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AGLO 1972 No. 092 - December 18, 1972
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Slade Gorton | 1969-1980 | Attorney General of Washington
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                                                               December 18, 1972
 
 
 
Honorable Paul A. Klasen
Prosecuting Attorney
Grant County Courthouse
"C" Street N.W.
Ephrata, Washington 98823
                                                                                            Cite as:  AGLO 1972 No. 92 (not official)
 
 
Dear Sir:
 
            This is in answer to your letter previously acknowledged requesting our opinion on certain questions which we paraphrase as follows:
 
            (1) When a county elects under RCW 77.12.201 to relinquish to the state all fines and bail forfeitures collected for game law violations and instead to receive payments in lieu of taxes on game lands located therein ‑
 
            (a) Do the provisions of chapter 3.62 RCW apply so as to cause a portion of such fines and forfeitures nevertheless to remain with the county to pay the expenses of its district justice court?
 
            (b) Are such payments in lieu of taxes to be made on any buildings or facilities not situated on game lands?
 
            (c) Are such payments in lieu of taxes to be made on buildings or facilities situated on public fishing areas of less than 100 acres in size?
 
            (2) In determining whether a public fishing area is less than 100 acres in size, so as to be excluded from payments in lieu of taxes under RCW 77.12.203, are water areas adjacent to a designated launching area to be included?
 
            We answer question (1) (a) in the affirmative; questions (1) (b) and (c) and question (2) are answered in the negative.
 
             [[Orig. Op. Page 2]]
                                                                     ANALYSIS
 
            RCW 77.12.200 authorizes the director of the state department of game, with the approval of the game commission, to
 
            ". . . acquire by gift, purchase, lease or condemnation, lands, buildings, waters, or other necessary property for hatchery sites, eyeing stations, rearing ponds, brood ponds, trap sites, game animal, furbearing animal, game bird, nongame bird and game fish farms, habitats and sanctuaries and public hunting and fishing areas together with rights of way for access to any and all such lands, buildings, or waters so acquired, in the manner provided by law for acquiring property for public use: . . ."
 
            Once so acquired, such properties become exempt from property taxation under Article VII, § 1 (Amendment 14) to the state Constitution and RCW 84.36.010, along with all other property belonging to the state of Washington.  However, by its enactment of RCW 77.12.201 (codifying § 2, chapter 97, Laws of 1965, Ex. Sess.), the legislature has provided that:
 
            "The board of county commissioners of each county may elect, upon written notice given to the director prior to January 1st of any year, to obtain for the following year an amount in lieu of real estate taxes on game lands equal to that which would be paid on similar parcels of real estate situated in the county.  Upon such election the total of all fines and bail forfeitures received by the county during the following year under RCW 77.12.170 shall be transmitted to the director.  The election shall continue until the game department is notified differently prior to January 1st of any year."
 
            See, also, RCW 77.12.203, which provides that:
 
            "Notwithstanding the provisions of RCW 84.36.010 or any other statute to the  [[Orig. Op. Page 3]] contrary, the director is hereby authorized and directed to pay on all game lands in each county of the state, if requested pursuant to an election made under RCW 77.12.201, an amount, in lieu of real property taxes, equal to that which would be paid on similar parcels of real property subject to real property taxes:  Provided, That no in lieu of tax payment shall be assessed or paid on any building structures or constructed facilities owned by the state for the department and situated on game lands nor shall any tax payment be paid on any game farm, fish hatchery or tidelands, nor on any public fishing area of less than one hundred acres in size.
 
            "Game lands, as used in this section, shall mean only such tracts one hundred acres or larger in size owned in fee by the state for the department and used for the purpose of wildlife habitat and public fishing and hunting.
 
            "The director shall have any and all rights of appeal and adjustment of any taxes or assessments as would any other owner of real property subject to taxation and assessment.
 
