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AGLO 1970 No. 113 - September 29, 1970
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Slade Gorton | 1969-1980 | Attorney General of Washington
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                                                               September 29,1971
Honorable Granville Egan
Prosecuting Attorney
Ferry County
Republic, Washington 99166                                                        Cite as:  AGLO 1971 No. 113 (not official)
Dear Sir:
            By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:
            Does a board of county commissioners have the authority to consent to an acquisition of non-Indian land by the United States Secretary of the Interior in accordance with the provisions of Public Law 84-772, where the transaction in question, if consummated, will result in removal of the acquired land from the property tax rolls?
            We answer your question in the negative for the reasons set forth below.
            Public Law 84-772 (70 Stat. 626) was enacted by the United States Congress in 1956.  Sections 2 and 3 of this act are pertinent to your question, and read as follows:
            Section 2:
            "For the purpose of effecting land consolidations between the Colville Indians and non-Indians in Ferry and Okanogan Counties, the Secretary of the Interior is hereby authorized, with the consent of the tribal council as evidenced by a resolution adopted in accordance with the constitution and bylaws of the tribe, under such regulations as he may prescribe, to sell or exchange tribal lands in connection with the acquisition of lieu lands, and to acquire through purchase, exchange, or relinquishment, lands or any interest in lands, water rights, or surface rights.  The acquisition of lands pursuant to this Act shall be  [[Orig. Op. Page 2]] limited to lands within the boundary of the reservation.  Exchanges of lands, including improvements thereon, shall be made on the basis of approximate equal value.  In carrying out the provisions of this Act, if non-Indian lands are involved the board of county commissioners of counties in which land is located shall by proper resolution consent before such non-Indian land is acquired for the tribe or an individual Indian.  No lands or interests in lands owned by the Confederated Tribes of the Colville Reservation shall be subject to disposition hereafter without the consent of the duly authorized governing body of the tribes, and no lands or interests in lands shall be acquired for the tribes without the consent of the said governing body."
            Section 3:
            "Title to lands or any interest therein acquired pursuant to this Act shall be taken in the name of the United States of America in trust for the tribe or individual Indian and shall be nontaxable as other tribal and allotted trust Indian lands of the Colville Reservation."
            Of course, once a tract of real property is removed from the tax rolls in this state, it ceases to be a source of property tax revenue not only for the county but for the state and the various municipal corporations or special purpose taxing districts in which it is located, as well.  See, RCW 84.52.010 ‑ 84.52.050; cf., AGO 57-58 No. 96 [[to Prosecuting Attorney, Yakima County on July 10, 1957]], copy enclosed.  Aside from its own portion of these revenues the county simply serves as the collecting agency for these other taxing units ‑ as generally provided for in chapter 84.56 RCW.  Thus, the consequence of an acquisition of non-Indian land by the Secretary of the Interior under § 2 of Public Law 84-772 will be a net tax loss to all of the taxing units in which the land is located, unless in the particular case it should be exchanged for Indian land of equal value located in the same area.  We may at least speculate that, in all likelihood, it was because of this consequence that the Congress expressed its intent that the consent of the board of county commissioners of the county in which a particular tract of land is located is to be obtained before the land is to be acquired by the Secretary of the Interior under the provisions of this federal legislation.
             [[Orig. Op. Page 3]]
            Your question is whether a board of county commissioners in this state may be said to have the authority to grant this requisite consent.  In responding to this question, we note, first, the basic proposition that the county is a political subdivision of the state, and as such, is generally regarded as having only such powers as have been expressly granted to it by our state constitution or by the legislature, or such powers as are necessarily to be implied from any powers thus expressly granted.  Accord, State ex rel. Bain v. Clallam Cy. Bd., 77 Wn.2d 542, 463, P.2d 617 (1970); State ex. rel. King County v. Superior Court, 33 Wn.2d 76, 204 P.2d 514 (1949).  Moreover, this general rule of strict construction is particularly applicable where the public treasury is directly affected.  State ex rel. Bain v. Clallam Cy. Bd., supra; State ex rel. Thurston County v. Dept. of L. & I., 167 Wash. 629, 9 P.2d 1085 (1932).
            We have carefully researched our own state constitution and statutes, with particular reference to any which may have been enacted by our state legislature during the several sessions immediately following the enactment of Public Law 84-772, supra.  However, we have found no such provision which may be said to grant any power to a board of county commissioners to authorize an acquisition of currently taxable real property by the United States Secretary of the Interior where (as here) such acquisition will have the effect of removing the property from the tax rolls.
