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AGO 1965 No. 35 - September 02, 1965
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John J. O'Connell | 1957-1968 | Attorney General of Washington


OFFICERS AND OFFICES ‑- STATE PARKS AND RECREATION COMMISSION ‑- AUTHORITY TO PERMIT USE OF PARK LANDS FOR PARTICULAR PURPOSES.

As a general rule the state parks and recreation commission has the authority, in the exercise of its discretion, to permit the construction or installation of television transmitters, radio transmitters, power lines, microwave relay stations and fire lookout stations in state parks; however, each transaction would have to be examined to determine whether a specific piece of park land could be used for a particular nonpark purpose.

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

                                                               September 2, 1965

Honorable Charles H. Odegaard
Director, Parks & Recreation Commission
General Administration Building
Olympia, Washington

                                                                                                                Cite as:  AGO 65-66 No. 35

Dear Sir:

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

            Does the state parks and recreation commission have the authority to permit the construction or installation of television transmitters, radio transmitters, power lines, microwave relay stations, and fire lookout stations in state parks?

            We answer your question in the affirmative as explained in our analysis.

                                                                     ANALYSIS

            The state parks and recreation commission is an agency of the state created by the legislature and charged with the primary duty of the care, control and supervision of all state parks and parkways.  RCW 43.51.040.  As an agency of the state, the commission has only those powers expressly given it by statute or necessarily implied therefrom.  See,State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956).

            The general powers and duties of the commission are set forth in chapter 43.51 RCW.  From an examination thereof we believe it may be stated, as a general proposition, that ample statutory authority exists to permit the use of park property for the purposes contemplated by your question.

             [[Orig. Op. Page 2]]

            A.Television Transmitters

            RCW 43.51.062 (enacted in 1953) expressly grants the authority to the commission

            ". . . to lease the use of such areas in Mount Spokane state park, Steptoe Butte state park, Kamiak Butte state park or any other state park for television stations as the commission may decide are suitable for that purpose:  Provided, Thatthis authority shall not extend to school lands or lands held by the state of Washington for educational purposes."1/   (Emphasis supplied)

            B.Fire Lookout Stations

            This would appear to constitute a valid park purpose since it is necessary in order to maintain and preserve wooded areas in the parks.  Furthermore, if the party desiring to establish the lookout station is a public body, the state parks and recreation commission may certainly permit park land to be used for that purpose.  RCW 43.51.060 provides:

            "The commission may:

            ". . .

            "(4) Act jointly, when advisable, with the United States, any other state agencies, institutions, departments, boards, or commissions in order to carry out the objectives and responsibilities of this chapter;"

            C.Radio Transmitters, Power Lines, Microwave Relay Stations

            While the use of state park land for these purposes is not specifically authorized by statute, such use is quite similar to the specific "use" permitted by RCW 43.51.062,supra.  However, the rule of statutory construction that the express mention of one thing excludes all others, (see, DeGrief v. City of Seattle, 50 Wn.2d 1, 297 P.2d 940 (1956); and Bradley v. Dept. Labor & Ind., 52 Wn.2d 780, 329 P.2d 196 (1958)) is not applicable in this case.  RCW 43.51.062,supra, authorizing use of park land for television stations was passed in 1953 (§ 1, chapter 39, Laws of 1953), after some doubt had been raised as to whether the parks and recreation commission could permit such use under its general powers.  Section 3, chapter 39, Laws of 1953 reads as follows:

             [[Orig. Op. Page 3]]

            "The authority conferred by this act is in addition to the powers and authority now conferred upon the state parks and recreation commission, and this act shall not be construed to repeal or limit, by implication or otherwise, any authority or power now conferred by law upon the state parks and recreation commission."

            In 1955 the legislature authorized the commission to

            ". . .

            "(5) Grant franchises and easements for any legitimate purpose on parks or parkways, for such terms and subject to such conditions and consideration as the commission shall specify;" (Section 3, chapter 391, Laws of 1955, which is codified, as amended in other respects in RCW 43.51.060.)

            This authority to grant franchises2/ and easements3/ for any legitimate purpose4/ would allow the parks and recreation  [[Orig. Op. Page 4]] commission to permit state park lands to be used for radio transmitters, power lines and microwave stations, under such terms and conditions as the commission may prescribe.  Of course, the commissionmay not lease or grant franchises or easements for any nonpark use where such use is otherwise prohibited by statute (see the limitation in RCW 43.51.062,supra), constitutional provision or, perhaps, in the conveyance under which the commission acquired the land.

            Thus, we are not in a position at this time to advise you as to whether any specific piece of park property may be used for a particular nonpark purpose.  However, whenever the commission is desirous of permitting the use of park property for a nonpark purpose, we will examine the specific case in question to determine the powers of the commission in the premise.

            We trust the foregoing will provide you with some general information regarding the powers of the commission.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

DENNIS G. SEINFELD
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/The two opinions to which reference is made in your letter, AGO 51-53 No. 300 [[to State Parks and Recreation Commission on May 8, 1952]], and AGO 51-53 No. 402 [[to State Parks and Recreation Commission on September 11, 1952]], are no longer applicable since they were rendered prior to the enactment of RCW 43.51.062,supra.

2/"A franchise is 'a special privilege conferred by the government on an individual or individuals and which does not belong to the citizens of the country generally, of common right.' . . ."  State ex rel. Pac. T. & T. Co. v. D. P. S., 19 Wn.2d 200, 278, 142 P.2d 498 (1943).

3/The court defines "easement" as follows:

            "An easement is the mere right of a person to use for a definite purpose another man's land in connection with his own.  That is, it is a definite restriction upon the right to the servient owner.. . ."  Bushy v. Weldon, 30 Wn.2d 266, 269, 191 P.2d 302 (1948).

            ". . . An easement . . . is

            "'. . . a liberty, privilege or advantage in land without profit, existing distinct from the ownership of the soil.  It is a right which one person has to use the land of another for a specific purpose.'"  Dudley v. Lowrie, 164 Wash. 1, 5, 1 P.2d 854 (1931).

4/Any lawful purpose is of course a "legitimate purpose."  See,Carter v. Commonwealth, 181 Va. 306, 24 S.E. 2d 569, 571 (1943);People v. Commons, 64 Cal. App.2d 925, 148 P.2d 724, 731 (1944).

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