Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1991 NO. 8 >

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  Laws of 1919, ch. 166, which was repealed in 1949, granted owners of Bush Act tidelands the right to cultivate clams in addition to oysters.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acquired under a statute can vest if one substantially changes position in reliance on the statute, even if it is later repealed.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clams granted by the law for those owners of Bush Act tidelands who were cultivating clams in 1949 when the act was repealed.  3.   When the Legislature repealed Laws of 1919, ch. 166, it did not indicate how long any vested right to cultivate clams might continue.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.

AGLO 1981 NO. 14 >

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.

AGO 1953 NO. 32 >

A permit to prospect and explore second-class tidelands in Snohomish and Island Counties within the limits prescribed by chapter 161, Laws of 1937, RCW 78.28.020 (the same not being proven territory) may be granted, notwithstanding the provisions of chapter 179, Laws of 1945, RCW 77.40.070, and chapter 77, Laws of 1951, RCW 77.40.090.