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

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.

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                                                                   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