Pub. Util. Dist. No. 1 v. State ( 2015 )

/ F 1-C-E~ ·rtU& opinion wu fftld for reoord
IN CLERKSO,ICI '
-~
IUPRBoE COURT,8'DQIOP----
1E JAN 9 _2015~
~~~~~!!'!!!/~- Rona . arpen
8Up!f!im'te CGurt Clark
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
PUBLIC UTILITY DISTRICT NO. 1 OF
OKANOGAN COUNTY, a municipal
corporation,
Petitioner/Cross-Appellant,
v.
STATE OF WASHINGTON, PETER NO. 88949-0
GOLDMARK, Commissioner of Public
Lands,
Petitioner/Cross-Respondent,
and ENBANC
CONSERVATION NORTHWEST, a
nonprofit corporation,
Petitioner/Cross-Respondent,
Filed JAN 2 9 2015
and --~----
CHRISTINE DAVIS, a single person,
TREVOR KELPMAN, a single person, DAN
GEBBERS and REBA GEBBERS, husband
and wife, and WILLIAM C. WEAVER,
custodian for Christopher C. Weaver, a minor,
Respondents.
Pub. Uti!. Dist. No. 1 of Okanogan County v. State, et al., 88949-0
STEPHENS, J.-This case arises from the protracted history between Public
Utility District No. 1 of Okanogan County (PUD) and the Department of Natural
Resources (DNR) 1 over the installation of an electrical transmission line through
school lands managed by DNR in the Methow Valley. At issue is whether PUD is
statutorily authorized to condemn a right of way through school trust lands for the
construction of a transmission corridor and, if so, whether the particular school
lands are nonetheless exempt from condemnation as a result of their trust status as
school lands or present use for cattle grazing. The trial court and Court of Appeals
concluded that PUD is statutorily authorized to condemn school lands and that the
particular school lands at issue are subject to condemnation. We affirm.
FACTS AND PROCEDURAL HISTORY
PUD is a nonprofit, public utility district tasked with the conservation of the
state's water and power resources and the supply of public utility services to
residents in Okanogan County. See LAWS OF 1931, ch. 1, § 1. To supply
electricity to the region, PUD operates a high voltage transmission line connecting
Twisp, Okanogan, and Pateros (the Loup-Loup line) and a lower voltage
distribution line from Pateros to Twisp (the Methow-Valley Floor line). The
existing system has long experienced reliability, capacity, and line loss problems.
Gebbers v. Okanogan County Pub. Uti!. Dist. No. 1, 144 Wash. App. 371, 375, 183
P.3d 324 (2008). As a result, residents have suffered excessive and costly line
1 DNR, Peter Goldmark, and the State are referenced herein collectively as DNR.
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losses and frequent power outages. Id. These problems are expected to increase as
the service population in that region grows. Id.
In 1996, PUD proposed the installation of a new higher capacity
transmission line from Pateros to Twisp that would run roughly parallel to the
existing Methow-Valley Floor line. Progress on the project slowed when PUD was
required to conduct an extensive environmental impact study (EIS). In 2003, PUD
and the United States Forest Service (USFS) held a public scoping period,
encouraging members of the public, environmental groups, and governmental
agencies to assist them in identifying areas of public concern. In 2004, PUD and
the USFS released a scoping report. The report identified 15 alternatives, but only
6 alternatives and a no-action alternative were ultimately approved for detailed
consideration in light of the project's objectives. 2 In January 2005, PUD released
an extensive draft EIS report describing the viability of each alternative and its
anticipated impact on air and soil quality, erosion, vegetation, fish, and wildlife.
Id. at 376. PUD thereafter held several public hearings and meetings and
responded to over 400 letters submitted during the comment period. Id.
In February 2006, PUD indicated its preferred plan was "Alternative 2,"
which involved the installation of a new transmission line from Pateros to Twisp
2
The project's objectives are (1) reducing transmission line voltage drops, (2)
ensuring transmission capacity to accommodate anticipated load growth, (3) reducing
transmission line related outages, (4) reducing existing transmission line losses, (5)
reducing voltage drops on the distribution circuits, (6) ensuring distribution capacity to
accommodate growth, (7) increasing transfer capability between distribution circuits, and
(8) reducing line losses at the lowest cost while minimizing adverse environmental
impacts. Gebbers, 144 Wash. App. at 377-78.
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Pub. Util. Dist. No. 1 of Okanogan County v. State, et al., 88949-0
(the Pateros-Twisp line). !d. at 376-77. The Pateros-Twisp line meets all of the
project's objectives, provides a secondary backup power source for the area, and is
significantly less expensive than simply upgrading the existing Loup-Loup line.
Id. at 377-78. The Pateros-Twisp line is a modified version of the original 1996
plan. Methow Transmission Project Summary: Final Envtl. Impact Statement at
S-6 (Mar. 2006), https://www.okanoganpud.org/sites /default/files/pdfs/environ-
mental_generation/methow_transmission/feis/Summary.pdf. The principal change
eliminated all permanent road construction, requiring PUD to use temporary track
roads, hand-dig holes, and deliver structures by helicopter. Id.
Installation of the Pateros-Twisp line requires PUD to obtain an 11.6-mile
easement across school lands managed by DNR. Br. of Resp't PUD - PUD
Statutory Condemnation Auth. at 7-8. These lands were granted to the state in
tn1st for the people and for the support of a common school fund. They comprise a
portion of the largest publicly owned tract of shrub-steppe habitat in the Methow
Valley. Appellant/Cross-Resp't Conservation Northwest's Suppl. Br. at 1. The
lands are currently leased for cattle grazing and generate approximately $3,000 of
annual income for the benefit of Washington schools. Clerk's Papers (CP) at 232,
252,273,298,319. The grazing leases expressly recognize that they are subject to
the easement rights of others and provide remedies in the event that all or part of
the land is condemned by a public authority. See, e.g., id. at 233, 240.
PUD released a final EIS report on March 7, 2006, indicating its preference
for Alternative 2. Gebbers, 144 Wash. App. at 376. The PUD commissioners
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Pub. Uti!. Dist. No. 1 of Okanogan County v. State, et al., 88949-0
officially selected Alternative 2 for the project later that month. !d. Various
citizen groups subsequently filed suit challenging the sufficiency of the EIS report
under the State Environmental Policy Act, chapter 43.21C RCW, and the prudence
of the commissioners' selection. 144 Wash. App. at 378-79. The trial court
dismissed these challenges, and the Court of Appeals affirmed. !d. at 393. We
denied review. Gebbers v. Okanogan County Pub. Uti!. Dist. No. 1, 165 Wash. 2d
1004, 198 P.3d 511 (2008).
While the EIS challenges were pending, PUD applied for the necessary
easements through the school lands using DNR' s easement application process.
CP at 125-26. Between May 2007 and February 2010, PUD and DNR
communicated extensively about the proposed easements. !d. PUD submitted a
formal application in October 2008 and was told the application would take
approximately two to three months to process. Id. at 126. PUD's application has
been pending now for over five years. PUD Answer to Amicus Curiae Br. of
Western States Land Comm'rs Ass'n at 16. And, approximately 18 years have
passed since the project was proposed in 1996.
In 2010, PUD filed a petition to condemn the necessary easements for the
project. Prior to condemnation hearing on public use and necessity, Conservation
Northwest (CNW), a group engaged in eonservation activities, moved to intervene.
