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AGO 1969 No. 18 - September 24, 1969
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Slade Gorton | 1969-1980 | Attorney General of Washington


DISTRICTS - PORT - TIDELAND LEASES - DISPOSITION OF RENTALS.

(1) Such amounts as the board of natural resources deducts from rentals on harbor area or tideland leases under the authority of RCW 79.64.040 are to be subtracted from the total amount paid in determining the net amount of rental proceeds available for disposition under RCW 79.16.180.

(2) Where a port district, after the effective date of the amendment to RCW 79.16.180 which was contained in § 2, chapter 105, Laws of 1967, Ex. Sess., constructs improvements on leased harbor areas or tidelands belonging to the state of Washington, but situated within the territorial limits of the district, the district is to receive the entire net rental attributed to the improvements (as before) but is to receive only twenty-five percent of the net rental attributable to the underlying leased area not considering the improvements.

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                                                              September 24, 1969

Honorable Bert L. Cole
Commissioner of Public Lands
P.O. Box 168
Olympia, Washington 98501

                                                                                                                 Cite as:  AGO 1969 No. 18

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on two questions which we paraphrase as follows:

            (1) Are such amounts as the board of natural resources deducts from rentals paid on harbor area or tideland leases under the authority of RCW 79.64.040 to be subtracted from the total amount paid in determining the amount of rental proceeds available for disposition under RCW 79.16.180?

            (2) Where a port district, after the effective date of the amendment to RCW 79.16.180, which was contained in § 2, chapter 105, Laws of 1967, Ex. Sess., constructs improvements on leased harbor areas or tidelands belonging to the state of Washington, but situated within the territorial limits of the district, how is the port district's share of rentals which are paid to the state under the lease to be ascertained?

             [[Orig. Op. Page 2]]

            We answer the first question in the affirmative and the second question as set forth in our analysis.

                                                                     ANALYSIS

            For ease of reference, we shall set forth at the outset the pertinent portions of the two statutes involved in your questions.

            RCW 79.64.040 codifies § 4, chapter 178, Laws of 1961, as amended by § 2, chapter 63, Laws of 1967, Ex. Sess.  It relates to the funding of the resource management cost account1/ and reads as follows:

            "The board [of natural resources of the department of natural resources] shall determine the amount deemed necessary in order to achieve the purposes of this chapter and shall provide by rule for the deduction of this amount from the gross proceeds of all leases, sales, contracts, licenses, permits, easements, and rights of way issued by the department and affecting public lands.  The deductions authorized under this section shall in no event exceed twenty percent of the total sum received by the department in connection with any one transaction."

            RCW 79.16.180 covers the disposition of rents paid under leases of harbor areas and tidelands belonging to the state.  As amended by § 2, chapter 105, Laws of 1967, Ex. Sess., this statute reads, in material part, as follows:

            "In cases where the leased harbor area or tideland is situated within the territorial limits of a port district already created or to be hereafter created under the laws of the state of Washington, ((seventy-five)) twenty-five percent of the rents received for such cases shall be paid by the state treasurer to the county treasurer of the county wherein such port district is situated for the use of such port district and go into a special fund to be  [[Orig. Op. Page 3]] expended only for harbor or water front improvement purposes and the remaining ((twenty-five))seventy-five percent shall be ((paid-into)) deposited in the capitol purchase and development account of the general fund of the state treasury and shall only be subject to appropriation for purchasing, improving, and managing the east capitol site; except that in cases where the port district itself shall have presently constructed or shall now own existing structures or improvements situate upon leased harbor areas, or tidelands, the entire rentals of such improved area or tideland shall go to such port district:  PROVIDED, That whenever the port district shall hereafter construct improvements on such leased harbor areas or tideland the rental attributable to such improvements shall go to the port district. . . ."

            Question (1):

            Your first question is whether the amounts to be deducted from the gross proceeds of rental payments under the first of these statutes are to be subtracted from the total amount paid in determining the amount of rental proceeds available for disposition under the second statute.

            In considering this question, we must keep in mind the well-established rule of statutory construction that where statutes are in pari materia, they should be construed together.  This rule is peculiarly applicable where, as here, both statutes were amended at the same session of the legislature.  State ex rel. Oregon R. & N. Co. v. Clausen, 63 Wash. 535, 116 Pac. 7 (1911).

            RCW 79.64.040,supra, speaks of funding the resource management cost account by means of deductions from rental revenues received under "all leases . . . issued by the department and affecting public lands . . ." RCW 79.64.010, which contains the definitions of certain terms for the purposes of chapter 79.64 RCW, states that unless a different meaning is plainly required by the context, "the definitions set forth in RCW 79.01.004 shall be applicable."  The term "public lands" is defined by RCW 79.01.004 as follows:

             [[Orig. Op. Page 4]]

            "Public lands of the state of Washington are lands belonging to or held in trust by the state, which are not devoted to or reserved for a particular use by law, and include state lands, tidelands, shorelands and harbor areas as hereinafter defined, and the beds of navigable waters belonging to the state."

