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AGO 1992 No. 19 - August 28, 1992
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

IRRIGATION--DISTRICTS--ELECTIONS--PROPERTY--Eligibility of Property Owners to Vote for Directors of Irrigation District of Less Than 200,000 Acres

RCW 87.03.051 governs voter eligibility in irrigation districts of less than 200,000 acres.  Any property holder in the district whose land is subject to assessment for any reason is entitled to vote in district elections, even if the property is not currently being assessed for irrigation district purposes.

                                                                  * * * * * * * * * *

                                                                 August 28, 1992

Honorable Margaret Rayburn
State Representative, District 15
1610 South Euclid
Grandview, Washington  98930

                                                                                                                 Cite as:  AGO 1992 No. 19

Dear Representative Rayburn:

            By letter previously acknowledged, you asked our opinion on a question which we have paraphrased as follows:

            In an irrigation district of less than 200,000 acres whose voter qualifications are governed by RCW 87.03.051, are property holders entitled to vote in the election of directors if their property is potentially subject to assessment but is not currently being assessed for irrigation district purposes?

For the reasons set out in the following analysis, we answer this question in the affirmative.

                                                                BACKGROUND

            Before a 1984 Washington Supreme Court case, the electoral franchise in an irrigation district was limited by statute to property owners whose lands were used exclusively for agricultural or horticultural purposes.  In Foster v. Sunnyside Valley Irrig. Dist., 102 Wn.2d 395, 687 P.2d 841 (1984), the court held former RCW 87.03.045 and .050 unconstitutional in that they prevented certain property holders from participating in irrigation district elections, even though the property holders paid assessments levied by the district.[1]   The court held that both statutes violated article 1, section 19[2]and article 6, section 1 (amend. 63)[3]of the Washington Constitution, because they gave no voice in district governance to a class of persons significantly affected by the district's operation.  Id. at 411.

            Subsequent to the Foster decision, the Legislature amended RCW 87.03.045 (Laws of 1889-90, § 3, p. 672) and adopted RCW 87.03.051 (Laws of 1955, ch. 57, § 5, p. 387) to conform to the court's holding that no property owner within the district may be denied the right to vote, and that the number of votes allowed each property owner must be allocated according to an identifiable burden.  See Synopsis to Substitute Senate Bill 3594 (Laws of 1985, ch. 66).  RCW 87.03.051 now provides in pertinent part:

                        In districts with less than two hundred thousand acres, a person eighteen years old, being a citizen of the United States and a resident of the state and who holds title or evidence of title to assessable land in the district or proposed district shall be entitled to vote therein, and to be recognized as an elector.  A domestic corporation owning land in the district shall be recognized as an elector.  "Ownership" shall mean the aggregate of all assessable acres owned by an elector, individually or jointly, within one district.

(Emphasis added.)[4]   Your question asks whether an irrigation district of less than 200,000 acres may exclude from voting certain classes of property holders whose property is not currently being assessed for district purposes, but is legally subject to assessment pursuant to a law or to a contractual obligation of the district.[5]

            You state in your letter that there may be land in some districts which is not subject to assessment for ordinary irrigation district purposes because, for instance, water is not available for use on the property.  However, you further point out that in many cases this land, though not currently assessed, is subject to assessment for one or more special purposes.  As an example, you note that many districts have repayment contracts with the United States, and that these repayment contracts allow a district to subject such "dry land" to a "nominal" or "administrative" assessment.  As a second example, you note that many irrigation districts issue bonds for sale to public entities, potentially subjecting the property in question to liability for assessments.  In this connection, we note that RCW 87.03.215 (more fully analyzed below) authorizes assessments for the repayment of bonds and similar contractual obligations.  As discussed more fully below, we believe that either the contracts or the bonds you referred to would be examples rendering property "assessable", even if not currently assessed and thus entitling the owners of such property to participate in district elections.

                                                                    ANALYSIS

            As previously discussed above, RCW 87.03.051 now limits qualified voters in irrigation districts of less than 200,000 acres of land to state residents over the age of 18 who hold title or evidence of title to assessable land in the district.   The statute does not define the term "assessable land", nor does this appear to be a term of art with regard to irrigation districts.[6]  When terms are not defined in a statute, the terms must be accorded their plain and ordinary meaning unless a contrary intent appears.  Dennis v. Department of Labor & Indus., 109 Wn.2d 467, 479-80, 745 P.2d 1295 (1987).  A nontechnical statutory term may be given its dictionary meaning.  State v. Fjermestad, 114 Wn.2d 828, 835, 791 P.2d 897 (1990).  The word "assessable" is defined as "capable of being assessed".  See Webster's Third New International Dictionary 131 (1981).  Thus, RCW 87.03.051 would seem to give the right to participate in irrigation district elections to all property holders in the district whose lands are capable of being assessed.

