Appendix — Stello v. United States, 167 Ct. Cl. 900 (1964) (No. 03-61)

Supreme Court brief1964

Ask Donna

What actually matters in this document.

Text

Supreme Court of Washington,

En Banc.

In the Matter of the Personal Restraint of John

TORTORELLI, Petitioner.

No. 71251-4.

Argued May 9, 2002.

Decided April 10, 2003.

CHAMBERS, J.

John Tortorelli was found guilty of theft, trafficking in

stolen property, and criminal profiteering, arising from his

business of salvaging stray logs and submerged trees from Lake

Washington. Tortorelli made several challenges to his

convictions in his direct appeal, which were rejected by the

Court of Appeals. In this personal restraint petition he raises

numerous additional challenges, including insufficiency of the

evidence that the logs and trees were "the property of another,"

as required by the statute under which he was charged, RCW

9A.56.020(1)(a), and ineffective assistance of counsel. We

conclude as a matter of law that the State owned the salvaged

logs and trees, and we reject his other claims.

FACTS

Until 1994, the Department of Natural Resources (DNR)

issued log patrol licenses to authorize salvage of stray logs in

return for a percentage of the profit. See former RCW

eS ee te ee Ee ete en ate

76.40.030, .050 (1984), repealed by Laws of 1994, ch. 163, § 6.

This former log patrol statute provided that if the salvaged logs

were branded, they were to be returned to the owner and the

salvage operator would be allowed to keep 75 percent of their

value. Former RCW 76.40.050(2). If, however, the-logs were

unbranded, the State asserted ownership, and in practice

allowed the operator to keep 90 percent of the value. The

licensee was required to inform DNR of the general location of

the salvage operation and the specific location of the log storage

in order to facilitate inspection.

The stray logs authorized for salvage by a log patrol

licensee are not the same as the ancient forest remnants also

found in Lake Washington. The ancient forest remnants were

not lost from transportation or storage, but resulted from several

landslides that occurred around the shores of Lake Washington

about 1,100 years ago. These ancient trees have been preserved

by the low oxygen content in the deep water. Because of their

historic and scientific value, the trees by definition were not

salvageable under the former log patrol statute.

In February 1991, Tortorelli, the owner of Western

Wood Lumber, purchased salvage equipment including a barge

and tug called the Shawnee from Carl Burgin and Roy Jamieson

of Clearwater Marine Works, Inc. (Clearwater). Clearwater

retained a barge and tug named the Crawfish. The agreement

between Tortorelli and Clearwater was memorialized in two

different documents. A security agfeement provided in part that

Western Wood Lumber could use permits issued to Clearwater

if permitted by law. A cooperation agreement provided, among

other things, that the two businesses would not directly compete

with each other in the log salvage business.

On April 15, 1991, shortly after Tortorelli had his

equipment towed from Everett to commence a salvage operation

in Lake Washington, the State mailed him a letter advising that

the State owned all the unbranded logs in the lake, describing

the regulations applicable to log salvage, and summarizing

chapter 79.90 RCW, the aquatic lands act. The letter included

a copy of the log patrol statute, former chapter 76.40 RCW, and

the log patrol operating guidelines. In his application, Tortorelli

indicated that his operation and log storage would be in Everett.

The State therefore advised him of log patrol restrictions in and

around the Everett harbor.

In August 1991, in apparent response to the April 15

letter, Tortorelli applied for a log patrol permit. However, he

did so under the name Clearwater Marine Works and not

Western Wood Lumber. He was neither an officer nor an

employee of Clearwater. By applying in the name of

Clearwater, he avoided the necessity of posting the $10,000

bond required of new applicants, and had to pay only the $500

required to license an additional boat. See former RCW

76.40.030(1).

Believing that both the Crawfish and the Shawnee were

still owned by Clearwater, DNR issued a new license to attach

to the Shawnee. When issuing the log patrol permit, the State

sent Tortorelli another letter, reiterating which logs the State

owned and enclosing revised operating guidelines.

While awaiting his new license, Tortorelli moved his

operation to the ancient submerged forest on the southwest side

of Mercer Island. Charts issued by the National Oceanic and

Atmospheric Administration indicate that the forest extends to

within 30 feet of the surface of the water. Some trees are

anchored in the bed of the lake, but others were uprooted in

about 1919 when the Corps of Engineers cleared the channel

during construction of the Lake Washington ship canal. The

timber the crew found at this site consisted of full length fir

trees, about a hundred feet tall, with root balls attached. The

crew raised the trees, then cut off the root balls and tops and

Nb Rc

Sa Arte esa en a ge a rae a hn A Saat oc DO I aa a ae Si a BR A SR a la a TET le EC aa a

ES AS te ee

returned them to the water, retaining only the tree trunks.

In August 1991, while Tortorelli was working in the

submerged forest area, he began to cooperate with Dr. Gordon

Jacoby and Dr. Patrick Williams, scientists doing a tree ring

analysis to date the sunken trees. Tortorelli provided slices

from 18 different trees, each of which was found to be at least

a thousand years old. In return, the scientists helped locate

fallen trees by attaching buoys. Dr. Williams testified at trial

that Tortorelli's crane would not be strong enough to lift a tree

that was still rooted in the bed of the lake. However, the trees

raised by Tortorelli, while not rooted, had been partially buried

in the mud, as evidenced by preservation of the outer ring. The

trees were still encased in mud when raised from the bed of the

lake, and had to be dunked back in the water several times to

remove mud.

In March 1992, after spending a few months in Everett,

Tortorelli returned to Lake Washington, where he went to work

in the Gene L. Coulon Memorial Beach Park area. Toward the

end of the month, a metro sewer line was ruptured under the

channel between Mercer Island and the eastern shore of Lake

Washington, triggering extra scrutiny from DNR. On becoming

aware of Tortorelli's operations in the area, DNR informed him

that he needed to obtain a hydraulics project approval.

Tortorelli accordingly applied, but carried on his operations

without waiting to receive the permit.

On May 7, 1992, the Department of Fisheries issued a

hydraulics project approval on condition that Tortorelli conduct

a study to determine whether his operation was damaging

crayfish, an important food source for bass and trout and a

crucial part of the lake's ecology. Tortorelli was also required

to stay south of the Interstate 90 Bridge. The same month

Fisheries cited Tortorelli twice for operating outside the

conditions of his hydraulics project approval permit. Both

citations were dismissed.

In June 1992, Steve Meacham of DNR and Tortorelli

had an "extended discussion about where and when it was legal

to collect stray logs," during which Meacham read Tortorelli

large portions of the log patrol statute. Report of Proceedings

(RP) (p.m. Jan. 31, 1995) at 26-28.

Four months later, the fisheries department executed a

search warrant on Tortorelli's home and log patrol area, and

seized records. The State determined that he had illegally seized

trees worth $165,000.

Tortorelli was arrested in August 1994. He was charged

with several offenses, which were consolidated into eight counts

for trial: count 1, profiteering; counts 2 and 3, theft of and

trafficking in submerged trees; counts 5, 6, 8, and 9, theft of

and trafficking in stray logs; and count 4, offering a false

document for filing.’ At trial, Tortorelli did not contest nor

concede the State's ownership of all the trees. In fact, Tortorelli

had conceded the State's ownership of the logs and trees to a log

patrol administrator prior to trial. Instead, he claimed a good

faith belief that he had permission to salvage logs under

Clearwater's license. The State countered, over Tortorelli's

objection, with witness testimony that transfers of log patrol

licenses are not legally permissible, a topic on which the statute

itself is silent. Tortorelli did not take the stand on his own

behalf. At the request of the defense, the trial court gave the

entire log patrol statute to the jury as an exhibit, rejecting the

State's request for a jury instruction on the statute.

Tortorelli was convicted of all counts. He was

sentenced to 8 concurrent terms ranging from 12 to 43 months

and ordered to pay restitution.

' Count 7 was dropped.

ST a te sai ig Da

ANALYSIS

To prevail on his personal restraint petition, Tortorelli

has the burden of establishing either error of constitutional

magnitude resulting in actual prejudice or nonconstitutional

error resulting in a complete miscarriage of justice. Jn re Pers.

Restraint of Cook, 114 Wash.2d 802, 813, 792 P.2d 506 (1990).

Tortorelli was charged under a statute that requires the

jury to find he was stealing "the property of another." RCW

9A.56.020(1)(a). He was not charged under subsection (c),

which covers misappropriation of lost property. Thus, one of the

elements the State must prove is that the logs and trees belonged

to someone other than Tortorelli. At trial, Tortorelli did not

contest that the State owned the logs and trees. However, in this

personal restraint petition, Tortorelli argues for the first time

that the State did not own the logs or, relatedly, that there is

insufficient evidence of state ownership of the logs. We find

both arguments unavailing.

First, we find as a matter of law, the State of Washington

_ does own both the ancient forest and unbranded stray logs. Our

constitution vests ownership of the "beds and shores of all

navigable waters in the state" to the State. Const. art. XVII, §

1. While no Washington court has had occasion to rule on the

ownership of logs or trees that have been a part of that lake bed

for centuries, generally, the State has title to valuable assets

within the beds of navigable waters, with exceptions not

relevant here. See ch. 79.95 RCW; see also Eisenbach v.

Hatfield, 2 Wash. 236, 240-41, 26 P. 539 (1891) (noting that the

State as the successor to the king is the absolute owner of

navigable waters and the soil under them).

Further support of State ownership appears in federal

law. When the United States was constituted, the Constitution

reserved to the original states the shores and beds of navigable

waters within their respective boundaries. Martin v. Waddell,

41 US. (16 Pet.) 367, 10 L.Ed. 997 (1842). Under the equal

footing doctrine, states subsequently admitted to the Union

obtained "the same rights, sovereignty and jurisdiction ... as the

original States possess within their respective borders."

