Court Rejects Condemnation of Private Property under Salmon Recovery Act

SandBar Printer-Friendly Article
SandBar 7:1, Regulatory Takings Issue, April, 2008 Court Rejects Condemnation of Private Property under Salmon Recovery Act Cowlitz County v. Martin, 2008 Wash. App. LEXIS 224 (Wash. Ct. App. Jan. 29, 2008). *Sara Wilkinson, 3L, University of Mississippi School of Law* The Washington Court of Appeals has held that the Salmon Recovery Act does not afford counties, cities, and tribal governments the authority to condemn private property. In its holding, the court contemplated three primary questions: 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, a prerequisite for condemnation of private property under state law; and 3) whether a county’s deputy prosecuting attorney has the authority to articulate an additional purpose for condemnation of private property not considered by the Board of Commissioners. Background In 2002, Cowlitz County, Washington, applied for and received a $447,000 grant from the Salmon Recovery Fund to replace a culvert that it claimed posed an impediment to fish passage. At the time the county received the grant, it held an easement on the property for the culvert in its current state. However, the proposed culvert, funded by the grant from the Salmon Recovery Fund, would require an expanded easement over the private property. In April 2005, the county began negotiations with the property owners to enlarge the existing easement through voluntary purchase and sale. However, the parties never came to an agreement and in October 2005 the Cowlitz County Board of Commissioners passed a resolution authorizing the county prosecuting attorney to bring a condemnation action against the property owners to acquire the enlarged easement. The Board of Commissioners’ resolution, and subsequently the petition for condemnation filed on behalf of the county, stated that the project was necessary to remove and replace an existing culvert that posed a barrier to fish passage and was to be funded from the grant awarded to the county by the Salmon Recovery Funding Board. In addition, the resolution and petition stated that the additional property was required to complete the culvert replacement project, which constituted a public use as required for condemnation of private property under state law. However, upon filing the petition for condemnation, the county’s chief civil deputy prosecuting attorney alleged an additional reason for condemnation that was not contemplated in the Board of Com missioners’ resolution. The petition stated that the existing culvert, in addition to posing a barrier to fish passage, was not adequate to handle storm stream flows under a 100-year storm and the petition was necessary to prevent road damage. The Cowlitz County Superior Court ruled in favor of the county, and the property owner appealed. Salmon Recovery Act The Salmon Recovery Act was enacted by the Washington State Legislature in 1999 in an effort to improve salmonid fish runs throughout the state. The Act encourages the state to integrate local and regional recovery activities primarily by providing state funds to counties, cities, and tribal governments to repair and improve fish runs that are designated on a “habitat project list.” While any project may be placed on the habitat project list, the Act specifically states, “no 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.”1 Per the express language of the Salmon Recovery Act, the court found nothing in the act granting a county, city, or tribal government the authority to condemn private property. The court stated that the Legislature did not intend to grant any eminent domain authority through its passage of the Salmon Recovery Act and thus counties, cities, and tribal governments had no authority to condemn private property under the auspices of the Act. Public Use Requirement Washington state law confers the power of eminent domain to counties when the condemnation is necessary for a public use. Procedurally, a petition for condemnation must be filed with the county superior court followed by a trial court hearing after which the court must issue an order granting or denying the petition. In determining public use and necessity, the trial court must consider 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. In this case, the trial court granted the petition for condemnation of the private property finding that fish passage is a public use. A review of the resolution passed by the Cowlitz County Board of Commissioners revealed that the board chose to proceed with the culvert replacement strictly under the Salmon Recovery Act and did not articulate any other specific public purpose. The Washington Court of Appeals pointed to the clear language in the Salmon Recovery Act specifically prohibiting counties from condemning private property for projects solely funded and regulated by the Act. In this case, the Cowlitz County Board of Commissioners authorized the condemnation of the private property solely for the purpose of improving fish passage by means of a project funded by and under the auspices of the Salmon Recovery Act. The court reversed the trial court’s grant for condemnation relying on the specific language of the Salmon Recovery Act. However, the court pointed out that condemnation could potentially be granted for the project if another public use was determined or even still using the fish passage as a public use so long as the Board of Commissioners did not authorize condemnation under the Salmon Recovery Act. Prosecuting Attorney’s Authority According to Washington state law, a county must determine the necessity of condemnation through the authority of its Board of Com missioners. Here, the Cowlitz County Board of Commissioners, in their resolution, deemed the repair of a fish passage a necessity but did not speak to any other factors in their decision to condemn the property. The court found that because the culvert’s current ability to handle storm stream flows was not contemplated or addressed by the Board of Commissioners, the county’s deputy prosecuting attorney had no authority to determine the necessity for a condemnation and acted without authority by articulating an additional purpose for replacing the culvert. Conclusion The Washington Court of Appeals held that the Re covery Act contains express language removing a county’s authority to exercise its pow ers of eminent domain under the auspices of the Act. The court also found that the restoration or improvement of salmonid fish runs did not constitute a public use as articulated by state law and prior jurisprudence. Finally, the court held that the county’s deputy prosecuting attorney acted outside the scope of his authority by alleging an additional purpose for replacing the culvert in the petition for condemnation that was not contemplated by the Cowlitz County Board of Commissioners. Endnotes 1. Wash. Rev. Code A7 77.85.050(1)(a).
Phone (662) 915-7775 • Fax (662) 915-5267 • 256 Kinard Hall, Wing E, University, MS 38677-1848

SandBar 7:1, Regulatory Takings Issue, April, 2008

Court Rejects Condemnation of Private Property under Salmon Recovery Act

Cowlitz County v. Martin, 2008 Wash. App. LEXIS 224 (Wash. Ct. App. Jan. 29, 2008).

