AGO 1977 No. 5 - Feb 16 1977
OCEAN BEACHES ‑- SEASHORE CONSERVATION AREA ‑- APPLICABILITY OF SHORELINE MANAGEMENT ACT
Identification of land included in the Seashore Conservation Area established by chapter 120, Laws of 1967 (chapter 43.51 RCW); establishment and location of Seashore Conservation Line; legally permissible uses of land within the Seashore Conservation Area; extent to which the regulation of land uses within the Seashore Conservation Area has been altered by the subsequent enactment of the Shoreline Management Act of 1971.
- - - - - - - - - - - - -
February 16, 1977
Honorable Charles H. Odegaard
Director, State Parks & Recreation
Thurston Airdustrial Center
P.O. Box 1128
Olympia, Washington 98504
Cite as: AGO 1977 No. 5
By letter previously acknowledged you requested the opinion of this office on several questions which we have paraphrased as follows:
(1) What land is included in the Seashore Conservation Area as established by chapter 120, Laws of 1967 (chapter 43.51 RCW)?
(2) What is the Seashore Conservation Line, as identified in RCW 43.51.655, and where is it located?
(3) In terms of legally permissible land uses, what is the significance of the fact that a given tract of land is located within the Seashore Conservation Area as above defined?
(4) To what extent and in what manner has the regulation of land uses within the Seashore Conservation Area been altered by the subsequent enactment of the Shoreline Management Act of 1971?
We answer the foregoing questions in the manner as set forth in our analysis.
[[Orig. Op. Page 2]]
The Seashore Conservation Act originated as chapter 120, Laws of 1967. The basic reason for that law, as spelled out in § 1 (now RCW 43.51.650), was as follows:
"The beaches bounding the Pacific Ocean from the Straits of Juan de Fuca to Cape Disappointment at the mouth of the Columbia River constitute some of the last unspoiled seashore remaining in the United States. They provide the public with almost unlimited opportunities for recreational activities, like swimming, surfing and hiking; for outdoor sports, like hunting, fishing, clamming, and boating; for the observation of nature as it existed for hundreds of years before the arrival of white men; and for relaxation away from the pressures and tensions of modern life. In past years, these recreational activities have been enjoyed by countless Washington citizens, as well as by tourists from other states and countries. The number of people wishing to participate in such recreational activities grows annually. This increasing public pressure makes it necessary that the state dedicate the use of the ocean beaches to public recreation and to provide certain recreational and sanitary facilities. Nonrecreational use of the beach must be strictly limited. Even recreational uses must be regulated in order that Washington's unrivaled seashore may be saved for our children in much the same form as we know it today."
Section 2 of chapter 120, supra, then provided that:
"There is established for the recreational use and enjoyment of the public the Washington State Seashore Conservation Area. It shall include all lands now or hereafter under state ownership lying between Cape Disappointment and Leadbetter Point; between Toke Point and the South jetty on Point Chehalis; and between Damon Point and the Makah Indian Reservation and occupying the area between the present line of ordinary high tide and the line of extreme low tide, as this line now is or may hereafter be located: Provided, That no such Conservation Area shall include any lands within the established boundaries of any Indian Reservation."
[[Orig. Op. Page 3]]
This latter section, however, was subsequently amended by § 1, chapter 55, Laws of 1969, Ex. Sess., (as presently codified in RCW 43.51.655) to read as follows:
"There is established for the recreational use and enjoyment of the public the Washington State Seashore Conservation Area. It shall include all lands now or hereafter under state ownership or control lying between Cape Disappointment and Leadbetter Point; between Toke Point and the South jetty on Point Chehalis; and between Damon Point and the Makah Indian Reservation and occupying the area between the line or ordinary high tide and the line of extreme low tide, as these lines now are or may hereafter be located,and, where applicable, between the Seashore Conservation Line, as established by survey of the Washington state parks and recreation commission and the line of extreme low tide, as these lines now are or may hereafter be located; and shall also include all state‑owned nontrust accreted lands along the ocean: Provided, That no such conservation area shall include any lands within the established boundaries of any Indian reservation." (Emphasis supplied.)
You have first asked what land is included in the Seashore Conservation Area. The answer to that question is to be found in the last above quoted section of the act, RCW 43.51.655. In order for a given tract of land to be encompassed within the Seashore Conservation Area it must:
(1) Be under state ownership or control ‑ whether as the result of a deed of dedication or because it is state‑owned nontrust accreted land.
