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6 7 UNITED STATES DISTRICTCOURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 KING COUNTY, CASE NO.3:20-cv-60-DEG-SKV 11 Plaintiff, ORDER CERTIFYING QUESTION 12 v. TO WASHINGTON STATE SUPREME COURT 13 MICHAEL J. ABERNATHYet al., 14 Defendants. 15 16 This matter comes before the Court sua sponte. The Court, being fully advised, certifies 17 the following constitutional question to the Washington State Supreme Court pursuant to 18 Washington Revised Code § 2.60.020: 19 Is a right of way approved by the United States Department of the Interior under the General Railroad Right–of–Way Act of 1875, 43 U.S.C. §§ 934–939, a 20 conveyance “patented by the United States” under Article XVII, § 2 of the Washington State Constitution? 21 I. BACKGROUND 22 This lawsuit concerns a 3.6-mile section of land along the eastern side of Lake 23 Sammamish in Washington State, the western edge of which runs over shoreland. (Dkt. No. 96 24 1 at 2.) The Corridor originally came to be in 1887 when the federal government granted the 2 Seattle, Lake Shore & Eastern Railway Company (“SLS&E”) a “right of way” to build a 3 railroad, which it did, under the General Railroad Right-of-Way Act of 1875, 43 U.S.C. §§ 934- 4 939 (“1875 Act”). (Id.) In 1998, the then out–of–service rail corridor (the “Corridor”) was 5 “railbanked”under the National Trails System Act Amendments of 1983, 16 U.S.C. § 1247 et
6 seq., and later deeded to Plaintiff King County, which currently operates the Corridor as a public 7 trail. (Id.) 8 On July 26, 2021, Magistrate Judge S. Kate Vaughan, to whom this case was referred, 9 issueda Report and Recommendation (“R&R”) resolvingmotions for summary judgment filed 10 by all parties (Dkt. Nos. 40, 48, 65). (Dkt. No. 96). The R&R foundthat the strip of shoreland 11 within the Corridor had been “patented”by the federal government prior to Washington 12 becoming a state, and therefore, that Washington had disclaimed its interest in that land under 13 Article XVII, § 2of the Washington State Constitution. (Dkt. No. 96 at 19–26.) Because 14 Washington had disclaimed its interest in that shoreland, Washingtonnever hadauthority to sell
15 the land to the Defendants’ common predecessor in interest,thereby making King County the 16 true owner. (Id.at 26.) 17 On May 26, 2022, the Court requested briefing limited to whether the Court should 18 certify the question of whether the right of way granted under the 1875 Act granted a “patented” 19 right underArticle XVII, § 2. (Dkt. No. 140.) Defendants responded in opposition to 20 certification (Dkt. No. 144), and Plaintiff King County responded in support of certification 21 (Dkt. No. 145). 22 23 24 1 II. DISCUSSION 2 Under Washington law, a federal court may certify a question to the Washington State 3 Supreme Court when “it is necessary to ascertain the local law of this state in order to dispose of 4 such a proceeding and the local law has not been clearly determined.” Wash. Rev. Code 5 §2.60.020.
