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AGO 1962 No. 164 - September 12, 1962
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John J. O'Connell | 1957-1968 | Attorney General of Washington


OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF NATURAL RESOURCES ‑- FIRE SEASON PERMITS ‑- INFLAMMABLE MATERIAL.

Any person desiring to burn any inflammable material in a forested or nonforested part of any county in which there is a warden or ranger must obtain a burning permit, during the fire season prescribed by state law, from the supervisor of natural resources or the warden or ranger unless the material is contained in an approved device.

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                                                              September 12, 1962

Honorable Patrick McCabe
Prosecuting Attorney
Garfield County
Pomeroy, Washington

                                                                                                              Cite as:  AGO 61-62 No. 164

Dear Sir:

            By letter previously acknowledged you requested the advice of this office on a question which we paraphrase as follows:

            Does RCW 76.04.150 require that farmers on other than forest lands obtain a burning permit from an agent of the department of natural resources before burning grass straw or grain stubble?

            We answer your question in the affirmative.

                                                                     ANALYSIS

            In your letter you state:

            "The southern portion of Garfield County is forested with a part in National Forest and the forest lands adjacent to the Forest being covered by fire patrol assessments.  However, the northerly half or two-thirds of the county is either cultivated grain land or bunchgrass and sagebrush pasture.  In recent years, increasingly large acreages are being devoted to the production of bluegrass seed and a part of the recommended practice for such production is the burning of grass straw after the seed is harvested.  While the burning of wheat and barley stubble now occurs very seldom, there are some years  [[Orig. Op. Page 2]] in which it is necessary.

            "In past years, farmers wishing to burn have notified the county fire department and obtained permission from the department where forest lands are not and could not be involved.  However, the local office of the U. S. Forest Service has now pointed out the provisions of RCW 76.04.150 and has indicated that permits will be required for burning anywhere in the county under this section."

            You add that the United States forest ranger who raised the issue is an agent of the state.  We assume that he has been commissioned as a state ranger under authority of RCW 76.04.080, which states, in part:

            ". . . all rangers and assistant rangers of the United States forest service, when recommended by their forest supervisors, and commissioned by the state supervisor of forestry shall be ex officio rangers."

            RCW 76.04.150 states:

            "No one shall burn any inflammable material within any county in this state in which there is a warden or ranger during the period beginning the fifteenth day of March, and ending on the fifteenth day of October in each year in western Washington, or between the fifteenth day of April and the fifteenth day of October in eastern Washington, unless a different date for such beginning and ending is fixed by order of the supervisor of forestry, without first obtaining permission in writing from the supervisor, or a warden, or ranger, and afterwards complying with the terms of said permit.  However, if such fire is contained in a suitable device sufficient, in the opinion of the supervisor to prevent the fire from spreading, said written permission will not be necessary.  A person violating  [[Orig. Op. Page 3]] this section shall, upon conviction, be fined not less than twenty-five dollars nor more than five hundred dollars or be imprisoned in the county jail not exceeding thirty days.  Permission for burning shall be given only upon compliance with such rules and regulations as the director shall prescribe, which shall be only such as the director deems necessary for the protection of life or property.

            "The supervisor, any of his assistants, any warden or ranger, may refuse, revoke, or postpone the use of permits to burn when such act is clearly necessary for the safety of adjacent property."

            The division of forestry of the department of conservation and development was abolished in 1957 and its duties, powers and functions were transferred to the department of natural resources.  Chapter 38, § 7, Laws of 1957 (RCW 43.30.070).

            In 1905, the legislature enacted the following:

            "No person shall burn any slashing, chopping, wood-land or brush-land within any county in this State in which there is a deputy fire warden . . . without first obtaining permission in writing form the deputy fire warden of such county; . . ."  Section 8, chapter 164, Laws of 1905.

            In 1911 this law was repealed and the following was enacted in its place:

            "No one shall burn any forest material within any county in this state in which there is a warden or ranger . . . without first obtaining permission in writing from the forester, or a warden or a ranger, . . ."  Section 8, chapter 125, Laws of 1911.

            This statute was amended in various respects in 1921, 1925 and 1945, without changing the quoted language.  Section 2, chapter 102, Laws of 1921; § 3, chapter 43, Laws of 1925; § 1, chapter 11, Laws of 1945.  In § 2, chapter 58, Laws of 1951, the words "inflammable material" was substituted for "forest material" in the act, and the following sentence was added:

             [[Orig. Op. Page 4]]

            ". . . However, if such fire is contained in a suitable device sufficient, in the opinion of the supervisor to prevent the fire from spreading, said written permission will not be necessary. . . ."

            In 1953, the act was amended changing the date of the fire season, but leaving intact the language pertinent to the present discussion.

            We construe RCW 76.04.150 to require a permit from the supervisor of natural resources, or a warden or ranger, before a farmer may burn grass straw or grain stubble in a nonforested part of a county in which there is a warden or ranger, during the stated fire season, unless the material is contained in an approved device.  Since 1905 burning permits have been required throughout any county in which stated officers were present.  Until 1951, the statute required permits only for burning "forest material."  At that time it was amended to read:

            "No one shall burnany inflammable material within any county in this state in which there is a warden or ranger . . . without first obtaining permission, . . ."  (Emphasis supplied.)

            and a provision was added exempting fires "contained in a suitable device."  We can only conclude that the agents of the department of natural resources are to issue fire permits in all parts of any county in which they are stationed, whether or not forest land is involved.

            This office reached the same conclusion construing similar language in § 270, chapter 249, Laws of 1909, as amended, (RCW 76.04.160, repealed by § 3, chapter 24, Laws of 1953), in a letter to Mr. L. T. Webster, Division of Forestry, Olympia, Washington, dated August 8, 1942, a copy of which we are enclosing for your information.

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

Very truly yours,

JOHN J. O'CONNELL
Attorney General

MORTON M. TYLER
Assistant Attorney General

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