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AGO 1972 No. 2 - January 12, 1972
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- STATE ‑- PARKS AND RECREATION COMMISSION ‑- REGULATION OF VEHICULAR TRAFFIC ON OCEAN BEACHES

(1) The Washington state parks and recreation commission has the authority, under RCW 43.51.680, to regulate the times and places where automobiles may be driven on and along the ocean beach highways designated and established under RCW 79.16.130, RCW 79.16.160 and RCW 79.16.170.      

(2) The parks commission, in the exercise of this authority, may not totally exclude vehicular traffic from all such beaches at all times.

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

                                                                 January 12, 1972

Honorable Jonathan Whetzel
State Senator, 43rd District
Legislative Building
Olympia, Washington 98504

                                                                                                                   Cite as:  AGO 1972 No. 2

Dear Sir:

            By letter previously acknowledged you have requested our opinion on two questions pertaining to the authority of the Washington state parks and recreation commission with respect to the regulation of vehicular traffic on certain of our state's ocean beaches.  We paraphrase your question as follows:

            (1) Does the Washington state parks and recreation commission1/have the authority, under RCW 43.51.680, to regulate the times during which and places where automobiles may be driven on and along the ocean beach highways designated and established under RCW 79.16.130, RCW 79.16.160 and RCW 79.16.170?

            (2) If question (1) is answered in the affirmative, may the parks commission totally exclude vehicular traffic from all of such ocean beaches at all times?

             [[Orig. Op. Page 2]]   We answer question (1) in the affirmative and question (2) in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            As your questions deal with the operation and effect, and thus the interpretation, of a statutory provision, we will begin by setting forth in full the statutory language to be considered.  By its enactment of § 7, chapter 120, Laws of 1967, currently codified as RCW 43.51.680, the legislature amended a statute formerly designated as RCW 46.08.180, to read as follows:

            "For the protection and conservation of natural resources, and for the safety and enjoyment of the public using the beaches, the Washington state parks and recreation commission, after agreement with the Washington state highway commission, shall establish reasonable regulations for the use and control of vehicular traffic on and along the ocean beach highways as designated and established under RCW 79.16.130, 79.16.160, and 79.16.170.  The Washington state parks and recreation commission shall cooperate with county sheriffs and the state patrol in enforcing such traffic regulations:  Provided, That automobile driving shall be permitted on the beaches subject to the authority of the department of fisheries to prohibit driving over clam beds."2/

             [[Orig. Op. Page 3]]   The particular areas of our state's ocean beaches which are described in the three sections of chapter 79.16 RCW referred to in this statute are as follows:  From the mouth of the Queets River north to Cape Flattery (RCW 79.16.130); from the north side of the entrance to Grays Harbor to the mouth of the Queets River (RCW 79.16.160); and from the Columbia River to a point 300 feet southerly from the south line of the government jetty on Peterson's Point (RCW 79.16.170).

            Without the proviso appearing at the end of RCW 43.51.680, supra, this statute would clearly grant to the parks commission, after agreement with the state highway commission, the authority to do the following three things:

            (1) To provide by reasonable regulations for the use of vehicles on the ocean beaches ‑ that is, the time, place and manner in which vehicles may be used;

            (2) To establish reasonable traffic regulations regarding the areas where the use of vehicles is permitted; and

            (3) To cooperate with county sheriffs and the state patrol in enforcing such traffic regulations.

            The task facing us in answering your questions thus becomes that of determining the extent to which the subject proviso circumscribes this authority.  Unquestionably, the proviso must be given some restrictive effect with regard to the authority of the parks commission; it cannot be read out of the statute altogether.  Accord,Murray v. Dept. of Labor and Industries, 151 Wash. 95, 275 Pac. 66 (1929).  However, the issue which remains to be resolved in this opinion is the nature and extent of this effect.  Does the proviso mean that the parks commission, in regulating the use of automobiles on the ocean beaches, is nevertheless required to allow them to be driven on all areas of the beaches and at all times ‑ and that only the department of fisheries has the power totally to exclude automobiles from any portion of the beaches (i.e., clam beds)?  Or does it instead simply mean that in those instances where the parks commission allows automobile driving on designated areas of the beaches at specified times, the permission thus granted remains subject to the department of fisheries' authority to prohibit driving over clam beds?  And if the latter is the correct interpretation of the proviso, does it follow that the parks commission may totally exclude vehicular traffic from all  [[Orig. Op. Page 4]] of the ocean beaches to which its regulatory authority extends?

