Tag Archives: Washington State Supreme Court

What’s to happen with funding for Puget Sound?

Finding money for Puget Sound restoration is likely to become more difficult next year as legislative power shifts to Republicans in the state Senate and the Legislature wrestles with funding for education.

The power shift follows the defection of two Democratic senators to effectively create a Republican majority in the Senate. See reporter Mike Baker’s story for the Associated Press.

The upcoming budget debate will no doubt revolve around new funding for education. The State Supreme Court has ruled that the Legislature must find more money to fund basic educational needs, as required by the Washington State Constitution. Gov. Chris Gregoire has been talking about proposing a new dedicated tax, but now opponents of tax increases will have a stronger position.

Gov.-elect Jay Inslee ran on a no-new-taxes pledge, so it is likely that all state programs will go back on the chopping block, and nobody can predict what will come out of the turmoil.

Inslee told me a month ago that he could not predict whether Puget Sound programs would get more or less money, but he considered the state’s “paramount duty” to be education. Please review the Kitsap Sun story on Nov. 15.

Meanwhile, Gov. Gregoire told Seattle Times reporter Andrew Garber that her greatest disappointment was not getting more done to restore Puget Sound:

“Because that’s forever. That’s a big forever issue for this state. What I think happened… is we were on our way, and then we just got taken to our knees by the recession. While I kept funding it through other means, it didn’t get the focus I think it needs and deserves because I was so consumed by the recession.”

The governor told me during an interview last month that she still hopes the Legislature can find more money for Puget Sound — including a stable funding source — once the state gets to a stronger financial footing:

“We kept putting money in… I kept pushing for ongoing funding, and we will have to continue to do that for awhile.

“When the recession hit, I have to say that everybody’s attention got drawn away. People wondered, ‘Can I put food on the table? Am I going to lose my job?’ It was so all-consuming that I couldn’t focus on the sound.

“There was a lot of talk about a flush tax. We have never really done the research on it. The last couple of years was no time to be thinking about that. We have demands for education and transportation. But at some point we will have to find the ability to (pay for) more capital projects.

“I think we have held our own and made some improvement, but not the improvement we should have. We have to kick it up. The population continues to grow. We’re going to have to kick it up or we are going to lose ground. I’m not proud of the fact that we are kind of treading water right now.”

Gov. Gregoire also acknowledged to me that federal funding for Puget Sound could become more difficult with the retirement of U.S. Rep. Norm Dicks, who has been a powerful advocate for Puget Sound. On the other hand, she has hope that Norm’s effort through the years and the establishment of the Puget Sound Partnership with provide ongoing credibility for the program. She also believes that Norm’s replacement, Democrat Derek Kilmer, will be a strong advocate for Puget Sound, along with the state’s two U.S. senators.

Other comments from my interview with the governor were used in the first story in what will be an ongoing series about the Puget Sound Partnership’s ecosystem indicators. See Kitsap Sun, Nov. 24.

Speaking of money for Puget Sound, the Salmon Recovery Funding Board has approved $19.2 million statewide for salmon projects next year. I focused my story in yesterday’s Kitsap Sun on estuary projects in Hood Canal, but the full list of projects (PDF 279 kb) can be downloaded from the website of the Recreation and Conservation Office.

It might be interesting to review the history of these grants, year by year. The following are the annual allocations with links to more details:

2013: $19.2 million. News release, Dec. 10, 2012

2012: $30 million. News release, Dec. 12, 2011

2011: $19.8 million. News release, Dec. 20, 2010

2010: $42.8 million. News release, Dec. 15, 2009

2009: $19.8 million. News release, Dec. 12, 2008

2008: $60 million. News release (PDF 360 kb), Dec. 19, 2007

2007: $16.6 million. News release (PDF 262 kb), Dec. 8, 2006

2006: $26.6 million. News release (PDF 262 kb), Jan. 11, 2006

2005: $26.7 million. News release (PDF 188 kb), Dec. 9, 2004 (Gov. Gary Locke)

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Court finds resolution for conflicting shoreline regs

The conflict between the Growth Management Act and the Shoreline Management Act may be over, as a result of a Washington State Court of Appeals case handed down this week for Kitsap County. (See my story in today’s Kitsap Sun.)

