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AGO 1972 No. 3 - January 17, 1972
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Slade Gorton | 1969-1980 | Attorney General of Washington

MOTOR VEHICLES ‑- HIGHWAYS ‑- FEDERAL ‑- FOREST SERVICE ROADS ‑- APPLICABILITY OF STATE "RULES OF ROAD

(1) The provisions of chapter 46.61 RCW relating to the operation of motor vehicles in this state are applicable on roads located in national forests which are maintained and controlled by the United States forest service (hereinafter referred to as forest service roads), including special service roads, where these roads are not subject to conflicting federal regulations.

(2) The statutory fifty mile per hour speed limit set forth in RCW 46.61.400 (2) is applicable to such forest service roads as a matter of state law unless lowered in accordance with paragraph (4) below.

(3) Although the United States forest service may establish a lower maximum speed limit on a forest service road by a regulation promulgated by or pursuant to federal law, a speed limit set by such a regulation would not have the force and effect of a state or local law.

(4) The board of county commissioners of the county in which a forest service road is located may reduce the maximum speed limit thereon, as a "local authority" under RCW 46.61.415, and such a lower speed limit fixed by the county will be enforceable in the same manner as any other county ordinance.

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

                                                                 January 17, 1972

Honorable Robert K. Leick
Prosecuting Attorney
Skamania County
Stevenson, Washington 98648

                                                                                                                   Cite as:  AGO 1972 No. 3

Dear Sir:

            This is written in response to your request for an opinion of this office on certain questions relating to the  [[Orig. Op. Page 2]] regulation of traffic on forest service roads in this state.  We paraphrase your questions as follows:

            (1) Are the provisions of chapter 46.61 RCW, relating to the operation of motor vehicles in this state, applicable on roads located in national forests which are maintained and controlled by the United States forest service (hereinafter referred to as forest service roads) including "special service roads," where such roads are not subject to conflicting federal regulations?

            (2) If question (1) is answered affirmatively, does the statutory fifty mile per hour speed limit set forth in RCW 46.61.400 (2) apply to such forest service roads?

            (3) If question (2) is also answered affirmatively, may the United States forest service establish a lower maximum speed limit by a regulation which would have the force and effect of a state or local law?

            (4) If question (3) is answered negatively, may the board of county commissioners of the county in which the forest service road is located so reduce the statutory maximum speed limit thereon?

            We answer questions (1), (2) and (4) in the affirmative and question (3) in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Question (1):

            In providing for the administration of a system of national forests, the United States Congress, in 1897, enacted a statute now codified as 16 U.S.C. § 480, which reads as follows:

            "The jurisdiction, both civil and criminal, over persons within national forests shall not be affected or changed by reason of their existence, except so far as the punishment of offenses against the United States therein is concerned; the intent and meaning of this provision being that the State wherein any such national forest is situated shall not, by reason of the establishment thereof, lose its jurisdiction, nor the inhabitants thereof their rights and privileges as citizens, or be absolved from their duties as citizens of the State."

             [[Orig. Op. Page 3]]   Thereafter, Congress enacted the National Forest Reservation Commission Act of 1911,1/ allowing the acquisition of such further lands in the various states as might be needed to maintain and expand the system of national forests.  In addition to reenacting the above provision, this 1911 act made land acquisition contingent on individual state legislative approval.2/   Pursuant thereto, the legislature of the state of Washington enacted § 1, chapter 58, Laws of 1935, now codified as RCW 37.08.220, which provides, in relevant part, as follows:

            "The Legislature of the State of Washington hereby consents to the acquisition by the United States by purchase or gift of such lands in the State of Washington as in the opinion of the government of the United States may be needed for the establishment, consolidation and extension of national forests in this state under the provisions of the act of Congress approved March 1, 1911, and entitled 'An act to enable any state to cooperate with any other state or states or with the United States for the protection of the watersheds of navigable streams and to appoint a commission for the  [[Orig. Op. Page 4]] acquisition of lands for the purpose of conserving the navigability of navigable rivers,' as amended:  Provided, The State of Washington shall retain a concurrent jurisdiction with the United States in and over lands so acquired so far that civil processes in all cases, and such criminal processes as may issue under the authority of the State of Washington against any person charged with the commission of any crime without or within said jurisdiction, may be executed thereon in like manner as if this consent had not been granted: . . ."  (Emphasis supplied.)

