Washington Law Review


In Hughes v. State, the Washington Supreme Court decided that the boundary between upland and tideland is the vegetation line as it existed in 1889. Its decision conflicts with an earlier decision of the Court of Appeals for the Ninth Circuit which followed the United States Supreme Court's decision in City of Los Angeles v. Borax Consol., Ltd. The decisions conflict both on criteria for locating the boundary and on its fixed or movable character. Underlying both questions are fundamental issues about the extent to which state or federal law provides the answers. After extensive analysis of these answers, Professor Corker concludes that unless the United States Supreme Court grants certiorari in Hughes, the confusion which has long characterized this field will continue. Professor Corker analyzes both the substantive and jurisdictional issues. While sharply critical of the Washington Supreme Court's techniques of decision, he argues that state law, either directly or as incorporated in federal law, must influence the ultimate decision if just and workable boundary rules are to result. His conclusion requires modification or rejection of the Borax decision, which he asserts even the United States Bureau of Land Management has honored by a policy of conscious forgetfulness.

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