STATE TIMBER ‑- SALE ‑- STATE OFFICERS ‑- AUTHORITY TO SELL TIMBER

STATE TIMBER ‑- SALE ‑- STATE OFFICERS ‑- AUTHORITY TO SELL TIMBER.

The state may sell timber separate from the land with a valid requirement that it be removed within a period less than five years, regardless of whether the sale is for cash or on a stumpage or scale basis.

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                                                                   April 23, 1953 

Honorable J. H. Robertson
Assistant Commissioner of Public Lands
Public Lands-Social Security Building
Olympia, Washington                                                                                                                Cite as: AGO 53-55 No. 19

 Dear Sir:

             We have your letter of April 7, 1953, asking essentially the following question:

             In selling timber separate from the land, may the state require the removal of the timber in less than five years:  (a) Where the sale is on a stumpage or scale basis?  (b) Where the sale is for cash?

             You are advised:

             The state may sell timber separate from the land with a valid requirement that it be removed within a period less than five years, regardless of whether the sale is for cash or on a stumpage or scale basis.

                                                                      ANALYSIS

             Section 2, chapter 266, Laws of 1951 (RCW 79.12.234), governs in the case of sales made on a stumpage or scale basis and provides that a contract may be entered into which shall fix the time when logging operations shall be commenced and concluded.

             The Laws of 1895 (p. 536), 1897 (p. 236) and 1899 (p. 252) authorized the sale of timber separate from the land without fixing a time limit for removal thereof.

             Under these laws it was the duty of the proper state official to  [[Orig. Op. Page 2]] fix the time limit for removal by contract, acting for the best interests of the state, and there might have been some question as to the construction of the contract.

             Lehtonen v. Marysville, 50 Wash. 359, 97 Pac. 292;Elmonte v. Schafer, 192 Wash. 1, 19, 72 P. (2d) 311.

             To remove all doubt, the legislature in 1901 (chapter 148, Laws of 1901) provided that "* * * timber shall revert to the state if it has not been removed from the land within three years from the date of purchase * * *."

             Section 6, chapter 256, Laws of 1907, provided for a reversion if the timber had not been removed within five years (as did section 2, chapter 223, Laws of 1909, and section 2, chapter 147, Laws of 1915), and the act now in effect, section 33, chapter 255, Laws of 1927, RCW 79.12.120, reads as follows:

             "In all cases where timber * * * is sold separate from the land, the same shall revert to the state if not removed from the land within five years from the date of the purchase thereof: * * *"

             The plain intent of the legislature was to require a maximum but not a minimum time for the removal of the timber.

             It is still the duty of the official acting for the state to fix such a removal date, less than five years, as will be for the best interests of the state and to exercise his discretion in granting extensions for the best interests of the state.

             We understand that it has been the custom to fix the maximum of five years in all cases where timber is sold separate from the land.  We must assume that this has been done in each instance after a finding that such a removal date was required and with the knowledge that a shorter date could be fixed.

             Malmo v. Case, 25 Wn. (2d) 118, and 28 Wn. (2d) 828, involved a contract requiring the removal of timber in one hundred and eight days.

 Very truly yours,
DON EASTVOLD
Attorney General 

E. P. DONNELLY
Assistant Attorney General