### FILED 

### MAY 7,2013 In the Office ofthe ClerkofCourt W A StateCourt ofAppeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE PUBLIC UTILITY DISTRICTNO.1 OF ) OKANOGAN COUNTY, a municipal ) corporation, ) ) Respondent! ) Cross Appellant, ) ) v. ) ) STATE OF WASHINGTON, PETER ) GOLDMARK, Commissioner ofPublic ) Lands, ) ) Respondent! ) Cross Appellant, ) ) ood ) ) CONSERVATION NORTHWEST, a ) nonprofit corporation, ) ) Appellant, ) ) and ) ) CHRISTINE DAVIS, a singleperson, ) TREVORKELPMAN, a single person, ) DAN GEBBERS andREBA GEBBERS, ) husbood ood wife, ood WILLIAM C. ) No. 

### 29121-9-111 Consolidated with No. 

### 29123-5-111

PUBLISHED OPINIONNo. 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 PublicUtility District No.1 (PUD) beganthe 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 ofthe property owners for easements on their land. Ultimately, PUD filed a petition for condemnation against the remainingproperty owners. This includedthe 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 andthe State filed motions for summaryjudgment, arguing that PUD lacks the authority to condemn school trust land. The State stipulated to the entry ofthe order onpublic use and necessity, which addressedthe narrow issues ofwhether the transmission lineprojectwas a public

1We refertothe following parties collectively as the "State:" Christine Davis, Trevor Kelpman, Dan Gebbers, Reba Gebbers, William Weaver, Peter Goldmark, and the 2No. 29121-9-III; No. 29123-5-III PUDv. State

use and whetherthe easements sought were reasonably necessary for that use. The court denied the State's and CNW's motions, granted summaryjudgment in favor ofPUD, and entered findings offact, conclusions oflaw, and an order onpublic use and necessity. CNW appealed, challengingthe order ofsummaryjudgment, in addition tothe 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 summaryjudgment order, contending that PUD had no statutory authority to condemnthe State trust lands at issue here. We conclude that the State trust lands may be condemned as a matter oflaw. We affirm summaryjudgment in favor ofPUD and the denial ofsummaryjudgmentto 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 ofland for
State ofWashington. 

### 3No. 29121-9-III; No. 29123-5-III PUDv. State
educational purposes and the support ofcommon schools. EnablingAct, ch. 180, 

### §§ 10, 11,25 STAT. 676 (1889). The lands consisted ofsections 16 and 36 ofeach township in Washington. Id. Section 11 ofthe Enabling Actreserved these lands for "schoolpurposes only" and set forth certain restrictions ontheir sale and lease to ensure that the lands would derive to the sole benefit ofWashington schools. Id. This concern is echoed inthe 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 ofNatural Resources (DNR) is the state agency charged by the legislature withthe management ofthese lands. In 1957, the management responsibilities
were consolidated in DNR, which was createdtoprovide effective and efficient management ofthese state lands. RCW 43.30.010, .030. Peter Goldmark, the elected CommissionerofPublic Lands (Commissioner), serves as the administrator ofDNR. The Commissioner is a memberofthe Board ofNatural Resources that establishes policies regarding the appropriate management ofstate lands and resources. RCW43.30.205, .215.

4No. 29121-9-III; No. 29123-5-III 

### PUDv. State
DNRhas 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 PUDproposed a new transmission line to improve electrical service to the citizens ofMethow Valley. PUD soughtto constructthe transmission line and substation between Pateros and Twisp (hereinafter the "project,,).2 From the initial planning for the project in 1996, the projecthas 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 PJd511 (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 over400 public comment letters. Id. A final EIS was released in March 2006, and PUD made its selection laterthat month. Id.

2A lengthy discussion ofthe project is contained inthis court's opinion in 

### Gebbers v. 

### Okanogan CountyPub. Util. Dist. No.1, 144 Wn. App. 371, 183 PJd 324, 

### review denied, 165 Wn.2d 1004, 198 P.3d 511 (2008). 

### 5No. 29 12l-9-III; No. 29l23-5-II1 PUDv. State Following 10 years ofenvironmental review, the superior court and this court affinned PUD's decisions regarding theproject and the sufficiency ofthe final EIS. Id. at 393. We held that the environmental effects ofthe projectwere adequately disclosed, discussed, and substantiated in the fmal EIS. We also held that PUD did not act arbitrarily and capriciously in selectingthe transmission line route. Id. The Supreme Court deniedreview. Gebbers, 165 Wn.2d at 1004. PUD negotiated the easements required for the project with approximately 85 percent ofthe 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 managedby the DNR. PUD filed its amended petition for condemnation on April 14, 2010. At summaryjudgment onthe condemnation petition, CNW argued that the proposed Pateros-Twisp transmission line would bisectthe largest contiguous publicly owned shrub-steppe habitat in the Methow Valley and would have multiple adverse environmental impacts, including the introduction ofnoxious 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 andto preserve this land as a part ofthe trust corpus for the benefit of


