OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF NATURAL RESOURCES ‑- SALE OF TIDE OR SHORE LANDS ‑- RESERVATION OF MINERAL RIGHTS

OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF NATURAL RESOURCES ‑- SALE OF TIDE OR SHORE LANDS ‑- RESERVATION OF MINERAL RIGHTS

When the department of natural resources sells, transfers or exchanges state, tide or shore lands to another governmental agency under the provisions of RCW 39.33.010, the contract of sale and deed does not have to contain the reservations of mineral rights set out in RCW 79.01.224.

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                                                                 February 2, 1973

Honorable Bert L. Cole
Commissioner of Public Lands
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1973 No. 19

Dear Sir:

            By letter previously acknowledged you requested the opinion of this office on a question which we paraphrase as follows:

            When the department of natural resources sells, transfers or exchanges state, tide or shore lands to another governmental agency under the provisions of RCW 39.33.010, must the contract of sale and deed contain the reservations of mineral rights set out in RCW 79.01.224?

            We answer this question in the negative.

                                                                     ANALYSIS

            RCW 79.01.224, which originated in § 1, chapter 256, Laws of 1907, and was later enacted in its present form as a part of the 1927 Public Lands Act,1/ provides that:

            "Each and every contract for the sale of, and each deed to, state, tide or shore lands shall contain the following reservation:  'The party of the first part hereby expressly saves, excepts and reserves out of the grant hereby made, unto itself, its successors, and assigns forever, all oils, gases, coal, ores, minerals and fossils of every name, kind or description, and which may be in or upon said lands above described, or any part thereof, and the right to explore the same for such oils, gases, coal, ores, minerals and fossils; and it also hereby expressly saves and reserves out of the grant hereby made, unto itself, its successors and assigns forever, the right to enter by itself, its agents, attorneys and servants upon  [[Orig. Op. Page 2]] said lands, or any part or parts thereof, at any and all times, for the purpose of opening, developing and working mines thereon, and taking out and removing therefrom all such oils, gases, coal, ores, minerals and fossils, and to that end it further expressly reserves out of the grant hereby made, unto itself its successors and assigns, forever, the right by its or their agents, servants and attorneys at any and all times to erect, construct, maintain and use all such buildings, machinery, roads and railroads, sink such shafts, remove such soil, and to remain on said lands or any part thereof for the business of mining and to occupy as much of said lands as may be necessary or convenient for the successful prosecution of such mining business, hereby expressly reserving to itself, its successors and assigns, as aforesaid, generally, all rights and powers in, to, and over said land, whether herein expressed or not, reasonably necessary or convenient to render beneficial and efficient the complete enjoyment of the property and the rights hereby expressly reserved.'"

            Your question is whether this reservation of mineral rights2/ is required in a case where the sale of state, tide or shore lands is made to another public agency under RCW 39.33.010, either as originally enacted in 19533/ or as recently amended.4/   We answer both aspects of this question in the negative.

            As originally enacted and as it remained until amended in 1972, RCW 39.33.010 provided that:

             [[Orig. Op. Page 3]]

            "Notwithstanding any provision of law to the contrary, the state or any municipality or any political subdivision thereof, may sell, transfer, exchange, lease or otherwise dispose of any property, real or personal, or property rights, including but not limited to the title to real property, to the state or any municipality or any political subdivision thereof on such terms and conditions as may be mutually agreed upon by the proper authorities of the state and/or the subdivisions concerned:  PROVIDED, That such property is determined by decree of the superior court in the county where such property is located, after publication of notice of hearing is given as fixed and directed by such court, to be either necessary, or surplus or excess to the future foreseeable needs of the state or of such municipality or any political subdivision thereof concerned, which requests authority to transfer such property."  (Emphasis supplied.)

            We believe the supreme court's analysis of this statute in Davis v. County of King, 77 Wn.2d 930, 468 P.2d 679 (1970), is determinative of your first question as it pertains to transfers under these pre‑1972 provisions.  This case involved the issue of whether a county was required to seek and obtain a superior court decree under the statute when selling its property to another governmental agency under the authority of another statute, RCW 36.34.130, dealing specifically with intergovernmental sales of county property and providing that:

            "The board of county commissioners may dispose of county property to another governmental agency and may acquire property for the county from another governmental agency by means of private negotiation upon such terms as may be agreed upon and for such consideration as may be deemed by the board of county commissioners to be adequate."

            In answering this question in the affirmative the court indicated that the procedures set out in RCW 39.33.010, supra, were mandatory in all cases to which it applied.  Its answer to the argument that this statute only provided an alternative procedure and was merely permissive was  [[Orig. Op. Page 4]] that:

            "RCW 39.33.010 is permissive only in that a county 'may' dispose of its property upon mutually agreeable terms. . . ."  (p. 932.)

            The court then went on to clarify the meaning of the introductory phrase "notwithstanding any provision of the law to the contrary" by saying:

            "RCW 39.33.010 commences with the phrase "Notwithstanding any provision of law to the contrary".  This is significant.  Notwithstanding means "without prevention or obstruction from or by; in spite of" Merriam-Webster Third International Dictionary (1964); see also State ex rel. Morse v. Christianson, 262 Wis. 262, 55 N.W.2d 20 (1952).  This signifies the legislature declared its intent that despite any enactment to the contrary, and without prevention or obstruction by any prior act, the intergovernmental disposal of property must be preceded by the required superior court decree."

            Applying this definition of "notwithstanding" to the relationship between RCW 39.33.010 and RCW 70.01.224, supra, it seems clear to us that, in effect, the provisions of the former as it existed prior to 1972 permitted intergovernmental sales or other dispositions of ". . . any [state of local governmental] property . . . or property rights, including but not limited to the title to real property . . ." on mutually agreeable terms where sanctioned by a superior court decree "without prevention or obstruction by any [other] enactment to the contrary."  Accordingly, when proceeding under this statute in selling state, tide or shore lands to another governmental agency it follows that the department of natural resources was authorized to dispose of the entire property, including those mineral rights otherwise to be reserved under RCW 79.01.224, supra.

            Moreover, although this opening clause has been deleted from the statute by the amendment contained in § 1, chapter 95, Laws of 1972, Ex. Sess., our answer remains the same under this present version of the law.  Set forth in bill form for ease of reading, the 1972 legislature, in  [[Orig. Op. Page 5]] apparent reaction to the supreme court's decision inDavis, supra, amended RCW 39.33.010 to read as follows: