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AGLO 1981 No. 27 - October 20, 1981
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

APPROPRIATIONS ‑- LEGISLATURE ‑- LANDS ‑- RECREATION ‑- USE OF LANDS ACQUIRED WITH CERTAIN APPROPRIATION

In view of the source of the appropriation involved it would be improper for the state to purchase the Milwaukee Railroad right-of-way and existing bridges from Easton in Kittitas County to Tekoa in Whitman County, in accordance with § 17, chapter 143, Laws of 1981, with the present intent or plan to use the subject property for a purpose other than recreation; however, based upon a material change of circumstances following its acquisition, justifying a corresponding change in use, it would be permissible for the legislature to authorize such an ensuing change in use of the land.

                                                                 - - - - - - - - - - - - -

                                                                October 20, 1981

Honorable Otto Amen
Speaker Pro Tempore
House of Representatives
Route 1, Box 45
Ritzville, Washington 99169                                                                                                               Cite as:  AGLO 1981 No. 27

Dear Sir:

            By letter previously acknowledged you directed our attention to a certain item in the capital budget for the 1981-83 biennium; namely, so much of § 17, chapter 143, Laws of 1981 as appropriates $3,500,000 from the Outdoor Recreation Account of the General Fund to the Department of Natural Resources for the following stated purpose:

            "Acquire the Milwaukee Railroad right-of-way and existing bridges from Easton in Kittitas County to Tekoa in Whitman County."

            You then requested our opinion on the following two questions:

            "1. How can the right-of-way be used when purchased with ORA funds?

            "2. If the DNR purchases the right-of-way, can the use then be changed, and, if so, can that be done by DNR or does this take legislative action?"

             [[Orig. Op. Page 2]]

            We answer these questions in the manner set forth in our analysis.

                                                                     ANALYSIS

            The critical point to be noted, at the outset, is that the appropriation involved is not merely from the General Fund but, instead, it is from the Outdoor Recreation Account of the General Fund.  This account was originally created by § 6 of Initiative No. 215 (chapter 5, Laws of 1965) following approval thereof by the voters at the November, 1964, general election.  As later amended by § 1, chapter 62, Laws of 1967, 1st Ex. Sess., and now codified as RCW 43.99.060, that section reads in material part as follows:

            "There is created the outdoor recreation account in the general fund, in which shall be deposited all moneys received from the marine fuel tax refund account pursuant to RCW 43.99.070, the proceeds of the bond issue authorized by chapter 12, Laws of 1963, extraordinary session, and any moneys made available to the state of Washington by the federal government for outdoor recreation not specifically designated for another fund or agency.

            ". . ."

            Each of these original sources of the account, in turn, involved monies which were intended to be used only for the acquisition and development of recreational facilities.  Thus, for example, chapter 12, Laws of 1963, 1st Ex. Sess., was a bond referendum bill submitted to the voters pursuant to Article VIII, § 3 of the State Constitution at the same 1964 election ". . .  for the purpose of providing funds for the development of outdoor recreational facilities in this state, . . .".  And thereafter, likewise, other proceeds of various later bond issues for the same general purposes were placed in the account as well.  See,e.g., § 7, chapter 126, Laws of 1967, 1st Ex. Sess. (RCW 43.99A.070); § 4, chapter 129, Laws of 1972, 1st Ex. Sess. (RCW 43.83C.040); § 3, chapter 229, Laws of 1979, 1st Ex. Sess. (RCW 43.99B.014); and finally, § 2, chapter 236, Laws of 1981 (as yet uncodified), by which the legislature authorized the issuance and sale of still more state general obligation bonds "[f] or the purpose of providing funds for the  [[Orig. Op. Page 3]] acquisition and development of outdoor recreational areas and facilities in this state, . . ."1/

             Although this fact is not stated in your letter we are informed, and have verified, that the $3,500,000 appropriation here in question will involve, specifically, the expenditure of proceeds derived from the sale of series AG-1 of this last-noted, 1981, bond issue, the sale of which occurred in New York on September 1, 1981.

            With the foregoing in mind, let us now turn, directly, to your questions.

            Question (1):

            First you asked:

            "How can the right-of-way [i.e., the Milwaukee Railroad property referred to in § 17(21), chapter 143,supra] be used when purchased with ORA funds?"

            In view of the above‑described sources of the Outdoor Recreation Account, and particularly, the source with which this appropriation is funded, we must conclude as follows:  In appropriating those monies from that account to fund the acquisition of this property, the legislature must be deemed to have intended that it be acquired for development and use as a recreational facility of some kind.  It would therefore be improper, in our opinion, for the property to be purchased with those monies with the present intent or plan to use it for some other purpose‑-such as, in the words of your letter, ". . . a pipeline corridor."

            Question (2):

            Next you inquired:

            "If the DNR purchases the right-of-way, can the use then be changed, and, if so, can that be done by DNR or does this take legislative action?"

             [[Orig. Op. Page 4]]

            The foregoing answer to your first question, however, does not mean that the subject property could never thereafter be used for anything other than recreation.  Quite possibly, changed circumstances following its acquisition might later justify a corresponding change in use.  But, in that event, we think it would be necessary for the legislature to act, and expressly authorize the change, rather than leaving the decision to the administrative agency authorized to develop and maintain the facility or area.2/   State agencies have only those powers which have been granted to them by the legislature, either expressly or by necessary implication.  Accord,State ex rel. Holcomb v. Armstrong, 39 Wn.2d 860, 239 P.2d 545 (1952).  Therefore, for the agency involved to act without legislative authorization to use the property for a purpose other than that for which the legislature must be deemed to have intended‑-by funding its purchase through the Outdoor Recreation Account‑-could quite possibly result in a successful legal challenge.

            It is also important to note and emphasize that we are, at this point, speaking of asubsequent change in use of the property based on changed circumstances occurring after its acquisition.  Conversely, we are not here considering a purported legislative change in the permissible use of monies in the Outdoor Recreation Account, derived from the sale of bonds issued pursuant to chapter 236, Laws of 1981, supra, prior to their expenditure.  If, instead, you were here asking us about the viability of legislation aimed at allowing those monies,perse, to be expended for such an "other" purpose we would have to be considerably more circumspect in our response.  Particularly, in that case, we would have to direct your attention to the requirement of Article VIII, § 1 (Amendment 60) of our State Constitution that:

            ". . .

            "(h) The legislature shall prescribe all matters relating to the contracting, funding or refunding of debt pursuant to this section,  [[Orig. Op. Page 5]] including:  The purposes for which debt may be contracted; by a favorable vote of three‑fifths of the members elected to each house, the amount of debt which may be contracted for any class of such purposes; the kinds of notes, bonds, or other evidences of debt which may be issued by the state; and the manner by which the treasurer shall determine and advise the legislature, any appropriate agency, officer, or instrumentality of the state as to the available debt capacity within the limitation set forth in this section.

            ". . ."  (Emphasis supplied.)

            We trust that the foregoing will be of assistance to you.

Very truly yours,

KENNETH O. EIKENBERRY
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/See, § 1, chapter 236, Laws of 1981.

2/We also note, at this point, that the legislative authorization for expenditure of the subject funds by the Department of Natural Resources is solely for the acquisition of the right-of-way and not for its later development, use or maintenance.   Quite possibly, therefore, that responsibility would be vested in some other agency such as (for example) the state Parks and Recreation Commission by legislation not yet enacted.

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