            This state, then, has clearly retained the requisite jurisdiction, concurrent with the federal government, to control the operation of motor vehicles over forest service roads.  Accord,Brown v. Cle Elum, 143 Wash. 606, 255 Pac. 961 (1927).  Consistent therewith, the Secretary of Agriculture (within whose department the United States forest service operates) has provided by regulation (36 C.F.R. § 212.7 (a)) as follows:

            "(a)Traffic rules‑-(1) General.  Traffic on roads under the jurisdiction of the Forest Service other than 'Special Service Roads' is subject to State traffic laws where applicable.

            "(2)Special service roads.  Traffic on special service roads is subject to State traffic laws where applicable, except to the extent the Chief deems it necessary to prescribe rules in addition thereto or in conflict therewith to accomplish the purposes of these regulations, §§ 212.1 to 212.12, inclusive.  Such rules shall be posted at the entrances to the roads and available to the public at the offices designated in 36 C.F.R. 200.7."

            Your first question assumes the absence of any federal regulations pertaining to motor vehicle operations on the subject roads which would conflict with the "rules of the road" set forth in chapter 46.61 RCW if deemed to be applicable ‑ in the sense of permitting some act which is  [[Orig. Op. Page 5]] prohibited by state law or vice versa.  Of course, in the event of any such conflict,3/ the federal regulations would clearly supersede the contrary provisions of state law, as required by the supremacy clause of Article VI of the United States Constitution.4/   However, where there are no  [[Orig. Op. Page 6]] such conflicting federal regulations in effect, or where federal regulations merely supplement state law, the question to be answered is simply one of state legislative intent.  Did our state legislature, in enacting the rules governing the operation of motor vehicles which have been codified as chapter 46.61 RCW, intend that those rules would be applicable to forest service roads?

            Chapter 46.61 RCW was enacted as chapter 155, Laws of 1965, Ex. Sess., by the legislature of that year.  It contains nearly a hundred separate sections prescribing the standards to be adhered to by persons driving motor vehicles in this state.  We begin our consideration of the foregoing question of legislative intent by quoting RCW 46.61.005, which codifies § 1 of the act, as follows:

            "The provisions of this chapter relating to the operation of vehicles refer exclusively to the operation of vehicles upon highways except:

            "(1) Where a different place is specifically referred to in a given section.

            "(2) The provisions of RCW 46.52.010 through 46.52.090 and 46.61.500 through 46.61.520 shall apply upon highways and elsewhere throughout the state."

            The provisions of RCW 46.52.010 through 46.52.090, referred to in subsection (2) above, deal with accident reports.  Those contained in RCW 46.61.500 through RCW 46.61.520 cover the serious crimes of reckless driving, driving while intoxicated, and negligent homicide by vehicle.  We believe our analysis to this point amply demonstrates that these statutes apply on forest service roads, absent conflicting federal regulations, irrespective of whether or not they constitute "highways."  However, the applicability of the  [[Orig. Op. Page 7]] remainder of chapter 46.61 RCW to these roads depends upon a further determination of this issue; are forest service roads "highways" within the meaning of the chapter?

            The term "highway" is defined by RCW 46.04.431, codifying § 87, chapter 155, Laws of 1965, Ex. Sess., as follows:

            "Highway means the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel."

            This definition differs somewhat from that of a "public highway," which, until repealed by § 91, chapter 155, Laws of 1965, Ex. Sess., supra, was formerly contained in RCW 46.04.430.  That provision used to read as follows:

            "'Public highway' includes every way, lane, road, street, boulevard, and every way or place in the state open as a matter of right to public vehicular travel both inside and outside the limits of cities and towns."

            In a prior opinion dated December 18, 1945, to the chief of the Washington state patrol [[1945-46 OAG 495]], this office concluded that in the absence of an agreement between the state or a local subdivision thereof and the Secretary of Agriculture, a forest service road does not constitute a "public highway" as thus defined because it is not, then, "open as a matter of right," saying:

            "A forest service road is not open as a matter of right since the secretary of agriculture may close it at any time in the absence of agreement with state or county authorities to the contrary (see 16 U.S.C.A. 501, 503 and 472) and hence such a road is not a 'public highway' within the terms of state statute.  Such a road, for purposes of state jurisdiction over licensing and loading, is a private road or way."

