FILED
June 14, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
CHELAN BASIN CONSERVANCY, ) No. 33196-2-111
) (consolidated with
Respondent, ) No. 33239-0-111)
)
V. )
)
OBI HOLDING CO. and )
STATE OF WASHINGTON, )
)
Appellants and )
Cross Respondents, )
)
CITY OF CHELAN, ) PUBLISHED OPINION
)
Respondent and )
Cross Appellant, )
)
and )
)
CHELAN COUNTY PUBLIC UTILITY )
DISTRICT, )
)
Additional Named )
Party. )
PENNELL, J. - Since the early 1960s, OBI Holding Co. and its predecessors
(collectively OBI) have maintained a private landfill commonly known as the "Three
Fingers" on the shore of Lake Chelan. For members of the Chelan Basin Conservancy
No. 33196-2-111 (consol. w/ No. 33239-0-111)
Chelan Basin Conservancy v. GB! Holding Co.
(CBC), the Three Fingers fill is a blot on the otherwise pristine shores of the lake and
unreasonably interferes with access to the beach and navigable waters. After GBI
initiated plans to develop the Three Fingers fill in 2010, CBC took legal action. Relying
on the little-known "public trust doctrine," CBC sought not simply to thwart GBI's
development plans, but to force it to abate its long-held fill.
CBC's legal challenge to the Three Fingers fill requires analyzing the relationship
between the public trust doctrine and the Shoreline Management Act of 1971 (SMA), ch,
90.58 RCW. The SMA was approved by voter referendum in 1972 and designed to
handle public trust disputes through regulation. It also included a savings clause that
grandfathered in preexisting landfills against claims for violation of the public rights of
navigation. We are confronted with whether the SMA' s savings clause applies to the
Three Fingers fill and, if so, whether this portion of the SMA itself violates the public
trust doctrine. We hold that (1) the SMA's savings clause does plainly protect long-held
fills such as the Three Fingers, and (2) CBC has not shown the SMA to be invalid. We
therefore reverse the superior court's orders requiring GBI to abate its fill.
FACTS
The Three Fingers fill is an area of land, approximately six to eight acres in size,
owned by GBI. The fill is located on the southeastern shoreline of Lake Chelan,
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immediately west of the fill addressed in the Washington Supreme Court case of Wilbour
v. Gallagher, 77 Wn.2d 306, 462 P.2d 232 (1969). As more fully described in Wilbour,
the completion of Lake Chelan Dam in 1927 artificially raised the level of the lake from
1,079 feet to 1,100 feet above sea level during peak summer months. 77 Wn.2d at 307,
309. The Three Fingers fill is on lands that were dry when the lake was at its lowest level
but covered with water during the spring and summer when the lake was at its peak level.
In 1961, GBI acquired the property as part of a project to widen State Route 97 A. From
1961 to 1962, GBI filled the property with materials excavated during roadway
construction, raising the elevation of the land from 1,090 feet to 1,102 feet above sea
level and extending it 250 to 300 feet into the lake. After GBI raised the property, it
remained above lake level year round.
The Three Fingers fill does not hold any structures. It has been used in the past for
growing com, parking, and as a staging area for work on the Holden Mine hazardous
waste cleanup. In 2010, GBI filed an application with the City of Chelan (City) to
improve the Three Fingers fill as a planned development district. CBC, a local group
interested in protecting the "use and enjoyment of the navigable waters of Lake Chelan,"
and others objected to the development. Clerk's Papers at 4. GBI thereafter withdrew its
application for planned development and then filed a new application to subdivide the
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land into six parcels. CBC and others again objected and requested removal of the Three
Fingers fill. In 2011, the City approved a short plat to subdivide the property subject to
conditions, which included requiring (1) a public park be developed from two of the lots,
and (2) public access to the lake for recreation. Both CBC and GBI appealed the short
plat decision to the City's hearing examiner. In a preliminary ruling, the hearing
examiner concluded the City lacked authority to order removal of the Three Fingers fill.
CBC thereafter withdrew its administrative appeal and in late 2011 filed an action in
superior court for removal of the Three Fingers fill.