6 This case presents a novel question of Washington constitutional interpretation and 7 resolution of that question is necessary to dispose of the proceeding. The novel question before 8 the Court is whether a railroad right of way granted bythe General Railroad Right–of–Way Act 9 of 1875 (“1875 Act”) conveyed a “patented” right under Article XVII, § 2 of the Washington 10 State Constitution. 11 The 1875 Act provided a mechanism for railroad companies to obtain rights of way over 12 land to build railroads and encourage development. In 1887, SLS&E submitted a map of a 13 proposed rail corridor running along the eastern side of Lake Sammamishto the Department of 14 the Interiorpursuant to the 1875 Act. (Dkt. 66-1 at 2.) The description of the right of way
15 includedshoreline along Lake Sammamish. SLS&E completed track construction in 1888 and 16 filed a second map showing the definite location of its completed tracks in 1891. (Dkt. Nos. 65- 17 1,66-3). The second map showedportions of the constructed railroad running over lake 18 shorelands. (Id.) 19 The federal government, however, does not have an absolute right to grant shoreland. 20 See Montana v. United States, 450 U.S. 544, 551 (1981) (discussing the equal footing doctrine). 21 When Washington became a state in 1889, it included an article—Article XVII—specifically 22 addressing its special interest in shoreland. Article XVII, § 1 reads: 23 The state of Washington asserts its ownership to the beds and shores of all navigable waters in the state up to and including the line of ordinary high tide, in 24 1 waters where the tide ebbs and flows, and up to and including the line of ordinary high water within the banks of all navigable rivers and lakes: Provided, that this 2 section shall not be construed so as to debar any person from asserting his claim to vested rights in the courts of the state. 3 Wash. Const. art. XVII, § 1. 4 Through this section, Washington asserts its ownership overbeds and shores of navigable 5 waters. Article XVII, § 2, however, is a disclaimer. It reads: “The state of Washington disclaims 6 all title in and claim too all tide, swamp and overflowed lands, patented by the United States: 7 Provided, the same is not impeached for fraud.” Wash. Const. art. XVII, § 2. Section 2 analysis, 8 arguably,is “simple”as it requires only that “the claimant under [a] federal patent at the time of 9 statehood had made proof of all facts necessary to cause the patent to issue. Anderson v. Olson, 10 461 P.2d 343, 346 (Wash. 1969) In such instance, the shoreland belongs to the party with the 11 patentedinterest instead of the State. Id. 12 In this case, however, the R&R found the approval of SLS&E’s map, which showed the 13 right of way boundaries extending over shoreland, “is equivalent to a conveyance or patent from 14 the government . . . .” (Dkt. No. 96 at 21.) Accordingly, the right of way was “patented,” and 15 Washington disclaimed its interest in the land and did not have the authority to subsequently sell 16 it to Defendants’ predecessor in interest. (Id.)1 To support this position, the court lookedto 17 cases holding “that rights of way granted under the 1875 Act are equivalent to ‘patented’ rights.” 18 (Id.(citing Great N. Ry. Co. v. Steinke, 261 U.S. 119, 125 (1923) (“There is no provision in the 19 [1875 Act] for the issue of a patent, but this does not detract from the efficacy of the grant. The 20 approved map is intended to be the equivalent of a patent defining the grant conformably to the 21 22 1 Defendants argue that resolving whether the right of way was “patented” is a federal question. (Dkt. No. 144 at 2.) It is not. It depends on the definition of “patented” in the Washington State 23 Constitution. While afederal definition of patented may reflect the § 2definition, it is not dispositive. 24 1 intendment of the act . . . .”); Oregon Trunk Line v. Deschutes R. Co., 172 F. 738, 740 (C. C. D. 2 Or. 1909) (“The approval of the [1875 Act] map is therefore the act which vests in the 3 corporation title to a definite right of way over the public lands for a road thereafter to be 4 constructed.
