Department of Natural Resources v. Public Utility District No. 1
Department of Natural Resources v. Public Utility District No. 1
Opinion of the Court
f 1 We granted discretionary review of an order certified by the Superior Court for Klickitat
¶2 The superior court denied the Public Utility District No. 1 of Klickitat County’s motion to dismiss the department’s cost recovery claim but certified pursuant to RAP 2.3(b)(4) that “[a]n immediate appeal . . . may materially advance the ultimate termination of this litigation.” Clerk’s Papers (CP) at 78.
¶3 We hold that a municipal corporation is a “person” and a “corporation” within the plain meaning of chapter 76.04 RCW and is subject to a civil action to recover fire suppression costs. On that basis we affirm and remand for further proceedings.
FACTS AND PROCEDURAL BACKGROUND
¶4 In August 2010, a forest fire near Lyle, Washington, burned more than 2,100 acres after a tree fell onto a power line owned and operated by the Public Utility District No. 1 of Klickitat County. The Department of Natural Resources incurred over $1.6 million in costs suppressing the fire. Based on its investigation, the department concluded that the fire was caused by the PUD’s negligence in failing to remove the tree, which posed a foreseeable hazard to its electrical lines.
¶5 The department commenced this action against the PUD to recover the fire suppression costs under RCW 76.04.495, a provision of the “Forest Protection Act,” chapter 76.04 RCW (hereafter sometimes “the Act”), which gives the State the right to recover the costs of suppressing fires negligently started by “any person, firm, or corporation.”
Whether Plaintiff State of Washington Department of Natural Resources has the statutory authority to proceed with a fire suppression cost recovery claim against Defendant Public Utility District No.l of Klickitat County under RCW 76.04.495.
CP at 78. We granted discretionary review.
ANALYSIS
¶6 The Forest Protection Act was enacted in 1923 and seeks to protect public and private forest lands in the state from the devastation caused by forest fires. It empowers the department to take charge of and direct the work of suppressing forest fires. RCW 76.04.015(3)(b). At issue in this case is the scope of the provision of the Act authorizing the department to recover fire suppression costs from any person, firm, or corporation that is negligently responsible for the start or spread of a fire.
¶7 Whether the trial court properly denied the PUD’s motion to dismiss is a question of law that we review de novo. San Juan County v. No New Gas Tax, 160 Wn.2d 141, 164, 157 P.3d 831 (2007). The meaning of a statute, on which the court’s decision turned, is likewise a legal question reviewed de novo. State v. Roggenkamp, 153 Wn.2d 614, 621, 106 P.3d 196 (2005).
¶8 A court’s fundamental objective in interpreting a statute is to ascertain and carry out the legislature’s intent.
¶9 The PUD’s briefing on appeal relies on several canons of construction that it contends support ascribing a narrow meaning to “person” as used in RCW 76.04.495. But it is only if a statute remains ambiguous after a plain meaning analysis that we resort to external sources or interpretive aids, such as canons of construction and case law. Jongeward v. BNSF Ry. Co., 174 Wn.2d 586, 600, 278 P.3d 157 (2012). We are able to resolve the appeal based on the plain meaning of the statute.
History of relevant legislation
¶10 The legislature authorized municipalities to acquire and operate public utilities, including electrical utilities, in 1909. Laws of 1909, ch. 150 (“An Act authorizing cities and towns to construct, condemn and purchase, purchase, acquire, add to, maintain, conduct and operate certain public utilities.”).
Any person, firm or corporation negligently responsible for the starting or existence of a fire which spreads on forest land shall be liable for any expense incurred by the state, a municipality or forest protective association, in fighting such fire provided that such expense was . . . authorized by the state.
Laws of 1923, ch. 184, § 11 (emphasis added).
¶12 A statutory definition of “person” for purposes of construing Washington statutes predated statehood. See Laws of 1854, § 134, at 99. By the time the Forest Protection Act was enacted in 1923, the definition of “person” existed in a form adopted in 1891, when it was included in “An Act concerning the construction of statutes,” which provided in relevant part:
Be it enacted by the Legislature of the State of Washington:
Section 1. The following provisions relative to the construction of statutes shall be rules of construction and shall constitute a part of the code of procedure of this state: The provisions of this code shall be liberally construed, and shall not be limited by any rule of strict construction. The provisions of a statute, so far as they are substantially the same as those of a statute existing at the time of their enactment, must be construed as continuations thereof. The term “person” may be construed to include the United States, this state, or any state or territory, or any public or private corporation, as well as an individual.