The confusion has affected many cities and counties that believed they were better protecting their shorelines from degradation when they updated their critical areas ordinances, as required by the Growth Management Act. It turns out that the GMA may have improperly stepped into the 200-foot shoreline zone where the Shoreline Management Act presides.

The conflict grew out of a divided Washington State Supreme Court decision for the city of Anacortes, which concluded that only the Shorelines Management Act could govern shorelines. By the time the case was resolved in 2009, many cities and counties had already updated their local critical areas ordinances with stricter shoreline regulations.

Washington Department of Ecology advised local governments to continue using their CAO rules for shorelines, because the divided decision was not binding on other jurisdictions. That advice caused a stir of its own. (See Water Ways, Nov. 3, 2009.) Kitsap County got caught in the crossfire in a lawsuit with the Kitsap Alliance of Property Owners, as the Court of Appeals used the same reasoning in saying that Kitsap’s CAO should not apply to shorelines.

Last year, the Legislature moved to clarify the matter by saying cities and counties may use their CAOs until they complete updates to their Shoreline Master Programs, an effort in which many are engaged now. The law was made retroactive to validate numerous CAOs that were in limbo.

Kitsap Alliance of Property Owners argued that it was unconstitutional for the Legislature to pass a law retroactively to get around a court ruling. However, in the latest case, the Court of Appeals sided with the county, saying the Supreme Court had never ruled authoritatively on the matter because of the split nature of the original decision. That made it legal for the Legislature to clarify the intent of the law.

With the appeals court upholding the Critical Areas Ordinance, the appeals court judges then moved into the meat of the Kitsap County case, which involved the use of “best available science” and several constitutional claims. The court found in favor of the county on all major arguments. One can find the discussion in the second part of the Court of Appeals ruling (PDF 148 kb).

KAPO officials are reviewing the case with lawyers for the Pacific Legal Foundation before deciding whether to appeal the matter to the State Supreme Court.

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Incoming court justice predicts water will be an issue

Who would have guessed that, throughout the history of our state, a Kitsap County resident has never served as a State Supreme Court justice?

Charlie Wiggins of Bainbridge Island, Washington's next Supreme Court justice
Kitsap Sun photo by Larry Steagall

That’s been true until now, that is, since Bainbridge Island attorney Charlie Wiggins is about to replace Justice Richard Sanders on the state’s high court.

That’s just one tidbit in a fascinating story written about Wiggins by reporter Tristan Baurick in Monday’s Kitsap Sun. In his blog, Bainbridge Conversation, Tristan also revealed how a Kitsap resident years ago became a Supreme Court justice — but only after moving to Tacoma, so he didn’t count.

It’s too early to know how Wiggins’ presence will change the Supreme Court, but most observers expect him to take positions to the left of Sanders, who is generally viewed as either a Libertarian or a staunch conservative.

Tristan quoted Court of Appeals judges who have worked with Wiggins. They said he is well respected in legal circles but remains largely unknown to the public.

Retired judge Elaine Houghton: “He writes eloquent and clearly — something we judges aspire to. His work is well-regarded because he finds the essence of the law and espouses it very easily.”

University of Washington law professor Bill Anderson: “You can’t peg him as an activist or nonactivist judge, or as a liberal or conservative. I don’t think he’ll blaze any trails in any direction. I think he’ll just be a professional judge. Consistent, honorable, objective.”

One thing I found interesting was Wiggins’ predictions about issues that could come before the court in the future. His lists water because of its limited supplies.

“With climate change,” Wiggins told our reporter, “water is just going to be an incredibly precious resource.”

In trying to judge how Wiggins might shift the court, I read several of his articles written for legal publications. For a lawyer, his writing can be engaging, especially when dealing with historical issues. Check out “The Battle for the Tidelands in the Constitutional Convention,” which he wrote for the Washington State Bar Association.

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Beach-walkers are still waiting for a legal answer

For 30 years, I’ve wondered about the Public Trust Doctrine and whether you and I have a right to walk across private tidelands throughout the Puget Sound area.

On a few occasions, I’ve written about the general principles of the Public Trust Doctrine, but last week I dug a bit deeper and came up with a story published in Tuesday’s Kitsap Sun.

