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AGO 1992 No. 20 - September 08, 1992
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

DEPARTMENT OF NATURAL RESOURCES--FOREST PRACTICES BOARD--DEPARTMENT OF ECOLOGY--CITIES AND TOWNS--COUNTIES--FOREST LAND--ZONING--Conversion of Forest Land to a Use Other Than Commercial Timber Production

1.  RCW 76.09.060(3) provides that a forest practices application shall indicate whether any land covered by the application will be converted or is intended to be converted to a use other than commercial timber production within three years after completion of the forest practices described in it.  If the application does not state conversion is intended, for six years after the date of the application, a local government may deny all applications for permits or approvals relating to nonforestry uses of land subject to the application.

2.  If a prior landowner did not indicate an intention to convert land to a use other than commercial timber production, RCW 76.09.060 empowers a local government to deny application for permits or approvals relating to nonforestry uses of land subject to the application filed by a subsequent owner of the land for six years after the date of the application by the prior landowner.

3.  If a local government does not exercise its authority to deny applications for permits or approvals relating to nonforestry uses of land pursuant to RCW 76.09.060, a new landowner may convert the land to a use incompatible with timber growing, assuming such a change is lawful in other respects.

4.  If a local government does not exercise its authority to deny applications for permits or approvals relating to nonforestry uses of land pursuant to RCW 76.09.060, a new forest practices application is necessary if the activity is a forest practice for which a forest practices application is required.

                                                                 * * * * * * * * * *

                                                               September 8, 1992

HonorableGary A. Nelson
State Senator, District 21
106-A Institutions Building
Post Office Box 40421
Olympia, Washington  98504-0421

                                                                                                                  Cite as  AGO 1992 No. 20

Dear Senator Nelson:

            By letter previously acknowledged, you have asked several questions pertaining to the ability of a landowner to convert land covered by a forest practices application to a use other than commercial timber production.  We paraphrase your questions as follows:

            1.   More than three years but less than six years after a forest practices application has been completed and after satisfactory compliance with reforestation obligations, may a county deny a landowner's application for permits or approvals relating to nonforestry uses of the land when the forest practices application indicated the landowner did not intend to convert any land covered by the application within three years?

            2.   Does the answer to Question 1 remain the same if the original landowner sells the property by a sale after completion of reforestation and the new landowner requests permits or approvals relating to nonforestry uses of the land?

            3.   If the county does not deny the new landowner's applications or permits or approvals relating to nonforestry uses of the land, may the new landowner convert the land to a use incompatible with timber growing?

            4.   If Question 3 is answered in the affirmative, is a new forest practices application necessary to convert the land to a use incompatible with timber growing?

            We answer Questions 1, 2, and 3 in the affirmative, and Question 4 as set out in the analysis.  For ease of understanding, we preface our analysis of your questions with some background on the Forest Practices Act.

                                                                BACKGROUND

            The Forest Practices Act, chapter 76.09 RCW (FPA), regulates forest practices on public and private forest lands.  Department of Natural Resources v. Marr, 54 Wn. App. 589, 774 P.2d 1260 (1989).  In enacting the FPA, the Legislature made certain findings:

                        The legislature hereby finds and declares that the forest land resources are among the most valuable of all resources in the state; that a viable forest products industry is of prime importance to the state's economy; that it is in the public interest for public and private commercial forest lands to be managed consistent with sound policies of natural resource protection; that coincident with maintenance of a viable forest products industry, it is important to afford protection to forest soils, fisheries, wildlife, water quantity and quality, air quality, recreation, and scenic beauty.

RCW 76.09.010(1).

