OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF GAME ‑- APPROPRIATIONS ‑- EFFECT OF APPROPRIATIONS TO PAY LEGAL COSTS ASSOCIATED WITH CERTAIN FLOOD CONTROL DISTRICT LITIGATION
Analysis and discussion of the effect of so much of § 90, chapter 270, Laws of 1979, 1st Ex. Sess., as appropriated $42,000 from the State Game Fund to defray legal costs associated with the construction and operation of a regulating structure stabilizing the level of water in Silver Lake.
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January 29, 1980
Honorable Ralph W. Larson
Department of Game
600 North Capitol Way
Olympia, Washington 98504 Cite as: AGLO 1980 No. 8
By recent letter you briefly outlined certain facts relating to an apparently successful inverse condemnation lawsuit by certain landowners against the Silver Lake Flood Control District in Cowlitz County. Although the Department of Game, as an owner of property within the flood control district and thus a member of the district, was also named as a defendant in the lawsuit, you advised us that the judgment therein, as entered by the Court, runs only against the flood control district itself and not against the department or any other defendants. The amount of the judgment, including attorneys' fees awarded by the Court, is approximately $42,000.
In addition, your letter makes reference to so much of § 90, chapter 270, Laws of 1979, 1st Ex. Sess., the omnibus state appropriations act for the 1979-81 biennium, as reads as follows:
"FOR THE DEPARTMENT OF GAME
". . .
"Game fund Appropriation‑-State. $27,151,000
[[Orig. Op. Page 2]]
". . .
"The appropriations contained in this section shall be subject to the following conditions and limitations:
"(1) $42,000 of the state game fund‑-state appropriation shall be transferred to the Silver Lake flood control district in Cowlitz county to defray legal costs associated with construction and operation of a regulating structure stabilizing the level of water in Silver Lake.
". . ."
With the foregoing in mind, you have requested our opinion on the following specific question:
"I respectfully request an opinion as to whether the Game Department is required to pay either directly or through the Flood Control District the whole of that judgment or only a proportionate share of all costs and any legal expenses incurred by the Flood Control District up to the $42,000."
If this is truly your question, our direct answer, based upon the facts you have given us, is as follows: Since the judgment in question runs only against the Silver Lake Flood Control District, and not against the Department of Game, the department is not liable as a judgment debtor for the payment of any portion thereof. That is so even though the department, along with other property owners within the flood control district, could well be liable to the district for the payment of assessments imposed pursuant to RCW 86.09.382,et seq. if and when the district, in order to pay the judgment or for any other authorized reason, determines to impose such assessments. As we understand it, however, no such assessments have yet been levied.
From your reference to the appropriation item contained in § 90, chapter 270,supra, however, we surmise that you are either actually, or additionally, interested in knowing what our answer would be to a somewhat different question;i.e., the effectiveness and viability of so much of that appropriation as provides (once again, for ease of reference) that:
[[Orig. Op. Page 3]]
"(1) $42,000 of the state game fund‑-state appropriation shall be transferred to the Silver Lake flood control district in Cowlitz county to defray legal costs associated with construction and operation of a regulating structure stabilizing the level of water in Silver Lake."
In view of the factual background above outlined, we would think it safe to assume that although this appropriation item does not, and could not, cause the Department of Game itself to become subject to the plaintiff's inverse condemnation judgment (for only the court which entered that judgment could do that), its purpose is to fund the district's payment of that judgment with monies from the state game fund. The issue thus raised is whether that may be said to be a legally permissible use of game fund monies.
If that is the question you are actually asking, our answer, in brief outline form, would be as follows:
(1) The legislature may not, by the mere act of appropriating monies from a particular fund, amend the substantive statutes governing the manner in which money in that fund may be used. Accord, our letter opinion of October 3, 1979, to State Senator Hubert Donohue, copy enclosed, relating to another recent appropriation to the State Parks and Recreation Commission for the purchase of certain land‑-citing and relying onFlanders v. Morris, 88 Wn.2d 183, 558 P.2d 769 (1977);
(2) However, only a portion of the state game fund is presently limited or restricted to uses with which § 90(1), chapter 270, supra, would be in conflict, namely, so much of the game fund as consists of ". . . funds accruing to the state from hunting and fishing license fees . . ."1/ and [[Orig. Op. Page 4]] of personalized vehicle license fees.2/
(3) But in addition to those two categories of fees, the state game fund currently consists of certain other significant revenue sources as well. See, RCW 77.12.170 which reads, in material part, as follows:
"There is established in the state treasury a fund to be known as the state game fund which shall consist of all moneys received from fees for the sale of licenses and permits provided in this title, from fees for the recovery of reasonable costs of publication of informational materials by the department, from the personalized vehicle license plate fees provided in chapter 46.16 RCW, and from fines, forfeitures, and costs collected for violations of this title, or any other statute for the protection of wild animals and birds and game fish, or any rule or regulation of the commission relating thereto: PROVIDED, That fifty percent of all fines and bail forfeitures shall not become part of the state game fund and shall be retained by the county in which collected: PROVIDED FURTHER, That all fees, fines, forfeitures and penalties collected or assessed by a justice court because of the violation of a state law shall be remitted as provided in chapter 3.62 RCW as now exists or is later amended.
". . ."
(4) Insofar as ". . . fines, forfeitures, and costs collected for violations of . . . [the state game code] or any other statute for the protection of wild animals and birds and game fish, . . ." are concerned, there is presently no substantive statute, comparable to RCW 77.12.190,supra, which purports to restrict or limit the Department of Game's use of those monies;
[[Orig. Op. Page 5]]
(5) Nor is there any such limiting statute regarding the use of ". . . fees for the recovery of reasonable costs of publications, etc. . . ."
What all of this necessarily leads to is a necessity for some form of accounting to determine the extent to which the state game fund presently consists of restricted monies. To the extent that this accounting shows a balance in the game fund from the two categories of unrestricted revenue sources alone in an amount sufficient to fund the appropriate item here in question, that appropriation should be deemed by the department to be legally effective and appropriately honored. On the other hand, in view of the substantive statutory restrictions contained in RCW 77.12.190 and RCW 77.12.175, supra, it follows that neither of the other two above‑noted revenue sources may be used, or transferred to the Silver Lake Flood Control District for its use, for the purposes specified in the appropriation.
We trust that the foregoing will be of assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/See, RCW 77.12.190 which reads as follows:
"No funds accruing to the state from hunting and fishing license fees shall be diverted to any other purpose than the protection, propagation, and restoration of wildlife and game and the expenses of administration of the department."
2/As interpreted by this office at the time of our preparation of the official ballot title and explanatory statement for Referendum Bill 33 (chapter 200, Laws of 1973, 1st Ex. Sess.), providing for the issuance of personalized vehicle license plates, RCW 77.12.175 (codifying § 1 of the referendum bill) requires that all personalized vehicle license fees ". . . be used exclusively for wildlife preservation."