FYI: The following was filed on or about May 18. The Liveaboard Association of Puget Sound, the boating group formed recently to protect boaters living on their boats, today filed a lawsuit asking the King County Superior Court to block the Department of Natural Resources from evicting its members from their homes. SUPERIOR COURT OF WASHINGTON COUNTY OF KING LIVE-ABOARD ASSOCIATION OF PUGET SOUND, Plaintiff, vs. STATE OF WASHINGTON DEPARTMENT OF NATURAL RESOURCES, COMMISSIONER OF PUBLIC LANDS JENNIFER BELCHER, Defendants, JOEL R. DIAMOND and JULIE DIAMOND, husband and wife, and DIAMOND PARKING, INC., Interested Parties. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. SEA COMPLAINT FOR DECLARATORY RELIEF AND NOTICE OF APPEAL OF ADMINISTRATIVE ACTION Plaintiff alleges as follows: INTRODUCTION 1. The abundance of water in the State of Washington has naturally encouraged a vigorous commercial and recreational boating community. When combined with Washington’s rich history of diverse choices of lifestyles, the natural result has been the creation of communities of people who choose to live on their boats moored at local marinas. The “live-aboards,” as they are known, are a significant addition to the culture and charm of shoreline communities. Even though their full time presence is a valuable public benefit because the live-aboards are caretakers, stewards and provide security for the local marinas and shorelines, Jennifer Belcher has decided that they must go. Under her view, it is perfectly appropriate for aquatic lands which are leased to private marinas to be used for mooring boats as long as no one sleeps in their boat. Her new rule and her attempt to wipe out this cultural significant feature of the State of Washington is the subject of this litigation. PARTIES 2. Plaintiff Live-Aboard Association of Puget Sound is a nonprofit association of individuals who live aboard boats moored at marinas in the State of Washington. Some of Plaintiff’s members moor and live on their boats moored at Boatworld Marina, the Westlake Marina, and the Swiftsure Marina. 3. Defendant State of Washington Department of Natural Resources (DNR) is an official agency of the State of Washington and is responsible for managing state owned lands consistent with state and federal law. 4. Defendant Jennifer Belcher is the Commissioner of Public Lands for the State of Washington and is the chief executive officer of DNR. She is sued herein in her official capacity. 5. Interested Parties Joel R. Diamond, Julie Diamond are the owners of Boatworld Marina. Diamond Parking, Inc. is the owner of the Westlake Marina and the Swiftsure Marina. All three marinas are located within Lake Union in King County. JURISDICTION AND VENUE 6. This civil action is a case of actual controversy between Plaintiff and Defendants which may be finally adjudicated as between the parties. 7. Jurisdiction is conferred upon this Court by RCW 2.08.010. 8. Venue is in this Court pursuant to RCW 79.01.500. FACTS 9. On April 24, 2000, Defendants signed Aquatic Lands Lease No. 20-071025, No. 20-071223, and No. 20-A10144 attached hereto as Attachments 1, 2, and 3, respectively. Said leases provide, in part: Tenant shall use the Property for commercial and recreational vessel moorage which is a water-dependent use (the “Permitted Use”), and for no other purpose. The Permitted Use is described or shown in greater detail in Exhibit B, the terms and conditions of which are incorporated by reference and made a part of this Lease. … No nonwater-dependent uses are allowed in the lease area including dedicated residential use. Exhibit B, referenced above, provides in each lease: The permitted use is for commercial and recreational vessel moorage. No dedicated residential use is allowed within the marina. Slips currently being used for dedicated residential use on the DNR leased area are listed on the attached list. All dedicated residential use on the DNR leased area will be phased out according to the terms and conditions outlined in the attached settlement agreement between DNR and Diamond Parking. 10. The attached list of slips “being used for dedicated residential use” include slips leased by members of the Live-Aboard Association of Puget Sound. Some members of the Live-Aboard Association of Puget Sound have received eviction notices, a copy of which is attached as Attachment 4. 