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6 7 UNITED STATES DISTRICTCOURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 KING COUNTY, CASE NO.3:20-cv-60-DEG-SKV 11 Plaintiff, ORDER CERTIFYING QUESTION 12 v. TO WASHINGTON STATE SUPREME COURT 13 MICHAEL J. ABERNATHYet al., 14 Defendants. 15 16 This matter comes before the Court sua sponte. The Court, being fully advised, certifies 17 the following constitutional question to the Washington State Supreme Court pursuant to 18 Washington Revised Code § 2.60.020: 19 Is a right of way approved by the United States Department of the Interior under the General Railroad Right–of–Way Act of 1875, 43 U.S.C. §§ 934–939, a 20 conveyance “patented by the United States” under Article XVII, § 2 of the Washington State Constitution? 21 I. BACKGROUND 22 This lawsuit concerns a 3.6-mile section of land along the eastern side of Lake 23 Sammamish in Washington State, the western edge of which runs over shoreland. (Dkt. No. 96 24 1 at 2.) The Corridor originally came to be in 1887 when the federal government granted the 2 Seattle, Lake Shore & Eastern Railway Company (“SLS&E”) a “right of way” to build a 3 railroad, which it did, under the General Railroad Right-of-Way Act of 1875, 43 U.S.C. §§ 934- 4 939 (“1875 Act”). (Id.) In 1998, the then out–of–service rail corridor (the “Corridor”) was 5 “railbanked”under the National Trails System Act Amendments of 1983, 16 U.S.C. § 1247 et
6 seq., and later deeded to Plaintiff King County, which currently operates the Corridor as a public 7 trail. (Id.) 8 On July 26, 2021, Magistrate Judge S. Kate Vaughan, to whom this case was referred, 9 issueda Report and Recommendation (“R&R”) resolvingmotions for summary judgment filed 10 by all parties (Dkt. Nos. 40, 48, 65). (Dkt. No. 96). The R&R foundthat the strip of shoreland 11 within the Corridor had been “patented”by the federal government prior to Washington 12 becoming a state, and therefore, that Washington had disclaimed its interest in that land under 13 Article XVII, § 2of the Washington State Constitution. (Dkt. No. 96 at 19–26.) Because 14 Washington had disclaimed its interest in that shoreland, Washingtonnever hadauthority to sell
15 the land to the Defendants’ common predecessor in interest,thereby making King County the 16 true owner. (Id.at 26.) 17 On May 26, 2022, the Court requested briefing limited to whether the Court should 18 certify the question of whether the right of way granted under the 1875 Act granted a “patented” 19 right underArticle XVII, § 2. (Dkt. No. 140.) Defendants responded in opposition to 20 certification (Dkt. No. 144), and Plaintiff King County responded in support of certification 21 (Dkt. No. 145). 22 23 24 1 II. DISCUSSION 2 Under Washington law, a federal court may certify a question to the Washington State 3 Supreme Court when “it is necessary to ascertain the local law of this state in order to dispose of 4 such a proceeding and the local law has not been clearly determined.” Wash. Rev. Code 5 §2.60.020.
6 This case presents a novel question of Washington constitutional interpretation and 7 resolution of that question is necessary to dispose of the proceeding. The novel question before 8 the Court is whether a railroad right of way granted bythe General Railroad Right–of–Way Act 9 of 1875 (“1875 Act”) conveyed a “patented” right under Article XVII, § 2 of the Washington 10 State Constitution. 11 The 1875 Act provided a mechanism for railroad companies to obtain rights of way over 12 land to build railroads and encourage development. In 1887, SLS&E submitted a map of a 13 proposed rail corridor running along the eastern side of Lake Sammamishto the Department of 14 the Interiorpursuant to the 1875 Act. (Dkt. 66-1 at 2.) The description of the right of way
15 includedshoreline along Lake Sammamish. SLS&E completed track construction in 1888 and 16 filed a second map showing the definite location of its completed tracks in 1891. (Dkt. Nos. 65- 17 1,66-3). The second map showedportions of the constructed railroad running over lake 18 shorelands. (Id.) 19 The federal government, however, does not have an absolute right to grant shoreland. 20 See Montana v. United States, 450 U.S. 544, 551 (1981) (discussing the equal footing doctrine). 21 When Washington became a state in 1889, it included an article—Article XVII—specifically 22 addressing its special interest in shoreland. Article XVII, § 1 reads: 23 The state of Washington asserts its ownership to the beds and shores of all navigable waters in the state up to and including the line of ordinary high tide, in 24 1 waters where the tide ebbs and flows, and up to and including the line of ordinary high water within the banks of all navigable rivers and lakes: Provided, that this 2 section shall not be construed so as to debar any person from asserting his claim to vested rights in the courts of the state. 3 Wash. Const. art. XVII, § 1. 