                                                    FILED
                                                  MAY 7,2013
                                          In the Office of the Clerk of Court
                                        W A State Court of Appeals, Division III


       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                          DIVISION THREE

PUBLIC UTILITY DISTRICT NO.1 OF     )     No. 29121-9-111
OKANOGAN COUNTY, a municipal        )     Consolidated with
corporation,                        )     No. 29123-5-111
                                    )
                 Respondent!        )
                 Cross Appellant,   )
                                    )
           v.                       )
                                    )
STATE OF WASHINGTON, PETER          )
GOLDMARK, Commissioner of Public    )
Lands,                              )
                                    )
                 Respondent!        )     PUBLISHED OPINION
                 Cross Appellant,   )
                                    )
           ood                      )
                                    )
CONSERVATION NORTHWEST, a           )
nonprofit corporation,              )
                                    )
                 Appellant,         )
                                    )
           and                      )
                                    )
CHRISTINE DAVIS, a single person,   )
TREVOR KELPMAN, a single person,    )
DAN GEBBERS and REBA GEBBERS,       )
husbood ood wife, ood WILLIAM C.    )
No. 29121-9-III; No. 29123-5-III
PUDv. State


WEAVER, custodian for Christopher C.          )
Weaver, a minor,                              )
                                              )
                     Respondents,             )

       KULIK, J. - More than 15 years ago, the Okanogan County Public Utility District

No.1 (PUD) began the process required to construct a new transmission line and

substation between Pateros and Twisp in the Methow Valley. Following a decade of

environmental review and litigation, PUD obtained an environmental impact statement

(BIS). Next, PUD needed to obtain easements over the proposed land. PUD negotiated

with approximately 85 percent of the property owners for easements on their land.

Ultimately, PUD filed a petition for condemnation against the remaining property owners.

This included the State, l which owned school trust lands that were required for the

project.

       Conservation Northwest (CNW), a group engaged in conservation activities, filed

a motion to intervene. The court granted CNW's motion. Both CNW and the State filed

motions for summary judgment, arguing that PUD lacks the authority to condemn school

trust land. The State stipulated to the entry of the order on public use and necessity,

which addressed the narrow issues of whether the transmission line project was a public



      1 We refer to the following parties collectively as the "State:" Christine Davis,
Trevor Kelpman, Dan Gebbers, Reba Gebbers, William Weaver, Peter Goldmark, and the

                                              2

No. 29121-9-III; No. 29123-5-III
PUDv. State


use and whether the easements sought were reasonably necessary for that use.

       The court denied the State's and CNW's motions, granted summary judgment in

favor of PUD, and entered findings of fact, conclusions of law, and an order on public use

and necessity.

       CNW appealed, challenging the order of summary judgment, in addition to the

order on public use and necessity. PUD then cross appealed, challenging the trial court's

order granting intervention to CNW. The State also appealed the summary judgment

order, contending that PUD had no statutory authority to condemn the State trust lands at

issue here.

       We conclude that the State trust lands may be condemned as a matter oflaw. We

affirm summary judgment in favor of PUD and the denial of summary judgment to the

State and CNW. Given that we affirm the trial court's order on the PUD's condemnation

authority, we need not address the PUD's cross appeal challenging CNW's limited

intervention.

                                         FACTS

       Introduction. In 1889, Washington became a state. At that time, the federal

government granted to Washington approximately three million acres of land for


State of Washington.

                                            3
No. 29121-9-III; No. 29123-5-III
PUDv. State


educational purposes and the support of common schools. Enabling Act, ch. 180,

§§ 10, 11,25 STAT. 676 (1889). The lands consisted of sections 16 and 36 of each

township in Washington. Id. Section 11 of the Enabling Act reserved these lands for

"school purposes only" and set forth certain restrictions on their sale and lease to ensure

that the lands would derive to the sole benefit of Washington schools. Id. This concern is

echoed in the Washington Constitution. The Constitution provides that all "public lands

granted to the state are held in trust for all the people" and restricts the manner in which

such trust lands may be disposed. CONST. art. XVI, § 1.

