Applicability of trust requirement of article 16, section 1 of the Washington Constitution to land granted to Washington Territory

STATE--LANDS--ENABLING ACT--TRUSTS--WASHINGTON TERRITORY--FEDERAL GRANTS--Applicability of trust requirement of article 16, section 1 of the Washington Constitution to land granted to Washington Territory

1.  The Enabling Act and article 16, section 1 of the Washington Constitution constitute a declaration of trust with regard to the property granted to the State by the United States in the Enabling Act.  The constitutional trust established in article 16, section 1 does not apply to land donated to the Washington Territory that was not confirmed or reconveyed to the State in the Enabling Act.

2.  The State's ability to use or transfer property acquired from the United States by grant is limited by any restrictions contained in the federal grant.  However, since title to the property rests with the State, it may use or transfer the property as it chooses, so long as the State's use or transfer conforms to the restrictions in the grant.

3.  Under RCW 79.01.006(2), federal restrictions on property, that limit its use to public recreational and other specific purposes, are binding conditions that conflict with other provisions of RCW 79.01.006.  Therefore, property subject to such restrictions is not included in the corpus of the educational, penal, and reformatory institution account pursuant to chapter 79.01 RCW.

                                                                 * * * * * * * * * *

                                                                February 28, 1992

HonorableR. Lorraine Wojahn
State Senator, District 27
407-A Legislative Building, AS-32   
Olympia, Washington 98504
                                                                                                                   Cite as:  AGO 1992 No. 3

Dear Senator Wojahn:

            By letter previously acknowledged, you have asked several questions related to property donated by the United States to the Washington Territory in 1874 located adjacent to Western State Hospital.  We paraphrase your questions:

            1.         Is property donated to the Washington Territory in 1874, which is adjacent to Western State Hospital, subject to the provisions of article 16, section 1 of the Washington Constitution?

            2.         If the answer to Question 1 is no, under what circumstances may the State sell, lease or otherwise transfer the property?

            3.         If the answer to Question 1 is yes, under what circumstances may the State sell, lease or otherwise transfer the property?

            The answer to Question 1 is no.  The answer to Question 2 is set forth in our analysis.  Since the answer to Question 1 is no, we do not reach Question 3.

                                                                BACKGROUND

            To answer your questions, we begin with the creation of the Washington Territory.  In 1853 Congress passed the "Organic Act" which established the Washington Territory.  Act of Mar. 2, 1853, Ch. 90, 10 Stat. 172.[1]  The Organic Act set out the boundaries of the Territory and established territorial government.  Executive power was vested in a governor appointed by the President of the United States.  Section 2,id.  Legislative power was vested in a legislative assembly consisting of a Council and a House of Representatives.  Section 4,id.  As part of the Organic Act, Congress reserved sections 16 and 36 in every township "for the purpose of being applied to common schools in said Territory."  Section 20,id.

            In 1889 Congress passed the "Enabling Act" which provided for the admission of the Washington Territory to the Union.  Act of Feb. 22, 1889, ch. 180, 25 Stat. 676.  The Enabling Act provided for the election of delegates to a state constitutional convention.  Section 3,id. at 676.  The Enabling Act also provided that certain lands would be granted to the State upon its admission to the Union.  Section 10 provided that "upon the admission of each of said States into the Union sections numbered sixteen and thirty-six in every township of said proposed States . . . arehereby granted to said States for the support of common schools . . . ."  Id. at 679 (emphasis added).[2]  These sections of each township had been reserved in Section 20 of the Organic Act for the purpose of being applied to the common schools of the Washington Territory.

            Further land grants were made in subsequent sections of the Enabling Act.  Section 12 of the Enabling Act provided that

            upon admission of each said States into the Union . . . fifty sections of unapportioned public lands within said States . . . are hereby, granted to said States for the purpose of erecting public buildings at the capitol of said States for legislative, executive and judicial purposes.

Id.(emphasis added).  Section 14 provided that certain lands

            be reserved for university purposes in the Territory of Washington, as, together with the lands confirmed to the vendees of the Territory . . . will make the full quantity of seventy-two entire sections, are hereby granted in like manner to the State of Washington for the purposes of a university in said State.

Id.(emphasis added).

            Section 15 provided a grant for the erection of a penitentiary.  It provided that "the States of . . . Washington shall . . . have like grants for the same purpose, and subject to like terms and conditions as provided [in another act of Congress]".  Id.  Section 16 provided that "ninety thousand acres of land . . . are hereby granted to each of said States. . . for the use and support of agricultural colleges in said States . . . ."  Id. (emphasis added).  Finally, section 17 provided that

            the following grants of land are hereby made, to wit:

           . . . .

