- Associated Press - Thursday, July 6, 2017

SPOKANE, Wash. (AP) - An environmental group has standing to seek the removal of fill material added to property along Lake Chelan to raise the property above the water level, an action that obstructed the public’s right to use navigable waters over that property, the Washington Supreme Court ruled Thursday.

The state Legislature had consented decades ago to the fill’s impairment of navigable waters.

But the Supreme Court reserved judgment on whether that decision violated the public’s right to use the waters, sending the complicated case back to the trial court to decide the issue.

The Chelan Basin Conservancy, an environmental group, is seeking the removal of six acres of fill material that GBI Holding Co. added to its property on Lake Chelan in 1961 to keep the formerly dry property permanently above the artificially raised seasonal water fluctuations of the lake caused by a dam.

The conservancy contended the state’s public trust doctrine protected the public right to use water along navigable waterways.

At issue is whether the state consented to the fill’s impairment of that right, and, if so, whether such consent violated the public trust doctrine.

The Court of Appeals correctly concluded that the Legislature consented to the fill’s impairment of navigable waters under state law, the Supreme Court said. But the appeals court prematurely concluded that such consent did not violate the public trust doctrine.

The Supreme Court reversed the appeals court decision and sent the case back to the trial court to determine if the fill’s impairment of navigable waters violates the public right to use such waters.

Under the state Constitution, the state owns the beds and shores of all navigable waters in Washington, and the public has a right to use those waters.

GBI’s property used to permanently rise above the waters of Lake Chelan. But construction of a dam early in the last century caused the dry land to be seasonally submerged.

In 1961, GBI added fill to its property to raise it above the lake’s seasonal fluctuations. That was a common practice at the time across the state.

“By 1969, thousands of acres of Washington’s tidelands and shorelands had been reclaimed and developed with significant improvements, including the creation of Harbor Island and much of downtown Seattle,” the Supreme Court said.

The Legislature subsequently created the Savings Clause, to protect those improvements from public trust challenges.

In 2010, GBI submitted an application with the city of Chelan to develop the area of the fill, but withdrew that application after public opposition. The environmental group later sought the removal of the fill, and named as interested parties the city of Chelan, the state and the Chelan County Public Utility District, owner of the dam.

The trial court found the conservancy had standing to raise its public trust claim, and ordered the fill be removed.

GBI Holding appealed, and the Court of Appeals reversed the trial court’s order.

The conservancy petitioned the Supreme Court to review the public trust issues.

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