I’ve received a lot of nice comments about my balanced approach to the story. That’s much appreciated, given the contentious nature of this subject. As of this writing, the story has received 75 comments from readers. The discussion got so heated at one point that someone asked Kitsap Sun editors to call a halt to the debate. Comments are still coming in, and things have calmed down.

Please take a moment and weigh in with your opinion in the poll over in the right-hand column of this blog. Also, feel free to comment here, or join the discussion on the story itself.

So, do average citizens have the right to walk across someone’s private tidelands? As I explain in the story, this question cannot be answered today, because our state Supreme Court has never ruled on the subject. The Public Trust Doctrine certainly provides for a public right to float across private tidelands in a boat and to take fish and other creatures in conformance with state law.

Shellfish are another issue, however, since the state recognizes that these embedded creatures belong to the property owner in most cases.

The vast majority of waterfront property owners I interviewed for this story said they would not object to someone crossing their tidelands, provided the person does not cause any damage along the way. Some commenters added that people also should not pick up anything on the beach. Now this is another unanswered question for me, and perhaps one of you has the answer: Do beach-walkers or even people in a boat have the right to pick up something that washes in with the tide?

I seem to recall that visitors are not allowed pick up driftwood or other natural items that may be habitat for critters, which are generally protected under state law. But if a man-made item washes ashore, such as a glass float, does the property owner have a greater right to claim the object than someone walking along the beach? I don’t know, but perhaps this is one of these unresolved issues — such as where someone may walk legally.

Assistant Attorney General Joe Panesko, who has been researching the Public Trust Doctrine for an upcoming article, pointed out that some commenters seem confused about where property rights end on the shoreline. It is not a simple issue in Washington state.

As Joe describes it, the state once owned all the tidelands and still owns the vast majority of bedlands, which are below the extreme low-tide mark. Between 1899 and 1911, tidelands sold by the state went from the ordinary high tide line down to the mean low tide line. In 1911, the state changed the definition of tidelands to extend all the way down to extreme low tide.

The state also sold a separate category of lands for the cultivation of oysters under two 1895 laws, the Bush Act and the Callow Act. Most of these lands were identified with legal descriptions that included “metes and bounds” instead of tidal elevations. Perhaps because of imprecise surveys, some of these lands still go down below extreme low tide. (This relates to recent stories about “trespass” by shellfish growers. (See Water Ways, June 24.)

Panesko tells me that a big challenge for tideland owners is that legal descriptions on deeds have become muddled as property has changed hands over the years.

“I’ve seen many current deeds for waterfront properties that include tidelands but fail to articulate the exact tidal boundary of the tidelands,” he wrote in an e-mail. “Also, as your article hints at, establishing the exact location of tidal boundaries on the beach really does require the sophisticated services of a competent surveyor. GPS devices don’t help much with regard to tidal elevations.”

While the Washington State Supreme Court has not defined the limits of the Public Trust Doctrine, courts in other states continue to address the issue. In some states, water resources and even habitat for wildlife are being included as holdings in “public trust.”

The case for beach-walking was nip and tuck for the shores of the Great Lakes in Michigan as recently as 2005. In Glass v. Goeckel, property rights advocates were delighted in 2004, when the Michigan Court of Appeals ruled that people could not walk along the beach unless their feet were in the water. (See Michigan Land Institute, July 27, 2004.). But about a year later, Michigan residents were back strolling the beach on dry land. (See MLI, Aug. 2, 2005.)

It is, as they say, an evolving matter of law.

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Letters spell out state’s position on shoreline rules

It’s a pretty good bet that the Washington State Supreme Court will take another shot at deciding when a city or county Critical Areas Ordinance applies to shorelines.

Two conflicting state Court of Appeals decisions have each talked about the uncertainty brought about by the high court’s failure to muster a majority to spell out what happens when a county has updated its shoreline buffers and other regulations through a Critical Areas Ordinance.

The court seems to have determined that local shoreline regulations should be approved through the Shorelines Management Act, not the Growth Management Act. The real question now is whether approved Critical Areas Ordinances can be used until the shoreline updates are complete.

A letter from the Washington State Attorney General’s Office lends support to the idea that some counties may keep using their Critical Areas Ordinance for shorelines, at least temporarily. See my story in Saturday’s Kitsap Sun.

