OFFICES AND OFFICERS ‑- STATE ‑- HARBOR LINE COMMISSION ‑- RELOCATION OF HARBOR LINES
The state harbor line commission has the authority to relocate either the inner or outer harbor lines in front of so much of the city of Seattle as borders upon Elliott Bay but it may only do so in accordance with the limitations contained in Article XV, § 1 of the state constitution and for a public purpose.
- - - - - - - - - - - - -
October 15, 1976
Honorable Bert L. Cole
Commissioner of Public Lands
Olympia, Washington 98504 Cite as: AGLO 1976 No. 62
By letter previously acknowledged you have requested our opinion on certain questions relating to the relocation of harbor lines by the state harbor line commission. We have paraphrased your questions as follows:
(1) Does the harbor line commission have the authority to relocate either the inner or outer harbor lines in front of so much of the city of Seattle as borders upon Elliott Bay?
(2) If the harbor line commission has the authority to relocate such harbor lines, what, if any, legal limitations are there with respect to the exercise of that authority?
We answer question (1) in the affirmative and question (2) as set forth in our analysis.
As originally adopted in 1889, Article XV, § 1 of the Washington constitution read as follows:
"The legislature shall provide for the appointment of a commission whose duty it shall be to locate and establish harbor lines in the navigable waters of all harbors, estuaries, bays and inlets of this state, wherever such navigable waters lie within or in front of the corporate limits of any city or within one mile thereof on either side. The state shall never give, sell or lease to any private person, corporation or association any rights whatever in the waters beyond such harbor lines, nor shall any of the area lying between any harbor line and the line of ordinary high tide, and within not less than fifty feet nor more than six hundred feet of such [[Orig. Op. Page 2]] harbor line (as the commission shall determine) be sold or granted by the state, nor its right to control the same relinquished, but such area shall be forever reserved for landings, wharves, streets and other conveniences of navigation and commerce."
In the early case ofWilson v. State Land Commissioners, 13 Wash. 65, 42 Pac. 524 (1895), however, our state supreme court held that harbor lines, when once established pursuant to this constitutional provision, ". . . shall ever remain so . . .," thus precluding the legislature from authorizing or directing the disestablishment or alteration of those lines. This, in turn, remained the state of the law until 1932 when, by their approval of the 15th Amendment to the state constitution, the people added the following provision to Article XV, § 1:
". . . Any harbor line so located or established may thereafter be changed, relocated or reestablished by the commission pursuant to such provision as may be made therefor by the legislature. . . ."
In addition, by this same 1932 constitutional amendment, the language of the final sentence of Article XV, § 1, supra, was changed to read as follows:
". . . The state shall never give, sell, or lease to any private person, corporation, or association any rights whatever in the waters beyond such harbor lines, nor shall any of the area lying between any harbor line and the line of ordinary high water, and withinnot less than fifty feet nor more than two thousand feet of such harbor line (as the commission shall determine) be sold or granted by the state, nor its rights to control the same relinquished, but such area shall be forever reserved for landings, wharves, streets, and other conveniences of navigation and commerce." (Emphasis supplied.)
In actual practice over the years, the external line referred to in this provision has come to be known as the outer harbor line while the internal boundary of a harbor area ‑ which under the 15th Amendment must now be not less than fifty nor more than 2000 feet inward from the outer harbor line ‑ is commonly referred to (quite naturally) as theinner harbor line. It is thus to those property rights which are beyond the outer harbor line that the first clause of the last sentence of Article XV, § 1 refers when it says:
[[Orig. Op. Page 3]]
". . . The state shall never give, sell, or lease to any private person, corporation, or association any rights whatever in the waters beyond such harbor lines, . . ."
Conversely, property rights situated within any harbor area (i.e., between the outer and inner harbor lines), while likewise being constitutionally prohibited from being sold or granted by the state, may nevertheless be leased so long as the resulting use remains consistent with the constitution's perpetual reservation of such areas ". . . for landings, wharves, streets, and other conveniences of navigation and commerce."
