Bob Ferguson
Other LanguagesAGLO 1972 No. 66 -
Attorney General Slade Gorton
- - - - - - - - - - - - -
August 22, 1972
Honorable Daniel B. Ward
Chairman, Economic Assistance Authority
General Administration Building
Olympia, Washington 98504
Cite as: AGLO 1972 No. 66 (not official)
Dear Sir:
By letter previously acknowledged you have requested the opinion of this office regarding the eligibility of the "Expanded Swinomish Indian Fish Company Project" for a grant of state funds under the provisions of the economic assistance authority act of 1972 ‑ chapter 117, Laws of 1972, 1st Ex. Sess.
In our opinion, for the reasons set forth in the following analysis, we believe that the grant in question would be legally defensible if made.
ANALYSIS
Your question arises by reason of an application which has been submitted to the economic assistance authority by the Swinomish Indian tribal council for a grant of state funds in the amount of $361,598.00 to finance the expansion of an existing fish processing plant located on the Swinomish Indian reservation in Skagit county, Washington. From our examination of the application and supporting documents, it appears that this facility is, essentially, a commercial fish processing plant owned and operated by the Swinomish Indian tribe under the control of its tribal senate. The basic function of this plant is to process raw fish which have been caught by Swinomish Indian fishermen and to sell the resulting fish products at retail to the general public at an outlet located within the plant itself. All profits of the operation inure to the benefit of the entire tribe in accordance with certain provisions contained in the tribal charter. See, in particular, PP 5 (e) and 8 thereof.
The basis for this application for state financial assistance, as noted in your letter, is chapter 117, Laws of 1972, 1st Ex. Sess. By this enactment the legislature created the economic assistance authority as a state agency and charged it with responsibility for the administration of a program of financial assistance in implementation of [[Orig. Op. Page 2]] the following declaration of policy, as set forth in § 1 of the act:
"It is declared to be the public policy of the state of Washington to direct financial resources of this state toward the fostering of economic development through the stimulation of investment and job opportunity in order that the general welfare of the inhabitants of the state is served. The legislature further finds that reducing unemployment as soon as possible is of major concern to the economic welfare of the state.
"It is further declared that such economic development should be fostered through provision of investment tax deferrals, construction of public facilities, the insurance of industrial mortgages, and technical assistance; that expenditures made for these purposes as authorized in this chapter are declared to be in the public interest, and to constitute a proper use of public funds, and that an economic assistance authority is needed which shall effect such development of economic opportunity."
Of the three categories of economic assistance contemplated by the act ‑ i.e., public facilities' grants or loans; investment tax deferrals; and industrial mortgage insurance ‑ we are here concerned only with the first. In order to fund these grants or loans for the remainder of the 1971-73 fiscal biennium the legislature has appropriated the sum of $20,000,000 pursuant to § 47, chapter 155, Laws of 1972, 1st Ex. Sess., ‑ the supplemental budget act. The disbursement of these funds is governed, basically, by the provisions of § 7, chapter 117, supra, which reads as follows:
"The authority is authorized to make direct grants and/or loans to political subdivisions of the state and Indian tribes recognized as such by the federal government, for the purpose of assisting such organizations in financing the cost of public facilities, including the cost of acquisition and development of land and improvements for public facilities, as well as the acquisition, construction, rehabilitation, alteration, expansion, or improvement of such facilities." (Emphasis supplied.)
[[Orig. Op. Page 3]]
We may begin our analysis of the application here in question by establishing the fact that the Swinomish Indian Tribal Community is an Indian tribe ". . . recognized as such by the federal government . . ."1/ It is organized under a constitution and bylaws adopted and approved pursuant to 25 U.S.C. § 476 and is chartered as "a body politic and corporate of the United States" pursuant to 25 U.S.C. § 477. Its Constitution, approved by the Acting Secretary of the Interior on January 27, 1936, declares that:
"We the Indians of the Swinomish Reservation, in order to establish a more perfect tribal organization, promote the general welfare, encourage educational progress, conserve and develop our lands and resources, and secure to ourselves and our posterity the power to exercise certain rights of home rule, in accordance with and by the authority of the act of Congress of June 18, 1934, do ordain and establish this constitution for the Swinomish Indians."