                        To the State of Washington:  For the establishment and maintenance of a scientific school, one hundred thousand acres; for the state normal schools, one hundred thousand acres; for public buildings at the state capitol, in addition to the grant herebefore made for that purpose, one hundred thousand acres; for state charitable, educational, penal and reformatory institutions, two hundred thousand acres.

Id.(emphasis added).

            In accordance with section 3 of the Enabling Act, the Washington Territory elected delegates and adopted a constitution, including article 16, section 1, which is the subject of your inquiry.  Article 16, section 1 provides:

                        Allthe public lands granted to the state are held in trust for all the people and none of such lands, nor any estate or interest therein, shall ever be disposed of unless the full market value of the estate or interest disposed of, to be ascertained in such manner as may be provided by law, be paid or safely secured to the state; nor shall any lands which the state holds by grant from the United States (in any case in which the manner of disposal and minimum price are so prescribed) be disposed of except in the manner and for at least the price prescribed in the grant thereof, without the consent of the United States.

(Emphasis added.)

            We turn next to a brief review of the history of the property in question.  The Territorial Legislature established pursuant to the Organic Act was concerned about dealing with mental health problems.  In 1862 the Territorial Legislature authorized the governor and territorial auditor

            to make contracts with any private or public insane institution, for the safe keeping, care and medical treatment in their insane asylums, of all insane persons in this Territory;Provided, Such contract can be made on such terms as to them may seem reasonable and just.

Act of Jan. 29, 1862, Laws of 1861, § 1, p. 59.

            In 1868 the Territorial Legislature sent a memorial to Congress asking "that a grant of land be made by your honorable body to our Territory, the proceeds of which shall be expended for the erection of an insane asylum and to provide a fund for the support of the insane."  Act of Jan. 24, 1868, Laws of 1867, pp. 166-67.

            In 1869 the Territory began focusing on the Fort Steilacoom area in what is now Pierce County.  The Territorial Legislature enacted a law authorizing "a board of commissioners to purchase the government buildings at fort Steilacoom, if the same should be offered for sale by the government of the United States, for purpose of an insane asylum."  Act of Dec. 1, 1869, Laws of 1869, § 1, p. 356.  The Territorial Legislature also sent a memorial to Congress requesting a grant of land at Fort Steilacoom.  The memorial stated, in part:

                        Your memorialists, the Legislative Assembly of Washington Territory, do most earnestly and respectfully represent, that the means now at the command of the people of this Territory are wholly inadequate to erect or provide a suitable asylum for the insane . . . .

                        Your memorialists would further state that the government grounds and buildings at Fort Steilacoom have recently been abandoned by the War Department as no longer needed for military purposes, and have been offered for sale. . . . That said buildings are admirably adapted for an insane asylum . . . .

                        Wherefore your memorialists pray that the military reserve land at Fort Steilacoom, with the garden reserve . . . together with the government buildings situated thereon, be granted to the Territory of Washington, to be used and held by the said Territory for the purpose of an insane asylum, and for such other purposes as they may desire to apply the same.

Act of Dec. 1, 1869, Laws of 1869, p. 553.

            In 1874 Congress donated to the Territory approximately 374 acres of the property at Fort Steilacoom.  The statute provided:

                        That section thirty-three of township numbered twenty north, of range numbered two east of Willamette meridian, embracing a portion of Fort Steilacoom military reservation, and the military barracks thereon, in the county of Pierce, and the Territory of Washington, be, and the same is hereby donated,to the said Territory of Washington for the use and purpose of an asylum for the insane of said Territory, and for no other purpose:  Provided, That this act shall not be construed or have the effect to impair any rights of any person in or to any portion of said lands acquired under any of the land laws of the United States.

Act of Apr. 15, 1874, ch. 98, 18 Stat. 29 (Pt. 3) (emphasis added).

            In 1875 the Territorial Legislature named the facility the "Hospital for the Insane in Washington Territory" and established a board of trustees to operate it.  Act of Nov. 12, 1875, Laws of 1875, § 1-26, pp. 83-89.

