AUTHORITY TO ACQUIRE BY EMINENT DOMAIN OR OTHERWISE A SYSTEM OF SPECIAL USE ROADS AND TO AUTHORIZE THEIR...

OFFICES AND OFFICERS ‑- DEPARTMENT OF NATURAL RESOURCES AND COMMISSIONER OF PUBLIC LANDS ‑- AUTHORITY TO ACQUIRE BY EMINENT DOMAIN OR OTHERWISE A SYSTEM OF SPECIAL USE ROADS AND TO AUTHORIZE THEIR USE BY PRIVATE INDIVIDUALS AND CORPORATIONS PURSUANT TO DEPARTMENT REGULATION ON A COST APPORTIONMENT BASIS ‑- AUTHORITY TO ISSUE A CERTIFICATE OF ABANDONMENT WHEN ROAD IS NO LONGER NEEDED FOR PUBLIC PURPOSES ‑-TAXATION ‑- USE FUEL TAX ‑- TRUCK TRAVEL EXCLUSIVELY ON PUBLIC USE ROADS NOT SUBJECT TO STATE USE FUEL TAX ‑-MOTOR VEHICLES ‑- LICENSING AND OPERATION REQUIREMENTS OF MOTOR VEHICLE CODE NOT APPLICABLE TO TRUCKS USED EXCLUSIVELY ON SUCH SPECIAL USE ROADS.

(1) The department of natural resources may use public funds to acquire by eminent domain or otherwise a system of special use roads for the management, protection and harvest of timber on public lands.  Such roads held in fee may be used by individuals and corporations pursuant to department regulation on a cost apportionment basis.

(2) Truck travel confined exclusively to such special use roads is not subject to state use fuel tax and licensing requirements applicable to public highway operation.

(3) If the fee is acquired in such lands and the land becomes unnecessary, it may be sold by the commissioner, but if only a use is acquired, it may be abandoned.

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                                                                  August 5, 1958

Honorable Bert L. Cole
Commissioner,Department of Natural Resources
Box 110
Olympia, Washington                                                                                               Cite as:  AGO 57-58 No. 213

Dear Sir:

            You have requested the opinion of this office on several questions pertaining to forest access roads which we have divided and paraphrased as follows:

             [[Orig. Op. Page 2]]

            (1) May the department of natural resources with public funds construct or otherwise acquire a system of special use roads for the management, protection and harvest of timber on public lands?

            (2) May such roads thereafter be used pursuant to department regulation on a cost apportionment basis by individuals and corporations for the same purposes as regard contiguous or proximate private forest lands?

            (3) May the power of eminent domain be exercised to acquire such roads?

            (4) May truck travel confined exclusively thereon be conducted without regard to state tax and licensing requirements applicable as to public highway operation?

            (5) May a right of way be relinquished to the landowner once it has been abandoned by the state?

            We answer all questions, except as to certain qualifications of the second and fifth, in the affirmative.

                                                                     ANALYSIS

            (1) Statutory authority for the construction or acquisition of such a system of special use roads is clearly established by RCW 76.16.010, which provides as follows:

            "Whenever the commissioner of public lands, the board of state land commissioners, the director of conservation and development or any other state officer, body, or agency authorized to care for or sell timber, standing or fallen, on any of the public lands of the state, finds it to be for the best interest of the state, to acquire any property in private ownership for the purpose of affording access to such state timber from any public highway by road, or to acquire the use of a private road, the acquisition of such private property, or use thereof, is hereby declared to be necessary for the public use of the state, and any such state officer, body, or agency may acquire such lands by gift, purchase, or condemnation."

            (2) As regard private use of such roads, a legislative intent that such industry cooperation be afforded is apparent.  RCW 79.36.060 (§ 83, chapter 255, Laws of 1927) and RCW 79.36.290 (§ 6, chapter 312, Laws of 1927) specifically provide for the granting of a right of way over and across state lands to persons or  [[Orig. Op. Page 3]] corporations engaged in logging for the purpose of transporting timber.  As those statutes, as well as RCW 76.16.010, are concerned with the same general subject matter, i.e., access to forest lands, they are in pari materia and must be construed together.  See State v. Houck, 32 Wn. (2d) 681, 684-685, 203 P. (2d) 693 (1949), wherein it is stated:

            ". . . in construing a statute, or statutes, all acts relating to the same subject matter or having the same purpose, should be read in connection therewith as together constituting one law.  The object of the rule is to ascertain and carry into effect the intent of the legislature, and it proceeds upon the supposition that the several statutes having to do with related subject matters were governed by one spirit or policy, and were intended to be consistent and harmonious in their several parts and provisions. . . ." (Emphasis supplied.)

            In the absence of any specific language in the 1945 act (RCW 76.16.010) evidencing a change in the previously enunciated legislative policy, it is our opinion that the special use roads acquired in fee under the authority of the 1945 enactment may be permitted to be used by private individuals and corporations by the department of natural resources.