CP at 594-606. DNR objected. The trial court granted CNW limited intervention
to address the scope of PUD's condemnation authority. !d. at 506-08. CNW and
DNR filed separate motions for summary judgment, arguing PUD does not have
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Pub. Uti!. Dist. No. 1 of Okanogan County v. State, eta!., 88949-0
the authority to condemn the subject school lands given their trust status and
present use as grazing land. Id. at 460-505. The trial court denied CNW's and
DNR's motions and granted summary judgment in favor ofPUD, concluding PUD
has the authority to condemn the subject school lands. Id. at 22-24. 3
The Court of Appeals affirmed the trial court's determination that PUD has
the authority to condemn the relevant school lands, but did not address the
propriety of CNW's intervention. Pub. Util. Dist. No. 1 of Okanogan County v.
State, 174 Wash. App. 793, 301 P.3d 472 (2013). The court held that the subject
school lands were not exempt from condemnation because they were not dedicated
to a public use by virtue of their trust status or reserved for a particular purpose in
light of their grazing leases. Id. at 802-07. Additionally, the court held that even if
the lands were devoted to a public use or reserved for a particular purpose, PUD
could still condemn an easement through them because PUD' s proposed use is
compatible with DNR's present use. Id. at 807-08.
DNR petitioned for review on the issue of condemnation, and PUD sought
cross review on the issue of intervention. We granted review. Pub. Util. Dist. No.
1 of Okanogan County v. State, 178 Wash. 2d 1025, 312 P.3d 652 (2013).
3
Appellate review of the trial court's decision was stayed in order to resolve a
dispute regarding the Washington State Attorney General's duty to represent the
commissioner of public lands in the matter. Goldmark v. McKenna, 172 Wash. 2d 568, 572,
259 P.3d 1095 (2011).
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Pub. Uti!. Dist. No. 1 of Okanogan County v. State, et al., 88949-0
ANALYSIS
I. Limited Intervention of Conservation Northwest
The trial court granted CNW limited intervention under CR 24 to address
whether PUD has the authority to condemn school lands. As a threshold matter,
PUD contends that CNW's intervention in this case is contrary to law. PUD
argues that RCW 8.12.120 supersedes CR 24 and allows only those with
compensable land interests (i.e., those with real property interests) to be parties in a
condemnation proceeding. Alternatively, PUD argues that the trial court's CR 24
analysis was in error. We disagree.
A. RCW 8.12.120 Does Not Prohibit Intervention by Those Challenging a
Condemnor's Authority to Condemn Certain Property
Chapter 8.12 of the Revised Code of Washington sets out the process of
condemnation proceedings brought by public utility districts. 4 RCW 8.12.120 in
particular provides that in condemnation proceedings, a jury shall "ascertain the
just compensation to be paid to any person claiming an interest" in the property
taken or damaged. Accordingly, the statute requires that "[ s]uch person shall first
be admitted as a party defendant to said suit by such court." Id. PUD contends
that CNW cannot intervene in this case because it has no compensable property
interest and thus is not a party defendant who must be joined under RCW 8.12.120.
4
Although chapter 8.12 RCW's procedural requirements by their terms pertain
solely to the exercise of condemnation powers by cities and towns, the legislature has
extended these requirements to the exercise of condemnation powers by public utility
districts. RCW 54.16.020.
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PUD's analysis makes a critical misstep by reading RCW 8.12.120 as
restricting a court's power of joinder. While the statute requires the joinder of
particular parties, it does not prohibit a court from exercising its authority under
the court rules to join individuals challenging a condemnor's authority with respect
to certain property. In City of Tacoma v. Taxpayers of Tacoma, 49 Wash. 2d 781,
793, 307 P.2d 567 (1957), 5 we acknowledged the special statutory scheme for
condemnation actions but held it did not prevent a court from hearing an action
questioning the scope of a condemnor's authority. At issue was whether Thurston
County had jurisdiction to consider a challenge to the city of Tacoma's power to
condemn lands that were not located in either Pierce County (where the action had
commenced) or Thurston County (where the action was transferred). The trial
court concluded it did not have jurisdiction over the matter because condemnation
actions are in rem actions and the subject lands were outside the court's
geographical reach. Id. at 794. We reversed, explaining that an action regarding
the scope of an entity's condemnation powers is "not a condemnation action." !d.
at 793. The teaching point of Taxpayers of Tacoma is that chapter 8.12 RCW
should not be read restrictively. While this is a condemnation action, there is no
conflict between joining party defendants under RCW 8.12.120 and joining others
under the civil rules.
5
Because we cite to another case involving the City of Tacoma, we refer to this
case hereinafter as "Taxpayers of Tacoma" to avoid unnecessary confusion. We also
recognize that Taxpayers of Tacoma was reversed by the United States Supreme Court,
357 U.S. 320, 78 S. Ct. 1209, 2 L. Ed. 2d 1345 (1958), on res judicata grounds
inapplicable to the propositions for which the case is cited in this opinion.
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We have long recognized the ability of adjacent landowners to question the
power of a condemnor to take certain property notwithstanding their lack of
compensable land interests in the matter. See State ex rel. N Pac. Ry. v. Superior
Court, 136 Wash. 87, 90-91, 238 P. 985 (1925) (listing cases). PUD's reliance on
Port of Grays Harbor v. Bankruptcy Estate of Roderick Timber Co., 73 Wash. App.
334, 869 P.2d 417 (1994), and Public Utility District No. 1 of Snohomish County v.
Kottsick, 86 Wash. 2d 388, 545 P.2d 1 (1976), is unavailing. Neither case questioned
the scope of a condemnor's authority. Instead, they concerned whether certain
individuals qualified as "condemnee[s]" under RCW 8.25.075(1) so as to entitle
them to an award of attorney fees. Port of Grays Harbor, 73 Wash. App. at 337;
Kottsick, 86 Wash. 2d at 389-90. In this case, CNW does not seek to assert a property
interest or to claim entitlement to fees, but rather simply to challenge the scope of
PUD's condemnation authority. Because RCW 8.12.120 does not address this
situation, we consider whether CNW' s intervention was proper under CR 24.
B. The Trial Court Did Not Abuse Its Discretion in Allowing CNW To
Intervene under CR 2 4
CR 24 provides two independent means by which a party can intervene.
Vashon Island Comm. for Self-Gov 't v. Wash. State Boundary Review Bd., 127
Wash. 2d 759, 765, 903 P.2d 953 (1995). Subsection (a) addresses when a party is
entitled to intervene as a matter of right, and subsection (b) addresses the
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Pub. Uti!. Dist. No. 1 of Okanogan County v. State, et al., 88949-0
conditions for permissive intervention. CR 24(a), (b). The trial court granted
CNW limited intervention under CR 24(b). We affirm. 6
We review a trial court's decision granting permissive intervention under
CR 24(b) for abuse of discretion. In re Recall Charges Against Butler-Wall, 162
Wash. 2d 501, 507, 173 PJd 265 (2007). "'An abuse of discretion exists only when
no reasonable person would take the position adopted by the trial court."'
Westerman v. Cary, 125 Wash. 2d 277, 304, 892 P.2d 1067 (1994) (internal quotation
marks omitted) (quoting In re Dependency of J.H, 117 Wash. 2d 460, 472, 815 P .2d
1380 (1991)). An error of law necessarily constitutes an abuse of discretion. Sales
v. Weyerhaeuser Co., 163 Wash. 2d 14, 19, 177 P.3d 1122 (2008).