In addition, although beyond the scope of this opinion, a brief note should be made of the legal status of tidelands situated between an inner harbor line and the line of ordinary high tide. Constitutionally speaking, such tidelands may, if owned by the state, be leased or sold in the same manner as other state lands not subject to a restraint on use or allocation. Statutorily, however, those tidelands may not presently be leased for a term of more than fifty years and they may not be sold except to other public agencies or given away to any one. See, RCW 79.01.470. Furthermore, depending upon the facts of a particular case it should be noted that regardless of their ownership status the use of those "tidelands" (such as might be created by the outward relocation of an inner harbor line) actually constituting the beds of navigable waters may be legally impacted by the public rights doctrine for which, in our own state, the leading case is Wilbour v. Gallagher, 77 Wn.2d 306, 462 P.2d 232 (1969).1/ See, also, the Shoreline Management Act of 1971, chapter 90.58 RCW, which was enacted by the legislature as an apparent response to theGallagher decision.
Finally, before proceeding forward from 1932 (the year of the 15th Amendment) another historical incident should be noted. A number of years earlier the legislature had enacted another statute2/ authorizing changes in inner harbor lines only. See, RCW 79.01.424. That statute, which codifies § 106, chapter 255, Laws of 1927, but owes its origin to § 87, chapter 178, Laws of 1895, reads as follows:
[[Orig. Op. Page 4]]
"Whenever it appears that the inner harbor line of any harbor area heretofore determined has been so established as to overlap or fall inside of the government meander line, or for any other good cause, the board of state land commissioners is empowered to relocate and reestablish said inner harbor line so erroneously established, outside of said meander line, and all tidelands within said inner harbor line so reestablished and relocated, may be sold as other tidelands of the first class in accordance with the provisions of this chapter." (Emphasis supplied.)
Bearing the foregoing explanation of Article XV, 1, in mind it will thus be seen that the twoimmediate effects of Amendment 15 were (1) the removal of a possible constitutional cloud from this last quoted legislative enactment3/ and (2) a widening of the maximum permissible width of a harbor area from 600 to 2,000 feet. But as we have just noted the prior statute which was thus affected dealt only with changes in the inner harbor line of an established harbor area. Of somewhat greater relevance to your immediate question, therefore, is a much more recent legislative act clearly related to, and passed in implementation of, the constitutional amendment. We have reference to § 1, chapter 139, Laws of 1963 (uncodified), as still more recently amended by § 1, chapter 158, Laws of 1971, Ex. Sess. (uncodified) and § 1, chapter 69, Laws of 1972, Ex. Sess. (uncodified). The full text of this specific legislative authorization reads as follows:
"The commission on harbor lines is hereby authorized to change, relocate, or reestablish harbor lines in Guemes Channel and Fidalgo Bay in front of the city of Anacortes, Skagit county; in Grays Harbor in front of the cities of Aberdeen, Hoquiam, and Cosmopolis, Grays Harbor county; Bellingham Bay in front of the city of Bellingham, Whatcom county; in Elliott Bay, Puget Sound and Lake Union within, and in front of the city of Seattle, King county, and within one mile of the limits of such city; [[Orig. Op. Page 5]] Port Angeles harbor in front of the city of Port Angeles, Clallam county; in Lake Washington in front of the city of Renton, King county; Commencement Bay in front of the city of Tacoma, Pierce county, and within one mile of the limits of such city; Budd Inlet in front of the city of Olympia, Thurston county; the Columbia River in front of the city of Kalama, Cowlitz county; Port Washington Narrows and Sinclair Inlet in front of the city of Bremerton, Kitsap county; Sinclair Inlet in front of the city of Port Orchard, Kitsap county." (Emphasis supplied.)
