      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON




 NORTH QUINAULT PROPERTIES,                             No. 76017-3-1
 LLC, a Washington limited liability
 company; THOMAS LANDRETH, an                           DIVISION ONE
 individual; and BEATRICE LANDRETH,

                      Appellants,
                                                                               o




 STATE OF WASHINGTON; and PETER                         UNPUBLISHED
 GOLDMARK, in his official capacity as
 Commissioner of Public Lands,                          FILED: January 30, 2017

                      Respondents.



       Cox, J. — North Quinault Properties LLC, Thomas Landreth, and Beatrice

Landreth (collectively, "Properties LLC"), appeal the trial court's grant of

summary judgment to the State and the Commissioner of Public Lands

(collectively, "the State"). There are no genuine issues of material fact.

Properties LLC is not entitled to relief under the Declaratory Judgment Act

(UDJA). Moreover, it is not entitled to either a writ of mandamus or an injunction.

The State is entitled to summary dismissal with prejudice of this case. We affirm.

       Properties LLC is comprised of persons who claim property interests in the

shores of Lake Quinault. The Quinault Indian Nation (the "Nation") claims an
No. 76017-3-1/2


ownership interest in Lake Quinault. This claim is based on the 1856 Treaty of

Olympia and the 1873 Executive Order of President Ulysses S. Grant. These

both predate Washington statehood in 1889.

        In recent years, the Nation wrote to some of the owners of property on the

shores of the lake, requiring that they apply for permit approval of a pipe

extruding below the ordinary high water mark on their property. The Nation may

have also prevented some of these owners from fishing and repairing a private

dock.


        Some of these owners brought an action in federal court against the

Nation, the State, and the Department of Natural Resources (DNR). They sought

declaratory and injunctive relief, arguing that the State owned the bed of Lake

Quinault and had failed to protect the public's access to it.

        The Nation and the State moved for dismissal based on their respective

sovereign immunities to suit without their consent. The federal court granted

their motions.

        Thereafter, Properties LLC commenced this action against the State. It

did not join either the Nation or the United States of America, as trustee for the

Nation. In its complaint, it seeks a "court determination as to the status of Lake

Quinault and the property rights of non-tribal property owners abutting the Lake."

It also seeks a determination of "the public's right [of] access [to] the Lake, its

shore and lakebed."1




        1 Clerk's Papers at 6.
No. 76017-3-1/3


       The trial court granted the Nation leave to appear as an amicus curiae.

Thereafter, the State moved for summary judgment and dismissal with prejudice.

The trial court granted the motion.

       Properties LLC appeals.

                        DECLARATORY JUDGMENT ACT

       Properties LLC argues the trial court incorrectly determined that this case

cannot proceed under the UDJA. We disagree.

       A threshold issue is whether RCW 7.24.110 bars this action requesting

declaratory relief. We hold that it does.

       In its summary judgment order, the trial court ruled that both the Nation

and the United States are parties that cannot be joined in this action because of

sovereign immunity. The court further ruled that this action could not proceed

under RCW 7.24.110 of the UDJA.

       We review de novo the grant of summary judgment.2 We also review de

novo the provisions of a statute to determine the legislature's intent.3

       This statute provides in relevant part as follows: "When declaratory relief is

sought, all persons shall be made parties who have or claim any interest which

would be affected by the declaration, and no declaration shall prejudice the

rights of persons not parties to the proceeding . . . ."4




       2 Ranger Ins. Co. v. Pierce County. 164 Wn.2d 545, 552, 192 P.3d 886
(2008).

       3 Guest v. Lanqe, 195 Wn. App. 330, 335, 381 P.3d 130(2016).

       4 RCW 7.24.110 (emphasis added).
No. 76017-3-1/4


          It is beyond legitimate dispute that the word "shall" is mandatory, not

permissive.5 Given this, there is only one reasonable reading of this statute. The

legislature intends that all persons who claim any interest that would be affected

by the case "shall be made parties."6 Correspondingly, the legislature also

intends that "no declaration shall prejudice the rights of persons not parties."7

          It is uncontested that the Nation claims an interest in the subject of this

action: Lake Quinault. The treaty and executive order, both of which predate

Washington statehood, evidence this claim. We presume similar analysis applies

to the United States, which appears to act as trustee for the Nation with respect

to Lake Quinault.8 Nothing in this record shows that Properties LLC contests

either of these basic points.