            Subsequently, Patent Number 217108, dated July 13, 1911, was issued to the state.  The patent provides:

                        Whereas, under the provisions of the Act of Congress approved April 15, 1874,--18 Stat., 29---, there was donated to the Territory of Washington certain lands in the Fort Steilacoom Military Reservation "for the use and purpose of an Asylum for the insane of said Territory and for no other purpose;" and

                        Whereas, there has been deposited in the General Land Office a certificate of Register of the Land Office at Olympia, Washington, together with other evidence, whereby it appears that the State of Washington is entitled to a patent of the following described land:

           . . . .

                        Now, know ye, that the United States of America, in consideration of the premises, and in conformity with said Act of Congress and subject to the limitations thereof, has given and granted, and by these presents does give and grant unto the State of Washington, the said tracts above described; To have and To hold the same, together with all the Rights, Privileges, Immunities, and Appurtenances, of whatsoever nature, thereunto belonging, unto the said State of Washington, and to its assigns, forever . . . .

(Emphasis added.)

            This property, plus other surrounding land acquired by the State, comprised the area of Western State Hospital.  A portion of the land donated by the United States was used for farming by patients of the institution.  Subsequently, the farming operation was discontinued and the land was unused.  In 1967 the State leased approximately 260 acres of the donated property to Pierce County for use as a park.  In 1978 all of the Western State Hospital campus was placed on the National Register of Historic Places because of its significant role in the history of the state.

            In 1975 the Bureau of Land Management of the Department of Interior required the State to show cause why the lease to Pierce County did not constitute a violation of the donation which restricted the land for the use and purpose of an asylum for the insane.  The State took the position that the lease did not violate the terms of the donation because patients at Western State Hospital used the park and that the activities in the park were of therapeutic value.

            Although the State defended the lease to Pierce County, it took steps to have the use restrictions changed.  43 U.S.C. § 869-3 provides that the Secretary of the Interior "may authorize transfers of title or changes in use . . . with respect to any patent heretofore issued under any Act upon application by a patentee qualified to obtain a conveyance . . . ."  In 1976 the State applied to the Department of Interior to change the restrictions to allow the property to be used for recreational purposes and to be transferred to Pierce County.

            In 1988 the Department of Interior approved the change and issued a Certificate of Approval of Transfer and Change of Use and Approval of Transfer and Change of Use.  The Certificate of Approval provided in part:

            This is to certify that the authorized officer of the Bureau of Land Management on August 30, 1988, authorized the State of Washington to transfer the lands described below . . . to the County of Pierce, State of Washington, and further authorized the County of Pierce, State of Washington, to use the lands for public recreational, educational, and cultural and historical preservation and related purposes . . . instead of use for an insane asylum as stated in the said patent.

            Washington has not yet issued a deed to reflect the transfer of the property to Pierce County.

                                                                    ANALYSIS

            Question 1:

            Is property donated to the Washington Territory in 1874, which is adjacent to Western State Hospital, subject to the provisions of article 16, section 1 of the Washington Constitution?

            We begin with the proposition well established in Washington that the Enabling Act and article 16, section 1 of the Washington Constitution constitute a declaration of trust.  For example, with regard to common school land granted in section 10 of the Enabling Act, the United States District Court has said:

                        Section 10 of the Enabling Act and Article XVI, section 1 of the Washington Constitution constitute a declaration of trust. . . . The equitable interest of the public school system, the cestui que trust, has been interposed between the United States (grantor) and the State (trustee). . . . This trust is real, not illusory.

United States v. 111.2 Acres of Land, 293 F. Supp. 1042, 1049  (E.D. Wash. 1968), aff'd, 435 F.2d 561 (9th Cir. 1970) (citations omitted).

            InCounty of Skamania v. State, 102 Wn.2d 127, 685 P.2d 576 (1984), the Washington Supreme Court cited 111.2 Acres with approval.  Id. at 133.  The consequences of such a trust was explained by the Skamania court as follows:

                        Where the statute deals with state trust lands, however, the permissible goals of the legislation are more limited.  The federal land grant trusts were created specifically to benefit certain named beneficiaries.  SeeWashington Enabling Act § 11, 25 Stat. 676 (1889) . . . See also Const. art. 16, § 1.  Every court that has considered the issue has concluded that these are real, enforceable trusts that impose upon the State the same fiduciary duties applicable to private trustees.

Id.at 132.

            The courts have enforced these trusts when they have found violations.  For example, in111.2 Acres the court refused to allow transfer of common school lands without compensation pursuant to a state statute that authorized the transfer.  InCounty of Skamania the court ruled that a statute condoning defaults of timber contracts on trust land violated the State's trust obligation.

