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Environmental reporter Christopher Dunagan discusses the challenges of protecting Puget Sound and all things water-related.
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Posts Tagged ‘Lake Tahuyeh’

Lake Tahuyeh case meanders through riparian rights

Tuesday, July 19th, 2011

UPDATE, Aug. 16, 2011
The Tahuyeh Lake Community Club appealed the Kitsap County Superior Court ruling yesterday, the same day that the judge issued her findings of fact and judgment in the matter.

Check out my story in tomorrow’s Kitsap Sun or review the judge’s findings document (PDF 968 kb).
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While I was away for a week, Kitsap County Superior Court Judge Jeanette Dalton handed down a most intricate ruling in the case called Tahuyeh Lake Community Club versus Washington Department of Fish and Wildlife.

This legal dispute has gone on for years and may not be over even now. But, through it all, I’ve learned a great deal about riparian rights to use shorelines and surface waters in Washington state.

The bottom line, if the ruling stands, is that WDFW will be allowed to build a public boat launch on Lake Tahuyeh. Officers of the community club pursued the case even after the agency withdrew its plans for a launching facility, which was given conditional approval.

Local fishing groups wish to have access to Lake Tahuyeh for recreation, while the community club maintains that the lake is private and under its exclusive control.

Judge Dalton understood the legal and societal implications of her decision:

“In bringing this lawsuit, the members of the community club seek to protect important rights to the quiet enjoyment of their private shoreside community. In defending this action, the state of Washington also seeks to defend values central to our society, those of public access to public lands.

“Fortunately, resolution of this action does not require this court to resolve the relative importance of the competing values represented by the two parties. Rather, centuries of lawmakers have weighed these values for us, and their legal mandates dictate the necessary outcome of this case.”

Judge Dalton’s ruling maneuvers logically through a maze of facts and legal benchmarks before reaching the conclusion that a single parcel of lakefront property provides legal access to the entire surface of the lake. Much of the decision hinges around the question of whether Lake Tahuyeh was actually a lake when the property was first conveyed by the federal government and later when the state acquired its small parcel of property — both long before a dam formed the lake as we know it today.

If Lake Tahuyeh was nothing more than a swamp or a man-made lake, then ownership and access would be defined by boundary lines drawn on a map and the related legal descriptions. If the lake were large and deep enough to be a “navigable” waterway, then the state would have claimed ownership to the entire lake bed.

But Dalton concluded — based on historical documents and testimony from folks who fished on the lake a half-century ago — that Lake Tahuyeh was, and is, a “nonnavigable lake.” As such, each property owner along the shoreline owns a pie-shaped piece of the lake bed to the center — unless that ownership is conveyed to someone else. In this case, the community club acquired ownership of most of the lake bed, but the state retained its ownership, Dalton concluded.

Whether the state has riparian rights to use the lake depends not only on whether Lake Tahuyeh was actually a lake, but also whether those rights were conveyed during successive ownerships of the property.

Jean Bulette, president of Tahuyeh Lake Community Club, has told me several times and argued in a Kitsap Sun op-ed piece in March 2010 that the lake bed and its riparian rights were granted to predecessors of the club and can never be taken away.

Judge Dalton agreed that the original owners obtained title to the lakebed when the federal patent conveyed ownership, but she also gave weight to the original federal survey of the site, which included a “meander line” to note the approximate edge of the water:

“There is some authority for the proposition that a lot is conclusively riparian if it bounders a ‘meander line,’ at least in the absence of evidence showing that the lot was meant to run only to the meander line and not to the actual edge of the watercourse.”

What is the evidence that the original owners meant to pass on riparian rights — lake access — to the state in 1939, when the state took ownership of the parcel?

“The court finds that the parties likely were contemplating public access to Lake Tahuyeh by the conveyance to the department. It was a historic aberration for a grant of land to be only 200 feet wide and run between a known access road and a lake, at least where other acquisitions of property during those early decades were much larger parcels of land. The mere dimensions of the department’s lot suggest — and probably require — the conclusion that the lot was intended for water access….

“Other factors lead the court to this conclusion, includ(ing) that the consideration for the transfer of the property was apparently not money, but rather the department’s agreement to allow the grantor to control the level of Tahuyeh Lake and to allow removal and harvest of the sphagnum moss.

“If the transfer was not intended to run into the lake at all, then raising or lowering the level of the lake would have had no consequences to the state. The fact that such an agreement was specifically negotiated as consideration for the deed indicates to this court that the grantor intended to convey, and did convey, the bed of the lake under the water as well as the upland parcel to the road.

“The court therefore determines that the lot conveyed to the department included riparian rights to Tahuyeh Lake, which the lot abutted.”

While a riparian owner has rights that extend to the entire surface of the lake, Judge Dalton pointed out that such rights must “not interfere unreasonably with the riparian rights of other owners.”

Dalton said she does not minimize the potential effects that her ruling could have on the “solitude currently enjoyed by members of the community club.” Still, the facts in this case do not address the extent to which public use might interfere with the recreational rights of community club members. That, Dalton said, could be the subject of future legal action.

Further information:

Judge Jeanette Dalton’s ruling

Steve Gardner’s Kitsap Sun story

Christopher Dunagan’s preview of Lake Tahuyeh case


Legal battle over Lake Tahuyeh goes to court

Monday, February 15th, 2010

The battle over public access to Lake Tahuyeh is finally headed to court. Sport fishers would like to carry their boats down to the lake and launch them from a state-owned parcel of property. Lake residents wish to keep their “private” lake private.

