The Court of Appeals, Division II, issued an opinion today upholding a trial court’s refusal to force the state Department of Natural Resources (DNR) to take action against Eagle Harbor liveaboards. The decision is another blow to the efforts of Bainbridge Citizens United (BCU) and its director, Gary Tripp, to rid Eagle Harbor of boats which, they argue, are trespassing on public lands. DNR has been working with officials on Bainbridge Island on a harbor management plan, and has not taken action to evict boats in Eagle Harbor, in spite of BCU’s claims that DNR is required to do so under state law.
BCU and Tripp brought a lawsuit in Kitsap Superior Court after DNR took a formal position that it’s allowed by applicable state law to work with the liveaboards as it sees fit. BCU/Tripp asked the trial court to require DNR to evict the liveaboards. The trial court denied BCU/Tripp’s request, granted summary judgment in favor of DNR and left DNR free to work with harbor issues in its discretion.
On appeal, BCU/Tripp again argued that approximately 50 boats were trespassing on state-owned aquatic lands in Eagle Harbor. They claimed the vessels, rafts, and buoys created a navigation hazard, adversely the health and safety of BCU members (who are waterfront and upland owners of residential and commercial property, according to court filings), interfered with waterfront amenities, adversely impacted views and property values, and caused problems for property owners. They argued that the DNR ”failed to fulfill mandatory enforcement obligations under…[the regulations] against vessels trespassing in Eagle Harbor. Thus, United claims that the trial court erred when it summarily dismissed its action.”
For a variety of technical reasons, the Court of Appeals denied BCU/Tripp’s appeal, saying, ”The sole question that United presented was whether the Department properly applied or administered…[the regulations] when it chose not to enforce these regulations against alleged Eagle Harbor trespassers in the manner United demanded. Neither party contends that the regulations are ambiguous and courts do not engage in judicial construction of unambiguous regulations.”
You can read the entire opinion here.
Can’t believe I’ll actually say this, but yay, DNR!! I believe the liveaboards enhance this community. Thanks for the good news!
‘Trespassing on public lands’ … how is that possible?
The homeless do it all the time…
State Parks are public lands. Could one be at a camp site and refuse to pay? Or to sneak into a National Park with failure to pay? Could one be cited for being in a public park that is closed to the public in the middle of the night. Sure it is possible to tresspass.
Its not surprising that a state agency would defend itself when faced with this type of legal action however DNR has been extremely patient as it waits for the City of BI to sort out how it will manage Eagle Harbor. We will hopefully see Council adopt a municipally managed marina plan sometime this summer that will enable the users of the harbor to be in compliance with the state laws that regulate the use of publicly owned aquatic lands. There will be moorage agreements, usage rules and fees that boat owners wishing to stay will be required to comply with just like any other marina. If no marina plan is adopted and implemented by BI then the outcome that BCU/Tripp has been pushing for would most likely occur as DNR would have no other choice than to enforce state regulations which would result in no long term use of the harbor (stays over 30 days).
Gary Tripp and BCU circulated this email today:
Bainbridge Citizens will appeal the Court of Appeals decision to dismiss BC suit seeking to have DNR enforce their own regulation against the trespass and illegal use of states aquatic lands. Court of Appeals’ decision was based not on the merits of the case but on their opinion that the case should have been handled by Administrative Procedure Act (APA) and not by the courts. Both the DNR and BC agreed that there was no APA appeal available for BC to resolve the issue.
BC will appeal on the following grounds
1. There was no APA appeal available to BC
2. DNR issued an Environmental Impact Statement indicating the illegal use of State aquatic land has significant negative impacts, including pollution and navigation hazards.
3. DNR spent three years holding public hearing and taking public comments in order to write regulations for the use of state aquatic land and the regulations were enacted by the state legislature. This is called the Rule Making Process.
4. DNR issued regulations requiring that when DNR is notified of illegal use, it is required to send a notice to the boats illegally using state aquatic lands and evict them.