            As we pointed out in our background discussion, the Enabling Act granted lands to the State for a number of specific purposes.  These grants constitute trust lands under article 16, section 1.  You have asked about land that was not granted to the State in the Enabling Act but was donated to the Washington Territory.  The essence of your first question is whether the trust obligations in article 16, section 1 also reached land that was not granted to the State in the Enabling Act. In our judgment, the answer to this question is no.

            Article 16, section 1 provides that "all public lands granted to the state are held in trust".  We believe the phrase "granted to the state" refers to land granted to the State in the Enabling Act.  Thus, article 16 constitutes an acceptance by the State of Washington of the land granted in the Enabling Act.

            Although our court has not ruled directly on this point, this interpretation is consistent with the court's discussion of article 16.  State v. Seattle, 57 Wash. 602, 107 P. 827 (1910) concerned land donated to the State by private citizens.  In the course of its analysis the court discussed article 16, section 1 and its earlier decision,O'Brien v. Wilson, 51 Wash. 52, 97 P. 1115 (1908).  The court said:

            In the case ofO'Brien v. Wilson, 51 Wash. 52, 97 Pac. 1115, the court held that the state's title to its school lands granted by the government upon its admission to the Union was not subject to be lost by adverse possession, notwithstanding the general statute of limitations applied to the state.  This decision was based upon certain provisions in the grant and certain provisions in the state constitution accepting the grant, which restricted the manner of the sale and disposition of the land and the use of the funds to be derived therefrom. . . .

                        A comparison of [art. 16, §§ 1, 2] with [§ 11] of the grant and acceptance thereof, here involved, we think will show no very material difference.  The substance of the reason of the court's decision in that case can be found in the quotation therein of the language used by the supreme court of Minnesota, in the case ofMurtaugh v. Chicago etc. R. Co., 102 Minn. 52, 112 N.W. 860, 120 Am. St. 609 as follows:

                        "The state accepted the trust, and by its constitution solemnly covenanted with the United States to apply the granted lands to the sole use of its schools according to the purpose of the grant, and prohibited the sale of any portion of the granted land except at public sale. . . .

                        Notwithstanding the decision inO'Brien v. Wilson, involved a grant of land from the United States for the benefit of the common schools, and an acceptance of that grant by constitutional provisions, it seems to us the principle there involved is applicable to this case.

57 Wash. at 613-14 (emphasis added).  The court inState v. Seattle plainly views article 16 as an acceptance of the grant made in the Enabling Act.  See also111.2 Acres of Land, 293 F. Supp. at 1049.

            We have also expressed a similar view in a prior opinion that article 16 is an acceptance of land granted in the Enabling Act.  In AGO 59-60 No. 150, we were asked about a legislative proposal to make the trust bear the expenses of administration.  The opinion was not concerned with identifying trust land.  However, in the course of the opinion we observed:

            The policy of the federal government has been a generous one with respect to grants of public lands to the several states for school purposes. . . . On admission of the State of Washington to the Union, congress granted to it sections sixteen and thirty-six in each township for the support of the common schools.  Enabling Act, section 10.  The State of Washington has accepted the grant (Constitution, article XVI) and now holds legal title to the land as trustee to fulfill the purposes of the grant.

AGO 1959 No. 150 at 2 (emphasis added).

            In addition to this prior characterization of article 16, the history of its adoption persuades us that it was intended to apply to lands granted in the Enabling Act and not to all public lands owned by the State.  The key provision is article 16, section 1, which establishes the trust.

            Article 16 was drafted at the Washington Constitutional Convention by the Committee on State, School and Granted Lands.  On August 1, 1889, the Committee recommended the adoption of an article on this subject.  The proposed section 1 stated:

                        All the public lands of the state are held in trust for all the people and none of such lands, nor any estate or interest therein, shall ever be disposed of unless the full market value of the estate or interest disposed of, to be ascertained in such manner as may be provided by law, be paid or safely secured to the state; nor shall any lands which the state holds by grant from the United States (in any case in which the manner of disposal and minimum price are so prescribed) be disposed of, except in the manner and for at least the price prescribed in the grant thereof without the consent of the United States.

The Journal of the Washington State Constitutional Convention1889 (1962) at 204 (emphasis added).

            On August 19, the convention refused to adopt the article recommended by the Committee.  Id. at 401.  Instead, the convention voted to refer the article back to the Committee with instructions to report separate articles--one on tidelands and one on school lands.[3]  Id. at 405.  On August 20, the Committee reported back to the convention with two separate articles.  Section 1 of the article on school lands was unchanged from the draft submitted to the convention on August 1.  Id. at 415.

