Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1992 NO. 3 >

1.  The Enabling Act and article 16, section 1 of the Washington Constitution constitute a declaration of trust with regard to the property granted to the State by the United States in the Enabling Act.  The constitutional trust established in article 16, section 1 does not apply to land donated to the Washington Territory that was not confirmed or reconveyed to the State in the Enabling Act. 2.   The State's ability to use or transfer property acquired from the United States by grant is limited by any restrictions contained in the federal grant.  However, since title to the property rests with the State, it may use or transfer the property as it chooses, so long as the State's use or transfer conforms to the restrictions in the grant.  3.  Under RCW 79.01.006(2), federal restrictions on property, that limit its use to public recreational and other specific purposes, are binding conditions that conflict with other provisions of RCW 79.01.006.  Therefore, property subject to such restrictions is not included in the corpus of the educational, penal, and reformatory institution account pursuant to chapter 79.01 RCW.

AGO 1955 NO. 8 >

1. The state does not own and has no interest in rents that do, and insurance proceeds that may, accrue from a dock built by a first class city on a public place in a harbor area.  2. First class city may pay expenses of maintenance, repair and insurance on a municipal dock.

AGO 1996 NO. 11 >

1. The Enabling Act facilitating the admission of Washington into the union (25 Stat. 676) is a limitation on state legislative authority and requires that federal grant lands be held in trust; exercises of legislative authority over federal grant lands will be tested by fiduciary principles. 2.  Common law trust principles are instructive with respect to the administration of federal trust lands by the State, but the Legislature's management decisions are accorded a deference not granted a private trustee because of the presumption of constitutionality that applies to exercises of state legislative authority. 3.  Federal and state laws of general application (such as the Endangered Species Act) apply to federal grant lands administered by the State. 4.  The State's duties as trustee of federal grant lands run separately to each trust; joint administration is permissible where it serves the interests of each trust, so long as each trust is separately accounted for. 5.  The State must separately account for each federal land grant trust, and maintain separate funds or accounts to that end. 6.  The Legislature may lawfully delegate to the Department of Natural Resources and the Commissioner of Public Lands a role in administering forest lands within the State, including federal grant lands, while simultaneously authorizing the same agency and officer to play a role in regulating such lands. 7.  In its administration of federal trust lands, the Department of Natural Resources is not subject to chapters 11.98, 11.100, 11.106 or 11.110 RCW. 8.  The Department of Natural Resources has the authority to satisfy the requirements of the Endangered Species Act by entering into a long-term management plan, so long as the plan does not violate the Department's common law or statutory duties regarding the federal grant land trusts. 9.  The exercise of discretion by the Department of Natural Resources with respect to administration of federal grant lands will be tested against an abuse of discretion standard; as against a trust beneficiary, principles regarding a trustee's exercise of discretion would apply, while as against a non-beneficiary, principles of administrative law would apply. 

AGLO 1981 NO. 14 >

The entitlement granted to purchasers of state‑owned tidelands for oyster growing by § 9, chapter 24, Laws of 1895 (Bush Act) to purchase substitute tidelands at a later date if the original tidelands became ". . . unfit and valueless for the purposes of oyster planting, . . ." was effectively preserved by § 1, chapter 47, Laws of 1935, notwithstanding the general repeal of chapter 24, Laws of 1895 by that latter enactment; however, the later enacted "Gissberg Amendment," chapter 217, Laws of 1971 (RCW 79.01.470), prohibits the state from selling either (a) state‑owned reversionary rights in tidelands previously sold under the Bush and Callow Acts (chapters 24 and 25, Laws of 1895) or (b) other state‑owned tidelands to persons seeking to exercise their right or privilege of substitution under § 9, chapter 24, Laws of 1895, supra.

AGO 1984 NO. 25 >

(1) Funds generated from the management, sale or other disposition of public lands granted at statehood for charitable, educational, penal and reformatory institutions (CEP & RI) by § 17 of the state's Enabling Act may be appropriated by the legislature for support of specific state institutions. (2) Designated state institutions may, as well, be allowed by the legislature, in the exercise of reasonable prudence related to fulfillment of the particular trust purpose, to utilize CEP & RI lands themselves for their institutional purposes without cost. (3) The state's community colleges are among the classes of educational institutions for the benefit of which CEP & RI lands, or revenues derived therefrom, may be applied or appropriated.

AGLO 1981 NO. 27 >

In view of the source of the appropriation involved it would be improper for the state to purchase the Milwaukee Railroad right-of-way and existing bridges from Easton in Kittitas County to Tekoa in Whitman County, in accordance with § 17, chapter 143, Laws of 1981, with the present intent or plan to use the subject property for a purpose other than recreation; however, based upon a material change of circumstances following its acquisition, justifying a corresponding change in use, it would be permissible for the legislature to authorize such an ensuing change in use of the land.

AGLO 1973 NO. 48 >

Senate Bill No. 2177, relating to the taxation of agricultural lands, would be constitutional under the "open space" amendment to the state Constitution (Article VII, § 11, Amendment 53) if enacted in the form submitted for opinion.

AGLO 1976 NO. 75 >

The exemption contained in § 3(1)(f) of the land development act of 1973 (chapter 12, Laws of 1973, 1st Ex. Sess.) now codified as chapter 58.19 RCW, does not apply to a lot or parcel of land which was not situated within an incorporated city or town prior to January 1, 1974 (the effective date of the act) but which has since become a part of such a municipality through annexation.

AGLO 1974 NO. 80 >

The provisions of RCW 79.01.780 require a reversion to the state of the interest conveyed under either RCW 79.01.096 or 79.01.770 in the event the land thus acquired has not been utilized for a school site for that seven-year period immediately preceding a given annual determination by the board of natural resources ‑ regardless of whether or not the land may have earlier been so utilized for seven previous years.

AGO 1960 NO. 150 >

The legislature may require in all leases and grazing permits for the use of public lands, and all contracts for the sale of valuable materials from public lands, including school lands granted to the state of Washington under § 10 of the Enabling Act, a provision for reimbursement to the state of costs of administration and land conservation measures without violating the terms of the grant or Article IX, § 3, of the Constitution.