It is on the basis of the express language of this enactment, with particular reference to the portion which we have above underscored, that we here may answer your first question in the affirmative. Unlike RCW 79.01.424,supra, this more recent legislation, while it is limited to certain described geographic areas, speaks of any harbor lines within those areas and not merely to inner harbor lines. Accordingly, by reason of this more recent act of the legislature it is our opinion that the harbor line commission does have the authority to (in the words of your question) ". . . relocate either the inner or outer harbor lines in front of so much of the city of Seattle as borders upon Elliott Bay. . ."
The first issue to be discussed in responding to your second question has to do with the meaning and effect of chapter 139, Laws of 1963, supra, as amended, in view of the apparent absence therefrom of any legislatively prescribed standards or guidelines. Ordinarily, when the legislature authorizes an administrative agency to adopt rules or regulations of a quasi legislative nature it is required ‑ in order to avoid an unconstitutional deligation of legislative authority ‑ to include at least minimal standards or guidelines. Accord,Barry & Barry v. Dep't of Motor Veh., 81 Wn.2d 155, 500 P.2d 540 (1972), and cases cited therein.
Aside from the fact, however, that this office as a matter of policy must attach a presumption of constitutionality to chapter 139, Laws of 1963,supra,4/ it is our opinion that [[Orig. Op. Page 6]] the foregoing constitutional requirements are simply not applicable with regard to the validity of that law or, for that matter, to any other law which is enacted under Article XV, § 1 (Amendment 15),supra. Under that section of the constitution the function of establishing harbor lines is not now, and never has been, a legislative function. Instead it is (and has been since 1889) an administrative function ‑ performed by an administrative agency (the harbor line commission) in accordance with a direct constitutional authorization. Therefore when the legislature, in implementation of the 15th Amendment, enacts a law such as chapter 139, Laws of 1963, supra, it is merely enabling the harbor line commission (in the manner provided for by the amendment) to perform what is now also a constitutional function ‑ that of changing previously established harbor lines.
This is not to say that the legislature may not, as a matter of policy, include specific standards or guidelines in any law which it passes under the 15th Amendment. In our judgment it very definitely may do so, and if it does, those standards or guidelines will be binding upon the harbor line commission. All that we are here saying, by way of introduction to our discussion of your second question, is that the inclusion of such standards or guidelines is not constitutionally required in the case of a law such as chapter 139,supra. With this explanation in mind we may now proceed to consider what we see as the true legal issue which is raised by the second portion of your present opinion request; i.e., (as above paraphrased) what, if any, legal limitations are there with respect to any exercise, by the harbor line commission, of its authority to relocate harbor lines ". . . in front of so much of the city of Seattle as borders upon Elliott Bay . . .?"
Because chapter 139,supra, is also silent on this question we must look elsewhere for an answer. Having done so we may begin by saying that, insofar as our research has disclosed, there is likewise presently in effect no other statute, either, which limits the authority of the harbor line commission in changing harbor lines. Thus, it seems to us that what we must basically be concerned with are, simply, [[Orig. Op. Page 7]] the same criteria as would apply, under Article XV, § 1,supra, itself, to an initial establishment of harbor lines. Clearly the harbor line commission must, in effect, live within the confines of the same constitutional limitations in changing harbor lines as governed it, at the outset, in the initial establishment of such lines. Therefore the primary question to be answered in connection with any such change is whether the proposed "new" harbor line or lines could, constitutionally, have been established by the commission in the first place.
First, and quite obviously, it will be seen that under the constitution, as amended in 1932, the harbor area encompassed by either any new or any altered harbor lines must at all times remain at least 50 feet and not more than 2,000 feet in width. Thus, for example, if an inner harbor line is moved seaward to such an extent as to cause it to come within 50 feet of the corresponding outer harbor line, the latter line will then also have to be moved seaward by at least the same distance as well.5/
Secondly, looking at the apparent underlying purpose of Article XV, § 1, supra, it would be our opinion that changes in existing harbor lines must be made in such a manner as not to detract from the continuing existence of a truly viable harbor area which remains adequate for (in the words of the constitution) ". . . landings, wharves, streets and other conveniences of navigation and commerce." In some instances, presumably, that viability will require a width between the inner and outer harbor lines of considerably more than the minimum of 50 feet specified in the constitution. In fact, in some cases the full maximum width of 2,000 feet may be required. And, of course, this requirement of continuing viability also means that any resulting relocated harbor area must remain in navigable waters and not extend above the line of ordinary high tide.
