Opinion
No. 56326-2-I
Filed: January 23, 2006
Appeal from Superior Court of King County. Docket No: 02-2-23059-8. Judgment or order under review. Date filed: 09/20/2004. Judge signing: Hon. William L. Downing.
Counsel for Appellant(s), Michael W. Gendler, Gendler Mann LLP, 1424 4th Ave Ste 1015, Seattle, WA 98101-2217.
Counsel for Respondent(s), Laurie Doran Kohli, Porter Kohli LeMaster PS, 1301 5th Ave Ste 2600, Seattle, WA 98101-2622.
Benjamin Gould Porter, Porter Kohli LeMaster PS, 1301 5th Ave Ste 2600, Seattle, WA 98101-2622.
Counsel for Respondent/Cross-Appellant, Joseph Vincent Panesko, Attorney General's Office, 1125 Washington St SE, PO Box 40100, Olympia, WA 98504-0100.
Judith B. Barbour, Seattle City Attorneys Office, PO Box 94769, Seattle, WA 98124-4769.
Lake Washington Rowing Club obtained permits from the Department of Natural Resources (DNR), the City of Seattle, (City) and the Army Corps of Engineers (ACE) to install a ramp and floating dock in Waterway 23 at the north end of Lake Union. Northlake Marine Works, Inc., operates a marina on property adjacent to Waterway 23. Northlake filed a state court challenge to DNR's and the City's statutory authority under state law to issue the permits. DNR argued that Northlake failed to exhaust its administrative remedies, and also that DNR had statutory authority to issue the permits. The trial court ruled in favor of DNR on the ground of Northlake's failure to exhaust its administrative remedies, while also addressing the merits and concluding that DNR issued its permit consistent with state law. The trial court dismissed Northlake's claims against the City on the ground that the success of these claims was dependent on the success of Northlake's challenge to DNR's permit. Northlake appeals. DNR cross-appeals the trial court's ruling dismissing its trespass counterclaims against Northlake. The City cross-appeals the trial court's decision to grant a statutory writ of review of the City's street use permit. Northlake and DNR both seek attorney fees on the trespass issues.
We hold that Northlake did not fail to exhaust its remedies or otherwise improperly bring its action. We hold that RCW 79.93.010 does not prohibit the Rowing Club's use of Waterway 23, and that its use was authorized consistent with state law. We hold that the trial court did not err in granting the statutory writ. We affirm the trial court's grant of summary judgment to DNR and the City. We reverse the trial court's conclusion that Northlake was not trespassing in the waterway, because that conclusion turns on a missing factual determination of whether federal law authorizes Northlake's use. We remand to the trial court for further fact finding and to determine the amount of damages and the award of attorney fees.
FACTS
This case concerns various governmental entities' power to authorize use of waterways. Waterways are essentially aquatic streets. RCW 79.93.010. Unlike most states, Washington 'claims absolute fee simple ownership of the land underlying its waters.' Draper Machine Works, Inc. v. Dep't of Natural Res., 117 Wn.2d 306, 313, 815 P.2d 770 (1991) (citing Wash. Const. art. 17, sec. 1 and Port of Seattle v. Or. Wash. R.R., 255 U.S. 56, 64, 65 L. Ed. 500, 41 S. Ct. 237 (1921)). This land is divided into several categories depending on its location and function. One of these categories is 'harbor areas' that are designated by outer and inner harbor lines and reserved for conveniences of navigation. Draper, 117 Wn.2d at 313 (citing Wash. Const. art. 15, sec. 1; RCW 79.90.015, .020, .025). Waterways are areas within harbor areas where development and building are generally not allowed. Draper, 117 Wn.2d at 314 (citing RCW 79.93.010). Waterways act as 'water streets allowing access from the deep water outside the harbor to the wharves and docks built within the harbor.' Draper, 117 Wn.2d at 314. The State is prohibited from granting any private rights beyond the outer harbor line, but empowered to allow private leases in the harbor area. Davidson v. State, 116 Wn.2d 13, 16, 802 P.2d 1374 (1991) (citing Wash. Const. art. 15, sec. 1).
Many of the statutes involved in this case have been amended in 2005. However, these technical amendments were not intended to have any substantive policy implications. RCW 79.105.001. We cite to the former versions of the statutes, which were in place at the time this lawsuit was filed and which are cited by the parties in their briefs.
A 'waterway' is any area the State has specifically designated as such under chapter 79.93 RCW. It can include a strip along an entire shoreline, or an area such as Waterway 23, that is a waterway similar to a street designated between the shore and the main navigation channel.
The federal harbor system is overlaid on the state harbor system. Federal pierhead lines are established by the Secretary of the Army to protect harbors. Draper, 117 Wn.2d at 314. '[N]o piers, wharves, bulkheads, or other works shall be extended' waterward of the pierhead line without a federal permit. 33 U.S.C. sec. 404. Landward of the pierhead line, no federal money can be spent to dredge. 33 U.S.C. sec. 628. Federal pierhead lines are thus analogous to state harbor lines for purposes of maintaining navigability, although these lines need not be coterminous. Draper, 117 Wn.2d at 314.
