Clallam County to argue against trust lands lawsuit

State Supreme Court asks to include all of public as beneficiaries

PORT ANGELES — State trust lands should continue to be managed for designated beneficiaries like public schools despite a court challenge, Clallam County commissioners will argue in a legal brief.

Commissioners voted 3-0 Tuesday to prepare an amicus brief supporting the state’s position in a pending lawsuit that challenges the trust mandate that provides timber revenue to Clallam County and junior taxing districts.

Conservation Northwest is seeking a decision from the state Supreme Court that would require federally-granted trust lands to be managed for the public as a whole than rather designated beneficiaries like rural school, fire and hospital districts.

“Obviously that would be a very bad outcome for us in the county,” Commissioner Randy Johnson said in a Monday work session.

A coalition of environmental groups led by Conservation Northwest filed the lawsuit against state Commissioner of Public Lands Hilary Franz and others in January 2020.

The claims were dismissed in Thurston County Superior Court last October.

The state Supreme Court is expected to hear the case this fall, according to the Washington State Association of Counties (WSAC).

WSAC requires a member county to initiate the amicus brief process on behalf of it membership.

WSAC Executive Director Eric Johnson asked Clallam County to spearhead the amicus brief in a March 10 email to commissioners.

The unanimous vote Tuesday gave Civil Deputy Prosecuting Attorney Elizabeth Stanley the authority she needed to fill out a WSAC amicus brief request form, Commissioner Mark Ozias said Tuesday.

Amicus briefs are filed by parties with knowledge or perspective considered valuable to appellate courts.

The state will argue that a large body of case law has concluded that the Enabling Act of 1889, which allowed Washington and Montana to join the United States and split the Territory of Dakotas into two states, the state constitution and statues created a trust for designated beneficiaries for federally granted lands.

The trust mandate applies to state Department of Natural Resources (DNR) decisions, including a fiduciary duty of “undivided loyalty” to the trust, according to an executive summary to the agenda item.

“Because there has been no modification to those governing laws, the state must continue to manage the lands in the best interests of the beneficiaries, and has limited discretion to manage the lands for other objectives,” the summary read.

“While multiple uses are permitted for the trust lands, if those uses impact revenue to the beneficiaries, the trusts must be compensated.”

Commissioner Bill Peach, who serves on the state Board of Natural Resources, said Clallam County has about 60,000 acres of federal land that was granted at statehood and another 93,000 acres that has been accumulated since 1889, largely through tax foreclosures.

“As it happens, Clallam County has one of the largest combined timber resources that DNR manages,” Peach said.

In its lawsuit, Conservation Northwest challenged DNR’s December 2019 adoption of a long-term conservation strategy for the marbled murrelet and the establishment of a 2015-2024 sustainable harvest calculation.

“The primary focus of this litigation is a challenge to the state’s ‘trust mandate’ for management of its federally granted lands,” according to a case overview provided by WSAC.

“Conservation Northwest is seeking a decision from the Washington Supreme Court that would require Washington’s federally granted lands to be managed for the public as a whole, rather than for the designated beneficiaries, including common schools, universities and other state institutions identified in Washington’s Enabling Act.”

A coalition of trust beneficiaries and advocacy groups intervened in the lawsuit and are now parties to the litigation, WSAC said. The parties include the city of Forks, five counties, seven junior taxing districts and the American Forest Resource Council.

“In a general sense, I am sympathetic to the concept of managing these lands differently,” Ozias said in the Monday meeting.

“However, I don’t see this (Conservation Northwest lawsuit) as an appropriate way to achieve that end at all.

“So I would definitely be supportive of our county supporting WSAC in this effort here.”

In related discussion, Peach announced Tuesday he had met with senior DNR officials last week on recommendations to improve the agency’s financial performance.

“Once we really do know what our financial position is, we can enter into conversations about exchanging our assets,” Peach said.

“But the baseline to it is you have to know for a fact what is the financial position on the asset you’re dealing with.”

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Reporter Rob Ollikainen can be reached at [email protected] dailynews.com.

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