Mumford v. Wardwell, 73 U.S. (6 Wall.) 423, 436, 18 L.Ed. 756

(1867). More recently, the Submerged Lands Act of 1953

confirmed that the states took title to natural resources found

within navigable waters:

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, ... [is]

vested in and assigned to the respective States ...

in which the land is located...

43 U.S.C. § 1311(a). -

Tortorelli disputes whether the trees and logs were

natural resources. "Natural resources" is defined in the

Submerged Lands Act 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." 43 U.S.C. § 1301(e) (emphasis added).

When a statute fails to fully define a term, we refer to dictionary

definitions. W. Telepage, Inc. v. City of Tacoma, 140 Wash.2d

599, 609, 998 P.2d 884 (2000). Webster's dictionary defines

"natural resources" as "materials ... supplied by nature."

Webster's Third New International Dictionary 1507 (1993).

Trees are "supplied by nature." The legislature has recognized

that timber is one of the most valuable natural resources in the

state. See, e.g., RCW 76.13.005(4), .010(5). Thus, we have no

difficulty in determining as a matter of law that trees are natural

resources. The word "marine" is defined as "of or relating to

the commerce of the sea." Webster's at 1382. Because the

Submerged Lands Act refers to all navigable waters in the

United States, "marine" in this context encompasses navigable

waters other than seas. We find no legal or logical reason to

exclude the submerged trees from the definition of "natural

resources" which also includes oil and gas which, like the trees,

are resources as a result of ancient natural disasters and other

natural occurrences.

The ancient forest trees are located "within" the waters

or soil of Lake Washington. Under state and federal statutory

and common law, the State owns the submerged trees. It is well

established that "[uJnambiguous language does not require nor

permit judicial construction." State v. Michaelson, 124

Wash.2d 364, 366, 878 P.2d 1206 (1994).

Once the trees have been cut into logs, it is not so clear

that they are natural resources as meant by the statute because

cut logs are not "supplied by nature." However, there is a

separate basis for state ownership of stray logs, the marks and

brands statute, which provides: "Unbranded or unmarked stray

logs or forest products become the property of the state when

recovered." RCW 76.36.020. Therefore, as a matter of law the

State also owned the stray logs left by the Corps of Engineers

in about 1919.

Tortorelli argues for the first time that under the "law of

finds," the State had no title to the logs and trees. The law of

finds is a common law principle granting title to the first party

to discover and reduce to possession unknown or abandoned

artifacts found in the sea. Commonwealth v. Maritime

Underwater Surveys, Inc., 403 Mass. 501, 531 N.E.2d 549

(1988). When the ancient trees slid from Mercer Island into

Lake Washington 1,100 years ago, the State of Washington did

not exist. Native American tribes do not claim ownership over

the trees. Thus, Tortorelli argues that the trees are unowned and

under the law of finds he is entitled to salvage them. However,

we find the law of finds must give way to our state and federal

constitutions and laws, and we decline to apply it to these lugs.

Because the submerged trees and stray logs belong to

the State as a matter of law, Tortorelli cannot prove any actual

and substantial prejudice, and we accordingly deny relief on

these grounds.

In a similar vein, Tortorelli argues that the evidence was

insufficient to convict because the State was allegedly relieved

of its burden to prove an element of the crime, that the logs

were owned by another. Sufficiency of the evidence is a

question of constitutional magnitude because due process

requires the State to prove its case beyond a reasonable doubt.

State v. Baeza, 100 Wash.2d 487, 488, 670 P.2d 646 (1983)

(citing Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781,

61 L.Ed.2d 560 (1979); In re Winship, 397 U.S. 358, 361, 90

S.Ct. 1068, 25 L.Ed.2d 368 (1970)). Evidence is sufficient to

convict when " 'viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt."

State v. Green, 94 Wash.2d 216, 221, 616 P.2d 628 (1980)

(quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781). We find

Tortorelli has not met his burden for collateral relief.

First, we note that the jury was instructed to decide

whether the prosecution had proved, beyond a reasonable doubt,

that Tortorelli had taken the property of another. It did so find.

Second, there was a wealth of evidence on the record from

which the jury could so find. Tortorelli has shown no prejudice,

and accordingly, we reject this claim.

Next, Tortorelli argues that there was insufficient

evidence to determine that he operated under an invalid log

patrol license. He claims that in 1991 he was authorized to

operate under the Clearwater license. He bases this claim on a

10a

contract document that states that he was entitled to use the ©

Clearwater permits, if legal. However, the license in question

was for the Crawfish, which Clearwater retained. Licenses are

specific to the vessel operated. As a result, Clearwater's license

for the Crawfish could not provide Tortorelli authorization to

salvage logs while operating the Shawnee. In 1992, Tortorelli

operated under a new license, but when he applied for the

license in the name of Clearwater, he was neither an owner nor

an employee of Clearwater. He was found guilty of falsifying

a document in his license application. These facts are sufficient

to establish that the license Tortorelli was using in 1992 was

invalid. Therefore, Tortorelli has failed to establish a

constitutional error.

Tortorelli also argues that the trial court should not have

admitted a copy of the log patrol statute into evidence because

it contains a presumption that anyone holding stray logs without

a valid license did so "with intent to deprive and defraud the

owner thereof.” Former RCW 76.40.080 (1984). He argues

that an irrebuttable presumption of one of the elements of theft

violates due process. However, this contention is not properly

before us because the State initially offered excerpts from the

statute, and it is Tortorelli himself who wanted the entire statute

admitted, including the portion of which he now complains.

The invited error doctrine prohibits a party from setting up an

error in the trial court then complaining of it on appeal. See,

e.g., State v. Henderson, 114 Wash.2d 867, 870, 792 P.2d 514

(1990); State v. Neher, 112 Wash.2d 347, 352-53, 771 P.2d 330

(1989). Tortorelli failed to offer any limiting or curative

instruction with respect to admitting the statute as an exhibit.

Therefore, the invited error rule applies, and Tortorelli may not

now complain on collateral attack that the trial court acceded to

his request to admit the statute or that his due process rights

were violated by the presumption contained in the statute. See

lla

State v. Studd, 137 Wash.2d 533, 552, 973 P.2d 1049, 1058

(1999).

Tortorelli further argues that the trial court erred in

failing to declare the law, leaving the jury to determine whether

a log patrol license is transferable based on its interpretation of

the log patrol statute and on opinion testimony from DNR that

such transfers are illegal. The court has a duty to declare the

law. Const. art. IV, § 16; Pepperall v. City Park Transit Co.,

15 Wash. 176, 183, 45 P. 743 (1896), 46 P. 407 (1896),

overruled on other grounds by Thornton v. Dow, 60 Wash. 622,

111 P. 899 (1910). At trial, Tortorelli objected to Meacham's

testimony that log patrol licenses could not be transferred and

to the State's proposed jury instruction on transferability of log

patrol licenses. The court noted the objection for the record and

referred to a pretrial ruling that the witness may indicate

whether or not a transfer was permissible.

Tortorelli's objection to Meacham's testimony at trial did

not preserve the gravamen of his current argument for collateral

review. Tortorelli must now show us that the trial court's

alleged failure to declare the law was either constitutional error

causing actual and substantial prejudice, or nonconstitutional

error leading to a fundamental defect that inherently resulted in

a complete miscarriage of justice. See In re Pers. Restraint of

Cook, 114 Wash.2d at 810-11, 792 P.2d 506.

Assuming a constitutional error, Tortorelli has failed to

prove actual and substantial prejudice. Assuming Clearwater's

license was transferable, the license for the Crawfish did not

provide Tortorelli authority to salvage stray logs while

operating the Shawnee. Moreover, the legal question of

whether the license was transferable is irrelevant to the factual

issue of whether Tortorelli was acting under a good faith belief

that he was authorized to salvage the submerged trees and stray

logs. Consequently, Tortorelli has failed to prove actual and

12a

substantial prejudice.

Tortorelli finally argues that failure to object to

admission of the log patrol statute constitutes ineffective

assistance of counsel. In order to establish ineffective assistance

of counsel, the petitioner must show that counsel's performance

was deficient and not a matter of trial strategy or tactics, and

that the petitioner was prejudiced. State v. Hendrickson, 129

Wash.2d 61, 77-78, 917 P.2d 563 (1996) (citing Strickland v.

Washington, 466 U.S. 668, 688-89, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984)). Washington courts indulge in a strong

presumption that counsel's performance was reasonable. State

v. Garrett, 124 Wash.2d 504, 518-19, 881 P.2d 185 (1994).

Here, counsel allowed the admission of the entire log patrol

statute in preference to excerpts from the statute, which the

State wanted to admit. Admitting the entire statute enabled

Tortorelli to argue his claim that he took the timber with good

faith claim of title because there was "nothing in the log patrol

guidelines that says a corporation cannot do exactly what

Clearwater did, which is to authorize somebody to use their

license." Report of Proceedings (Feb. 10, 1995) at 126. We

find this to be a legitimate trial strategy and cannot be a basis

for ineffective assistance of counsel. State v. Brett, 126

Wash.2d 136, 198-99, 892 P.2d 29 (1995).

The only conviction not based on the premise that the

State of Washington owns the timber salvaged by Tortorelli is

count 4. This is the charge of offering false documents for

filing, based on Tortorelli's false representation of himself as an

agent of Clearwater when applying for a new log patrol permit.

The statute provides:

Every person who shall knowingly procure or

offer any false or forged instrument to be filed,

registered, or recorded in any public office,

which instrument, if genuine, might be filed,

13a

registered or recorded in such office under any

law of this state or of the United States, shall be

punished by imprisonment in a state correctional

facility for not more than five years, or by a fine

of not more than five thousand dollars, or by

both.