I wrote about this issue when state Rep. Jan Angel, R-Port Orchard and Rep. Joel Kretz, R-Wauconda, wrote letters questioning the “guidance” given to counties by the Washington state departments of Ecology and Commerce. See Kitsap Sun story from Nov. 2.

So far, the Supreme Court has not announced whether it will accept an appeal of the Kitsap County case for review. But it’s hard to imagine, given all the different opinions flying around, that the court wouldn’t want to direct the traffic.

You may wish to read the letters:

Letter from Attorney General Rob McKenna (PDF 3.1 mb)

Joint Letter from Ecology Director Ted Sturdevant and Commerce Director Rogers Weed (PDF 118 kb)

Original letter from Angel and Kretz (PDF 172 mb)

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Kitsap County officials are knee-deep in shoreline issues

UPDATE #2, Oct. 20
Kitsap County commissioners have decided to appeal the latest court ruling to the Washington State Supreme Court. See the story I wrote for the Oct. 20 Kitsap Sun.

UPDATE, Sept. 25
Kitsap County commissioners have decided to ask the court to reconsider its ruling that would invalidate the county’s Critical Areas Ordinance when it comes to shorelines. See the story I wrote for today’s Kitsap Sun. I will have more details as they become available.
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While Kitsap County officials gear up to rewrite the county’s Shoreline Management Master Program, they have been handed a hot potato they cannot ignore.

As I describe in a story in today’s Kitsap Sun, the Washington State Court of Appeals has thrown out the county’s shoreline buffers written into law when the county commissioners updated the Critical Areas Ordinance.

Property-rights advocates feel vindicated, and rightfully so. They have spent their own money — more than $100,000 — to fight a county they feel should be standing up for their rights. (See Karl Duff’s column from Feb. 25.) Meanwhile, the county uses public money to fight them back. Victory is sweet for the winners, but it comes at a price.

I hate to say it, but that’s the way things go. When environmental advocates win, they also wonder why they have wasted money battling the government. And if you are a government official, you try not to lose to either side — which is not easy in a case like this, because both sides were suing them at the same time.

Supporters of property rights have many grievances, and they have a right to speak up. But this week’s court decision must be kept in perspective.

Did the county commissioners violate private property rights when they increased shoreline buffers? Did they rely on the wrong scientific studies? Did they mistakenly apply uniform buffers when they should have considered the ecological value of each shoreline segment?

Maybe, maybe not. But the court never got to those questions. Let me recount the history.

Four years ago, when the county was updating its Critical Areas Ordinance (see Title 19), the commissioners essentially decided to leave 35-foot shoreline buffers in place until they updated the Shoreline Management Master Program (see Title 22). At that time, they thought the update would be just a year or two away.

The Central Puget Sound Growth Management Hearings Board ruled that the commissioners could not follow that course of action, because such buffers would not adequately protect habitat for salmon, some of which are listed under the Endangered Species Act.

So the commissioners went back to the drawing board and approved new shoreline buffers of 50 feet for urban areas and 100 feet for rural and semi-rural areas. They said the buffers would get closer scrutiny and might even be reduced during the shorelines plan update.

Those buffers were challenged on multiple grounds by the Kitsap Alliance of Property Owners. KAPO’s arguments were rejected by the hearings board (which was not allowed to address constitutional issues) and by Superior Court Judge Craddock D. Verser, who ruled that the county had followed “a reasoned process to address the necessity of protecting the identified functions and values” of critical areas. See my story of July 2, 2008.

That was before the State Supreme Court handed down a decision that interpreted the intertwined Growth Management Act and Shorelines Management Act as saying shorelines rules can be changed only by amending the county’s shorelines plan. See my story from Aug. 1, 2008.

And that was the controlling factor in this week’s decision. The county commissioners — and KAPO — were right the first time when they tried to delay any significant action on shoreline buffers. The appeals court acknowledged the confusion created for cities and counties by the Legislature and the State Supreme Court. You can review the comments in my story today or read the Appeals Court opinion for yourself.

Why does it matter whether the buffers are approved under one law or another? Besides the legal process, it is important to understand that the laws are distinct in their philosophies and procedures.

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