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AGLO 1981 No. 14 - May 14, 1981
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

LANDS ‑- PUBLIC ‑- TIDELANDS ‑- OYSTER PLANTING ‑- SALE OF CERTAIN STATE TIDELANDS

The entitlement granted to purchasers of state‑owned tidelands for oyster growing by § 9, chapter 24, Laws of 1895 (Bush Act) to purchase substitute tidelands at a later date if the original tidelands became ". . . unfit and valueless for the purposes of oyster planting, . . ." was effectively preserved by § 1, chapter 47, Laws of 1935, notwithstanding the general repeal of chapter 24, Laws of 1895 by that latter enactment; however, the later enacted "Gissberg Amendment," chapter 217, Laws of 1971 (RCW 79.01.470), prohibits the state from selling either (a) state‑owned reversionary rights in tidelands previously sold under the Bush and Callow Acts (chapters 24 and 25, Laws of 1895) or (b) other state‑owned tidelands to persons seeking to exercise their right or privilege of substitution under § 9, chapter 24, Laws of 1895, supra.

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                                                                   May 14, 1981

Honorable Paul H. Conner
St. Sen., 24th District
195 Pinnell Road
Sequim, Washington 98382                                                                                                               Cite as:  AGLO 1981 No. 14

Dear Sir:

            By recent letter you requested our opinion on two related questions which we paraphrase as follows:

            (1) Was the entitlement granted to purchasers of state‑owned tidelands for oyster growing by § 9, chapter 24, Laws of 1895 (Bush Act) to purchase substitute tidelands at a later date if the original tidelands became ". . . unfit and valueless for the purposes of oyster planting, . . ." effectively preserved by § 1, chapter 47, Laws of 1935, notwithstanding the general repeal of chapter 24, Laws of 1895 by that latter enactment?

             [[Orig. Op. Page 2]]

            (2) Does the "Gissberg Amendment," chapter 217, Laws of 1971 (RCW 79.01.470), prohibit the state from selling either (a) state‑owned reversionary rights in tidelands previously sold under the Bush and Callow Acts (chapters 24 and 25, Laws of 1895) or (b) other state‑owned tidelands to persons seeking to exercise their right or privilege of substitution under § 9, chapter 24, Laws of 1895?

            We answer both questions in the affirmative for the reasons stated below.

                                                                     ANALYSIS

            Question (1):

            Chapter 24, Laws of 1895, known as the Bush Act, was an act relating to oyster cultivation which was passed to encourage the oyster industry in this state.  It provided for the sale of not more than one hundred acres of tidelands, at $1.25 per acre, to any qualified individual for use only for oyster planting and cultivation.  And, if those tidelands became unfit or valueless for the purpose of oyster growing, the owner was "entitled" to again purchase a substitute tract.  See, § 9, chapter 24,supra, which provided as follows:

            "If from any cause any tract or tracts, parcel or parcels of land purchased under the provisions of this act shall become unfit and valueless for the purposes of oyster planting, the party having so purchased and being in the possession of the same may upon certifying such fact under oath to the commissioner of public lands and to the auditor of the county wherein such lands are situated and also upon filing under oath a certificate of abandonment of such tract or tracts, parcel or parcels of land, in the office of each of said officials,such party shall then be entitled to again make purchases as hereinbefore provided; or if said land be used by the purchasers or any successors in interest of such purchaser in whole or in part for  [[Orig. Op. Page 3]] other than the purposes specified in this act, then upon application by any citizen to the state land commissioner such sale may be canceled, and the said land shall revert to the state and shall be subject to sale as herein provided, but not to such defaulting purchaser or such defaulting successor in interest."1/   (Emphasis supplied)

            Your first question involves in the impact on this last quoted provision of the Bush Act of § 1, chapter 47, Laws of 1935.  That enactment, which repealed both the Bush Act and its companion, the Callow Act (chapter 25, Laws of 1895), read as follows:

            "That chapters XXIV (24) and XXV (25) of the Laws of 1895, pages 36 to 41, are hereby repealed:  PROVIDED, That nothing herein shall be construed as affecting any rights acquired under said acts repealed, or either thereof, or the state's reversionary interests therein:  AND PROVIDED FURTHER, That the commissioner of public lands may complete any applications properly filed in his office under the provisions of said chapter XXIV (24) prior to the date upon which this act takes effect."