RCW 40.16.030. Tortorelli argues that even though materiality

is not mentioned in the statute, materiality is an element of the

crime. For this proposition he cites to State v. Price, 94

Wash.2d 810, 620 P.2d 994 (1980). However, the issue in Price

was not materiality but whether the document in question was

an "instrument." Jd. Thus, Tortorelli's citation to Price is not

well taken. Even if materiality is required, the jury instructions

as a whole required the false representation to be related "to a

material fact represented in the document." State's Resp. to

Pers. Restraint Pet., App. Q, Instruction 26. Tortorelli's implied

representation that he was an agent of Clearwater was material.

We hold that the State of Washington had title to both

the submerged trees and the stray logs. If admission of the log

patrol statute was erroneous, the error was invited, and

Tortorelli waived his right to object. The failure to object did

not constitute ineffective assistance of counsel as it was based

on legitimate trial strategy. We therefore affirm the trial court

on all counts.

JOHNSON, MADSEN, IRELAND, BRIDGE, and OWENS, JJ.,

and SMITH, J. Pro Tem., concur.

14a

SANDERS, J., dissenting.

As the majority notes, counts one, two, three, five, six,

eight, and nine are all predicated on the State's asserted

ownership of the submerged trees and the stray logs.’ Majority

at [6a]. Tortorelli contends the State submitted insufficient

evidence to prove it owns the submerged trees Tortorelli

allegedly stole from the State.

The common law supplements the criminal statutes

"insofar as [it is] not inconsistent with the Constitution and

statutes of this state..... RCW 9A.04.060. Tortorelli raises the

common law doctrine of finds. Under this doctrine, "the finder

of things that have never been appropriated, or that have been

abandoned by a former occupant, may take them into his

possession as his own property; and the finder of any thing

casually lost is its rightful occupant against all but the real

owner." Eads v. Brazelton, 22 Ark. 499, 501 (1861). Becaise

the ancient submerged trees fell into Lake Washington prior to

the existence of the state and federal governments and none of

the previous inhabitants lay claim to the trees, Tortorelli asserts

ownership of the submerged trees under the law of finds. Pet.

for Review at 14. Without reaching the merits of Tortorelli's

common law claim, the majority concludes as a matter of law

that the State owns the submerged trees. Majority at [9a].

The majority reaches this astonishing conclusion by

overstating the State's claim to natural resources under the

federal Submerged Lands Act of 1953, 43 U.S.C. § 1301.

Majority at [7a]. As the majority notes, the act provides a

' Tortorelli was originally charged with nine violations.

Majority at 613. Count seven was dropped; the issue of title has no

bearing on count four, offering a false document for filing. Jd. at 609,

612.

15a

nonexclusive definition of "natural resources." Majority at [8a].

However, its illustrative examples, "oil, gas, and all other

minerals, and fish, shrimp, oysters, clams, crabs, lobsters,

sponges, kelp, and other marine animal and plant life," 43

U.S.C. § 1301(e), are all resources that grow or evolve naturally

below water, rather than resources that once grew on dry land

and then happened to end up beneath the surface by accident or

natural disaster.

The majority's conclusion is counterintuitive. The

Submerged Lands Act speaks of minerals and marine life, not

of sunken trees. Moreover, the rule of lenity requires the court

to construe an ambiguous statute in a criminal case favorably to

the accused. Jn re Post Sentencing Review of Charles, 135

Wash.2d 239, 249-50, 955 P.2d 798 (1998). This assures

adequate notice, and thus due process, concerning what conduct

will be considered illegal. Liparota v. United States, 471 U.S.

419, 427, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985). Today's

majority gives short shrift to this vital concern.

I therefore respectfully dissent.

ALEXANDER, C.J., concurs.

16a

Court of Appeals of Washington, Division 1.

In re the Personal Restraint Petition of John

TORTORELLI, Petitioner,

STATE of Washington, Respondent.

No. 44340-2-I.

Jan. 2, 2001.

COX.

John Tortorelli seeks release from confinement by

personal restraint petition on several grounds following his

convictions for theft, trafficking in stolen property, use of

proceeds of criminal profiteering, and offering a false

instrument for filing. There was sufficient evidence to prove the

“property of another” element of the crimes based on theft as

well as all other elements of those crimes. The admission into

evidence of a copy of RCW 76.40.080 did not relieve the State

of its burden to prove an element of the crime of theft. The

admission of opinion testimony on the transferability of log

patrol licenses did not deprive Tortorelli of his right to a jury

trial. Tortorelli received effective assistance of counsel. And the

“to convict” instruction for offering a false instrument was

proper.

Accordingly, Tortorelli has failed in his burden to show

either constitutional error resulting in actual and substantial

prejudice or nonconstitutional error amounting to a fundamental

defect which inherently results in a complete miscarriage of

justice. We dismiss the petition.

A few months prior to April 1991, Tortorelli purchased

17a

from Clearwater Marine Works, Inc., a barge, crane, and

tugboat. Between April 1991 and July 1992, he salvaged stray

logs and trees from a sunken forest at the bottom of Lake

Washington. The stray logs were cut and rafted within the last

100 years. The trees were over 1,000 years old and came to rest

on the lake bottom as a result of an earthquake that sank a

portion of what is now Mercer Island. Tortorelli sold the stray

logs and trees to various mills. He used the proceeds from the

sales to continue his log salvage operation.

In August 1991, Tortorelli applied to the Department of

Natural Resources (DNR) for a log patrol license in the name

of Clearwater. At that time, former RCW 76.40 required a

license to salvage logs.’ DNR issued a log patrol license in

Clearwater's name, and sent the license to Tortorelli. After

issuing the license, DNR began an investigation to determine

whether Tortorelli was authorized to use Clearwater's name to

obtain the log patrol license. It appears that DNR determined

that Tortorelli was not so authorized.

The State charged Tortorelli with offering a false

document for filing, theft, trafficking in stolen property, and use

of the proceeds of criminal profiteering. Following a six-week

trial, a jury found Tortorelli guilty on a number of counts.’

' Former RCW 76.40.030, .050 (repealed 1994).

2 The counts of the amended information on which Tortorelli

was convicted state in relevant part:

Count I [Use of Proceeds of Criminal Profiteering]

That (Tortorelli) knowingly received proceeds derived from

a pattern of criminal profiteering activity, to-wit: three or more of the

crimes of Theft in the First Degree and/or Trafficking in Stolen

Property and used any part of the proceeds from said pattern of

(continued...)

18a

2(...continued)

criminal profiteering activity in the operation of an enterprise, to-wit:

Western Wood Lumber and (Tortorelli's) business;

Count II [First Degree Theft]

That (Tortorelli), alone and together with others with intent

to deprive another of property, to-wit: ancient submerged trees and

logs from an underwater forest in Lake Washington, did wrongfully

obtain such property belonging to the State of Washington,;

Count III [Trafficking in Stolen Property]

That (Tortorelli) did knowingly initiate, organize, plan,

finance, direct, manage(,) and supervise the theft of property, to-wit:

ancient submerged trees and logs from an underwater forest in Lake

Washington, for sale to other persons, and did knowingly sell said

stolen property to other persons,;

Count IV [Offering a False Instrument for Filing]

That (Tortorelli) did knowingly offer a false instrument,

to-wit: an Application For Log Patrol License, to be filed or recorded

in a public office, to-wit: the State Department of Natural Resources,

which instrument, if genuine, might be filed or recorded in such office

under any law of this State;

Count V [First Degree Theft]

That (Tortorelli) with intent to deprive another of property,

to-wit: logs taken from the bed of Lake Washington, did pursuant to

acommon scheme or plan, wrongfully obtain such property belonging

to another,;

Count VI [Trafficking in Stolen Properly]

That (Tortorelli) did knowingly initiate, organize, plan,

finance, direct, manage(,) and supervise the theft of property, to-wit:

logs taken from the bed of Lake Washington, for sale to other

persons, and did knowingly sell said stolen property to other persons,;

Count VIII [First Degree Theft]

(continued...)

19a

We affirmed his judgment and sentence in an unpublished

opinion.’ Our Supreme Court denied Tortorelli's petition for

discretionary review. In April 1999, he filed this personal

restraint petition.

Sufficiency of Evidence

Tortorelli argues in this petition that his due process

rights under the Fourteenth Amendment were violated because

the evidence was insufficient to support his convictions for

theft, trafficking in stolen property, and criminal profiteering.

We hold that there was sufficient evidence to convict him of

these crimes.

Failure to raise a constitutional or nonconstitutional

error on appeal does not bar consideration of that issue in a

subsequent petition.* To prevail here, Tortorelli must establish

either (1) actual and substantial prejudice arising from

2(...continued)

That (Tortorelli) with intent to deprive another of property,

to-wit: logs taken from the bed of Lake Washington, did pursuant to

acommon scheme or plan, wrongfully obtain such property belonging

to another,;

Count IX (Trafficking in Stolen Property)

That (Tortorelli) did knowingly initiate,organize, plan,

finance, direct, manage(,) and supervise the theft of property, to-wit:

logs taken from the bed of Lake Washington, for sale to other

persons, and did knowingly sell said stolen property to other persons,;

3 State v. Tortorelli, No. 36560-6-I, (filed June 9, 1997)

(1997 WL 306422).

4 In re Personal Restraint of Hews, 99 Wn.2d 80, 87, 660

P.2d 263 (1983); In re Personal Restraint of Cook, 114 Wn.2d 802,

812, 792 P.2d 506 (1990).