            On August 20, the convention considered the article on school lands and amended section 1.  The amendment was:  "After 'lands' in line one, Section 1, insert 'granted to the state'."  Id. at 427.  This amendment was adopted and as amended section 1 (in bill draft form) read as follows:

                        All the public landsofgranted to the state are held in trust for all the people and none of such lands, nor any estate or interest therein, shall ever be disposed of unless the full market value of the estate or interest disposed of, to be ascertained in such manner as may be provided by law, be paid or safely secured to the state . . . .

Id.at 436.  There were no more amendments to section 1 and the article on school lands was passed by the convention on August 21.  Id. at 435-36.  When the constitution was adopted, this became article 16, section 1.

            The amendment to article 16, section 1, on August 20, is significant.  As originally drafted, the trust provisions of article 16, section 1 applied to all public lands owned by the State.  The amendment limited the reach of article 16, section 1 to public lands granted to the State, not all the lands the State owned.  Also, since the constitution was drafted in response to the Enabling Act, we are persuaded that the grant referred to in article 16, section 1 are the grants made to the State in the Enabling Act.

            Turning to the Fort Steilacoom property, we conclude that it is not subject to article 16, section 1, because it was not granted to the State in the Enabling Act.  The 1874 Act donated the Fort Steilacoom property to the Washington Territory.  The property was donated in response to a memorial by the Territorial Legislature and the Territory used the property as part of its asylum for the insane.  Thus, to use the language of article 16, section 1, the Fort Steilacoom property was not "public landsgranted to the state".  (Emphasis added.)

            It is true that the patent on the Fort Steilacoom property was not issued until 1911.  However, this fact is immaterial.  The issuance of the patent was unconnected to the grants made in the Enabling Act.  More important, the patent is not a grant.  It is merely evidence of a grant.  This proposition was established by the Supreme Court of the Washington Territory prior to statehood in Brazee v. Schofield, 2 Wash. Terr. 209, 3 P. 265 (1883),aff'd 124 U.S. 495, 31 L. Ed. 484 (1888).  Brazee concerned a grant under the Donations Act that allowed individuals to homestead land.  In discussing the relationship between the grant under the Act and the patent the court said:

                        The act, and not the patent, is the instrument which works the transfer of title.  Its language is unmistakable--"there shall be and hereby is granted."  One conveys, the other evidences, title.  The patent is but a formal and solemn piece of evidence, that all things essential to be done under the Donation Act before passage of title have been done; and that therefore, under the act, title has actually passed out from the United States into the donee.  Act and patent together fulfill all the functions of an ordinary deed of conveyance.  The two together both convey and evidence title.  The patent merely evidences, and does no more; but the act evidences to a certain extent only, and then, over and beyond that, does alone and perfectly convey.  When patent issues, it relates back to and combines with the act, as of the date when a fit guarantee rendering full consideration appeared, and so as to form with the act a perfect muniment of title.  Title under the Donation Act, therefore, is always complete before patent issues, and the patent issues by virtue of title completed, and not otherwise.

2 Wash. Terr. at 216-17 (emphasis added).  See alsoWyoming v. United States, 255 U.S. 489, 501, 65 L. Ed. 742, 41 S. Ct. 393 (1921).

            In this case, the grant was complete when it was made.  Unlike the Donation Act, the grant to the Washington Territory contained no conditions to be fulfilled before the donation was complete.  The patent itself reflects this.  The patent recites that the property was donated to the Territory of Washington.

            The State was entitled to receive the patent as successor in interest to the Washington Territory.  Article 27 of the Washington Constitution dealt with the transition from territorial to state government and provides in part:

                        In order that no incovenience may arise by reason of a change from a Territorial to a State government, it is hereby declared and ordained as follows:

                        § 1  EXISTING RIGHTS, ACTIONS AND CONTRACTS SAVED. No existing rights, actions, suits, proceedings, contracts or claimsshall be effected by a change in the form of government, but shall continue as if no such change had taken place. . . .

Thus, the existing right of the Territory of Washington to receive the patent was passed to the State when Washington was admitted to the Union.

            We are aware that some courts have found property granted to a Territory prior to statehood is subject to the trust established by the State's Enabling Act and constitution.  However, these decisions involve different enabling acts and state constitutions that establish a broader constitutional trust than the Washington Enabling Act and article 16, section 1.