        The Department of Natural Resources (DNR) is the state agency charged by the

legislature with the management of these lands. In 1957, the management responsibilities

were consolidated in DNR, which was created to provide effective and efficient

management of these state lands. RCW 43.30.010, .030. Peter Goldmark, the elected

Commissioner of Public Lands (Commissioner), serves as the administrator ofDNR. The

Commissioner is a member of the Board of Natural Resources that establishes policies

regarding the appropriate management of state lands and resources. RCW 43.30.205,

.215.




                                              4

No. 29121-9-III; No. 29123-5-III
PUDv. State


       DNR has been granted the exclusive statutory authority and discretion to lease trust

lands for various purposes, including commercial, agricultural, and recreational uses.

RCW 79.13.010.

       In 1996, Okanogan PUD proposed a new transmission line to improve electrical

service to the citizens of Methow Valley. PUD sought to construct the transmission line

and substation between Pateros and Twisp (hereinafter the "project,,). 2

       From the initial planning for the project in 1996, the project has been subject to

extensive scrutiny. Gebbers v. Okanogan County Pub. Util. Dist. No.1, 144 Wn. App.

371,376, 183 PJd 324, review denied, 165 Wn.2d 1004, 198 PJd 511 (2008). As part of

the review, PUD and the U.S. Forest Service prepared a draft EIS seeking input from

citizens, environmental groups, and governmental agencies. Fifteen alternatives were

identified and six alternatives and a no-action alternative were approved for

consideration. PUD conducted two public hearings, held several public meetings, and

responded to over 400 public comment letters. Id. A final EIS was released in March

2006, and PUD made its selection later that month. Id.




       2A lengthy discussion of the project is contained in this court's opinion in Gebbers
v. Okanogan County Pub. Util. Dist. No.1, 144 Wn. App. 371, 183 PJd 324, review
denied, 165 Wn.2d 1004, 198 P.3d 511 (2008).

                                             5

No. 29 12 l-9-III; No. 29l23-5-II1
PUDv. State


       Following 10 years of environmental review, the superior court and this court

affinned PUD's decisions regarding the project and the sufficiency of the final EIS. Id. at

393. We held that the environmental effects of the project were adequately disclosed,

discussed, and substantiated in the fmal EIS. We also held that PUD did not act

arbitrarily and capriciously in selecting the transmission line route. Id. The Supreme

Court denied review. Gebbers, 165 Wn.2d at 1004.

       PUD negotiated the easements required for the project with approximately 85

percent of the property owners along the transmission line route, but eventually filed

eminent domain proceedings against the remaining owners, including the State. The State

lands in question are school trust lands managed by the DNR. PUD filed its amended

petition for condemnation on April 14, 2010.

       At summary judgment on the condemnation petition, CNW argued that the

proposed Pateros-Twisp transmission line would bisect the largest contiguous publicly

owned shrub-steppe habitat in the Methow Valley and would have multiple adverse

environmental impacts, including the introduction of noxious weeds, fragmentation of

wildlife habitat, increased fire risk, and exacerbating erosion and sedimentation.

       The State argued that it leased these lands for cattle grazing to generate money for

trust beneficiaries and to preserve this land as a part of the trust corpus for the benefit of


                                               6

No. 29121-9-111; No. 29123-5-111
PUDv. State


future generations. To this end, the State had entered into enforceable leases for the use

of these parcels and had issued pennits to allow for cattle grazing on certain parcels. In

total, the proposed Pateros-Twisp transmission line would cross state trust lands that are

subject to five active grazing leases and two grazing pennit range areas. These leases and

pennits actively generate income to benefit Washington schools.

       However, the leases on the property generate less than $3,000 annually for the

school beneficiaries, not including DNR administrative costs. PUD's proposed easements

pass over no more than an estimated 4 percent of the area of anyone lease and as little as

0.02 percent for one of the leased areas. PUD modified the project to eliminate all

pennanent road construction within the project.

       Intervention. Prior to the hearing on public use and necessity, CNW filed a motion

to intervene as a respondent in support of the State. It is undisputed that CNW has no

legal or equitable property interest in the trust lands. CNW states: "The issue at stake in

this litigation ... directly affects Conservation Northwest's ability to continue its work as

a representative and protector of state trust land and its ability to protect its own interests

as an organization involved in land conservation." Clerk's Papers (CP) at 603. Despite

opposition by PUD, the superior court granted limited intervention under CR 24.