20a

constitutional error, or (2) nonconstitutional error that

inherently results in a complete miscarriage of justice.°

Tortorelli has the burden of showing by a preponderance of the

evidence that the alleged constitutional error caused him actual

and substantial prejudice.° Bare assertions and conclusory

allegations are not sufficient to command judicial consideration

and discussion in a personal restraint proceeding.’ The test of

sufficiency of the evidence is whether, after viewing the

evidence in the light most favorable to the prosecution, a

rational trier of fact could have found beyond a reasonable

doubt the elements of the charged crime. A claim of

insufficiency of evidence admits the truth of the State's evidence

and all inferences that can be reasonably drawn from that

evidence.’ All reasonable inferences must be drawn in the

State's favor and interpreted most strongly against the

defendant.'°

Tortorelli asserts there was insufficient evidence to

prove that the logs and ancient trees were “the property of

> In re Hews, 99 Wn.2d at 88; In re Cook, 114 Wn.2d at 812;

In re Personal Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086,

cert. denied, Rice v. Washington, 506 U.S. 958 (1992).

® In re Personal Restraint of Powell, 117 Wn.2d 175, 184,

814 P.2d 635 (1991), cert. denied, Powell v. DuCharme, 516 U.S. 825

(1995).

7 Inre Rice, 118 Wn.2d at 886.

8 State v. Woods, 63 Wn.App. 588, 590, 821 P.2d 1235

(1991). . ;

9 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068

(1992).

10 State v. Joy, 121 Wn.2d 333, 338-39, 851 P.2d 654 (1993).

2la

another” under RCW 9A.56.020(1). That statute defines theft as

“{tlo wrongfully obtain or exert unauthorized control over the

property or services of another or the value thereof, with intent

to deprive him of such property or services.”'' The term

“property of another” is not defined in the statute, but its

meaning can be derived from the definition of “owner”? under

the theft statutes.? Thus, to constitute the “property of

another,” the item must be one in which another person has an

interest, and the defendant may not lawfully exert control over

the item absent the permission of that other person.'* There was

sufficient evidence here to establish that the State had an

interest in the ancient trees and logs so that Tortorelli could not

lawfully exert control over them without the State's permission.

As to the ancient trees, there was ample evidence to support the

State's claim of ownership over them. A DNR letter sent to

Tortorelli and admitted into evidence explained that:

Stray logs, as defined above, are not the same as

ancient forest reninants, which are also found in

Lake Washington. The ancient forest remnants

are the result of several landslides [that]

occurred around the shores of Lake Washington

during the state's geologic past. Ancient forest

remnants were not lost from transportation or

'l (talics ours).

12 RCW 9A.56.010(10) defines owner as 'a person, other than

the actor, who has possession of or any other interest in the property

or services involved, and without whose consent the actor has no

authority to exert control over the property or services.’

13, Joy, 121 Wn.2d at 341 (citing State v. Pike, 118 Wn.2d

585, 589, 826 P.2d 152 (1992)).

4 Pike, 118 Wn.2d at 590.

22a

storage. These trees are anchored by their tops

and/or roots to what is now the lake bottom and

are not salvageable under the Log Patrols

statute. The ancient forest remnants belong to

the State of Washington and may not be

retrieved, sold or tampered with in any manner

whatsoever without the express permission of

the State.'°

Moreover, Sheryl Beck, who managed sales of valuable

materials from stateowned aquatic lands at DNR, testified that

DNR has not permitted anyone to remove the ancient trees from

the sunken forest in the bed of Lake Washington other than to

allow sampling of portions of the trees by scientists. This

evidence shows the State's active interest in excluding those

other than scientists from asserting control over the trees. In

short, the above evidence is sufficient to establish that the

ancient trees were the “property of another” for purposes of

Tortorelli's convictions. There was also sufficient evidence to

establish that the State owned the stray logs. David Pierce, Log

Patrol Program Administrator, telephoned Tortorelli in June

1992 and asked whether he had title to the stray logs. In a

memorandum sent to the Attorney General's Office the next

day, Pierce wrote down Tortorelli's response:

Last evening-7:30 (6/18/92) [-] I called John

Tortorelli at his home [y]our questions were

proposed, listed here & then followed by his

response.

1) Do you have title to the logs?

What he knows of the law is they are now stray

logs & belong to the state. He bases this on the

1S. Exhibit 93 (italics ours).

23a

fact that the logs have been in place since the

40s or earlier.'®

Tortorelli does not dispute this admission. Several

documents were also admitted into evidence to support the

State's claim that it owned the stray logs. These included letters

that DNR sent to Tortorelli in which DNR explained that the

State owned all non-branded logs pursuant to RCW 76.36.020."”

Tortorelli does not dispute that the logs he recovered were

unbranded. And there is nothing in the record to suggest

otherwise. Viewing the evidence in the light most favorable to

the State, a rational trier of fact could find that the stray logs

and ancient trees belonged to the State, not Tortorelli. There

was sufficient evidence to support Tortorelli's convictions.

Thus, there is no showing of any constitutional error resulting

in actual and substantial prejudice to him.

16 (Italics ours).

17 Exhibit 128 states that: '(t)he ownership of logs having

merchantable value is retained by the registered brandholder, by law,

even if the logs have been lost. If the log does not have a brand or

ownership mark, the Jaw specifies that it belongs to the [S[tate and

can only be recovered and removed by a licensed log patrol.’

Exhibit 135 states that:

State-owned stray logs include:

1. logs branded with (DNR) brands

2. all non-branded logs

3. logs with non-identifiable brands

4. logs with non-registered brands where the log owner

cannot readily be identified (RCW 76.36.020 and 76.40.060).

RCW 76.36.020 in turn states that '(u)nbranded or unmarked

stray logs or forest products become the property of the state

when recovered.'

24a

Conclusive Presumption

Tortorelli next argues that by admitting former RCW

76.40 into evidence, which allegedly contained a conclusive

presumption of the element of intent to deprive, the trial court

violated his rights to due process and trial by jury. We hold that

Tortorelli has not established any error that worked to his actual

and substantial prejudice.

A petitioner has the initial burden of establishing that,

more likely than not, he was actually prejudiced by the claimed

constitutional error.'* If actual prejudice is not shown, then we

must deny the petition.'? The trial court admitted the entire log

patrol statute, former RCW 76.40, into evidence as exhibit 132.

The specific statute at issue, former RCW 76.40.080, states that:

Any log patrol having possession of stray logs,

boom sticks, or boom chains, except as herein

provided shall be presumed to have and hold

possession of same with intent to deprive and

defraud the owner thereof and such possession

shall be prima facie evidence of intent to deprive

or defraud.”

Tortorelli argues that any evidence supporting the State's

contention that Tortorelli did not have a log patrol license

automatically triggered former RCW 76.40.080's presumption

of intent to deprive which relieved the State of its burden to

prove the element of intent in theft. Tortorelli is not entitled to

relief because he fails to show any actual prejudice. Tortorelli

fails to demonstrate any actual prejudice from the alleged

18 In re Hews, 99 Wn.2d at 88-89.

19 In re Hews, 99 Wn.2d at 88.

20 (italics ours).

25a

unconstitutional statute for two reasons. First, as the State points

out, the statutory presumption did not apply to Tortorelli. This

is because Tortorelli was not a log patrol as defined under the

log patrol statutes”! as he did not have a license. Tortorelli

argues in his reply brief that if the statutory presumption in

former RCW 76.40.080 did not apply to him, then the trial court

erred by admitting irrelevant evidence. But even assuming the

evidence was irrelevant, Tortorelli fails to show that such error

actually prejudiced him or resulted in a complete miscarriage of

justice.

Second, there is no showing that the admission of the

statute relieved the State of its burden of proving the element of

intent. To the contrary, the to-convict instructions clearly set

forth that the State must prove intent to deprive in order to

convict Tortorelli of theft. We presume the jury follows the trial

court's instructions.” In sum, because Tortorelli has shown no

actual prejudice from the admission of former RCW 76.40.080,

we decline to reverse his convictions on this basis.

Ineffective Assistance of Counsel

Tortorelli also argues that his trial counsel's failure to

object to exhibit 132 denied his constitutional right to effective

assistance of counsel. We disagree.

21 RCW 76.40.010(1) defines log patrol as 'any person

licensed by [DNR] for the purpose of engaging in the recapture,

return, or other disposition of stray logs from the waters of this state’

(Italics ours).

22 State v. Hanna, 123 Wn.2d 704, 711, 871 P.2d 135, cert.

denied, Hanna vy. Washington, 513 U.S. 919 (1994).

26a

Washington courts use a two-prong test to overcome the

strong presumption of effectiveness that courts apply to

counsel's performance.” To prevail on a claim of ineffective

assistance of counsel, Tortorelli must first establish that

counsel's representation was deficient.” Deficient performance

is established by showing that given all the facts and

circumstances, counsel's conduct failed to meet an objective

standard of reasonableness.” But deficient performance is not

shown by matters that go to trial strategy or tactics.” We

employ a strong presumption that counsel's representation was

effective.”’

Second, Tortorelli must show that the deficient

representation resulted in prejudice such that “there is a

reasonable probability that, but for counsel's errors, the result of

the trial would have been different.”"* Here, defense counsel's

failure to object to exhibit 132, which contained former RCW

76.40.080, did not constitute deficient performance because

there was a legitimate strategic reason for its admission. The

defense theory below was that Tortorelli had permission to take

the logs and trees through the log patrol program. Because

exhibit 132 contained the entire log patrol statute that set forth

23 State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d

1251 (1995).

24 State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563

(1996).

25 State v. Huddleston, 80 Wn.App. 916, 926, 912 P.2d

1068, review denied, 130 Wn.2d 1008 (1996).

. Hendrickson, 129 Wn.2d at 77-78.

?” McFarland, 127 Wn.2d at 335.

28 Hendrickson, 129 Wn.2d at 78.

27a

regulations governing the log patrol program, it was critical in

advancing Tortorelli's claim that he took the logs and trees with

permission and with good faith claim of title. In fact, defense

counsel objected to the State's proposed jury instruction 8A,

which only included portions of the log patrol statute, as

incomplete:

On the Court's proposed [instruction 8A], we

have a number of problems with that proposed

instruction

The first problem is that I think it is inaccurate

as a statement of law. It is inaccurate

because--for example, it states out in paragraph

1: you are instructed that the State of

Washington regulates the taking of valuable

materials in this way.