            The purpose of the FPA was to establish a statewide system of laws and regulations which would:

            [C]reate and maintain through the adoption of this chapter a comprehensive state-wide system of laws and forest practices regulations which will achieve the following purposes and policies:

                        (a)  Afford protection to, promote, foster and encourage timber growth, and require such minimum reforestation of commercial tree species on forest lands as will reasonably utilize the timber growing capacity of the soil following current timber harvest;

                        (b) Afford protection to forest soils and public resources by utilizing all reasonable methods of technology in conducting forest practices;

                        (c) Recognize both the public and private interest in the profitable growing and harvesting of timber;

                        (d) Promote efficiency by permitting maximum operating freedom consistent with the other purposes and policies stated herein;

                        (e) Provide for regulation of forest practices so as to avoid unnecessary duplication in such regulation;

                        (f) Provide for interagency input and intergovernmental and tribal coordination and cooperation;

                        (g) Achieve compliance with all applicable requirements of federal and state law with respect to nonpoint sources of water pollution from forest practices;

                        (h) To consider reasonable land use planning goals and concepts contained in local comprehensive plans and zoning regulations; and

                        (i) Foster cooperation among managers of public resources, forest landowners, Indian tribes and the citizens of the state.

RCW 76.09.010(2).

            This legislative intent behind the FPA has been summarized as fostering the commercial timber industry while protecting the environment.  Marr, supra.

            The Forest Practices Board (FPB) is required to promulgate rules where necessary to accomplish the purposes and policies stated in RCW 76.09.010 and to implement the provisions of the FPA.  RCW 76.09.040(1).  These rules:

                        (a) Establish minimum standards for forest practices;

                        (b) Provide procedures for the voluntary development of resource management plans which may be adopted as an alternative to the minimum standards in (a) of this subsection if the plan is consistent with the purposes and policies stated in RCW 76.09.010 and the plan meets or exceeds the objectives of the minimum standards; and

                        (c) Set forth necessary administrative provisions.

Id.  Forest practices regulations relating to water quality protection are jointly adopted by the FPB and the Department of Ecology ( DOE).  Id.; see WAC 173-202-020.

            The FPA specifically delegates to the FPB the task of establishing by rule which forest practices to include within each class of forest practices.  RCW 76.09.050.  The original FPA established three classes of forest practices.  Laws of 1974, 1st Ex. Sess., ch. 137, § 5, p. 406.

            In 1975, the Legislature created the Class IV category for forest practices that require an evaluation by the Department of Natural Resources (DNR) on whether an environmental impact statement under the State Environmental Policy Act (SEPA), chapter 43.21C RCW, must be prepared.  Laws of 1975, 1st Ex. Sess., ch. 200, § 2, p. 666, codified at RCW 76.09.050(1), Class IV.  The Legislature went on to exempt Class I, II, and III forest practices from the environmental impact statement requirements of SEPA.  RCW 43.21C.037.

            The FPB and DOE have defined by rule what forest practices are included in each class of forest practices.  WAC 222-16-050.[1]   The Class IV category has been divided into two parts:  Class IV - Special and Class IV - General.  WAC 222-16-050(1), (2).  The Class IV - General category excludes forest practices classified as Class IV - Special and includes "[f]orest practices (other than those in Class I) on lands . . . being converted to another use."  WAC 222-16-050(2)(a).

            The Class I category is defined in WAC 222-16-050(3), the Class II in WAC 222-16-050(4), and the Class III in WAC 222-16-050(5).  No Class II, III, or IV forest practice may be commenced unless DNR has received a notification with respect to a Class II forest practice or approved an application with respect to a Class III or Class IV forest practice.  RCW 76.09.050(2).

            Local government authority to regulate forest practices has been limited under the FPA.  RCW 76.09.240.[2]  Land use planning or zoning authority may only be exercised to regulate forest practices:

           . . . (a) Where the application submitted under RCW 76.09.060 as now or hereafter amended indicates that the lands will be converted to a use other than commercial timber production; or (b) on lands which have been platted after January 1, 1960:  Provided, That no permit system solely for forest practices shall be allowed; that any additional or more stringent regulations shall not be inconsistent with the forest practices regulations enacted under this chapter; and such local regulations shall not unreasonably prevent timber harvesting[.]

RCW 76.09.240(1).