            United States v. State of New Mexico, 536 F.2d 1324 (10th Cir. 1976) concerned an 1898 grant from the United States to the New Mexico Territory for a miners' hospital.  The court ruled that the land was held in trust for that purpose and that trust funds could not be expended or employed at institutions other than the miners' hospital.

            Although the property was granted to the Territory, section 10 of the New Mexico Enabling Act provides in part:

                        That it is hereby declared that all lands hereby granted, including those which, having been heretofore granted to the said Territory, are hereby expressly transferred and confirmed to the said State, shall be by the said State held in trust, to be disposed of in whole or in part only in manner as herein provided and for the several objects specified in the respective granting and confirmatory provisions . . . .

                        Disposition of any of said lands, or of any money or thing of value directly or indirectly derived therefrom, for any object other than that for which such particular lands, or the lands from which such money or thing of value shall have been derived, were granted or confirmed, or in any manner contrary to the provisions of this Act, shall be deemed a breach of trust.

Act of Jun. 20, 1910, ch. 310, 36 Stat. 557, 563 (Pt. 1) (emphasis added).

            In response to the Enabling Act, article 21, section 9 of the New Mexico Constitution provides:

                        Thisstate and its people consent to all and singular the provisions of [the Enabling Act] concerning the lands by said act granted or confirmed to this state,the terms and conditions upon which said grants and confirmations were made and the means and manner of enforcing such terms and conditions, all in every respect and particular as in said act provided.

(Emphasis added.)

            The language of the New Mexico Enabling Act is much broader than Washington's Enabling Act.  It includes all property heretofore granted to the Territory and provides that such lands shall be held in trust.  Washington's Enabling Act has no similar sweeping provision.

            The Washington Enabling Act does confirm in the State some grants made to the Territory.  Section 14 provides that "the lands confirmed to the vendees of the Territory . . . are hereby granted in like manner to the State of Washington for the purposes of a university in said State."  Act of Feb. 22, 1889, ch. 180, 25 Stat. 676.  Thus, section 14 grants to the State property previously granted to the Territory.  Similarly, section 10 of the Enabling Act grants to the State sections 16 and 36 of every township for the support of the common schools.  These townships were reserved for the Washington Territory in section 20 of the Organic Act.

            However, the Washington Enabling Act only makes such grants for certain property granted or reserved for the Territory.  It does not purport to grant to the State all property previously granted to the Territory.  Thus, the Washington Enabling Act is much narrower than the New Mexico Enabling Act with regard to property previously granted to the Territory.

            Similarly, the provisions of article 16, section 1 are much narrower than the comparable provision, article 21, section 9 of the New Mexico Constitution.  That constitution consented to the terms and conditions of all grants made or confirmed in the state.  Washington only imposes its trust on all public lands granted to the State.  This is consistent with the narrower scope of Washington's Enabling Act.

            InState v. University of Alaska, 624 P.2d 807 (Alaska 1981) andState v. Weiss, 706 P.2d 681 (Alaska 1985), the Supreme Court of Alaska treated property granted to the Alaska Territory as trust property.  InUniversity of Alaska, the property was granted for university purposes and the court ruled it could not be used as a park.  In Weiss, the property was granted to meet the necessary expenses of mental health programs in Alaska and the court ruled that income from the trust must be used for that purpose.

            These decisions are not persuasive because the Alaska Enabling Act and constitution follow the broader New Mexico model.  InUniversity of Alaska, the court described the establishment of the trust this way:

                        The State of Alaska acquired the rights to the land granted [to the Territory] by the 1929 Act by section 6(k) of the Alaska Statehood Act, Pub.L.No. 85-508, 72 Stat. 339 (1958), which provides in relevant part:

                        "Grants previously made to the Territory of Alaska are hereby confirmed and transferred to the State of Alaska upon its admission."

            Article XII, section 13, of the state constitution provides that any land taken by the state under a federal grant will be accepted under the "terms or conditions of the grants."³  This is not a footnote.  The Attorney General's Office states this is just a referenced note within the document and appears this way in their original.In Wessells v. State Department of Highways, 562 P.2d 1042, 1051 n.34 (Alaska 1977), we recognized that acceptance of grants of school lands under this section created a trust with the state acting as trustee.

  ____________________________

    ³ The full text of article XII, section 13,       provides:

             "Consent to Act of Admission.  All provisions of the act admitting Alaska to the Union which reserve rights or powers to the United States, as well as those prescribing the terms or conditions of the grants of lands or other property, are consented to fully by the State and its people."