Waterway 23 is at the north end of Lake Union. Northlake owns shore land adjacent to Waterway 23 and operates a marina and other business from that location. The Rowing Club obtained a permit from DNR, the City of Seattle, ACE, and other entities to install a ramp and floating dock in Waterway 23. Northlake filed an action challenging DNR's authority to issue a permit, and a separate action challenging the City's authority to issue a permit. These actions were consolidated after the trial court granted a statutory writ of review for the City's permit.
Northlake also brought a nuisance claim against the Rowing Club, but voluntarily dismissed that claim. The Rowing Club made a nuisance counterclaim against Northlake for the existing Northlake structures. The trial court dismissed that counterclaim and the Rowing Club has not cross-appealed that part of the trial court's ruling.
Northlake moved for summary judgment on the issue of DNR's authority. DNR moved for partial summary judgment on the ground that Northlake failed to exhaust its administrative remedies in its challenge against DNR's authority. The City and the Rowing Club joined DNR's opposition. The trial court granted DNR's motion and denied Northlake's motion. The trial court ruled in favor of DNR on the ground of Northlake's failure to exhaust its administrative remedies, while also addressing the merits and concluding that DNR issued its permit consistent with state law. The trial court dismissed Northlake's claims against the City on the ground that the success of these claims was dependent on the success of Northlake's challenge to DNR's permit.
DNR also made a trespass counterclaim against Northlake regarding other structures Northlake had earlier built in the waterway. The trial court ruled in favor of Northlake on DNR's trespass counterclaims after a bench trial, concluding that DNR failed to prove its trespass claims. Northlake appeals the trial court's grant of summary judgment to DNR and the City. DNR argues that the trial court erred in finding that Northlake was not trespassing and in its rulings on that claim. The City argues that the trial court erred in issuing a statutory writ of review.
DISCUSSION I. The Draper Decision
An agency may exercise only those powers conferred by statute, and cannot authorize action in absence of statutory authority. Skagit Surveyors Engrs., LLC, v. Friends of Skagit County, 135 Wn.2d 542, 558, 958 P.2d 962 (1998). In Draper, the Washington Supreme Court addressed DNR's statutory authority under RCW 79.93.040. The Draper case concerned part of a strip of state-owned waterway on the south side of Salmon Bay. Draper, 117 Wn.2d at 308-10, 315. Originally, the federal pierhead lines and state waterway boundaries in Salmon Bay waterway were coterminous. But in 1949, the federal government moved its pierhead line north. Draper, 117 Wn.2d at 309. As a result, there was 'a stretch of waterway between the waterway line and the federal pierhead line . . . which was no longer considered by the federal government to be necessary for navigation in the ship canal.' Draper, 117 Wn.2d at 309.
In 1959, Draper obtained a 10-year 'lease' from DNR to construct boat moorage facilities in this 'intervening waterway.' Draper, 117 Wn.2d at 310. The agreement was renewed in 1969 and was set to expire in 1984. As part of Draper's agreement with DNR, Draper paid rent for its use of the waterway. In 1979, DNR sought to increase the rent to fair market rental value. Draper, 117 Wn.2d at 310. Draper objected, stopped paying rent, and sought a return of rent 'wrongfully' paid to DNR. Draper, 117 Wn.2d at 310. Draper argued that DNR was prohibited from leasing the waterway under RCW 79.93.010 and thus could not charge rent for the use of the waterway.
Draper, 117 Wn.2d at 308-10, 315.
In Draper, the parties cited the apparent conflict between the same statutes at issue here. RCW 79.93.010 provides:
It shall be the duty of the department of natural resources simultaneously with the establishment of harbor lines and the determination of harbor areas in front of any city or town, or as soon thereafter as practicable, to . . .
. . . establish one or more public waterways . . . as in the judgment of the department may be necessary for the present and future convenience of commerce and navigation. All waterways shall be reserved from sale or lease and remain as public highways for watercraft until vacated as provided for in this chapter.
RCW 79.93.020 provides:
All alleys, streets, avenues, boulevards, waterways . . . not heretofore vacated as provided by law, are hereby validated as public highways and dedicated to the use of the public for the purposes for which they were intended, subject however to vacation as provided for in this chapter.
RCW 79.93.040 provides:
If the United States government has established pierhead lines within a waterway created under the laws of this state at any distance from the boundaries established by the state, structures may be constructed in that strip of waterway between the waterway boundary and the nearest pierhead line only with the consent of the department of natural resources and upon such plans, terms, and conditions and for such term as determined by the department.
The Draper court explained that
[i]n view of this statutory scheme, the purpose of RCW 79.93.010 and .040 is obvious. Both statutes work together to protect and maintain certain areas as 'water highways'; to prevent development from encroaching into those highways and choking off navigation and commerce. This is the purpose behind RCW 79.93.010's reservation of waterways from sale or lease. RCW 79.93.040 merely acts as a proviso to this reservation. In it the Legislature recognized that the federal pierhead line serves essentially the same function as the waterway line for navigational purposes. Both exist to ensure navigable 'avenues' of open water. Therefore, if a pierhead line exists waterward of a waterway line, the intervening waterway can be built on because the pierhead line continues to protect navigability.
Draper, 117 Wn.2d at 314-15.
