REMOVAL OF CHRISTMAS TREES FROM STATE LANDS

REMOVAL OF CHRISTMAS TREES FROM STATE LANDS

No arrangement may be made whereby Christmas trees may be harvested upon state lands.

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                                                                 August 13, 1952

Honorable B. L. Orell
Supervisor of Forestry
Social Security Building
Olympia, Washington                                                                                                              Cite as:  AGO 51-53 No. 381

Attention:  Mr. Donald R. Hopkins

Dear Sir:

            Receipt is acknowledged of your letter of August 6, 1952, in which you ask our opinion as to whether it would be legal to lease state forest board lands for the purpose of growing and harvesting Christmas trees under an agreement containing strict stipulations covering the method of management of the lands involved and applying only to lands which are best suited for growing Christmas trees and would yield the greatest financial return if managed for the production of that specific crop.

            It is our conclusion that under present statutes the state forest board lands may not be leased for the purpose of growing and harvesting Christmas trees regardless of circumstances.

                                                                     ANALYSIS

            In management of state forest board lands authority is expressly given to sell timber and other products.  We have no doubt that Christmas trees are embraced within the term "other products."  RCW 76.12.120, (§ 7, chapter 154, Laws of 1923, Rem. Rev. Stat. § 5812-7) authorizes the sale of such other products in the same manner and for the same purposes as is authorized for state granted land.  If this section stood alone we would have no  [[Orig. Op. Page 2]] hesitancy in saying that the state could make provisions for the sale of Christmas trees from state forest board lands.  However, RCW 79.40.070 (§ 1, chapter 87, Laws of 1937, Rem. Rev. Stat. § 8074-1) provides:

            "It shall be unlawful for any person to enter upon any of the state lands and remove therefrom for commercial purposes any evergreen trees commonly known as Christmas trees, including fir, hemlock, spruce, and pine trees.  Any person cutting or removing or causing to be cut or removed, or who cuts down, cuts off, tops, or destroys any of such Christmas trees shall be liable to the state for payment for such trees at a price of one dollar each if payment is made immediately upon demand of the commissioner.  Should it be necessary to institute civil action to recover the value of such trees, then the commissioner may exact treble damages on the basis of three dollars per tree for each tree so cut or removed."

            It seems probable that the legislature in enacting the statute just quoted had in mind Christmas trees removed from state land by trespass.  However, no such qualifying language was used in the statute.  This is in contrast with the language which the legislature used in enacting a similar law relative to the removal of timber from state lands.  RCW 79.40.030 (§ 199, chapter 255, Laws of 1927, Rem. Rev. Stat. § 7797-199) reads:

            "Every person who cuts or removes, or causes to be cut or removed, any timber growing or being upon any public lands of the state, or who manufactures the same into logs, bolts, shingles, lumber, or other articles of use or commerce, unless expressly authorized so to do by a bill of sale from the state, or by a lease or contract from the state under which he holds possession of such lands, or by the provisions of law under and by virtue of which such bill of sale, lease, or contract was issued, shall be liable to the state in treble the value of the timber or other articles so cut, removed, or manufactured, to be recovered in a civil action, and shall forfeit to the state all interest in and to any article into which the timber is manufactured."

             [[Orig. Op. Page 3]]

            It will be noted that in the latter statute an express exception was made in the case where the cutter of the timber has a permit or bill of sale from the state.  The language of the Christmas tree removal statute is so broad that if read literally, it prohibits entirely any removal of Christmas trees for commercial purposes.  It appears to be in conflict with the apparent intention of the legislature as expressed in RCW 76.12.120 authorizing the board of land commissioners to sell "other products" from forest board lands.  It is to be noted that the Christmas tree statute was enacted subsequent to the enactment of RCW 76.12.120.  The rule is that when two statutes are in conflict, the one enacted later will prevail.  Since the language of RCW 79.40.070 appears so plainly to prohibit the removal for commercial purposes of Christmas trees from state lands, it is our opinion that in the absence of action by the legislature to remove that prohibition it is not permissible to make any arrangement to allow the harvesting of Christmas trees on forest board lands.

Very truly yours,

SMITH TROY
Attorney General

LYLE L. IVERSEN
Assistant Attorney General