            Your letter distinguishes between land in an irrigation district which is assessed by the district for irrigation works, and "dry land" which is not assessed because there is not water available for its use.  However, "assessable land" should be distinguished from "irrigable land" which was defined by the court in Foster as:

            [L]ands which by reason of their level, relative to irrigation works, can have water carried over them therefrom by gravity and which, having regard to the character of the soil and of the climate, will be rendered more productive by means of irrigation properly applied in the growing of crops adapted to the locality.

Foster, 102 Wn.2d at 402.  Thus, your question presumes that irrigation districts offer only irrigation-type services for irrigable lands to the property owners within their boundaries.  In fact, irrigation districts may offer an array of other public works and services which have little or nothing to do with the irrigation of land for agricultural or horticultural purposes.  They may also levy assessments to property holders in their districts to pay for such services.  See RCW 87.03.445.  There is no evidence to suggest that the Legislature intended to limit the franchise in irrigation district elections to property holders whose lands are irrigable.  Therefore, if a property holder is capable of being assessed by an irrigation district for any purpose, then he or she is entitled to vote in that district's elections.

            The Legislature has granted authority to irrigation districts to engage in many other public works and services beyond the irrigation of land for agricultural purposes.  These powers include:  the purchase and sale of electric power for irrigation and domestic use (RCW 87.03.015(1)); the construction, repair, purchase, maintenance, or lease of a water system for domestic use (RCW 87.03.015(2)); the construction, repair, purchase, maintenance, or lease of a drainage or sewage disposal system (RCW 87.03.015(3)); the assumption as principal or guarantor of any indebtedness to the United States under the federal reclamation laws, on account of district lands (RCW 87.03.015(4)); the acquisition, installation, and maintenance of water mains and fire hydrants for fire fighting purposes (RCW 87.03.015(6));  the assumption by conveyance of a water system from a water district for the domestic use of the residents of their district (RCW 87.03.015(8)); the construction, purchase, lease, maintenance, and operation of a street lighting system (RCW 87.03.016); and assistance to owners of residential structures in financing, acquisition, and installation of energy conservation materials and equipment (RCW 87.03.017).

            The public works and services provided by an irrigation district may be directly paid for by district users in the form of rates, tolls, charges, and contract payments, or by annual assessments against the property specially benefitted by the work, or by both.  RCW 87.03.445.  If the board chooses to use the rates, tolls, and charges method for collecting revenue from the users of its works or services, such tolls and charges are treated as assessments against the land with the same force and effect of an assessment levied against it.  Id.  Thus, if an irrigation district offers any of these services to the property holders within its boundaries, and the property holders are capable of being assessed for the services, then they are entitled to vote in district elections, regardless of whether or not they actually use the services.

            However, the board of directors of an irrigation district may elect in the alternative to base such rates, tolls, or charges for services upon the quantity of irrigation water, domestic water, electric power, drainage, or sewage actually used by each property holder in the district.  RCW 87.03.445.  In this case, the district fixes a minimum rate, toll, or charge to be paid by each parcel of land for the use of the service in a specific quantity.  Id.  The property holders in the district are then billed for any additional quantities of such service that they use.  Id.  Unlike assessments, there is no right to equalization of the charges because they are determined according to the actual rate of the  property holder's use of the service.  Id.  Therefore, if an irrigation district elects to use this alternative method of billing by rates, tolls, or charges for the amount of services provided, or if there is land in any district which is not capable of being served by any of the services which the district provides, then the ability of such property owners to participate in district elections will depend on whether they are susceptible to assessment for any other purpose.

            Under RCW 87.03.210, irrigation districts may sell bonds to raise money for the construction, reconstruction, betterment, or extension of irrigation works.  They may also sell bonds to acquire property, assume indebtedness of the United States, and to otherwise fully carry out the objects and purposes of the district.  Id.  The costs of construction of public works undertaken by an irrigation district may be paid for out of bond sales.  RCW 87.03.445.