                                               7

No. 29121-9-111; No. 29123-5-111
PUDv. State


       Motions for Summary Judgment. Following intervention, both CNW and the State

filed separate motions for summary judgment, arguing that the PUD does not have the

authority to condemn school trust lands. PUD also filed a motion for summary judgment.

       The court rejected this statutory argument and concluded that PUD has the express

authority to condemn school trust lands under RCW 54.16.020 and .050. The court also

rejected the contention that school trust lands cannot be subject to condemnation because

they are dedicated to a public use.

       The trial court entered orders denying summary judgment to CNW and the State,

and granting summary judgment to PUD on the issue of condemnation authority.

Because the State did not otherwise oppose an order on public use and necessity, the court

also entered its "Findings of Fact, Conclusions ofLaw, and Order on Public Use and

Necessity." CP at 14-18.

       Appeals. CNW filed a notice of appeal challenging the summary judgment in

PUD's favor, as well as the order on public use and necessity. PUD then cross appealed

the order granting intervention to CNW. The Attorney General declined to appeal the

trial court's decision despite the Commissioner's request that it do so. Subsequently, the

State filed a contingent notice of appeal of the order denying summary judgment and the

order on public use and necessity. Later, the Washington Supreme Court ruled that the


                                             8

No. 29121-9-III; No. 29123-5-III
PUD v. State


Attorney General was required to prosecute an appeal on behalf of the Commissioner.

Goldmark v. McKenna, 172 Wn.2d 568, 259 P.3d 1095 (2011). The State then continued

this appeal with special counsel.

                                        ANALYSIS

       After the PUD filed its condemnation petition, the State and CNW filed separate

motions for summary judgment arguing that PUD does not have the authority to condemn

the school trust lands. The State concedes that PUD has the statutory authority to

condemn, but the State argues that the school trust lands in question are not subject to

condemnation because they are already devoted to a particular use by law. CNW argues

that chapter 54.16 RCW does not grant PUD express authority to condemn. CNW

abandoned this argument on appeal. CNW adopts the State's arguments. CNWargues

that state school lands are dedicated to a public use as a matter of law.

       This court reviews the trial court's summary judgment orders de novo. Moeller v.

Farmers Ins. Co., 173 Wn.2d 264,271,267 P.3d 998 (2011). We engage in the same

inquiry as the trial court. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853,860,93

P.3d 108 (2004).

       The property in dispute is designated school trust land. Significantly, chapter 1,

section 6(e) of the LAWS OF 1931, codified at RCW 54.16.050, specifically authorizes



                                              9

No. 29121-9-III; No. 29123-5-III
PUDv. State


public utility districts to condemn school lands for transmission lines. RCW 54.16.050

reads, in part, that a public utility 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
       ... transmission lines, and all other facilities necessary or convenient.

(Emphasis added.)

       The PUD statute itself does not contain any limitation on the type of state land that

may be condemned. RCW 54.16.050. However, the definition of "state lands" in the

public lands act, Title 79 RCW, excludes lands "devoted to or reserved for a particular

use by law." RCW 79.02.01O(14)(h).3 The critical issue here is whether these school

lands are dedicated to a particular purpose or use and, therefore, are not subject to

condemnation.

       A. Dedicated to a Public Purpose. On appeal, the State argues that all school

trust lands are dedicated to a public purpose and are, therefore, per se exempt from

condemnation.

       The State's argument is not persuasive for several reasons. First, the public lands

act defines "state lands" as including school trust lands "that are not devoted to or



       We refer to the current version ofRCW 79.02.010; subsequent amendments
       3
renumbered the sections and were not substantive.

                                                 10 

No. 29121-9-III; No. 29123-5-III
PUDv. State


reserved for a particular use by law." RCW 79.02.010(14)(h). This means that not all

school lands are so reserved or there would be no need for the qualifier. Second, the

State's interpretation would render meaningless the many statutes that specifically allow

local government to condemn state and school trust lands. See, e.g., RCW 8.12.030

(cities and towns); RCW 53.34.170 (port districts), and RCW 54.16.050 (public utility

districts).