(2) Be situated along the Pacific Ocean between the line of extreme low tide and either the line of ordinary high tide or the Seashore Conservation Line, as the case may be.
(3) Also be situated between the various geographic points referred to in RCW 43.51.655; i.e., Cape Disappointment and Leadbetter Point, Toke Point and the South jetty on Point Chehalis or Damon Point and the Makah Indian Reservation.
(4) Not be situated within the established boundaries of any Indian reservation.
[[Orig. Op. Page 4]]
This definition of the boundaries and other geographic characteristics of the Seashore Conservation Area, in turn, logically leads to your second question; that of where the Seashore Conservation Line referred to in RCW 43.51.655 is, or may be, located.
In order to focus on the basis for our answer to this question it is initially necessary to examine the thrust and consequences of certain litigation occurring in what is generally referred to as the Hughes case. On January 20, 1966, the Washington supreme court held that all accretion occurring since statehood (November 11, 1889) to land bordering waters where the tide ebbs and flows constitutes an addition to state-owned property and not to the upland property. When Washington acquired ownership of all tidelands (to the line of ordinary high tide) at the time of its admission as a state, the littoral rights of upland owners were terminated. Therefore, the Washington court reasoned, the dividing line between state‑owned tidelands and upland property is afixed line; namely, the line of ordinary high tide (which is the same as the line of mean high tide) as it existed on November 11, 1889. Hughes v. State, 67 Wn.2d 799, 410 P.2d 20 (1966).
That decision, however, was later reversed by the United States Supreme Court on December 11, 1967. Instead, the latter court held that the owner of upland property conveyed by the United States prior to statehood, and not the state of Washington, was entitled to the accretions that had been gradually formed along property bordering upon the ocean. Hughes v. Washington, 389 U.S. 290, 19 L.ed [[L.Ed.]]2d 530, 88 S.Ct. 438 (1967).
Between the time that the Hughes case was first commenced in the superior court for Pacific county and the date of its final resolution by the United States Supreme Court, approximately twenty-five similar quiet title actions were also instituted against the state. In the majority of those cases stipulations were entered into which provided that the result of the Hughes litigation would be determinative as to the rest of the cases. However, after theHughes case was decided this office filed amended answers in twenty-two of the remaining cases claiming title on the basis of long time public use to the land from the 1889 coordinate line out. Then, in early 1968, representatives of the upland owners along the Long Beach Peninsula in Pacific county indicated that they wanted an end to litigation and were willing to [[Orig. Op. Page 5]] dedicate their beaches to the state. No dedications occurred, however, until June 3, 1968, after which the state parks and recreation commission received literally hundreds of deeds of dedication giving to the state, for public use, the land lying west of what was referred to as the Seashore Conservation Line ‑ wherever that line might be established.
The Seashore Conservation Line was actually established on the Long Beach Peninsula in late May of 1968, pursuant to the express wishes of the upland property owners who had dedicated their land. Although it varies somewhat with the contour of the line of vegetation, generally it can be said that the line was established approximately one hundred feet east of the line of visible vegetation. The line is now shown as a coordinate line on Long Beach Peninsula maps and is filed as a matter of record with the Pacific county auditor.1/
The deeds of dedication referred to above provide that the Seashore Conservation Line as thus established in Pacific county is a movable line and will be reviewed and reestablished by the parks and recreation commission at the request of the owners in 1980 and every ten years thereafter. On the other hand, a Seashore Conservation Line has not yet been established in the South Beach area of Pacific and Grays Harbor counties or in any other portion of the latter county with the exception of an area of 3,700 lineal front feet in front of Ocean City.2/
Your third question asks:
In terms of legally permissible land uses, what is the significance of the fact that a given tract of land is located within the Seashore Conservation Area as above defined?
RCW 43.51.650,supra, sets forth a declaration of principles relating to the Seashore Conservation Area. It is clear from this declaration that the area set aside as the Seashore Conservation Area is to be used for recreational activities, such as swimming, surfing and hiking, and for certain outdoor sports such as hunting, fishing, clamming and boating. Furthermore, this area is set aside for the observation of nature as it existed before the arrival of white men and for [[Orig. Op. Page 6]] relaxation away from the pressures and tensions of modern life.
