AGLO 1974 No. 89 - Oct 30 1974
OFFICES AND OFFICERS ‑- STATE ‑- FOREST PRACTICES BOARD ‑- RULE‑MAKING AUTHORITY
Chapter 137, Laws of 1974, 1st Ex. Sess., does not authorize the forest practices board to promulgate a rule which would require all state and local governmental agencies to file their authorized rules, regulations or ordinances affecting forest practices with the department of natural resources, and to be subject to an opinion by the attorney general, before those agencies may enforce such rules, regulations or ordinances in regulating activities which would constitute forest practices under that act.
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October 30, 1974
Honorable Bert L. Cole
Commissioner of Public Lands
Public Lands Building
Olympia, Washington 98504 Cite as: AGLO 1974 No. 89
By recent letter you requested the opinion of this office on a question which we paraphrase as follows:
Does chapter 137, Laws of 1974, 1st Ex. Sess., authorize the forest practices board to promulgate a rule which would require all state and local governmental agencies to file their authorized rules, regulations or ordinances affecting forest practices with the department of natural resources, and to be subject to an opinion by the attorney general, before those agencies may enforce such rules, regulations or ordinances in regulating activities which would constitute forest practices under that act?
We answer your question in the negative for the reasons outlined in the analysis below.
By its enactment of chapter 137, Laws of 1974, 1st Ex. Sess., the legislature provided for a comprehensive state‑wide [[statewide]]program for the regulation of "forest practices," a term defined by § 2(8) of the act as meaning:
". . . any activity conducted on or directly pertaining to forest land and relating to growing, harvesting, or processing timber, including but not limted to:
"(a) Road and trail construction;
"(b) Harvesting, final and intermediate;
"(c) Precommercial thinning;
[[Orig. Op. Page 2]]
"(f) Prevention and suppression of diseases and insects;
"(g) Salvage of trees; and
"(h) Brush control."
The basis for this enactment was a set of legislative findings appearing in § 1, in pertinent part, as follows:
"(1) The legislature hereby finds and declares that the forest land resources are among the most valuable of all resources in the state; . . .
"(2) The legislature further finds and declares it to be in the public interest of this state to create and maintain through the adoption of this chapter a comprehensive state‑wide [[statewide]]system of laws and forest practices regulations which will achieve the following purposes and policies:
"(a) Afford protection to, promote, foster and encourage timber growth, and require such minimum reforestation of commercial tree species on forest lands as will reasonably utilize the timber growing capacity of the soil following current timber harvest;
"(b) Afford protection to forest soils and public resources by utilizing all reasonable methods of technology in conducting forest practices;
"(c) Recognize both the public and private interest in the profitable growing and harvesting of timber;
"(d) Promote efficiency by permitting maximum operating freedom consistent with the other purposes and policies stated herein;
"(e) Provide for regulation of forest practices so as to avoid unnecessary duplication in such regulation;
"(f) Provide for interagency input and intergovernmental coordination and cooperation;
[[Orig. Op. Page 3]]
"(g) Achieve compliance with all applicable requirements of federal and state law with respect to nonpoint sources of water pollution from forest practices; and
"(h) To consider reasonable land use planning goals and concepts contained in local comprehensive plans and zoning regulations."
By § 3 of the act the legislature created a "forest practices board" consisting of:
". . .
"(a) The commissioner of public lands or his designee;
"(b) The director of the department of commerce and economic development or his designee;
"(c) The director of the department of agriculture or his designee;
"(d) The director of the department of ecology or his designee;
"(e) An elected member of a county legislative authority appointed by the governor: PROVIDED, That such member's service on the board shall be conditioned on his continued service as an elected county official; and
"(f) Four members of the general public appointed by the governor."
And by § 4 it provided that:
"(1) Where necessary to accomplish the purposes and policies stated in section 1 of this 1974 act, and to implement the provisions of this chapter, the board shall promulgate forest practices regulations establishing minimum standards for forest practices and setting forth necessary administrative provisions, pursuant to chapter 34.04 RCW and in accordance with the procedures enumerated in this section and [[Orig. Op. Page 4]] section 20 of this 1974 act. Forest practices regulations pertaining to water quality protection shall be promulgated individually by the board and by the department of ecology after they have reached agreement with respect thereto. All other forest practices regulations shall be promulgated by the board."
Your question is whether, under this authorization, the forest practices board may promulgate a rule which would require all state and local governmental agencies to file their rules, regulations or ordinances affecting forest practices with the department of natural resources, and to be subject to an opinion by the attorney general, before those agencies may enforce such rules, regulations or ordinances in regulating activities that would constitute forest practices under the act.