Thirdly, because of the legal attributes which a harbor area must have under the constitution the commission may not, in establishing or relocating harbor lines, cause to be included within a harbor area any privately held tidelands or shorelands or any other area the ownership of or control over which has been lost to the state for any reason. In other words, whatever area remains within a relocated harbor area must be withinstate ownership or control so as [[Orig. Op. Page 8]] to enable the state to cause it to be effectively reserved for the uses specified in the constitution (landings, etc., supra) as a waterfront which ". . . should always be maintained for the use and benefit of all of the people of this state." See,State ex rel. Bloedel-Donovan L.M. v. Savidge, 144 Wash. 302, 258 Pac. 1 (1927), at p. 308.
This last proposition, in turn, leads us to one further "limitation" which we would be remiss in not to at least mention in closing ‑ although it perhaps goes without saying. Aside from the particular requirements of Article XV, § 1, supra, with regard to the establishment or alteration of harbor lines it is, of course, basic under well-established common-law principles that, as in the case of any public agency, the harbor line commission may only exercise its powers in the public interest. As stated in 63 Am.Jur.2d, Public Officers and Employees, at pp. 791-2:
"The obligations of public officers as trustees for the public are established as a part of the common law, fixed by the habits and customs of the people. Among their obligations as recipients of a public trust are to perform the duties of their offices honestly, faithfully, and to the best of their ability; . . . [and] . . . to refrain from activities which will interfere with the proper discharge of their duties; . . ." (Section 275.)
"Every public officer is bound to perform the duties of his office honestly, faithfully, and to the best of his ability, in such a manner as to be above suspicion of irregularities,and to act primarily for the benefit of the public. An attempt to exercise those powers corruptly‑-as under the influence of bribery or in bad faith‑- for some improper purpose is null and void." (Section 276.) (Emphasis supplied.)
Thus, aside from whatever factors may have been considered by the commission in its initial establishment of a given harbor area it must, in later making any changes in such an area, be doing so for some legitimate public purpose and not, instead, primarily for the benefit of private individuals. Otherwise, in our judgment, the action could well be successfully challenged in the courts even though none of the other somewhat more technical, constitutional limitations which we have above outlined are violated [[Orig. Op. Page 9]] by the change in question.
This completes our response to your opinion request regarding this most interesting subject. It is hoped that the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
THEODORE O. TORVE
Assistant Attorney General
*** FOOTNOTES ***
1/Cf., Eastlake Com. Coun. v. Roanoke Assoc., 82 Wn.2d 475, 513 P.2d 36 (1973);Hayes v. Yount, 87 Wn.2d 280, P.2d (1976) and Harris v. Hylebos Indus., Inc., 81 Wn.2d 770, 505 P.2d 457 (1973).
2/I.e., a statute other than the one which was declared to be unconstitutional in Wilson v. State Land Commissioners, supra.
3/In a letter opinion dated April 15, 1914, to the Commissioner of Public Lands [[C. V. Savidge]]the attorney general at that time expressed "doubt" as to the validity of the statute because of the Wilson case, supra, even though that case did not specifically deal with changes ininner harbor lines.
4/Accord, numerous prior instances in which we have explained that:
". . . The power to declare an act constitutional or unconstitutional is vested solely in the courts. Consequently, nothing can be gained by this office expressing an opinion as to the consitutionality of a statute. A pronouncement of unconstitutionality would merely cause confusion and disorder among the administrative officers whose duty it is to give effect to the presumption of constitutionality which attaches to all laws until declared otherwise by a court of competent jurisdiction."
5/This, moreover, would also necessarily be true even if the commission was acting under RCW 79.01.424, supra, rather than pursuant to chapter 139, Laws of 1963, as amended.