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AGO 1963 No. 46 - August 05, 1963
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John J. O'Connell | 1957-1968 | Attorney General of Washington


OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF NATURAL RESOURCES ‑- BED OF OCEAN BEYOND OUTER HARBOR LINES ‑- AUTHORITY OF DEPARTMENT TO LEASE FOR PURPOSES OF OIL AND GAS EXPLORATION.

Section 1, Article XV, of the Washington State Constitution as amended by Amendment 15, does not prohibit the department of natural resources from leasing to private corporations submerged land located seaward from the outer harbor lines for the purposes of oil and gas exploration.

                                                              - - - - - - - - - - - - -

                                                                  August 5, 1963

Honorable Bert L. Cole
Commissioner of Public Lands
Public Lands-Social Security Building
Olympia, Washington

                                                                                                                Cite as:  AGO 63-64 No. 46

Dear Sir:

            By letter previously acknowledged, you have requested our opinion on a question which we have paraphrased as follows:

            Does § 1 of Article XV, of the Washington Constitution, as modified by Amendment 15, prohibit the department of natural resources from leasing to private corporations the bed of the ocean beyond established outer harbor lines for the purpose of oil and gas exploration?

            We answer your question in the negative.

                                                                     ANALYSIS

            1. RCW 79.14.020 authorizes the department of natural resources to ". . . leasepublic lands for the purpose of prospecting for, developing and producing oil, gas or other hydrocarbon substances."  As used therein, "public lands" are defined in RCW 79.14.010 (1), as

            ". . . Lands and areas belonging to or held in trust by the state,including tide and submerged lands of the Pacific Ocean or any arm thereof. . ."  (Emphasis supplied.)

            Section 1 of Article XV, of the Constitution of this state, as modified by Amendment 15, provides:

             [[Orig. Op. Page 2]]

            "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.  Any harbor line so located or established may thereafter be changed, relocated or re‑established by the commission pursuant to such provision as may be made therefor by the legislature.  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 within not 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.)

            The question presented relates to whether the power to lease submerged lands granted to the department of natural resources under chapter 79.14 RCW, applies to state owned submerged lands "beyond" an outer harbor line.1/   The answer to this question depends upon the meaning of the underlined portion of Article XV.

            When a portion of a constitutional provision is subject to several interpretations, the courts must resort to the rules of constitutional and statutory construction for assistance in determining its meaning 16 C.J.S., Constitutional Law, § 15 (1956).  The "polestar" in the construction of constitutions is to give effect to the intent of the framers of the constitution and the people who adopted it.  11 Am.Jur., Constitutional Law § 61, p. 674 (1937); State v. Clausen, 85 Wash. 260, 148 Pac. 28 (1915); State ex rel. Linn v. Superior Court, 20 Wn.2d 138, 146 P.2d 543 (1944).

             [[Orig. Op. Page 3]]

            In situations such as are presented here, the language in question must be considered in relation to the entire constitutional provision, and in light of the purpose and objective of the section of which it is a part.  Crippen v. Pulliam, 161 Wash. Dec. 728 (1963 [[61 Wn.2d 725)]].

            Our research has led us to no opinions of the supreme court of this state which expressly discuss its meaning.  Further, because the provision is unique in that similar provisions are not found in constitutions of sister states, opinions of the courts of these states provide no assistance.  State ex rel. Denny v. Bridges, 19 Wash. 44, 47, 52 Pac. 326 (1898); Meyers, Constitution of the United States and of the State of Washington, Appendix, p. 222 (1961-1962 ed.).

            Opinions of the state supreme court construing other portions of Article XV, § 1, are helpful, however, in that they provide the reasons for the inclusion of the provision in the constitution.  These reasons can be stated as follows:

            1. To prevent the control of waterfronts of cities from falling into private hands.

            2. To insure that there would always be access ways, unimpeded in any manner whatever, from these waterfronts to the shipping lanes of the Pacific Ocean and Puget Sound.

            3. To retain state control over harbors.

            See,State ex rel. Denny v. Bridges, supra, 47; Chlopeck Fish Company v. Seattle, 64 Wash. 315, 323, 117 Pac. 232 (1911).  See, also, Rosenow, Journal of the Washington State Constitutional Convention, pp. 782-789 (1962).

            Further, in harmony with the established rule that constitutional provisions are to be liberally construed to the end that the purposes or reasons for their inclusion are effectuated, our supreme court has, in determining the meaning of other "troublesome" language in the same section of the constitution, adopted a liberal approach to its interpretation.  State ex rel. Hulme v. Grays Harbor & Puget Sound Ry. Co., 54 Wash. 530, 103 Pac. 809 (1909);State ex rel. Bloedel-Donovan v. Savidge, 144 Wash. 302, 258 Pac. 1 (1927).

            With these observations in mind, we proceed to answer your question.

            In our opinion, it was not the intent or purpose of the constitutional framers to bar absolutely and completely the development of the natural resources located in thebeds beyond the outer harbor lines.  State ex rel. Hulme v. Grays Harbor & Puget Sound Ry. Co., supra.  Rather, the  [[Orig. Op. Page 4]] constitutional prohibition against "giving, selling, or leasing to any private parties" waters beyond the outer harbor line was placed in our constitution for the purpose of retaining this space beyond the harbor lines now occupied by water under control of the state and keeping it completely free from all structures or other artificial bodies which would impede the use of these waters by ships and other forms of water-borne transportational devices.

            While it is true that the framers intended that utilization of thearea landward from the harbor lines was to be limited to specified types of structures and activities, i.e., ". . . landings, wharves, streets and other conveniences of navigation and commerce," we are unable to find any prohibition against the leasing of the beds beyond these lines.  Rather the language of Article XV, § 1, expressly limits the prohibition to the waters only.  In other words, the language of this constitutional restriction relates only to placing of navigational impediments within the space now occupied by waters beyond the outer harbor lines.2/

             We therefore conclude, and you are advised, that leasing to private corporations of submerged land located seaward from the outer harbor lines for the purpose of exploration and development of oil and gas is not prohibited by Article XV, § 1, of the Constitution of this state.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

CHARLES B. ROE, JR.
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/The powers given to the commissioner of public lands by RCW 79.14.020 were transferred to the department of natural resources by RCW 43.30.130.

2/The Harbor Line Commission undoubtedly has jurisdiction to regulate and control operations under any oil and gas lease issued pursuant to chapter 79.14 RCW.  CompareGrill v. Meydenbauer Bay Yacht Club, 161 Wash. Dec. 431 (1963 [[61 Wn.2d 432)]].  We express no opinion as to the mode and extent of such regulation.

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