CR 24(b) states in pertinent part that "anyone may be permitted to intervene
in an action ... [w]hen an applicant's claim or defense and the main action have a
question of law or fact in common." It further provides that "[i]n exercising its
discretion the court shall consider whether the intervention will unduly delay or
prejudice the adjudication of the rights of the original parties." CR 24(b )(2). PUD
argues that CR 24(b) plainly requires that permissive intervenors have an
independent claim or defense in addition to commonality of law or fact. Suppl. Br.
of Resp't PUD at 3; Br. of Appellant PUD on Intervention at 24; Reply Br. of
Appellant PUD on Intervention at 12, 13 n.15. According to PUD, a claim or
defense is independent only if it is different from those brought by the existing
6
The trial court also concluded that CNW was entitled to intervene under CR
24(a). We do not address the court's analysis under subsection (a) because we affirm its
analysis under subsection (b).
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Pub. Uti!. Dist. No. 1 of Okanogan County v. State, et al., 88949-0
parties. 7 PUD concludes that CNW does not have an independent claim or defense
because CNW and DNR make the same basic argument, namely that PUD does not
have the authority to condemn school lands.
Contrary to PUD's analysis, our case law recognizes that an intervenor's
interest is not adequately represented simply because similar relief is sought by
another party. Columbia Gorge Audubon Soc y v. Klickitat County, 98 Wash. App.
618, 628-30, 989 P.2d 1260 (1999) (allowing Yakama Nation to intervene even
though it was "simply another voice asking for the same result . . . only for
different reasons"). We have also repeatedly concluded that the state's general
duty to protect the public's interest does not sufficiently protect the narrower
interests ofprivate groups. In CLEANv. City of Spokane, 133 Wn.2d 455,460-62,
474, 947 P.2d 1169 (1997), we allowed real estate developers to intervene in an
action to defend a city ordinance that provided public support for the construction
of a new parking garage in downtown Spokane even though their interests were
aligned with the city. We concluded that the developers' interests were not
"'adequately represented by existing parties'" because the city had a broader
interest in protecting all of its residents, not just the limited commercial interests of
the developers. !d. at 474 (quoting CR 24(a)(2)).
7
This argument seems to be based on the possessive and conjunctive language of
CR 24(b) and PUD's belief that any other reading would be contrary to the common law
prohibition against third-party standing. See PUD's Answer to Pet. for Review at 18
(citing our standing analysis in Grant County Fire Prot. Dist. No. 5 v. City of Moses
Lake, 150 Wash. 2d 791, 802-04, 83 P.3d 419 (2004)).
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Pub. Uti!. Dist. No. 1 of Okanogan County v. State, et al., 88949-0
Similarly, in Loveless v. Yantis, 82 Wash. 2d 754, 756 n.l, 760, 513 P.2d 1023
(1973), we allowed neighboring homeowners and residents to intervene in order to
oppose the construction of a multifamily condominium in their community. We
rejected any argument that the intervenors' interests were per se adequately
represented by the county simply because it too opposed the construction. !d. at
759. We explained that while their ultimate goal was aligned, their interests were
not the same: "the county must consider the interests of all the residents of the
county"; whereas "the affected property owners represent a more sharply focused
and sometimes antagonistic viewpoint to that of the county as a whole." Id.
In light of this precedent, it was not an abuse of discretion for the trial court
to conclude that CNW' s interests in this litigation were not adequately protected by
DNR's interests. Here, DNR is tasked with the protection of school lands for the
interests of the general public and the support of schools. While DNR's interest
also includes the protection of wildlife sanctuaries and shrub steppe lands, its
interest is broader than the limited conservation interests of CNW.
Finally, PUD argues that the trial court abused its discretion in failing to
consider the undue delay and prejudice that CNW' s intervention would (and,
according to PUD, has) caused. PUD points out that the litigation in this case has
been protracted and that PUD has been prejudiced by having to respond to, rather
than ignore, CNW' s arguments. We are not persuaded. PUD has not shown that
any delay in litigation was "undue" or that CNW' s involvement unjustifiably
prolonged litigation. Rather, the record shows CNW did not intervene in the
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litigation until 2010 and had nothing to do with the mandamus question that was at
issue in Goldmark v. McKenna, 172 Wash. 2d 568, 259 P .3d 1095 (20 11 ). Moreover,
accepting PUD' s reasoning would largely foreclose intervention because there is
always "prejudice" that arises out of having to respond to an intervenor's
arguments. We affirm the trial court's decision. The trial court did not abuse its
discretion in permitting CNW to intervene on the limited issue ofPUD's authority
to condemn the subject lands.
II. Condemnation of School Lands
The central issue in this case involves DNR's and CNW's assertion that
PUD is prohibited from exercising its eminent domain powers to condemn an
easement through the subject school lands. The trial court and Court of Appeals
rejected this argument, as do we.
"Eminent domain" is the power of a sovereign to condemn property for
public use without the owner's consent. It is an "inherent" attribute of state
sovereignty. State ex. rel. Eastvold v. Yelle, 46 Wash. 2d 166, 168, 279 P.2d 645
(1955). States may delegate these powers to municipal corporations and political
subdivisions, but such delegated authority extends only so far as statutorily
authorized. Taxpayers of Tacoma, 49 Wash. 2d at 796. The scope of a municipal
corporation's condemnation authority is therefore a matter of statutory
interpretation, which we review de novo.
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Pub. Uti!. Dist. No. 1 of Okanogan County v. State, et al., 88949-0
PUD's condemnation authority is set forth in Title 54 RCW. It arose by
initiative. 8 In the early 1920s, Washington State was experiencing rapid
population growth and economic expansion, coupled with a strong labor
movement. At the same time, access to electric power was becoming increasingly
critical to modem life and central to economic progress. JAY L. BRIGHAM,
EMPOWERING THE WEST: ELECTRICAL POLITICS BEFORE FDR 101 (1998). Control
over electrical power was hotly debated in Washington and throughout the United
States. !d. Although Seattle boasted that it had more electric ranges than any other
city at the time, it ranked 36th among 93 American cities in the percentage of
families with radios, suggesting that despite Washington's abundant supply of
hydroelectrical potential, electricity was still a luxury commodity in many homes.
!d.
Electric service to Washington's farms, ranches, and rural areas lagged even
farther behind urban areas like Seattle. As of 1930, only 4 7 percent of Washington
farms had electricity, and those with electricity paid exorbitant rates. Id. at 121.
This disparity engendered public distrust of private utility companies and sparked a
populist movement, led by the Washington State Grange, for allowing public
municipal power companies to operate outside their municipal boundaries so that
they could compete with private utility companies in rural areas. Jd. The
8
It was originally introduced as an initiative to the legislature but was defeated by
opponents in the state senate. Jay L. Brigham, EMPOWERING THE WEST: ELECTRICAL
POLITICS BEFORE FDR 121-22 (1998). The bill was then automatically placed on the
general ballot election and approved by Washington voters in 1930. Id.
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movement led to the passage of the initiative and the creation of public utility
districts. !d. at 121-22; LAWS OF 1931, ch.l.
Regarding the authority of public utility districts to condemn school lands,
RCW 54.16.050 provides:
A district may take, condemn and purchase, purchase and acquire any
public and private property, franchises and property rights, including state,
county, and school lands, and property and littoral and water rights, for any
of the purposes aforesaid, and for railroads, tunnels, pipe lines, aqueducts,
transmission lines, and all other facilities necessary or convenient.