It is a well understood principle that an agency may not legislate under the guise of its rule‑making power, and that its rules must be written within the framework and policy of the applicable statute. Agency rules may not amend or change an enactment of the legislature. Kitsap-Mason Dairymen v. Tax Comm'n, 77 Wn.2d 812, 467 P.2d 312 (1970). See, also, State ex rel. West v. Seattle, 50 Wn.2d 94, 309 P.2d 751 (1957); and Juanita Bay Valley Com. v. Kirkland, 9 Wn.App. 59, 510 P.2d 1140 (1973).
In this case, the statute involved states that through its adoption, a comprehensive state‑wide [[statewide]]system of laws and forest practices regulations is to be achieved.1/ In addition, it recognizes that there is a need to promote efficiency in administration of forest practices, to avoid unnecessary duplication, and to provide for interagency input and intergovernmental coordination and cooperation in its implementation.2/ However, in no place does the act purport to provide for the unenforceability of other statutes, regulations or local ordinances which do not conform to the requirements of such regulations as are promulgated by the forest practices board.
The act contains three specific provisions regarding its relationship to other laws and jurisdictions. First, section 1(2), as quoted above, indicates the intent of the legislature that, through its adoption, a comprehensive [[Orig. Op. Page 5]] system of laws and forest practices regulations will provide some uniform guidance for forest activity. Secondly, § 24 qualifiedly preempts local authority in the regulation of forest practices as follows:
"No county, city, municipality or other local or regional governmental entity shall adopt or enforce any law, ordinance, or regulation pertaining to forest practices, except that to the extent otherwise permitted by law, such entities may exercise any:
"(1) Land use planning or zoning authority: . . .
"(2) Taxing powers;
"(3) Regulatory authority with respect to public health; and
"(4) Authority granted by chapter 90.58 RCW, the 'Shoreline Management Act of 1971.'"
And thirdly, § 32 provides that:
"Nothing in sections 1 through 28 of this 1974 act shall modify any requirements to obtain permits, or any violations that may be found, under the Shoreline Management Act of 1971 . . . the Hydraulics Act, . . . other state statutes in effect on January 1, 1975, and any local ordinances not inconsistent with section 24 of this 1974 act."
The legislature has thus specifically indicated which laws of local governments are or are not to be affected by the act. In addition, it has specifically identified certain state laws that are not to be deemed to have been modified by the act. Had it intended to permit the forest practices board, by regulation, to render other authorized state agency regulations promulgated under these statutes, or such limited local ordinances affecting forest practices as may still be adopted in view of § 24, supra, unenforceable unless filed with the department of natural resources, it could easily have said so. We have little doubt that the act itself could have contained such a moratorium ‑ as does the state administrative procedures act (APA) in RCW 34.04.025. And, likewise, we believe that under established principles of administrative law, the legislature could have [[Orig. Op. Page 6]] delegated this authority to the forest practice board. Accord, Barry & Barry v. Dept. of Motor Vehicles, 81 Wn.2d 155, 500 P.2d 540 (1972), wherein our court said:
". . . the delegation of legislative power is justified and constitutional, and the requirements of the standards doctrine are satisfied, when it can be shown (1) that the legislature has provided standards or guidelines which define in general terms what is to be done and the instrumentality or administrative body which is to accomplish it; and (2) that procedural safeguards exist to control arbitrary administrative action and any administrative abuse of discretionary power. . . ."
From our reading of the rule‑making authority provided for in § 4, supra, however, we simply do not believe that a sufficient delegation has yet taken place as would allow the forest practices board to adopt such a regulation as is contemplated by your question. Here repeated for ease of reference, that section of the act merely provides that:
"(1) Where necessary to accomplish the purposes and policies stated in section 1 of this 1974 act, and to implement the provisions of this chapter, the board shall promulgate forest practices regulations establishing minimum standards for forest practices and setting forth necessary administrative provisions, pursuant to chapter 34.04 RCW and in accordance with the procedures enumerated in this section and section 20 of this 1974 act. . . ."
The forest practices board may provide for such master lists of laws or regulations as it deems necessary for the educational benefit of parties affected by the act here under consideration. The board, however, is not authorized by that act to promulgate a regulation which would render unenforceable the laws of another legal jurisdiction within the state of Washington ‑ absent any provision to this effect in the act. Therefore, the proposed restrictive provisions contained in the regulation contemplated by your [[Orig. Op. Page 7]] question would be legally unenforceable if adopted by the board.
We trust the foregoing will be of some assistance to you.
Very truly yours,
ROBERT O. SAILER
Assistant Attorney General
*** FOOTNOTES ***
1/Section 1(1) and (2), chapter 137, supra.
2/Ibid., § (2)(e) and (f).