The Draper court held that RCW 79.93.010 'clearly does not allow any private use of public waterways other than for navigation.' Draper, 117 Wn.2d at 317-18 (citing Laurelhurst Club, Inc., v. Backus, 161 Wn. 185, 191, 296 P. 819 (1931)). But, 'in RCW 79.93.040, the Legislature has recognized that when a pierhead line is waterward of a waterway line, the portion of the waterway between the lines no longer must be kept open to provide a public benefit.' Draper, 117 Wn.2d at 318. The Draper court concluded that RCW 79.93.010 and .040 together provide that waterways may never be sold or leased, but may be put to use where they lie landward of a federal pierhead line. Draper, 117 Wn.2d at 315. The Draper court continued to hold that DNR could collect rent for such uses. Draper, 117 Wn.2d at 315-19.
The Draper court expressly limited its opinion to two questions: whether DNR had authority to collect rent under these statutes, and a second issue not related to the case at hand. Draper, 117 Wn.2d at 311. The Draper court was presented solely with a strip of Salmon Bay waterway lying between the pierhead line and the waterway boundary entirely landward of the federal pierhead line, and subject to RCW 79.93.040. Although the court did note that Draper could not have built its structure if there was no such strip, the Draper court also noted that waterward of the pierhead line, there can be no construction without a federal permit. Draper, 117 Wn.2d at 314-15; see also 33 U.S.C. sec. 404. This language implies that construction could be authorized waterward of the federal pierhead line by a federal permit.
The only issues before the Draper court relevant here were DNR's authority to issue permits to private parties to use a strip of waterway between the pierhead line and the harbor line and to collect rent for such use. The court did not have before it the question of whether DNR had authority to allow uses of waterways waterward of the federal pierhead line if a federal permit for such use was granted.
To the extent the Draper decision can be read to hold that, under chapter 79.93 RCW, no structures can be built in a waterway waterward of a federal pierhead line even with a federal permit, this holding was dicta.
II. DNR's Management Authority Over State Aquatic Lands
DNR argues that because it has broad management power over state aquatic lands under chapter RCW 79.90, it can issue permits under that power despite the restrictions of RCW 79.93.040. DNR notes that RCW 79.93.040 does not expressly prohibit it from issuing permits in areas of waterways other than portions between the harbor and pierhead lines. But statutory language should be interpreted to avoid a construction that renders any section or words meaningless. Wright v. BL Properties, Inc., 113 Wn. App. 450, 460, 53 P.3d 1041 (2002). If DNR was authorized to grant use permits in any location in a waterway, the Legislature would not need to have specified a limited area where DNR had such power. DNR does not have authority, under RCW 79.93.040 or chapter 79.90 RCW, to grant use permits in areas of waterways waterward of federal pierhead lines.
DNR argues that WAC 332-30-117 was an attempt to clarify the scope of its land use authority in waterways and fill in gaps in the statute through rulemaking. See State ex rel. Evergreen Freedom Found. v. Wash. Educ. Ass'n, 140 Wn.2d 615, 634, 999 P.2d 602 (2000) (holding that agencies are permitted to fill in gaps and interpret a statute when it is ambiguous); Hama Hama v. Shorelines Hearings Bd., 85 Wn.2d 441, 448, 536 P.2d 157 (1975). But DNR has not identified any ambiguity in the statute to necessitate gap-filling. In the limited situations where an agency may fill in the gaps, it must 'not purport to 'amend' the statute.' Hama Hama, 85 Wn.2d at 448. When analyzing chapter 79.93 RCW, the Draper court did not note any ambiguity. Rather, it held that RCW 79.93.040 served as a proviso to RCW 79.93.010's clear prohibition under state law of private use of public waterways other than for navigation. See Draper, 117 Wn.2d at 314-15, 318. We assume that the Legislature means exactly what it says, and plain words do not require construction. State v. McCraw, 127 Wn.2d 281, 288, 898 P.2d 838 (1995).
DNR contends that WAC 332-30-117 obtains its statutory authority from RCW 79.60.460, and permits issued under the WAC are distinct from permits issued under RCW 79.93.040. WAC 332-30-117 does not give DNR authority to issue permits in waterways waterward of federal pierhead lines. WAC 332-30-117 applies to all waterways except those it expressly excludes from its purview. Waterway 23 is not an excluded waterway, and WAC 332-30-117 and RCW 79.93.040 both apply. Chapter 79.93 RCW is part of the authority under which WAC 332-30-117 was promulgated. DNR promulgated the rule to 'administratively implement' chapter 79.93 RCW and the other statutes on which it is based. Wash. St. Reg. 85-22-066. As a state agency, DNR's authority is wholly granted and limited by the statutory authority it is given. Skagit Surveyors, 135 Wn.2d at 558. When DNR issues a permit under this WAC, the permit must comply with RCW 79.93.040.
The question of federal pre-emption or concurrent jurisdiction was not addressed in Draper. The issue of whether, if a federal permit was granted, DNR could then authorize or was required by RCW 79.93.010 to prohibit such construction was not presented in Draper.
If the federal government consents to construction extending waterward of a pierhead line, then it has concurrent or joint jurisdiction with the state government over that portion of the construction. N. Shore Boom Driving Co. v. Nicomen Boom Co., 212 U.S. 406, 412, 29 S. Ct. 355, 53 L. Ed. 574 (1909) (citing Cummings v. Chicago, 188 U.S. 410, 23 S. Ct. 472, 47 L. Ed. 525 (1903)). In Cummings, a case from Illinois, the U.S. Supreme Court held that a structure cannot be built waterward of a federal pierhead line with the consent solely of the federal government. Cummings, 188 U.S. at 427. Rather, state and local governments must also consent to the structure. Cummings, 188 U.S. at 427.