CBC's complaint alleged the Three Fingers fill (1) constitutes a trespass against
the public right of access to Lake Chelan, 1 (2) violates the public rights of navigation as
described in Wilbour, and (3) violates rights to use and enjoy the waters of Lake Chelan
as protected by the public trust doctrine. The complaint named GBI as the defendant and
the City,2 State, 3 and Chelan County Public Utility District (PUD) 4 as additional parties.
1
CBC's trespass claim has not been pursued on appeal and, therefore, is not
addressed in this decision.
2
The City is the local municipal corporation that chose to participate in the case by
counterclaiming and cross claiming for review of the City's assessment of public trust
rights in its administrative decision.
3
Though CBC made no specific claim against the State, the State has participated
because the case·involves questions about the State's authority under the public trust
doctrine.
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After several years of litigation, the superior court resolved CBC's complaint on
summary judgment. The court held the Three Fingers fill violated the public trust
doctrine, subsequently ordering GBI to abate the fill. We are now presented with the case
on appeal.
ANALYSIS
Standard of Review
This court reviews summary judgment orders de nova, "engaging in the same
inquiry as the trial court." Weden v. San Juan County, 135 Wn.2d 678, 689, 958 P.2d 273
(1998). "Summary judgment is appropriate only if the pleadings, affidavits, depositions,
and admissions on file demonstrate the absence of any genuine issues of material fact and
that the moving party is entitled to judgment as a matter oflaw." Citizens for Responsible
l Wildlife Mgmt. v. State, 124 Wn. App. 566, 569, 103 P.3d 203 (2004); see also CR 56(c).
At issue here are questions of both statutory construction and constitutional limits
on state authority. "Issues of statutory construction and constitutionality are questions of
law" also subject to de nova review. State v. Evans, 177 Wn.2d 186,191,298 P.3d 724
(2013). Regularly enacted statutes are presumed constitutional, unless the provision
4
CBC named the PUD because it holds flowage rights in Lake Chelan, but the
f PUD announced early on that it was not participating in the case.
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"involves a fundamental right or a suspect class, in which case the presumption is
reversed." Weden, 135 Wn.2d at 690. The statute's challenger has the heavy burden of
overcoming the presumption of constitutionality. Island County v. State, 135 Wn.2d 141,
146, 955 P.2d 377 (1998).
The Public Trust Doctrine
The public trust doctrine has both common law and constitutional roots. With
statehood, Washington asserted ownership to "the beds and shores of all navigable waters
in the state .... " WASH. CONST., art. XVII, §1. Along with this right of ownership came
a duty of public trust. Although not always clearly labeled as such, Washington courts
have always recognized this duty under the "public trust doctrine." Caminiti v. Boyle,
107 Wn.2d 662, 669-70, 732 P.2d 989 (1987). According to the doctrine, the State holds
an interest in navigable waters akin to a permanent easement: while the State has the
power to convey the title to lands covered by navigable waters, it can never alienate the
public's right to use navigable waters. City ofNew Whatcom v. Fairhaven Land Co., 24
Wash. 493,499, 504, 64 P. 735 (1901). Instead, the State retains inalienable power over
navigable waters "in trust for the whole people .... " State v. Sturtevant, 76 Wash. 158,
165, 135 P. 1035 (1913). Under the public trust doctrine, the State's private interest,
which may be sold, is referred to as the "jus privatum." Caminiti, 107 Wn.2d at 668. The
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public interest that cannot be divested is called the "jus publicum." Id.
Despite the public trust doctrine's ever presence, Washington's early history was
marked by a preference for development over conservation. ROBERT F. UTTER & HUGH
D. SPITZER, THE WASHINGTON STATE CONSTITUTION 232 (2d ed. 2013). This trend
shifted in 1969 with the Wilbour v. Gallagher decision. As noted, Wilbour involved
litigation over a landfill bordering the Three Fingers. The Wilbours lived next to the
Gallaghers and filed suit shortly after construction of the Gallagher fill. The Wilbours
argued the Gallagher fill must be abated because it interfered with their rights of
navigation. The Supreme Court agreed. The court reasoned the public has an inalienable
right to access the waters of Lake Chelan, regardless of seasonal fluctuations in lake
levels. Wilbour, 77 Wn.2d at 316. The Gallaghers were thus prohibited from obstructing
access through creating a fill. Id. As explained by the court, "the public has the right to
go where the navigable waters go, even though the navigable waters lie over privately
owned lands." Id. at 315-16.
