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Bob Ferguson

AGO 1956 No. 294 -
Attorney General Don Eastvold


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                                                                    July 10, 1956

Honorable Arnold R. Zempel
Prosecuting Attorney
Snohomish County
County Court House
Everett, Washington                                                                                                              Cite as:  AGO 55-57 No. 294

Attention:  Mr. John N. Leavitt, Deputy

Dear Sir:

            We have your inquiry previously acknowledged, in which you ask three questions arising from the following facts:

            The division of forestry by letter has requested that certain described lands be exempted from the levy of fire protection districts of Snohomish county.  The exemption is apparently based upon the fact that the lands are listed with the Washington Forest Fire Association, which association, you presume, is a "cooperative association" formed pursuant to the provisions of RCW 76.04.400.

            You have asked our opinion on the following questions:

            1. Is the listing of forest lands with such an association the equivalent of payment of fire patrol assessments under the provisions of RCW 76.04.360?

             [[Orig. Op. Page 2]]

            2. In view of the fact that the fire district law exempts only lands required to pay forest protection assessments while RCW 76.04.350 requires the owner to protect forest lands, does membership in a private association such as the Washington Forest Fire Association automatically withdraw lands listed therewith from fire protection district assessments?

            3. Should the county assessor and treasurer be notified to withdraw lands from taxation by fire protection districts where such lands are listed with a "cooperative association," and if so, what form of notification should be given as evidence that the Washington Forest Fire Association is a "responsible protection agency composed of dependable owners" as contemplated by RCW 76.04.400?

            We answer all your questions in the negative.


            The lands involved in your situation are referred to in the statutes under consideration as "forest lands," which are found defined in § 6, chapter 105, Laws of 1917, now codified as part of RCW 76.04.010, as "any land . . . which has enough timber, standing or down, or inflammable debris, to constitute in the judgment of the [director] a fire menace to life and property."

            Owners of such forest lands are required to "provide, during the season of the year when there is danger of forest fires, adequate protection against the spread of fire" (RCW 76.04.350), and the failure so to do authorizes the supervisor of forestry to provide such protection and to report the cost thereof to the county assessor to be assessed and collected against the property in the same manner as other state and county taxes (RCW 76.04.360).  State ex rel. Showalter v. Goodyear, 30 Wn. (2d) 834.

            The fire protection district act provides in three places (RCW 52.04.030, 52.16.120 and 52.16.130) that taxes for the support of such districts shall not be levied upon "those lands within the district which are now or will hereafter be required to pay forest protection assessments."  It is thus indicated, and we have so held in an opinion to the supervisor of forestry dated April 9, 1953 (AGO 53-55-9), that these sections prohibit fire protection districts from levying against forest lands which are already taxes for forest patrol assessments under RCW 76.04.360, supra.  The opinion further indicates that there is not prohibition against such a levy  [[Orig. Op. Page 3]] against forest lands which, during any period, are not taxed for forest patrol assessments.

            It is to be noted that the owner of forest lands is required to "make every reasonable effort to control and extinguish" any fire originating on his land, and upon his failure so to do, after notice, the costs of such fire fighting by the state can be recovered or enforced as a lien against the land.  The payment of forest patrol assessments on the land is "interpreted as a reasonable effort in suppressing and extinguishing any fire on the land" except those started as a result of the owner's negligence or resulting from fire hazards under the slash responsibility statute (RCW 76.04.380).

            Consequently, the importance of the payment of forest patrol assessments by the owner as evidence of the reasonable effort required of him in suppressing fire on his forest lands, except those due to his own negligence or resulting from fire hazards created by slash, is apparent.

            The same act (chapter 105, Laws of 1917) which instituted the policy of forest patrol assessments to provide protection by a state agency, also contained provision for cooperative protection (§ 5, now RCW 76.04.400).  From this, it seems to have been the intention of the legislature to require such protection either by the state, or by an approved cooperative arrangement between timber owners.