Under Draper, state law does not generally allow private use of waterways (except as authorized by RCW 79.93.040), but private use of the waterway may be authorized waterward of a federal pierhead line with a federal permit. Similarly to the 'intervening waterway' created in Draper when the federal government moved the pierhead lines in the Salmon Bay waterway, the federal government's issuance of a federal permit indicates its conclusion that the portion of the waterway covered by the permit does not need to be kept open for navigation. See Draper, 117 Wn.2d at 309. Therefore, RCW 79.93.010 and .020 do not operate to completely forbid any construction in waterways waterward of the federal pierhead line when a federal permit authorizes such construction.
Although DNR does not have authority to grant or deny a use permit, the federal permitting process is dependent on obtaining state and local government approval. The key question is whether, as a matter of law, RCW 79.93.010 requires DNR to express a position against a proposed project in a waterway waterward of a federal pierhead line, and precludes DNR from expressing a position for such a project.
33 C.F.R. 320.4, which governs the federal permitting process, provides: Other Federal, state, or local requirements. (1) . . . where the required Federal, state and/or local authorization and/or certification has been denied for activities which also require a Department of the Army permit before final action has been taken on the Army permit application, the district engineer will . . . either immediately deny the Army permit without prejudice or continue processing the application to a conclusion. If the district engineer continues processing the application, he will conclude by either denying the permit as contrary to the public interest, or denying it without prejudice indicating that except for the other Federal, state or local denial the Army permit could, under appropriate conditions, be issued. . . . Even if official certification and/or authorization is not required by state or federal law, but a state, regional, or local agency having jurisdiction or interest over the particular activity comments on the application, due consideration shall be given to those official views as a reflection of local factors of the public interest.
We conclude that while DNR has no authority under RCW 79.93.040 to grant or deny a waterway use permit in areas waterward of federal pierhead lines, RCW 79.93.010 does not preclude DNR from representing the interests of the State of Washington in the federal permitting process as part of its broad management power over state aquatic lands under chapter RCW 79.90. DNR may participate in the process as permitted by federal law and express its consent, acquiescence or objection to the proposed project. If the permit is granted by the federal government, DNR retains its power and duty as steward of state aquatic lands to collect rent for the use.
Other legislative acts provide support for this interpretation of chapter 79.93 RCW. This interpretation creates additional public access and recreational opportunities. The Legislature has identified the encouragement of direct public use and access as a public benefit. RCW 79.90.455. It has decreed that the 'management of state-owned aquatic lands shall preserve and enhance water-dependent uses,' such as launching facilities. RCW 79.90.460-.465. RCW 79.93.010 and .020 are intended to promote the navigability of the waterways, and increased access facilitates that policy.
The dedication of waterways in RCW 79.93.010 and .020 to public use does not prohibit this result. In Baxter-Wyckoff Co. v. City of Seattle, 67 Wn.2d 555, 556, 408 P.2d 1012 (1965), the court held that cities could grant use permits giving private companies the right to use public streets platted on tidelands, despite acknowledging that the streets belong to the public. Baxter-Wyckoff, 67 Wn.2d at 560-61. This is true although, like waterways, city streets platted on tidelands are 'declared public highways.' RCW 35.21.230.
The City of Seattle has issued a street use permit consistent with its procedures. This permit does not vest any permanent right in the Rowing Club. SMC 15.04.070. Under the broad management authority given to DNR in RCW 79.90.450 through .460, DNR may provide comments on the proposed project to ACE and its comments will receive due consideration in the permitting process.
As part of the permitting process, the City of Seattle requires approval from the Director of Transportation, the State of Washington, the Port of Seattle, and ACE before any fixed structure can be placed in a waterway. SMC 16.60.040.
See supra, n. 6. The Rowing Club has also obtained DNR's consent. As noted, we conclude that RCW 79.93.010 does not prohibit all structures in waterways waterward of federal pierhead lines when a federal permit has issued. Therefore, the City has not violated the statute by issuing its permit, and DNR has not violated the statute merely by consenting to the use. ACE has issued the required Section 10 permit to satisfy 33 U.S.C. §§ 403-04. Thus, with the federal permit and local government consent, the Rowing Club could build its dock consistent with state law. Further, it is clear that the ramp and dock built by the Rowing Club provide a public benefit. No governmental agency involved in the permitting process has found that this structure creates any adverse impact on the navigability of the waterway. The federal and city permits, together with DNR's consent, were sufficient authority to construct the dock and ramp.
We note that there is no particular provision in either state or federal law specifying in which order the party seeking authority to use a waterway must obtain permits or consent, only that all the required permits and consent must be obtained to validate the use.
The parties disagree on the extent to which the Rowing Club is presently allowing public access. But the City's use permit specifically requires public access. And, the sign on the gate notifies the public that it can request access to the facility. If the Rowing Club is not allowing public access as required by its permit, it is violating the terms of its permit.
ACE specifically found that sufficient clearances existed such that the structure would not impede water access by neighboring property owners and would not impede navigation passage through Lake Union or the Lake Washington Ship Canal. No agencies involved in the process culminating in the issuance of the use authorization found that the structure would impact navigation.