### 6No. 29121-9-111; No. 29123-5-111 PUDv. State
future generations. To this end, the State had entered into enforceable leases for the use ofthese parcels and had issued pennitsto allow for cattle grazing on certain parcels. In total, the proposedPateros-Twisp transmission line would cross state trust lands that are subjectto five active grazing leases and two grazing pennitrange areas. These leases and pennits actively generate income to benefit Washington schools. However, the leases onthe property generate less than $3,000 annually for the school beneficiaries, not including DNRadministrative costs. PUD's proposed easements pass over no more than an estimated 4 percent ofthe area ofanyone lease and as little as 0.02 percent for one ofthe leased areas. PUDmodified theprojectto eliminate all pennanentroad construction within the project. Intervention. Priortothe hearing onpublic use and necessity, CNW filed a motion to intervene as a respondent in support ofthe State. Itis undisputed that CNWhas no legal or equitableproperty 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 andprotector ofstate 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 interventionunder CR24.



### 7No. 29121-9-111; No. 29123-5-111 PUDv. State
Motions for SummaryJudgment. Following intervention, both CNW and the State filed separate motions for summaryjudgment, arguingthat the PUD does nothave the authority to condemn schooltrust lands. PUD also filed a motion for summaryjudgment. 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 rejectedthe contention that school trust lands cannot be subjectto condemnation because they are dedicated to a public use. The trial court entered orders denying summaryjudgmentto CNW and the State, and granting summaryjudgmentto PUDon the issue ofcondemnation authority. Because the State did not otherwise oppose an order onpublic use and necessity, the court also entered its "Findings ofFact, Conclusions ofLaw, and Order on Public Use and Necessity." CP at 14-18. Appeals. CNW filed a notice ofappeal challenging the summaryjudgment in PUD's favor, as well as the order onpublic 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 thatit do so. Subsequently, the State filed a contingent notice ofappeal ofthe order denying summaryjudgment and the order on public use and necessity. Later, the Washington Supreme Courtruled thatthe


### 8No. 29121-9-III; No. 29123-5-III PUD v. State Attorney General was required to prosecute an appeal on behalfofthe 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 summaryjudgment 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, butthe 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 oflaw. This court reviews the trial court's summaryjudgment 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. ToddPac. 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) ofthe LAWS OF 1931, codified at RCW 54.16.050, specifically authorizes
9No. 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 andproperty rights, including state, county, and school lands, and property and littoral and water rights,for

... transmission lines, andallother facilities necessary or convenient. (Emphasis added.) The PUD statute itselfdoes not contain any limitation onthe type ofstate land that may be condemned. RCW 54.16.050. However, the definition of"state lands" inthe public lands act, Title 79 RCW, excludes lands "devotedto orreserved for a particular
use by law." RCW 79.02.01O(14)(h).3 The critical issue here is whetherthese school lands are dedicated to a particularpurpose oruse and, therefore, are not subjectto 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 notpersuasive for several reasons. First, the public lands act defines "state lands" as including school trust lands "that are not devoted to or

3 We referto the current version ofRCW 79.02.010; subsequent amendments renumbered the sections and were not substantive. 10No. 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 orthere would be no need for the qualifier. Second, the State's interpretation wouldrendermeaningless the many statutes that specifically allow local government to condemn state and school trust lands. See, e.g., RCW 8.12.030 (cities andtowns); RCW 53.34.170 (port districts), andRCW 54.16.050 (public utility districts). Finally, the State's argument ignores Washington Supreme Courtprecedent. In Roberts v. City o/Seattle, 63 Wash. 573, 574, 116 P. 25 (1911), the city ofSeattle instituted an action to condemn a 30-foot strip ofuniversity grounds. The court concluded that no provision in the Enabling Act orthe Constitutionprovided that school lands could not be sold. Id. at 575. The courtheld thatthe fact that school trust lands are devoted to the purpose offinancing 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-thatofeducation-andtherefore 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 thatthe taking ofthe strip ofland will impairthe use ofthe land remaining. Onthe other hand, the record shows thatthe remaining land will bebenefited. Under this condition it may be taken. Id. at 576.
11No. 29121-9-III; No. 29123-5-III PUDv. State
Dedication to a public use reserves the land from subsequent sale. Contrary to the assertions ofthe State, dedication to a public use requires more than simply puttingthe property to a productive use. The Washington Supreme Court has described dedication
as: (1) dedication by act ofthe 1egislature;4 (2) "platted, dedicated, and reserved" land for
a public use;5 (3) segregatingthe land from the public domain and appropriating it to the public by "due dedication,'.6 and dedicationby some "official act or declaration.,,7 Most significantly, the Supreme Court held that devotion tothe purpose ofeducation 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 thatthe authority to sell or condemn sovereign lands mustnot be presumed, but must be expressly conferred by statute. See Jefferson County, 91 Wash.

