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Bob Ferguson

AGO 1956 No. 213 -
Attorney General Don Eastvold


County commissioners do not have the authority to execute leasehold agreements without complying with the provisions of the general leasing statutes. 

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                                                                February 29, 1956 

Honorable Robert L. Charette
Prosecuting Attorney
Grays Harbor County
Montesano, Washington                                                                                                              Cite as:  AGO 55-57 No. 213

 Dear Sir:

             In your letter of February 8, 1956, you asked our opinion on the following question:

             Do the county commissioners have authority to enter into a lease agreement of county lands for the purpose of exploration and drilling for gas and oil under the terms of RCW chapter 78.16 without complying with RCW 36.34.150 and sequence?

             We answer in the negative.


             RCW 78.16.010 provides:

             "Whenever it appears to the board of county commissioners of any county that it is for the best interests of the county and the taxing districts and the people  [[Orig. Op. Page 2]] thereof, that any mining claims, reserved mineral rights, or any other county owned or tax acquired property, owned by the county either absolutely or as trustee, should be leased for exploration, development, and removal of minerals, oil, gas, and other petroleum products therefrom, the said board may enter into written leases, under the terms of which any county owned land or county owned mineral rights, or reserved mineral rights, are leased for the aforementioned purpose, with or without an option to purchase.  The lease shall be upon such terms and conditions as the commissioners deem for the best interests of the county and the taxing districts, and as in this chapter provided, and may be for such primary term as the board may determine and as long thereafter as minerals, including oil and gas, or either of them, may be produced therefrom."

             RCW 78.16.020 provides:

             "When the commissioners decide to lease the claims or properties, they shall enter an order to that effect upon their records and fix the terms and conditions of the lease.  If an option to purchase is given, they shall fix the purchase price, which shall not be less, in the case of tax acquired property, than the total amount of the taxes, interest, and penalties due at the time the property was acquired by the county, and may provide that any royalties paid shall be credited on the purchase price.  The lease, or lease and option shall be executed on behalf of the county by the commissioners, or a majority of them."

             Clearly, the board of county commissioners may enter into written leasehold agreements under the terms of which county owned lands or county owned mineral rights, or reserved mineral rights, are leased for the purposes set forth in the statute.  The terms and conditions are left to the discretion of the commissioners; this, however, refers, in our opinion, only to the terms and conditions  [[Orig. Op. Page 3]] of the leasehold agreement and does in no way affect the general procedural requirements prior to and incident with the execution of leasehold agreements in general as set forth in RCW 36.34.140 et seq.

            RCW 36.34.140 provides that

             "The board of county commissioners, if it appears that it is for he best interests of the county and the people thereof, that any county real property and its appurtenances should be leased for a year or a term of years, may lease such property under the limitations and restrictions and in the manner provided in this chapter, * * *" (Emphasis supplied)

             RCW 36.34.150 requires a prospective lessee to make an application in writing to the board of county commissioners along with a good-faith deposit.

             RCW 36.34.160 provides that notice of intention to make such lease must be published in a legal newspaper and also posted.  It further provides that a hearing shall be had, and sets forth the required contents of such notice.

             RCW 36.34.170 sets out the method of objecting to the proposed leasing.

             RCW 36.34.190 requires that the leasing must be to the highest responsible bidder at the time of hearing.

            RCW 36.34.200, in referring to the execution of the lease, provides:

             "* * *  The lease shall refer to the order of the board directing the lease, * * *" (Emphasis supplied)

             RCW chapter 78.16 must be read together with RCW 36.34.140et seq., the general leasing statutes.  One cannot say that RCW 78.16.020, directing the entry of an order, eliminates the necessity of complying with the procedural steps prior to the actual execution of the lease because RCW 36.34.200 states that the lease shall refer to the order directing the lease.

             It appears further that chapter 78.16 RCW, which is taken from chapter 38, Laws of 1907, as amended by § 1, chapter 93, Laws of 1945, was intended only to rectify a then existing lack of specific statutory  [[Orig. Op. Page 4]] authority of county commissioners to execute leases for exploration, development and removal of oil, gas and other petroleum products, as well as minerals.

             We further refer you to Raynor v. King County (1940), 2 Wn. (2d) 199, 97 P. (2d) 696, which defines the powers of a board of county commissioners as wholly statutory, citing several other decisions therein.

             We hope that this opinion will be of assistance to you.

 Very truly yours,
Attorney General 

Assistant Attorney General