        Finally, the State's argument ignores Washington Supreme Court precedent. In

Roberts v. City o/Seattle, 63 Wash. 573, 574, 116 P. 25 (1911), the city of Seattle

instituted an action to condemn a 30-foot strip of university grounds. The court

concluded that no provision in the Enabling Act or the Constitution provided that school

lands could not be sold. Id. at 575. The court held that the fact that school trust lands are

devoted to the purpose of financing education was insufficient to exempt the property

from condemnation. Moreover, the court stated:

               It is also argued that the land taken was already devoted to a public
        use-that of education-and therefore cannot be taken for another public
        use. There is nothing in the record to indicate that the 30-foot strip ofland
        in question is actually in use by the university, and there is nothing to
        indicate that the taking of the strip of land will impair the use of the land
        remaining. On the other hand, the record shows that the remaining land
        will be benefited. Under this condition it may be taken.

Id. at 576.


                                              11 

No. 29121-9-III; No. 29123-5-III
PUDv. State


       Dedication to a public use reserves the land from subsequent sale. Contrary to the

assertions of the State, dedication to a public use requires more than simply putting the

property to a productive use. The Washington Supreme Court has described dedication

as: (1) dedication by act of the 1egislature;4 (2) "platted, dedicated, and reserved" land for

a public use;5 (3) segregating the land from the public domain and appropriating it to the

public by "due dedication,'.6 and dedication by some "official act or declaration.,,7 Most

significantly, the Supreme Court held that devotion to the purpose of education is

insufficient to prevent condemnation. Roberts, 63 Wash. at 576.

       The State reads State v. Jefferson County, 91 Wash. 454, 157 P. 1097 (1916) to

hold that sovereign lands cannot be condemned. However, Jefferson County, which did

not involve trust lands, held that the authority to sell or condemn sovereign lands must not

be presumed, but must be expressly conferred by statute. See Jefferson County, 91 Wash.




       4 State   v. Jefferson County, 91 Wash. 454,455-56, 157 P. 1097 (1916) (waterway
permanently reserved from sale by statute).
        5 Id. at 455.
        6 City ofTacoma v. Taxpayers ofTacoma, 49 Wn.2d 781, 797,307 P.2d 567
(1957), rev'd on other grounds, 357 U.S. 320, 78 S. Ct. 1209,2 L. Ed. 2d 1345 (1958).
While this case did not explain how the land was dedicated, the case stated that the land
was "dedicated."
        7 City ofTacoma v. State, 121 Wash. 448, 452, 209 P. 700 (1922). PUD argues
that "dedicated to a public use" is the functional equivalent of "devoted to or reserved for
a particular use by law." See RCW 79.02.010(14)(h).

                                              12
No. 29121-9-III; No. 29123-5-III
PUDv. State


at 458-59. And the PUD condemnation statute expressly allows for the condemnation of

school lands. RCW 54.16.050.

       Since Roberts, the Supreme Court has continued to approve the condemnation of

school trust lands, and other types of trust lands, even though they exist for the purpose of

serving various trust beneficiaries. See City ofSeattle v. State, 54 Wn.2d 139, 147,338

P.2d 126 (1959); City ofTacoma v. State, 121 Wash. 448,453,209 P. 700 (1922). The

State argues that Roberts, City ofTacoma, and City ofSeattle are erroneous. The trial

court disagreed, and so do we.

       In City ofSeattle, the city of Seattle instituted a condemnation proceeding to

acquire state school and capitol building lands for use in its proposed Tolt River aquifer.

City ofSeattle, 54 Wn.2d at 141. The court concluded that the city had the power to

condemn state property that was not dedicated to a public use. Id. at 147. In City of

Tacoma v. Taxpayers ofTacoma, 49 Wn.2d 781, 801,307 P.2d 567 (1957), rev 'd on

other grounds, 357 U.S. 320, 78 S. Ct. 1209, 2 L. Ed. 2d 1345 (1958), the court

concluded that the city lacked the statutory authority to condemn state lands previously

dedicated to a public use. State lands not dedicated to a public use are subject to

condemnation. City ofSeattle, 54 Wn.2d at 147. Here, the school lands are not dedicated

to a public use and are, therefore, subject to condemnation.