III. The Trial Court Properly Issued A Statutory Writ Of Review to the City
Northlake challenged the statutory validity of the City's use permit. Northlake did not challenge the City's exercise of discretion or other procedures in issuing the permit. Rather, Northlake's challenge is that the City cannot do, in contravention of state law, what Northlake argues the state and the federal government cannot do: authorize use of waterways waterward of federal pierhead lines. The trial court issued a statutory writ of review under chapter 7.16 RCW to obtain jurisdiction over and to review the street use permit. The City argues that the trial court erred in issuing the writ.
The Land Use Petition Act (LUPA) has replaced statutory writs of review for land use decisions. RCW 36.70C.020(1); Chelan County v. Nykreim, 146 Wn.2d 904, 926-27, 53 P.3d 1 (2002). The Legislature expressly excluded street use permit decisions from the definition of 'land use decision' for purposes of LUPA. RCW 36.70C.020(1)(a). Statutory language should be interpreted to avoid a construction that renders any section or words meaningless. Wright, 113 Wn. App. at 460. Thus, the Legislature's decision to expressly exclude street use permit decisions implies that they would otherwise fall under the definition of land use decision. Because LUPA has not replaced statutory writs for street use permit decisions, street use permits remain subject to such writs if they meet the requirements of chapter 7.16 RCW.
The City argues that a decision to grant or deny a permit for private use of a waterway is not subject to a statutory writ because it is a discretionary, administrative act, and not a judicial or quasi-judicial act. RCW 7.16.040 allows a court to issue a writ of review 'if the petitioner can show that (1) an inferior tribunal or officer (2) exercising judicial functions (3) exceeded its jurisdiction or acted illegally, and (4) there is no other avenue of review or adequate remedy at law.' Clark County Pub. Util. Dist. No. 1 v. Wilkinson, 139 Wn.2d 840, 845, 991 P.2d 1161 (2000). All these factors must be present for the court to have jurisdiction to review. Bridle Trails Cmty. Club v. Bellevue, 45 Wn. App. 248, 252, 724 P.2d 1110 (1986).
In Pentagram Corp. v. City of Seattle, 28 Wn. App. 219, 220, 622 P.2d 892 (1981), the court considered a City Council action denying a special permit under the building code. The building code set forth specific and extensive requirements for the issuance of a building permit, but included a section (section 308) authorizing the City Council to attach special conditions to structures not otherwise covered by the building code. Pentagram, 28 Wn. App. at 225-26. The issuance of permits under section 308, unlike those under the building code generally, was discretionary. Pentagram, 28 Wn. App. at 226.
The Pentagram court considered the adjudicatory function in the context of zoning decisions. It noted that although the adoption of a comprehensive plan and zoning code is legislative, the reclassification of a particular parcel of land under a zoning code is adjudicatory. Pentagram, 28 Wn. App. at 226-27. That is, there is an 'adjudication between the rights sought by the proponents and those claimed by the opponents of the zoning change. The parties whose interests are affected are readily identifiable. Although important questions of public policy may permeate a zoning amendment, the decision has a far greater impact on one group of citizens than on the public generally.'
Pentagram, 28 Wn. App. at 227 (quoting Fleming v. City of Tacoma, 81 Wn.2d 292, 299, 502 P.2d 327 (1972)). The Pentagram court concluded that decisions to issue section 308 permits were likewise adjudicatory because they affected the rights of specific parties and the City Council had discretion to deny or condition the issuance of the permit for considerations of life, property, and public welfare. Pentagram, 28 Wn. App. at 227.
Similarly, the street use permit decision at issue here is adjudicatory in nature. No party is entitled to a permit merely by complying with certain laws and ordinances. Rather, the Seattle Department of Transportation exercises discretion in the same manner as the City Council in Pentagram: Issuance. The Director of Transportation may issue a permit for the use and occupancy of a waterway with appropriate terms and conditions upon finding that the use and occupation sought is compatible with use of the waterway as public ways for vessels and the convenience of commerce, is consistent with the City's land use planning in the immediate vicinity, and does not deprive adjacent properties of reasonable water access.
SMC 16.60.030(E). Northlake sought administrative review of the street use permit under SMC Title 15, which resulted in a final decision affirming the Director's grant of the permit. SMC 15.04.112. Northlake then argued to the trial court that the City acted illegally in granting the permit. Because Northlake had no other avenue of review or adequate remedy at law, Northlake met the requirements to obtain a statutory writ of review. The trial court did not err in granting the statutory writ of review.
Further, even if a statutory writ was not available, the trial court could still have issued a constitutional writ under the court's inherent authority to review administrative decisions under article IV, section 6 of the Washington State Constitution. See Saldin Sec., Inc. v. Snohomish County, 134 Wn.2d 288, 292, 949 P.2d 370 (1998). Constitutional review is limited to determining whether the decision or act below was illegal or arbitrary and capricious, and the writ is discretionary with the court. Saldin Sec., 134 Wn.2d at 292, 304. The law is well established that discretion can be exercised when no other adequate remedy at law is available and when the decision below is arbitrary, capricious, or contrary to law. Saldin Sec., 134 Wn.2d at 293-94. If no statutory writ was available, a constitutional writ would have been available to Northlake, subject to the trial court's discretion.
