Lake Roosevelt Currents and Undercurrents An Administrative History of Lake Roosevelt National Recreation Area

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

THIS MATTER comes before the Court based upon the parties' cross motions for summary judgment. The plaintiffs are represented by Linwood D. Sampson; the government by Assistant United States Attorney William H. Beatty.

BACKGROUND

The State of Washington (hereinafter "the State") was admitted to the Union in 1889. At that point, the State assumed sovereignty over the beds of navigable waters within its boundaries. See United States v Alaska, 521 U.S. 1, 5, 117 S.Ct. 1888, 1892, 138 L.Ed.2d 231 (1997) ("Under the doctrine of Lessee of Pollard v Hagan, 3 How. 212, 228—229, 11 L.Ed. 565 (1845), new States are admitted to the Union on an 'equal footing' with the original 13 Colonies and succeed to the United States' title to the beds of navigable waters within their boundaries."). Since the Columbia River was a navigable water, the river bed became State property.

In 1935, Congress passed the first of a series of enactments that led to the construction of Grand Coulee Dam and the creation of a substantial reservoir behind the dam. Act of August 30, 1935, Pub.L. No. 74—409, 49 Stat. 1028. This enterprise became part of what is now known as the Columbia Basin Project. Act of March 10, 1943, Pub.L. No. 78—8, 57 Stat. 14 (codified as amended at 16 U.S.C. §§ 835—835m).

The reservoir behind Grand Coulee Dam is named Lake Roosevelt.. See Cassidy v. United States, 875 F.Supp. 1438, 1441 (E.D.Wash.1994). In order to accommodate the creation of Lake Roosevelt, the Federal Government (hereinafter "the government") began acquiring property along the banks of the Columbia River. One of the parcels is situated in Lincoln County, Washington. The property was purchased from Ivah Esther Jump Olsen in 1936.¹

In 1939, the State ceded concurrent jurisdiction over certain lands acquired by the government. Washington Session Laws, ch. 126, § 2 (1939). The Torrisons concede that, at least initially, the 1939 legislation applied to the land the government acquired from Ivah Esther Jump Olsen.²

In 1946, Congress authorized the National Park Service to enter into agreements with other government agencies concerning the administration of land under federal jurisdiction. Act of August 7, 1946, 60 Stat. 885. Codified as 16 U.S.C. § 17j—2(b), the legislation states:

Appropriations for the National Park Service are authorized for —
. . . .
(b) Administration, protection, improvement, and maintenance of areas, under the jurisdiction of other agencies of the Government, devoted to recreational use pursuant to cooperative agreements.

(Emphasis added.) Late in 1946, representatives of the Bureau of Reclamation, the National Park Service, and the Office of Indian Affairs entered into a cooperative agreement to create the Coulee Dam Recreation Area.³ Since then, the area has been administered by the Park Service pursuant to a series of agreements. A few years ago, its name was changed to the Lake Roosevelt National Recreation Area.

In 1981, Edward G. Torrison and Marlene J. Torrison (hereinafter "the Torrisons") bought a parcel of real property that is situated immediately south of the property which the government acquired from Ivah Esther Jump Olsen. The federal land lies between the Torrisons' property and Lake Roosevelt. That part of the Torrisons' property which is closest to Lake Roosevelt is 370 feet from the water when the lake is at its maximum level.

At about the same time the Torrisons bought their property, they obtained a permit from the Park Service for a dock. Besides building a dock, they constructed a cabin with a deck. From 1981 through 1996, the Park Service continued to re-authorize the Torrisons' permit. However, in 1996, the Park Service advised the Torrisons that their permit would not be renewed, and that they would be required to remove their dock.

The Torrisons filed this lawsuit in 1997. In an effort to resolve the dispute, the parties agreed to have the relevant property lines surveyed. The surveys indicate that both the Torrisons' dock and a portion of their deck lie on government property.

AUTHORITY TO REGULATE

The Constitution's Property Clause provides that "Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." U.S. Const. art. IV, § 3, cl. 2. Based upon that provision, it is clear that Congress has the authority to regulate the land it acquired in connection with the creation of Lake Roosevelt. See Kleppe v. New Mexico, 426 U.S. 529, 542, 96 S.Ct. 2285, 2293, 49 L.Ed.2d 34 (1976) . Neither side disagrees with that proposition. Rather, they differ with respect to whether Congress has delegated to the Park Service its power to regulate docks in the Lake Roosevelt National Recreation Area. The Park Service insists it possesses such authority by virtue of the National Park Service Organic Act of 1916, 16 U.S.C. S 1 et seq. The Torrisons challenge the Park Service's interpretation of that statute. They deny the Park Service has the power to demand the removal of their dock.