Wilbour marked "the modem genesis of the public trust doctrine" in Washington.
Ralph W. Johnson et al., The Public Trust Doctrine and Coastal Zone Management in
Washington State, 67 WASH. L. REV. 521,537 (1992). The decision also generated quite
a stir, with both developers and conservationists confused about the extent of their legal
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rights and obligations. Geoffrey Crooks, The Washington Shoreline Management Act of
I 1971, 49 WASH. L. REV. 423,425 (1974). Shortly after Wilbour, Governor Evans
imposed a moratorium on all tideland fill projects until 1971 when the SMA was enacted.
Orion Corp. v. State, 109 Wn.2d 621, 627, 747 P.2d 1062 (1987).
The SMA created a regime to manage the competing interests of development and
conservation. Because the act regulates shorelines in a manner that promotes and
enhances the public's interest in navigation, compliance with the SMA forecloses any
claim that a land use action violates the public trust doctrine. Caminiti, l 07 Wn.2d at
670. In this manner, the SMA largely addressed prospective claims under the public trust
doctrine. But the SMA also did more. To address development that had taken place prior
to the SMA, the legislature adopted the following savings clause:
Nothing in this section shall constitute authority for requiring or ordering
the removal of any structures, improvements, docks, fills, or developments
placed in navigable waters prior to December 4, 1969, and the consent and
authorization of the state of Washington to the impairment of public rights
of navigation, and corollary rights incidental thereto, caused by the
retention and maintenance of said structures, improvements, docks, fills or
developments are hereby granted: PROVIDED, That the consent herein
given shall not relate to any structures, improvements, docks, fills, or
developments placed in tidelands, shorelands, or beds underlying said
waters which are in trespass or in violation of state statutes.
RCW 90.58.270(1). Notably, the controlling date in this clause is the same as the
Wilbour v. Gallagher decision.
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Chelan Basin Conservancy v. GB! Holding Co.
After the SMA's enactment, property developments and landfills predating
Wilbour were left unchallenged. CBC's legal suit has altered this state of repose. Now,
over 40 years later, we are confronted with discerning the meaning and validity of the
SMA's savings clause in the context of a public trust challenge.
CBC's Claim for Relief
;j
t Standing
1 As a preliminary matter, GBI claims we need not address the merits of CBC's suit
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because CBC lacks standing to challenge the validity of the Three Fingers fill. GBI's
l argument is rooted in the law regarding public nuisances. To bring a public nuisance
claim, a plaintiff must show special injury. RCW 7.48.210. GBI argues CBC, whose
members have general interests in lake access and recreation, is not specially injured by
the Three Fingers fill.
GBI's standing analysis fails because this is not a public nuisance case. CBC has
explicitly disavowed making a public nuisance claim. Instead, the current suit involves a
public trust claim. The issue of standing, therefore, turns on whether either CBC or its
members can claim the type of injury required in the public trust context.
Because cases interpreting Washington's public trust doctrine are limited, the
requirements for establishing standing are not well defined. In Wilbour v. Gallagher, the
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plaintiffs' property bordered the Gallagher fill, yet this proximity did not form the basis
for the Wilbours' ultimate relief. The Wilbours had originally sued based on impairment
of their view as well as "inability to use the water over the filled land for navigation,
fishing, swimming, boating and general recreational uses .... " Wilbour, 77 Wn.2d at
312. The Supreme Court denied relief based on impairment to the Wilbours' view but
found in their favor based on navigational rights. Id. at 313. This was not a right specific
to the Wilbours, but one shared by the public. While the Wilbours' interest in their view
may have been greater than the public's, their interest in utilizing navigational waters was
not. It would thus appear the action brought by the Wilbours could have been brought by
others with an interest in accessing Lake Chelan's waters.