I outlined the major legal issues in a story in today’s Kitsap Sun.

You may wish to return to this blog tomorrow, when I will give “live blogging” a try for the first time. At that time, you will be able to watch as I write from the courtroom, providing blow-by-blow arguments as they unfold before the judge.

Here’s the key question: If you buy a piece of property on a lake, do you have the right to open it up for public access?

When this issue first came up, I thought the outcome could set a precedent for other lakes where anglers would like to build a boat launch. But there are many aspects of this issue that are relatively unique. Here are a few:

— The question of whether Lake Tahuyeh was a natural lake or a bog.
— The point that Lake Tahuyeh was not a navigable waterway, which means the state does not own the lake bottom.
— The idea that the lake was changed substantially when it was dammed up.
— The fact that the state has never contributed to the cost of maintaining the dam or other operations on the lake.

Of course, attorneys for the state will argue that the public gained access to the lake in 1939 before most homes were built and that public rights to use the lake cannot be extinguished by any of these issues.

It will be interesting to see how these various points are argued in court.


Battle of the boat launch takes a new twist over trust

Saturday, October 3rd, 2009

The latest episode in the battle for a boat launch at Lake Tahuyeh focuses on four fishing groups who were under the impression that a state boat launch for kayaks and canoes was a done deal — then the plans were canceled.

<em>Lake Tahuyeh property owned by the Washington Department of Fish and Wildlife</em>

Lake Tahuyeh property owned by the Washington Department of Fish and Wildlife

The groups feel betrayed because an official with the Washington Department of Fish and Wildlife withdrew the application for a permit after saying that nothing would happen until November, when a lawsuit was scheduled for trial. See my story in Thursday’s Kitsap Sun.

This story has had many twists and turns since 2004. Officials with the Tahuyeh Lake Community Club also have grievances against Fish and Wildlife officials, who they believed had agreed to abandon plans for a boat launch and sell the lakefront property.

Now, it appears a lawsuit filed by the community club may go to court. The issue: whether the state has the legal right to open the lake to the public, by way of owning a parcel of waterfront property.

Comments posted to my latest story generally support the community club’s position of keeping the public off the lake. This seems to be a turn, since supporters of the boat launch were well represented in previous stories.

I’ll keep the informal poll open a few more days to see if anyone wants to add their opinions on this issue. See the right column and vote if you have not already done so.

Here are some of the stories written about this issue:
Oct. 1, 2009: Fishing Groups Question ‘Secret Dealings’ on Lake Tahuyeh
Aug. 20, 2009: Lake Tahuyeh Boat Launch Project Stirs Politics, Passions
July 16, 2009: State Won’t Pursue Boat Launch at Lake Tahuyeh
Dec. 14, 2007: Hearing Examiner Says Lake Tahuyeh Boat Launch Needs a Plan
Oct. 11, 2007: Lake Residents Express Objections to Tahuyeh Boat Launch
Oct. 6, 2007: Tahuyeh Boat Launch Goes Before Hearing Examiner
April 14, 2007: Changes Could Minimize Plan for Tahuyeh Access
April 5, 2007: Sportsmen, Homeowners Take Sides on Lake Access
Nov. 20, 2004: Residents: ‘The lake is ours’


Lake Tahuyeh has been caught in a tug of war

Friday, August 21st, 2009

Please check out the poll in the right column.

Should a public boat launch for small, nonmotorized boats be built at Lake Tahuyeh? This question has turned into a political tug of war. See my story in today’s Kitsap Sun.

On one side are local fishing organizations and state Sen. Phil Rockefeller, D-Bainbridge Island, who were able to get the Legislature to approve $240,000 for the boat launch.

On the other side are lake residents and state Sen. Tim Sheldon, D-Potlatch, who say it is a private lake and the public should not be allowed to use the lake.

Legal issues about whether the public has a right to use the lake or whether private property owners can block public access may be resolved in court. Leaving aside those legal issues, let me list the pros and cons of public access from a moral and practical perspective. If I’m leaving something out, let me know. Then please express your opinion in the poll at right.

In favor of a public boat launch:

1. The original developer of Lake Tahuyeh wanted to allow public access for fishing and boating. That’s why he deeded property to the Washington Department of Fish and Wildlife before the lake was created.

2. The water that flows through the lake and the fish that swim in the lake belong to the state. Residents are allowed to keep people off their private property, but the public should be allowed to float across the water.

3. Property owners on many lakes have blocked off access to lakes where they once allowed the public to go. The state should develop more access points to serve a growing population.

4. The Legislature approved the money to build the boat launch, which should determine state policy on the subject.

Against a public boat launch:

1. Given the limited size of the Lake Tahuyeh access, the state’s money would be better spent on a larger facility at a larger lake.

2. The public will not take care of Lake Tahuyeh the way local residents do. They will not abide by rules established by the residents.

3. The lake cannot support a large number of people, and the seven parking spaces may not really limit the number of visitors to the lake.

4. The public has never paid for maintenance of the lake, including reconstruction of the dam that impounds the water. Residents have paid all the costs through the years.


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"In the end, we will conserve only what we love, we will love only what we understand, and we will understand only what we are taught."Baba Dioum, Senegalese conservationist

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