Chapter § 12.2 Lands Managed by the Department of Natural Resources

• Jurisdiction: Washington

§12.2 LANDS MANAGED BY THE DEPARTMENT OF NATURAL RESOURCES

The Washington state Department of Natural Resources (DNR) manages the vast majority of state-owned lands—about 5.6 million acres of the total 5.7 million acres of land owned by the state. This includes approximately 3 million acres of forest, range, agricultural, and upland commercial lands and about 2.6 million acres of aquatic lands. The state holds most of the uplands DNR manages in trust for certain beneficiaries. The trust lands generate about $200 million a year to support public schools, state institutions, and county services. DNR annually publishes a report of revenue and expenses. See Dep't of Natural Res., 2015 Annual Report, http://www.dnr.wa.gov/about/fiscal-reports/dnr-annual-reports Aquatic lands also generate lease revenue, which primarily funds enhancement of aquatic lands. Information about DNR is available at http://www.dnr.wa.gov.

(1) DNR's authority to manage state-owned lands

DNR has both state constitutional and statutory bases for the authority to manage state-owned lands. The constitutional basis is through the Commissioner of Public Lands. Article III, § 1, of the Washington Constitution creates the office of the Commissioner of Public Lands as an independently elected executive, but does not establish the commissioner's duties. The Washington Supreme Court discusses the authority of the Commissioner of Public Lands in Public Utility District No. 1 of Okanogan County v. State, 182 Wn.2d 519, 342 P.3d 308 (2015). Article III, §23, gives the state legislature authority to establish the duties of the commissioner. The legislature designates the commissioner as the administrator of DNR. RCW 43.30.105.

DNR's statutory management authority arises in several different titles within the Revised Code of Washington (RCW). Title 79 RCW sets out the majority of statutes governing the management of public lands under DNR's control. Chapter 43.12 RCW sets out a few statutes regarding the authority of the Commissioner of Public Lands. Chapter 43.30 RCW sets out the authority and organization of the Department of Natural Resources, including the Board of Natural Resources (BNR), the Commissioner of Public Lands, and the Supervisor. Title 76 RCW contains provisions regarding forest management and forest practices. Title 78 RCW addresses surface mining, minerals, and petroleum. DNR's proprietary administrative rules are at Title 332 WAC. DNR also has regulatory functions, which this chapter of the deskbook does not address.

Caveat: Title 76 RCW addresses agencies other than DNR. The Forest Practices Board is a separate state agency created under RCW 76.09.030.

The practitioner will find that an understanding of the historical development of DNR and the laws concerning public lands managed is useful. It helps locate applicable statutes and provides a pathway to determining legislative intent. In particular, the public land statutes in Title 79 RCW have a lengthy pedigree that could cause problems for the unsuspecting practitioner. The shuffling of public land laws in the past 120 years of statehood gives rise to a number of potential legal issues, from establishing the validity of DNR's management practice on a particular parcel to clearing a cloud on the title to land previously conveyed from state ownership. Following is a brief overview.

(a) Organization of the Department of Natural Resources

Since statehood on November 11, 1889, the legislature has made significant changes in the state agency responsible for managing public lands. In 1890, the first state legislature created the State Land Commission, which consisted of the Secretary of State, State Auditor, and Commissioner of Public Lands. Laws of 1889-90, p. 251, §1. The State Land Commission exercised "general supervision and control of all public lands now owned by...the state, to be registered, leased and sold." Laws of 1889-90, p. 251, §2. Two years later, the legislature changed the membership of the State Land Commission and renamed it the Board of State Land Commissioners. Laws of 1893, ch. 125, §1. The statutory membership of the board changed five more times in the next fifty years. Laws of 1895, ch. 178, §3; Laws of 1897, ch. 89, §1; Laws of 1909, ch. 223, §1; Laws of 1927, ch. 255, §10; Laws of 1941, ch. 217, §1. In 1957, the legislature replaced the Board of State Land Commissioners with the BNR and consolidated the functions of a number of departments, boards, commissions, and committees into the new Department of Natural Resources. Laws of 1957, ch. 38.