            Irrigation districts may also enter into obligations or contracts with the United States or the state of Washington for the supervision of construction, or the construction, reconstruction, betterment, extension, sale or purchase, or operation and maintenance of irrigation works under the state or federal reclamation acts.  See RCW 87.03.140.  They may also enter into contracts with the United States for a water supply or for reclamation purposes in general.  Id.  An irrigation district may also assume control and management of a federal irrigation work, and collect money due the United States under separate contracts for such works.  Id.

            RCW 87.03.240 grants irrigation districts the power to make assessments.  It provides, in pertinent part:  "Assessments made in order to carry out the purpose of this act shall be made in proportion to the benefits accruing to the lands assessed[.]"

            RCW 87.03.215 provides that bond payments including interest, as well as payments due on contracts between the district and the United States or the state of Washington, must be paid out of annual assessments on the property in the district.  "[A]ll the real property in the district shall be and remain liable to be assessed for such payments until fully paid as hereinafter provided."  Id.[7]   This statute secures the interests of an irrigation district's bondholders by giving them a lien on all property acquired by an irrigation district.  See alsoIn Re Badger Mountain Irrig. Dist., 885 F.2d 606 (9th Cir. 1989).

            In addition to the general levy for its operation and maintenance fund, an irrigation district may levy an assessment to pay the annual interest on outstanding bonds and may increase the assessment from year to year to discharge such bonds when they mature.  RCW 87.03.260.  They may also levy an assessment to cover the next year's contract payments due the United States or the state of Washington.  Id.  Once an assessment is levied, the property holders are entitled to request the board to equalize their assessments.  RCW 87.03.255.  The amount of the assessment levied by the irrigation district becomes a lien against the property assessed, and will include interest and costs when it becomes delinquent.  RCW 87.03.265, .271.  Irrigation district liens may be foreclosed and the property sold for nonpayment.  See generally chapter 87.06 RCW.

            In the past, courts have expressed difficulty in balancing the requirement of RCW 87.03.215 that all property in the district be liable for bond payment assessments, with the language of RCW 87.03.240 providing that assessments be made in proportion to the benefits to the lands assessed.  In Northern Pac. Ry. Co. v. Walla Walla Cy., 116 Wash. 684, 200 P. 585 (1921), the Washington Supreme Court interpreted the predecessor statutes to RCW 87.03.240 and .215 to conclude that an irrigation district could not impose an assessment for maintenance of an irrigation system against property which was within its boundaries but which was not susceptible to irrigation or cultivation because of its character and topography.  The court held that the subject property was not liable for assessments for maintenance charges because it was not benefited by the maintenance of the irrigation system.  Id. at 689.  However, in dicta, the court left open the possibility that land in a district, by the mere fact that it was within the boundaries of a district, could be subject to assessment for bond payments when such bonds were issued to pay the cost of acquisition of property rights and construction of an irrigation system, without regard to whether or not the land was benefited by the irrigation.

            In Otis Orchard Co. v. Otis Orchard Irrig. Dist. No. 1, 124 Wash. 510, 215 P. 23 (1923), the court held that irrigable property in an irrigation district which was not currently irrigated, but which was susceptible to irrigation, was liable to assessment by the district.  In construing the predecessor statute to RCW 87.03.215, the court held:

            Referring again to § 7434, where the manner of the payment of bonds is provided for, it there appears, as already pointed out, that all the real property in the district shall be and remain liable to assessment.  It is generally understood that land within a district is benefited by an irrigation system to the extent that the added facilities for irrigation add to the value of the land itself, and this does not depend upon the use the owner may make of the water.  The value of the right conferred or added, and not the extent to which the property owner may take advantage of the right, is the test to determine whether a benefit has been received.

Id.at 513-514.  See also 1925-26 Ops. Att'y Gen. 232.

            In In Re Horse Heaven Irrig. Dist., 11 Wn.2d 218, 118 P.2d 972 (1941), the Washington Supreme Court interpreted RCW 87.03.215 as the basis for reaffirming the "last faithful acre" doctrine.  Under this doctrine, the court held:

            [T]he bond of an irrigation district is a general obligation, and that each acre of land within the district remains bound until the debt is paid.  The obligation is both primary and secondary; primary in that each acre must pay its proportionate part based upon its benefit, and, secondary, in that each acre must pay, or help to pay, the deficiencies which result from failure of other acres to pay.

Id.at 228.  The theory behind this secondary liability for every property holder was explained by the court in Roberts v. Richland Irrig. Dist., 169 Wash. 156, 13 P.2d 437 (1932), as follows:

                        The benefits to the appellant's lands are not only the benefits accruing by reason of the improvements . . . . Lands acquired by the district for unpaid assessments are assets of the district.  An added benefit therefrom accrues to the district as a whole and to each landowner individually.  Such benefit is a basis, as are the unpaid assessments on other lands within the district, for the secondary liability[.]

