State Declared Owned of Submerged Logs
In the Matter of the Personal Restraint of John Tortorelli,
66 P.3d 606 (Wash. 2003).
Court of Washington recently held that ancient forests submerged
in a lake are natural resources and, thus, are state property
that cannot be salvaged without permission.
Until 1994, Washington law authorized the issuance of licenses
to salvagers to retrieve stray logs, provided that a percentage
of the profit was shared with the state. Approximately 1,100
years ago, a landslide caused the inundation and submergence
of a pine forest in Lake Washington, a saltwater lake running
into Puget Sound. Due to the waters depth, its cold temperature,
and its low oxygen content, the trees were remarkably well preserved.
Because of their historic, cultural, and scientific value, these
trees were deemed unsalvageable by the state salvage law. Many
of the ancient tree trunks were excavated a few years ago by
the U.S. Army Corps of Engineers to help build the Ballard Locks
connecting Lake Washington to Puget Sound. The root balls and
treetops were returned to the lake.
In August 1991, Tortorelli applied for a logging permit under
the name of the former owners of his ship. Believing that the
ship was still owned by those previously licensed operators,
the Washington Department of Natural Resources (DNR) issued
Tortorelli a salvage license. Tortorelli began to salvage the
remains of the ancient forest in Lake Washington in cooperation
with local scientists. In March 1992, a ruptured sewer line
resulted in closer inspection of the area by DNR. DNR discovered
Tortorellis operation and informed him that if he wished
to continue his activities in the area he would need to acquire
a hydraulics permit. Tortorelli applied for the permit, but
continued his salvaging operation. On May 7, 1992, the Department
of Fisheries issued a hydraulics permit on the condition that
Tortorelli pay for a study to show that his operation was not
harming the local crayfish population. Also during May, Tortorelli
received two citations for permit violations, but both citations
were dismissed. In November 1992, pursuant to a search warrant,
Tortorellis home and log patrol area were searched and
from the seized records it was determined that Tortorelli had
illegally salvaged $165,000 worth of trees.
John Tortorelli was found guilty in state court of theft, trafficking
in stolen property, and criminal profiteering arising from his
business of salvaging submerged trees from Lake Washington.
His direct appeal was denied by the Court of Appeals. He then
sought relief from his conviction by appealing to the Washington
Supreme Court on the grounds that there was insufficient evidence
that he had obtained the property of another. His
contention was that the state did not provide sufficient proof
that the timber was a marine resource and, therefore, the property
of the state. He also claimed that he had operated in good faith
during his salvaging operation.
The state contended that the law clearly stated that the ancient
forest was the property of the state, that the law of salvaging
timber did not apply to the submerged forest, and that Tortorelli
was on notice of this fact. Therefore, by procuring the timber
and selling it, Tortorelli engaged in theft, trafficking, and
profiteering from the sale of state property. Primarily, the
state relied on strong constitutional and federal precedent
for the principle that marine resources belong to the state.
are Natural Resources
To convict Tortorelli, the state had to prove that Tortorelli
was stealing its property. The court found that the submerged
logs belonged to the state as a matter of law. The Washington
State Constitution vests ownership of the beds and shores
of all navigable waters in the state to the state.1
The court also found that the Submerged Lands Act of 1953 (SLA)
confirmed that the states took title to natural resources found
within their navigable waters stating:
determined and declared to be in the public interest that
. . . title to and ownership of the lands beneath navigable
waters within the boundaries of the respective States, and
the natural resources within such lands and waters, . . .[are]
vested in and assigned to the respective States . . . in which
the land is located.2
main argument was that the trees could not have been state property
because they are not natural resources covered by the SLA. Natural
resources are defined in the SLA as without limiting
the generality thereof, oil, gas, and all other minerals, and
fish, shrimp, oysters, clams, crabs, lobsters, sponges, kelp,
and other marine animal and plant life.3 Because this definition does not include timber resources, the
court referenced the dictionary definitions of natural resources
to clarify the full meaning, which is permissible when a statute
does not provide a full definition. The dictionary definition
of natural resources includes all materials found
in nature and unprocessed timber is undeniably a resource obtained
from nature. In sum, as the submerged trees are located in the
navigable waters of Washington, the state owns the submerged
Another issue addressed by the court was whether the common
law of finds applies to these logs since they were never found
prior to Tortorellis salvage and as such were the property
of the first person to obtain them. The common law of finds
applies to all personal property that was previously undiscovered.
In response to Tortorellis argument that the common law
of finds applies to the timber, the Supreme Court held that
federal and state law declaring all marine resources to be the
property of the state superseded the common law.
The Washington Supreme Court concluded that the trees were property
of the state as a matter of law. The court found that there
was sufficient evidence to support the states claim that
Tortorelli had deprived the state of resources and upheld his
conviction for theft. As of this writing, notice of intent to
appeal the decision has not been filed.
1. Wash. Const. art. XVII, § 1.
2. 43 U.S.C. § 1311(a) (2003).
3. 43 U.S.C. § 1301(e)(2003) (emphasis