Also to be noted are RCW 43.51.655 which states that "There is established for the recreational use and enjoyment of the public the Washington State Seashore Conservation Area . . ." and RCW 43.51.665 which provides that:
". . . Where feasible, the area shall be preserved in its present state; everywhere it shall be maintained in the best possible condition for public use. All forms of public outdoor recreation shall be permitted and encouraged in the area, unless specifically excluded or limited by the commission. . . ."
The answer to your third question is thus as follows: The legal significance of an area of land being included in the Seashore Conservation Area is that such land is to be used for recreational uses and other uses not inconsistent with such a use.
Your final question assumes the foregoing conclusions and asks in what manner, and to what extent, the regulation of land uses within the Seashore Conservation Area has been altered by the subsequent enactment of the Shoreline Management Act of 1971.
Chapter 90.58 RCW codifies the provisions of chapter 286, Laws of 1971, Ex. Sess., the "Shoreline Management Act of 1971," as amended by § 1, chapter 53, Laws of 1972, Ex. Sess. This law was enacted by the legislature as an alternative to Initiative No. 43 ‑ a proposal previously submitted to the legislature pursuant to Article II, § 1 of the Washington state constitution. In accordance with that constitutional provision the initiative and its alternative were placed on the ballot for consideration by the electorate at the state's general election of November 7, 1972, at which election the alternative was approved.
RCW 90.58.040, codifying § 4 of the act, describes its general geographic coverage as applying to all "shorelines of the state." By RCW 90.58.030(2)(c) this phrase is defined as the "total of all 'shorelines' and 'shorelines of state‑wide significance' within the state . . ." The term "shorelines" is then defined in RCW 90.58.030(2)(d) as including:
". . . all of the water areas of the state, including reservoirs, and their associated [[Orig. Op. Page 7]] wetlands, together with the lands underlying them; except (i) shorelines of state‑wide significance; (ii) shorelines on segments of streams upstream of a point where the mean annual flow is twenty cubic feet per second or less and the wetlands associated with such upstream segments; and (iii) shorelines on lakes less than twenty acres in size and wetlands associated with such small lakes;"
Likewise, the term "shorelines of state‑wide significance" is defined by RCW 90.58.030(2)(e) to mean:
"(i)The area between the ordinary high water mark and the western boundary of the state from Cape Disappointment on the south to Cape Flattery on the north, including harbors, bays, estuaries, and inlets;
(ii) Those areas of Puget Sound and adjacent salt waters and the Strait of Juan de Fuca between the ordinary high water mark and the line of extreme low tide as follows:
"(A) Nisqually Delta‑-from DeWolf Bight to Tatsolo Point,
"(B) Birch Bay‑-from Point Whitehorn to Birch Point,
"(C) Hood Canal‑-from Tala Point to Foulweather Bluff,
"(D) Skagit Bay and adjacent area‑-from Brown Point to Yokeko Point, and
"(E) Padilla Bay‑-from March Point to William Point;
"(iii) Those areas of Puget Sound and the Strait of Juan de Fuca and adjacent salt waters north to the Canadian line and lying seaward from the line of extreme low tide;
"(iv) Those lakes, whether natural, artificial or a combination thereof, with a surface acreage of one thousand acres or more measured at the ordinary high water mark;
[[Orig. Op. Page 8]]
"(v) Those natural rivers or segments thereof as follows:
"(A) Any west of the crest of the Cascade range downstream of a point where the mean annual flow is measured at one thousand cubic feet per second or more,
"(B) Any east of the crest of the Cascade range downstream of a point where the annual flow is measured at two hundred cubic feet per second or more, or those portions of rivers east of the crest of the Cascade range downstream from the first three hundred square miles of drainage area, whichever is longer;
"(vi)Those wetlands associated with (i), (ii), (iv) and (v) of this subsection (2)(e);" (Emphasis supplied.)
"Wetlands" or "wetland areas," as used in these two definitions, are defined by RCW 90.58.030(2)(f) as meaning:
"(f) 'Wetlands' or 'wetland areas' means those lands extending landward for two hundred feet in all directions as measured on a horizontal plane from the ordinary high water mark; floodways and contiguous floodplain areas landward two hundred feet from such floodways; and all marshes, bogs, swamps, and river deltas associated with the streams, lakes, and tidal waters which are subject to the provisions of this chapter; the same to be designated as to location by the department of ecology: Provided, That any county or city may determine that portion of a one‑hundred-year-flood plain to be included in its master program as long as such portion includes, as a minimum, the floodway and the adjacent land extending landward two hundred feet therefrom;"
It is thus clear that the geographic coverage of the Shoreline Management Act covers most (if not all) of the Seashore Conservation Area ‑ depending upon the precise location of the Seashore Conservation Line. Likewise, it is also clear that the Shoreline Management Act applies to lands within the Seashore Conservation Area even though they are, by definition, under state ownership or control. Accord, RCW 90.58.280 which says that:
"The provisions of this chapter shall be applicable to all agencies of state government, counties, and public and municipal corporations and to all shorelines of the state owned or administered by them."