            We are not at all certain that this same conclusion would be reached today even if we were here dealing with the term  [[Orig. Op. Page 8]] "public highway" as above formerly defined, rather than "highway" as defined in RCW 46.04.431, supra.  See, AGO 63-64 No. 25, copy enclosed, which was issued shortly prior to the repeal of RCW 46.04.430 and concluded that a "public highway" included

            ". . . any place, way, street, etc., where people are accustomed to congregate in automobiles in numbers sufficient to constitute a use by the public."

            In so concluding we rejected the notion expounded in the earlier, 1945, opinion that a technical power of closure on the part of the owner of such areas as supermarket parking lots, etc., was sufficient to remove these areas from the scope of a "public highway" for the purposes of our motor vehicle code.  However, because of the differences between theprior definition of this term and the current definition of "highway" in RCW 46.04.431,supra, and because this latter term is the one used in RCW 46.61.005,supra, we need not pursue this point any further in the present context.5/   Here, we need only ask whether, in the words of RCW 46.04.431, a forest service road comes within the purview of

             [[Orig. Op. Page 9]]

            ". . . the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel."

            Without doubt, a forest service road is "publicly maintained" ‑ by the United States forest service.  In so far as use is concerned, we refer again to 36 C.F.R. § 212.8 (c),supra, which provides that (subject to compliance with applicable regulations) forest service roads shall be permitted to be used "for all lawful purposes."  It, therefore, appears to us that all of the conditions necessary to bring a forest service road (including special service roads) within the purview of RCW 46.04.431 are present.  For these reasons, we answer your first question, as paraphrased above, in the affirmative.

            Question (2):

            This question assumes the foregoing answer to question (1) and asks, specifically, about the control of speed on forest service roads.  The statutes here to be noted are RCW 46.61.400 and RCW 46.61.415, providing, respectively, as follows:

            RCW 46.61.400:

            "(1) No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing.  In every event speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.

            "(2) Except when a special hazard exists that requires lower speed for compliance with subsection (1) of this section, the limits specified in this section or established as hereinafter authorized shall be maximum lawful speeds, and no person shall drive a vehicle on a highway at a speed in excess of such maximum limits.

            "(a) Twenty-five miles per hour on city and town streets;

             [[Orig. Op. Page 10]] "(b) Fifty miles per hour on county roads;

            "(c) Sixty miles per hour on state highways.

            "The maximum speed limits set forth in this section may be altered as authorized in RCW 46.61.405, 46.61.410, and 46.61.415.

            "(3) The driver of every vehicle shall, consistent with the requirements of subsection (1) of this section, drive at an appropriate reduced speed when approaching and crossing an intersection or railway grade crossing, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, and when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions."

            RCW 46.61.415:

            "(1) Whenever local authorities in their respective jurisdictions determine on the basis of an engineering and traffic investigation that the maximum speed permitted under this act is greater or less than is reasonable and safe under the conditions found to exist upon a highway or part of a highway, the local authority may determine and declare a reasonable and safe maximum limit thereon . . ."

            The term "county road" is defined in RCW 46.04.150 as meaning

            ". . . every public highway or part thereof, outside the limits of cities and towns . . . which has not been designated as a state highway."

            Without belaboring further the distinction between "public highways" and "highways," it follows from the foregoing that a forest service road, located outside of the limits of a city or town and not designated as a state highway, must be regarded as a county road for purposes of the  [[Orig. Op. Page 11]] statutory fifty mile per hour speed limit set forth in RCW 46.61.400 (2) (b), supra, as qualified by the "basic speed limit" set forth in RCW 46.61.400 (1).6/

            Question (3):

            This, in turn, brings us to your third question ‑ whether the United States forest service may, as a "local authority" within the meaning of RCW 46.61.415,supra, lower that statutory speed limit in a manner which would render the lowered speed limit enforceable as a matter of state law.

            We must answer this question in the negative.  The term "local authorities" manifestly excludes the United States forest service, for this term is expressly defined in RCW 46.04.280 as meaning:

            ". . . every county, municipal, or other local public board or body having authority to adopt local police regulations under the Constitution and laws of this state."  (Emphasis supplied.)