            The issue to be resolved is thus whether the opportunity to obtain substitute tidelands under § 9 of the Bush Act, supra, was in the nature of a right or, instead, a mere privilege.  Conversely, the question does not call for discussion of the well-understood distinction between a vested right and a contingent right2/ because the first proviso in § 1 of chapter 47, supra (by which the legislature preserved ". . . any rights  [[Orig. Op. Page 4]] acquired under said acts repealed, . . .") makes no distinction between those two classes of legal rights.

            In support of the suggestion that only a privilege, and not right, was granted by the 1895 provision, it is argued that a number of conditions had to occur before a previous purchaser of tidelands could exchange those tidelands for substitute parcels.  In addition, it is argued that § 9, supra, merely afforded a privilege of applying for the purchase of substitute oyster tracts with greater potential for oyster cultivation, assuming their availability.

            But that is not what the statute said.  Rather, once again, upon occurrence of the specified conditions, it provided that,

            ". . . such party shall then be entitled to again make purchase as hereinbefore provided; . . ."

            We also note that § 4 of the Bush Act expressly used the word "right" in providing, with reference to an initial purchase of tidelands thereunder, as follows:

            "Any person having theright to purchase such tide lands as provided by this act, and being an actual occupant of the same, shall have the prior right to purchase for a period of six months from and after the passage of this act and its being signed and approved by the governor."  (Emp. Sup.)

            We therefore answer your first question in the affirmative.  That which was granted to purchasers of state‑owned tidelands for oyster growing by § 9, chapter 24, Laws of 1895 (Bush Act) was a right, and not a mere privilege, to purchase substitute tidelands at a later date if the original tidelands became ". . . unfit and valueless for the purposes of oyster growing . . ."  Accordingly, that right was effectively preserved by § 1, chapter 47, Laws of 1935,supra, notwithstanding the general repeal of chapter 24, Laws of 1895, by the latter enactment.

             [[Orig. Op. Page 5]]

            Question (2):

            Repeated for ease of reference, this second question, as above paraphrased, asks:

            Does the "Gissberg Amendment," chapter 217, Laws of 1971 (RCW 79.01.470), prohibit the state from selling either (a) state‑owned reversionary rights in tidelands previously sold under the Bush and Callow Acts (chapters 24 and 25, Laws of 1895) or (b) other state‑owned tidelands to persons seeking to exercise their right or privilege of substitution under § 9, chapter 24, Laws of 1895?

            We quote, in full, the text of the subject amendment, in the form of § 2, chapter 217, Laws of 1971 (since codified as RCW 79.01.470), as follows:

            "This section shall only apply to:

            "(a) First class tidelands as defined in RCW 79.01.020;

            "(b) Second class tidelands as defined in RCW 79.01.024;

            "(c) First class shorelands as defined in RCW 79.01.028; and

            "(d) Second class shorelands as defined in RCW 79.01.032.

            "(e) Waterways as described in RCW 79.01.428.

            "(2) Notwithstanding any other provision of law, from and after August 9, 1971, all tidelands and shorelands enumerated in subsection (1) owned by the state of Washington shall not be sold except to public entities as may be authorized by law or except as provided in section 2 of this 1974 amendatory act, and shall not be given away.

             [[Orig. Op. Page 6]]

            "(3) Tidelands and shorelands enumerated in subsection (1) may be leased for a period not to exceed fifty-five years:  PROVIDED, That nothing herein shall be construed as modifying or canceling any outstanding lease during its present term.