            As to the questions of department regulation and cost apportionment, the department undoubtedly possesses those concomitant powers as the agency of the state responsible for such special use roads.  The right to use public property is always subject to such reasonable rules and regulations as the appropriate governing body may adopt.  People v. Parker, 138 N.Y.S. (2d) 2 (1955); State ex rel. Gray v. Stoutamire, 131 Fla. 698, 179 So. 730 (1938); 49 Am.Jur. 268, States, Territories, and Dependencies, § 56.  As was stated in State ex rel. Mason County Power Co. v. Superior Court, 99 Wash. 496, 500, 169 Pac. 994 (1918):

            ". . . The state can attach any conditions that it chooses in regard to the control and use of its property. . . ."

            If the state should only acquire an easement, however, it would have no right to permit such additional use.  An easement obtained for the purpose of access to state timber is limited thereto, and its enjoyment may not thereafter be extended to allow purely private use.  United States v. Johnson, 4 F. Supp. 77 (1933); Pinkerton v. Pritchard, 71 Ariz. 117, 223 P. (2d) 933 (1950).

            (3) Provision for the exercise of eminent domain in this regard is made in RCW 76.16.010.  The procedure to be followed in condemnation of lands thereunder is outlined in RCW 76.16.020, as follows:

             [[Orig. Op. Page 4]]

            "The attorney general shall condemn any lands, or use thereof, found to be necessary for the public use of the state as provided in RCW 76.16.010.  Upon being furnished with a certified copy of the resolution of any such state officer, body, or agency, describing any lands found to be necessary for access by road to any state timber, the attorney general shall immediately take steps to acquire the property by exercising the state's right of eminent domain under chapter 8.04 [[chapter 8.04 RCW]].  In any condemnation action herein authorized, the certificate describing the lands found to be necessary for access to any state timber shall be conclusive as to the public use and necessity for the acquisition of the land for a public purpose and the land shall be awarded to the state without the necessity of either pleading or proving that the state officer, body, or agency was unable to agree with the owner of the private property for its purchase.  Any such condemnation action shall have precedence over all actions, except criminal actions, and shall be summarily heard and disposed of."

            There is nevertheless the possible objection that such a condemnation would not be for a public purpose, particularly in view of the additional use by private interests.  This question could receive judicial consideration despite the statutory language, by virtue of Article I, § 16, of the state constitution which makes "public use" a judicial question.

            However, the Washington court has stated that a determination of public use by the state or its agencies is entitled to great respect by the courts.  Carstens v. Public Utility Dist. No. 1, 8 Wn. (2d) 136, 111 P. (2d) 583 (1941).  Further, the transportation of timber has long been treated as an activity of unique public concern and interest.  See State ex rel. Wilson v. Superior Court, 47 Wash. 397, 92 Pac. 269 (1907);  State ex rel. Clark v. Superior Court, 62 Wash. 612, 114 Pac. 444 (1911).  Hence, the exercise of the power of eminent domain for the acquisition of such roads would appear justified as for a public use in this state.

            (4) In Title 46 RCW, the motor vehicle code, a public highway is defined as follows (RCW 46.04.430):

            "'Public highway' includes every way, land, road, street, boulevard, and every way or place in the state open as a matter of right to public vehicular travel both inside and out side the limits of cities and towns."

             [[Orig. Op. Page 5]]   RCW 46.08.030 states:

            "The provisions of this title relating to the operation of vehicles shall be applicable and uniform upon all persons operating vehicles upon the public highways of this state, except as otherwise specifically provided."  (Emphasis supplied.)

            A similar definition for purposes of the use fuel tax is contained in RCW 82.40.010 (2) as follows:

            "(2) 'Highway' means every way or place open to the use of the public, as a matter of right, for purposes of vehicular travel."

            It is apparent that the special use roads proposed to be administered by the department of natural resources would not fall within the definition of a public highway.

            We conclude, therefore, that the licensing and operation requirements of the aforementioned motor vehicle code, as well as the provisions of the use fuel tax statutes, were not intended to be applicable to the operation of trucks used exclusively on such special use roads.

            (5) RCW 76.16.020 authorizes the condemnation of "lands, or use thereof." RCW 76.16.030 refers to the acquisition of the "fee" where lands are condemned, rather than the use of a private road.  It further provides that if the lands are not required for a public highway, they shall be sold when it is for the best interests of the state to do so.

            Accordingly, you are advised that if the state has acquired the fee in the land and such land thereafter becomes unnecessary, it should be sold, but that if the mere use of a private road is acquired, it may be abandoned and the owner of the property so notified.

            We trust the foregoing analysis will be helpful.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

FRANKLIN K. THORP
Assistant Attorney General