            In addition, DNR may not approve portions of applications to which a county, city, or town timely objects if the objections relate to lands platted after January 1, 1960, or lands being converted to another use.  RCW 76.09.050(7).

                                                                    ANALYSIS

            For ease of reference, we repeat the first question presented:

            Question 1:

            More than three years but less than six years after a forest practices application has been completed and after satisfactory compliance with reforestation obligations, may a county deny a landowner's application for permits or approvals relating to nonforestry uses of the land when the forest practices application indicated the landowner did not intend to convert any land covered by the application within three years?

            This question involves construction of RCW 76.09.060.[3]

            The paramount concern in interpreting a statute is to ensure that the interpretation is consistent with the underlying policy of the statute. . . . The language of the statute is the court's primary guide in ascertaining its purpose.

Marr, 54 Wn. App. at 593 (citations omitted).  The first sentence of RCW 76.09.060(3) provides:

                        The application for a forest practice or the notification of a Class II forest practice shall indicate whether any land covered by the application or notification will be converted or is intended to be converted to a use other than commercial timber production within three years after completion of the forest practices described in it.

(Emphasis added.)  RCW 76.09.060(3)(b)(i) provides:

                        (b) If the application or notification does not state that any land covered by the application or notification will be or is intended to be so converted:

                        (i) For six years after the date of the application the county, city, town, and regional government entities may deny any or all applications for permits or approvals, including building permits and subdivision approvals, relating to nonforestry uses of land subject to the application[.]

(Emphasis added.)

            Before interpreting RCW 76.09.060(3), its purpose needs to be identified.  The purpose of the FPA is to develop a system of regulation that fosters the commercial timber industry while protecting the environment.  (See discussion in Background section, supra.)  The language in RCW 76.09.060(3) appears to accomplish this by focusing on several of the stated purposes and policies in RCW 76.09.010(2).  Local governments have a greater role in a forest practices application that relates to lands being converted to another use.  RCW 76.09.050(7)(b), .240(1).  RCW 76.09.060(3) recognizes this role by highlighting a landowner's intent to convert and allowing the local government to deny conversion permits if the intent to convert was not stated.  This provides for intergovernmental coordination and cooperation and allows consideration of reasonable land use planning goals and concepts.  RCW 76.09.010(2)(f), (h).  The section also encourages reforestation.  RCW 76.09.010(2)(a), .070.

            Although RCW 76.09.060(3) uses two different time periods, the overall intent is not ambiguous.  A county, city, town, or regional governmental entity has the authority to deny any and all applications for permits or approvals for six years after the date of a forest practices application that fails to indicate a conversion will take place.  The three-year reference in the first sentence of RCW 76.09.060(3) relates to the indication required on the application form, but does not limit the authority of the county, city, town, or regional governmental entity to deny the applications for the permit or approval of the conversion. 

            This construction is consistent with the purposes and policies of the FPA in RCW 76.09.010(2) and the purposes of RCW 76.09.060(3).  This construction discourages inaccurate information about conversion plans on applications and it encourages landowners to consider reasonable land use planning goals and concepts contained in local comprehensive plans and zoning regulations prior to conducting the forest practices.  RCW 76.09.010(2)(f), (h).  It encourages interagency input on forest practices that may result in a conversion prior to conducting the forest practices activities, not after.

            The plain language of RCW 76.09.060(3)(b) indicates a local government may deny any permits or approvals for six years if the forest practices application does not state the land would be converted within three years.  The local government may exercise this power whether at the time of application the landowner intended to convert in years four through six, but not in years one through three, or whether the landowner had no intention to convert at any time during the six-year period.  In either instance, the statute gives local governments this power upon the failure to state on the application whether the land would be converted within three years.

            Question 2:

            Does the answer to Question 1 remain the same if the original landowner sells the property by a sale after completion of reforestation and the new landowner requests permits or approvals relating to nonforestry uses of the land?