(Emphasis added. )9 The parties do not dispute that the proposed condemnation at
issue here was to advance an enumerated purpose. They, however, disagree over
whether the subject school lands are exempt from condemnation by virtue of their
trust status or present use for cattle grazing. Additionally, DNR and CNW argue
that even if PUD is statutorily authorized to condemn the subject lands
notwithstanding their trust status and present use, such authorization is
unconstitutional and a breach of the state's fiduciary duties.
9
We recognize the way the initiative was codified confuses how RCW 54.16.020,
.040, and .050 relate to one another. The title to RCW 54.16.020 indicates that it pertains
to the "[a]cquisition of property and rights-[e]minent domain," and RCW 54.16.040
indicates that it pertains to "[ e]lectric energy," but neither includes authority to condemn
school lands. In contrast, RCW 54.16.050 is titled "[w]ater rights" and specifically
authorizes the condemnation of school lands for the installation of transmission lines.
The framework of Laws of 1931, ch. 1, § 6 provides clarity on this matter. It indicates
these provisions originated as part of a single section setting forth the scope of the
condemnation powers of public utility districts and that RCW 54.16.050 was meant to be
a catchall provision that applies to all "the purposes aforesaid." LAws OF 1931, ch. 1, §
6(e).
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A. PUD Is Statutorily Authorized to Condemn School Trust Lands
"As is well known, the state holds title to property in two entirely distinct
capacities, the one a proprietary capacity, as individuals generally hold property,
and the other a governmental capacity, that is, in trust for the public use." State v.
Superior Court, 91 Wash. 454, 458, 157 P. 1097 (1916). For condemnation
purposes, a state may hold property in its governmental capacity regardless of
whether the property is presently devoted to any actual public use. Id. at 459-60
(concluding the state's failure to use land in the 25 years since its appropriation as
a waterway for said purpose did not revert the land back to proprietary status). We
have deemed it "conclusively settled" that "a municipal corporation or a public
corporation does not have the power to condemn state-owned lands dedicated to a
public use, unless that power is clearly and expressly conferred upon it by statute."
Taxpayers of Tacoma, 49 Wash. 2d at 798 (emphasis added). When a political
subdivision seeks to condemn state land held by the state in its governmental
capacity, statutory authorization to condemn the particular type of land is not
sufficient. Not only does the power to condemn a particular type of land need to
be statutorily given, but the power to condemn such lands when they are held in
the state's governmental capacity must be as well. See State ex rel. Att'y Gen. v.
Superior Court, 36 Wash. 381, 385, 78 P. 1011 (1904) (noting strict statutory
construction is necessary "where the lands of the sovereign are sought to be
taken"). This requirement of strict statutory authorization is consistent historically
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Pub. Uti!. Dist. No. 1 of Okanogan County v. State, et al., 88949-0
with other jurisdictions. A.M. Swarthout, Annotation, Eminent domain: power of
one governmental unit or agency to take property of another such unit or agency,
91 L. Ed. 221~ 259 (1946) (noting that "there is a clear tendency on the part of the
courts against interpreting governing statutory provisions in favor of the existence
of such authorization [to condemn property of the state] in the absence of a clear
expression of the legislative intention to that effect").
While there is much debate about when state property is deemed
governmental rather than proprietary, we need not concern ourselves with this
question because the particular lands at issue are school trust lands, which are
indisputably held in the state's governmental capacity. See Soundview Pulp Co. v.
Taylor, 21 Wash. 2d 261, 270, 150 P.2d 839 (1944) (recognizing that "[t]he state of
Washington in its ownership of granted school lands ... owns and holds them in
its sovereign, as distinguished from its proprietary, capacity"); State v. Nw.
Magnesite Co., 28 Wash. 2d 1, 26, 182 P.2d 643 (1947) (same). Thus, whether PUD
is expressly authorized to condemn the subject school lands turns on whether the
term "school lands" provided in RCW 54.16.050 refers to school trust lands.
Although the legislature has granted specifically to railroads the right to
condemn "lands granted to the state for university, school or other purposes,"
RCW 81.36.010, this does not establish that the term "school lands" in RCW
54.16.050 must refer to something else. History shows that it does not.
In the Public Lands Act, LAWS OF 1927, ch. 255, § 1 (currently codified as
RCW 79.02.010(14)(a)), which was adopted four years before the enactment of
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Pub. Uti!. Dist. No. 1 of Okanogan County v. State, et al., 88949-0
RCW 54.16.050, the legislature used the term "school lands" as shorthand for
"lands held in trust for the support of the common schools." While this
explanation does not necessarily mean the legislature intended the same meaning
in RCW 54.16.050, it is strong evidence of such intention. Champion v. Shoreline
Sch. Dist. No. 412, 81 Wash. 2d 672, 676, 504 P.2d 304 (1972) ('"Whenever a
legislature had used a word in a statute in one sense and with one meaning, and
subsequently uses the same word in legislating on the same subject-matter, it will
be understood as using it in the same sense."') (internal quotation marks omitted)
(quoting State ex rel. Am. Piano Co. v. Superior Court, 105 Wash. 676, 679, 178 P.
827 (1919)). This is particularly true in this case because the legislature has
indicated that "[t]he rule of strict construction shall have no application to" Title 54
RCW and has directed that its provisions "be liberally construed, in order to carry
out the purposes and objects for which this act is intended." LAWS OF 1931, ch. 1,
§ 11. Moreover, we have interpreted a similar provision granting cities and towns
the authority to condemn "school lands" as expressly conferring on them the
authority to condemn school trust lands. See Roberts v. City of Seattle, 63 Wash.
573, 116 P. 25 (1911); City of Seattle v. State, 54 Wash. 2d 139, 338 P.2d 126 (1959).
We see no reason to interpret RCW 54.16.050 differently, particularly when the
legislature has not amended such language after these decisions and has directed us
to liberally construe the statute's terms. Buchanan v. Int'l Bhd. of Teamsters, 94
Wash. 2d 508, 511, 617 P.2d 1004 (1980) (noting the legislature's failure to amend a
statute evinces agreement with judicial interpretation). We, therefore, hold that
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Pub. Uti!. Dist. No. 1 of Okanogan County v. State, et al., 88949-0
RCW 54.16.050 expressly authorizes public utility districts to condemn school
lands held in trust by the state. We next consider whether PUD is nevertheless
prohibited from condemning the subject property because of its present use for
cattle grazing.
B. The "Prior Public Use" Doctrine Does Not Bar a Proposed Use That Is
Compatible with the Present Use of the Land
The rule of express statutory authorization applies when corporations or
political subdivisions seek to condemn property presently serving or intended to
. soon serve a public use, regardless of whether the property is owned by the state.
1A JULIUS L. SACKMAN, NICHOLS ON EMINENT DOMAIN§ 2.17, at 2-58 (3d ed.
1964). The "general rule is that when the proposed use will either destroy the
existing use or interfere with it to such an extent as is tantamount to destruction,
the exercise of the power will be denied unless the legislature has authorized the
acquisition either expressly or by necessary implication." !d.; see Samish River
Boom Co. v. Union Boom Co., 32 Wash. 586, 596, 73 P. 670 (1903) (explaining
"the right to take property already devoted to and in public use must be given
either in express terms or by necessary implication, and will not be presumed
simply from a general grant of power to condemn"); A.S. Klein, Annotation,
Power ofEminent Domain as between State and Subdivision or Agency Thereof, or
as between Different Subdivisions or Agencies Themselves, 35 A.L.R. 3d 1293,
1305 (1971 ). This rule is commonly referred to as the doctrine of "prior public
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Pub. Uti!. Dist. No. 1 of Okanogan County v. State, eta!., 88949-0
use." 10 While the precise origin of the doctrine is unclear, it is believed to have
developed as a means of curtailing railroad companies from commandeering public
highways through the exercise of their broad condemnation authority. Note,
Reconciling Competing Public Claims on Land, 68 COLUM. L. REv. 155, 156
(1968) (tracing the prior public use doctrine to Inhabitants of Springfield v. Conn.