11. The “terms and conditions outlined in the attached settlement agreement” provide that the Interested Parties no longer allow “customers to moor their vessels and to also make use of these vessels as a residence” on aquatic lands subject to the lease with DNR. 12. Plaintiff, nor its members, were parties to this “settlement agreement.” It was entered without notice and an opportunity for them to be heard. 13. Historically, Defendants did not consider living aboard one’s boat to be a nonwater-dependent use. Defendants have changed their interpretation and, in effect, adopted a rule prohibiting live-aboards at marinas subject to aquatic lands leases. This rule was adopted without following the proper rule-making procedures. 14. Plaintiff is informed and believes that the Interested Parties agreed to the settlement agreement’s prohibition on live-aboards only because the agreement was necessary to obtain Defendants’ agreement to a lease with the Interested Parties. But for the Defendants’ demand that live-aboards be banned from the lease area, the Interested Parties would continue to allow some live-aboards to continue to stay at the slips at their marinas. FIRST CAUSE OF ACTION (Declaratory Relief, RCW 7.24) 15. Plaintiffs incorporate paragraphs 1 though 14 by reference as if fully set forth herein. 16. There is an actual justiciable controversy regarding the respective rights and duties of the parties which can only be determined by the Court. The Plaintiff contends that living aboard one’s boat when moored on aquatic lands leased from the state is not a separate nonwater-dependent use. The Defendants contend that living aboard one’s boat is a nonwater-dependent use and has imposed on plaintiff members through the leases with the Interested Parties a prohibition on living aboard one’s boat on aquatic lands leased through DNR. 17. Plaintiff contends that Defendants have misinterpreted the law and the Court should declare that living aboard one’s boat when moored on aquatic lands leased from the state is a legal use under state law. SECOND CAUSE OF ACTION (State Environmental Policy Act, RCW 43.21C) 18. Plaintiffs incorporate paragraphs 1 though 17 by reference as if fully set forth herein. 19. Plaintiff pleads in the alternative that Defendants have violated SEPA in the event that living aboard one’s boat is a separate use from boat moorage. 20. The leasing of aquatic lands of the state is a major action significantly affecting the quality of the environment under SEPA. Consequently, this action triggers environmental review under SEPA, including public notice and threshold determinations. 21. Review of the environmental impacts associated with Lease No. 20-071025, No. 20-071223, and No. 20-A10144 must be included in a single environmental review that considers the cumulative impacts of changing the terms of the lease so as to force a change in “use” of the leased area. 22. SEPA requires review of the environmental impacts of changing DNR policy to disallow people to live on their boats if they are moored on aquatic lands leased by DNR. 23. WAC 197-11-800(5)(d) provides that leases of property by a state agency are categorically exempt from the threshold determination and environmental impact statement requirements of SEPA as long as the use remains the same. 24. The Defendants have taken the position that living aboard one’s boat is a use different from moorage. If Defendants are correct that living aboard one’s boat is different than moorage and because they have mandated that Plaintiff’s members no longer engage in that “use” on the leased property, Defendants have mandated a change of use and may no longer rely on the categorical exemption in WAC 197-11-800(5)(d). 25. Defendants have failed to follow any of SEPA’s requirements in regard to Aquatic Lands Lease No. 20-071025, No. 20-071223, and No. 20-A10144. THIRD CAUSE OF ACTION (Failure to Follow Rule-making Procedures in RCW 34.05) 26. Plaintiffs incorporate paragraphs 1 though 25 by reference as if fully set forth herein. 27. Defendants’ conclusion that living aboard one’s boat while the boat is moored is a nonwater-dependent use meets the definition of a “rule” contained in RCW 34.05.010(15), and meets the definition of “significant legislative rule” contained in RCW 34.05.328. Because it is a rule, DNR has violated the Administrative Procedures Act in failing to comply with those procedural and substantive provisions of RCW 34.05 relating to rule-making prior to utilizing its new interpretation. 