                                             13
No. 29121-9-III; No. 29123-5-III
PUDv: State


       B. Reservation from Sale. As stated above, under RCW 79.02.010(14)(h), school

trust lands are reserved if they are "devoted to or reserved for a particular use." In City of

Seattle, the court found that the capitol building trust lands-which are ofthe same

character as school trust lands-were not devoted to or reserved for a particular use by

law:

       It is admitted by the state in this action that the capitol building
       lands which the city of Seattle seeks to condemn are not devoted to or
       reserved for a particular use but are subject to sale. If the legislature had
       intended to exempt such state lands from condemnation, it would seem that
       it would have expressly so limited the term "state lands," as used in
       RCW 8.12.030.... This the legislature did not see fit to do, and the realtor
       suggests no reason why such a limitation should be inferred.

City ofSeattle, 54 Wn.2d at 147.

       In other words, reservation from sale is critical to determining whether public

lands have been reserved for a particular purpose. In Fransen v. Board ofNatural

Resources, state forest lands were found to be reserved for a particular purpose by law

because they are'" forever reserved from sale.'" Fransen v. Bd ofNatural Res., 66

Wn.2d 672,673,404 P.2d 432 (1965) (quoting former RCW 76.12.120, recodified as

RCW 79.22.050 (Laws of2003, ch. 334, § 220)). Jefferson County explained that

dedicated land is '" severed from the mass of public lands, [so] that no subsequent law, or

proclamation, or sale would be construed to embrace it, or operate upon it.' " Jefferson



                                             14 

No. 29121-9-III; No. 29123-5-III
PUDv. State


County, 91 Wash. at 459 (quoting State v. Whitney, 66 Wash. 473, 488, 120 P. 116

(1912».

          School lands are subject to sale. The lands at issue here are not devoted to or

reserved for a particular use by law. Moreover, the school trust lands here are not

dedicated to a public use. The State cannot show that the trust lands at issue have been

dedicated to a public use. Likewise, the State cannot argue that these trust lands are

dedicated to a public use simply because they may be actively managed by DNR.

          The fact that the State leased the trust lands for grazing does not reserve those

lands for a particular use by law. Even trust lands subject to grazing leases shall not be

sold during the life of the lease. RCW 79.11.290. And here, the specific leases involved

reserve the State's right to sell the property, reserving the right to sell upon 60 days'

notice.

          In short, the sale of leased school trust lands is simply limited to certain conditions,

but these conditions are insufficient to fall within the statutory language of "devoted to or

reserved for a particular use by law." RCW 79.02.010(14)(h).

          Furthermore, leased lands are not devoted to a particular use by RCW 79.13.370.

This provision merely states that once a grazing lease is issued, the lessee may only use

the land for the purposes set forth in the lease. Id.



                                                 15 

No. 29121-9-111; No. 29123-5-111
PUDv. State


       C. Trusts. CNW argues that school lands are exempt from condemnation because

they are public trusts.

       The Washington Enabling Act and Constitution impose an express trust and

corresponding trust management principles on state trust lands, including the land at issue

here. County o/Skamania v. State, 102 Wn.2d 127, 132,685 P.2d 576 (1984) (citing

Washington Enabling Act § 11,25 STAT. 676 (1889), amended by Act of August 11,

1921,42 STAT. 158, and Act of May 7, 1932,47 STAT. 150; CONST. art. XVI, § 1); see

1996 Op. Att'y Gen. No. 11 (Question 1); O'Brien v. Wilson, 51 Wash. 52,97 P. 1115

(1908); United States v. 111.2 Acres o/Land, 293 F. SUpp. 1042, 1048-49 (E.D. Wash.

1968), aff'd, 435 F.2d 561 (9th Cir. 1970).

       In 0 'Brien v. Wilson, the Washington Supreme Court rejected the application of

adverse possession statutes to common school trust lands, holding that '" [Washington]

accepted the trust, and by its Constitution solemnly covenanted with the United States to

apply the granted lands to the sole use of its schools according to the purpose of the grant,

and prohibited the sale of any portion of the granted land except at public sale.'"

