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AGLO 1979 No. 10 - February 09, 1979
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF NATURAL RESOURCES ‑- FOREST ‑- FIRE ‑- FUNDING STATE FOREST FIRE PROTECTION PROGRAM

The State Department of Natural Resources may not expend monies from the Resource Management Cost Account or the Forest Development Account, over and above payment of fire patrol assessments under RCW 76.04.360, to fund the costs of the Forest Fire Protection Program provided for in chapter 76.04 RCW.

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                                                                 February 9, 1979

Honorable Bert L. Cole
Commissioner of Public Lands
Public Lands Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1979 No. 10

Dear Sir:

            By letter previously acknowledged you requested our opinion on a question which we paraphrase as follows:

            May the State Department of Natural Resources expend monies from the Resource Management Cost Account or the Forest Development Account, over and above payment of fire patrol assessments under RCW 76.04.360, to fund the costs of the Forest Fire Protection Program provided for in chapter 76.04 RCW?

            We answer the foregoing question in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            First let us briefly describe the fire protection program provided for in chapter 76.04 RCW.  Under RCW 76.04.350, every owner of forest land in the state of Washington is required to furnish or provide adequate protection from the spread of fire during forest fire season.  An owner is defined by RCW 76.04.010 to mean the owner or person in possession of both publicly owned and privately owned forest land.  See, § 2, chapter 102, Laws of 1977, 1st Ex. Sess.

             [[Orig. Op. Page 2]]

            There is, however, also (in effect) a practical alternative to such individual compliance.  Under RCW 76.04.360 an owner of forest land who ". . . neglects or fails to provide adequate fire protection therefore . . ." thereby becomes covered by a statewide fire protection program afforded by the Department of Natural Resources in accordance with that statute.  This program, as it has developed over the years, now features aerial surveillance of forest land, the employment of fire suppression crews during fire season and the maintenance of fire access roads and of equipment for use by fire protection personnel.  And, as a matter of fact, the vast majority of forest land owners do not provide their own protection.  Therefore, they come under this coverage in return for which they each must pay a "forest patrol assessment."  This assessment is levied by the department on all forest lands covered by the protection program1/ including, specifically, forest lands owned or administered by the state itself.  Accord, § 1, chapter 102, Laws of 1977, 1st Ex. Sess., supra.  It is, however, a further historical fact that the annual costs of this state fire protection program (covering both public and private lands) have generally exceeded the revenues produced by the statutory forest patrol assessment under RCW 76.04.360,supra.  Accordingly, in past years the legislature has provided further funding for the program through biennial appropriations from the state general fund while, at the same time, also appropriating monies from two special accounts in the general fund‑-the resource management cost account and the forest development account‑-to pay the forest patrol assessments due with respect to state‑owned forest lands under the department's jurisdiction.

            Finally, it is also to be noted that the costs of this state program are determined on the basis of the total costs of protection of both state‑owned and private forest lands.  Those costs, however, are not directly incurred or attributed to individual parcels of land but, rather, are determined from a total cost standpoint.  With that in mind let us next turn to the substantive statutes which govern the use of monies in the resource management cost account and the forest development account.

            (1)The Resource Management Cost Account:

             [[Orig. Op. Page 3]]

            This account, in accordance with RCW 79.64.040, is made up of a percentage of the proceeds derived from the sale or lease of "public lands," a term which covers all publicly owned lands under the jurisdiction of the Department of Natural Resources except certain lands referred to as "state forest lands."  With respect to this account RCW 79.64.020 provides as follows:

            "A resource management cost account in the state general fund is hereby created to be used solely for the purpose of defraying the costs and expenses necessarily incurred by the department in managing and administering public lands and the making and administering of leases, sales, contracts, licenses, permits, easements, and rights of way as authorized under the provisions of this title.  Appropriations from the account shall be expended for no other purposes."  (Emphasis supplied)

            (2)The Forest Development Account:

            This account is provided for in RCW 76.12.110 as follows:

            "There is created a forest development account in the state general fund.  The state treasurer shall keep an account of all sums deposited therein and expended or withdrawn therefrom.  Any sums placed in the account shall be pledged for the purpose of paying interest and principal on the bonds issued by the board, and for the purchase of land for growing timber.  Any bonds issued shall constitute a first and prior claim and lien against the account for the payment of principal and interest.  No sums for the above purposes shall be withdrawn or paid out of the account except upon approval of the board."