DNR is led by the BNR, an administrator, and a supervisor. See Ch. 43.30 RCW. The Commissioner of Public Lands serves as the administrator and appoints the supervisor. RCW 43.30.105, .155. As delegated by the commissioner, the supervisor directly supervises DNR's activities. RCW 43.30.430. The BNR is composed of the governor, superintendent of public instruction; commissioner of public lands; the director of the University of Washington School of Forest Resources; the dean of the Washington State University College of Agricultural, Human, and Natural Resource Sciences; and a representative of the counties that transferred forest lands to the state. RCW 43.30.205. The school formerly known as the University of Washington School of Forest Resources became the School of Environmental and Forest Sciences in 2012. See University of Washington, College of the Environment, School of Environmental and Forest Sciences, http://www.cfr.washington.edu (last visited May 31, 2016).

The BNR operated from 1957 to 1986 with just five members; the legislature added the sixth position for the county representative in 1986. Laws of 1986, ch. 227, §1.

(b) Development of public land laws

This section describes the development of public land laws in Washington.

(i) Understanding source notes relative to public land laws in the RCW

The preface to the first volume of the RCW explains how to interpret source notes—the bracketed notes listing session laws and previous codifications that follow each statute. The source notes, however, do not always capture older session laws or codifications resulting from legislative "repeals and recodifications." This can be confusing in researching public land law because the legislature many times has repealed groups of public land laws and contemporaneously enacted new laws addressing the same topics. Most often, the new laws closely resemble the repealed legislation, but the RCW source notes do not reference the history of the former, repealed laws.

Example: Laws of 1982, 1st Ex. Sess., ch. 21, enacted 149 new sections and repealed 113 old statutes, mostly involving the management of state-owned aquatic lands. This 1982 act resulted in the codification of new chapters of aquatic land laws in Title 79 RCW (former Chapters 79.90 through 79.96 RCW), most of which actually traced back to the 1927 Public Lands Act, yet which show in the RCW source notes as originating in 1982.

Practitioners wanting a full history of public land statutes must do more than rely on RCW source notes. A diligent search of legislative history should include review of the prior codifications of public land laws in Remington's Revised Statutes, Pierce's Code, and other private codifications that pre-date the creation of the Revised Code of Washington in 1950. Some of the historic codifications include annotations to cases, leading to further useful materials.

(ii) Organizational changes to Title 79 RCW public land laws from 1889 to present

Immediately after statehood, the legislature began enacting an assortment of laws narrowly focused on some specific aspects of public land management. For example, the few laws passed in the first 1889-90 session focused on the creation of harbor areas and appraisal and sale of tidelands, Laws of 1889-90, pp. 239-40, and creation of the State Lands Commission, pp. 251-54. The 1895 legislature passed the first comprehensive Public Lands Act. Laws of 1895, ch. 178. The 1897 legislature promptly rewrote the act. Laws of 1897, ch. 89. Thirty years later, in 1927, the legislature again reviewed the public land laws when a Joint Committee on Revision of Laws proposed a new, comprehensive Public Lands Act. The legislature enacted the proposal as Laws of 1927, chapter 255. Much of the 1927 language is still reflected in current statutes.

Practice Tip: The 1927 Senate Bill Book reveals that a joint revision commission rather than individual senators introduced the 1927 session law as Senate Bill 85. In addition to containing the full text of the bill, the Bill Book also provides a seven-page explanatory note from the committee identifying which pre-1927 public land laws tracked forward into each of the new sections of the 1927 Public Lands Act.

For most of the 1900s, the general public land laws applied to both uplands and aquatic lands. The 1979 legislature specifically excluded aquatic lands from 17 statutes, which RCW 79.02.095 identifies. See Laws of 1979, Ex. Sess., ch. 109, §22. Subsequently, the 1982 legislature removed references to aquatic lands from many of the general public land laws and enacted an Aquatic Lands Act with provisions focused solely on aquatic land management. Laws of 1982, 1st Ex. Sess., ch. 21 (formerly codified as Chapters 79.90 through 79.96 RCW; now codified as Chapters 79.105 through 79.145 RCW). Although the 1982 Aquatic Land Act contained over 180 new sections, nearly all the text derives from the 1927 Public Lands Act. Despite the 1982 reorganization, the statutes concerning aquatic lands are not solely in Chapters 79.100 through 79.145 RCW, which is essentially the Aquatic Lands Act. All statutes in Title 79 RCW concerning "public lands" also concern aquatic lands, unless the specific statute excludes aquatic lands from its scope. See RCW 79.02.010(10), .095.

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