Affidavits from CBC's members demonstrate they have various recreational
interests in Lake Chelan similar to those outlined in Wilbour. The interests claimed by
CBC's members are precisely those the public trust doctrine is meant to protect. Weden,
135 Wn.2d at 698. CBC has thus sufficiently established standing.
Applicability of the SMA's savings clause
Having established standing, the next hurdle in CBC's quest for abatement is the
SMA's savings clause. RCW 90.58.270(1) authorizes impairment of public navigational
rights caused by fills preexisting the 1969 Wilbour decision. This authorization would
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appear on its face to prevent CBC's claim. However, there is a limiting provision. The
provision permits suits against pre-Wilbour fills if they "are in trespass or in violation of
state statutes." RCW 90.58.270(1 ). CBC seizes on this limiting provision. According to
CBC, if it can establish the Three Fingers fill violates some sort of state statute (such as
the statute prohibiting public nuisances) then the restriction on claims regarding
impairments to the public rights of navigation is lifted.
Resolving CBC's claim under RCW 90.58.270(1) requires us to engage in
statutory interpretation. "The purpose of statutory interpretation is to 'determine and give
effect to the intent of the legislature.'" Evans, 177 Wn.2d at 192 (quoting State v.
Sweany, 174 Wn.2d 909,914,281 P.3d 305 (2012)). "If the plain language is subject to
only one interpretation, our inquiry ends because plain language does not require
construction." HomeStreet, Inc. v. Dep 't ofRevenue, 166 Wn.2d 444, 451, 210 P .3d 297
(2009). But where there is ambiguity, the court will engage in statutory construction and
may "look to legislative history for assistance in discerning legislative intent." Evans,
177 Wn.2d at 193.
The debate during the superior court proceedings reveals an ambiguity in the
SMA's savings clause. Does the savings clause protect all pre-1969 fills from public
navigational claims? Or are preexisting fills vulnerable to navigational claims if a
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plaintiff can first establish a statutory violation or trespass claim? The plain language of
the statute favors the former approach. For example, RCW 90.58.270(4) states the
protection against public navigation claims extended to pre-1969 fills that were involved
in litigation at the time of the SMA' s enactment. Had the legislature intended
navigational claims to go forward as long as a plaintiff alleged an additional cause of
action, this provision would not have been written in such broad terms. Nevertheless,
given the different opinions of reasonable minds during the superior court proceedings,
we tum to legislative history.
What little legislative history exists regarding the SMA's savings clause indicates a
clear intent to eliminate Wilbour-type suits for preexisting fills. The following colloquy
in the Senate Journal is telling:
Senator Whetzel: "Another question. Over on page 20 in the amendment
to line 6 that changes the date to December 4, 1969, this I assume relates to
the Wilbour vs. Gallagher case and ... "
Senator Gissberg: "Yes."
Senator Whetzel: "I think makes legal any fills that took place prior to
December 4, 1969."
Senator Gissberg: "Yes."
Senator Whetzel: "Are we changing the result in the Wilbour case or any
other case by, I guess my question includes both the amendment to the date
and the ... "
Senator Gissberg: "Yes, I think in the entire section in subsection (3 ), you
are, the state of Washington is giving its consent to the impairment of
public rights of navigation as to those structures, improvements, docks, fills
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or developments which were placed in navigable waters prior to December
4, 1969. And it is a savings clause for those structures that were placed
there prior to Wilbour vs. Gallagher. If it is not there, then every dock,
most of industry in the state that is on the water, of course, is there illegally
and subject to mandatory injunction to being removed by anyone that wants
to bring the lawsuit. Consequently, that is why the savings clause is there,
and the state is giving, or purports to give its consent to the impairment of
the navigable rights of the public generally which are impeded by the
construction of those docks and facilities that are in the navigable waters."
I SENATE JOURNAL, 42d Leg., 1st Ex. Sess., at 1411 (Wash. 1971).