            "(4) Nothing herein shall:

            "(a) be construed to cancel an existing sale contract;

            "(b) prohibit sale or exchange of beds and shorelands where the water course has changed and the area now has the characteristics of uplands;

            "(c) prevent exchange involving state‑owned tide and shorelands."

            With that statutory language in mind, we will deal, first, with part (b) of your question which asks whether the Gissberg Amendment now prohibits the sale of other state‑owned tidelands to persons seeking to exercise their right of substitution under § 9, chapter 24, Laws of 1895, assuming that (as we have heretofore concluded) it survived the passage of § 1, chapter 47, Laws of 1935,supra.  We believe that it does.  In essence, the Gissberg Amendment has caused those tidelands to which it refers to no longer be legally available for sale to any private entity.  Accordingly, the state is no longer required to honor that right because of legal impossibility‑-assuming that the substitute tidelands being sought are within the purview of the 1971 prohibition.3/

             [[Orig. Op. Page 7]]

            We also answer part (a) of your second question in the affirmative.  Under both the Bush and Callow Acts, what the tideland purchasers obtained was a fee simple interest subject to a reverter upon occurrence of a condition subsequent.  Accord,Halvorsen v. Pacific County, 22 Wn.2d 532, 156 P.2d 907 (1945).  Thus, by the same token, the state's reversionary interest in those tideland tracts was also in the nature of a property interest.  Accord, RCW 79.01.560 by which the legislature, in 1925, permitted the owners of those tideland tracts sold under the Bush and Callow Acts to apply for the purchase of the state's "reversionary right" in those tidelands.4/   But, obviously, for the state to convey its reversionary interest in those tidelands to the private owner of the conditional fee, resulting in a merger of title, would be tantamount to conveying an unconditional fee in the tidelands into private ownership‑-especially since the fee would then be unencumbered, obviating any obligation to use the lands for oyster cultivation purposes.

            We therefore see no distinction between the sale of a fee interest in state‑owned tidelands, which would clearly be in violation of the moratorium established under the "Gissberg Amendment," supra, and a conveyance of the state's reversionary interest in those same tidelands to the fee simple owner.  The result is the same and, therefore, in our opinion both transactions are prohibited.

            We also note that the Department of Natural Resources' interpretation of RCW 79.01.470,supra, is consistent with this construction of legislative intent.  Since the passage of the Gissberg Amendment in 1971, the department has, without exception, refused to convey any fee interest in aquatic lands.  And, in so doing, the department has consistently treated any conveyance of reversionary rights, considering their substantial value, to be tantamount to a fee conveyance and, therefore, also in violation of the amendment.  Such an administrative interpretation of legislation by the agency responsible for carrying out its provisions is to be given considerable weight.  Washington State Nurses' Association v.  [[Orig. Op. Page 8]]Board of Medical Examiners, 93 Wn.2d 117, 605 P.2d 1269 (1980); Bazan v. Department of Social and Health Services, 26 Wn.App. 16, 612 P.2d 413 (1980).

            This completes our consideration of your questions.  It is hoped that the foregoing will be of assistance to you.

Very truly yours,

KENNETH O. EIKENBERRY
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/The reference therein was to the preceding sections of the Bush Act which spelled out the method for application to purchase, those persons qualified to purchase, and the price per acre to be paid.   See, §§ 1 through 8, chapter 24, Laws of 1895.  The language of § 9 was included in many of the deeds issued to purchasers.

2/See, e.g.,Adams v. Ernst, 1 Wn.2d 254, 95 P.2d 799 (1939).

3/In this regard we agree with one point made by those urging a negative answer to question (1); namely, that the "right" or "privilege," as the case may be, which was granted by § 9 of the Bush Act could only be honored by the state if substitute tidelands were available to be sold to the applicant.   And by that, we mean both factually and legally available.

4/See, §§ 1 and 2, chapter 190, Laws of 1925, 1st Ex. Sess., as amended by § 140, chapter 255, Laws of 1927, now codified as RCW 79.01.560.

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