Laws of 1891, ch. 23 (emphasis added). The definition of “person” has remained unchanged since. It is presently codified at RCW 1.16.080(1).
¶14 The present version of the fire suppression cost recovery statute, which was in effect at the time of the department’s suppression of the Lyle fire leading to the lawsuit below, was last amended in 1993. Reformatted for clarity, it provides in relevant part:
(1) Any person, firm, or corporation:
(a) Whose negligence is responsible for the starting or existence of a fire which spreads on forest land . . .
[s]hall be liable for any reasonable expenses made necessary by . . . this subsection. The state . . . may recover such reasonable expenses in fighting the fire, together with costs of investigation and litigation including reasonable attorneys’ fees and taxable court costs, if the expense was authorized or subsequently approved by the department. . . .
(2) The department or agency incurring such expense shall have a lien for the same against any property of the person, firm, or corporation liable under subsection (1) of this section by filing a claim of lien naming the person, firm, or corporation, describing the property against which the lien is claimed, specifying the amount expended on the lands on which the firefighting took place and the period during which the expenses were incurred, and signing the claim with post office address. No claim of lien is valid unless filed, with the county*498 auditor of the county in which the property sought to be charged is located, within a period of ninety days after the expenses of the claimant are incurred. The lien may be foreclosed in the same manner as a mechanic’s lien is foreclosed under the statutes of the state of Washington.
RCW 76.04.495. “Department” as used in the Act “means the department of natural resources, or its authorized representatives, as defined in chapter 43.30 RCW.” RCW 76.04.005(3). Chapter 76.04 RCW does not include definitions of “person,” “firm,” or “corporation” as used in the chapter.
Plain meaning analysis
A. RCW 1.16.080(1) is properly considered
¶15 Since chapter 76.04 RCW does not include a definition of “person,” the department looks to RCW 1.16-.080(1), the current codification of Laws of 1891, ch. 23, § 1. As previously observed, the introductory phrase of that legislation provides, “The following provisions relative to the construction of statutes shall be rules of construction and shall constitute a part of the code of procedure of this state.” RCW 1.16.080(1) states:
The term “person” may be construed to include the United States, this state, or any state or territory, or any public or private corporation or limited liability company, as well as an individual.
¶16 In In re Brazier Forest Products, Inc., 106 Wn.2d 588, 595, 724 P.2d 970 (1986), our Supreme Court relied on the general definition of “person” in RCW 1.16.080(1) as
¶17 Yet because RCW 1.16.080 states that “person” may be construed to include the listed entities as well as an individual, our Supreme Court has recognized that it “only allows, but does not require such a construction.” Brazier Forest Prods., 106 Wn.2d at 595. As the Supreme Court further explained in Segaline v. Department of Labor & Industries, 169 Wn.2d 467, 474, 238 P.3d 1107 (2010), the “nature and purpose” of specific provisions of the RCW may require a different interpretation of “person” than the permissive interpretation provided by RCW 1.16.080(1). Such was the result in Segaline because the purpose of the statute being applied in that case — to protect the exercise of individuals’ constitutional free speech rights — had no application to the state agency that was asking the court to treat it as a “person” having rights under the statute. The court concluded that it made “little sense” to interpret “person” to include government agencies, which “do[ ] not have free speech rights.” Id. at 473.
B. “Any . . . corporation”
¶18 The PUD points to the fact that the specific provision at issue does not use the stand-alone term “person,” but refers instead to “any person, firm, or corporation.” From
¶19 The decision in Segaline pointed out that the meaning of “person” varies within the RCW. Segaline, 169 Wn.2d at 473. The PUD’s argument highlights the fact that the meaning of “person” may vary even within a chapter of the RCW. But the frequent stand-alone use of “person” in the Act makes the definition provided by RCW 1.16.080(1) a permissible, if not presumptive, definition in many provisions. And as the department points out, the PUD surely falls within the category of “any . . . corporation” in those provisions, like the fire suppression cost recovery statute, that speak of “any person, firm, or corporation.”