That's not an accurate statement of law. There

are extensive statutes on how the State regulates

the taking. The State's selective provisions here

are in fact not complete and they are not

accurate...

As given, [the Court's proposed instruction 8A],

comment(s] on the evidence, it is not accurate[,]

it is not complete[,] and it precludes the defense

in many ways from making some of its

arguments on the good-faith taking.”

Because Tortorelli did not establish deficient

performance, we need not consider whether such performance

29 Report of Proceedings dated February 9, 1995 at 53-54,

119 (italics ours).

28a

resulted in prejudice.” Tortorelli received effective assistance

of counsel.

Tortorelli asks us to consider Lenell Nussbaum's

declarations to support his contention that trial counsel's failure

to object to the admission of Exhibit 132 constituted deficient

performance. But the declaration does not alter our conclusion

that Tortorelli received effective assistance of counsel.

Duty to Declare Law

Tortorelli argues that the trial court committed

constitutional error by admitting testimony that log patrol

licenses are not transferable. We disagree.

Article 4, section 16 of our Constitution states that

“[j]udges shall not charge juries with respect to matters of fact,

nor comment thereon, but shall declare the law.”*' Tortorelli

claims that whether log patrol licenses are transferable should

have been resolved by interpreting the log patrol statutes and

thus was a question of law for the court to decide. Accordingly,

Tortorelli asserts that the trial court violated its constitutional

duty to “declare the law.” Assuming, without deciding, that

there was constitutional error, reversal is not warranted because

Tortorelli has not shown that the error actually and substantially

prejudiced him.

Tortorelli does not show actual and substantial prejudice

from the claimed constitutional error because there was

substantial evidence showing that Clearwater's log patrol license

was not transferred to Tortorelli. Roy Jamieson and Carl

30 State v. Johnson, 29 Wn.App. 807, 814, 631 P.2d 413,.

review denied, 96 Wn.2d 1009 (1981).

3! (Italics ours).

29a

Bergin, owners of Clearwater, testified that Tortorelli was not

authorized to use Clearwater's log patrol license. Bergin also

testified that he did not authorize Tortorelli to apply for future

permits or licenses using Clearwater's name. And although

Tortorelli asserts that the equipment sales agreement between

Clearwater and Tortorelli® allowed him to use Clearwater's log

patrol license, Bergin and Jamieson testified that the agreement

did not authorize Tortorelli to use the log patrol license in Lake

Washington. Rather, use of Clearwater's various permits for log

recovery work was restricted to Mineral Lake.

Because Tortorelli has failed to show that the trial

court's admission of testimony that log patrol licenses are not

transferable actually and substantially prejudiced him, we

decline to reverse his convictions on this basis.

Materiality

Tortorelli finally argues that “materiality” is an element

of the offense of offering a false instrument for filing and the

trial court violated his due process rights in failing to include

that element in the to-convict instructions. We hold that

materiality is not an element of the offense. Tortorelli was

convicted of offering a false instrument for filing under RCW

32 The sales agreement stated:

It is agreed that the business of (Clearwater) and the business

of Tortorelli are two separate and distinct businesses that

have their own separate obligations to their own separate

employees, and it is not intended that there be any sharing of

profits, nor any resulting joint venture or partnership

arrangement Notwithstanding the preceding, Tortorelli may

operate his business under the permit of (Clearwater)

provided that doing so is authorized by all applicable laws.

Report of Proceedings dated January 19, 1995 at 103-05.

30a

40.16.030 when he applied for a log patrol license using

Clearwater's name, where he was neither Clearwater nor

authorized by Clearwater to do so. RCW 40.16 .030 states that:

Every person who shall knowingly procure or

offer any false or forged instrument to be filed,

registered, or recorded in any public office,

which instrument, if genuine, might be filed,

registered or recorded in such office under any

law of this state or of the United States, shall be

punished by imprisonment in a state correctional

facility for not more than five years, or by a fine

of not more than five thousand dollars, or by

both.

The plain language of the statute omits reference to the

word “materiality”.-A statute that is plain on its face is not

subject to construction.** Thus, “materiality” is not an element

of offering a false instrument for filing.” Tortorelli's reliance on

State v. Price® for the argument that the case added materiality

as an element of offering a false instrument for filing is

misplaced. In Price, our Supreme Court addressed the issue of

what constitutes “an instrument” under RCW 40.16.030 and

held that:

[W]e determine that the legislature intended that

RCW 40.16.030 encompass a document which is

33 In re Marriage of Kovacs, 121 Wn.2d 795, 804, 854 P.2d

629 (1993).

* State v. Sanders, 86 Wn.App. 466, 937 P.2d 193 (1997)

(holding that the plain wording of RCW 40.16.030 does not require

material falsity as an element of the offense of offering a false

instrument for filing).

35 94 Wn.2d 810, 620 P.2d 994 (1980).

3la

required or permitted by statute or valid

regulation to be filed, registered, or recorded in

a public office if (1) the claimed falsity relates to

a material fact .epresented in the instrument; and

(2a) the information contained in the document

is of such a nature that the government is

required or permitted by law, statute or valid

regulation to act in reliance thereon; or (2b) the

information contained in the document

materially affects significant rights or duties of

third persons, when this effect is reasonably

contemplated by the express or implied intent of

the statute or valid regulation which requires the

filing, registration, or recording of the

document.*®

Price is not controlling because the issue there was

whether a steelhead receiving ticket was an “instrument” under

RCW 40.16.030, not whether “materiality” was an element that

the State must prove in order to establish a violation of RCW

40.16.030.

We dismiss the personal restraint petition.

36 (Italics ours)

- 32a

Court of Appeals of Washington, Division 1.

STATE of Washington, Respondent,

John J. TORTORELLI, Appellant.

No. 36560-6-I.

June 9, 1997.

GROSSE, BECKER, and COX, JJ.

GROSSE, J.

Tortorelli operated a business that salvaged logs from

Lake Washington. The State claims ownership of the logs and

it claims that Tortorelli removed them without authority.

Tortorelli was charged with theft, trafficking in stolen property,

criminal profiteering, and offering a false document. Tortorelli

appeals his convictions, claiming that his case should have been

dismissed after the State obtained a privileged document; that

he should have been charged under the log patrol statutes

because they are special statutes that supersede the general

statutes under which he was actually charged; that his multiple

crimes should have been merged into one crime; and that his

offender score was improperly calculated.

Record on Appeal

The trial was approximately six weeks long, involving

considerable testimony. To support his brief, Tortorelli

provided a verbatim record for only one day of testimony, a few

days of motion hearings, and final arguments. Few of the many

. ERIS

SR rer Ue rerenn s smaiateate

AIS FORME ALIA DR PAG EM RENIN LEN ad bY

33a

exhibits and none of the sentencing and restitution hearings

transcripts are provided. This record is grossly inadequate to

support many of the assignments of error on appeal.

: A party seeking review has the burden of perfecting the

record so that this court has before it all of the evidence relevant

to the issue.’ Even though the entire record is not required,

"those portions of the verbatim report of proceedings necessary

to present the issues raised on review" must be provided to the

court. We require citations to the record in the parties’ briefs

to support their contentions.? Absent an adequate record and

citations to that record, we will not review a claim.‘ Here, even

for the issues Tortorelli argues, he does not provide the

necessary transcripts of the judge's rulings or the actual

testimony. To make his factual assertions, Tortorelli relies on

closing arguments, clerk's minutes, the certificate for probable

cause, and briefs in the clerk's papers. Unfortunately, these

shortcuts do not provide a sufficient record for review.

Because of the inadequate record, we will not reach the

legal merits of the following issues: the admission of evidence

of prior bad acts; the failure to offer jury instructions; and

prosecutorial misconduct. Each of these issues requires us to

' Olmsted v. Mulder, 72 Wash.App. 169, 183, 863 P.2d 1355

(1993), review denied, 123 Wash.2d 1025 (1994); RAP 9.6; RAP

9.2

2 RAP 9.2(b).

> RAP 10.3(a)(5).

4 State v. Wheaton, 121 Wash.2d 347, 365, 850 P.2d 507

(1993).

34a

consider whether there was any prejudice to Tortorelli,> which

we cannot do with the record as it has been presented. We also

will not consider his numerous ineffective assistance of counsel

arguments because in order to judge this issue we must review

the entire record to determine whether a defendant has met his

or her burden to show the alleged deficiencies in representation

and the resulting prejudice.° Without the entire record, we are

unable to pursue such an inquiry. Additionally, again because

of the lack of record, we cannot reach Tortorelli's claims that

restitution was ordered in excess of the proof and without proof

of the State's ownership.

At oral argument, the panel and the parties discussed

whether the State had proved ownership of the logs. Tortorelli

then made a motion to supplement the record in order to argue

that the State had not proven this fact. Despite our expressed

interest in this issue, we must deny this motion because

Tortorelli did not argue this point in his brief. We have sifted

through his brief and cannot locate a comprehensive argument

about ownership. Although Tortorelli occasionally asserts that

ownership was not proven, this is not enough. In order for us

to review a claimed error, the party must assign error to that

issue and address argument to that claim.’ Here, Tortorelli has

not argued the relevant issues in the body of his brief with

> State v. Robtoy, 98 Wash.2d 30, 44, 653 P.2d 284 (1982);

State v. Washington, 64 Wash.App. 118, 126, 822 P.2d 1245, review

denied, 119 Wn.2d 1003 (1992); State v. Pirtle, 127 Wash.2d 628,

672, 904 P.2d 245 (1995), cert. denied, U.S., 116 S.Ct. 2568, 135

L.Ed.2d 1084 (1996).