4 Through this section, Washington asserts its ownership overbeds and shores of navigable 5 waters. Article XVII, § 2, however, is a disclaimer. It reads: “The state of Washington disclaims 6 all title in and claim too all tide, swamp and overflowed lands, patented by the United States: 7 Provided, the same is not impeached for fraud.” Wash. Const. art. XVII, § 2. Section 2 analysis, 8 arguably,is “simple”as it requires only that “the claimant under [a] federal patent at the time of 9 statehood had made proof of all facts necessary to cause the patent to issue. Anderson v. Olson, 10 461 P.2d 343, 346 (Wash. 1969) In such instance, the shoreland belongs to the party with the 11 patentedinterest instead of the State. Id. 12 In this case, however, the R&R found the approval of SLS&E’s map, which showed the 13 right of way boundaries extending over shoreland, “is equivalent to a conveyance or patent from 14 the government . . . .” (Dkt. No. 96 at 21.) Accordingly, the right of way was “patented,” and 15 Washington disclaimed its interest in the land and did not have the authority to subsequently sell 16 it to Defendants’ predecessor in interest. (Id.)1 To support this position, the court lookedto 17 cases holding “that rights of way granted under the 1875 Act are equivalent to ‘patented’ rights.” 18 (Id.(citing Great N. Ry. Co. v. Steinke, 261 U.S. 119, 125 (1923) (“There is no provision in the 19 [1875 Act] for the issue of a patent, but this does not detract from the efficacy of the grant. The 20 approved map is intended to be the equivalent of a patent defining the grant conformably to the 21 22 1 Defendants argue that resolving whether the right of way was “patented” is a federal question. (Dkt. No. 144 at 2.) It is not. It depends on the definition of “patented” in the Washington State 23 Constitution. While afederal definition of patented may reflect the § 2definition, it is not dispositive. 24 1 intendment of the act . . . .”); Oregon Trunk Line v. Deschutes R. Co., 172 F. 738, 740 (C. C. D. 2 Or. 1909) (“The approval of the [1875 Act] map is therefore the act which vests in the 3 corporation title to a definite right of way over the public lands for a road thereafter to be 4 constructed. Such approval is equivalent to a conveyance or patent from the government for the 5 route delineated on the plat . . . .”); see also Noble v. Union River Logging R. Co., 147 U.S. 165,
6 174–77 (1893).) These cases, however, are not directly controlling over the present issue. 7 In Noble v. Union River Logging,the United States Supreme Court considered whether 8 the secretary of the interior could revoke and annul aright of way given by his predecessor under 9 the 1875 Act. 147 U.S. at 166. The Court compared the right of way to other property rights, 10 including patents, and held that because the right had been givento the railroad company, “[i]t 11 was not competent for the secretary of the interior thus to revoke the action of his predecessor . . 12 . .” Id.at 177. InGreat N. Ry. Co.v. Steinke, the Supreme Court used similar logic to decide 13 whether a subsequent land salecould extinguish an 1875 Act right of way. The plaintiff, St. 14 Paul, Minneapolis & Manitoba Railway Company,“sought and secured” a right of way under the
15 1875 Act. Later, Philander Pollockreceived a “patent” for title to a larger tract of land that 16 included the right of way. 261 U.S. at 120–22. The Court held that despite Philander Pollock’s 17 patent, which made no reference to the railroad company’s claim,and despite “no provision in 18 [the 1875Act] for the issuance of a patent,” the right given to the railroad was “intended to be 19 the equivalent of a patent.” Id.at 125. Therefore, the railroad company maintained its right 20 despite Pollock’s intervening claim. Id. The remaining case cited by the R&R, Oregon Trunk 21 Linev. Deschutes R. Co., clarifies that, like a patent, only a party with a legitimate interest in the 22 landcan challenge the issuance of the right of way. 172 F. 738 (defendant “was a stranger to the 23 proceedings and the title”who could not challenge the legitimacy of plaintiff’s right of way). 24 1 The first edition of Black’s Law Dictionary, from 1891, defines a patent as: 2 PATENT, n. A grant of some privilege, property, or authority, made by the government or sovereign of a country to one or more individuals. Phil. Pat. 1. 