            "Upon an election being made by the board of county commissioners to receive an amount in lieu of real property taxes, the county assessors shall enter the property upon the real property tax rolls and the amount due in lieu of taxes shall be paid by the department upon statements being sent by the county treasurers in the same manner as statements for taxes on the general real property of the counties."
 
             [[Orig. Op. Page 4]]
            Question (1) (a):
 
            All of your questions assume the making of the election authorized by RCW 77.12.201, supra, by your board of county commissioners.  In such a case you first inquire whether the provisions of chapter 3.62 RCW will continue to apply so that a portion of the fines and bail forfeitures collected for game law violations by the district justice court in your county will remain with the county to pay the expenses of this court.
 
            Chapter 3.62 RCW is a part of the 1961 justice court act ‑ chapter 299, Laws of 1961, as amended.  This portion of the act deals with the income of district justice courts and the allocation and distribution thereof.  First to be noted in responding to your question is RCW 3.62.020, which states that:
 
            "All fees, fines, forfeitures and penalties assessed by district courts, except fines, forfeitures and penalties assessed and collected because of the violation of city ordinances, shall be collected and remitted by the clerk of the district court to the county treasurer at least monthly, together with a financial statement as required by the division of municipal corporations, noting the information necessary for crediting of such funds as required by law.  The county treasurer shall place these moneys into the justice court suspense fund."
 
            Next to be noted is RCW 3.62.050, which provides that quarterly disbursements of these funds be made as follows:
 
            "Quarterly, the county treasurer shall determine the total expenditures of the justice courts, including the cost of providing courtroom and office space and including the cost of probation and parole services and any personnel employment therefor.  The treasurer shall then transfer an amount, equal to the total expenditures, from the justice court suspense fund to the current expense fund.  The treasurer shall then, using the percentages established as in RCW 3.62.015 provided remit the appropriate amounts of the remaining balance in the justice court suspense fund to the  [[Orig. Op. Page 5]] state general fund and to the appropriate city treasurer(s) [[treasurer or treasurers]].  The final remaining balance of the justice court suspense fund shall then be remitted as specified by the county commissioners."
 
            Similarly, RCW 3.62.055 provides that:
 
            "Quarterly, the state treasurer, using RCW 3.62.015, shall calculate the appropriate amounts to be transferred to each appropriate state fund."
 
            Turning next to RCW 3.62.015, to which reference is made in these two last quoted statutes, we find the following directive to the state auditor:
 
            "The state auditor shall establish distribution percentages for use by the county treasurer and state treasurer in remitting justice court income, except for (1) fines, forfeitures, and penalties assessed and collected because of the violation of city and/or county ordinances and (2) fees and costs assessed and collected because of a civil action.  . . .  Percentages shall be established for each state fund, now receiving justice court income, by determining the average percentage of justice court income that each fund has received from the total income remitted to the state by the counties for this period of time, except that any state fund receiving less than five hundred dollars each year for the two years 1967 and 1968 shall not have a percentage established for it and the amounts of income in such situation shall be added to the amounts remitted to the state general fund for the purpose of calculating average distribution percentages."
 
            Under these statutes, the last two of which were added to the original 1961 justice court act by chapter 199, Laws of 1969, Ex. Sess., it is to be seen that a  [[Orig. Op. Page 6]] portion of all fines and forfeitures collected by a district justice court are to be used to defray the operating expenses of that court ‑ with only so much of these revenues as are not needed for this purpose going on to other funds or uses, either at the local or state levels depending upon the nature of the particular fine or forfeiture.  Your question, in essence, is whether this remains so as to fines or forfeitures for game law violations even where the county concerned has elected to relinquish its share of these revenues and to take payments from the state in lieu of property taxes instead, as authorized by RCW 77.12.201, supra.
 