4State v. Jefferson County, 91 Wash. 454,455-56, 157 P. 1097 (1916) (waterway permanently reserved from sale by statute). 5Id. at 455. 6 City of Tacoma v. Taxpayers of Tacoma, 49 Wn.2d 781, 797,307 P.2d 567 (1957), rev'don othergrounds, 357 U.S. 320, 78 S. Ct. 1209,2

### L. Ed. 2d 1345 (1958). While this case did not explainhowthe land was dedicated, the case statedthat the land was "dedicated." 7City of Tacoma v. State, 121 Wash. 448, 452, 209 P. 700 (1922). PUD argues that "dedicatedto a public use" is the functional equivalent of"devoted to orreserved for a particular use by law." See RCW 79.02.010(14)(h). 12No. 29121-9-III; No. 29123-5-III PUDv. State

at458-59. Andthe PUD condemnation statute expressly allows for the condemnation of school lands. RCW 54.16.050. SinceRoberts, the Supreme Courthas continuedto approve the condemnation of school trust lands, and othertypes oftrust lands, eventhoughthey exist for the purpose of serving various trust beneficiaries. See City of Seattle v. State, 54 Wn.2d 139, 147,338 P.2d 126 (1959); City of Tacoma 

### v. State, 121 Wash. 448,453,209 P. 700 (1922). The State argues thatRoberts, City of Tacoma, and City of Seattle are erroneous. The trial court disagreed, and so do we. In City of Seattle, the city ofSeattle instituted a condemnationproceedingto acquire state school and capitol building lands for use in its proposed ToltRiver aquifer. City of Seattle, 54 Wn.2d at 141. The court concludedthat the city had the powerto condemn state property thatwas not dedicated to a public use. Id. at 147. In City of Tacoma v. Taxpayers of Tacoma, 49 Wn.2d 781, 801,307 P.2d 567 (1957), rev 'don othergrounds, 357 U.S. 320, 78 S. Ct. 1209, 2 

### L. Ed. 2d 1345 (1958), the court concludedthat 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 subjectto condemnation. City of Seattle, 54 Wn.2d at 147. Here, the school lands are not dedicated to a public use and are, therefore, subjectto condemnation.
13No. 29121-9-III; No. 29123-5-III PUDv: State
B. Reservationfrom Sale. As stated above, under RCW 79.02.010(14)(h), school trust lands are reserved ifthey are "devotedto or reserved for a particularuse." In City of Seattle, the court found that the capitol buildingtrust lands-which are ofthe same character as school trust lands-were not devoted to or reserved for a particularuse by law: Itis admittedby the state in this action that the capitol building lands whichthe city ofSeattle seeks to condemn are not devoted to or reserved for a particular use but are subjectto sale. Ifthe legislature had intendedto exempt such state lands from condemnation, itwould 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, andthe realtor suggests no reason why such a limitation shouldbe inferred. City of Seattle, 54 Wn.2d at 147. In otherwords, reservation from sale is critical to determining whetherpublic lands have beenreserved for a particularpurpose. InFransen 

### v. Boardof Natural Resources, state forest lands were found to bereserved for a particularpurpose by law because they are'" forever reserved from sale.'" Fransen 

### v. Bd of NaturalRes., 66 Wn.2d 672,673,404 P.2d432 (1965) (quoting former RCW 76.12.120, recodifiedas RCW 79.22.050 (Laws of2003, ch. 334, 

### § 220)). Jefferson County explained that dedicated land is '" severed from the mass ofpublic lands, [so] that no subsequent law, or proclamation, or sale wouldbe construedto embrace it, or operate upon it.'" Jefferson
14No. 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 atissue 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 showthat the trust lands at issuehave been dedicated to a public use. Likewise, the State cannot argue that these trust lands are dedicatedto a public use simply because they may beactively managed by DNR. The fact that the State leased thetrust 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 ofthe lease. RCW 79.11.290. Andhere, 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 ofleased school trust lands is simply limited to certain conditions, butthese conditions are insufficient to fall within the statutory language of"devotedto 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 thepurposes set forth in the lease. Id.
15No. 29121-9-111; No. 29123-5-111 