CB C's construction of the savings clause would undermine this intent. At the time
the SMA was enacted in 1971, Senator Gissberg recognized most if not all of the State's
numerous landfills violated the terms of Wilbour. The goal of the savings clause was to
avoid the automatic removal of preexisting fills that was threatening to take place post-
Wilbour. If CBC's analysis was correct, then vast numbers of preexisting fills would
again be put at risk. Any statutory violation, even ones having nothing to do with
navigation or conservation, could justify a Wilbour public trust claim. This outcome
cannot be reconciled with the SMA's unambiguous legislative history.
The SMA's savings clause reads naturally when considered in light of the intent
expressed in the Senate Journal. While RCW 90.58.270(1) eliminates claims based on
impairment of the public rights of navigation, preexisting fills are not wholly immune
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from suit. Claims can still be made for trespass or violation of state statutes. 5 But a
trespass or statutory claim cannot be utilized as an end run around the prohibition on
public trust claims. Instead, a claim for trespass or a statutory violation must ~tand on its
own, separate from any claim under the public trust doctrine.
During the superior court proceedings, the trial court addressed not only CBC's
public trust claim, but also the argument that the Three Fingers fill constitutes a statutory
public nuisance. Because CBC has disavowed a public nuisance claim, we technically
need not address this issue. Nevertheless, because the matter has been fully briefed and
may reoccur in the future, we will also analyze whether the SMA' s savings clause can bar
a navigational claim filed under Washington's nuisance statute.
Washington's nuisance laws have been codified in chapter 7.48 RCW. "A
nuisance 'which affects equally the rights of an entire community or neighborhood' is a
5
In addition, the savings clause applies only to the retention and maintenance of
preexisting fills. A fill that is falling apart or was in disrepair at the time of the SMA's
savings clause is not protected. See, e.g., Reed v. Dep 't of Ecology, No. 87-34, 1988 WL
161202, at *3 (Wash. Shorelines Hr'gs Bd. May 10, 1988). CBC argues the savings
clause does not protect GBI because GBI is no longer maintaining its fill. Instead, GBI
has proposed to develop the area. However, GBI's development plans are not currently
before this court. Besides, the issue of whether proposed development violates public
trust interests is properly addressed through the SMA's regulatory provisions. Caminiti,
107 Wn.2d at 670 ("the requirements of the 'public trust doctrine' are fully met by the
legislatively drawn controls imposed by the [SMA].").
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public nuisance." Grundy v. Thurston County, 155 Wn.2d 1, 6, 117 P.3d 1089 (2005)
(quoting RCW 7.48.130). Public nuisances can include "obstruct[ing] or imped[ing],
without legal authority, the passage of any river, harbor, or collection of water .... "
RCW 7.48.140(3). In other words, public nuisance claims can extend to impairment of
the public rights of navigation. While the public nuisance statute creates a broad cause of
action that can undoubtedly apply to some landfills, the legislature has exerted significant
control over nuisance suits. The law explicitly provides "[ n]othing which is done or
maintained under the express authority of a statute, can be deemed a nuisance." RCW
7.48.160.
The legislative control over public nuisance suits bars navigational claims in the
current context. By consenting to the existence of pre-Wilbour fills against public
navigational claims, the legislature invoked application of RCW 7.48.160, which forbids
a cause of action based on public nuisance. Thus, the moment the SMA passed, the
ability to file a public nuisance claim against a preexisting fill was extinguished. 6
The fact that a once-authorized fill can later become a public nuisance, see
Grundy, 155 Wn.2d at 7 n.5, does not create an opening for suit in the current context. In
6
Legal claims pending at the time of passage were also eliminated. RCW
90.58.270(4).
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order for this exception to apply, a fill must deviate in some way from its initial
authorization. For example, if a fill starts to degrade or expand beyond its original
intrusion into navigable waters, it may well become a public nuisance. But the record
here is devoid of any such facts. GBI's fill is thus protected from a public nuisance suit
by the combined forces of RCW 90.58.270 and RCW 7.48.160.
