Washington State Declared Owned of Submerged Logs

In the Matter of the Personal Restraint of John Tortorelli, 66 P.3d 606 (Wash. 2003).

Christopher Tang, 3L

The Supreme 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.

Background
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 water’s 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 Tortorelli’s 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, Tortorelli’s 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.

Logs 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:

It is 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

Tortorelli’s 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 trees.

Another issue addressed by the court was whether the common law of finds applies to these logs since they were never “found” prior to Tortorelli’s 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 Tortorelli’s 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.

Conclusion
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 state’s 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.

ENDNOTES
1. Wash. Const. art. XVII, § 1.
2. 43 U.S.C. § 1311(a) (2003).
3. 43 U.S.C. § 1301(e)(2003) (emphasis added)