5. DNR refuses to enforce their own regulations.
6. DNR refusal to enforce the regulations amount to DNR making new regulations without going through the Rule Making Process.
A government that makes or changes the regulation without a vote of the citizens elected representatives is a dictatorship of the bureaucracy.
Bainbridge Citizens (BC), a Washington non-profit corporation, has sued the State of Washington’s Department of Natural Resources (DNR) to compel the Department to enforce its own regulations against trespass on public aquatic lands. BC informed DNR of 87 live-aboards, boats, rafts and buoys illegally trespassing on public aquatic land in the center of Eagle harbor, Bainbridge Island, Washington. BC asked DNR to enforce the WAC and RCW prohibiting unauthorized use of public lands. DNR refused to enforce the WACs and remove the boats trespassing on public aquatic lands. Bainbridge Citizens has filed writ of mandamus asking a judge to compel DNR to enforce Washington State regulations against trespass and unauthorized use of public aquatic lands. BC is represented by Dennis Reynolds of Bainbridge Island
Bainbridge Citizens explains why it has sued DNR
There is no political-will with either the City of Bainbridge Island or the Department of Natural Resources (DNR) to solve the serious problem of 50 boats being illegally anchored on public lands in Eagle Harbor for the last 20-years. Bainbridge Citizens has been forced to file a writ-of mandamus to compel DNR to enforce its own regulation against unauthorized use of publicly owned aquatic land in order to protect the citizens of Bainbridge, their property, their businesses and to protect the environment from the dumping of sewage and trash into the harbor. Bainbridge Citizens sued DNR because the individual homeowners and business owners were afraid to sue because of threats against themselves, their children and their property by the live-aboards and owners of boats illegally anchored in the harbor.
The Law:
All the land below the extreme low tide mark is owned by the State of Washington and is public land. This public land, like the state forests, is managed by the Department of Natural Resources.
WAC 332-30-127 – Unauthorized use and occupancy of aquatic lands (see RCW 79.94.170). No boat can legally anchor in the same area on state aquatic land for longer than 30 days without having a DNR lease. “In the same area” means within a radius of five miles of any location.
WAC 332-30-171 – Residential uses on state-owned aquatic lands. All boats used as residences must be in a shore-side or open-water marina with upland sewage and trash disposal.
For twenty years, from 1985 to 2005, Bainbridge Island has had a problem with illegally anchored boats, houseboats and live-aboards trespassing on DNR land in the center of Eagle Harbor. This situation has caused Eagle Harbor to no longer be a destination for recreational boaters. Restaurants and shops in Winslow have lost business, because of the lack of boat traffic. Property owners on the north and south side of the Eagle Harbor have had their property vandalized and have had threats made against them and their children for reporting trash and sewage being dumped into the harbor by the live-aboards, and for complaining about boats trespassing on state-owned aquatic land. Property owners on the south side of the harbor have been unable to use the buoys they legally leased from DNR, because of encroachment by illegally moored boats.
None of the boats have complied with the City of Bainbridge Island’s regulations passed in 1999 requiring annual registration of live-aboards, payment of registration fee, proof of seaworthiness, and compliance with state and federal health, safety and environmental protection regulation. The boats and live-aboards have not complied with the 2002 WAC’s prohibiting unauthorized use of aquatic lands. The live-aboards also have not complied with the requirement to move into shore-side marine moorage. And none of the live-aboards have complied with the requirement for sealed sewage holding tanks and city monitored pump-outs and upland disposal of sewage and trash.
The City of Bainbridge Island has worked for over 15 years trying to find a way to accommodate the live-aboards. Recently the Harbor Commission proposed that the City of Bainbridge Island lease the land from the DNR and release it to boat owners and live-aboards. The proposed Eagle Harbor Anchorage and Moorage Plan would have required the boats to pay $300 to $1000 per boat to cover the cost of the DNR lease, sewage pump-out service, trash collection, and administrative fees for the open water marina. This plan was rejected by the live-aboard as being too intrusive and too expensive.