River R.R., 58 Mass. 63 (1849)).
In this case, the lower court did not consider whether leasing state property
for cattle grazing constitutes a "public use" because it found DNR's use to be
compatible with PUD' s proposed constn1ction. DNR and CNW argue that any
present public use necessarily exempts property from condemnation; DNR asks for
a "bright-line rule" that defers to DNR to decide in the first instance whether uses
are compatible. Appellants State ofWash. & Peter Goldmark's Suppl. Br. at 16.
Contrary to DNR's and CNW's contention, Washington recognizes that the
prior public use doctrine does not apply when the prior use is compatible with the
proposed use. The flaw in DNR' s and CNW' s position stems from a
10
We recognize that some jurisdictions have expanded the prior public use rule to
forestall condemnations that would materially impair or interfere with an existing public
use. NICHOLS, supra, § 2.17, at 2-58 to -60. And, others have limited its application to
instances when both the condemnee and condemnor possess general powers of eminent
domain. Note, Reconciling Competing Public Claims on Land, 68 COLUM. L. REV. 155,
159-60 (1968). We need not consider whether Washington applies an expansive or
limiting construction at this time because PUD's proposed use does not impair or
interfere with DNR' s existing use so as to trigger the prior public use doctrine under any
variant of the rule. Accordingly, while we recognize that jurisdictions apply different
tests, we do not consider under what circumstances a condemnor may take property
notwithstanding a competing public use. See Joris Naiman, Comment, Judicial Balancing
of Uses for Public Property: The Paramount Public Use Doctrine, 17 B.C. ENVT'L AFF.
L. REv. 893 (1990) (discussing various tests).
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Pub. Uti!. Dist. No. 1 of Okanogan County v. State, eta!., 88949-0
misapprehension of our early cases. As discussed, the analysis for determining a
municipal corporation's authority to condemn state land held by the state in its
governmental capacity is similar to that for determining a corporation's authority
to condemn property already serving a public use. Both analyses require express
statutory authorization and tum on the character of the property being condemned.
The former, however, concerns the power to condemn and looks to whether the
state has set aside state-owned property for public use so that the property is no
longer held in its proprietary capacity. The inquiry does not depend on whether the
property is actually being used for any present public use. See Superior Court, 91
Wash. at 455-56. In contrast, the prior public use doctrine does. It assumes the
power to condemn exists and is concerned with the exercise of such power. The
prior public use doctrine balances competing public uses and applies regardless of
whether the property is state owned.
DNR and CNW misconstrue Superior Court. There, we did not hold that the
presence of a public use precludes condemnation without exception. The issue in
that case was whether a railroad was authorized to condemn state tidelands that
had been designated (though never used) for public streets under a statute that
permitted the condemnation of '"tide and shore lands belonging to the state."' !d.
at 457 (quoting REM. & BAL. CoDE § 8740). Applying the general rule that
authorization to condemn a particular type of land applies only to land held in the
state's proprietary status, we held the railroad was not authorized to condemn tide
lands held in the state's sovereign capacity. !d. at 458-61. As we explained, the
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Pub. Util. Dist. No. 1 of Okanogan County v. State, et al., 88949-0
key issue was statutory authorization: "whether the state has granted to railway
companies the right to condemn land which it has reserved and set apart for a
public use." Id. at 461.
Similarly, the issue m Taxpayers of Tacoma was whether the City of
Tacoma had the authority to condemn state lands that were dedicated to a public
use as a fish hatchery in order to construct a dam. 49 Wash. 2d 781. There, we were
again faced with the issue of the power to condemn and whether the particular
statutory authorization extended to sovereign lands (i.e., state lands dedicated to a
public use). Applying the "conclusively settled" rule that "a municipal corporation
or a public corporation does not have the power to condemn state-owned lands
dedicated to a public use, unless that power is clearly and expressly conferred upon
it by statute," we concluded that no statute endowed the city with such authority.
Id. at 798.
State ex rel. Attorney General is yet another case regarding statutory
authorization to condemn property held in the state's governmental capacity. At
issue was whether a water corporation had the power to condemn school lands
under a statute that authorized the condemnation of '"any land.'" 36 Wash. at 382
(quoting LAWS OF 1873, ch. 1, § 2, at 398). We held that while a water corporation
had broad powers of condemnation, this power did not extend to school lands
absent express authorization, as evinced by a similar statute specifically
authorizing railroads (but not water corporations) to condemn school lands. I d. at
382-86. We never had to consider whether the water corporation's proposed use
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Pub. Uti!. Dist. No. 1 of Okanogan County v. State, et al., 88949-0
was compatible with the state's use of the subject school lands because the water
corporation was never authorized to condemn such lands in the first instance.
City of Tacoma v. State, 121 Wash. 448, 209 P. 700 (1922), also involved
the condemnation of state lands and the question of statutory interpretation. In this
case, the city wanted to erect a dam on the Skokomish River. In doing so, it sought
to acquire by condemnation public lands once used as an "eyeing station" and to
flood state property presently used as a fish hatchery. Id. at 450-51. The issues
were whether the city needed express statutory authority to condemn the eyeing
station and whether the city's proposed use was a competing public use with the
fish hatchery. !d. at 451-53. We concluded express authorization was not required
to condemn the eyeing station because the property at issue was proprietary, not
governmental. It was proprietary because the deed conveying the property did not
provide conditions for its use and the state never formally dedicated it to a
particular use, was no longer using it, and had no intentions of using it in the
future. !d. at 452. Because the fish hatchery was clearly a present public use, we
then engaged in a prior public use analysis. !d. at 453. We considered whether the
proposed dam would destroy or substantially interfere with the existing fish
hatchery and concluded that it did not. Id.
To the extent our decision in State ex rel. City of Cle Elum v. Kittitas
County, 107 Wash. 326, 173 P. 698 (1919), could be interpreted to support DNR's
argument that property devoted to a present public use is per se protected from
condemnation, we disavow such interpretation. In City of Cle Elum, Kittitas
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Pub. Uti!. Dist. No. 1 of Okanogan County v. State, et al., 88949-0
County sought to build a county road through lands owned by the city and used as
a water reservoir. Id. at 327. We concluded that Kittitas County did not have the
power to condemn this land because it was statutorily authorized to condemn city
property only for the construction of permanent highways, not county roads. !d. at
328-29. In dicta, however, we noted that even if Kittitas County had the power to
condemn city property for the construction of county roads, such power did not
extend to lands that were dedicated to a present or prospective public use. Id. at
330-31. While this statement may suggest that a present or prospective public use
categorically exempts property from condemnation, it was not part of the court's
holding and does not erode our otherwise clear precedent.
As we explained in Superior Court, once the question of power has been
determined, then the issue may be about the superiority of rights between
competing public uses. 91 Wash. at 460-61 (citing State ex rel. Wash. Boom Co. v.
Chehalis Boom Co., 82 Wash. 509, 144 P. 719 (1914)); see State ex rel. Wash.
