Could Washington's fisheries director let a waterfront owner use state tidelands reserved for public recreation?

Plain-English summary

In 1964, the Washington AG concluded that the state fisheries director had no authority to give an abutting upland owner private use of tidelands reserved for public recreation and personal fishing. The statute withdrew the specified tidelands from sale or lease. A neighboring landowner's access to them was a separate question from private use of the tidelands.

The AG read the provision authorizing public and private access, including roads and docks, as a way to reach the reserved public areas. It did not read the word “private” in that access provision as permission to grant an exclusive private use of the tidelands.

Currency note

This opinion was issued in 1964. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did “private access” let an adjoining owner privately occupy reserved tidelands?
A: No. The AG distinguished an access route to the public area from a grant of private use of the area itself.

Q: Could the fisheries director provide roads or docks to reach those tidelands?
A: The opinion quoted RCW 79.16.176 as authorizing appropriate action to provide public and private access, including roads and docks.

Q: Why did the AG reject a private-use grant?
A: The tidelands described by RCW 79.16.175 had been withdrawn from sale or lease and reserved for recreation and personal fishing. The AG said a grant of private use would conflict with that purpose.

Background and statutory framework

The question came from the director of the Department of Fisheries. The AG considered RCW 79.16.175's reservation of specified public tidelands and RCW 79.16.176's access authority together. Its conclusion was limited to the director's authority to grant private use to abutting upland owners under those provisions.

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/offices-and-officers-state-department-fisheries-tidelands-reserved-state-recreational

Original opinion text

Attorney General John J. O'Connell

OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF FISHERIES ‑- TIDELANDS RESERVED TO STATE FOR RECREATIONAL AND FISHING PURPOSES ‑- NO AUTHORITY TO GRANT PRIVATE USE.

The director of the department of fisheries does not have the authority to grant private uses of tidelands reserved by the state under RCW 79.16.175 to abutting upland owners.

February 19, 1964

Honorable George C. Starlund
Director, Department of Fisheries
115 General Administration Building
Olympia, Washington

Cite as: AGO 63-64 No. 85

Dear Sir:

By letter previously acknowledged you have requested an opinion of this office on a question which we have paraphrased as follows:

Does the director of the department of fisheries possess the authority to grant private uses of tidelands reserved by the state under RCW 79.16.175 to abutting upland owners?

We answer your question in the negative for the reasons set forth in the analysis.

ANALYSIS

RCW 79.16.175 (§ 1, chapter 387, Laws of 1955), provides in relevant part as follows:

"The following described tidelands, being public lands of the state, are withdrawn from sale or lease and reserved as public areas for recreational use and for the taking of fish and shellfish for personal use as defined in RCW 75.04.070:"

RCW 79.16.175 further describes the tidelands set aside for recreational use by the general public within the state of Washington.

RCW 79.16.176 (§ 2, chapter 387, Laws of 1955), provides as follows:

"The director of fisheries may take appropriate action to provide public and private access, including roads and docks, to and from the tidelands herein described."

[[Orig. Op. Page 2]] In order to determine legislative intent as to a portion of a statute, that portion must be considered in relation to the entire legislative enactment and the over-all purpose of the legislature. Crippen v. Pulliam, 61 Wn.2d 725, 380 P.2d 475 (1963). In accordance with this familiar rule of statutory construction, the purpose of the legislature in creating these public recreational areas becomes apparent since the statute does not grant the director authority to sell or lease the described tidelands. It may be reasonably concluded that he has no authority to grant a private use. Any other construction of these statutes would violate the obvious purpose of this legislation, which was to establish a public area for recreational and fishing purposes.

The word "private" in RCW 79.16.176 is not inconsistent with the legislative purposes as embodied in RCW 49.16.775. By virtue of this statute, the director is given authority to provide public and private access to and from the tidelands for the public's use of recreational and fishing use of these reserved areas. RCW 79.16.176 does not constitute a delegation of authority to the director to grant private uses to owners of abutting uplands.

We trust the foregoing information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

JOSEPH L. CONIFF
Assistant Attorney General