Id.at 161-62.  Thus, the bonds issued by the district for such improvements are general obligations of the district for which all the property in the district is subject to be assessed for payment of the entire obligation in case delinquent assessments leave a deficiency.  State ex rel. Wells v. Hartung, 150 Wash. 590, 599, 274 P. 181 (1929).  The rationale for this doctrine is a result of the enhancement of all the land in the district, not only from the improvement, but from the property which reverts to the district by foreclosure of delinquent assessments resulting from the bond.  Id. at 601.

            These cases would suggest that all property holders within the boundaries of an irrigation district would be subject to assessment for bond payments, regardless of whether or not their land was directly benefited by the public work or service for which the bond was issued.  This rule is supported by the statute requiring the assent of the bondholders to a petition by property holders for exclusion of their land from the boundaries of the irrigation district.  See RCW 87.03.670.  RCW 87.03.051 does not distinguish between land which is assessable because it is benefited by an irrigation project for which a bond was issued, and all other lands which are assessable under their secondary liability for bond payments.  Accordingly, any property holder whose land lies within the boundaries of an irrigation district which has issued bonds for district improvements is subject to being assessed by that district, and therefore has a right to vote in district elections.

            Property holders may also be subject to assessments for payments on contracts between the irrigation district and the United States or the state of Washington, even if the property holder is not benefited by the improvements for which the contract was made.  As previously noted, payments due the United States or the state of Washington under contracts for the construction or maintenance of irrigation works create a lien on that portion of the land affected by the project, and all the real property in the affected area is liable to be assessed for such payments under RCW 87.03.215.  Furthermore, property holders seeking exclusion from district boundaries must also gain the assent of the United States or the state of Washington, if a contract for irrigation works affects their land.  See RCW 87.03.670.

            In Foster, 102 Wn.2d 395, the predecessor in interest of certain owners of residential property in an irrigation district entered into a contract with the federal government in 1915 under the federal Reclamation Act for construction and operation of irrigation works to benefit his property.  He agreed to pay annual installments to the United States for construction and maintenance costs.  In 1945 the Sunnyside Valley Irrigation District purchased the irrigation works from the federal government and assumed its contractual obligations.  The irrigation district made assessments against the property for the amount of the contractual indebtedness, pursuant to RCW 87.03.240.  The property was subdivided into residential lots in 1972, but because the lots did not reserve irrigation rights of way, the lots no longer had access to the water.  Nevertheless, the property holders continued to be assessed a minimum charge based on the "benefit of water available".  Id. at 398.  The court held that under the terms of the federal Reclamation Act of 1914, 43 U.S.C. § 492, which was incorporated by reference in the contract, the property was subject to assessment for operation and maintenance charges, regardless of whether or not it was capable of being irrigated.  Id. at 401-02.

            Although the Foster decision was interpreting the specific terms of a federal statute, it is likely that the same result would apply to all irrigation and reclamation contracts with the United States or the state of Washington, under the statutory scheme of chapter 87.03 RCW.  RCW 87.03.051 does not distinguish between land which is assessable because it is benefited by such a contract, and land which is capable of being assessed for contract payments under RCW 87.03.215 because it is in a district or portion of a district covered by the contract.  Thus, all property holders in irrigation districts which have entered into contracts with the United States or the state of Washington for irrigation or reclamation works prior to December 1, 1981, or whose land is in a portion of a district covered by a contract made after December 1, 1981, are entitled to vote in district elections, regardless of whether their property is benefited by the project, since their land is capable of being assessed for contract payments.

            This analysis is also consistent with the underlying public policies expressed in Foster regarding the fundamental right of all constitutionally qualified citizens to vote.  Foster, at 407.  The court reasoned:

                        While it is consistent with Const. art. 1, § 19 to permit limited electoral qualifications in special purpose districts where their activities are largely nongovernmental in nature, and where the issue being voted upon disproportionately affects a definable class . . . it demands that those constitutionally qualified electors who are significantly affected by district decisions be given an opportunity to vote for the representative of their choice in district elections.