624 P.2d at 811 (emphasis added).

            The reasoning of the Alaska Supreme Court is consistent with our analysis.  The Enabling Act is a grant and the acceptance of the grant in the state constitution establishes a trust.  The difference is that in Alaska the Enabling Act granted all land previously granted to the Territory.  In Washington the Enabling Act does not confirm and grant to the State all property previously granted to the Washington Territory.

            Since the Fort Steilacoom property was donated to the Washington Territory and since it was not confirmed to the State in the Enabling Act, we conclude that it is not subject to the trust established in article 16, section 1 of the Washington Constitution.  Accordingly, the answer to your first question is no.

            Question 2:

            If the answer to Question 1 is no, under what circumstances may the State sell, lease or otherwise transfer the property?

            Although the Fort Steilacoom property is not subject to the trust established in article 16, section 1, the State is limited in the way it can sell, lease or otherwise transfer the property.  As we explained in our background discussion, the 1874 grant to the Washington Territory provided that the land was donated "for the use and purpose of an asylum for the insane of said Territory, and for no other purpose".  Act of Apr. 15, 1874, ch. 98, 18 Stat. 29 (Pt. 3).  This restriction was also contained in the 1911 patent issued to the State.

            The restriction in the grant limits the State's ability to sell, lease or otherwise transfer the property.[4]  Thus, the answer to your question is that the State's ability to sell, lease or otherwise transfer the property is limited by the grantor's (i.e., the United States) restrictions, even though the land is not trust property.  Since title to the property rests with the State, it may use or dispose of the property as it choosesso long as it also conforms to the federal restrictions.

            Of course, the Legislature is free to change statutes relating to the transfer and use of State property if it chooses to prescribe certain requirements.  The only limitation of the terms of the transfer or use that cannot be changed by the State are the federal restrictions that govern the property.

            Your letter specifically mentions the 260 acres of land that were leased to Pierce County.  As we pointed out in our background discussion, in 1988 the federal restriction on this property changed to use for public recreational, educational, cultural, historical preservation and related purposes instead of for use as an insane asylum.  We also note that in 1991 the Legislature enacted a law setting out certain requirements for managing and transferring property acquired for institutional purposes.  Chapter 79.01 RCW; Laws of 1991, ch. 204.  To provide a complete answer to your question, we must consider the applicability of chapter 79.01 RCW to the 260 acres in question.

            Chapter 79.01 RCW does four basic things.  First, it requires state agencies to inventory their trust and other institutional property to identify property not needed for state- provided residential care, custody or treatment.  RCW 79.01.006(1) provides in part:

                        Every five years the department of social and health services and other state agencies that operate institutions shall conduct an inventory of all real property subject to the charitable, educational, penal, and reformatory institution account and other real property acquired for institutional purposes or for the benefit of the blind, deaf, mentally ill, develop-mentally disabled, or otherwise disabled.  The inventory shall identify which of those real properties are not needed for state-provided residential care, custody, or treatment. . . .

Second, property identified under RCW 79.01.006(1) is transferred to the corpus of a trust account.  RCW 79.01.006(2) provides:

                        Real property identified as not needed for state-provided residential care, custody, or treatment shall be transferred to the corpus of the charitable, educational, penal, and reformatory institution account.  This subsection shall not apply to real property subject to binding conditions that conflict with the other provisions of this subsection.

(Emphasis added.)  Third, the Department of Natural Resources is required to adopt a plan, in consultation with other state agencies, for management of this property.  RCW 79.01.006(3).  Where this land

            has the potential for lease for commercial, industrial, or residential uses or other uses with the potential for high economic return and is within urban or suburban areas, the department of natural resources shall make every effort consistent with trust land management principles and all other provisions of law to lease the lands for such purposes . . . .

RCW 79.01.007.  Fourth, RCW 79.01.007 provides direction for appropriating the income from such leases.

            Chapter 79.01 RCW illustrates the power of the Legislature to specify terms and conditions for the sale, lease or transfer of state land.  The only limitation on the terms of transfer or use that cannot be changed by the State are the federal restrictions that govern the grant.  Chapter 79.01 RCW appears to recognize this restriction.  RCW 79.01.006(2) provides that the trust account "shall not apply to real property subject to binding conditions that conflict with the other provisions of this subsection."

            Although the 260 acres were initially acquired for institutional purposes, the new binding conditions on the property clearly conflict with other provisions of the subsection.  The federal restrictions on the property were changed pursuant to 43 U.S.C. § 869et seq.  43 U.S.C. § 869-3 provides:

            The Secretary [of the Interior] may authorize transfers of title or changes in use in accordance with the provisions of section 3 of this Act [43 USCS § 869-2] with respectto any patent heretofore issued under any Act upon application by a patentee qualified to obtain a conveyance under section 2(a) or (c) of this Act[.]