Water Power Co. v. Superior Court, 8 Wash. 2d 122, 131-32, Ill P.2d 577 (1941)
(listing cases where property was condemned to serve a greater public benefit). In
condemnation actions between competing public uses, we have said that we
consider "the present or prospective use of such property by the condemnee, the
prospective use thereof by the condemner, the comparative advantages flowing to
the public as between the ownership thereof by the condemnee and condemner,
and the comparative advantage and disadvantages flowing to the condemnee and
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Pub. Uti!. Dist. No. 1 of Okanogan County v. State, et al., 88949-0
condemner by the ownership of such property." Wash. Boom Co., 82 Wash. at
514.
In Roberts, we held that the city of Seattle could condemn a particular strip
of school lands for the widening of a road even though the land had already been
devoted to a public use (i.e., education) because there was "nothing to indicate that
the taking of the strip of land will impair the use of the land remaining." 63 Wash.
at 576. In City of Tacoma, we likewise permitted the flooding of state lands
presently devoted to a public use as a fish hatchery because the proposed flooding
did not destroy or critically interfere with such use. 121 Wash. at 453. Like the
courts in Roberts and City of Tacoma, the trial court in this case concluded that
PUD's proposed use was compatible with DNR's present use and therefore did not
consider which use should prevail.
DNR nevertheless cautions against allowing public utilities to condemn
school lands simply because the proposed use is compatible with existing uses.
DNR predicts such policy will lead to an ad hoc reduction of school lands. This
argument fails to appreciate the strict public use and necessity prerequisites
necessary for commandeering property through eminent domain, the express
legislative authorization needed to reach school lands, and the requirement that the
proposed use not destroy a present public use absent express authorization or
necessary implication to do so. Moreover, whether the preservation of school
lands should outweigh the interests of providing electricity to certain areas is a
matter of public policy reserved for the legislature, not the court. The question
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Pub. Uti!. Dist. No. 1 of Okanogan County v. State, et al., 88949-0
before us is one of pure statutory interpretation. Any reduction of school lands that
may result from PUD's exercise of its condemnation powers is not due to judicial
expansion, but rather express statutory authorization. Nor does our holding extend
so far. As we discuss below, only the condemnation of an easement is at issue in
this case; we have not considered whether condemnation of a fee interest in school
lands would be constitutional. 11
C. The Washington State Constitution Does Not Prohibit the Condemnation
of an Easement through School Lands
While a state can delegate its condemnation powers to its political
subdivisions, it cannot delegate powers it does not have. A state's inherent
condemnation authority, though broad, is limited by its constitutional provisions.
Because PUD's condemnation authority derives from the state, its authority is
similarly limited. DNR argues that condemnation of an easement through school
lands violates the state constitution. We disagree.
None of the eminent domain provisions in our state constitution prohibit the
condemnation of an easement through school lands. Article I, section 16 limits the
11
Because the question before us is one of statutory interpretation, we do not
regard the trial court's summary judgment order as resolving facts or making a "finding"
of factual compatibility. PUD suggests that DNR abandoned its opportunity to present
facts at trial and therefore cannot challenge whether its easement is compatible with
DNR's management and use of the lands at issue. Br. of Resp't PUD at 42-45. But this
overstates the court's holding and introduces the question posed by Justice Gonzalez's
concurrence/dissent: whether DNR or CNW were denied an opportunity to make their
case. While the Court of Appeals opinion may suggest it similarly regards DNR as
having abandoned any fact-based challenges, we do not. The judicial determination that
this case does not involve competing public uses was appropriate for summary judgment.
There are no facts to resolve on the issue of compatibility that are not answered by the
statutory scheme.
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Pub. Uti!. Dist. No. 1 of Okanogan County v. State, et al., 88949-0
state's exercise of eminent domain over private property. CONST. art. I, § 16.
Article XII, section 10 makes clear that the state's right to condemn property
extends to that of incorporated companies. CONST. art. XII,§ 10. And, section 19
delegates the state's right of eminent domain to telegraph and telephone
companies. CONST. art. XII,§ 19.
The provisions relating to school lands similarly do not prohibit
condemnation of easements through such lands. Article XVI, section 1 states that
school lands shall never "be disposed of unless the full market value of the estate
or interest disposed of . .. be paid or safely secured to the state" and states that the
manner of disposition and minimum price paid must comply with provisions set
forth in Washington's enabling act, 25 Stat. 676 (1889). CoNST. art. XVI, § 1
(emphasis added). Section 2 incorporates the public auction requirements from our
enabling act, requiring that "[n]one of the lands granted to the state for educational
purposes shall be sold otherwise than at public auction to the highest bidder."
CoNST. art. XVI,§ 2 (emphasis added).
PUD's condemnation of a right of way through school lands is consistent
with these constitutional provisions because condemnation of an easement does not
involve the sale of land in fee and requires payment of full market value. The plain
language of section 2, when contrasted with that of section 1, strongly indicates
that the drafters did not intend the sale of lesser land interests (e.g., easements) be
subject to the public auction requirements of section 2. Had they so intended, they
would have included similar "estate or interest" language in section 2 as appears in
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Pub. Uti!. Dist. No. 1 of Okanogan County v. State, eta!., 88949-0
section 1. Because PUD is not attempting to condemn a fee interest, we need not
consider whether the public auction requirements of section 2 would prohibit
condemnation of a fee interest. 12
In Roberts, we explicitly rejected the notion that the condemnation of school
lands is unconstitutional. 63 Wash. at 576. We held the condemnation of a 30-
foot strip of university land was consistent with article XVI, section 1 of our state
constitution and our enabling act because each provision permitted the sale of
school lands so long as full market value was conferred. Id. at 575. We also noted
that the price paid "had all the elements of a public sale" because it reflected the
property's full market value. Id. at 576. We, however, did not expressly state
whether the condemnation of school lands is consistent with the public auction
requirement of article XVI, section 2. We now expressly consider section 2 and
hold it does not require a different result in this case because it does not apply to
the disposition of land interests less than fee.
12
We note that the United States Supreme Court has interpreted a similar public
auction requirement in the New Mexico-Arizona Enabling Act, 36 Stat. 557, as having no
application to instances when the state seeks to appropriate school lands for another
public use. Lassen v. Arizona, 385 U.S. 458, 464, 87 S. Ct. 584, 17 L. Ed. 2d 515 (1967).
In particular, the Court recognized that in such case the public auction requirement would
be an "empty formality" since no one would ever bid against a state knowing that the
state could immediately condemn the property at the auction's closure. !d. But see Deer
Valley Unified Sch. Dist. No. 97 v. Superior Court, 157 Ariz. 537, 540-41, 760 P.2d 537
(1988) (holding Arizona's constitution requires school lands be disposed of by public
auction even though the public auction requirement in its enabling act does not); State ex
rei. Galen v. Dist. Court, 42 Mont. 105, 114, 112 P. 706 (1910) (concluding condemnor
could not acquire a fee interest in school lands).
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Pub. Uti!. Dist. No. 1 of Okanogan County v. State, et al., 88949-0
D. The Condemnation of School Lands Does Not Breach the State's
Fiduciary Duties
Finally, DNR and CNW argue that even if PUD is statutorily authorized to
condemn school lands, such grant of authority is a breach of the state's fiduciary
duties as trustee of school lands. We disagree.
Article XVI, section 1 of our state constitution provides that "[a]ll the public
lands granted to the state are held in trust for all the people and none of such lands,
nor any estate or interest therein, shall ever be disposed of unless the full market
value of the estate or interest disposed of ... be paid or safely secured to the state"
in a manner consistent with that prescribed by the federal government. The federal
government's grant of school lands to the state provides that such lands shall be
"held, appropriated, and disposed of exclusively for the purposes" of schools.