            The successor landowner question first arose under chapter 76.09 RCW in the context of the reforestation obligation in RCW 76.09.070.[4]  In 1982, the Legislature added language clarifying that the reforestation obligation becomes the obligation of a new owner if the land or perpetual timber rights are sold or otherwise transferred.  Laws of 1982, ch. 173, § 1, p. 693 (amending RCW 76.09.070).  Unfortunately, no such clarifying language was added concerning RCW 76.09.060.

            A similar successor landowner question was addressed earlier by the courts dealing with fire fighting costs arising from a fire hazard.  SeeState v. Loertscher, 64 Wn.2d 340, 391 P.2d 520 (1964).  The issue in that case was whether the landowner, who did not own the property at the time the fire hazard was created, could be liable for forest fire fighting costs under RCW 76.04.370.[5]  The court concluded that the purpose of the statute was to abate fire hazards.  To give effect to this purpose, the court found every subsequent purchaser of land in a hazardous condition acquired the land encumbered with the duty to abate the hazard and the potential liability for fire fighting costs.  Id. at 345-46.

            Likewise, the purposes of RCW 76.09.060(3) to provide for intergovernmental coordination and cooperation, allow consideration of reasonable land use planning goals and concepts, and encourage reforestation, are given effect if a successor landowner acquires the land encumbered with the conversion intent expressed on the forest practices application and the potential consequences of that disclosure.  In contrast, the intent of the FPA to give local governments a primary role in the conversion process is subverted by an interpretation that leaves a successor landowner free to change the use of the property because local government is not allowed effective review of a conversion's consistency with local land use goals.

            The interpretation that the land is encumbered with the conversion intent is supported by the definition of "forest land owner" in RCW 76.09.020(7) where the focus is the person "in actual control of forest land".[6]  It is the successor landowner, not the prior landowner, that is in actual control of the property.

            This interpretation is also supported by the plain language of the statute.  RCW 76.09.060(3)(b)(i) applies to "any or all applications . . . relating to nonforestry uses of land subject to the application".  If the Legislature had intended to limit the local government's authority to apply only to conversion applications submitted by the original landowner, it could have said so.  Instead, it chose language that focuses on the objective intent expressed on the forest practices application, not the identity of the applicant.  In effect, this intent attaches to and runs with the land subject to the application and the local government's authority to deny conversion applications is not eliminated by a change in ownership.

            Question 3:

            If the county does not deny the new landowner's applications or permits or approvals relating to nonforestry uses of the land, may the new landowner convert the land to a use incompatible with timber growing?

            The FPA contains no specific prohibition against conversion other than the authority granted to local governments in RCW 76.09.060(3)(b) to deny applications or permits.  If a local government does not exercise this authority, the new landowner may convert the land to a use incompatible with timber growing, assuming such a change is lawful in other respects.

            There is no requirement in the FPA that the landowner obtain the county's actual consent before proceeding with a conversion.[7]  However, a failure to obtain consent of the county is deemed a violation of each of the county's authorities to which the forest practice would have been subject if the application had indicated it was going to be converted.  RCW 76.09.060(3)(b)(iii). 

            Question 4:

            If Question 3 is answered in the affirmative, is a new forest practices application necessary to convert the land to a use incompatible with timber growing?

            The answer to your fourth question depends on whether the conversion is a forest practice that requires an application.  To answer your question, you must first decide if the activity is a forest practice.  If not, no application is necessary to convert the land to a use incompatible with timber growing.  If the activity is a forest practice, the next step is to determine the classification of the forest practice.  The last question is whether an application or notification is required for that class of forest practice.  This analysis requires application of several definitions in the FPA and implementing rules to the particular activity in question.

            Is the Activity a Forest Practice?

            First, to be governed by chapter 76.09 RCW, the activities must be a forest practice.  Forest practice is defined by RCW 76.09.020(8) as follows:[8]

                        "Forest practice" shall mean any activity conducted on or directly pertaining to forest land and relating to growing, harvesting, or processing timber, including but not limited to:

                        (a) Road and trail construction;

                        (b) Harvesting, final and intermediate;

                        (c) Precommercial thinning;

                        (d) Reforestation;

                        (e) Fertilization;

                        (f) Prevention and suppression of diseases and insects;

                        (g) Salvage of trees; and

                        (h) Brush control.