® State v. McFarland, 127 Wash.2d 322, 334-38, 899 P.2d

1251 (1995).

7 RAP 10.3(a)(3); RAP 10.3(g).

EPSPS RU ITO PG: ND RM Nate I RN SSSR uae ERIN IS Mik ease

LRRD RIRDTALHN NHR RIEO PY DSA: mD HE I SR SARS INI PE NAIA SR ANC me Nt Pe: EEN PART OGLE hn . .

35a

citations to authority and to the record.®

From the limited record, we can discern the following:

Tortorelli operated a business that salvaged logs from the bed

of Lake Washington in 1991 and 1992. Some of the trees he

took were over 1,000 years old and were in the lake as a result

of ancient mud slides. Tortorelli used a barge, crane, and

tugboat that he bought from Clearwater Marina, Inc. The State

claimed that the owners of Clearwater Marina did not give

Tortorelli permission to use Clearwater Marina's log patrol

license or permission to use the Clearwater Marina name to

obtain a license. In 1991 and 1992, a log patrol license was

necessary to salvage logs. Under the former log patrol statutes,

a person must be licensed to salvage stray logs, and recovered

stray logs must be sold as directed by the State.’

The State alleged that because Tortorelli did not comply

with these statutes, he did not have permission to take the logs.

The State also claimed that after taking the logs, he trafficked

in stolen property by delivering them to various mills, and that

he used funds received from the mills so that he could continue

his log recovery operation. Tortorelli did not deny recovering

sunken logs, and he did not deny selling them to the various

mills. Rather, he claimed that he did not steal the logs because

he had a good faith claim of title to them.

In 1995, Tortorelli was convicted of first degree theft

and trafficking in stolen property for three non-adjoining time

* State v. Olson, 126 Wash.2d 315, 323, 893 P.2d 629

(199° ;.

* Former RCW 76.40.030, .050, repealed by Laws of 1994,

ch. 163, 6.

36a

periods of log removal activity.'° He was convicted of using

the proceeds of criminal profiteering in his business for the

period of 1991-92."' He was also convicted of offering a false

instrument to apply for a log patrol license on August 25,

1991.'2 Tortorelli appeals his eight convictions.

Attorney/Client Communications

Tortorelli claims the trial court erred by not dismissing

his case after the State obtained a document that the trial court

determined to be privileged. The document consisted of several

handwritten pages found in a large envelope, with copies of

statutes, regulations, and district court pleadings. The envelope

was stamped with an attorney's return address. Tortorelli

apparently wrote this statement in the spring of 1992 to detail

his salvaging activities and permit problems, after he had been

arrested for misdemeanor hydraulic permit violations. These

charges were dismissed that summer.

In the fall, after the misdemeanor charges had been

dismissed, the envelope was obtained in the execution of a

search warrant. In 1994, the State used the document while

cross-examining one witness in a hearing before an inquiry

judge. The trial court granted Tortorelli's motion to suppress

this evidence, concluding that the materials were confidential

and protected by the attorney- client privilege. However, the

trial court denied Tortorelli's motion to dismiss.

Tortorelli argues that his right to effective assistance of

10 RCW 9A.56.030(1)(a), .020(1)(a), RCW 9A.82.050, .

010(10).

1! RCW 9A.82.080(1), .010(14).

2 RCW 40.16.030.

rede naan cin cee n Den nee

37a

counsel was violated because the State obtained information

that gave it an improper advantage and, thus, the only remedy

is dismissal. The State counters that the Sixth Amendment

right to counsel had not attached when the document was seized

and used because no charges were then pending.

The evidentiary attorney/client privilege and the Sixth

Amendment right to counsel are linked. When privileged

communications between a defendant and his or her counsel are

intercepted, this can violate the Sixth Amendment” because it

may result in the prosecutor's use of confidential defense

strategy to prepare the State's case, in the use of tainted

evidence against the defendant at trial, and in the destruction of

the defendant's confidence in his or her attorney.'* In short,

such interception can threaten the ability of a defendant to

adequately prepare to face charges:

The fundamental justification for the sixth

amendment right to counsel is the presumed

inability of a defendant to make informed

choices about the preparation and conduct of his

defense. Free two-way communication between

client and attorney is essential if the professional

assistance guaranteed by the sixth amendment is

to be meaningful. The purpose of the

attorney-client privilege is inextricably linked to

the very integrity and accuracy of the fact

3 Eg. State v. Cory, 62 Wash.2d 371, 382 P.2d 1019 (1963).

4 United States v. Irwin, 612 F.2d 1182, 1187 (9th

Cir.1980). See Weatherford v. Bursey, 429 U.S. 545, 558, 9 S.Ct.

837, 51 L.Ed.2d 30 (1977).

38a

finding process itself. '*

In State v. Cory, our Supreme Court dismissed the

defendant's charges after a sheriff recorded conversations

between the defendant and his attorney because it was

impossible for the State to demonstrate the absence of

prejudice.’ By comparison, in State v. Grant, the Court of

Appeals found that the State had demonstrated that the

defendant was not prejudiced, despite the police having

improperly tape recorded a conversation, because the State

subsequently screened off the tainted evidence.'” In both cases,

it was the State's burden to demonstrate that it was possible io

"isolate the prejudice” resulting from the interception."

Neither Cory nor Grant directly apply to this case

because in both the defendants were charged with a crime at the

time of the interception and, thus, the right to counsel had

attached. There is a fundamental distinction between the use

of privileged information at trial and its use during the

investigatory period.'? Here the State intercepted the privileged

'S United States v. Levy, 577 F.2d 200, 209 (3d Cir.1978).

16 State v. Cory, 62 Wash.2d at 376-78, 382 P.2d 1019.

'7 State v. Grant, 9 Wash.App. 260, 266-67, 511 P.2d 1013,

review denied, 83 Wn.2d 1003 (1973), cert. denied, 419 U.S. 84

(1974). ‘

18 Cory, 62 Wash.2d at 377, 382 P.2d 1019; Grant, 9

Wash.App. at 266, 511 P.2d 1013. See also State v. Burri, 87

_ Wash.2d 175, 183, 550 P.2d 507 (1976).

'9 United States v. Rogers, 751 F.2d 1074, 1077-78 (9th

Cir.1985). See United States v. White, 879 F.2d 1509, 1513 (7th

Cir.1989), cert. denied, 494 U.S. 1027 (1990); United States ex rel.

(continued...)

LPR EAA LIE pie OES By

TA MOR Yi ty Re A er ROE RAM De NPS 5 5

7 i pony r

39a

document while investigating Tortorelli. It had not yet charged

him for theft, trafficking, profiteering, and falsifying documents.

The timing is crucial. It is well established that the nght to

counsel attaches only when the State has begun formal

proceedings, such as charging the defendant.” The right to

counsel does not attach during inquiry judge proceedings.”

The fact that Tortorelli prepared the document when he

was subject to related misdemeanor charges only establishes the

nature of the document -- that it was a privileged attorney/client

communication.” This fact does not establish the remedy for

the improper interception of that communication after those

charges were dismissed. In cases where the defendant seeks to

assert the attorney/client privilege, but where the Sixth

Amendment is not implicated, it is the defendant's burden” to

demonstrate application of the privilege, any prejudice, and the

inadequacy of the remedy of suppression. Based on the limited

record, we cannot find that Tortorelli has met his burden to

show that suppression of the document was an inadequate

'9(...continued)

Shiflet v. Lane, 815 F.2d 457, 464-65 (7th Cir. 1987), cert. denied, 485

U.S. 965 (1988).

20 State v. Kalakosky, 121 Wash.2d 525, 534, 852 P.2d 1064

(1993); State v. Judge, 100 Wash.2d 706, 714, 675 P.2d 219 (1984).

21 Cf. Sheriff, Clark County, Nevada v. Bright, 108 Nev. 498,

835 P.2d 782, 835 P.2d 782, 784 (1992).

22 Cf. United States v. Mackey, 405 F.Supp. 854, 860-61

(E.D.N.Y.1975).

23 See R.A. Hanson Co. v. Magnuson, 79 Wash.App. 497,

501, 903 P.2d 496 (1995), review denied, 129 Wash.2d 1010 (1996).

See generally, Dike v. Dike, 75 Wn.2d 1, 75 Wash.2d 1, 448 P.2d 490

(1968).

40a

remedy.

Special/General

Tortorelli claims that the charges should have been

dismissed because the State failed to charge him under a special

statute, former RCW 76.40, and the statute of limitations had

run with respect to that special statute. Where a special statute

punishes conduct that also is punished under a general statute,

the statutes are concurrent and the defendant must be charged

under the special statute. A special statute is concurrent with

the general statute only if is not possible to commit the special

crime without also committing the general crime.”

Tortorelli focuses on former RCW 76.40, looking at the

chapter as a whole. The proper analysis is to look at the

elements of the individual crimes proscribed by RCW 76.40,

comparing those elements to the elements of the charged

crimes. While Tortorelli asserts that former RCW 76.40.130,

which merely provides that "[a]ny violation of this chapter shall

be a gross misdemeanor," is a special statute, we cannot agree.

This provision cannot be termed a "special" statute within the

meaning of the requisite inquiry. By committing many of the

"[aJny violation[s] of this chapter,"*° a person would not

necessarily have committed the general crimes of theft,

trafficking in stolen property, criminal profiteering, or offering

a false document. For example, a person could have committed

a gross misdemeanor by failing to have a log patrol license

24 State v. Walker, 75 Wash.App. 101, 105, 879 P.2d 957

(1994), review denied, 125 Wash.2d 1015 (1995).

25 Walker, 75 Wash.App. at 105, 879 P.2d 957.

26 Former RCW 76.40.130.

4la

displayed on his or her boat.”’ Clearly, the misdemeanor crime

does not contain any of the elements of the crimes for which he

was convicted.