(Emphasis added.)

            It is important to note that the Secretary of the Interior has power to authorize transfers or changes in use upon application of a patentee.  The Secretary is not authorized to change use in the absence of such an application.

            In 1976 Washington applied to the Secretary to change the use of the property and to then transfer the property to Pierce County.  As a consequence of the State's application, the property became subject to the reversionary provisions in 43 U.S.C. § 869-2 which provides:

            Title to lands conveyed by the Government under this Act § 869 may not be transferred by the grantee or its successor except, with the consent of the Secretary of the Interior, to a transferee which would be a qualified grantee under section 2(a) or (c) . . . . A grantee or its successor may not change the use specified in the conveyance to another or additional use except, with the consent of the Secretary, to a use for which such grantee or its successor could obtain a conveyance under this Act.  If at any time after the lands are conveyed by the Government, the grantee or its successor attempts to transfer title to or control over these lands to another or the lands are devoted to a use other than that for which the lands were conveyed, without the consent of the Secretary, title to the lands shall revert to the United States.

(Emphasis added.)

            The Certificate of Approval of Transfer and Change of Use specifically spells out the change of use, the transfer and the possibility of reversion.  The Certificate provides:

            This is to certify that the authorized officer of the Bureau of Land Management on August 30, 1988, authorized the State of Washington to transfer the lands described below . . .to the County of Pierce, State of Washington, and further authorized the County of Pierce, State of Washington, to use the lands for public recreational, educational, and cultural and historical preservation and related purposes as specified in the Memorandum of Agreement dated February 26, 1988, attached as Exhibit "A", instead of use for an insane asylum as stated in the said patent.  This approval is subject to the reversionary provisions of the above noted Act.

(Emphasis added.)

            The effect of the Certificate, which was in response to the State's request, is to change the use of the property to public recreational, educational, cultural, historical preservation and related purposes.  In addition, only Pierce County would be authorized to use the property for these purposes.  This is established by the Memorandum of Agreement incorporated into the Certificate and attached as Exhibit "A".

            The Memorandum of Agreement is an agreement between the Bureau of Land Management, the Advisory Council on Historic Preservation, the Washington State Historic Preservation Officer and Pierce County.  The Memorandum of Agreement sets out what Pierce County is to do with the 260 acres.  For example, paragraph IV.A. provides that Pierce County will maintain the historic structures on the property to assure their continued preservation and use.

            Paragraph IX of the Agreement deals with enforcement and reversionary provisions.  It provides in part:

            Upon approval of the transfer and change in use the period during which reversion of title for violation of the terms of the patent, as modified by the approved transfer and change of use, is limited to 25 years.  During this 25 year period the Bureau will conduct regular compliance checks to determine if the land continues to be used in accordance with the approved uses, including consistency with this agreement.  If during this 25 year period it is found that the land is not being used in accordance with the terms of this agreement, action will be taken in consultation with the Washington State Historic Preservation Officer and the Advisory Council on Historic Preservation and in accordance with the applicable regulations of the Secretary of the Interior and Bureau procedures to correct the use or to initiate action to revest title to the lands to the United States.  After the 25 year period the Bureau will have no jurisdiction over this land andenforcement of this agreement will be the responsibility of the Washington State Historic Preservation Officer and the Advisory Council on Historic Preservation under applicable laws and regulations.

(Emphasis added.)

            The change in use authorizes Pierce County to use the property for recreational, educational, cultural, historical preservation and related purposes.  Under the new federal restrictions, the State cannot use the property for an insane asylum nor can Washington use the property for the recreational and other purposes authorized for Pierce County.[5]  The binding restrictions on the property prevent it from being included as part of the corpus of the charitable, educational, penal, and reformatory institution account pursuant to RCW 79.01.006(2).  Thus, the provisions of chapter 79.01 RCW relating to this trust account do not apply to the 260 acres in question.

            Question 3:

            If the answer to Question 1 is yes, under what circumstances may the State sell, lease or otherwise transfer the property?

            Since the answer to Question 1 is no, we do not reach Question

            We trust the foregoing will be of assistance to you.

                                    Very truly yours,

                                    KENNETH O. EIKENBERRY
                                    Attorney General

                                    WILLIAM B. COLLINS
                                    Senior Assistant Attorney General

WBC:aj

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