Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1955 No. 180 - Dec 28 1955
Attorney General Don Eastvold


A portion of a fire district may withdraw from the district and join an adjoining district, regardless of the consent of the commissioners of the district in which it is presently located, provided statutory procedure is complied with; a fire district may contract with another fire district to furnish fire protection to an area wholly within another district; and a fire district has the duty to furnish fire protection to the transportation operations of an airport operated by a port district within the fire district boundaries.

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                                                               December 28, 1955

Honorable Andy Hess
State Representative, 31st District
Burien, Washington                                                                                                              Cite as:  AGO 55-57 No. 180

Dear Sir:

            You have requested an opinion from this office on the following questions:

            1. May a portion of a fire district withdraw from the district and join an adjoining district without the consent of the commissioners of the district in which they are presently located?

            2. May a fire district contract to furnish fire protection to an area wholly within the confines of another fire district?

            3. Where an airport's operation is conducted by a port district within the boundaries of a fire district, which district has the duty to furnish fire protection to the transportation operations of the airport?

            We answer your questions as follows:

            1. Yes, provided the procedure established in RCW 52.24.090 is followed.

             [[Orig. Op. Page 2]]

            2. Yes, provided that the contract is made between the two fire districts involved.

            3. The fire district has the duty to furnish fire protection to the transportation operations of the airport.


            1. The procedure by which a portion of a fire protection district may withdraw from the district and join an adjacent district is set forth in § 5, chapter 176, Laws of 1953, codified as RCW 52.24.090.

            This statute provides that a part of a district may be transferred and merged with an adjoining district through a process initiated either by the commissioners of the former district or by fifteen percent of the electors resident in the area seeking to be merged.  If the commissioners do not wish the transfer to take place, the statute clearly indicates that the electors of the area may proceed without their sanction.

            2. Section 6, chapter 254, Laws of 1947, codified as RCW 52.08.030, gives fire protection districts the power

            "* * * To contract with another County Fire‑Protection District, or with any town, city or municipal corporation or governmental agency or private person or persons to consolidate or cooperate for mutual fire fighting protection and prevention purposes; * * *"

            This language allows fire protection districts wide latitude in contracting to give fire protection service beyond their boundaries.  However, we are of the opinion that this statute does not give fire protection districts the right to contract to serve such towns, municipal corporations, governmental agencies or persons as are already within and being served by an established fire protection district,unless the contract is made with the district itself.

            A fire protection district has the statutory duty to serve the areas within its boundaries.  When the voters established the district, they intended that it should serve these areas, and it cannot be ousted save by the voters themselves,  [[Orig. Op. Page 3]] acting in accordance with statutory procedure.  For part of a district to contract independently for service from an outside district would be to violate the general rule that there cannot be two municipal corporations at the same time within the same territory exercising the same powers.  SeeRoyer v. Public Utility District No. 1, 186 Wash. 142 at 148.

            3. It is apparent that in the absence of other law to the contrary, a fire protection district would have the duty to furnish fire protection to the transportation operations of an airport located within its boundaries.  RCW 52.04.060 provides, in connection with the petition which is the first step in the creation of such a district:

            "* * * No land within the boundaries described in the petition, except that which the commissioners find will receive no benefit from the proposed district, shall be excluded from the district."

            The problem arises in the construction of chapter 14.08 RCW, the so-called Revised Airports Act.  Does this law give airports the duty of furnishing their own fire protection, independently of the fire districts in which they are located?

            That it was the intent of the legislature to make municipal airports created under this act as independent as possible from the jurisdiction of municipalities in which they might be located, would seem to be implicit from the following language of RCW 14.08.330:

            "Every airport and other air navigation facility controlled and operated by any municipality, or jointly controlled and operated, shall, subject to federal and state laws, rules, and regulations, be under the exclusive jurisdiction and control of the municipality or municipalities controlling and operating it and no other municipality in which such airport or air navigation facility is located shall have any police jurisdiction thereof or any authority to charge or exact any license fees or occupation taxes for the operations thereon.  * * *"

             [[Orig. Op. Page 4]]

            However, this statute was strictly construed by the supreme court in the case ofKing County v. Port of Seattle, 37 Wn. (2d) 338.  There it was urged that the quoted language completely removed the territory comprising the Seattle‑Tacoma airport from the jurisdiction of King County, because the port is thereby given "exclusive jurisdiction and control" of the area.  In refutation of this argument, the court said, at page 348:

            "We are of the opinion that Rem. Supp. 1945, § 272244, does not, nor does it attempt to, remove this territory from King County.  The effect of this section, when read in the light of the entire revised airports act, is merely to preclude appellant from interfering with respect to the operation of the Seattle‑Tacoma airport and forbids appellant's exacting any license fees since the legislature has declared its policy to be that the responsibility of providing adequate and satisfactory transportation and other public services shall belong to the Port.  No territory is stricken from King County.  The legislature by general law has taken away from appellant its power to exact license fees within the airport.  This was its prerogative."

            Nowhere in the Revised Airports Act did the legislature specifically authorize airports to provide their own fire protection, as it did for example, with respect to towns.  See RCW 35.27.370.  Therefore it would seem unwarranted to assume that it was the legislative intent to remove this duty from the fire districts in which such airports might be located.

            This does not mean that a port district is precluded from establishing such fire protection measures as it may feel are specially necessary for the proper operation of an airport under its control.  This would seem to be clearly implied from the language of RCW 14.08.120 which reads in part as follows:

            "In addition to the general powers herein conferred, and without limitation thereof, a municipality which has established or may hereafter establish airports,  [[Orig. Op. Page 5]] restricted landing areas, or other air navigation facilities, or which has acquired or set apart or may hereafter acquire or set apart real property for such purpose or purposes may:

            "(1) Vest authority for the construction, enlargement, improvement, maintenance, equipment, operation, and regulation thereof in an officer, board, or body of such municipality by ordinance or resolution which shall prescribe the powers and duties of such officer, board or body.  The expense of such construction, enlargement, improvement, maintenance, equipment, operation, and regulation, shall be a responsibility of the municipality.

            "(2) Adopt and amend all needful rules, regulations, and ordinances for the management, government, and use of any properties under its control, whether within or without its territorial limits; appoint airport guards or police, with full police powers; * * *

            "It may also adopt rules, regulations, and ordinances designed to safeguard the public upon or beyond the limits of private airports or landing strips within such municipality or its police jurisdiction against the perils and hazards of instrumentalities used in aerial navigation."

            Nevertheless the primary authority and responsibility with respect to fire protection of the transportation operations of the airport must remain with the fire district, and any such measures must be adopted with this in mind.

            We hope the foregoing analysis will prove helpful.

Very truly yours,

Attorney General

Assistant Attorney General

Assistant Attorney General