Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1973 No. 51 -
Attorney General Slade Gorton

 The department of game is not entitled to compensation under Article I, § 16 (Amendment 9) of the state Constitution when the state highway department acquires property for a highway through an area designated by the game department as a game reserve pursuant to RCW 77.12.040.
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                                                                   May 10, 1973
 Honorable Carl N. Crouse
Department of Game
600 N. Capitol Way
Olympia, Washington 98504
Honorable G. H. Andrews
Department of Highways
Highway Administration Building
Olympia, Washington 98504
                                                                                                               Cite as:  AGLO 1973 No. 51
            The following is written in response to your mutual request for an opinion of this office on a legal question which we paraphrase as follows:
            Is the Department of Game entitled to compensation when the Department of Highways acquires property for a highway through an area designated by the Game Commission as a "game reserve" pursuant to RCW 77.12.040?
            The relevant factual information relating to this matter is as follows:
            The Yakima River Game Reserve (more commonly known and hereafter referred to as the Prosser Game Reserve) is located near Prosser, Washington, and extends easterly from that town, along and on either side of the Yakima River.  It was established by the Washington State Game Commission pursuant to a regulation adopted September 18, 1935, according to statutory authority.  RRS 5855-6 (Laws of 1933, ch. 3, § 12, p. 29; RCW 77.12.040).  Apparently the reserve had been previously established by Benton County in 1935 and was incorporated in full by the state Game Commission.  Since that time the game reserve has not been changed.  See, WAC 232-16-010 and WAC 232-16-540.
            The reserve exists primarily to provide a natural resting area for resident and migratory game and fowl.  Within the reserve, which is marked by a system of signs delineating its boundaries, the taking of wildlife is strictly prohibited.
             [[Orig. Op. Page 2]]
            Several categories of property owners are evident within the 652 acres designated as the reserve.  They include numerous private individuals, a railroad, the Port of Benton County Industrial Park, which at present includes two processing operations, the Prosser sewage treatment plant and its attendant spray area and an irrigation district canal.  The present usage of the game reserve area is approximately as follows:
                                                                                                                        Percent                                     Acres
            Burlington Northern Railroad                            9.58                             62.50
            Residential                                                                    1.41                             9.25
            Yakima River                                                               14.04                           91.57
            City of Prosser Treatment Plant             3.73                             24.18
            Agricultural                                                                   52.12                           339.75
            K.I.D. Ownership and Canal                            6.87                             44.85
            Port of Benton County                                      12.25                           79.90
                                                                                                            100.00                         652.00
            As the ownerships suggest, the current uses of the land within the reserve are varied.  Agricultural activities predominate, but, in addition, there are other uses associated with the above‑mentioned interests.
            SR 82, West Prosser Interchange to Junction SR 182, is the proposed highway project involved in your question.  As concerns the Prosser Game Reserve, SR 82 is a four-lane, limited access facility; no interchanges or access points are projected for the area of the reserve.  The proposed right of way requires the acquisition of about 47 acres of the land within the reserve and will approximately divide the reserve into equal parts.
            It is understood that your agencies have agreed that the proposed highway construction will have a detrimental effect on the use of the area as a game reserve.  The extent of this detrimental effect need not be considered for the purpose of this opinion.
            The interests of the State of Washington in game animals are administered by the Game Commission, which operates through the Department of Game.  See, chapter 77.04 RCW.  The Game Code (Title 77 RCW) enumerates the powers, duties and obligations of the department.  See, chapter 77.12 RCW.  Among the enumerated powers is the power to establish game reserves.  RCW 77.12.040 states in pertinent part:
             [[Orig. Op. Page 3]]
            "The commission may establish within the state by rule and regulation game reserves and closed areas wherein all hunting and trapping for game animals, game birds and fur bearing animals, may be prohibited.  . . ."
            A "game reserve" is defined in the Game Code as ". . . any 'closed area' designated by the commission as a game reserve."  RCW 77.08.010.
            "'Closed area' means any place in the state described or designated by rule and regulation of the commission wherein it shall be unlawful to hunt or trap for game animals, fur-bearing animals, or game birds."
            RCW 77.08.010.  These definitions are paralleled in WAC 232-12-010 (10) and (12).
            The Supreme Court of the State of Washington has indicated that the Game Code, as an exercise of the police power, is not an encroachment upon an owner's rights in the land.  State v. Quigley, 52 Wn.2d 234, 324 P.2d 827 (1958).  In an earlier case the court said:
            ". . . the state has the absolute right to maintain its game . . . upon any and all private lands, and in that act there is no element of trespass or taking."
            Cook v. State, 192 Wash. 602, 607, 74 P.2d 199 (1937).  Furthermore, the commission's right to establish a game reserve does not deprive any one of property rights in vested privileges, nor does the exercise of this right amount to an acquisition of property rights.  Cawsey v. Brickey, 82 Wash. 653, 144 Pac. 938 (1914); Judd v. Bernard, 49 Wn.2d 619, 304 P.2d 1046 (1956).
            The valid exercise of the police power requires no payment of compensation to a property owner; however, where property or an interest in property is acquired by an agency of the state, just compensation must be paid for the interest acquired.  Ackerman v. Port of Seattle, 55 Wn.2d 400, 348 P.2d 664 (1960); Conger v. Pierce County, 116 Wash. 27, 198 Pac. 377 (1921).  The requirement of Article I, § 16 (Amendment 9) of the Washington Constitution, reads in pertinent part as follows:
            ". . .  No private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner, . . ."
             [[Orig. Op. Page 4]]
            In light of the above‑cited constitutional requirement, it is clear that the authority of the Game Commission to establish game reserves without the payment of compensation was derived from the inherent police power of the state.  It is equally clear that while the Game Commission by creating a game reserve, in effect, created a "no hunting or trapping" zone, it did not acquire an interest in the property itself.  It is important to note that this prohibition on taking game does not purport to restrict in any manner the development of the individual properties within the "zone."
            It is within the province of the Department of Highways to acquire property for and to construct highways.  Pursuant to the requirements of RCW 47.52.050, the right of way for the proposed highway within the area of the game reserve will be acquired in fee simple.  Upon acquisition of the right of way in question, the state shall hold fee simple title to the required forty-seven acres and may utilize that property subject only, for the purposes of this opinion, to the same restrictions as all other property owners within the game reserve; i.e., that it allow neither hunting nor trapping of animals or fowl.
            As our analysis indicates, the designation of an area as a game reserve by the Department of Game is an exercise of the police power not the power of eminent domain.  Thus, in designating the Prosser Game Reserve the Department of Game was able to do so without compensating the owners of the land since it did not acquire an interest in the land.  It therefore follows that there is no foundation in law for finding that the Department of Game is entitled to compensation from the Department of Highways under the law of eminent domain by virtue of the location and construction of SR 82 through the Prosser Game Reserve.  It should be noted, however, that this opinion does not deal with the issue of whether or not the Department of Game has a basis for recovery from the Department of Highways for actual loss of game caused by the highway project through the Reserve.
            We trust the foregoing will be of assistance.
Very truly yours,
Attorney General
Deputy Attorney General