          It is also uncontested that neither the Nation nor the United States can be


made subject to suit absent its consent.9 There is no showing of consent by

either sovereign entity in this record. Accordingly, they may not be joined to this

action.




          5 State v. Krall. 125 Wn.2d 146, 148, 881 P.2d 1040 (1994).

          6 RCW 7.24.110 (emphasis added).

          7 Id. (emphasis added).

       8 See Minnesota v. United States, 305 U.S. 382, 386, 59 S. Ct. 292, 83 L.
Ed. 235 (1939); Carlson v. Tulalip Tribes of Wash., 510 F.2d 1337, 1339 (9th Cir.
1975).

       9 Michigan v. Bay Mills Indian Cmtv.. 134 S. Ct. 2024, 2030, 188 L. Ed. 2d
1071 (2014); United States v. Mitchell. 445 U.S. 535, 538, 100 S. Ct. 1349, 63 L.
Ed. 2d 607 (1980).
No. 76017-3-1/5


      A remaining threshold issue under the plain language of this statute is

whether any declaration in this action would prejudice the rights of either the

Nation or the United States. Plainly, it would.

       There is nothing speculative about what is at the heart of this case. The

Nation and the United States claim an interest in Lake Quinault. The complaint

challenges these claims. As we previously stated in this opinion, Properties LLC

frames its request for relief as a "court determination as to the status of Lake

Quinault and the property rights of non-tribal property owners abutting the

Lake."10 It also seeks a determination of "the public's right [of] access [to] the

Lake, its shore and lakebed."u

       While Properties LLC clothes its request under the public trust doctrine, it

does not satisfactorily explain why it should be allowed to seek adjudication of

the above emphasized interests in the absence of the Nation and the United

States. Instead, it implausibly states: "This Court does not have to decide the

extent of the Nation's interest in the Lake to grant reliefto Plaintiffs."12 And in

doing so, it relies on the equally untenable presumption that title to Lake Quinault

was transferred from the federal government to the State upon statehood.13 On

this record, that appears doubtful. But we need not decide this question and do

not do so.




       10 Clerk's Papers at 6 (emphasis added).

       11 ]d, (emphasis added).

       12 Appellants' Brief at 4.

       13 Id. at 3-4.
No. 76017-3-1/6



       Only if the Nation and the United States were parties could there be a

proper resolution of ownership issues that are at the heart of this case. In the

absence of both, there cannot be a proper resolution of these issues.

Accordingly, RCW 7.24.110 is not satisfied in either respect.

       The plain words of this statute that we have just discussed are sufficient to

resolve this question. But the Division Two case of Bainbridge Citizens United v.

Department of Natural Resources14 also addressed this statute and reached the

same result.


      There, Bainbridge Citizens United brought an action against the DNR to

require it to enforce its own regulations against alleged trespassing on state-

owned aquatic lands.15 But it failed to join the alleged trespassers as parties.

The DNR moved for summary judgment, arguing that the court could not proceed

as Bainbridge Citizens United had failed to join the alleged trespassers as

parties.16 The trial court granted that motion.17

       Division Two of this court affirmed that order, holding that the trial court

could not completely determine the controversy if the alleged trespassers were

not present.18 Specifically, those absent could neither rebut the trespassing




       14 147 Wn. App. 365, 198 P.3d 1033 (2008).

       15 Id at 369.

       16 ]d at 370.

       17 Jd

       18 Id. at 373.
No. 76017-3-1/7



claims nor otherwise protect their interests from a judgment that would

necessarily affect them.19 It would "necessarily affect[] the [alleged trespassers']

interest in property ownership and use."20 Accordingly, the court held that the

alleged trespassers were required to be joined and, absent their joinder, the

UDJA required dismissal.21

       Here, for the same reasons we already discussed in this opinion, the

absence of the Nation and the United States would prejudice their rights to claim

ownership in Lake Quinault. This case also supports the ruling of the trial court.

       Neither the opening brief nor the reply of Properties LLC deals directly

with the effect of RCW 7.24.110 that bars proceeding with this action. Its

argument focuses on other provisions of the UDJA which we now consider.

       Skirting the issue of RCW 7.24.110, Properties LLC argues that RCW

7.24.020 on which the State relies, in part, is not an additional limitation to the

request for declaratory relief. Not so.