Sara Wilkinson, 3L, University of Mississippi School of Law

The Washington Court of Appeals has held that the Salmon Recovery Act does not afford counties, cities, and tribal governments the authority to condemn private property. In its holding, the court contemplated three primary questions: 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, a prerequisite for condemnation of private property under state law; and 3) whether a county’s deputy prosecuting attorney has the authority to articulate an additional purpose for condemnation of private property not considered by the Board of Commissioners.

Background
In 2002, Cowlitz County, Washington, applied for and received a $447,000 grant from the Salmon Recovery Fund to replace a culvert that it claimed posed an impediment to fish passage. At the time the county received the grant, it held an easement on the property for the culvert in its current state. However, the proposed culvert, funded by the grant from the Salmon Recovery Fund, would require an expanded easement over the private property.
In April 2005, the county began negotiations with the property owners to enlarge the existing easement through voluntary purchase and sale. However, the parties never came to an agreement and in October 2005 the Cowlitz County Board of Commissioners passed a resolution authorizing the county prosecuting attorney to bring a condemnation action against the property owners to acquire the enlarged easement.
The Board of Commissioners’ resolution, and subsequently the petition for condemnation filed on behalf of the county, stated that the project was necessary to remove and replace an existing culvert that posed a barrier to fish passage and was to be funded from the grant awarded to the county by the Salmon Recovery Funding Board. In addition, the resolution and petition stated that the additional property was required to complete the culvert replacement project, which constituted a public use as required for condemnation of private property under state law. However, upon filing the petition for condemnation, the county’s chief civil deputy prosecuting attorney alleged an additional reason for condemnation that was not contemplated in the Board of Com missioners’ resolution. The petition stated that the existing culvert, in addition to posing a barrier to fish passage, was not adequate to handle storm stream flows under a 100-year storm and the petition was necessary to prevent road damage. The Cowlitz County Superior Court ruled in favor of the county, and the property owner appealed.

Salmon Recovery Act
The Salmon Recovery Act was enacted by the Washington State Legislature in 1999 in an effort to improve salmonid fish runs throughout the state. The Act encourages the state to integrate local and regional recovery activities primarily by providing state funds to counties, cities, and tribal governments to repair and improve fish runs that are designated on a “habitat project list.” While any project may be placed on the habitat project list, the Act specifically states, “no 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.”1
Per the express language of the Salmon Recovery Act, the court found nothing in the act granting a county, city, or tribal government the authority to condemn private property. The court stated that the Legislature did not intend to grant any eminent domain authority through its passage of the Salmon Recovery Act and thus counties, cities, and tribal governments had no authority to condemn private property under the auspices of the Act.

Public Use Requirement
Washington state law confers the power of eminent domain to counties when the condemnation is necessary for a public use. Procedurally, a petition for condemnation must be filed with the county superior court followed by a trial court hearing after which the court must issue an order granting or denying the petition. In determining public use and necessity, the trial court must consider 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. In this case, the trial court granted the petition for condemnation of the private property finding that fish passage is a public use.
A review of the resolution passed by the Cowlitz County Board of Commissioners revealed that the board chose to proceed with the culvert replacement strictly under the Salmon Recovery Act and did not articulate any other specific public purpose. The Washington Court of Appeals pointed to the clear language in the Salmon Recovery Act specifically prohibiting counties from condemning private property for projects solely funded and regulated by the Act. In this case, the Cowlitz County Board of Commissioners authorized the condemnation of the private property solely for the purpose of improving fish passage by means of a project funded by and under the auspices of the Salmon Recovery Act.
The court reversed the trial court’s grant for condemnation relying on the specific language of the Salmon Recovery Act. However, the court pointed out that condemnation could potentially be granted for the project if another public use was determined or even still using the fish passage as a public use so long as the Board of Commissioners did not authorize condemnation under the Salmon Recovery Act.

Prosecuting Attorney’s Authority
According to Washington state law, a county must determine the necessity of condemnation through the authority of its Board of Com missioners. Here, the Cowlitz County Board of Commissioners, in their resolution, deemed the repair of a fish passage a necessity but did not speak to any other factors in their decision to condemn the property. The court found that because the culvert’s current ability to handle storm stream flows was not contemplated or addressed by the Board of Commissioners, the county’s deputy prosecuting attorney had no authority to determine the necessity for a condemnation and acted without authority by articulating an additional purpose for replacing the culvert.

Conclusion
The Washington Court of Appeals held that the Re covery Act contains express language removing a county’s authority to exercise its pow ers of eminent domain under the auspices of the Act. The court also found that the restoration or improvement of salmonid fish runs did not constitute a public use as articulated by state law and prior jurisprudence. Finally, the court held that the county’s deputy prosecuting attorney acted outside the scope of his authority by alleging an additional purpose for replacing the culvert in the petition for condemnation that was not contemplated by the Cowlitz County Board of Commissioners.

Endnotes
1. Wash. Rev. Code A7 77.85.050(1)(a).