### PUDv. State
C. 

### Trusts. CNW argues that school lands are exempt from condemnationbecause they are public trusts. The WashingtonEnablingAct and Constitution impose an express trust and corresponding trust managementprinciples 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), 

### amendedbyAct ofAugust 11, 1921,42 STAT. 158, and Act ofMay 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); UnitedStates 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 Courtrejected the application of adversepossession statutes to common school trust lands, holding that '" [Washington] accepted thetrust, andby its Constitution solemnly covenanted withthe United States to apply the granted lands tothe soleuse ofits schools according to the purpose ofthe grant, andprohibitedthe sale ofany portion ofthe granted land except atpublic sale.'" 

### O'Brien, 51 Wash. at 56-57 (quoting

### Murtaugh 

### v. Chicago, Milwaukee & 

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

16No. 29121-9-III; No. 29123-5-III PUDv. State
In short, the examination ofthe language ofWashington's Enabling Act and Constitutionreveal that state trust lands are administered undertrust management principles to benefitpublic schools as the trust beneficiaries and are subjectto statutory controls and authority. Regardless ofthe trust's purpose, the legislature granted PUDs the authority to condemn state trust lands. RCW 54.16.050 authorizes the condemnation ofstate and school lands. A statute shall notbe interpreted in a mannerthat 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 nothave authority to condemn trust land generally or the trust land here. Butfollowing this logic, RCW 54.16.050 would have meaningless terms that would create an absurd result. D. Easements. Regardless ofwhether a sale is at issue, by the State's own admission, easements can be granted overtrust lands for grazing. Here, PUD does not seek fee ownership ofschool trust lands. In addition toPUD's express condemnation authority under RCW 54.16.050, the legislature alsoreserved PUD'sright to condemn easements over state lands in DNR's land management statutes: The foregoing sections relating to the acquiring ofrights-of-way and overflowrights through, over and across lands belonging tothe state, shall 17No. 29121-9-III; No. 29123-5-III PUDv. State

notbe construed as exclusive or as affecting the right ofmunicipal and public service corporations to acquire lands belongingto orunder control of the state, orrights-of-way orotherrights thereover, by condemnation proceedings. RCW 79.36.580. The State contendsthe trust lands at issue are dedicated to a public use because they are actively managed by DNR. But all school trust landis managed by DNR in some capacity as required under state law. See, e.g., RCW 79.10.090 (requiringperiodic analysis ofall trust lands). 

### E. Compatibility. The State maintains that the courts look only at dedication to a publicuse when determining whether condemnation is allowed. The State misinterprets several precedents in making this assertion. Forexample, 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 ofthe school lands. City o/Tacoma, 121 Wash. at 450. In analyzing whetherTacoma could condemnthe right to divert waters flowing pastthe fish hatchery, the court explained: This property is now devoted to a public use, and ifthe proposed diversion ofthe waters ofthe North fork would destroy this public use, or so damage it as to preclude its successful operation, our inquiry would end here. Id. at453.

18No. 29121-9-III; No. 29123-5-III 

### PUDv. State
The courtultimately found that the public use would not be destroyed and that diversion would even benefitthe hatchery. 

### Id. Citing

### Roberts, the Supreme Courtheld that condemnation was permissible, despite the fact that the property was already devoted to a public use. 

### Id. The court also heldthat

### Roberts authorized the condemnation ofthe 250-foot strip ofschool trust lands. 

### Id. PUDpoints out, and the State does not dispute, that the easements will not destroy the current uses ofthe State's trust land. In fact, PUD takes the positionthat theproposed easements will benefit the economicpurpose behind the trust lands by providingrevenue through compensation for the easements while still allowing the continuation ofgrazing. Significantly, the State does not challenge its own leases, which contain specific provisions that address the condemnation ofall orpart ofthe leased land "by anypublic authority." CP at 240 (section 10.06). These provisions not only recognize that condemnation can occur, they allow for continuation ofthe leases after condemnation if the parties desire. When managing the grant lands, DNRmay consider only those factors consistent with ensuring the economic value and productivity ofthe federal grant land trusts. 

### See, 

### e.g., 1996 Op. Att'y Gen. No. 11 (Question 5(c». The condemnation ofthe easements will not negatively impact the economicproductivity ofthetrusts.
19No. 29121-9-III; No. 29123-5-111 PUDv. State
F. Conclusion. We affinn the denial ofsummaryjudgmentto the State and CNW and affinn the order onpublic use and necessity. Given our disposition in favor ofthe PUD, we need not address its cross appeal related tothe trial court's grant oflimited intervention to CNW.

WE CONCUR:

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