       That provision renders declaratory relief unavailable to challenge the

State's application or enforcement of State law. Under RCW 7.24.020, a person

with proper standing "may have determined any question of construction or

validity arising under" an instrument or statute affecting their rights. Bainbridge

Citizens United clarified that this statute provides for review only "to determine

the facial validity of an enactment, as distinguished from its application or



       19ig\

       20 \±

       21 Id. at 373-74.
No. 76017-3-1/8


administration."22 The party seeking such relief must raise a "question of

construction or validity."23 Thus, in that case, the court denied review because

Bainbridge Citizens United merely asked the court to declare that the DNR had to

enforce its own regulations.24 Such relief did not go to the construction or validity

of the regulations.25

         Similarly here, Properties LLC raises no question about the construction or

validity of any statute. Rather, it seeks a declaration on how the State must

uphold its public trust duty. The UDJA does not provide for review of such a

claim.


         Accordingly, the trial court properly concluded that it could not issue a

declaratory judgment.

         Properties LLC argues we should overlook these restrictions because of

language in RCW 7.24.010 and 7.24.050. RCW 7.24.010 reads:

         Courts of record within their respective jurisdictions shall have
         power to declare rights, status and other legal relations whether or
         not further relief is or could be claimed. An action or proceeding
         shall not be open to objection on the ground that a declaratory
         judgment or decree is prayed for. The declaration may be either
         affirmative or negative in form and effect; and such declarations
         shall have the force and effect of a final judgment or decree.
         RCW 7.24.050 reads: "The enumeration in RCW 7.24.020 and 7.24.030

does not limit or restrict the exercise of the general powers conferred in RCW



         22 jU at 374.

         23 RCW 7.24.020.

         24 Bainbridge Citizens United, 147 Wn. App. at 375.

         25 JU
                                                8
No. 76017-3-1/9



7.24.010, in any proceeding where declaratory relief is sought, in which a

judgment or decree will terminate the controversy or remove an uncertainty."

       Division Two of this court considered the effect of these provisions in

Bainbridge Citizens United. There, the court concluded that a request for the

State to enforce certain laws against alleged trespassers did not touch upon

"rights, status [or] other legal relations" as RCW 7.24.010 required.26 Neither

would a declaration that the State must enforce such laws terminate the

controversy, as RCW 7.24.050 required, but it would rather "reopen the

controversy of whether the individuals did trespass."27 Accordingly, the court

concluded that the trial court in that matter lacked authority to issue a declaratory

judgment under these provisions as well.28

       Here, Properties LLC's argument fails whether or not its request touches

upon rights, status, or other legal relations in Lake Quinault. If it does, it would

prejudice the Nation's and the United States' claims and require their joinder.

But if it does not, then declaratory relief would be improper under RCW 7.24.010.

Similarly, this litigation has demonstrated that a declaration would not terminate

the controversy, as required under RCW 7.24.050. The Nation and the United

States would have the right to continue to press their claims, and further

controversies over access and ownership to Lake Quinault would ensue.




       26 Id

       27 Id,

       28 Id.
No. 76017-3-1/10


       We conclude that the trial court correctly determined that this case cannot

proceed because it is barred by RCW 7.24.110. Likewise, it also correctly

concluded that RCW 7.24.020 bars declaratory relief. These bases are

dispositive, and we need not also address whether this action is, alternatively,

also barred byCR 19.

       The additional requests for relief considered below depend upon a

declaration as to the status of Lake Quinault. Because the trial court rightly

declined to proceed on this declaratory request, the following requests for relief

are unavailable.


                              WRIT OF MANDAMUS

       Properties LLC next argues that the trial court abused its discretion in

declining to issue a writ of mandamus. We hold that the trial court did not abuse

its discretion in doing so.

       A writ of mandamus is an extraordinary remedy that requires a state

official "to comply with law when the claim is clear and there is a duty to act."29

Thus, such relief will not lie to compel a discretionary or "general course of official

conduct."30 Instead, the writ is only appropriate "[w]here there is a specific,

existing duty which a state officer has violated and continues to violate."31



       29 Ahmad v. Town of Springdale, 178 Wn. App. 333, 341, 314 P.3d 729
(2013).

      30 Walker v. Munro, 124 Wn.2d 402, 408, 879 P.2d 920 (1994); see
Ahmad, 178 Wn. App. at 341; County of Spokane v. Local No. 1553, American
Fed'n of State, County. & Mun. Emps., AFL-CIO, 76 Wn. App. 765, 769, 888
P.2d 735 (1995).