The dispute over the Park Service's interpretation of its Organic Act raises two issues. Chevron. USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842—44, 104 S.Ct. 2778, 2781—82, 81 L.Ed.2d 694 (1984) (hereinafter "Chevron"). The first issue is "whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; . . . ." Id. at 842, 104 S.Ct. at 2781. However, if Congress has not spoken directly, a second issue must be considered. The second issue "is whether the agency's answer (to the unresolved question] is based on a permissible construction of the statute." Id. Given the framework established by Chevron, it is appropriate to begin with the text of the Organic Act.

During both 1970 and 1978, Congress amended the Organic Act. National Park System General Authorities Act, Pub.L. No. 91—383, 84 Stat. 825 (1970); Redwood National Park, Pub.L. No. 95—250, 92 Stat. 163 (1978). Not only did Congress incorporate recreation areas into the National Park System, but Congress also required "that they be managed consistently with the rest of the system." See Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1452—53 (9th Cir.1996) (hereinafter "Bicycle Trails Council"). As a result of the 1970 amendment, the National Park System now includes "any area of land and water now or hereafter administered by the Secretary of the Interior through the National Park Service for park, monument, historic, parkway, recreational, or other purposes." 16 U.S.C. § 1c(a). The Lake Roosevelt National Recreation Area fits comfortably within that definition.

Since the Lake Roosevelt National Recreation Area is part of the National Park System, the Park Service must manage it in a manner "consistent with and founded in the purpose established by section 1 of this title, to the common benefit of all the people of the United States." 16 U.S.C. § la-i. That purpose "is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations." 16 U.S.C. § 1 (emphasis added).

Section 2 of the General Authorities Act outlines the authority Congress has conferred upon the Park Service to accomplish its responsibilities. Codified as 16 U.S.C. § 1c(b), the legislation states in part:

Each area within the national' park system shall be administered in accordance with the provisions of any statute made specifically applicable to that area. In addition, the provisions of sections 1b to ld of this title, and the various authorities relating to the administration and protection of areas under the administration of the Secretary of the Interior through the National Park Service, . . . , shall, to the extent such provisions are not in conflict with any such specific provision, be applicable to all areas within the national park system and any reference in such Act to national parks, monuments, recreation areas, historic monuments, or parkways shall hereinafter not be construed as limiting such Acts to those areas.

(Emphasis added). As can be seen, neither § 1c(b) nor any other section in the Organic Act specifies how the National Park System is to be managed. The Torrisons interpret the Organic Act's lack of specificity in that regard as a limitation on the authority of the Park Service. The Ninth Circuit has not adopted that interpretation, concluding instead that the absence of specifics means that "'the Park Service has broad discretion in determining which avenues best achieve the Organic Act's mandate . . .'" See Bicycle Trails Council, 82 F.3d at 1454 (quoting National Wildlife Federation v. National Park Service, 669 F.Supp. 384, 390 (D.Wyo.1987)).

The Park Service has determined it must regulate docks within the Lake Roosevelt National Recreation Area in order to fulfill its responsibilities under the Organic Act. Given the structure of the Organic Act, especially after the 1970 and 1978 amendments, this appears to be precisely the type of determination Congress intended the Park Service to make. Thus, while the Organic Act does not specifically authorize the Park Service to regulate docks within the Lake Roosevelt National Recreation Area, and while reasonable minds may differ regarding the wisdom of the policy adopted by the Park Service, its policy reflects a permissible construction of its Organic Act. If follows that the Park Service does have the power to demand the removal of private structures that encroach upon the Lake Roosevelt National Recreation Area.

ESTOPPEL

The Torrisons insist they relied upon Park Service boundary markers in determining where to construct their dock and their deck. Claiming their reliance was justified, the Torrisons argue the Park Service should be estopped from disputing the validity of markers that have now been determined by survey to be incorrect.

The Torrison's argument is unpersuasive. As they concede, "[i]n order for equitable estoppel to apply against the government, the government must have engaged in 'affirmative misconduct going beyond mere negligence' and caused 'a serious injustice.'" Cedars-Sinai Medical Center v. Shalala, 177 F.3d 1126 (9th Cir.1999) (quoting Watkins v. United States Army, 875 F.2d 699, 707 (9th Cir.1989)). Here, there is absolutely no evidence of misconduct on the part of the government.