            We find nothing in RCW 79.64.040, supra, which can be said to "plainly require" some other meaning than this to be given to the term "public lands" as used therein.  Thus, it follows that the leases referred to in RCW 79.64.040 i.e.,all leases issued by the department and affecting public lands must include such leases of harbor areas and tidelands located within a port district as are referred to in RCW 79.16.180, supra.

            This reasoning process, together with the rule of statutory construction noted above, leads us to conclude that all harbor area and tideland rentals received under RCW 79.16.180 (as amended by § 2, chapter 105, Laws of 1967, Ex. Sess.) are subject to the provisions of RCW 79.64.040 and, therefore, that the deduction provided for in this latter statute should first be made before disposing of the remaining rental proceeds in accordance with the former.

            Question (2):

            Your second question, repeated for ease of reference, is as follows:

            Where a port district, after the effective date of the amendment to RCW 79.16.180, which was contained in § 2, chapter 105, Laws of 1967, Ex. Sess., constructs improvements on leased harbor areas or tidelands belonging to the state of Washington, but situated within the territorial limits of the district, how is the port district's share of rentals which are paid to the state under the lease to be ascertained?

            Prior to its amendment by § 2, chapter 105, Laws of 1967, Ex. Sess., RCW 79.16.180 required the payment of seventy-five percent of the rentals from leases of harbor areas and tidelands to port districts where such lands were located within the boundaries of the port districts.  The qualification to this disposition was contained in the exception which formerly read as follows:

             [[Orig. Op. Page 5]]

            ". . . except that in cases where the port district itself shall have constructed or shall own structures or improvements situate upon leased harbor areas, or tidelands, the entire rentals of such improved area or tideland shall go to such port district . . ."

            Thus, it is clear that prior to April 28, 1967,2/ the port districts which encompassed leased harbor areas or tidelands owned by the state received the full amount of the rentals (less the charges attributable to the resource management cost account) where they either constructed or owned the improvements on the leased areas.  See, AGO 1913-14 No. 341.

            Section 2, chapter 105, Laws of 1967, Ex. Sess., changed the percentage of the rents payable to the port district to twenty-five percent and allocated the remaining seventy-five percent to the capitol purchase and development account of the general fund of the state treasury.  The exception was amended by addition of the words "presently," "now," and "existing," and by addition of a new proviso, to read as follows:

            ". . . except that in cases where the port district itself shall havepresently constructed or shall now ownexisting structures or improvements situate upon leased harbor areas, or tidelands, the entire rentals of such improved area or tideland shall go to such port district:  PROVIDED, That whenever the port district shall hereafter construct improvements on such leased harbor areas or tidelands the rental attributable to such improvements shall go to the port district. . . ."

            We find it manifestly clear that the legislature intended a change in existing law by the addition of the words "presently," "now," and "existing," in the exception to the general provisions of the statute.  The legislature is presumed not to have used superfluous words.  State v. Lundquist, 60 Wn.2d 397, 374 P.2d 246 (1962).  Where a material change is made in the wording of a statute, a change in legislative purpose must be presumed.  Graffell v. Honeysuckle, 30 Wn.2d 390, 191 P.2d 858 (1948).

             [[Orig. Op. Page 6]]

            Applying these rules, we conclude that the legislature intended to place a time restriction on those situations where the port district would receive one hundred percent of the net rents; namely, it restricted such disposition of rental proceeds to cases of rents received under harbor area and tideland leases covering lands upon which the port district, as of the effective date of the amendment, had already constructed or had acquired ownership of structures or improvementsthen in existence.  Conversely, in all other cases, the amendatory proviso would operate.

            This view finds further support in the rule of statutory construction that exceptions and provisos are strictly construed and doubts are resolved in favor of the general provisions of a statute.  State v. Christensen, 18 Wn.2d 7, 137 P.2d 512 (1943).  The function of a proviso is to restrain or modify that portion of the enactment which immediately precedes it.  See,Bayha v. Public Utility Dist. No. 1, 2 Wn.2d 85, 97 P.2d 614 (1939);McKenzie v. Mukilteo Water Dist., 4 Wn.2d 103, 102 P.2d 251 (1940).  Once there is an express exception, generally, the statute applies to all other cases not excepted and further exceptions are not implied.  In re The Monks Club, Inc., 64 Wn.2d 845, 394 P.2d 804 (1964).

            Therefore, in direct answer to your second question, it is our conclusion that in the case of a port district constructing improvements on leased harbor areas or tidelands after the effective date of § 2, chapter 105, Laws of 1967, Ex. Sess.,supra, the district is to receive the entire net rental3/ attributed to the improvements (as before), but is to receive only twenty-five percent of the net rental attributable to the underlying leased area not considering the improvements.

             [[Orig. Op. Page 7]]

            We trust the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

THEODORE O. TORVE
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/The purpose of this account is to defray the costs of the department of natural resources in managing and administering all public lands under its jurisdiction.  See, RCW 79.64.020.

2/The effective date of chapter 105, Laws of 1967, Ex. Sess., in accordance with § 13 thereof.

3/I.e., after deducting for the resource management cost account, in accordance with our answer to question (1).

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