            This same statute then further provides that:

            "Appropriations may be made by the legislature from the forest development account to the department of natural resources for the purpose of carrying on the activities of the department on state forest lands, lands managed on a sustained yield basis as provided for in RCW 79.68.040, and for reimbursement of expenditures that have been made or may be made from the resource management cost account in the management of state forest lands."

             [[Orig. Op. Page 4]]

            The forest development account consists of a portion of the proceeds derived from the sale of timber on state forest lands.2/   Those lands are differentiated from public lands and are acquired under the provisions of chapter 76.12 RCW.

            We now come to the crux of the question you have posed.  As a part of the omnibus appropriations act for the current, 1977-79 biennium, the legislature made the following line item appropriations to the Department of Natural Resources:

            "General Fund‑-Resource Management

  Cost Appropriation   $ 34,075,000

            "General Fund‑-Forest Development

  Account Appropriation   $  9,582,000"3/

             According to your letter, however, both of these amounts are substantially in excess of what was required to cover only such expenditures from the two accounts (during the biennium) as are within the contemplation of RCW 79.64.020 and RCW 76.12.110, supra, including the payment of forest patrol assessments imposed with respect to state‑owned public lands or state forest lands.  Conversely, a corresponding reduction was apparently made in the department's proposed general fund appropriation for fire protection services, i.e., the recurring general fund appropriation above noted which ordinarily covers the difference between the total costs of the fire protection program and the lesser amount produced by forest patrol assessments.  As a consequence, the question which has arisen is whether this differential is properly to be funded with monies in the resource management cost account and the forest development account within the confines of the above‑quoted appropriations therefrom.  We must, as indicated at the outset, answer in the negative.

            Under RCW 79.64.020,supra, the resource management cost account is to be used for the sole purpose of paying the necessary expenses of managing and administering those public lands referred to in RCW 79.64.040.  And, by the same token, the forest development account, which is derived from the proceeds of timber sales on state forest lands is to be used only (a) for the purpose of paying interest and principal on certain bonds issued by the Board of Natural Resources, (b) for the purchase of land for growing timber or, pursuant to legislative appropriation, (c) ". . . for the purpose of carrying on the activities of the department on county trust and fee title forest  [[Orig. Op. Page 5]] board lands."  The appropriation act, as contained in chapter 339, Laws of 1977, 1st Ex. Sess.,supra, in no way purported to amend those statutes or any other substantive statutes relating to the authorized uses of monies in either of those accounts.  In fact, as you will note, the above quoted language of the appropriations act is entirely silent with regard to the purpose or purposes for which the two noted appropriations were made.  Moreover, according to the recent decision of our state Supreme Court in Flanders v. Morris, 88 Wn.2d 183, 558 P.2d 769 (1977):

            ". . . An appropriation bill may not constitutionally be used for the enactment of substantive law which is in conflict with the general law as codified. . . ."4/

             In short, by definition, an appropriation is not substantive legislation but, instead, it merely represents a setting aside of funds within the state treasury for some purpose authorized by independent substantive law.  See also, out letter opinion of December 14, 1966, to the then state budget director (copy enclosed) and cases cited therein.  It therefore follows, for the foregoing reasons, that your question, as above paraphrased, must be answered in the negative.

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

Very truly yours,

SLADE GORTON
Attorney General

PHILLIP H. AUSTIN
Deputy Attorney General

THEODORE O. TORVE
Senior Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Presently at the rate of 18¢ per acre west of the Cascade Mountains and 14¢ per acre east of the Cascades.   See, RCW 79.04.360.

2/See RCW 76.12.030 and RCW 76.12.120

3/Section 84, chapter 339, Laws of 1977, 1st Ex. Sess.

4/This ruling was based in part on the "double subject" prohibition in Article II, § 19, of our state constitution and in part on Article II, § 37, which provides that:

            "No act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth at full length."

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