Id.at 410 (citations omitted).  Denying the right to vote to property holders in irrigation districts whose lands are capable of being assessed for any purpose, deprives them of any meaningful participation in district decisions which could significantly affect them.  Statutes which deny the franchise to otherwise qualified citizens are subject to the closest scrutiny by the courts.   Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 626-27, 23 L. Ed. 2d 583, 89 S. Ct. 1886 (1969).  Thus, any statute which would limit the electoral franchise should be narrowly construed to avoid any impermissible invasion of the fundamental right to vote.  SeeKnowles v. Holly, 82 Wn.2d 694, 699, 513 P.2d 18 (1973) (all statutes limiting the citizenry in the exercise of the right of suffrage should be liberally construed in favor of the voters).

            By limiting the qualifications of voters in irrigation districts to persons who hold title to "assessable lands", the Legislature did not limit the electorate in districts of less than 200,000 acres to only those property owners whose lands are irrigable.  Instead, by using the term "assessable land", the Legislature has extended the franchise in irrigation district elections to any person whose land is capable of being assessed for any reason.  This expansion of the electorate is consistent with the court's holding in Foster that all those property holders who are significantly affected by an irrigation district's decisions, are guaranteed a right to vote in district elections by the Washington Constitution.  Foster, 102 Wn.2d at 410.

            Accordingly, any property holder in an irrigation district whose land is subject to assessment for any reason is entitled to vote in district elections.  Since all property within the boundaries of a district which has issued bonds is potentially liable for assessments for bond payments, all property holders in such districts are entitled to vote in district elections.  Similarly, since all property within an irrigation district which has entered into a contract with the United States or the state of Washington for irrigation works prior to December 1, 1981, and all property in that portion of a district affected by a contract made after December 1, 1981, are capable of being assessed for contract payments, all such property holders have a right to participate in district elections.

            We trust this opinion will be of assistance to you.

                                    Very truly yours,

                                    KENNETH O. EIKENBERRY
                                    Attorney General

                                    GEOFFREY G. JONES
                                    Assistant Attorney General

KOE:GGJ:aj


    [1]       Former RCW 87.03.045, Laws of 1889-90, § 3, p. 672, set out the electoral qualifications for irrigation districts of 200,000 or more acres.  Former RCW 87.03.050, Laws of 1955, ch. 57, § 5, p. 387, allowed districts containing less than 200,000 acres to make the restriction on voting rights provided by former RCW 87.03.045 applicable to their district by order of the directors.

    [2]       Article 1, section 19 of the Washington Constitution provides:  "All Elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage."

    [3]       Article 6, section 1 (amend. 63) of the Washington Constitution  provides:

                        All persons of the age of eighteen years or over who are citizens of the United States and who have lived in the state, county, and precinct thirty days immediately preceding the election at which they offer to vote, except those disqualified by Article VI, section 3 of this Constitution, shall be entitled to vote at all elections."

    [4]       RCW 87.03.045 still defines the qualifications for participation in irrigation district elections in districts with 200,000 acres or more.  Unlike RCW 87.03.051, the amendments to RCW 87.03.045 allow participation in district elections for all state residents holding title or evidence of title to land in the district, regardless of whether or not the land is assessable.  In the initial draft of the bill, it was RCW 87.03.045 which had the language limiting the electorate to persons who hold title to assessable land.  See Senate Bill 3594; Laws of 1985, ch. 66.  Since RCW 87.03.050 was also repealed in this early draft and RCW 87.03.051 had not yet been added, the "assessable land" limitation on the electorate would have applied to all irrigation districts, regardless of size.  There is no explanation in the legislative history for the subsequent decision to make this qualification applicable only to irrigation districts of less than 200,000 acres.

    [5]       Although your question only references the qualifications for voters in the election of district directors, RCW 87.03.051 sets out the qualifications for electors which would be applicable to any general election held by an irrigation district.

    [6]       The Washington Supreme Court used the term "assessable lands" in relation to land within a reclamation district in State v. Human Relations Found., 64 Wn.2d 262, 265, 391 P.2d 513 (1964), to refer to land which was currently subjected to assessment for irrigation, as well as land which was capable of being served by the irrigation facilities.

    [7]       RCW 87.03.215 was amended in 1981 to add the proviso that when any such contract made after December 1, 1981, between any district and the United States or the state of Washington covers only the real property in a portion or portions of the district, all payments due or to become due to the United States or the state of Washington shall be paid by revenue derived from an annual assessment upon the real property only in that portion or portions of the district covered by the contract and the real property shall be and remain liable to be assessed for such payments until fully paid and any assessment lien which attaches thereto shall be the exclusive lien notwithstanding other liens provided for in this section.

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