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Local and Tribal Governments May Not Condemn Private Property To Protect Salmon

September 26, 2007

The Washington Court of Appeals recently held that counties, cities, and tribal governments may not use the Washington Salmon Recovery Act, or their eminent domain power, to condemn private property in order to repair and improve culverts to facilitate salmon passage. Cowlitz County v. Martin[1] is the first appellate opinion to interpret the State’s Salmon Recovery Act.

Statutory Background

The Washington State Legislature enacted the Salmon Recovery Act in 1999.[2] It directs the State to improve salmonid fish runs by integrating local and regional recovery activities.[3] It requires counties, cities, and tribal governments seeking State funds to repair and improve fish runs to designate the repair or improvement in a “habitat project list.”[4] Once the project is on the list, the county, city or tribal government may apply to the Salmon Recovery Funding Board to obtain State funding.[5] The Act provides that “[n]o project included on a habitat project list shall be considered mandatory in nature and no private landowner may be forced or coerced into participation in any respect.”[6]

Washington’s eminent domain statute, Chapter 8.08 RCW, authorizes every Washington county to “condemn land and property within the county for public use; whenever the board of county commissioners deems it necessary for county purposes to acquire such land . . . and is unable to agree with the owner or owners thereof for its purchase[.]”[7]

Factual Background

In 2002, Cowlitz County decided to replace a round culvert with a three-sided culvert in order to allow a particular streambed to remain in its natural state and to facilitate salmon passage.[8] The County applied for a grant of approximately $447,000 from the Salmon Recovery Fund for the project, which the Salmon Recovery Funding Board approved. The County sought to replace the culvert “solely because it posed an impediment to fish passage.”[9] After attempts to obtain a larger easement through a voluntary purchase and sale with private landowners failed, the County Board of Commissioners passed a resolution authorizing the prosecuting attorney to file a petition for condemnation of the larger easement. The resolution stated that it was “necessary to remove and replace the existing culvert that has been identified as a barrier to fish passage and the Salmon Recovery Funding Board has awarded a grant for the project.” The resolution also stated that “the Board finds that the property rights to be acquired are necessary to accommodate replacement of the … [c]ulvert and … constitute[s] a public use of such property.”[10] The County filed the petition for condemnation in Superior Court.[11] The petition alleged an additional reason for condemnation that was not set forth in the County’s resolution: that the culvert could not handle stream flows under a 100-year storm.[12] The trial court granted the County’s petition, finding that: (1) the replacement of the culvert would promote fish passage and accommodate 100-year storm water flows; (2) these uses constitute “public uses”; and (3) to accomplish these purposes, it was necessary that the County acquire the sought-after easement rights.[13] The private landowners in the lawsuit appealed.[14]


The general issue before Division Two of the Washington Court of Appeals in Cowlitz County v. Martin was whether a lawful basis for condemnation existed. The power of eminent domain is an inherent power of the State, limited by the State constitution. “Delegation of the State’s sovereign power of eminent domain to the State’s political subdivisions must be expressly given or necessarily implied, and statutes conferring such power must be strictly construed.”[15] The private landowners asserted that the County lacked authority to condemn their property “because the condemnation was to enable salmon passage …, and the legislature has not explicitly granted counties the authority to condemn private property for this purpose under the Salmon Recovery Act, nor does such a purpose qualify as a ‘public use’ under RCW 8.08.010.” In response, the County asserted that both the Salmon Recovery Act and other statutes authorized condemnation.

The Court of Appeals addressed the following three questions of first impression: “(1) whether the Salmon Recovery Act authorizes the State or its entities to condemn private property; (2) whether rehabilitation of salmon streams constitutes a ‘public use’ under RCW 8.08.010; and (3) whether a county’s deputy prosecuting attorney has the authority to articulate an additional purpose for condemnation not articulated by the Board of Commissioners in their resolution.”[16] Judge Penoyar, writing for the three-judge panel, answered each question in the negative.

Condemnation Under The Salmon Recovery Act

Relying on the rule that “[s]tatutes authorizing a county, city or municipality to exercise eminent domain must be clear and strictly construed,” the Court of Appeals found “nothing in the Salmon Recovery Act granting a county, city or tribal government authority to condemn private property.”[17] Instead, the Court found “significant indication to the contrary,” including provisions stating “that any habitat project that occurs on private property requires the express consent of all of the affected property owners.”[18] The Court therefore concluded that “the Legislature did not intend to grant any eminent domain authority by passage of the Salmon Recovery Act. Thus, Washington counties, cities, and tribal governments have no authority to condemn private property under the Salmon Recovery Act.”[19]

Condemnation Under RCW 8.08.010

The Court next asked whether the County could condemn land to repair and improve salmon runs under Chapter 8.08 RCW, which authorizes counties to condemn land when necessary for a “public use.” Under this eminent domain statute, the prosecuting attorney must file a petition in superior court setting forth, among other things, “the object for which the land is sought to be appropriated[.]” Any condemnation under the statute “shall be deemed and held to be for a county purpose and public use within the meaning of RCW 8.08.010 through 8.08.080 when it is directly or indirectly, approximately or remotely for the general benefit or welfare of the county or of the inhabitants thereof.”[20]

