As the Washington Board of Natural Resources (BNR) continues work on a new westside/eastside sustainable harvest calculator for timber harvests, a lawsuit set for a State Supreme Court hearing next month could reaffirm the state’s fiduciary obligations to generate revenue from trust lands.
The state Department of Natural Resources (DNR) manages more than two million acres of forestland. Of that, 1.8 million acres is managed on behalf of trust beneficiaries. While some of that land was granted to the state by the federal government through the Omnibus Enabling Act of 1889, other forestland was handed over to the state for management.
The revenue generated from timber harvests is directed back to the beneficiaries that include fire and school districts, cities, and counties. Under state law, DNR as the trustee must generate revenue from trust lands. A 1984 Supreme Court ruling also found that the state “must act with undivided loyalty to the trust beneficiaries, to the exclusion of all other interests.”
However, a lawsuit filed by Conservation Northwest against DNR is asking the state high court to effectively overturn that 1984 ruling, arguing that the state does not have a fiduciary responsibility to specific beneficiaries but to “all the people” as described in Article XVI of the Washington state constitution. The case was dismissed in Thurston County Superior Court, but the plaintiffs appealed.
In a January post Conservation Northwest Executive Director Mitch Friedman wrote that “the State of Washington, through its Department of Natural Resources, has come to erroneously manage our public lands as though they owe undivided loyalty to fiduciary trusts.”
He added that “we are not hostile to the needs of the various trusts or to the communities and people who rely on logging and its revenue. We must find ways to get more benefit from what is logged as well as other economic answers. Our public forests are among our greatest assets and must be managed to their highest use.”
Elaine Spencer is an attorney with Northwest Resource Law who has co-written amicus briefs defending the state in the lawsuit. She told Lens that “if each and every one of us gets to have our say about any particular (tree) stand and whether it’s harvested, we can assume there will be no stands harvested, or very few. There will be fewer mills and less jobs. It’s a real problem.”
Aside from Conservation Northwest’s legal argument, which the Washington Association of Counties described as “quixotic” in an amicus brief, many advocating in favor of upholding the state’s fiduciary duty maintain that the arrangement provides critical funding to its beneficiaries. For one rural fire district, logging profits cover as much as 50 percent of its budget.
Timber sales revenue also funds local public education. In an amicus brief, the Washington State School Directors’ Association wrote that “revenues generated by the common school trust lands contribute to the overall amount of funding available for the construction of necessary common school facilities. In the absence of such revenues, there will be fewer funds for the School Construction Assistance Program (SCAP), meaning school districts will need to successfully find a way to contribute more local funding towards school facility construction projects. That, in turn, means school districts will need to propose, and their constituents will need to pass, larger bonds, which will, in turn, increase the tax burden on local taxpayers and generate additional costs for school districts in the form of higher interest expenses paid to investors who purchase those bonds.”
The Washington Council of Machinists warned in its brief that “if CNW’s short-sighted challenge and associated rhetoric win the day, not only will revenues from sales of the managed timber cease to be available for Beneficiary Respondents and the communities who rely upon them for education and other public services—but jobs with benefits and fair wages that sustain our rural communities are at risk as well.”
The case is scheduled to be heard on Oct. 21.