The SMA 's savings clause and the public trust doctrine
Because the Three Fingers fill is protected from suit under either a public trust or
public nuisance theory by the SMA's savings clause, we are confronted with whether the
savings clause itself violates the public trust doctrine. This is a challenge distinct from
the kind of challenge raised in Wilbour. When a legislative challenge is made under the
public trust doctrine, the court "must inquire as to ( 1) whether the State, by the questioned
legislation, has given up its right of control over the jus publicum [i.e. the public's
inalienable rights of navigation] and (2) if so, whether by so doing the State (a) has
promoted the interests of the public in the jus publicum, or (b) has not substantially
impaired it." Caminiti, 107 Wn.2d at 670.
The Supreme Court engaged in this legislative analysis in Caminiti. The court
held that a Washington statute allowing residential property owners to maintain private
docks without charge passed all components of the test. Id. at 675. Other statutes
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challenged under the public trust doctrine have met the same fate. Weden, 135 Wn.2d at
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699; Citizens, 124 Wn. App. at 573-74. While these outcomes may seem frustrating to
public trust advocates, they are consistent with the Supreme Court's observation in
I Wilbour that public trust issues are often best sorted out by the legislature through
regulation. 77 Wn.2d at 316 n.13. See also Harris v. Hylebos Indus., Inc., 81 Wn.2d 770,
787, 505 P .2d 457 ( 1973) ("[The Wilbour court] had in mind the right of appropriate
I
I governing bodies to authorize fills and commercial uses of lands situated on the shores of
I navigable bodies of water.").
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A challenge to legislation under the public trust doctrine is akin to a constitutional
challenge. Citizens, 124 Wn. App. at 570-71. Given this similarity, the burden of
J proving invalidity of the statute properly rests on the challenging party. Id. at 570. This
means CBC. Both CBC and the City object to this allocation. They note the following
Supreme Court passage: "[C]ourts review legislation under the public trust doctrine with
a heightened degree of judicial scrutiny, 'as if they were measuring that legislation
against constitutional protections."' Weden, 135 Wn.2d at 698 (quoting Johnson, supra,
at 526-27).
Allocating the burden of proof to CBC does not violate the principle recognized in
Weden. If the burden of proving a statute's invalidity rests with the party asserting a
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constitutional challenge, the same should be true here. Public trust claims are merely
quasi-constitutional. The ability to assert a public trust claim should not be easier than in
the constitutional context. We have previously allocated the burden of proof to the
challenger in the public trust context. Citizens, 124 Wn. App. at 570. We see no reason
to deviate from this precedent, particularly since the challengers have waited over 40
years to bring suit.
Reviewing the SMA's savings clause under the Caminiti test requires looking at
the legislation as a whole, not a particular application. Indeed, Caminiti did not review
the reasonableness of the legislation at issue by examining its application to a specific
dock. Instead, the court examined the statute's statewide impact. Caminiti, 107 Wn.2d at
672. Because vast areas of water were unaffected, the court concluded the legislature had
not substantially given up control over the public's navigational rights. Id. ("By enacting
RCW 79 .90.105, the [l]egislature has given up relatively little right of control over the jus
publicum").
During the superior court proceedings, CBC's focus was on whether the Three
Fingers fill met terms of the test outlined in Caminiti. This was mistaken. Whether or
not the Three Fingers fill serves a legitimate public purpose is not particularly relevant to
the legality of the SMA's savings clause. Because the Three Fingers fill is clearly
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protected by the SMA's savings clause, CBC's public trust claims can only go forward if
the savings clause, applied as a whole throughout the state, is invalid. No such showing
has been made. Given the passage of time, it is unclear whether any such showing can
ever be made. During oral argument, the State suggested the SMA's savings clause
promoted the public trust in navigable waters because most pre-Wilbour fills were useful
and afforded access to deep waters. We have no facts to verify this claim. Nor do we
have facts to refute it. Because the burden of proof falls on CBC, the challenge to the
savings clause must fail.
Based on the foregoing, the superior court's order granting summary judgment and
the order for abatement are reversed. This matter is remanded to the superior court for
proceedings consistent with this opinion.
Pennell, J.
WE CONCUR:
ff}~tU~,
Siddoway, J.
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