            "Forest practice" shall not include preparatory work such as tree marking, surveying and road flagging, and removal or harvesting of incidental vegetation from forest lands such as berries, ferns, greenery, mistletoe, herbs, mushrooms, and other products which cannot normally be expected to result in damage to forest soils, timber, or public resources.

            What Classification is the Forest Practice?[9]

            Assuming the activity is a forest practice, the next step in deciding whether an application is necessary is to classify the forest practice.

            A forest practice that involves any of the activities listed in WAC 222-16-050(1) would be classified as Class IV - Special.  A forest practice limited to the activities listed in WAC 222-16-050(3) would be classified as Class I.  This includes:

            Those operations that have been determined to have no direct potential for damaging a public resource are Class I forest practices.  When the conditions listed in "Class IV - Special" are not present, these operations may be commenced without notification or application.

                        (a) Culture and harvest of Christmas trees and seedlings.

                        (b) Road maintenance except:  (i) Replacement of bridges and culverts across Type 1, 2, 3 or flowing Type 4 Waters; or (ii) movement of material that has a direct potential for entering Type 1, 2, 3 or flowing Type 4 Waters or Type A or B Wetlands.

                        (c) Construction of landings less than 1 acre in size, if not within a shoreline area of a Type 1 Water, the riparian management zone of a Type 2 or 3 Water, the ordinary high-water mark of a Type 4 Water, a wetland management zone or within a wetland.

                        (d) Construction of less than 600 feet of road on a sideslope of 40 percent or less if the limits of construction are not within the shoreline area of a Type 1 Water, the riparian management zone of a Type 2 or Type 3 Water, the ordinary high-water mark of a Type 4 Water, a wetland management zone or within a wetland.

                        (e) Installation or removal of a portable water crossing structure where such installation does not take place within the shoreline area of a Type 1 Water and does not involve disturbance of the beds or banks of any waters.

                        (f) Initial installation and replacement of relief culverts and other drainage control facilities not requiring a hydraulic permit.

                        (g) Rocking an existing road.

                        (h) Loading and hauling timber from landings or decks.

                        (i) Precommercial thinning and pruning.

                        (j) Tree planting and seeding.

                        (k) Cutting and/or removal of less than 5,000 board feet of timber (including live, dead and down material) for personal use (i.e., firewood, fence posts, etc.) in any 12-month period.

                        (l) Emergency fire control and suppression.

                        (m) Slash burning pursuant to a burning permit (RCW 76.04.205).

                        (n) Other slash control and site preparation not involving either off-road use of tractors on slopes exceeding 40 percent or off-road use of tractors within the shorelines of a Type 1 Water, the riparian management zone of any Type 2 or 3 Water, or the ordinary high-water mark of a Type 4 Water, a wetland management zone or within a wetland.

                        (o) Ground application of chemicals.  (See WAC 222-38-020 and 222-38-030.)

                        (p) Aerial application of chemicals (except insecticides) when applied to not more than 40 contiguous acres if the application is part of a combined or cooperative project with another landowner and where the application does not take place within 100 feet of lands used for farming, or within 200 feet of a residence, unless such farmland or residence is owned by the forest landowner.  Provisions of chapter 222-38 WAC shall apply.

                        (q) Forestry research studies and evaluation tests by an established research organization.

                        (r) Any of the following if none of the operation or limits of construction takes place within the shoreline area of a Type 1 Water or the riparian management zone of a Type 2 or 3 Water, or within the ordinary high-water mark of a Type 4 Water or flowing Type 5 Water, and the operation does not involve off-road use of tractor or wheeled skidding systems on a sideslope of greater than 40 percent:

                        (i) Any forest practices within the boundaries of existing golf courses.

                        (ii) Any forest practices within the boundaries of existing cemeteries which are approved by the cemetery board.