The boats anchored in Eagle Harbor are illegally trespassing on public lands. DNR has been notified numerous times over the last twenty years of illegal trespass of boats on State public lands and has repeatedly refused to enforce its own regulations. Bainbridge Citizens has been force to sue DNR to compel them to enforce their own regulations.
Can you imagine driving your camper into the state forests, setting up camp, dumping your sewage into the nearest stream and throwing your trash in pit behind your camper, not being evicted for trespass on public land for 20 years? That is exactly the situation we have in the center of Eagle Harbor. It is sad that we have to sue the State just to get them to enforce their own regulations to stop the trespass on public aquatic lands and to stop the dumping of raw sewage and trash into the harbor.
Bainbridge Citizens
Drive down from Oxnard and try to get a burger at the Balboa Bay Club.
Once upon a time that was a public marina, too; but even if the maitre d’ loans you a jacket this evening, you’d better be a very public person, just to get inside the gate and tip your toes into the lowest tide…
To Ms. C, Olsen, and Anonymous.
No more war of words here. Take it outside.
Concur, we don’t need libel of a citizen we will leave unnamed. the discourse was frankly reminding me of the good old days of the buzz (not) with some of the colorful rhetoric. Funny it wasn’t deleted with the first foray. Whatever !!
Welcome aboard!~This is where I live:
Things here are way cool, unless, I forget my eyes stare outside my head. Without a mirror, or if someone’s staring back at me, I can’t tell you if I’m living in a puddle of feng shui; or I’ve dropped anchor in a cow pie.
I wanted a creaking, heavy, yawing teak hull with slow seeping leaks, like the springs at the bottom of every hill taller than 500′ on the Island that would bubble up; before Dan Evans and his crew got involved and everyone wanted clean drinking water. So, I go a quiet glass hull.
In those old days, I yelled for transparent everything. Ask Jane Fonda – she’s got my fan letters. Speaking of transparent, I’m looking at what’s left of Webster’s Unabridged Second (it’s been a cold spring, and that almost transparent India paper makes damned good kindling); providentially ‘diplomacy’, preceded by ‘diploma’ and followed by ‘diploma mill’ remain extant: “2. Dexterity or artfulness in securing advantages without arousing hostility; address or tact in conduct of affairs.”
With a 34 footer, you’d think it wouldn’t take me too long to make up my mind. Just a long walk off the short prow… It’s like trying to decide which page of the dictionary I won’t need later, when I’m cold now.
Conserve is still there, too. After conservatory. In the second sense “1. To keep in a safe or sound state; to save; to preserve from change or destruction. 2. Obs. a) to maintain in continued being.”
When I moved out onto the Harbor, if you had called me a “conservative diplomat”, those would be fighting words. I would have cleaned your clock. Now, just like my glass hull, the label seems to suit me fine.
I’m not going to shout across the bow, and argue who’s the better man. If the worse I’ve done is become a conservative diplomatic, then you can waste your time (and your money) and sue me.
Sure, I’ll have to pull up anchor, put the whole mess on a trailer, including the calamondin orange, the Meyer lemon and a few buckets of raspberries whose reddish purple fruit I sell to Chez Panisse in late spring. We’ll have to move Kali, the pygmy goat who still gives almost a pint every morning; and both hens, Lavinia and Livia, politely laying in different boxes each for two years. They may stop laying altogether, if they have to be moved, but I won’t sue you, just because I’m not getting fresh eggs for my breakfast. I like the ones down Poulsbo farmers’ market way, fine.
As a conservative, and a diplomatic man, I’ve had to take on some jobs and put up with some business I never expected when I floated in here. I just don’t want Livia or Lavinia paying for my mistakes. Do ya catch my drift, buddy?
A diplomatic man may publicly admit he was wrong; and a conservative man can announce in the morning that he got carried away. Shoot! I’m looking around the cabin, and like Oscar Wilde, the last thing I have to say, is, “Either that wall paper goes, or I do”.