OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF NATURAL RESOURCES ‑- SHORELANDS ‑- CONSTRUCTION OF PRIVATE PIER
The department of natural resources does not have the legal authority under existing law to permit an upland owner whose land abuts on second class shorelands owned by the state of Washington to construct a private pier on such shorelands without charge.
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April 7, 1977
Honorable Frances C. North
State Representative, 47th District
406 Legislative Building
Olympia, Washington 98504 Cite as: AGLO 1977 No. 15
Dear Representative North:
By recent letter you have requested an opinion from this office on a question which we paraphrase as follows:
Does the state department of natural resources have the legal authority under existing law to permit an upland owner whose land abuts on second class shorelands owned by the state of Washington to construct a private pier on such shorelands without charge?
We answer your question in the negative for the reasons set forth in our analysis.
RCW 79.01.032 defines the term "second class shorelands" to mean:
". . . public lands belonging to the state bordering on the shores of a navigable lake or river not subject to tidal flow, between the line of ordinary high water and the line of navigability and more than two miles from the corporate limits of any city."
[[Orig. Op. Page 2]]
As with all public lands belonging to the state, such shorelands are subject, generally, to administration by the state department of natural resources under the public lands act, chapter 79.01 RCW. As a state agency, the department of natural resources, in turn, may only do those things which it has been authorized by the legislature to do, either expressly or by necessary implication. Accord,State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956). A search of existing statutes, however, reveals nothing which can be said to authorize the department to permit an upland owner whose land abuts on second class shorelands, without charge, to construct a private pier on such shorelands. Moreover, because of the prohibition in our state constitution against gifts of public funds or property we would have to express a substantial doubt as to the constitutional validity of such legislation even if it were to be enacted. Cf.,Hwy. Com. v. Pac. NW Bell Tel. Co., 59 Wn.2d 216, 367 P.2d 605 (1961), construing Article VIII, § 5 of the Washington constitution to prohibit gratuituous transfers of state funds or property to private parties.
Also to be noted in connection with your question is RCW 79.01.470. That statute, which codifies § 2, chapter 217, Laws of 1971, Ex. Sess., as amended by § 1, chapter 186, Laws of 1974, Ex. Sess., reads as follows:
"(1) 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 3]]
"(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."
While RCW 79.01.470,supra, permits state‑owned shorelands to beleased ". . . for a period not to exceed fifty-five years . . .," it expressly prohibits both the sale, except to other public entities, and the gift of such shorelands ". . . from and after August 9, 1971, . . ."1/
Possibly it could be argued, in a given case, that the mere act of permitting an upland owner to build a pier on state‑owned shorelands, without charge, would not constitute a gift of any interest in the shorelands themselves but, instead, would merely be the granting of a license. It would seem to us, however, that any such permission would at least constitute the granting of an easement. But even if that were not so the result would only be that the [[Orig. Op. Page 4]] transaction in question would not beprohibited by anything in RCW 79.01.470,supra. That mere absence of a prohibition still would not constitute a basis for an affirmative response to your question because we would continue to be faced with both a lack, in any event, of the requisite statutory authority, State ex rel. Eastvold v. Maybury, supra, and with a significant constitutional prohibition.
It is hoped that the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/Interestingly, § 2 of the 1974 amendatory act was designed by the legislature to authorize sales in another category of cases quite similar to the situation which, as we understand it, has given rise to your present opinion request. Specifically, § 2 of chapter 186, supra, read, in pertinent part, as follows:
"An owner of property fronting upon publicly owned second class shorelands on freshwater navigable lakes who has constructed on the abutting shorelands and improvement having a replacement value of more than four hundred dollars prior to January 1, 1974 may apply for and shall upon such application be afforded the opportunity, prior to June 30, 1975, to purchase at the fair market value the abutting second class shoreland or so much as may be sufficient for the maintenance and use of such improvements unless the public interest is best served by maintaining such shoreland in state ownership for the benefit of the people of the state. . . ."
That section of the act, however, was vetoed by the governor and thus never became law.