Washington enabling act, 25 Stat. 676, ch. 180, § 17. We have interpreted these
provisions as creating an enforceable trust with concomitant fiduciary duties on the
state. County of Skamania v. State, 102 Wash. 2d 127, 132-33, 685 P.2d 576 (1984).
DNR contends the condemnation of school lands over its objections violates the
state's fiduciary duties under Skamania.
Skamania is easily distinguishable. At issue in that case was whether the
state could forgive contract obligations to the detriment of trust beneficiaries
without considering the countervailing benefit to the public of doing so. Unlike
Skamania, this case does not involve any injury to school beneficiaries because
PUD is required to compensate the trust corpus for the full market value of the
condemned interest. In Lassen v. Arizona, 385 U.S. 458, 469, 87 S. Ct. 584, 17 L.
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Pub. Uti!. Dist. No. 1 of Okanogan County v. State, et al., 88949-0
Ed. 2d 515 (1967), the United States Supreme Court specifically addressed the use
of school lands for other public uses and held that it does not violate a state's trust
duties or its enabling act for a state to use school lands for noneducational purposes
so long as the state compensates the trust for the full value of the interest taken.
See United States v. 111.2 Acres of Land, 293 F. Supp. 1042, 1045 (E.D. Wash.
1968) (holding the donation of school lands would violate the provisions of the
enabling act); State v. Platte Valley Pub. Power & Irrig. Dist., 147 Neb. 289, 23
N.W.2d 300, 307 (1946) (concluding school lands can be condemned but that they
must be paid for or else it would violate the state's trust obligations).
Congress did not expect states to hold school lands inviolate or for the sole
use of schools. The federal government granted school land to Western states in
order to encourage western migration. See -MATTHIAS NORDBERG ORFIELD,
FEDERAL LAND GRANTS TO THE STATES WITH SPECIAL REFERENCE TO MINNESOTA
41 (1915). In exchange for providing state property tax exemptions to new settlers,
Western states were given federal land grants to support various public purposes,
including schools. Id. States were expressly authorized to sell these lands in order
to offset lost tax revenue. The grant "was plainly expected to produce a fund,
accumulated by sale and use of the trust lands, with which the State could support
the public institutions designated by the Act. It was not supposed that [the State]
would retain all the lands given it for actual use by the beneficiaries." Lassen, 385
U.S. at 463.
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Pub. Uti!. Dist. No. 1 of Okanogan County v. State, et al., 88949-0
Nor was the federal grant of school lands intended to inhibit state growth or
the building of critical infrastructures necessary for growth and self-governance.
Accord Ross v. Trs. of Univ. of Wyo., 30 Wyo. 433, 222 P. 3 (1924) (holding the
use restrictions in the state's enabling act do not prevent the state from building
public roads across university lands); Hollister v. State, 9 Idaho 8, 71 P. 541 (1903)
(concluding Congress did not intend to prohibit the state from exercising its right
of eminent domain over school lands), overruled on other grounds by Smith v.
State, 93 Idaho 795, 473 P.2d 937 (1970) (relating to sovereign immunity). A
necessary component of growth is the power to condemn school lands. As the
United States Supreme Court explained,
"[T]he object and end of all government is to promote the happiness and
prosperity of the community by which it is established; and it can never be
assumed, that the government intended to diminish its power of
accomplishing the end for which it was created. And in a country like ours,
free, active, and enterprising, continually advancing in numbers and wealth,
new channels of communication are daily found necessary, both for travel
and trade, and are essential to the comfort, convenience, and prosperity of
the people.... "The continued existence of a government would be of no
great value, if by implications and presumptions, it was disarmed of the
powers necessary to accomplish the ends of its creation.
City of Cincinnati v. Louisville & Nashville R.R., 223 U.S. 390, 405-06, 32 S. Ct.
267, 56 L. Ed. 481 (1912) (quoting Proprietors of Charles River Bridge v.
Proprietors of Warren Bridge, 36 U.S. (11 Pet.) 420, 547, 9 L. Ed. 773 (1837)).
Recognizing that states may need to condemn school lands, Congress specifically
amend~d Washington's enabling act to allow for such condemnation:
The State may also, upon such terms as it may prescribe, grant such
easements or rights in any of the lands granted by this Act, as may be
acquired in privately owned lands through proceedings in eminent domain:
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Pub. Uti!. Dist. No. 1 of Okanogan County v. State, et al., 88949-0
Provided, however, That none of such lands, nor any estate or interest
therein, shall ever be disposed of except in pursuance of general laws
providing for such disposition, nor unless the full market value of the estate
or interest disposed of, to be ascertained in such manner as may be
provided by law, has been paid or safely secured to the State.
Enabling act, 25 Stat. 679-80, ch. 180, § 11 (1889), as amended by 47 Stat. 150,
151 (1932) (emphasis added).
DNR nevertheless insists that the state's fiduciary duties prohibit the state
from authorizing the condemnation of school lands absent DNR' s approval. DNR
assumes that because it has been tasked with the management of school lands, it
logically follows that it has ultimate decision-making authority over the use of
such lands. Contrary to DNR's contention, the legislature has expressly indicated
that it has not given DNR ultimate decision-making authority. Article III states
that the office of the commissioner of public lands exists at the will and discretion
of the legislature. CONST. art. III, §§ 23, 25. Under RCW 79.36.580, the
legislature authorized DNR with the power to grant easements over public lands
but explicitly states that such power "shall not be construed as exclusive or as
affecting the right of municipal and public service corporations to acquire lands
belonging to or under control of the state, or rights of way or other rights thereover,
by condemnation proceedings."
CONCLUSION
We hold that the trial court did not abuse its discretion in permitting CNW to
intervene under CR 24(b) on the limited issue of PUD's condemnation authority.
We further hold that RCW 54.16.050 expressly authorizes public utility districts to
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Pub. Uti!. Dist. No. 1 of Okanogan County v. State, et al., 88949-0
condemn rights of way through school trust lands for the installation of electrical
transmission lines. Such authorization is consistent with our state constitution and
enabling act and the state's fiduciary duties to hold the land for the benefit of all
the people and the support of schools.
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Pub. Uti!. Dist. No. 1 of Okanogan County v. State, eta!., 88949-0
WE CONCUR:
I (/
34
Pub. Uti!. Dist. No. I ofOkanogan County v. State, eta!., No. 88949-0
(Gonzalez, J., concurring/dissenting)
No. 88949-0
GONZALEZ, J. (concurring/dissenting)-! largely concur with the majority
opinion. I write separately, however, because I have significant doubt whether the
Department ofNatural Resources's (DNR) 1 use of the lands is compatible with the
Public Utility District No. 1 of Okanogan County's (PUD) proposed use of easement.
In my view, courts should give due consideration to Conservation Northwest's
(CNW) environmental concerns when analyzing compatibility. Since the record does
not convince me that due consideration was made, I would remand to the trial court
for further findings on whether DNR's use is compatible with PUD's proposed use,
including consideration of CNW' s environmental concerns. Because the majority
effectively brushes compatibility concerns aside, I dissent in part.
A. The Trial Court's Findings
The trial court found:
[T]here's no evidence that ... a transmission line is not compatible with
grazing leases or permits or that it will diminish income from grazing leases
and permits. Cattle graze under power lines in many parts of Okanogan County
and the state, including under the Loop Loop [sic] Route.
1
DNR, Peter Goldmark, and the State are referenced herein collectively as DNR.
