Could boaters attach anchor buoys to state oyster-lease tidelands in 1965?

Plain-English summary

In 1965, the Washington Attorney General concluded that members of the public could not attach boat anchor buoys to submerged land held under a state oyster lease when the buoys interfered with the lessee’s primary right to cultivate oysters. The lease did not automatically end the public’s right to navigate over the area; that right was limited only where it conflicted with the legitimate exercise of the oyster lease. (Official opinion)

The opinion addressed interference by anchored buoys, rather than a general ban on vessels passing over leased tidelands.

Currency note

This opinion was issued in 1965. 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

Could anyone place an anchor buoy on a leased oyster bed?
Not if it interfered with the lessee’s oyster cultivation rights, according to the AG.

Did an oyster lease close the waters to all public navigation?
No. The AG said the lease did not automatically terminate public navigation rights.

What controlled when navigation and cultivation conflicted?
The opinion protected the lessee’s fair, useful, and legitimate exercise of oyster-cultivation rights against conflicting uses.

Background and statutory framework

Pierce County’s prosecutor asked about members of the public fastening anchor buoys to tidelands leased for oysters under RCW 79.01.568 and following provisions. The AG relied on the exclusive cultivation rights conferred by the lease and distinguished those rights from navigation that did not conflict with cultivation.

Citations and references

• The opinion says “no anchor buoys may be attached which interfere with the oyster lessee's primary rights to engage in oyster culture.”
• It says the lease “does not automatically terminate all public rights of navigation over the premises in question.”

Subject

PUBLIC LANDS - LEASE ‑- OYSTER BEDS ‑- ATTACHMENT OF BOAT ANCHOR BUOYS BY GENERAL PUBLIC

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/public-lands-lease-oyster-beds-attachment-boat-anchor-buoys-general-public

Original opinion text

Attorney General John J. O'Connell

PUBLIC LANDS ‑- LEASE ‑- OYSTER BEDS ‑- ATTACHMENT OF BOAT ANCHOR BUOYS BY GENERAL PUBLIC.

Members of the general public may not attach boat anchor buoys to lands under tidewaters which are subject to an oyster lease issued by the state pursuant to RCW 79.01.568, et seq., where the anchor buoys would interfere with the oyster lessee's primary rights to engage in oyster culture.

May 20, 1965

Honorable John G. McCutcheon
Prosecuting Attorney
Pierce County
Tacoma, Washington

Cite as: AGO 65-66 No. 19

Dear Sir:

By letter previously acknowledged you have asked whether a member of the general public may attach boat anchor buoys to lands under tidewaters which are subject to an oyster lease issued by the state pursuant to RCW 79.01.568,et seq.

We conclude that no anchor buoys may be attached which interfere with the oyster lessee's primary rights to engage in oyster culture.

ANALYSIS

It is well settled that a state may grant to a private individual the exclusive use for oyster propagation of lands underlying tidewaters. McCready v. Virginia, 94 U.S. 391 (1876). The grant of exclusive use has long been the established policy of this state. See,Palmer v. Peterson, 56 Wash. 74, 105 Pac. 179 (1909);Sequim Bay Canning Co. v. Bugg, 49 Wash. 127, 94 Pac. 922 (1908);Herrold v. Case, 42 Wn.2d 912, 918-23, 259 P.2d 830 (1953) (dissenting opinion).

Once a person acquires the exclusive right under our laws to use such lands for oyster propagation, any interference with his rights will be enjoined,Sequim Bay Canning Co. v. Bugge, supra, even where interference results from an exercise of [[Orig. Op. Page 2]] otherwise permissible rights of navigation,Palmer v. Peterson, supra. This rule is applicable, we think, to one who would attach an anchor buoy to submerged land held by another for oyster raising.

Of course the issuance of an oyster lease under RCW 79.01.568,et seq., does not automatically terminate all public rights of navigation over the premises in question. The right of navigation in tidewaters is an important public right that public policy will ordinarily preserve. Cf. Anderson v. Columbia Contract Co., 94 Ore. 171, 184 Pac. 240, 185 Pac. 231 (1919). It is our opinion that the issuance of such a lease limits rights of navigation only insofar as navigation conflicts with the fair, useful, and legitimate exercise of rights under the state oyster lease.

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

Very truly yours,

JOHN J. O'CONNELL
Attorney General

HAROLD T. HARTINGER
Assistant Attorney General