PO Box 40100
Olympia, WA 98504-0100
The Public Lands and Conservation Division is comprised of 22 attorneys and 12 professional staff. The division represents the Commissioner of Public Lands, the Department of Natural Resources (DNR), the Board of Natural Resources, the Forest Practices Board, the Department of Fish and Wildlife (WDFW), and the State Parks and Recreation Commission (Parks).
The division provides a broad spectrum of client advice, dispute resolution, and litigation services to agency clients in legal matters before state and federal courts and administrative tribunals.
DNR manages 7 million acres of forest, range, commercial, agricultural, conservation, and aquatic lands. Much of this land (3 million acres) is state trust land that provides revenue to help pay for construction of public schools, universities and other state institutions, and county services. We provide client advice and litigation support to DNR in its land management transactions, decisions, and issues. DNR’s transactions include timber sales, as well as purchases, sales, exchanges, and leases of forest lands, commercial properties, agricultural lands, aquatic lands, and sales of geoduck on aquatic lands. These transactions often raise issues involving compliance with the Forest Practices Act, State Environmental Policy Act (SEPA), water rights, and endangered species issues. The division also assists DNR in resolving liability issues under the federal CERCLA (Superfund) or the State Model Toxics Control Act.
The Forest Practices Board adopts rules that establish standards for forest practices such as timber harvest, forest road construction, and forest chemical application, and DNR implements and enforces these rules on approximately 9 million acres of state and privately owned forest lands. The division assists the board in its rulemaking efforts and represents it in challenges to rules and other actions. The division also assists DNR in implementation and enforcement of the forest practices program and in quasi-judicial and judicial review of forest practices decisions. The division also supports DNR’s role in regulating surface mine reclamation, suppressing fires on forestland, and removing derelict vessels from state-owned aquatic lands.
The division provides legal services to WDFW and Parks on a broad and complex array of natural resource and land management issues, criminal matters arising from client agency enforcement actions, and assisting local prosecutors in charging violations of the state Fish and Wildlife Code. Client agency issues include hunting and fishing regulation, endangered species, habitat protection, rule adoption, hydropower licensure, law enforcement, risk management, real property transactions and management, public works, concessions, and other contracts. The division deals extensively with tribal hunting and fishing issues and cultural resource issues. Litigation typically involves endangered species issues, Indian off-reservation treaty rights, SEPA, the Growth Management Act, real property disputes, contracts, and appeals of licensing actions, civil forfeitures, hydraulic project approvals, and agency rule challenges.
DNR Land Management: The division provides advice and litigation services to DNR in programmatic decisions about its land management, including development and implementation of a Habitat Conservation Plan to address threatened and endangered species. DNR recently updated this Plan with a long-term conservation strategy for marbled murrelets, and established a decadal sustainable timber harvest level. The division is representing DNR in challenges to these decisions. DNR acts as the proprietary land manager for state-owned aquatic lands. Use of state-owned aquatic lands requires a lease from DNR. DNR terminated Cooke Aquaculture Pacific, Inc.’s (Cooke) Cypress Island lease after the fish rearing pen collapsed, allowing the escape of Atlantic salmon. The Cooke Port Angeles lease was also terminated after an inspection. The division is currently defending these decisions. DNR faces increasing pressure to keep state lands available to the public for recreation. Indian tribes also desire access to state lands for hunting and gathering and for cultural reasons. Division attorneys provide advice and representation in increasing litigation surrounding issues related to access.
Fire Cost Recovery: DNR has a statutory right to collect its fire suppression costs when a third party’s negligence is responsible for the starting or existence of a fire which spreads on certain forest land and under other enumerated circumstances. The division works closely with DNR to establish a framework for the investigation of forest land fires and the processing of meritorious fire suppression claims.
Indian Law: The division represents client agencies in various matters concerning cultural resources and uses of lands and waters, as well as the scope of tribal hunting and fishing rights and application of state law to tribal members in various situations. For WDFW, many of these matters arise under the courts’ continuing jurisdiction in U.S. v. Washington, the Indian fishing rights case that resulted in the famous 1974 Boldt decision, and U.S. v. Oregon, a similar matter that focused on Indian fishing rights in the Columbia River basin. We also provide significant assistance to the WDFW in its efforts to forge co-management agreements with the tribes concerning fish and wildlife and related habitat issues.
Hydropower Issues: The division represents WDFW and Parks in proceedings before the Federal Energy Regulatory Commission (FERC) and federal courts concerning the licensing of hydropower dams in the state. These are lengthy and complex proceedings, involving balancing the economics of electrical power generation and protection of wildlife, fish, and other natural resources impacted by the presence and operation of the facilities. The division assists its clients in their efforts to ensure that impacts to resources they manage are given appropriate consideration in the FERC process.
WDFW Rulemaking and Licensing: The division assists WDFW in their rulemaking processes. WDFW adopts a large quantity of administrative rules regulating hunting and fishing by recreational and commercial fishers. We defend such regulations when challenged. We also defend WDFW in appeals of licensing suspension actions.