            Because we deem the proviso to be ambiguous with regard to these questions, we may properly turn to the applicable rules of statutory construction in order to resolve this ambiguity.  State v. Houck, 32 Wn.2d 681, 203 P.2d 693 (1949).  The first proposition to be noted in this regard is the underlying basis for statutory construction, most recently enunciated by our state supreme court inMiller v. McCamish, 78 Wn.2d 821, 828, 479 P.2d 919 (1971), as follows:

            "Clearly, statutory interpretation, effectuating the intent of the legislature, is a legitimate function of American courts.  Indeed, the interpretation and effectuation of legislative statutory enactments, to the fullest extent constitutionally permissible, is a paramount function of American courts of law."

            Consistent with this fundamental proposition, the basic objective of all statutory construction is to ascertain and give effect to the legislative intent, which is to be derived from the statute as a whole, and not from a single or isolated sentence or paragraph, or from solitary words.  Anderson v. Seattle, 78 Wn.2d 201, 471 P.2d 87 (1970); State ex rel. Tarver v. Smith, 78 Wn.2d 152, 470 P.2d 172 (1970); andAlderwood Water Dist. v. Pope & Talbot, 62 Wn.2d 319, 382 P.2d 639 (1963).  It is the duty of the courts to adopt a construction that is reasonable and in furtherance of the obvious and manifest purpose of the legislation which they are called upon to construe.  Wilson v. Lund, 74 Wn.2d 945, 447 P.2d 718 (1968).  Effect must be given to an entire statute, and courts should not place a narrow, literal and technical construction upon a part only of a statute and ignore other relevant parts.  State v. Rinkes, 49 Wn.2d 664, 306 P.2d 205 (1957).

            These, of course, are all general rules of construction.  In addition, there are certain well-recognized special rules dealing with construction of provisos which are pertinent here.  The first of these is that a proviso in a statute must be construed in light of the body thereof, and in such a manner as to carry out the legislature's intent as manifested  [[Orig. Op. Page 5]] in the entire act.  Western Mach. Exch. v. Grays Harbor Co., 190 Wash. 447, 68 P.2d 613 (1937).  Provisos operate as exceptions to the general terms of a statute.  Tatum v. Marsh Mines Consolidated, 108 Wash. 367, 184 Pac. 628 (1919).  Statutory exceptions, generally, should be strictly construed and all doubts should be resolved in favor of the general provisions, rather than the exceptions.  State v. Christensen, 18 Wn.2d 7, 137 P.2d 512 (1943).  And finally, the operation of a proviso is usually confined to a clause or distinct portion of the enactment which immediately precedes it, and does not extend to or qualify other sections, unless legislative intent that it shall so operate is clearly disclosed.  Bayha v. Public Utility District No. 1, 2 Wn.2d 85, 97 P.2d 614 (1939).

            These rules dictate that, to begin with in order to give proper effect to the proviso here under consideration, we must examine the entire legislative enactment, and not just a single isolated section, or the narrow language of one proviso.

            RCW 43.51.680 was enacted as a part of chapter 120, Laws of 1967, commonly known as the Seashore Conservation Act, now codified as RCW 43.51.650 through 43.51.685.

            RCW 43.51.650, after first stating in broad language the necessity for preserving the ocean beaches of our state as a public recreational area, provides, in part, as follows:

            ". . . Nonrecreational use of the beach must be strictly limited.  Even recreational uses must be regulated in order that Washington's unrivaled seashore may be saved for our children in much the same form as we know it today."

            RCW 43.51.665, which establishes the principles and purposes to be followed in administering the Seashore Conservation Area established by the act, directs the Washington state parks and recreation commission to ". . . administer the Washington State Seashore Conservation Act in harmony with the broad principles set forth in RCW 43.51.650. . . ."  The same section provides that, ". . .  All forms of public outdoor recreation shall be permitted and encouraged in the area,unless specifically excluded or limited by the commission. . . ."  (Emphasis supplied.)

             [[Orig. Op. Page 6]]   RCW 43.51.680, the section with which we are directly concerned, itself begins with the following language:

            "For the protection and conservation of natural resources, and for the safety and enjoyment of the public using the beaches, . . ."  (Emphasis supplied.)

