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).
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
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
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
“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,
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
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
“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
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
“The court therefore determines that the lot conveyed to the
department included riparian rights to Tahuyeh Lake, which the lot
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
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.
Judge Jeanette Dalton’s ruling
Steve Gardner’s Kitsap Sun story
Christopher Dunagan’s preview of Lake Tahuyeh case
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