The City's street use permit authority is consistent with state law. Cities have jurisdiction over navigable waters within their corporate limits, and exercise police power to regulate public and private use of those waters. Wash. Const. art. XI, sec. 11; RCW 35.21.160, SMC 16.08.010, Title 16.60. Chapter 79.93 RCW allows private use of a waterway waterward of a federal pierhead line with federal and local permits. The City had statutory authority to issue its street use permit.
IV. Northlake's Use of the Waterway as a Trespass Entitling DNR to Collect Trespass Compensation
Northlake first put structures in Waterway 23 in the 1940s. Northlake's owner testified that although he thinks waterways should be kept completely open, DNR was not regulating use of the waterways at that time and Northlake placed the structures there to make sure that no one else would. Northlake sought City and State permission. Both entities responded that anyone could use the waterways.
Northlake is not the only party with structures in waterways. A DNR land manager testified that she was aware of other structures in other waterways during her tenure. She testified that the Center for Wooden Boats has some structures in Waterway 4. Northlake's owner testified that there is a pier and concrete float in Waterway 22, that Waterway 21 contained so many 'structures, floating structures, dry docks, boat sheds, that you couldn't get a rowboat down the middle of it,' and that Waterway 20 contains Seattle police structures.
In 1971, a King County Superior Court decision held that in the absence of DNR's exercise of its statutory authority to manage the waterways, the City was authorized to do so. The City subsequently implemented a fee-based permit system for waterways. Northlake obtained permits from the City and has paid annual fees to the City from that time through trial. Northlake never received permission from the State for its waterway structure. In 1986, Northlake received letters from the City and DNR acknowledging the adoption of WAC 332-30 and indicating that DNR had been directed to exercise its authority to manage waterways. Northlake did not receive any application forms from DNR until 1996, when its aquatic lands lease (not related to this litigation) expired. Northlake applied for waterway permits at that time but DNR did not act on those over the next decade. DNR had not sought payment or other relief from Northlake until Northlake filed this action, and has not sought payment from other structures in Lake Union waterways even though it is aware of their existence. DNR argues that the trial court erred in finding that Northlake was not trespassing, in finding that the facts tended to show that its counterclaim was brought in retaliation for Northlake's action, and that DNR could take future resource management actions against Northlake only if its actions are consistent with its handling of similarly situated property and not retaliatory.
A. Trespass and Compensation
RCW 79.02.300(1) prohibits trespass on state-owned public lands and makes those who use or occupy public lands without authorization liable to the state for damages. Public lands include aquatic lands and thus waterways. RCW 79.02.010(5), (9); RCW 79.93.010. DNR is authorized to investigate and prosecute trespasses under RCW 79.02.300(3). Trespassers are liable for treble damages unless the trespasser proves that it did not know or have reason to know that it lacked authorization. RCW 79.02.300(1). DNR argues that the 'only logical interpretation of RCW 79.02.300 is that one conducting activity on public lands must obtain authorization from DNR to avoid committing a trespass.' But the statute only requires authorization. As discussed earlier, use of waterways waterward of federal pierhead lines can be authorized with federal permits. Thus DNR can prosecute a trespass if federal permits were not obtained, but not if they were obtained.
The trial court found that Northlake's use of the waterway was with DNR's implied permission. Substantial evidence supports this finding. Northlake's owner regularly contacted DNR about waterway permits and DNR was aware of the Northlake structures. DNR's manager met with and talked to Northlake's owner about waterway permits, and noted that to Northlake's credit, it was willing to sign a lease where other users were resistant. DNR did not seek either payment from Northlake or removal of the structures. Until DNR filed its counterclaims in this action, it acquiesced in Northlake's use of the waterway.
DNR's failure to act does not grant Northlake any continuing right to use the waterway, because adverse possession and prescriptive easements do not lie against the State. See RCW 7.28.090; Pioneer Nat'l Title Ins. Co. v. State, 39 Wn. App. 758, 762, 695 P.2d 996 (1985). Northlake does not claim such a right as to future use.
Northlake has a City permit but does not have express permission from DNR and has not applied for a federal permit. Northlake has submitted as additional authority 33 C.F.R. sec. 330.3(b) (2004). This regulation provides that structures completed before December 18, 1968, are covered by nationwide federal permits, provided that there is no interference with navigation. The trial court found that Northlake 'has constructed and maintained structures on the State's aquatic lands in Waterway 23 for more than 30 years.' This finding is insufficient to determine whether or not Northlake's structures are covered by a nationwide federal permit under 33 C.F.R. sec. 300.3(b). We remand to the trial court to make a factual finding of whether Northlake's use is covered by nationwide permits under this regulation.
If Northlake's use is covered by 33 C.F.R. sec. 330.3(b), the use is authorized for federal purposes. Federal authorization combined with DNR's acquiescence as found by the trial court means Northlake did not commit any trespass at least until DNR revoked its implied permission by giving Northlake notice of its counterclaims. Under Draper, DNR is entitled to collect rent plus interest from the date Northlake placed its structures in the waterway until the date that notice was delivered. Draper, 117 Wn.2d at 318, 325. From the date DNR filed its counterclaim and forward, Northlake and DNR should enter into an agreement for the use which provides for appropriate rental payments. If the parties cannot reach agreement, DNR has authority to collect trespass damages under RCW 79.02.300 beginning the date the notice revoking authorization was given.