            It seems clear then that the legislature, in enacting the Seashore Conservation Act, recognized not only the supreme recreational value of the state's ocean beaches, but also the fact that many competing uses can be found on the ocean beaches, certain of which conflict with one another.  In order best to protect the environmental and recreational assets of the state's ocean beaches, the legislature directed, and granted authority to the parks commission to establish a wise, reasoned and flexible program of administration throughout the area.  The authority granted includes the power to regulate, limit, or even exclude certain forms of recreational activity where such limitations or exclusions are deemed necessary or essential by the commission.  One factor which the commission is mandated to consider in administering the area, particularly with reference to vehicular traffic, is the safety and enjoyment of the public using the beaches.  As the Seashore Conservation Act itself contains a grant of authority to achieve a lawful objective, namely, the balancing of competing recreational uses, and the safety of the public using the beaches, there is included in that grant, at least by implication, the authority to perform such acts as are reasonably necessary in order to obtain the objective sought.  State v. Melton, 41 Wn.2d 298, 248 P.2d 892 (1952).

            The language of RCW 43.51.680 itself discloses a broad grant of rule‑making authority over vehicular traffic.  The parks commission is directed to establish "reasonable regulations for the use and control of vehicular traffic on and along the ocean beach highways . . ."  The purpose for which these regulations are to be adopted is to protect and conserve the natural resources of the ocean beach areas, and to provide for the safety and enjoyment of the recreational public.  And, as noted at the outset, without the proviso this statute would clearly allow the parks commission to provide, by reasonable regulations, for the use of vehicles on the ocean beaches; that is, the time, place and manner in which vehicles may be used, as well as the control of such vehicles in the areas where their use is permitted.

             [[Orig. Op. Page 7]]   Based upon our examination of the entire act and upon application of the rules of construction particularly applicable to provisos, we have come to the conclusion that a construction of the proviso in RCW 43.51.680 which would totally preclude the parks commission from regulating thetimes and places where automobiles may be operated on the ocean beaches is unwarranted.  To interpret this proviso to mean that automobile driving must be permitted on all of the subject ocean beaches at any and all times would be to say, in effect, that the parks commission may, in order to protect and conserve natural resources and to provide for public safety as required by the over-all act, adopt reasonable regulations governing only the operation of vehicular traffic but such regulations must say that vehicles may be used in all places and at all times.

            In other words, to place such a construction upon the proviso would limit, for all practical purposes, the authority of the parks commission to that of adopting speed limits and regulations prohibiting careless or reckless driving, etc.  And yet to say that the commission is unable to exclude vehicular use in those areas and at those times when the conflict between vehicular and pedestrian use is most severe, would be to render the language of RCW 43.51.680, as well as the language quoted earlier from RCW 43.51.665 (at least in so far as it relates to vehicular traffic) largely ineffective, contrary to the same rule which requires us to give some effect to the proviso; namely, the rule that language in a statute is to be construed in such a manner as to make it purposeful and effective, rather than futile and meaningless.  Accord,Davis v. Wash. Toll Bridge Auth., 57 Wn.2d 428, 357 P.2d 710 (1960); andDeGrief v. Seattle, 50 Wn.2d 1, 297 P.2d 940 (1956).

            We think it clear from the language of the entire act that the legislature, in adopting this "Seashore Conservation Act" of 1967 (chapter 120, Laws of 1967), intended to provide sufficient authority to the parks commission to enable it to administer the ocean beach areas in the best interests of all of the recreational public, consistent with the principles and in accordance with the limitations expressed in the act itself.  Thus, the more reasonable construction of the proviso, and the one which we feel is more consistent with the apparent intent of the legislature, is this:

             [[Orig. Op. Page 8]]   (1) The proviso does not require the parks commission to allow vehicular traffic on all areas of the beaches at all times ‑ with only the department of fisheries being able to close any beach areas to automobile driving at any time;

            (2) It does, however, require that some automobile driving must be permitted on at least some of the beaches, and at least some of the time; in other words, the proviso has the effect of barring the parks commission from totally prohibiting all vehicular traffic on all of the beaches all of the time.

            Accordingly, we answer your first question (as above paraphrased) in the affirmative and your second question in the negative.

            We trust the foregoing will be of assistance to you.

Sincerely,

SLADE GORTON
Attorney General


MALACHY R. MURPHY
Assistant Attorney General

                                                         ***  FOOTNOTES   ***

1/Hereinafter referred to, for purposes of brevity, as the parks commission.

2/The former provision, RCW 46.08.180, which was thus amended by this 1967 enactment, provided as follows:

            "For the protection and conservation of natural resources, the county sheriffs, the state patrol and fish and game inspectors are given authority to regulate and control traffic on and along the ocean beach highways as designed and established under RCW 79.16.130, 79.16.160, 79.16.161, 79.16.170 and 79.16.171."

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