STATE LAW⁴

The Torrisons insist Congress has decided to defer to the State concerning the existence of riparian rights⁵ within the Columbia Basin project. In support of that contention, they cite 16 U.S.C. § 835-1, which is a 1962 amendment to the Columbia Basin Project Act. Section 835—1 states, "The Columbia Basin project shall be governed by the Federal reclamation laws, being the Act of June 17, 1902 (32 Stat. 388), and all Acts amendatory thereof or supplementary thereto." As the Torrisons point out, Section 8 of the Reclamation Act of 1902 states:

"[N]othing in this Act shall be construed as affecting or intended to affect or in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with such laws, and nothing herein shall in any way affect any right of any State or of the Federal Government or of any landowner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof...."

43 U.S.C. § 383. While the Torrisons concede the State does not recognize riparian rights per se,⁶ they insist the State has adopted a policy favoring the construction of docks. In light of that policy, say the Torrisons, they should be allowed to retain their dock.

There are two problems with the Torrisons' argument. First, in Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 280, 78 S.Ct. 1174, 1178, 2 L.Ed.2d 13,13 (1958), the Supreme Court distinguished between the acquisition of water rights and the operation of federal projects. Section 8 applies to the former, said the Supreme Court, not the latter.⁷ Second, even if the Torrisons' interpretation of section 8 is correct, and state law does have some relevance in this action, the Torrisons cannot save their dock.

The Legislature of the State of Washington has enacted a statute giving landowners a revocable license to build docks on navigable waters. See Caminiti v. Boyle, 107 Wn.2d 662, 668, 732 P.2d 989 (1987). The statute is RCW 79.90.105, and it states:

The abutting residential owner to state-owned shorelands, tidelands, or related beds of navigable waters, other than harbor areas. may install and maintain without charge a dock on such areas if used exclusively for private recreational purposes and the area is not subject to prior rights. This permission is subject to applicable local regulation governing construction, size, and length of the dock. This permission may be revoked by the department upon finding of public necessity which is limited to the protection of waterward access or ingress rights of other landowners or public health and safety. The revocation may be appealed as an adjudicative proceeding under chapter 34.05 RCW, the Administrative Procedure Act. Nothing in this section prevents the abutting owner from obtaining a lease if otherwise provided by law.

(Emphasis added.) Given the terms of RCW 79.90.105, the Torrisons can qualify for a license only if their land abuts state-owned "shorelands" or "related beds of navigable waters." Whether the Torrisons can make the requisite showing depends upon what the key terms mean.⁸

Shorelands can be either "first class" or "second class." RCW 79.90.040; RCW 79.90.045. In either case, shorelands" means "the shores of a navigable lake or river belonging to the state, not subject to tidal flow, lying between the line of ordinary high water and the line of navigability, . . . ." RCW 79.90.040; RCW 79.90.045.

Traditionally, the ordinary high water mark has been understood to be the line that separates the shorelands from the adjoining upland. Cf. Ghione v. State, 26 Wn.2d 635, 651, 175 P.2d 955 (1946) ("accretions, by definition, situate below the line of ordinary high tide or ordinary high water which marks the boundary between tide or shore land and the adjoining upland") . At least for purposes of RCW Chapter 79.90, the shorelands extend downward from the ordinary high water mark to the line of navigability, which separates the shorelands from the bed of a river. See generally Davidson v. State, 116 Wn.2d 13, 20—23, 802 P.2d 1374 (1991) (discussing relationship between "inner harbor line" and "line of navigation").

The term "beds of navigable waters" means "those lands lying waterward of and below the line of navigability on rivers and lakes not subject to tidal flow, or extreme low tide mark in navigable tidal waters, or the cuter harbor line where harbor area has been created." RCW 79.90.050. Put somewhat differently, "Bedlands are those lands lying beyond the line of navigability of rivers and lakes and those lands beyond the low tide mark of tidal waters." Caminiti, 107 Wn.2d at 665 n.4.

The geographic relationship of these terms can be demonstrated in the following manner: Suppose some curious person gets out of his car and begins walking toward the river. When he reaches the ordinary high water mark, he has reached the boundary between the upland and the shorelands. If he steps across the ordinary high water mark, he has stepped from the upland onto the shorelands. Most times of the year, the actual water level will be lower than the ordinary high water mark. Thus, most times of the year, our curious observer will have to walk at least a few steps down the slope before he comes to the edge of the water. If our observer begins wading out into the water, eventually he will reach the line of navigability. At that point, he has reached the bed of the river.

In view of the preceding analysis, the dispositive issue for purposes RCW 79.90.105 is whether the Torrisons' property abuts the ordinary high water mark. If it does their property abuts shorelands, and they might be able to invoke the statute. By contrast, if their property does not abut the ordinary high water mark, their property does not abut the shorelands, and they may not invoke the statute.

