DEPARTMENT OF FORESTRY ‑- ADMINISTRATIVE LAW -- AUTHORITY OF SUPERVISOR OF FORESTRY UNDER RCW 76.08.040

DEPARTMENT OF FORESTRY ‑- ADMINISTRATIVE LAW --AUTHORITY OF SUPERVISOR OF FORESTRY UNDER RCW 76.08.040

The Supervisor of Forestry may under the provisions of RCW 76.08.040 require the permittee or operator to build fire trails and fall timber in such a manner that trees reserved for seed purposes will not be injured or subject to destruction by fire.  The Supervisor may order the permittee or operator who fails to comply with these requirements to discontinue operations until satisfactory assurance is given the supervisor that future operations will be conducted in compliance with Forest Practice laws and adequate security is posted.

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                                                                    July 10, 1953

Honorable Bernard L. Orell
Supervisor of Forestry
Department of Conservation & Development
Olympia, Washington
                                                                                                                Cite as:  AGO 53-55 No. 84

Attention:  !ttMr. Donald R. Hopkins
            Assistant Supervisor

Dear Sir:

            This is to acknowledge receipt of your letter of June 9, 1953, in which you requested our opinion concerning the extent of your authority under section 3, chapter 218, Laws of 1947 (RCW 76.08.040).  Your questions may be stated as follows:

            1.         May the Supervisor of Forestry under the authority of RCW 76.08.040 require a permittee or operator to build fire trails around the timber reserved for seed trees?

            2.         May the Supervisor of Forestry under the authority of RCW 76.08.040 require a permittee or operator to conduct his operations in such a manner that cut  [[Orig. Op. Page 2]] timber will not fall into and injure the timber reserved for seed trees?

            3.         If the Supervisor of Forestry has the authority to require the building of fire trails and the falling of timber in a manner that will not injure seed trees, may the Supervisor close down an operator who fails to comply with these requirements?

            It is our conclusion that subject to certain limitations discussed below, the Supervisor of Forestry may, under the provisions of RCW 76.08.040 require the permittee or operator to build fire trails and fall timber in a manner that will not injure trees reserved for seed purposes.  We also conclude that the Supervisor may order an owner or operator who fails to comply with these requirements to discontinue operations until satisfactory assurance is given that future operations will be conducted in compliance with the Forest Practice laws and cash or bond is furnished in an amount fixed by the supervisor, but not to exceed $16.00 per acre, to insure restocking the violated area.

                                                                     ANALYSIS

            Your three questions above stated call for a construction of the Forest Practices Act of 1945 as amended by the Session Laws of 1947 and 1953.  The purposes and policies of this act are found in section 1, chapter 193, Laws of 1945 (RCW 76.08.020).  This section reads as follows:

            "Keeping the forest land of this state continuously and fully productive is one of the most important steps toward perpetuation and conservation of its forest resources.  One of the most important means of effectuating such public policy is to keep timber lands productive by seeking to maintain continuous growth of timber on all lands suitable for such purposes, and in order to accomplish this end it is necessary, and in the public interest, to prescribe certain rules of forest practices to be observed in the harvesting of timber."

            The following eight sections of this act then provide in general that every permittee or operator shall leave reserve seed trees in a quantity adequate to maintain continuous forest growth or provide adequate restocking to insure forest production.  Minimum standards of compliance are provided for operations east and west of the summit of the Cascade Mountains.  Alternative  [[Orig. Op. Page 3]] methods, such as artificial reforestation may be approved by the supervisor in situations where the owner or operator desires, for example, to clear cut.  Owners and operators conducting logging operations are required to submit applications in which they agree to abide by the provisions of this act prior to securing a permit to conduct logging operations in this state.  Section 6 of chapter 218, Laws of 1947 (RCW 76.08.080) as amended by section 3, chapter 44, Laws of 1953, empowers the supervisor to employ sufficient inspectors to enable him to secure compliance with this act and provides in part:

            "* * * In the event that an owner or operator fails, refuses or neglects to comply with the provisions of this chapter, the supervisor may order the particular operation in which the violation occurs discontinued until the owner or operator gives satisfactory assurance that he will resume operations in compliance with the provisions of this chapter and furnishes cash deposit or bond in lieu thereof as fixed by the supervisor, on the basis of not to exceed sixteen dollars per acre for that portion of the area which through his failure to carry out the provisions of this chapter does not have sufficient source of seed to adequately restock the area.  * * *"

            It is clear from the quoted language above that where a violation of the Forest Practice Laws occurs the supervisor has the authority to cause the violator to discontinue operations until satisfactory assurances are given by the violator that he will conduct future operations in compliance with the law and in addition deposits cash or a bond in an amount fixed by the supervisor, but not to exceed $16.00 per acre, to insure restocking the violated area.

            Statutory grounds for the requirements your department wishes to make, if they exist, must be found in the provisions of section 3, chapter 218, Laws of 1947 (RCW 76.08.040).  This section provides that:

            "Every permittee shall, during the process of logging, take adequate precautions to leave reserve trees of commercial species deemed adequate under normal conditions to maintain continuous forest growth, or provide adequate restocking to insure future forest production.  In the conduct of logging operations and prior to and during slash disposal,proper precautions shall be taken and every reasonable effort made by the  [[Orig. Op. Page 4]] operator to protect residual stands and trees left uncut as a source of seed supply, from destruction by fire or unnecessary damage resulting from logging operations."  (Emphasis supplied)

            Since no definitions are supplied for the meaning of the words "proper precautions" or "reasonable effort" it is necessary to look for their meaning in the policies and purposes enumerated in these statutes.  Two Washington Supreme Court decisions construing this legislation have held that the act is constitutional and that it should be construed in light of the legislative purpose contained in RCW 76.08.020.  State v. Dexter, 32 Wn. (2d) 551;West Norman Timber Inc. v. State, 37 Wn. (2d) 467.

            There would seem to be little doubt that standards such as "proper precautions" and "reasonable effort" are terms that permit the exercise of administrative discretion.  For this reason we would conclude that the precautions and efforts that a permittee shall exercise in the process of logging to protect residual stands of timber from injury or fire rest in the expert judgment of the supervisor of forestry.  The requirements which the supervisor may demand from the permittee or operator in order to comply with this section, must of course be reasonable and not enlarge or restrict the scope of this section.  Such requirements as building fire trails and falling timber in a manner that will not injure seed trees seems reasonable in view of the purpose of the act to keep the timber lands of the State of Washington productive.  However, the reasonableness of the requirements in each particular case is within the technical knowledge of the supervisor of forestry and not within the knowledge of the writer.

            We also note that an alternative plan of reforestation may be approved by the supervisor in those cases in which an owner or operator does not desire to leave sufficient reserve trees of commercial species to accomplish natural re‑seeding [[reseeding]].  RCW 76.08.040 and RCW 76.08.070.  Such plan, however, must first be approved by the supervisor.  See section 7, chapter 193, Laws of 1945.

Very truly yours,

DON EASTVOLD
Attorney General

ANDY ENGEBRETSEN
Assistant Attorney General