3 In English law. A grant by the sovereign to a subject or subjects, under the great seal, conferring some authority, title, franchise, or property; termed “letters patent” 4 from being delivered open, and not closed up from inspection. In American law. The instrument by which a state or government grants public 5 lands to an individual. . . . 6 (Dkt. No. 106 at 4.)2 7 Defendants argue, based on this definition,a patent can only apply to a grant of title. 8 (Dkt. No. 105 at 5–7.) The Black’s Law Dictionary definition does not say that it only applies to 9 a grant of title, but it does say that it is an “instrument by which a state or government grants 10 public lands. . . .”3 By using the word “instrument,” Black’s Law Dictionary indicates receiving 11 a patent requires going through a certain process.4 12 Statutes that grant land patents appear to both explicitly state that they grant patents and 13 include a section describing the process for obtainingone. For example,the Homestead Act of 14 15 16 2 Railroad companies, as opposed to only individuals may have “patented” rights under Article XVII, § 2. Kneeland v. Korter, 40 Wash. 359, 366 (1905) (discussing § 2 as applied to a patent 17 granted by the 1864 Railway Act). 3 Defendants argue that the right of way cannot be “patented” because it is an easement. (Dkt. 18 No. 144 at 2.) It is well established, and not disputed, that the right of way is an easement. Marvin M. Brandt Revocable Tr. v. United States, 572 U.S. 93, 103 (2014) (quoting Great N. R. 19 Co. v. United States, 315 U.S. 262, 271 (1942)). Brandt does not resolve this matter, as Defendants argue, because it does not establish that an easement cannot be “patented.” 20 4 Defendants also argue that the right of way was not “patented” because the 1875 Act did not grant a “privilege, property or authority, made by the government.” (Dkt. No.144 at 3.) While 21 the 1875 Act may not have permitted the federal government to grant the right of way over shoreland, Kneeland v. Korter firmly held that Washington disclaimed its interest in shoreland 22 under § 2if the interest was “patented” regardless of whether the federal government properly granted the right. 40 Wash. at 365–66. Defendants do not demonstrate an easement cannot be 23 patentedunder§ 2. The question remains whether approval of the map showing the right of way going over shoreland “patented” SLS&E’s interest in that land for purposes of Article XVII, § 2. 24 1 || 1862, 43 U.S.C. §§ 161-164 (repealed 1976), set forth specific conditions when certain citizens 2 || may “acquire the absolute title by the purchase, and be entitled to a patent from the United 3 || States, on payment of the office fees and sum of money herein specified.” Under the General 4 || Mining Act of 1872, 30 U.S.C. §§ 21-51, an authorized “person, association, or corporation” 5 || “may obtain a “patent” by complying with specific conditions. 30 U.S.C. § 29; R.T. Vanderbilt 6 || Co. v. Babbitt, 113 F.3d 1061 (9th Cir. 1997). The same is true of the Preemption Act of 1841, 5 7 || Stat. 457, and the Pittman Underground Water Act of 1919, ch. 77, 41 Stat. 293 (repealed 1964). 8 || The 1875 Act does not include a process for receiving a patent. 43 U.S.C. § 934. Nonetheless, 9 || as previously discussed in this Order and in the R&R, that “does not detract from the efficacy of 10 || the grant,” which was intended to “be the equivalent of a patent.” Great N. Ry. Co., 261 USS. at 11 |] 125. 12 As such, whether approval of a railroad right of way running over shoreland by the 13 || Department of the Interior pursuant to the 1875 Act conveyed a “patented” right under Article 14 || XVII, § 2 presents a novel question of Washington constitutional interpretation. This question 15 || has potential public policy implications and is properly resolved by the Supreme Court of 16 || Washington. Therefore, the Court certifies the question as listed at the beginning of this Order. 17 Il. ORDER 18 Therefore, it is HEREBY ORDERED that: 19 e The Court certifies the question presented in this Order to the Washington State 20 Supreme Court; 21 e The following documents are certified for review by that court: 22 23 24
1 o This Order; Dkt. Nos. 1, 40, 43, 45, 46, 48, 49, 50, 64, 65, 66, 67, 68, 70, 2 71, 72, 73, 74, 75,76, 79, 82, 84, 85, 96, 103, 105, 106, 107, 108, 109, 3 110, 111, 112, 113, 114, 140, 144, 145. 4 The Clerk is directed to send uncertified copies of this Order to all counsel of record and 5 to any party appearing pro se at said party’s last known address.
6 7 8 Datedthis 5thday ofJuly 2022. 9 A 10 David G. Estudillo 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24