                        (iii) Any forest practices involving a single landowner where contiguous ownership is less than two acres in size.

                        (s) Removal of beaver structures from culverts on active and inactive roads.  An hydraulics project approval from the Washington department of wildlife or the Washington department of fisheries may be required.

State Register 92-15-011 (1992).

            A forest practice other than a Class I or a Class IV - Special, conducted on lands platted after January 1, 1960, or on lands being converted to another use would be classified as a Class IV - General.  A forest practice on lands with a likelihood of future conversion[10]  that would otherwise be a Class III forest practice would also be classified as Class IV - General.

            Because of the structure of the rules, a conversion to a use incompatible with timber growing could not be classified as a Class III forest practice.  WAC 222-16-050(5).  Nor could a conversion be classified as a Class II forest practice.  WAC 222-16-050(4).[11]

            Is an Application or Notification Necessary?

            RCW 76.09.050(2) prohibits commencement of all forest practices except a Class I forest practice unless DNR has received a notification for a Class II or approved an application with regard to a Class III or Class IV forest practice.  If the forest practice is a Class I, then no application or notification would be necessary.  However, if the forest practice is a Class IV - General, or a Class IV - Special, an application would be required.  WAC 222-16-050(1), (2).[12]

            We trust this opinion will be of assistance to you.

                                    Very truly yours,

                                    KENNETH O. EIKENBERRY
                                    Attorney General

                                    PATRICIA HICKEY O'BRIEN
                                    Assistant Attorney General

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    [1]       The version of WAC 222-16-050 currently in effect is published in the Washington State Register at State Register 92-15-011 (1992).

    [2]       RCW 76.09.240 provides:

                        No county, city, municipality, or other local or regional governmental entity shall adopt or enforce any law, ordinance, or regulation pertaining to forest practices, except that to the extent otherwise permitted by law, such entities may exercise any:

                        (1) Land use planning or zoning authority:  Provided, That exercise of such authority may regulate forest practices only: (a) Where the application submitted under RCW 76.09.060 as now or hereafter amended indicates that the lands will be converted to a use other than commercial timber production; or (b) on lands which have been platted after January 1, 1960:  Provided, That no permit system solely for forest practices shall be allowed; that any additional or more stringent regulations shall not be inconsistent with the forest practices regulations enacted under this chapter; and such local regulations shall not unreasonably prevent timber harvesting;

                        (2) Taxing powers;

                        (3) Regulatory authority with respect to public health; and

                        (4) Authority granted by chapter 90.58 RCW, the "Shoreline Management Act of 1971" . . . .

The rest of RCW 76.09.240(4) has been declared unconstitutional in Weyerhaeuser Co. v. King Cy., 91 Wn.2d 721, 592 P.2d 1108 (1979).

    [3]       This statute was amended in 1992.  Laws of 1992, ch. 52, § 22, p. 172.

    [4]       See Plummer, The Obligation to Reforest Private Land Under the Washington Forest Practices Act, 56 Wash. L. Rev. 717 (1981).

    [5]       Repealed by Laws of 1986, ch. 100, § 59, p. 309.

    [6]       WAC 222-16-010 contains a similar definition.

    [7]       Local ordinances or other statutes may require county consent.

    [8]       WAC 222-16-010 contains a similar definition.

    [9]       Regardless of what class the forest practice is, all forest practices must be conducted in accordance with the forest practices regulations.  RCW 76.09.050(4).

    [10]      See WAC 222-16-060 for a definition of lands with a likelihood of future conversion.

    [11]      Forest practices that take place on lands platted after January 1, 1960, or on lands being converted to another use are expressly prohibited from classification as Class II.  WAC 222-16-050(4).  A forest practice on lands with a likelihood of future conversion listed in WAC 222-16-050(4)(d) may be classified as a Class II, but those listed in WAC 222-16-050(4)(e) may not.

    [12]      A forest practice on lands with a likelihood of future conversion that is classified as Class II under WAC 222-16-050(4)(d) would require notification to DNR.

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