            In addition to this review of our own state laws, we have also considered the possible argument that Public Law 84-772, itself, might be regarded as a source of authorization for your board of county commissioners.  However, we have found no authority establishing that an act of Congress alone may vest a board of county commissioners with discretionary powers of the type here involved.  Federal cases which we have discovered affirm the general proposition that counties and their various boards of county commissioners derive their powers from the constitution and the statutes of the sovereign state in which they are located, and not from an act of the United States Congress.  See, Alameda County v. United States, 124 F.2d 611 (9th Cir. 1941); Walker v. Flemont Oil Corporation, 136 F. Supp. 584 (D.C. W.D. Ky. 1955).  Furthermore, referring to counties generally, the United States Supreme Court,  [[Orig. Op. Page 4]] quoting from Hunter v. Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151 (1907), recently said that:
            ". . . the 'number, nature and duration of the powers conferred upon [them] . . . and the territory over which they shall be exercised rests in the absolute discretion of the State.'"  (Emphasis supplied.)  Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964).
            In this connection we are aware, of course, of the Supreme Court's decision in Tacoma v. Taxpayers, 357 U.S. 320, 78 S.Ct. 1209, 2 L.Ed.2d 1345 (1958), reversing a holding by our own state supreme court (49 Wn.2d 781, 307 P.2d 567) that the city of Tacoma did not have the power and capacity to condemn state‑owned lands previously dedicated to a public use under state statutes, and could not receive such power and capacity from a license granted by the Federal Power Commission.  Subsequently, the judgment entered by our supreme court, in accordance with the mandate of the United States Supreme Court, read in pertinent part as follows:
            "'1. The United States has exclusive and paramount jurisdiction over navigable waters, under the commerce clause of the United States Constitution, and, therefore, any State laws are inapplicable to the Mayfield and Mossyrock [Cowlitz dams] Hydroelectric Project insofar as the same conflict with the provisions of the Federal Power Act or the terms and conditions of the appellant's license for said project, or which would enable the State of Washington or any State official thereof to exercise a veto over said project, . . .' (Italics ours.)"1/
             See, for a more detailed analysis, AGO 59-60 No. 18 [[to Dale M. Nordquist, State Senator on February 27, 1959]], copy enclosed.  See, also, Beezer v. Seattle, 60 Wn.2d 239, 373 P.2d 796 (1962); 60 Wn.2d 652, 375 P.2d 256 (1962); 62 Wn.2d 569, 383 P.2d 895 (1963); reversed by the United States Supreme Court in a per curiam opinion in 376 U.S. 224, 84 S.Ct. 709, 11 L.Ed.2d 656 (1964).

             [[Orig. Op. Page 5]]
            However, the subject matter of your present opinion request is readily distinguishable from that involved in this line of cases.  Unlike a preemptive license granted by the Federal Power Commission such as was there involved, the federal act here in question does not purport to authorize a board of county commissioners to do anything.  If it did, its language taken literally would be a command, not an authorization, and consequently would be a self-executing authorization for transfer without the necessity of any consent by a board of county commissioners.  Furthermore, notably, the federal act is not speaking of county owned lands, and thus the required "consent" is not that of the county in its proprietary capacity.  The "consent" of which the federal act speaks is the consent of the county commissioners which would amount to a discretionary act on their part authorizing the removal of such lands from the tax rolls.
            It is doubtful that such local governing body's consent would be constitutionally necessary as a condition for the exercise of Congressional power to acquire the lands in question.  Presumably Congress could authorize the taking of those lands through eminent domain proceedings, resulting in their removal from the state's tax rolls without county or state consent.  However, it did not.  Instead, Public Law 84-772, supra, requires previous consent by the county commissioners as a condition to the transfer.  Its effect is to give to the board of county commissioners a veto power.  The statute thus assumes, rather than attempting to grant, the requisite authority of the board of county commissioners to grant such consent.  Since the basis of that assumption does not presently exist, Public Law 84-772, is not presently effective in this regard.
            For these reasons, we believe that your question, as paraphrased, must be answered in the negative until, and unless, our own state legislature reacts to the present situation by enacting appropriate enabling legislation.
            It is hoped that the foregoing will be of assistance to you.
Very truly yours,
Assistant Attorney General
                                                         ***   FOOTNOTES   ***
1/See, 60 Wn.2d 66, 70, 71, 371 P.2d 938 (1962).
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