            RCW 77.12.170 establishes the state game fund and covers the disposition of related fees, fines, forfeitures and penalties.  As amended by § 33, chapter 199, Laws of 1969, Ex. Sess. ‑ the same act as produced the two additions to chapter 3.62 RCW which are now codified as RCW 3.62.015 and 3.62.055, supra ‑ this statute provides that:
 
            "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, 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.
 
            "All state and county officers receiving any moneys in payment of fees for licenses under this title, or in payment of fines, penalties, or costs imposed 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; from rentals or concessions,  [[Orig. Op. Page 7]] and from the sale of real or personal property held for game department purposes, shall pay them into the state treasury to be placed to the credit of the state game fund:  Provided, That county officers shall remit only fifty percent of all fines and bail forfeitures:  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."  (Amendatory language underscored)
 
            It appears clear to us from the two identical provisos which were added to this statute by chapter 199, supra, that the legislature intended the provisions of chapter 3.62 RCW to apply to all fines, forfeitures or penalties assessed by a justice court for game law violations, regardless of whether the net proceeds of these revenues after payment of justice court expenses under RCW 3.62.050, supra, are to be paid partly to the county in which collected and partly to the state, or are to be paid entirely to the state because of an election made by the county under RCW 77.12.201, supra.  Accordingly, we answer question (1) (a), as above paraphrased, in the affirmative.
 
            Question (1) (b) and (c):
 
            RCW 84.36.010 exempts all property belonging to the state from taxation.  Thus, prior to the enactment of RCW 77.12.203, neither game department land, nor game department buildings and constructed facilities on such lands, nor any game department buildings or constructed facilities not on game department lands were subject to taxation.
 
            Insofar as taxation per se is concerned, this is still so ‑ of constitutional necessity.  However, by its enactment of RCW 77.12.203, the legislature has provided for payments "in lieu" of taxes in those cases where the county in which "game lands" are located has made the election contemplated by RCW 77.12.201.  The term "game lands" is defined for this purpose by RCW 77.12.203 as meaning
 
            ". . . only such tracts one hundred  [[Orig. Op. Page 8]] acres or larger in size owned in fee by the state for the department and used for the purpose of wildlife habitat and public fishing and hunting."
 
            It is thus quite clear then that payments "in lieu" of taxes are only applicable to "game lands" as such are defined in the statute.  All other game department property remains exempt from taxation under RCW 84.36.010, and excluded from "in lieu" tax payments by their exclusion from this definition.


 
            Subparts (b) and (c) of your first question are, therefore, both answerable in the negative.  Neither of the categories of buildings or facilities referred to therein are situated on "game lands" ‑ in the case of (b) because of the terms of your question itself and in the case of (c) because of the exclusion of tracts of less than 100 acres from the definition of "game lands."  Therefore, neither are subject to payments in lieu of taxes under the subject legislation.
 
            Question (2):
 
            The statute expressly refers to "game lands" and not to waters.  The only lands subject to payments in lieu of taxation under RCW 77.12.203 are those "game lands" one hundred acres or larger in size owned in fee.  By the acquisition of a public fishing area adjacent to a body of water, the Department of Game does not acquire any legal property interest in adjacent waters.1/
 
             [[Orig. Op. Page 9]]
            Accordingly, we answer question (2), as paraphrased above, in the negative.
 
Very truly yours,
 
SLADE GORTON
Attorney General
 
 
Philip H. Austin
Deputy Attorney General
 
 
James E. Cufley, Jr.
Assistant Attorney General
 
 
                                                         ***   FOOTNOTES   ***
 
1/RCW 93.03.010 provides that all waters belong to the state.  This statute does not purport to grant any ownership interest to the Game Department.  Obviously, game lands adjacent to waters would acquire littoral or riparian rights as may be allowed by law but, in our view, this does not affect the conclusion reached.  See:  Snively v. Jaber, 48 Wn.2d 815, 296 P.2d 1015 (1956), and Botton v. State, 69 Wn.2d 751, 420 P.2d 352 (1966) for a discussion of the extent of these littoral and riparian rights.
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