Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1991 NO. 8 > Mar 11 1991

1.  Laws of 1919, ch. 166, which was repealed in 1949, granted owners of Bush Act tidelands the right to cultivate clams in addition to oysters.  Article 8, sections 5 and 7, of the Washington Constitution, prohibit gifts of public funds.  Under the court's contemporary construction of article 8, sections 5 and 7, Laws of 1919, ch. 166 is not clearly unconstitutional and anyone challenging the law would have a heavy burden of establishing beyond a reasonable doubt that the law is unconstitutional. 2.   Rights acquired under a statute can vest if one substantially changes position in reliance on the statute, even if it is later repealed.  The repeal of Laws of 1919, ch. 166, in 1949, did not extinguish the right to cultivate clams granted by the law for those owners of Bush Act tidelands who were cultivating clams in 1949 when the act was repealed.  3.   When the Legislature repealed Laws of 1919, ch. 166, it did not indicate how long any vested right to cultivate clams might continue.  The Legislature may adopted legislation to eliminate or phase out whatever vested rights remain to cultivate clams, provided that the conditions under which such rights are phased out or discontinued are reasonable.