O'Brien, 51 Wash. at 56-57 (quoting Murtaugh v. Chicago, Milwaukee & St. Paul Ry.,

102 Mn. 52,55, 112 N.W. 860 (1907)).




                                              16 

No. 29121-9-III; No. 29123-5-III
PUDv. State


       In short, the examination of the language of Washington's Enabling Act and

Constitution reveal that state trust lands are administered under trust management

principles to benefit public schools as the trust beneficiaries and are subject to statutory

controls and authority.

       Regardless of the trust's purpose, the legislature granted PUDs the authority to

condemn state trust lands. RCW 54.16.050 authorizes the condemnation of state and

school lands.

       A statute shall not be interpreted in a manner that renders a provision meaningless

or creates an absurd or strained result. Pierce County v. State, 144 Wn. App. 783, 852,

185 P.3d 594 (2008). The State and CNW assert that the PUD does not have authority to

condemn trust land generally or the trust land here. But following this logic, RCW

54.16.050 would have meaningless terms that would create an absurd result.

       D. Easements. Regardless of whether a sale is at issue, by the State's own

admission, easements can be granted over trust lands for grazing. Here, PUD does not

seek fee ownership of school trust lands. In addition to PUD's express condemnation

authority under RCW 54.16.050, the legislature also reserved PUD's right to condemn

easements over state lands in DNR's land management statutes:

       The foregoing sections relating to the acquiring of rights-of-way and
       overflow rights through, over and across lands belonging to the state, shall

                                              17 

No. 29121-9-III; No. 29123-5-III
PUDv. State


       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.

RCW 79.36.580.

       The State contends the trust lands at issue are dedicated to a public use because

they are actively managed by DNR. But all school trust land is managed by DNR in some

capacity as required under state law. See, e.g., RCW 79.10.090 (requiring periodic

analysis of all trust lands).

       E. Compatibility. The State maintains that the courts look only at dedication to a

public use when determining whether condemnation is allowed.

       The State misinterprets several precedents in making this assertion. For example,

in City o/Tacoma the condemnation at issue involved the right to divert water from a fish

hatchery and the right to condemn a 250-foot strip of the school lands. City o/Tacoma,

121 Wash. at 450. In analyzing whether Tacoma could condemn the right to divert waters

flowing past the fish hatchery, the court explained:

       This property is now devoted to a public use, and if the proposed diversion
       ofthe waters of the North fork would destroy this public use, or so damage
       it as to preclude its successful operation, our inquiry would end here.

Id. at 453.




                                             18 

No. 29121-9-III; No. 29123-5-III
PUDv. State


       The court ultimately found that the public use would not be destroyed and that

diversion would even benefit the hatchery. Id. Citing Roberts, the Supreme Court held

that condemnation was permissible, despite the fact that the property was already devoted

to a public use. Id. The court also held that Roberts authorized the condemnation of the

250-foot strip of school trust lands. Id.

       PUD points out, and the State does not dispute, that the easements will not destroy

the current uses of the State's trust land. In fact, PUD takes the position that the proposed

easements will benefit the economic purpose behind the trust lands by providing revenue

through compensation for the easements while still allowing the continuation of grazing.

       Significantly, the State does not challenge its own leases, which contain specific

provisions that address the condemnation of all or part of the leased land "by any public

authority." CP at 240 (section 10.06). These provisions not only recognize that

condemnation can occur, they allow for continuation of the leases after condemnation if

the parties desire.

       When managing the grant lands, DNR may consider only those factors consistent

with ensuring the economic value and productivity of the federal grant land trusts. See,

e.g., 1996 Op. Att'y Gen. No. 11 (Question 5(c». The condemnation of the easements

will not negatively impact the economic productivity of the trusts.


                                             19
No. 29121-9-III; No. 29123-5-111
PUDv. State


       F. Conclusion. We affinn the denial of summary judgment to the State and

CNW and affinn the order on public use and necessity. Given our disposition in

favor of the PUD, we need not address its cross appeal related to the trial court's

grant of limited intervention to CNW.




WE CONCUR: 





~I 





                                             20 