            Thus, if the forest service should establish a different specific speed limit for a forest service road ‑ which it clearly may do by a regulation promulgated in accordance with either 36 C.F.R. § 212.8 (c) or 36 C.F.R. § 212.7 (a) (2),supra ‑ such action will not constitute the act of a "local authority" but will, instead, be a federal regulation enforceable as such.

            Question (4):

             [[Orig. Op. Page 12]]

            On the other hand, since a board of county commissioners is a "local authority" under RCW 46.61.415,supra,7/ and since the subject forest service roads are county roads for the purposes of RCW 46.61.400, supra, it follows in answer to your final question that such a board may, by virtue of a delegation of the state's retained jurisdiction over these roads, reduce the maximum speed limits thereon; and, of course, if this is done the lower speed limit will be enforceable locally in the same manner as any other county ordinance.

            We trust the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

THOMAS F. CARR
Assistant Attorney General

                                                        ***   FOOTNOTES   ***

1/36 Stat. 963, now codified as 16 U.S.C. §§ 580, 600, 513-19-521, 552, 563.

2/16 U.S.C. § 516 provides, in relevant part:

            "The Secretary of Agriculture is authorized to purchase, in the name of the United States, such lands as have been approved for purchase by the National Forest Reservation Commission at the price or prices fixed by said commission.  No deed or other instrument of conveyance shall be accepted or approved by the Secretary of Agriculture under this section until the legislature of the State in which the land lies shall have consented to the acquisition of such land by the United States for the purpose of preserving the navigability of navigable streams. . . ."

3/The possibility of conflicting federal regulations must be regarded as existing not only for "special service roads" under § 212.7 (a) (2), supra, but for those "other" forest service roads referred to in § 212.7 (a) (1), supra, as well.  See, 36 C.F.R. § 212.8 (c), providing that the

            ". . . use of existing roads and trails shall be permitted for all proper and lawful purposes, subject to compliance with rules and regulations governing the lands and the roads or trails to be used."

4/See, 81 C.J.S., States, § 7 (2) (c), pp. 879-885, for a full discussion of this concept.  As particularly explained on p. 882,

            ". . . Ordinarily the state law is subordinate to the federal law even where the field is one of concurrent power.  The supremacy of the exercise of congressional power regarding a given subject matter effectively negatives the reserved power of the state with respect thereto, and state law even if based on the acknowledged police power of the state must always yield in case of conflict with the exercise by the federal government of any power it possesses under the law and Constitution or with any right which that instrument gives or secures.

            "There is no constitutional objection, however, to regulations both by congress and the states on the same subject matter where there is no conflict, especially where a constitutional provision expressly grants concurrent power as to certain subject matter to the states, and state statutes are not necessarily invalid because they cover a field in which the Constitution empowers congress to legislate.  As to many matters, both the federal government and the states may exercise concurrent powers and enact legislation concerning the same subject matter, in which case the action of the state is valid and operative in all respects in which there is no direct and positive conflict between the action of the sovereignties. . . ."

5/We think it clear that the applicability of chapter 46.61 RCW is to be determined by reference to RCW 46.61.005, and not by reference to RCW 46.08.030, which purports to govern the applicability of all the provisions contained in Title 46 ‑ and uses the term "public highways" rather than simply "highways" ‑ as follows:

            "The provisions of this title relating to the operation of vehicles shall be applicable and uniform upon all persons operating vehicles upon the public highways of this state, except as otherwise specifically provided."

            In so far as RCW 46.61.005 defines the scope of chapter 46.61 RCW in terms of "highways," it can thus be said to have "otherwise specifically provided" within the meaning of RCW 46.08.030, supra.

6/The definitions in chapter 46.04 RCW are qualified by the statement in RCW 46.04.010 that they are to be used for the purposes of Title 46 RCW ". . . unless where used the context thereof shall clearly indicate to the contrary."  We are not prepared to say that the term "county roads," as used in RCW 46.61.400 (2),supra, does not refer, as well, to "highways" situated in national forests; therefore, we proceed with our analysis on the basis that a "county road" includes a forest service road.

7/By virtue of RCW 46.04.280, supra.

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