Tortorelli also points to former RCW 76.40.080, which

provided: -

Any log patrol having possession of stray logs,

boom sticks, or boom chains, except as herein

provided shall be presumed to have and hold

possession of same with intent to deprive and

defraud the owner thereof and such possession

shall be prima facie evidence of intent to deprive

or defraud.

He asserts that "by referencing a ‘presumption of intent to

deprive’ ... the purpose of the statute was, in part, to provide

riminal sanctions for the type of [Tortorelli's] activities.”

Former RCW 76.40.080 did not create a crime, rather its

purpose was to create a presumption. No provision in former

RCW 76.40 required an "intent to deprive” as an element of an

offense. Although former RCW 76.40.020 made it unlawful

for a person "to hold any stray logs” or to engage in any log

patrol activities without a license, "intent to deprive" was not an

element. Because it was possible to violate RCW 76.40.020

without committing the crimes of theft, trafficking, profiteering,

and offering a false document, RCW 76.40.020 is not a

concurrent special statute.

Tortorelli also argues that former RCW 76.40.910,

which provided that "[iJn case of conflict with any existing

provision of law, the provisions hereof shall prevail,” reflects a

legislative intent that former RCW 76.40 exclusively governs

log patrol activities. That may be true, but the theft, trafficking

27 Former RCW 76.40.040; former RCW 76.40.1390.

42a

in stolen property, and uve of criminal proceeds statutes do not

thereby conflict. The fact that one might be in violation of both

the log patrol statutes and the criminal code is not a conflict

requiring application of one or the other statutory schemes.

Tortorelli's assertion that equal protection was violated

by the State's decision to charge him under the theft, trafficking,

and criminal proceeds statutes instead of the log patrol statutes

is simply wrong. As our Supreme Court has made clear, "there

is no equal protection violation when the crimes that the

prosecuting attorney has the discretion to charge require proof

of different elements." The charged offenses require proof of

elements different than the former log patrol statutes and thus

do not implicate equal protection.

Double Jeopardy/Merger

Tortorelli claims his convictions violate the prohibition

against double jeopardy. "[T]he guaranty against double

jeopardy protects against multiple punishments for the same

offense."”? However, since the Legislature has the power to

define criminal conduct and assign punishment for such

conduct, the question of whether punishments imposed are

unconstitutionally multiple is resolved by first determining just

what punishment the legislative branch has authorized.” A

"defendant's double jeopardy rights are violated if he or she is

28 State v. Leech, 114 Wash.2d 700, 711, 790 P.2d 160

(1990) (citations omitted).

?9 State v. Calle, 125 Wash.2d 769, 776, 888 P.2d 155 (1995)

(citing Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct. 1432,

63 L.Ed.2d 715, 63 L.Ed.2d 715 (1980)).

43a

convicted of offenses that are identical both in fact and in

law."*!

Tortorelli argues he was put in double jeopardy because

he was convicted at the same time of theft, trafficking in stolen

property, offering a false instrument, and use of criminal

proceeds. Tortorelli, however, does not directly dispute that

these crimes are different crimes in law, and since the crimes

have different elements,” such an argument would be meritless.

Because he cannot establish that these crirmes were the same in

law, double jeopardy was not violated.

Tortorelli also argues that being charged with three

different counts of theft violated double jeopardy. Since these

three theft crimes are the same in law, the question is whether

they were the same in fact. Tortorelli asserts that because his

activities all occurred in Lake Washington, using the same

equipment, and all within "relatively close periods of time," his

conduct was one continuous criminal impulse constituting the

same act. While our analysis is hampered by the inadequate

record, it appears to us, viewing the information on its face, that

the State acceptably separated these offenses by charging in

three non-adjoining time periods.** The prosecutor's decision to

charge three different counts for each crime, instead of only one

appears to have been a proper exercise of discretion.” Because

31 Calle, 125 Wash.2d at 777, 888 P.2d 155.

% RCW 9A.56.030(1)(a); RCW 9A.82.050; RCW

40.16.030; RCW 9A.82.080(1).

33 See State v. Perkerewicz, 4 Wash.App. 937, 942, 486 P.2d

97, review denied, 79 Wash.2d 1006 (1971).

4 See State v. Lewis, 115 Wash.2d 294, 299, 797 P.2d 1141

(continued...)

44a

the same evidence was not used to prove each conviction, the

three convictions for theft did not violate double jeopardy.

Finally, Tortorelli argues that he was put into double

jeopardy because his crimes merged.** He asserts that the

merger doctrine applies because in his case proof of one crime

(e.g., theft) served as an element to prove another crime (e.g.,

stolen property). | However, under Washington's merger

doctrine, only when one offense is used to elevate the degree of

another offense does the lesser offense merge into the greater

offense.*®

Although some courts have stated generally that merger

applies if proof of one crime is a necessary element or

constitutes proof of another crime,” that is not the proper

analysis. The merger doctrine only "applies where a crime can

be elevated to a higher degree by proof of another crime

proscribed elsewhere in the criminal code."* Trafficking in

stolen property is not such acrime. Thus, the merger doctrine

4(...continued)

(1990).

> See State v. Frohs, 83 Wash.App. 803, 812, 924 P.2d 384

(1996).

%® State v. Contreras, 124 Wash.2d 741, 745, 880 P.2d 1000

(1994).

7 E.g., State v. Garcia, 65 Wash.App. 681, 689, 829 P.2d

241, review denied, 120 Wash.2d 1003 (1992).

38 State v. Eaton, 82 Wash.App. 723, 730, 919 P.2d 116

(1996). See State v. Viadovic, 99 Wash.2d 413, 420-21, 662 P.2d

853 (1983).

45a

does not apply to his stolen property convictions.” Similarly,

it does not apply to his theft, offering a false document, and

criminal profiteering convictions.

Sentencing

Tortorelli claims that his crimes should have been

counted as one crime to determine his offender score.

Whenever a defendant is sentenced for two or more current

offenses, the trial court determines the sentence range for each

offense by adding together all of the other current offenses and

° Cf. State v. Strohm, 75 Wash. App. 301, 310-11, 879 P.2d

962 (1994), review denied, 126 Wash.2d 1002 (1995). In Strohm,

this court held that a person could be convicted under both the

trafficking and theft statutes because in a "theft/trafficking case the

thief transfers the stolen property to another." Strohm, 75 Wash.App.

at 310, 879 P.2d 962. In State v. Michielli, 81 Wn.App. 773, 777-79,

81 Wash. App. 773, 916 P.2d 458, review granted, 130 Wash.2d 1007,

928 P.2d 415 (1996), another division of this court held otherwise.

The Michielli court assumed that trafficking in stolen property

"suggests at least a two- party transaction and reflects legislative

intent to punish those who knowingly deal in property stolen by

others." Michielli, 81 Wash.App. at 778, 916 P.2d 458. We decline

to follow Michielli because RCW 9A.82.050 does not require that

another steal the property. A person may be guilty of RCW

9A.82.050 if the person "traffics in stolen property [.]" Traffic has

two definitions: "to sell, transfer, distribute, dispense, or otherwise

dispose of stolen property to another" or "to buy, receive, possess, or

obtain control of stolen property, with intent to sell, transfer,

distribute, dispense, or otherwise dispose of the property to another

person.” RCW 9A.82.010(10). The second "to buy” scenario is the

one the Michielli court envisions. But by providing the alternative

"to sell" definition for "traffic," the Legislature did not require that the

property be stolen by others.

46a

prior convictions. If, however, the court finds that all or some

of the current offenses encompass "the same criminal conduct,"

then those offenses may be counted as one crime.” Under

RCW 9.94A.400(1)(a) to constitute the "same criminal

conduct," the crimes must involve the same victim, the same

criminal intent, and the same time and place.*' Here, all of the

offenses have the same victim, the State of Washington.

Tortorelli was charged with theft and trafficking in

stolen property for three separate time periods. The first

question is whether his criminal intent changed from when he

stole the logs to when he sold the logs. To decide this, the

court may look to "the extent to which one crime furthered the

other, whether they were part of the same scheme or plan and

whether the criminal objectives changed." Tortorelli

persuasively argues that harvesting and selling were one

continuous impulse or plan, because one activity furthered

another. The fact that the theft of the logs furthered the sale of

the logs demonstrates that he had the same criminal intent. The

inquiry does not stop there, however.

The next question is whether Tortorelli demonstrated

that the crimes took place at the same time and place. It is not

enough to show that one crime furthered another. That does

not demonstrate same time and place, rather it demonstrates

same criminal intent. In order to prove the same criminal

conduct, Tortorelli must independently prove the same time and

® RCW 9.9A.400(1)(a).

‘! State v. Vike, 125 Wash.2d 407, 410, 885 P.2d 824 (1994).

® State v. Calvert, 79 Wash.App. 569, 578, 903 P.2d 1003

(1995), review denied, 129 Wash.2d 1005 (1996). See State v.

Dunaway, 109 Wash.2d 207, 215-17, 743 P.2d 1237, 749 P.2d 160

(1987).

47a

place element because under the statute all three separate

elements must be present.”

Here, again, the lack of the trial and sentencing record

impedes any effective review ofthis issue. Other than knowing

the general dates of the criminal activity and that it took place

on Lake Washington, we do not have an adequate record to

judge whether the logs were stolen and sold in the same time

and place.“ On this sparse record, we cannot find that the trial

court abused its discretion in finding the crimes involved

different criminal conduct.

Tortorelli also has not established the same course of

conduct for his other convictions. The three thefts took place

at different times, as did the three trafficking offenses. The use

of criminal proceeds offense* has a different criminal intent

from his other crimes, as does offering a false document.”