The tribe's corporate charter, as issued by the Secretary of the Interior on July 2, 1936, sets forth the following statement of corporate purpose:
"In order to further the economic development of the Swinomish Indian Tribal Community of the Swinomish Reservation in the State of Washington by conferring upon said Community certain corporate rights, powers, privileges and immunities; to secure for the members of the Community an assured economic independence; and to provide for the proper exercise by the Community of various functions heretofore performed by the Department of the Interior, the aforesaid Community is hereby chartered as a body politic and corporate of the United States of America, under the corporate name 'The Swinomish Indian Tribal Community'."
[[Orig. Op. Page 4]]
Having established that the Swinomish Indian Tribal Community qualifies on this count, it remains, however, to be determined whether the purposes of the particular requested grant in question are consistent with the several other conditions which have been established by the legislature with respect to public facilities' grants or loans under the economic assistance authority act. First to be noted is a provision contained in § 6 of the act pursuant to which no such grants may be approved for projects not ". . . consistent with the plans, programs, and policies of state agencies and/or local governmental units within whose jurisdiction the project is located." Essential compliance with this requirement at the local level appears to be adequately reflected in the tribe's own comprehensive plan, of which you have also provided us a copy.2/ Beyond this, you have informed us that the project in question is located entirely on Indian trust lands ‑ and hence, is not subject to any other local (county) or state land use regulations under the reasoning of our state supreme court in Snohomish County v. Seattle Disposal Co., 70 Wn.2d 668, 425 P.2d 22 (1967).3/
Next to be considered is a requirement contained in § 8 of the act to the effect that public facilities' grants and/or loans to an eligible recipient are to be used for project which ". . . will improve the opportunities for the successful maintenance, establishment, or expansion of industrial or commercial plants or will otherwise assist in the creation or retention of long-term economic opportunities."
[[Orig. Op. Page 5]]
It is our opinion that the expansion of the Swinomish tribe's fish processing plant (as this project has been described to us) could reasonably be found by the authority to fulfill these general criteria. The supporting materials accompanying the application indicate, for example, that the completed project will increase the number of available jobs within the operation from a present figure of 22 part-time jobs to a figure of 16 full-time and 20 part-time jobs. It has been estimated by the tribal government that this will result in a reduction of the unemployment rate on the Swinomish reservation from 56% to 41%.
Next to be noted is § 9, chapter 117, supra, which earmarks the monies from which the instant grant would be made for economically depressed geographic areas only. We are advised, however, that all of Skagit county (in which the Swinomish reservation is located) has already been determined by the authority to qualify on this count. In addition, we observe that in § 9 (1) (c) the legislature has taken special note of Indian tribal situations by providing that an area may be designated as an "economic assistance area" where
". . . The area is a federal Indian reservation manifesting economic distress as based on unemployment, low income levels, and other evidence of economic underdevelopment."
This brings us, then, to a consideration of the public nature of the project itself. At this point we must ask, basically, whether the "Expanded Swinomish Fish Company Project" as described in the application can be said to constitute a "public facility" as that term is used in § 7, supra ‑ a section which is to be read in conjunction with § 11 (2) of the act stating that any public facilities' grants or loans made by the authority are to be
". . . used directly or indirectly for any facility for public purposes, including, but not limited to, sewer or other waste disposal facilities, arterials, bridges, access roads, port facilities, or water distribution and purification facilities;" (Emphasis supplied.)
In considering this question, we believe it important first to distinguish the powers granted to the economic assistance authority under chapter 117, supra, from the [[Orig. Op. Page 6]] ordinary powers of state agencies. While a rule of strict construction applies in the case of most statutes granting powers to state agencies,4/ an exception is commonly recognized in the case of grants such as that contained in the instant act. As stated in 3 Sutherland, Statutory Construction, § 6406:
"Where a public grant has as its purpose the promotion of great public enterprises and the happiness, prosperity and development of the community, the basic policy behind the rule of strict interpretation is dissolved, and the courts are inclined towards a liberal policy to insure the beneficent operation of the statute. . . ."
With this rule in mind, we again take note of the legislature's express acknowledgment of the public municipal character and powers (to the extent permitted by Congress) of federally recognized Indian tribes in § 7, supra. In relation to this recognition, it is next important to note the historically significance of the particular economic activity here involved ‑ fishing ‑ to the Swinomish Indian tribe. Unlike any cities, counties or port districts (for example), the culture, subsistence and economy of this particular tribe has, from time immemorial, been oriented primarily to the products of the sea, principally anadromous fish. The communal need for and concern about this resource was so strong a hundred years ago when this tribe first formally related itself to the federal government that the tribe insisted upon an express provision of its treaty therewith to secure the continued right of its members to take fish. See, Treaty of Point Elliott, Article 5, 12 Stat. 927.5/ Given such immemorial usage, the role [[Orig. Op. Page 7]] of the tribe's present-day communally owned and operated fish processing facility (together with the tribe's similarly owned and operated fish trapping facility) takes on an added dimension ‑ a dimension of which we must presume the legislature was also fully cognizant.