1
Pub. Uti!. Dist. No. 1 of Okanogan County v. State, et al., No. 88949-0
(Gonzalez, J., concurring/dissenting)
Tr. ofProceedings (TP) at 18. The trial court's conclusion finds some support in the
record, though the trial court did not directly cite the record for its finding on
compatibility and the record leaves me in more doubt than it does the majority. Derek
Miller, chief engineer ofPUD, declared that
[a]fter completion, the transmission line will not impact or impair DNR's
ability to lease (or continued use of) the land for cattle grazing or other uses.
Based on my experiences with electric transmission lines in Okanogan County,
the presence of a transmission line does not limit cattle grazing in the area
under or near the line. Just one example of cattle grazing under and near
electric transmission lines is the PUD's Loup Loup Transmission Line, which
occupies an easement over DNR lands leased for grazing.
Clerk's Papers (CP) at 127.
The trial court also supported its conclusion on compatibility by reasoning that
subsection 4.03 ofDNR's leases "address[] compatible purposes. A transmission line
is a compatible purpose." TP at 13. This citation is, at least, questionable.
Subsection 4.03 of each of the five leases at issue actually provides that "[t]he State
reserves the right to lease the premises for other uses which are compatible with the
Lessee's permitted uses. The Lessee's permitted uses are set forth in Subsection
2.01." CP at 233, 253, 275, 299, 321. Subsection 2.01 of each of the five leases list
"[g]razing" and sometimes also " [w] ildlife," but never "transmission line." I d. at 231,
251, 272, 297, 318. None of the leases indicate that a transmission line is a
compatible purpose.
In issuing its ruling, the trial court noted that "[t]his case is before the Court on
cross motions for summary judgment. All parties assert that there are no issues of
2
Pub. Util. Dist. No. I of Okanogan County v. State, eta!., No. 88949-0
(Gonzalez, J., concurring/dissenting)
material fact and the judgment should be granted as a matter of law." TP at 5. This
may have been an unwise assertion by the parties. The trial court reasoned that "there
is noissue, but that the P.U.D.'s transmission line is compatible with grazing leases.
There's no evidence of any negative effect on grazing." Id. at 12-13.
B. DNR Challenges the Issue of Compatibility
DNR challenged the factual findings underpinning the trial court's conclusion
that the uses are compatible. First, DNR argued to this court that
the trial court did not take testimony pertaining to the impacts of the proposed
condemnation on the state's existing or future use of the land or otherwise cite
to evidence submitted by the parties. Rather, the trial court based its ruling
largely on its own observation that "cattle graze under power lines in many
parts of Okanogan county .... "
Pet. for Review at 6 (quoting TP at 18).
Second, DNR challenged the trial court's compatibility finding on the grounds
that
[t]he trial court did not take testimony to determine whether the PUD's
proposal to erect towers, build roads and run transmission lines was actually
compatible with DNR' s existing and prospective use of these lands, and it
lacked a sufficient basis to enter the factual finding underpinning its holding in
this regard.
Appellants State of Wash. & Peter Goldmark's Opening Br. at 34, cited in Appellants
State of Wash. & Peter Goldmark's Suppl. Br. at 15. In addition, in a section entitled
"In The Alternative, Genuine Issues Of Material Fact Regarding The Compatibility Of
The PUD's Proposed Use With The State's Current Public Use Preclude Summary
Judgment," DNR argues that "[t]he trial court should have considered evidence, e.g.,
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Pub. Uti!. Dist. No. 1 of Okanogan County v. State, et al., No. 88949-0
(Gonzalez, J., concurring/dissenting)
whether placing a transmission line and roads through the middle of state trust lands
along with associated impacts impairs the long term revenue generating capacity of
that land." Id. at 39, cited in Appellants State of Wash. & Peter Goldmark's Suppl.
Br. at 15. DNR' s challenge deserves more critical attention than the majority gives it.
C. CNW's Environmental Concerns Have Been Ignored
More importantly, the majority's analysis gives short shrift to CNW's concerns.
CNW argued before the trial court:
The proposed transmission line would bisect the largest contiguous piece of
publically owned shrub-steppe habitat in the Methow Valley and will have
multiple adverse environmental impacts on the Methow Valley, including
introduction of noxious weeds, fragmentation of wildlife habitat, increased fire
risk, and exacerbating erosion, and sedimentation.
CP at 585. CNW continued to point to critical environmental issues related to the
PUD's proposed use of the lands before this court. Appellant/Cross-Resp't Conserv.
Nw.'s Suppl. Br. at 1. These issues merit more careful consideration than they have
received.
I am not without sympathy to PUD' s argument that DNR did not adequately
raise issues of fact before the trial court regarding how DNR's current use of the lands
is incompatible with PUD's proposed use. See, e.g., Suppl. Br. ofResp't PUD at 2,
11. 2 The parties agreed that there were no issues of material fact before the trial
2
Rather than arguing factual issues regarding compatibility, DNR focused its argument on what
legal test should apply; essentially, DNR considered that the compatibility standard applied by
the trial court and the Court of Appeals, and which is affirmed by the majority, is a new test,
whereas PUD argued that the compatibility test dates back more than 100 years and provided
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Pub. Uti!. Dist. No. I of Okanogan County v. State, et al., No. 88949-0
(Gonzalez, J., concurring/dissenting)
court. 3 TP at 5. However, DNR and CNW did not know how the trial court would
resolve the compatibility issue, let alone that the trial court would rely on its own
observations in making the decision, and the trial court failed to apply the facts
regarding CNW's enviromnental concerns to its compatibility analysis. CNW and
DNR deserve an opportunity to show more clearly how PUD's proposed use is not
compatible with DNR's use in light ofCNW's concerns.
D. Remand Is Proper
"The standard of review of an order of summary judgment is de novo, and the
appellate court performs the same inquiry as the trial court." Jones v. Allstate Ins.
Co., 146 Wash. 2d 291, 300, 45 P.3d 1068 (2002) (citing Lybbert v. Grant County, 141
Wash. 2d 29, 34, 1 PJd 1124 (2000)). The court considers facts and inferences in a light
most favorable to the nonmoving parties, here DNR and CNW. Weyerhaeuser Co. v.
Aetna Cas. & Sur. Co., 123 Wash. 2d 891, 897, 874 P.2d 142 (1994) (citing Wilson v.
Steinbach, 98 Wash. 2d 434, 437, 656 P.2d 1030 (1982)). The court may grant summary
judgment "if the pleadings, affidavits, and depositions establish that there is no
genuine issue as to any material fact and the moving party is entitled to judgment as a
matter oflaw." Lybbert, 141 Wash. 2d at 34 (citing Ruffv. King County, 125 Wash. 2d
697, 703, 887 P.2d 886 (1995)).
factual evidence of compatibility. See Pet. for Review at 14; PUD's Answer to Pet. for Review
at 10.
3
CNW, in its motion for summary judgment and dismissal pursuant to CR 56, stated that
"[t]here are no genuine issues of material fact." CP at 487.
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Pub. Uti!. Dist. No. I of Okanogan County v. State, eta!., No. 88949-0
(Gonzalez, J., concurring/dissenting)
Based on a de novo review, I would remand to the trial court for robust factual
finding on the compatibility issue, including consideration of CNW' s environmental
concerns. I respectfully concur in part and dissent in part.
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Pub. Uti!. Dist. No. 1 of Okanogan County v. State, et al., No. 88949-0 (Gonzalez, J., dissenting)
7