When adjudicating public use and necessity, trial courts must determine whether: “(1) the use in question is really a public use; (2) the public interest requires the public use; and (3) the property to be acquired is necessary to facilitate the public use.”[21] Whether the contemplated use (here, fish passage) constitutes a “public use” is a judicial question, with the burden of proof on the condemnor.[22] To decide whether fish passage constitutes a public use, the Court of Appeals applied the test set forth over a century ago in Schroeder v. Superior Court of Adams County:[23] “(1) whether the Legislature conferred authority on a state entity to declare a taking for public use, and (2) if not, whether such a taking was considered a public need by the people at the time our constitution was framed.”[24] The Court found “neither statutory nor constitutional authority for the trial court’s finding that ‘fish passage’ constitutes a public use.”[25] Specifically, the Court found that “[t]he Salmon Recovery Act directly addresses the public’s need concerning salmonid fish passage restoration and protection. In doing so, our Legislature clearly elected not to grant eminent domain power to protect this public interest.”[26] Finding itself “bound to uphold the more specific statute over the broader one,” the Court “adhere[d] to the authority granted in the Salmon Recovery Act rather than the broader RCW 8.08.020[,]” and held that “a county is bound by the provisions of the Salmon Recovery Act when seeking to protect salmonid fish passage and may not proceed under RCW 8.08.020.” Further, the Court decided that “the people of Washington [did not] consider … acquisition of private property for fish passage a public need at the time our constitution was ratified and thus there is no constitutional basis for this condemnation.” [27]

Prosecuting Attorney’s Authority to Articulate New Purpose

Finally, the Court held that deputy prosecuting attorneys lack authority to determine the necessity for condemnation. The Court noted that “the record does not reflect that the Commissioners considered or were even aware of … [the need to repair the culvert to prevent road damage and public endangerment in the event of a 100-year storm] when they made their finding that condemnation was necessary. The justification was first advanced by the County’s attorney when he filed the condemnation petition.”[28] Therefore, the Court held that the County’s attorney in Cowlitz County v. Martin acted outside his authority by articulating an additional purpose for replacing the culvert in the petition.[29]

Related Federal Opinion

One week after the Washington Court of Appeals decided Cowlitz County v. Martin, U.S. District Judge Ricardo Martinez decided United States v. Washington – a case brought by 20 Washington Indian tribes that also concerned fish passage impaired by culverts. In United States v. Washington, Judge Martinez held that treaties signed in the 19th century require the State to “refrain from building or operating culverts under state-maintained roads that hinder fish passage and thereby diminish the number of fish that would otherwise be available for tribal harvest.”[30] Thus, while local and tribal governments may not condemn land to facilitate fish passage under Cowlitz County v. Martin, the State must repair thousands of culverts on state land under United States v. Washington. While United States v. Washington is unlikely to significantly impact private landowners, it could affect local governments. Indian tribes cannot enforce treaty rights against non-signatories, but treaties can “provide rights of action for equitable relief against non-contracting parties,” and states cannot “directly interfere with rights secured by a treaty.”[31] If, for example, a local government proposed a transportation project that could block salmon migration routes, it may not receive state or federal transportation funds if such funding would violate United States v. Washington.

For more information on the Salmon Recovery Act or endangered species, contact Jessica Ferrell.

[1] __ Wn. App. __, 165 P.3d 51 (2007).

[2] See RCW 77.85.005.

[3] See Cowlitz County v. Martin, 165 P.3d at 53 (discussing RCW 77.85.005).

[4] RCW 77.85.050.

[5] RCW 77.85.140.

[6] RCW 77.85.050(1)(a).

[7] RCW 8.08.010.

[8] See Cowlitz County v. Martin, 165 P.3d at 53.

[9] Id.

[10] Id.

[11] Id. (internal citations omitted).

[12] Id. (internal citation omitted).

[13] Id. at 53-54 (quoting trial court opinion).

[14] The appellants include L. Carlyle and Kelly Martin, Lawrence Olstad and Roberta Kelly, Washington Mutual Bank, and the U.S. Bank National Association. See id. at 51.

[15] Id. at 54 (internal citations omitted).

[16] Id.

[17] Id. at 54-55 (internal citations omitted).

[18] Id. at 55 (citing RCW 77.85.010(3), -.050(1)(a), -.060(2)(b)).

[19] Id. (internal footnote omitted).

[20] RCW 8.08.020.

[21] Cowlitz County v. Martin, 165 P.3d at 55 (internal citations omitted).

[22] Id. (internal citations omitted).

[23] 29 Wash. 1, 69 P. 366 (1902).

[24] Cowlitz County v. Martin, 165 P.3d at 56 (citing State ex rel. Schroeder, 29 Wash. at 4-5).

[25] Id.

[26] Id.

[27] Id.

[28] Id. at 54.

[29] Id. at 56.

[30] No. 70-9213 (sub-proceeding No. 01-01), Docket 388, at 12 (W.D. Wash. Aug. 22, 2007), as amended by Docket 392 (W.D. Wash Aug. 23, 2007) Cowlitz County participated in the federal case as an amicus, urging Judge Martinez to reject the tribes’ request for a fish passage easement or environmental servitude. See United States v. Washington, No. 70-9213 (sub-proceeding No. 01-01), Washington Ass’n of Counties’ Mem. in Supp. of State’s Mot. for Summ. J., Docket 294-1 (W.D. Wash. filed Aug. 14, 2006). An article by Connie Sue Martin on the opinion in United States v. Washington will appear subsequently in the Marten Law Group Newsletter.

[31] Skokomish Indian Tribe v. United States, 410 F.3d 506, 512-14 (9th Cir. 2005) (internal citations omitted).

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