In addition, it seems significant that in defining the permissible recipients of the subject grants, the legislature has spoken both of "political subdivisions of the state" and of "Indian tribes recognized as such by the federal government . . ." In so doing, the legislature appears to have given expression to the unique nature of these latter entities and to have indicated that they are not to be viewed in precisely the same manner as we ordinarily view "political subdivisions of the state." Thus the fact that the facility here in question differs in certain respects from those ordinarily operated by counties, cities and towns, or other political subdivisions should not compel a conclusion based upon the rule of ejusdem generis that it is not a "public facility" within the meaning of the act.
This rule of statutory construction provides that where general words in a statute follow an enumeration of specific things by words of a particular and specific meaning, such general words are to be regarded as applying only to persons or things of the same general kind or class as those specifically mentioned and are not to be construed in their widest extent. See, State ex rel. Gilroy v. Superior Court for King County, 37 Wn.2d 926, 226 P.2d 882 (1951).
However, as with any of the various rules of statutory construction, this rule is only to be used as an aid in the ascertainment of legislative intent ‑ not to subvert such intent when ascertained. United States v. Gilliland, 312 U.S. 86, 85 L.Ed. 604, 61 S. Ct. 518 (1940). Recalling the rule of liberal construction which here obtains, we must also recall that the statute's enumeration in § 11 (2), supra, of certain admittedly public facilities is there preceded by the phrase "not limited to." Use of that qualifier by a legislature which appears to have fully appreciated the character of recognized Indian tribes as public bodies makes clear our duty not to read narrowly and thus defeat the "great public enterprises"6/ which the legislature by this act apparently intended to promote.
In light of all of these factors we do not believe that a court would read the legislature as having intended [[Orig. Op. Page 8]] to limit the scope of tribal public facilities solely to such facilities as counties, cities or other political subdivisions traditionally operate. On the contrary, we think the legislature's intention is manifest that those unique facilities historically viewed as tribal public enterprises may be equally considered with those of the state's political subdivisions in terms of determining their eligibility for "public facilities'" grants or loans under the act. Therefore, fairly viewed, a fish processing facility which is operated, as a tribal asset, for the benefit of the entire community, by the Swinomish Indian community's elected governmental leaders, can reasonably be held to be a public facility within the meaning of the act.
In other words and by way of a summary as to this point, it is our opinion that the term "any facility for public purposes" in § 11 (2), supra, must be interpreted in light of the purposes of the statute and the nature and customs of the public body which is proposing to undertake the facility. In the setting of the Swinomish Indian tribal community a facility like that here under discussion is arguably as much a facility for public purposes as (for example) are those "facilities for the freezing or processing of goods, agricultural products, meats or perishable commodities" which port districts are empowered to construct under the provisions of one of their governing statutes, RCW 58.08.020.
Because of this and the other reasons above indicated, we believe that if the economic assistance authority determines to make the requested grant here under consideration, either in whole or in part, its action in this regard will be legally defensible.
We trust that the foregoing information will be of assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
Charles F. Murphy
Assistant Attorney General
William M. Gingery
Assistant Attorney General
*** FOOTNOTES ***
1/For other recent instances of state legislation granting special recognition to those Indian tribes which have been recognized as such by the federal government, see, in addition to § 7, supra, chapter 33, Laws of 1971 ("public agencies" under the Interlocal Cooperation Act) and chapter 56, Laws of 1972 ("public bodies" under the Marine Recreation Land Act). See also, chapters 127, 128, 129 and 130, Laws of 1972, 1st Ex. Sess.
2/See, Comprehensive Plan, § 2, at pp. 17 and 18.
3/See, AGO 1970 No. 11 [[to Bill Kiskaddon, State Representative on June 4, 1970]], for a full explanation of the scope and reasoning of this case.
4/See, State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956).
5/Or, as stated in the Tribal Community's current comprehensive plan, § 1, at p. 11, "The most important traditional activity of the group was fishing, and today fishing continues to be a group activity . . ."
6/Sutherland, ibid.