Northlake argues that DNR has waived its claim for treble damages by failing to assign error or make an argument supporting a claim of treble damages. However, the trial court did not enter any finding or conclusion on this issue. Rather, its conclusion that Northlake did not trespass precluded any award of trespass damages. Whether treble or single damages are appropriate is an issue for the trial court to resolve on remand.
If Northlake's use is not covered by 33 C.F.R. sec. 330.3(b), it is unauthorized and technically constitutes a trespass under RCW 79.02.300 despite DNR's acquiescence. DNR cannot 'authorize' the use absent the required federal permit. DNR is entitled to collect trespass damages under RCW 79.02.300. However, this statute provides a remedy only for a trespass under state law. Once the State has given express or implied permission, it is equitably estopped from seeking treble damages under the statute. DNR is entitled to collect only trespass damages in the form of unpaid rents from the date Northlake placed its structures in the waterway until DNR filed its counterclaim.
DNR has dropped its claim for treble damages prior to the filing of its counterclaim. We note, however, that DNR also willingly limited its trespass damages to those incurred in the three years prior to its filing of the counterclaim.
From the date DNR filed its counterclaim and forward, Northlake and DNR should enter into an agreement for the use which provides for appropriate rental payments. If the parties cannot reach agreement, DNR has authority to abate Northlake's use and collect trespass damages under RCW 79.02.300 beginning the date the notice revoking authorization was given. We remand to the trial court to determine whether the federal regulation provides federal authorization for Northlake's use, to determine whether the notice given by DNR was sufficient to conclude that Northlake knew or should have known that its use was unauthorized, and thus subject Northlake to treble damages, and to determine the appropriate rent and trespass damages, with interest on those amounts, payable by Northlake.
B. Retaliation and Future Enforcement
DNR argues that the trial court erred in finding that the timing of DNR's counterclaims tended to establish a prima facie case that DNR was retaliating against Northlake as a result of Northlake's suit. DNR further challenges the trial court's conclusion that DNR could not act against Northlake unless its action is consistent with its treatment of similarly situated parties and not motivated by retaliatory reasons. Findings of fact will not be overturned if supported by substantial evidence. 'Substantial evidence exists when the record contains evidence of sufficient quantity to persuade a fair-minded, rational person that the declared premise is true.' Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103, 112, 937 P.2d 154, 943 P.2d 1358 (1997). The finding that the timing of DNR's counterclaims tends to establish a prima facie case that DNR took its action in retaliation for Northlake's exercise of its rights to free speech and to petition for redress is supported by substantial evidence. DNR could have brought its enforcement action prior to Northlake's suit. DNR could have required Northlake to pay rent and obtain a permit rather than to vacate the waterway. The finding only says 'tends to establish.' DNR argues that it was required to file its counterclaim because it was compulsory under CR 13(a). DNR may be correct. But whether or not the claim was compulsory, there was sufficient evidence to support the finding that the timing of DNR's enforcement action 'tends to establish' retaliatory action.
The finding states: 'This timing tends to establish a prima facie case that DNR's enforcement action was taken in retaliation for Northlake's exercise of its rights to free speech and to petition for redress. DNR has failed to establish that it would have taken the enforcement action regardless of Northlake's protected conduct. [NOTE: Having made this finding, in light of the limited evidence and briefing presented, the Court is entering no corresponding conclusion of law.]'
DNR argues that although the court stated it did not enter a corresponding conclusion of law, it did so when it revised conclusion of law 4. The court concluded that its 'ruling does not have any preclusive effect as to future resource management actions by DNR so long as those actions are consistent with its handling of similarly situated property owners and are not taken for retaliatory reasons.'
That a governmental agency takes enforcement action against one of many parties violating a statute or ordinance does not deny that party equal protection, 'absent the use of an arbitrary or prohibited ground to determine specific instances of enforcement.' Somer v. Woodhouse, 28 Wn. App. 262, 267, 623 P.2d 1164 (1981). Moreover, without a deliberate discriminatory purpose on the part of the agency, selective enforcement does not render the agency's action arbitrary and capricious. See Burlington v. Kutzer, 23 Wn. App. 677, 682, 597 P.2d 1387 (1979). Similarly, 'an administrative agency's acquiescence at an earlier time does not estop it from enforcing the law at a later date.' Longview Fibre Co. v. Dep't of Ecology, 89 Wn. App. 627, 636-37, 949 P.2d 851 (1998). The trial court's conclusion only summarizes these requirements for valid agency action. The conclusion does nothing to diminish DNR's future resource management power. DNR retains its full statutory authority to abate improper uses and absent a federal permit for the use at issue, it should exercise this authority. The trial court's conclusion only states that Northlake is entitled to fair treatment by DNR in its enforcement actions. There is no error in this conclusion.