       31 Walker, 124 Wn.2d at 408.

                                             10
No. 76017-3-1/11


       We review for abuse of discretion a trial court's decision on the issuance

of a writ of mandamus.32

       Here, Properties LLC claims that such a specific, existing duty exists,

namely the State's duty under the public trust doctrine to "maintain public access

to navigable waterways."

       The trial court ruled that a writ of mandamus would not issue on two

bases. First, state action under the asserted doctrine is discretionary. Second,

such a writ is not available to direct general compliance with law. These

conclusions correctly applied the relevant law.

       Regarding the first basis, any duty under the public trust doctrine is

discretionary. State law "determines the public trust doctrine's limitations within

the boundaries of the state."33 In doing so, the legislature has recognized the

complicated roles the State undertakes in managing its aquatic lands to promote

the public interest. It has found that Washington's "aquatic lands are faced with

conflicting use demands."34 It has thus tasked the DNR with "provid[ing] a

balance of public benefits for all citizens of the state."35 The DNR must

necessarily exercise great discretion in balancing these competing needs.




       32 Ahmad, 178 Wn. App. at 342.

       33 Wash. State Geoduck Harvest Ass'n v. Dep't of Nat. Res., 124 Wn.
App. 441, 451, 101 P.3d 891 (2004).

       34 RCW 79.105.010.

       35 RCW 79.105.030.

                                             11
No. 76017-3-1/12


          Here, the trial court could not issue a writ of mandamus to compel the

State to enforce the public trust doctrine, as that doctrine entails substantial

discretion. Action within such discretion is not amenable to relief by mandamus.

          Regarding the second basis, Properties LLC fails to indicate with requisite

specificity the duty it requests the State perform. They ask only that the State

protect their access to Lake Quinault. What form this would take is left to

speculation. Such a request asks the State do nothing more specific than

enforce the public trust doctrine and, as such, is insufficient to justify a writ of

mandamus.


          Thus, the trial court properly concluded that a writ of mandamus was

improper because it would compel the State to take discretionary and general

action.


                                  INJUNCTIVE RELIEF

          Properties LLC lastly argues that the trial court abused its discretion in

denying their request for injunctive relief. We disagree.

          To obtain injunctive relief, a party must show "'(1) that he has a clear legal

or equitable right, (2) that he has a well-grounded fear of immediate invasion of

that right, and (3) that the acts complained of are either resulting in or will result

in actual and substantial injury to him.'"36




          36 Tvler Pipe Indus.. Inc. v. Dep't of Revenue, 96 Wn.2d 785, 792, 638
P.2d 1213 (1982) (quoting Port of Seattle v. Int'l Longshoremen's &
Warehousemen's Union, 52 Wn.2d 317, 324 P.2d 1099 (1958)); RCW 7.40.020.
                                                12
No. 76017-3-1/13


       The party seeking the injunction bears the burden to show all three

elements.37 The trial court will not issue an injunction in a "'doubtful'" case.38

This court reviews for abuse of discretion a trial court's grant or denial of an

injunction.39

       Here, regarding the first element, Properties LLC argues that it has a clear

legal or equitable right at stake. But to conclude that right is clearly established,

the trial court would have to determine whether the State or the Nation owns the

Lake. We have already discussed why the trial court could not reach this

determination absent the Nation and the United States. Thus, Properties LLC

fails to establish this first element. Accordingly, we need not address the other

two elements.


       The trial court did not abuse its discretion in denying an injunction.

       We affirm the summary judgment order dismissing this action with

prejudice.

                                                         ^x,x
WE CONCUR:



     iWok*^ ACJ
      37 San Juan County v. No New Gas Tax, 160Wn.2d 141, 153, 157P.3d
831 (2007).

       38 Tvler Pipe Indus., Inc., 96 Wn.2d at 793 (quoting Isthmian S.S. Co. v.
National Marine Eng'rs' Beneficial Ass'n, 41 Wn.2d 106, 117, 247 P.2d 549
(1952)).

       39 San Juan County, 160 Wn.2d at 153.

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