28. DNR failed to copy with SEPA, RCW 43.21C and the State Economic Policy Act RCW 43.21H prior to adopting and implementing its new interpretation. 29. Since DNR engaged in invalid rule-making, this Court should declare that DNR’s new interpretation of non-water dependent uses is invalid, that the provisions of DNR’s leases with the Interested Parties which prohibit people from living aboard their boat are invalid, and that DNR should be enjoined from using the invalid rule as a basis for decision. FOURTH CAUSE OF ACTION (Violation of Article I, Sec. 7 of the Washington Constitution) 30. Plaintiffs incorporate paragraphs 1 though 29 by reference as if fully set forth herein. 31. Article I, Sec. 7 of the Washington Constitution provides that “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” 32. Defendants allow Plaintiff’s members to moor their boats at the marinas subject to Aquatic Lands Lease No. 20-071025, No. 20-071223 and No. 20-A10144. They simply do not allow Plaintiff’s members to live or sleep on their boats. Whether Plaintiff’s members live on their boats is a private affair which the Defendants have no legal authority to interfere with or any legitimate interest in prohibiting. 33. Defendants’ actions constitute a disturbance in the private affairs of the members of the Live-Aboard Association of Puget Sound. FIFTH CAUSE OF ACTION (Violation of Due Process, Article I, Sec. 3 of the Washington Constitution) 34. Plaintiffs incorporate paragraphs 1 though 33 by reference as if fully set forth herein. 35. Plaintiff’s members have a legitimate liberty and property interest in living on their boats. 36. Defendants’ prohibition on living aboard one’s boat in aquatic lands leased from the state fails to substantially advance any legitimate state purposes, including protecting the health, welfare or safety of the general public. 37. Defendants’ prohibition on living aboard one’s boat in aquatic lands leased from the state is arbitrary and capricious and is unduly oppressive on members of the Live-Aboard Association of Puget Sound. 38. Defendants’ prohibition on living aboard one’s boat in lands subject to Aquatic Lands Lease No. 20-071025, No. 20-071223 and No. 20-A10144 was made without notice to Plaintiff or its members and without an opportunity for them to be heard. SIXTH CAUSE OF ACTION (Appeal Under RCW 79.01.500) 39. Plaintiffs incorporate paragraphs 1 though 38 by reference as if fully set forth herein. 40. Plaintiff hereby appeals the following decision of the State of Washington Department of Natural Resources, and Commissioner of Public Lands Jennifer Belcher to Superior Court pursuant to RCW 79.01.500, signing Aquatic Lands Lease No. 20-071025, No. 20-071223 and No. 20-A10144 with the prohibition on allowing Plaintiffs’ members to live aboard their boats. 41. Plaintiff’s members are aggrieved by the prohibition on live-aboards in Aquatic Lands Lease No. 20-071025, No. 20-071223, and No. 20-A10144. 42. The Plaintiff requests the Department to certify and file a copy of the record of each of these three leases within 30 days of service pursuant to RCW 79.01.500. WHEREFORE, Plaintiff prays for the following relief: 1. For a judgment declaring the respective rights, status, or legal relations of the parties in relation to the legality of living aboard one’s boat in marinas subject to an aquatic land lease from the Defendants. 2. For a judgment enjoining Defendants from enforcing any provision of Aquatic Lands Lease No. 20-071025, No. 20-071223, and No. 20-A10144 which prohibits the Interested Parties from leasing slips to those who live aboard their boats; 3. For a judgment enjoining Defendants from enforcing or acting pursuant to its rule interpreting the phrase “nonwater-dependent use” to including living aboard one’s moored boat, until they follow the statutorily required rule-making procedures; 4. For a judgment declaring that Defendants have violated Plaintiff’s members rights under Article I, Sections 3 and 7 of the Washington Constitution. 5. For a judgment awarding Plaintiff costs of suit, including attorneys’ fees; 6. For a judgment awarding such further relief as the Court shall deem proper. RESPECTFULLY submitted this ____ day of May, 2000. GROEN STEPHENS & KLINGE LLP By: Richard M. Stephens, WSBA #21776 Attorneys for Plaintiff, Live-Aboard Association of Puget Sound