Washington State

Office of the Attorney General

Attorney General

Bob Ferguson


Attorney General ReleasesTrust Lands Opinion

OLYMPIA, August 1, 1996 -- Washington Attorney General Christine Gregoire released a 71-page opinion today which clarifies various issues involving the management of millions of acres of trust lands which are used to benefit schools, universities and local government.

The opinion was requested by the Legislature and was prompted by issues raised by the Department of Natural Resources (DNR) , which manages the trust lands, and trust beneficiaries, such as the universities.

In passing a concurrent resolution which asked for the opinion, legislators noted that concern over the manner in which the lands should be managed has raised the possibility of litigation by the beneficiaries.

One key area of discussion has been DNR's plans for a Habitat Conservation Plan (HCP) which is intended to help the state comply with the federal Endangered Species Act. "There is substantial fiscal impact in the prepa ration of a habitat conservation plan as well as long-term effects on trust income," the concurrent resolution noted.

"This opinion won't settle all the issues," Gregoire explained. "But it will clarify many of the basic legal ques tions regarding the management of the trust lands." The opinion answers questions regarding the authority, rights and responsibilities of agencies involved in the trust lands.

There also are factual questions involving the trust land management. A facilitator, Bill Ross and Associates, has been hired to try and resolve those issues and to ensure an adequate exchange of information among the various parties. In the concurrent resolution, legislators asked DNR and the trust beneficiaries to attempt to reach consensus before an HCP is filed with federal officials.

Most of the opinion examines issues involving Federal Grant Lands which were given to the state by the federal government to support common schools, universities and colleges.

According to the opinion, DNR can enter into a long-range Habitat Conservation Plan to comply with the Endangered Species Act as long as some basic trust responsibilities are met. In addition, if DNR concludes the economic interests of the trusts will be better served under an HCP, it can include all trusts in the plan even if each trust benefits differently.

Some beneficiaries of the trust lands have questioned whether state laws, such as water quality or historic preservation laws, apply to trust lands unless they serve the interests of the trusts. The opinion says the trust lands are not exempt and all laws are applicable, even if they result in losses for the trusts.

In 1992 DNR adopted policies which would exceed minimum forest practices standards for trust lands. The department maintains that in the long run, the tougher standards will result in more certainty and less interrup tion of timber sales. The opinion concludes DNR can exceed standards if it can show the action will benefit the trusts in the long run.

The opinion notes that each of the Federal Grant Land trusts are separate and are entitled to separate accounting for management costs and expenses. It notes that a 1993 law, which allows for pooling costs is therefore "most likely" unconstitutional.

The Commissioner of Public Lands, as a member of the Board of Natural Resources and the Forest Practices Board, plays a role in managing the trust lands and regulating forest practices to protect the environment. The opinion concludes these dual roles are not a conflict of interest.

The opinion also concludes a state statute authorizing DNR to deduct its management fees from proceeds received from certain trust lands dedicated to Washington State University is improper.  

Retired Supreme Court Justice James Andersen and retired Thurston County Superior Court Judge Robert Doran worked with Senior Assistant Attorney General Maureen Hart to co-author the opinion.

Attorney General opinions provide advice to the legislature and state officials, and traditionally have been accorded great weight by the Washington State Supreme Court in interpreting state laws.