As the record now stands, it is not entirely clear where the ordinary high water mark lies along this stretch of the Columbia River. Presumably, however, it is no further up the river bank than the point at which Lake Roosevelt reaches its maximum level. If that assessment is correct, the Torrisons reliance upon RCW 79.90.105 is misplaced. According to undisputed facts, the government's land lies between the ordinary high water mark and the Torrisons' property.

The Torrisons seek to avoid that conclusion by seizing upon the word "related" as used in the phrase "related beds of navigable waters." According to the Torrisons, the presence of the word "related" must signify an area associated with the bed of the river. They seem to be arguing that the phrase "related beds of navigable waters" includes that area from the line of navigability up to the ordinary high water mark. In other words, the phrase "related beds of navigable waters" means roughly the same thing as shorelands. Even if the Torrisons are correct in that regard, their interpretation of the statute will not save their dock. As even they appear to concede, the government's land lies between the shorelands and their property. Thus, the Torrisons are reduced to arguing that their dock should be allowed to remain as a matter of public policy. Id. at 5. That will not do. The Torrisons' public policy arguments fall well short of the standard necessary to justify judicial interference in the Executive Branch's performance of legislatively conferred responsibilities.

IT IS HEREBY ORDERED:

1. The Torrisons' motion for summary judgment (Ct. Rec. 23) is DENIED.

2. The motion for summary judgment brought by the United States (Ct. Rec. 27) is GRANTED.

3. The Torrisons' claims against the United States are dismissed with prejudice.

4. The United States is entitled to the security posted by the Torrisons.

IT IS SO ORDERED. The District Court Executive is hereby directed to enter this order and furnish copies to counsel.

DATED this 27th day of September, 2000.

Fred Van Sickle
Chief United States District Judge

¹The Torrisons have withdrawn a request to add a quiet title claim. 28 U.S.C. §§ 2409a and 1346(f). Consequently, they will not be heard to suggest that Ivah Esther Jump Olsen conveyed less than her entire interest in the property.

²The act also said that the jurisdiction so ceded to the government would cease if "the United States shall for five consecutive years fail to use any such land for the purposes of the grant or acquisition, . . ." Washington Session Laws, ch. 126, § 2 (1939) . That limitation is of no significance in this case. For one thing, the government continuously has maintained Grand Coulee Dam and Lake Roosevelt. For another, the government does not need the State's consent to regulate federal property in the State. See State of Nevada v. Watkins, 914 F.2d 1545, 1554 (9th Cir.1990), cert. denied, 499 U.S. 906, 111 S.Ct. 1105, 113 L.Ed.2d 215 (1991).

³The 1946 agreement may not have been the first agreement. Although the record is not entirely clear, there is some indication that, as early as 1942, the Bureau of Reclamation and the National Park Service reached an understanding concerning Lake Roosevelt.

⁴The two preceding determinations — i.e., that the Park Service is authorized by if s Organic Act to demand the removal of the Torrisons' dock, and that the Park Service is not estopped from issuing such a demand -- make it unnecessary to consider the Torrisons' remaining arguments. However, in the interest of completeness, the Court will do so.

⁵A "riparian right" is "[t]he right of a landowner whose property borders on a body of water or watercourse. Black's Law Dictionary 1328 (7th ed.1999).

⁶When the State adopted its constitution in 1889, "the State claimed ownership over all submerged lands in navigable waters up to and including the line of ordinary high water. Const. art. 17, § 1. The declaration of State ownership divested upland owners of all riparian rights, including the right of access to deep water." Davidson v. State, 116 Wn.2d 13, 25, 802 P.2d 1374 (1991) (citing Eisenbach v. Hatfield, 2 Wash. 236, 26 P. 539 (1891)). Thus, even if the Torrisons' land abutted the ordinary high water mark of the Columbia, which it does not, the Torrisons would not be. entitled to access to the river as a matter of right.

⁷In California v. United States, 438 U.S. 645, 674—75, 98 S.Ct. 2985, 3000—3001, 57 L.Ed.2d 1018 (1978), the Supreme Court disavowed certain dicta in Ivanhoe. In doing so, it said, The legislative history of the Reclamation Act of 1902 makes it abundantly clear that Congress intended to defer to the substance, as well as the form, of state water law." 438 U.S. at 675, 98 S.Ct. at 3001.

⁸RCW Chapter 79.90 begins with a number of definitions. The Washington Supreme Court has relied upon those definitions in explaining RCW 79.90.105. Caminiti, 107 Wn.2d at 665 n.4.