            It follows from the foregoing that a cooperative protective agency is authorized, under RCW 76.04.400, to render forest protection which, when so provided, constitutes such adequate fire protection required by RCW 76.04.350 that fire patrol assessments under RCW 76.04.360 will not be required.  In other words, a cooperative protective association is authorized to provide adequate protection so that such protection will not be required from a state agency.  We believe this to have been the intent of the legislation when the statutory requirements have been complied with.  RCW 76.04.400 was later implemented by chapter 45, Laws of 1933, now codified as RCW 76.04.410-76.04.440, which permits the supervisor of forestry to contract for the protection of forests or any designated forest area with private corporations or rural fire protection districts (76.04.410 and 76.04.420) in a manner and under conditions outlined (76.04.430 and 76.04.440).  So, if adequate fire protection is provided as hereinbefore outlined, the duty is discharged and does not fall upon the state to perform, and not being required to be performed by the state, no expenses are incurred which require the imposition of fire patrol assessments.

             [[Orig. Op. Page 4]]

            Following this explanation and correlation of the statutory provisions, we apply them to your questions in the following manner:

            1. Forest patrol assessments are only assessed against forest lands after having been reported to the county assessor by the supervisor of forestry as having had fire protection provided by the state.  When adequate fire protection is provided by other agencies, the supervisor of forestry does not report such lands for such assessment.  The omission to report such lands would be indicative that no forest fire assessments were due because of adequate fire protection being provided.  The basis for listing, or not listing, forest lands for fire patrol assessment, is whether or not it is listed in the report of the supervisor of forestry to the county assessor as lands on which the state afforded the fire protection.

            Specifically answering your question as put, the mere listing of forest lands with a protective agency does not of itself constitute the equivalent of payment of fire patrol assessments.

            2. But for the exemptions provided in the fire protection district law (RCW 52.04.030 and 52.16.130) to lands "required to pay forest protection assessments," there would be no question but what all lands within a fire protection district would be required to pay the district levy.  The question then is to the extent which the exemption applies.

            "It is a well-recognized rule that grants of immunity from taxation are to be strictly construed and every doubt resolved in the right to collect the tax."  Boeing Aircraft Co. v. R. F. C., 25 Wn. (2d) 652.

            This rule requires strict construction in favor of the public and the right to tax.  Norwegian Lutheran Church v. Wooster, 176 Wash. 581.

            Here, the exemption applies only to lands which are "requiredto pay forest protection assessments."  If none are paid, there is no exemption.  The immunity is only from forest patrol assessments and the exemption from fire protection district assessments is only when the lands are required to pay such assessments.

            Following our analysis as hereinbefore set out, the levy of fire patrol assessments is an incident to the providing of fire protection by the state, and this is required only when the supervisor of forestry has reported that the property owner has failed to do so himself.  In other  [[Orig. Op. Page 5]] words, the state assumes the responsibility which the owner has failed to provide, and levies assessments for so doing.  The legislature has provided, however, that only one tax levy be made on forest lands in fire protection districts for fire protection.  That is as far as we construe the exemption to extend.

            Consequently, it follows that forest lands in a fire protection district which are not required to pay forest protection assessments under RCW 76.04.360 must be assessed for fire protection district levies the same as other lands in the district, the only lands in the fire protection district exempt from its levy being those forest lands which are required to pay the forest patrol assessment.

            3. Since the only exemption is against two levies, one for fire patrol assessments and the other for fire protection districts, the mere affording of fire protection required by RCW 76.04.350 by private agencies simply qualifies the land for exemption from the charge of protection by the state agency as provided in RCW 76.04.360, and has no bearing on the attachment of the fire protection district levy on lands within its boundaries not "required to pay forest protection assessments."

            The only report required is that contemplated by RCW 76.04.350 of lands upon which the state has furnished fire protection and the amount thereof to be levied and assessed against each tract by reason of the failure of the owner to provide the protection required of him.

            We trust the foregoing analysis will be helpful to you.

Very truly yours,

Attorney General

Assistant Attorney General