in the continental United States. Other Washington coastal localities noted for their unique ecology include the shallow estuarine systems of the Chehalis, Skagit, Snohomish, and Nisqually Rivers, whose intertidal marshes provide nursing areas for juvenile marine finfish, shellfish, water fowl, and other animals; and the Hood Canal, whose glacially-carved fjord-like estuary is widely recognized for its natural beauty.(fn5)

In the past two decades, residents of the state have witnessed a dramatic increase in competition for the use of Washington's coastal regions. For example, less than twenty percent of the tidelands of Hood Canal are owned by the state and available for public use. The shorelines of this environmentally sensitive embayment are owned in large part by private residential homeowners, the federal government, two native Indian tribes, and numerous commercial business entities. Continued economic growth along Hood Canal will ultimately fuel an increase in coastal development, raising the specter of continued inter-tidal fill and the destruction of vital estuarine habitat systems.

Together with their value as natural habitat systems, tide-lands and uplands along Puget Sound also provide an attractive location for residential and water-related commercial and industrial development. The character and intensity of uses vary within and among the different regions. The urbanization and industrialization that characterize the shorelines of Seattle, Tacoma, and Everett appear to a lesser degree in the smaller communities located along Puget Sound. Some coastal areas, notably those surrounding Hood Canal and Whidbey and Camano Islands, are devoted in significant part to private residential uses. Other coastal areas, like those surrounding the islands of the San Juan archipelago, are largely sport, recreation, and wilderness oriented.

The relatively quiet Puget Sound waters provide convenient terminal locations for commercial shipping, a major use component of Washington's coastal zone. World class shipping companies maintain home ports in Seattle and Tacoma. State ferry terminals as well as private marine transportation systems exist throughout Puget Sound's main basin. Oil refineries located on Puget Sound serve the petroleum transfer corridor located in the state's northern marine waters. Numerous marinas serve the moorage and other needs of recreational boaters and are found throughout the navigable waters of the state. Ship construction and repair facilities occupy the coasts of Washington's major fishing and shipping communities, notably Seattle, Tacoma, Everett, Port Townsend, Anacortes, and Bellingham.

What the foregoing serves to illustrate is that Washington's coastal zone is unique and beautiful, immeasurably valuable in terms of its diversity of ecological, residential, commercial, and industrial uses. It is well documented that the virtually infinite variety of uses of Washington's coastal area has been the source of conflict.(fn6) User conflict is manifested, for example, when environmentalists oppose the construction of a proposed Puget Sound oil refinery;(fn7) when recreational fishing and boating enthusiasts trespass upon their landed neighbors' private tidelands; and when hydropower dam and water storage projects drastically curtail (or in some cases virtually destroy) natural propagation of wild salmon or steelhead stocks in aboriginal river systems.(fn8) In the face of these and other conflicts, the management of Washington's Puget Sound and Pacific Coastal regions presents an intricate study in resource allocation.

The concept and practice of resource allocation presupposes the existence of certain individual and group rights as well as priorities of use. An owner of tidelands claims a private entitlement to the exclusive possession and enjoyment of his property. A free citizenry claims a collective bundle of rights to swim in the sea, to walk its beaches and to wade for crabs and dig for clams. A purchaser of commercially valuable tidelands claims the right to use his property for log storage to the exclusion of his formerly riparian neighbor. From what legal authority are these "rights" derived? What is their genesis, and what, if any, is the scope of any such bundle of rights? Where one set of perceived rights comes in conflict with another, whose rights are accorded priority, and on what basis are such decisions properly made?

This Article addresses these questions, first, by presenting a brief description of the historical and legal foundation of coastal resource allocation in the United States: the "public trust doctrine." Second, a survey of the Washington experience demonstrates, surprisingly, that a state whose 2,337 miles of marine coastline approximately equals the length of the entire remaining coastline of the contiguous western United States,(fn9) has managed to establish a viable and responsive regulatory regime governing coastal resource use with scarcely a mention in its laws of the "public trust doctrine."(fn10)

The question to be explored here is this: with the public trust doctrine so firmly entrenched in the natural resource law of many other jurisdictions, most notably California,(fn11) why is it that Washington's generally well-respected(fn12) coastal environmental policy evolved outside the legal realm of the public trust doctrine? In Caminiti v. Boyle, the Washington Supreme Court announced that the doctrine has always existed in this state.(fn13) Despite the observations in Caminiti, however, can the doctrine exist in the absence of active judicial participation in natural resource conservation practice?

This article assesses the historical treatment of coastal resource user friction in Washington and analyzes the relationship between the state's present legal regime and conventional public trust theory.(fn14) In this survey of the Washington experience, coastal and aquatic conservation legislation is explored. The central question is whether the public trust - originally a judicial doctrine - survives now as merely an anachronistic adjunct to a comprehensive package of natural resources legislation. The conclusion here is that it does not.

Rather, this Article suggests that the public trust doctrine exists in contemporary natural resources law for the same reason that it was spawned as a judge-made doctrine in this country in the 19th century: to promote maximum resource utilization over time and to provide a baseline level of protection to fundamental natural rights of access to the sea and its resources. Under the public trust doctrine, the role of the judiciary in the allocation and utilization of coastal resources historically has been to provide checks and balances protection from wasteful or ill-considered legislative conveyances and commitments of trust property. Any dedication of public coastal resources to private (or less public) uses is considered a delegation of the trust responsibility for which the public trust doctrine provides a judicially-recognized floor. Where the public interest is diffuse or otherwise under-represented in the allocation of coastal resources, the doctrine offers the Washington courts strong historical support for requiring a compelling justification for legislative or agency-level decision-making in derogation of the public trust.

II. The Public Trust Doctrine Generally

A. Genesis

The public trust doctrine is neither new nor universal in acceptance or application. Simply stated, the doctrine at common law is a recognition of the sovereign right of the individual states to protect inviolable public entitlements in certain natural resources...