[[Orig. Op. Page 9]]
Bearing that in mind we turn next to what is perhaps the key substantive provision of the Shoreline Management Act. RCW 90.58.140(2) provides that:
"No substantial development shall be undertaken on shorelines of the state without first obtaining a permit from the government entity having administrative jurisdiction under this chapter."3/
The "government entity having administrative jurisdiction," within the meaning of this provision, is a local government ‑ a county, city or town. See, RCW 90.58.140(3) and RCW 90.58.030(1)(c). A "substantial development," as defined in RCW 90.58.030(3)(e), is
". . . any development of which the total cost or fair market value exceeds one thousand dollars, or any development which materially interferes with the normal public use of the water or shorelines of the state; . . ."
Finally to be noted is RCW 90.58.030(3)(d) which, in turn, defines the word "development" as any:
". . . use consisting of the construction of exterior alteration of structures; dredging; drilling; dumping; filling; removal of any sand, gravel or minerals; bulkheading; driving of piling; placing of obstructions; or any project of a permanent or temporary nature which interferes with the normal public use of the surface of the waters overlying lands subject to this chapter at any state of water level;"
[[Orig. Op. Page 10]]
From the foregoing it seems evident that the legislature intended for the shoreline management programs promulgated pursuant to chapter 90.58 RCW to become the comprehensive land use regulations for all shorelines of the state ‑ an area which, by definition, encompasses most if not all of the Seashore Conservation Area. At the same time, however, because the earlier (1967) Seashore Conservation Act,supra, was not repealed by the Shoreline Management Act it must also be concluded that the legislature intended to have both of these laws stand together. Accord,Olympia State Bk. & Trust v. Craft, 56 Wn.2d 546, 354 P.2d 386 (1960), wherein the Washington court held that where there are two legislative enactments relating to the same subject matter, and the subsequent act does not expressly repeal the early one, the two will be read together and, if possible, each will be given meaning, force and validity. What all of this means, in our judgment, is therefore as follows ‑ in direct answer to your fourth question,supra:
The primary criteria and processes for determining the types of land and water uses that are permissible within the Seashore Conservation Area are now set forth in the various provisions of the Shoreline Management Act of 1971, particularly the sections of the act containing policies for shorelines of statewide significance (RCW 90.58.020), the development of master programs by local governments and the department of ecology (RCW 90.58.090), and the operation of the substantial development permit program (RCW 90.58.140(2)). However, because the Seashore Conservation Act of 1967 has not been repealed, the policy directions thereof, which require that the Seashore Conservation Area be used for recreational purposes or other uses not inconsistent therewith, remain in effect and must be given the greatest of weight in the development of comprehensive use regulations under the Shoreline Management Act.
This is not to say, we should add, that a local governmental entity, in the exercise of its powers under the Shoreline Management Act, may allow lands within the Seashore Conservation Area to be used for inconsistent nonrecreational purposes. Because chapter 43.51 RCW has not been repealed that most certainly may not be done. But it does mean that the State Parks and Recreation Commission, in utilizing for recreational purposes those lands within the Seashore Conservation Area which also fall within the "shorelines" of the state (as above defined), will now have to meet all of the applicable requirements of the Shoreline Management Act [[Orig. Op. Page 11]] and regulations promulgated thereunder, in the process.
We trust that the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
Assistant Attorney General
*** FOOTNOTES ***
1/See, Book One of Plats, pp. 1-13, Records of Pacific County.
2/Volume 51, p. 457, Records of Grays Harbor County.
3/For certain exemptions to the permit requirements of RCW 90.58.140(2), supra, based on types of projects, see RCW 90.58.030(3)(e)(i) through (iv); see, also, RCW 90.58.140(9). The act, however, contains no exemption from the requirements of RCW 90.58.140(2) based on the public or private nature of the entity proposing a substantial development. It is also to be noted that activities which are exempt from permit requirements are still subject, as "developments," to the use regulation scheme of the act. See, RCW 90.58.140(1).