Tortorelli argues that he should have been sentenced as

a first time offender. While a trial court is permitted to

sentence someone as a first time offender, it is not required to

3 State v. Maxfield, 125 Wash.2d 378, 402, 886 P.2d 123

(1994); see also State v. Garza-Villarreal, 123 Wash.2d 42, 47, 864

P.2d 1378 (1993).

“ Tortorelli asserts that in the State's closing argument, the

prosecutor conceded that the crimes involved the same location, Lake

Washington; the same victim, the State; and the same items, logs

from the lake bottom. Even if we viewed closing arguments as

evidence, which we do not, the State was making this argument in the

context of arguing that individual thefts of the logs should be

aggravated.

4S RCW 9A 82.080(1).

4 RCW 40.16.030.

48a

do so.” He also contends that the trial court abused its

discretion by not giving him an exceptional sentence below the

standard range. This is not an appealable error. His sentence

was within the standard range and he has shown no procedural

error in his sentencing.*

Tortorelli argues that the trial court should have

considered his ability to pay when setting the restitution

amount. The consideration of the defendant's ability to pay,

however, applies to the setting of the minimum monthly

payment, not to the setting of the total restitution amount.” He

also asserts that the State obtained restitution for crimes beyond

the statute of limitations, because some of the predicate crimes

for the crime of criminal profiteering were barred from

prosecution by the statute of limitations. This argument is

without merit. The State could charge criminal profiteering for

the time period regardless. The trial court had the authority to

order restitution for this count.”

We affirm.

‘7 State v. Welty, 44 Wash.App. 281, 284, 726 P.2d 472,

review denied, 107 Wn.2d 1002 (1986).

4 RCW 9.94A.210(1); State v. Friederich-Tibbets, 123

Wash.2d 250, 252, 866 P.2d 1257 (1994).

State v. Huddleston, 80 Wash.App. 916, 928-29, 912 P.2d

1068, review denied, 130 Wash.2d 1008 (1996).

® See RCW 9A.82.100.

49a

WEST'S REVISED CODE OF WASHINGTON

ANNOTATED

TITLE 76. FORESTS AND FOREST PRODUCTS

CHAPTER 76.36. MARKS AND BRANDS

76.36.010. Definitions

The words and phrases herein used, unless the same be

clearly contrary to or inconsistent with the context of this

chapter or the section in which used, shall be construed as

follows:

(1) "Booming equipment" includes boom sticks and

boom chains.

(2) "Brand" means a unique symbol or mark placed on

or in forest products for the purpose of identifying ownership.

(3) "Catch brand" means a mark or brand used by a

person as an identifying mark placed upon forest products and

booming equipment previously owned by another.

(4) "Department" means the department of natural

resources.

(5) "Forest products" means logs, spars, piles, and poles,

boom sticks, and shingle bolts and every form into which a

fallen tree may be cut before it is manufactured into lumber or

run through a sawmill, shingle mill, or tie mill, or cut into cord

wood, stove wood, or hewn ties.

(6) "Person" includes the plural and all corporations,

foreign and domestic, copartnerships, firms, and associations of

persons.

50a

(7) "Waters of this state" includes any and all bodies of

fresh and salt water within the jurisdiction of the state capable

of being used for the transportation or storage of forest

products, including all rivers and lakes and their tributaries,

harbors, bays, bayous, and marshes.

[2000 c 11 § 16; 1984 c 60 § 1; 1925 ex.s. c 154 § 1; RRS §

8381-1.] |

76.36.020. Forest products to be marked

Persons who wish to identify any of their forest products

which will be stored or transported in or on the waters of the

state shall place a registered mark or brand in a conspicuous

place on each forest product item. Placement of the registered

mark or brand is prima facie evidence of ownership over forest

product items which have escaped from storage or

transportation. Unbranded or unmarked stray logs or forest

products become the property of the state when recovered.

[1984 c 60 § 2; 1925 ex.s. c 154 § 2; RRS § 8381-2. Prior: 1890

p 110 § 1.]

S5la

WEST'S REVISED CODE OF WASHINGTON

ANNOTATED

CONSTITUTION OF THE STATE OF WASHINGTON

ARTICLE 17. TIDE LANDS

§ 1. Declaration of State Ownership

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 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 section shall not be construed so as to debar

any person from asserting his claim to vested rights in the courts

of the state.

[Adopted 1889.]

52a

UNITED STATES CODE ANNOTATED

TITLE 43. PUBLIC LANDS

CHAPTER 29--SUBMERGED LANDS

SUBCHAPTER I-GENERAL PROVISIONS

§ 1301. Definitions

When used in this subchapter and subchapter II of this chapter--

(a) The term "lands beneath navigable waters" means--

(1) all lands within the boundaries of each of the

respective States which are covered by nontidal waters that

were navigable under the laws of the United States at the time

such State became a member of the Union, or acquired

sovereignty over such lands and waters thereafter, up to the

ordinary high water mark as heretofore or hereafter modified by

accretion, erosion, and reliction;

(2) all lands permanently or periodically covered by tidal

waters up to but not above the line of mean high tide and

seaward to a line three geographical miles distant from the coast

line of each such State and to the boundary line of each such

State where in any case such boundary as it existed at the time

such State became a member of the Union, or as heretofore

approved by Congress, extends seaward (or into the Gulf of

Mexico) beyond three geographical miles, and

(3) all filled in, made, or reclaimed lands which formerly

were lands beneath navigable waters, as hereinabove defined;

(b) The term "boundaries" includes the seaward boundaries of

a State or its boundaries in the Gulf of Mexico or any of the

Great Lakes as they existed at the time such State became a

member of the Union, or as heretofore approved by the

53a

Congress, or as extended or confirmed pursuant to section 1312

of this title but in no event shall the term "boundaries" or the

term "lands beneath navigable waters" be interpreted as

extending from the coast line more than three geographical

miles into the Atlantic Ocean or the Pacific Ocean, or more than

three marine leagues into the Gulf of Mexico, except that any

boundary between a State and the United States under this

subchapter or subchapter II of this chapter which has been or is

hereafter fixed by coordinates under a final decree of the United

States Supreme Court shall remain immobilized at the

coordinates provided under such decree and shall not be

ambulatory;

along that portion of the coast which is in direct contact with the

open sea and the line marking the seaward limit of inland

waters;

(d) The terms "grantees" and "lessees" include (without limiting

the generality thereof) all political subdivisions, municipalities,

public and private corporations, and other persons holding

grants or leases from a State, or from its predecessor sovereign

if legally validated, to lands beneath navigable waters if such

grants or leases were issued in accordance with the constitution,

statutes, and decisions of the courts of the State in which such

lands are situated, or of its predecessor sovereign: Provided,

however, That nothing herein shall be construed as conferring

upon said grantees or lessees any greater rights or interests other

than are described herein and in their respective grants from the

State, or its predecessor sovereign;

(e) The term "natural resources" includes, 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 but does not include water power,

or the use of water for the production of power;

54a

(f) The term "lands beneath navigable waters" does not include

the beds of streams in lands now or heretofore constituting a

part of the public lands of the United States if such streams were

not meandered in connection with the public survey of such

lands under the laws of the United States and if the title to the

beds of such streams was lawfully patented or conveyed by the

United States or any State to any person;

(g) The term "State" means any State of the Union;

(h) The term "person" includes, in addition to a natural person,

an association, a State, a political subdivision of a State, or a

private, public, or municipal corporation.

[May 22, 1953, c. 65, Title I, § 2, 67 Stat. 29.]

§ 1311. Rights of States

(a) Confirmation and establishment of title and ownership of

lands and resources; management, administration, leasing,

development, and use

It is determined and declared to be in the public interest that (1)

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, and (2) the right and

power to manage, administer, lease, develop, and use the said

lands and natural resources all in accordance with applicable

State law be, and they are, subject to the provisions hereof,

recognized, confirmed, established, and vested in and assigned

to the respective States or the persons who were on June 5,

1950, entitled thereto under the law of the respective States in

which the land is located, and the respective grantees, lessees,

or successors in interest thereof;

[May 22, 1953, c. 65, Title I, § 3, 67 Stat. 30.]

55a

§ 1314. Rights and powers retained by United States;

purchase of natural resources; condemnation of lands

(a) The United States retains all its navigational servitude and

rights in and powers of regulation and control of said lands and

navigable waters for the constitutional purposes of commerce,

navigation, national defense, and international affairs, all of

which shall be paramount to, but shall not be deemed to include,

proprietary rights of ownership, or the rights of management,

administration, leasing, use, and development of the lands and

natural resources which are specifically recognized, confirmed,

established, and vested in and assigned to the respective States

and others by section 1311 of this title.

(b) In time of war or when necessary for national defense, and

the Congress or the President shall so prescribe, the United

States shall have the right of first refusal to purchase at the

prevailing market price, all or any portion of the said natural

resources, or to acquire and use any portion of said lands by

proceeding in accordance with due process of law and paying

just compensation therefor.

[May 22, 1953, c. 65, Title II, § 6, 67 Stat. 32.]

§ 1315. Rights acquired under laws of United States

unaffected

Nothing contained in this subchapter or subchapter I of this

chapter shall affect such rights, if any, as may have been

acquired under any law of the United States by any person in

lands subject to this subchapter or subchapter I of this chapter

and such rights, if any, shall be governed by the law in effect at

the time they may have been acquired: Provided, however, That

chapter is intended or shall be construed as a finding,

interpretation, or construction by the Congress that the law

56a

under which such rights may be claimed in fact or in law applies

to the lands subject to this subchapter or subchapter I of this

chapter, or authorizes or compels the granting of such rights in

such lands, and that the determination of the applicability or

effect of such law shall be unaffected by anything contained in

this subchapter or subchapter I of this chapter.

[May 22, 1953, c. 65, Title II, § 8, 67 Stat. 32.]

names

a ay anes

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.