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AGO 1955 No. 4 - January 11, 1955
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Don Eastvold | 1953-1956 | Attorney General of Washington

PUBLIC LANDS ‑- SALE OF VALUABLE MATERIALS ‑- PUBLIC OFFICERS ‑- SALES ‑- STATE PROPERTY

With the exception of gravel taken from the bed of the Columbia River where that river forms the boundary line between the States of Oregon and Washington, the Commissioner of Public Lands of Washington is required to exact cash for all gravel sold from the beds of navigable rivers in the State of Washington.

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                                                                 January 11, 1955

Honorable Dale McMullen
State Senator, 17th District
Washington State Senate
Legislative Building
Olympia, Washington                                                                                                                  Cite as:  AGO 55-57 No. 4


Dear Sir:

            In your letter of December 11, 1954 you ask our opinion upon a question which may be stated as follows:

            Must the Commissioner of Public Lands exact payment in cash for gravel sold from the beds of navigable rivers in the State of Washington at the date of sale.

            You are advised:

            With the exception of gravel taken from the bed of the Columbia River where that river forms the boundary line between the States of Oregon and Washington, the Commissioner of Public Lands of Washington is required to exact cash at the date of sale for all gravel sold from the beds of navigable rivers in the State of Washington.

                                                                     ANALYSIS

            Not having heretofore passed upon this question, upon receipt of your letter  [[Orig. Op. Page 2]] we wrote to the Commissioner of Public Lands to ascertain his administrative construction of that portion of RCW 79.12.120 which requires timber, stone, gravel and other valuable materials sold separate from state lands to be paid for in cash.  On December 28, 1954 we were advised by the Commissioner of Public Lands that the construction of his office was, and had been for a period of some fifty years, that the sale of gravel from the beds of rivers of the State of Washington must be made for cash only.

            The construction placed by the Commissioner of Public Lands on statutes defining his duties is given great weight by the courts but is not binding when contrary to the true intent of the legislative enactment.

                        State ex rel. Pindall v. Ross, 55 Wash. 242;

                        State ex rel. Sims v. Savidge, 104 Wash. 79.

            Section 27, chapter CLXXVIII, Laws of 1895 (p. 539) provides:

            "Whenever application to purchase fallen timber, natural hay orgravel upon public lands is made, the board of state land commissioners may sell such fallen timber, natural hay or gravel under such rules and regulations as the board may prescribe."  (Emphasis supplied)

            Separate provision was made for the sale of timber, coal, stone or minerals (sections 21 and 26) in the 1895 act.

            In 1897, by section 12, chapter LXXXVII (p. 236), the legislature combined the provisions for the sale of timber, stone, fallen timber, hay or gravel, or other valuable materials separate from the land and provided:

            "* * * That the full purchase price of such valuable material shall be paid for in cash when sold separate from the land.  * * *"

             [[Orig. Op. Page 3]]

            For other acts requiring payment to be made in cash, see chapter CXXIX Laws of 1899, page 252; chapter CXLVIII, Laws of 1901, page 308 (providing that timber not removed should revert to the state); chapter 256, Laws of 1907, page 752; chapter 223, Laws of 1909, page 760 (providing that gravel and all other valuable materials not removed from the land within five years from the date of purchase thereof shall revert to the state); chapter 147, Laws of 1915; and chapter 255, Laws of 1927, which deserves a closer analysis.

            Section 33, chapter 255, Laws of 1927 requires that all valuable materials, which include timber and gravel, sold separate from the land must be paid for in cash, and that all such material not removed from the land within five years from the date of purchase shall revert to the state.

            This, together with the provision contained in section 39 providing for the sale of the land after the valuable material had been removed, indicates that the legislature in requiring cash for materials sold separate from the land had in mind materials attached to the land but which were to be removed and not materials which had already been removed.

            The legislature, having required the sale of gravel and other material to be made for cash only, found it necessary to enact section 44 of chapter 255, Laws of 1927, which would make it possible for the Commissioner to fix the term of sale in a special instance, to-wit: To any county, city or town.  (A similar provision was made in section 25 of chapter 53, Laws of 1937 in favor of the State Highway Department.)

            The legislature also found it necessary to enact a special law authorizing the sale of damaged timber on a basis other than for cash, RCW 79.12.220, and in 1951 saw fit to enact a law authorizing the sale of timber on a stumpage or scale basis, whereby cash payment in advance would not be required.

            Chapter 220, Laws of 1929 amended section 31 of chapter 255, of the Laws of 1927, by adding the following:

            "* * * The commissioner of public lands is authorized and empowered to confer with and enter into any agreements with the public authorities of the State of Oregon, which, in the judgment  [[Orig. Op. Page 4]] of said commissioner of public lands will assist the State of Washington and the State of Oregon in securing the maximum revenues for sand, gravel or other materials taken from the bed of the Columbia River where said river forms the boundary line between said states."

            We are of the opinion that this amendment authorizes the Commissioner of Public Lands to make an agreement with the State of Oregon which would contemplate payment on a cubic yard or monthly basis only in the case of gravel taken from that portion of the bed of the Columbia River which forms the boundary line between the States of Washington and Oregon.

            Section 274.530, Oregon Revised Statutes, provides:

            "The State Land Board may, after notice of competitive bidding, lease the beds of navigable portions of navigable streams for the purpose of removing gravel, rock and sand therefrom.  No lease shall be made for a lump sum but only on a basis of the price per cubic yard for the material removed."  (Emphasis supplied)

            The Oregon consent legislation is contained in section 274.590 of the Oregon Revised Statutes and goes only so far as to authorize the Oregon State Land Board to enter into an agreement with the Washington authorities to collect royalties "* * * or other revenues for the taking of sand, gravel or other material from the bed of the Columbia River * * *."  The Oregon State Land Board, having no authority to sell gravel for cash and having only the authority to contract with the Washington authorities on a royalty basis, the legislature of the State of Washington authorized the Washington authorities to enter into an agreement with the Oregon authorities which would contemplate the sale of gravel from the Columbia River where it forms the boundary between the states on a royalty basis.

            RCW 79.12.120, insofar as it requires payment of the full purchase price of gravel sold separate from state lands, is modified by the amendment of 1929  [[Orig. Op. Page 5]] which is contained in RCW 79.12.100, so as to provide for a sale on a royalty basis of gravel taken from the Columbia River where it forms the boundary between the States of Oregon and Washington.

            You are advised that the requirement of RCW 79.12.120 as to cash payment still exists as to gravel sold separate from the land proposed to be taken from the beds of all navigable rivers of the State of Washington, including the Columbia, where that river does not form the boundary between the two states.

Respectfully,

DON EASTVOLD
Attorney General


E. P. DONNELLY
Assistant Attorney General

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