A Trust for All the People: Rethinking the Management of Washington's State Forests

• Jurisdiction: United States,Federal,Washington
• Citation: Vol. 24 No. 04
• Publication year: 2000

SEATTLE UNIVERSITY LAW REVIEWVolume 24, No. 1SUMMER 2000

ARTICLES

A Trust for All the People: Rethinking the Management of Washington's State Forests

Daniel Jack Chasan(fn*)

The new millennium has dawned, but Washington State is still misinterpreting the 19th century. The state believes it cannot protect environmental or aesthetic values in its state forests unless someone actually buys the trees or land. If no one comes up with enough cold cash, it is just too bad about the animals that live on the land and the people who hike there.

Washington's courts and government agencies have assumed the following: (1) The land that the federal government gave Washington at statehood for the benefit of the "common schools" and other public institutions is held by the state as a trust. (2) This trust is exactly analogous to a private trust. (3) The state's "common school lands" and other granted lands must therefore be managed under the common law principles that govern private trusts. (4) The state owes a duty of "undivided loyalty" to the beneficiaries. (5) Undivided loyalty requires the state to manage the land for maximum revenue. (6) Revenue production cannot be sacrificed to the goal of preserving environmental or aesthetic values. In light of Washington's law and history, these conclusions are simply wrong. They find no support in federal statute, state constitutional language, the history of the lands, or state legislation. It is time to take a fresh look at the obligations Washington assumed with regard to managing its forests when it became a state.

If one actually looks at the history, the statutes, the state constitution, and a century of court decisions, the following becomes clear: * A broader public trust has always existed; the Washington Constitution explicitly recognizes this. Because of this broad, enduring trust, the environmental and aesthetic values of the granted lands must be safeguarded for all the people. * Courts have incorrectly defined Washington's narrower fiduciary duty by equating the state's 1889 Enabling Act with the New Mexico-Arizona Enabling Act of 1910. * The state's fiduciary duty prevents it from granting financial breaks to favored constituents, not from protecting species or habitat. * Washington's constitutional framers consciously rejected the idea that granted lands should produce maximum revenue. * Neither Congress nor the framers gave the State of Washington any guidance about the management of granted lands. They could not; no one managed American forests in 1889. * Not one of the subsequent court rulings has required state land to be managed in any particular way and not precludes management that is guided in part by environmental values.

In this Article, I will first point out that neither the federal Enabling Act nor the Washington Constitution explicitly requires the state to hold its granted lands in trust for the common schools or other named institutions. Next, I will argue that even if the granted lands are trusts, they are not common law trusts and therefore should not be managed under common law trust principles. Third, I will demonstrate that neither Congress nor the framers of the Washington Constitution expected the lands to generate maximum revenue. Fourth, I will show that preventing thefts and giveaways of public land and timber was the only real legislative intent of both Congress and the framers. Fifth, I will demonstrate that that neither Congress nor the framers expected the lands to be managed in any particular way. Finally, I will argue that the Washington Constitution creates a broad constitutional trust, which requires the granted lands to be managed under the public trust doctrine.

I. Background

The stakes are high. The State of Washington owns some 2.1 million acres of forest, including more than 1.1 million acres managed for the benefit of the public schools. Most of this land is a legacy, at least indirectly, of statehood.(fn1)

When Washington entered the union in 1889, the federal government gave the state sections 16 and 36 in every township "for the support of common schools,"(fn2) and granted to the state other public land for support of an agricultural college, "a scientific school, normal schools, public buildings at the State capital, and State charitable, educational, penal, and reformatory institutions."(fn3) If someone else had already claimed the common school sections of a township, the state could choose other lands in lieu of those originally granted.(fn4)

The idea of granting lands to a state to support education was not new. Beginning with Ohio in 1803, every new state created from territory that was not part of the original 13 colonies received gifts of public land to support schools.(fn5) Until 1846, each new state received one section in every township to support public schools. However, a single section did not generate enough income to provide adequate support. A United States Land Commissioner observed that when Congress established the system of public lands, granting one section per township "doubtless appeared munificent, but experience has proved it to be inadequate."(fn6) People needed at least one school per township, but the single section of granted land in each township did not ordinarily produce enough annual revenue to pay a teacher for even one month.(fn7)

Starting in 1846, Congress granted each state two sections which, by the Land Commissioner's calculations, was also inadequate.(fn8) The act that created Washington Territory in 1853 set aside two sections in each township to support the "common schools."(fn9) There was no mechanism for selling the lands, so the schools received no money benefit, but the principle of holding lands for the benefit of schools was established.

The Enabling Act merely carried out the basic design created in 1853. Territorial officials expected the federal grants to make the new state a player in the frenzy of land speculation that obsessed Washington's leading citizens.(fn10) Not wanting to leave the disposal of the granted lands entirely up to these officials, Congress laid down rules outlining how the lands could be sold and how the state should handle the proceeds of any sale. This Enabling Act specified that "all lands granted for educational purposes shall be disposed of only at public sale, and at a price not less than ten dollars per acre, the proceeds to constitute a permanent school fund, the interest of which only shall be expended in the support of said schools."(fn11) The Act also allowed the state to lease the lands for periods of not more than five years.(fn12)

The original text of the Washington State Constitution spells out how the granted lands and the resources they contain may be sold or leased, as well as how the state must treat the money from a sale or lease. Article XVI states, "[n]one of the lands granted to the state for education purposes shall be sold otherwise than at public auction to the highest bidder."(fn13) The land must be appraised and the price must at least equal the appraised value.(fn14) Under this article, no more than one-fourth of the land could be sold before January 1, 1895, and not more than half of the land could be sold before January 1, 1905.(fn15) Article IX states that the revenue from the sale of land or timber flows into the common school fund, and that all revenues from that fund "shall be exclusively applied to the support of the common schools."(fn16) Article XVI allows the common school fund to be invested as authorized by law.(fn17)

Before statehood, territorial officials looked on the granted lands as a ticket to sudden riches. Territorial taxpayers expected the new lands to free them from the burden of school taxes. Statehood "was a plunge into an ocean of supposed wealth. . . . Everybody knew the State had abundant natural resources which would be developed at once. Therefore, all these were treated like money in the bank."(fn18)

The dream of overnight prosperity was never realistic. Most of the granted lands proved to be next-to-worthless in the short run. Mill companies, land speculators, prospectors, settlers, and the Northern Pacific Railroad had already done their best to lock up the most valuable acreage. "In locating an exact route from the Columbia to Puget Sound, [Northern Pacific Railroad] engineers tried to lay track through the most heavily timbered areas, so that valuable timberland would be included in the land grant."(fn19) Out of all the individuals and companies claiming land, the state institutions picked last. Even other public entities stood closer to the head of the line. "The state's granted -trust lands were awarded after all of the other federal programs had received their land."(fn20) Much of the remaining land, however valuable it might become in the indefinite future, lay too far from navigable water or steel rails to be feasible for logging or even market farming. Not surprisingly, "[windfall profits anticipated from the state's land sales instead went to timber companies and railroad companies, which owned better positioned and more productive lands than did the state."(fn21)

Because the state received land after all other claimants, the common school lands never paid all the costs of public education. Taxpayers had their burden lightened, but not lifted. "Beginning at statehood and...