C. Attorney Fees
DNR and Northlake both seek attorney fees under RCW 79.02.300. That statute provides that the trespasser 'is liable for reimbursing the state for its reasonable costs, including but not limited to . . . reasonable attorneys' fees and other legal costs.' The Legislature has made a clear distinction between unilateral and bilateral attorney fee clauses. Some statutes allow attorney fees to the 'prevailing party,' while others allow fees to just one side of the dispute. Compare RCW 59.23.040 (allowing fees to the prevailing party) with RCW 4.28.185(5) (allowing fees to successful out-of-state defendants). The Legislature's decision to expressly limit attorney fee awards under RCW 79.02.300 to the State precludes an award of such fees to Northlake. We remand the attorney fee question to the trial court pending the outcome of further proceedings on the trespass claim. V. Northlake Did Not Fail To Exhaust Its Administrative Remedies DNR argues that Northlake's suit must be dismissed because Northlake failed to exhaust its administrative remedies by appealing the use authorization issued under chapter 79.93 RCW, as provided in RCW 79.90.400 or alternatively because Northlake's claim was an improper rule challenge. DNR argues that Northlake had an adequate remedy at law under RCW 79.90.400. Under this statute,
[a]ny applicant to purchase, or lease, any aquatic lands of the state, or any valuable materials thereon, and any person whose property rights or interest will be affected by such sale or lease, feeling himself or herself aggrieved by any order or decision of the board, or the commissioner, concerning the same, may appeal therefrom in the manner provided in RCW 79.02.030.
Northlake argues that its challenge to DNR's waterway use authorization was not governed by RCW 79.90.400 because the use authorization was not a lease. Thus, Northlake contends, RCW 79.90.400 did not provide it with a remedy at law, and there were no remedies for it to exhaust.
DNR urges the court to hold that the word 'lease' carries a much broader meaning in chapter 79.90 RCW than it does in chapter 79.93 RCW and that a narrow interpretation would create 'absurd' results. But language in chapter 79.90 RCW shows that DNR's suggested interpretation is broader than the Legislature intended. RCW 79.90.470 (emphasis added) provides:
(1) The use of state-owned aquatic lands for public utility lines owned by a governmental entity shall be granted by an agreement, permit, or other instrument if the use is consistent with the purposes of RCW 79.90.450 through 79.90.460 and does not obstruct navigation or other public uses. . . . The department may lease bedlands in front of state parks only after the department has consulted with the state parks and recreation commission.
(2) The use of state-owned aquatic lands for local public utility lines owned by a nongovernmental entity will be granted by easement if the use is consistent with the purpose of RCW 79.90.450 through 79.90.460 and does not obstruct navigation or other public uses.
This statute refers explicitly to 'permit[s],' 'agreement[s],' 'easement[s],' and 'other instrument[s],' in addition to 'lease[s].' When the Legislature uses a particular term in one statute with a particular meaning, it is presumed to have the same meaning when used in another statute on the same subject matter unless the context indicates a different meaning. Garrison v. State Nursing Bd., 87 Wn.2d 195, 197, 550 P.2d 7 (1976). Here, the Legislature distinguished leases from permits and other instruments in RCW 79.90.470. This leads to the conclusion that it intended the same distinction to apply in RCW 79.90.400, a statute on the same subject matter.
The appeals statute does apply to some non-'sale or lease' decisions. But the Legislature provided separate statutory authority to bring these other decisions under the purview of RCW 79.90.400 appeals process. This shows that the basic language of the statute would not otherwise cover these decisions. Otherwise, these statutory provisions would be superfluous. See Kilian v. Atkinson, 147 Wn.2d 16, 21, 50 P.3d 638 (2002) (holding that statutes 'must be construed so that all the language is given effect and no portion is rendered meaningless or superfluous').
See, e.g., RCW 79.90.400 (sale of valuable materials on state aquatic lands); RCW 79.90.105(3) (decisions withdrawing permission for free use of residential docks or mooring buoys); RCW 79.90.320 (appraisals of the value of improvements remaining on an expired leasehold).
Furthermore, the Draper court analyzed a document that was labeled 'lease' but was in fact a permit. Draper, 117 Wn.2d at 319. The Draper court distinguished the treatment of a permit from a lease, holding that merely calling a permit a lease did not change what it was. Draper, 117 Wn.2d at 319 (noting that the term applied to a document by the parties does not determine the nature of the grant, but that the court must look to the nature of the right to learn its true character).
The use authorization was not a lease subject to the appeals process set forth in RCW 79.90.400. We reject DNR's argument that Northlake's challenge to the use authorization is a de facto challenge to DNR rulemaking. Northlake did not challenge DNR's statutory authority to adopt WAC 332-30-117 , but rather DNR's statutory authority to issue this particular permit. Nothing in the WAC purports to authorize DNR to allow structures in conflict with RCW 79.93.040. WAC 332-30-117 'describes the requirements for authorizing use and occupation of waterways under the department's authority.' WAC 332-30-117(1). The rule does not purport to authorize structures in conflict with any statute, and no rulemaking challenge was required.
CONCLUSION
We hold that Northlake did not fail to exhaust its remedies or otherwise improperly bring its action. We hold that RCW 79.93.010 does not prohibit the Rowing Club's use of Waterway 23, and that its use was authorized consistent with state law. We hold that the trial court did not err in granting the statutory writ. We affirm the trial court's grant of summary judgment to DNR and the City. We reverse the trial court's conclusion that Northlake was not trespassing in the waterway, because that conclusion turns on a missing factual determination of whether federal law authorizes Northlake's use. We remand to the trial court for further fact finding and to determine the amount of damages and the award of attorney fees.
GROSSE and BAKER, JJ., concur.