¶20 This is especially clear because other provisions of the Act, where appropriate, speak of private or public corporations, demonstrating that the legislature had both private and public corporations in mind. See RCW 76.04-.105, .115 (dealing with Department of Natural Resources’
¶21 Having established strong support for a permissively broad reading of “person” in chapter 76.04 RCW and that references to “any person, firm, or corporation” plainly include municipal corporations, we turn to whether there is anything in the “nature and purpose” of the Act that requires the exclusion of municipal corporations from the meaning of those terms.
C. Consideration of provisions of the Act and its purpose
¶22 The primary purpose of the Act is to protect, through prevention and suppression, private and public forest lands from damage caused by uncontrolled fires. See ch. 76.04 RCW; e.g., RCW 76.04.015-.035, .075-, 167. To that end, it commands or authorizes the department (among other duties and prerogatives) to enforce requirements that persons obtain burn permits before burning flammable or waste material on forest lands, RCW 76.04.205; to enforce a requirement that persons obtain a permit before dumping mill waste or forest debris in hazardous quantities, RCW 76.04.235; to require that owners of forest land provide adequate protection against the spread of fire during high
¶23 The Act’s application to utilities, private or public, is explicit in its provision dealing with the department’s duty to investigate the origin and cause of all forest fires “to determine whether either a criminal act or negligence . . . caused the starting, spreading, or existence of the fire.” RCW 76.04.015. The provision contemplates that the operation of utilities will come within the scope of such investigations and makes no distinction between private and public utilities. It provides that “[i]n conducting investigations, the department shall work cooperatively, to the extent possible, with utilities, property owners, and other interested parties to identify and preserve evidence.” RCW 76.04.015(3)(c)(i). While it generally authorizes the department to take possession or control of relevant evidence that it finds in plain view, see id., it makes special provision for property used in the operation of a business or utility. With respect to a utility, it provides that absent a court order, the department may not take possession or control of a utility’s property over objection if taking possession and control would “materially interfere with the ... provision of electric utility service.” RCW 76.04.015(3)(c)(ii). It provides that “[o]nly personnel qualified to work on electrical equipment may take possession or control of evidence owned or controlled by an electric utility.” RCW 76.04.015(3)(c)(iv).
¶24 We may take judicial notice of the fact that downed power lines and other operational mishaps experienced by electric utilities can trigger wildfires, whether or not negligence is involved. A legislative fact of this sort is properly considered “ ‘as part of the statute’s context because presumably the legislature also was familiar with [that fact] when it passed the statute.’ ” Campbell & Gwinn, 146
¶25 Public corporations, like private corporations, have the capacity to negligently start forest fires. The manifest purpose of the Act can be achieved only if the department’s authority extends to the activities of public corporations, including to regulate threats they pose and to recover the cost of suppressing fires for which they may be responsible. The PUD offers no explanation why the legislature would exclude public corporations from the operation of the Act. Given the manifest purpose of the Act, there is no textual basis for concluding that its references to “person” and “any . . . corporation” do not include public corporations such as PUDs. In this respect, the Act is unambiguous.
¶26 The PUD nonetheless argues that the inclusion of a lien as an enforcement mechanism in RCW 76.04.495(2) compels the conclusion that the Act cannot apply to public corporations. We turn to that argument.
D. Enforcement by lien
¶27 The PUD offers two syllogisms as its principal argument against the application of RCW 76.04.495 to public corporations:
First,
■ “The statute provides for a cause of action by [Department of Natural Resources (DNR)] for recovery of fire suppression costs against a negligent ‘person, firm or corporation,’ ”
■ “The statute provides that the enforcement mechanism is DNR ‘shall have a lien’ on the property of the ‘person, firm, or corporation,’ ”
■ “Therefore, a ‘person, firm, or corporation’ must be an entity which is legally capable of having a lien placed on its property.”
■ “The property of municipal corporations, such as [the PUD], is public property,”
■ “It is well-settled Washington law that no lien may be placed upon public property”
■ “Therefore, a ‘person, firm, or corporation’ cannot include a municipal corporation, such as [the] PUD.”
Appellant’s Reply Br. at 1-2.
¶28 The second premise of the PUD’s first syllogism is false. RCW 76.04.495 does not provide that “the” enforcement mechanism for fire suppression cost recovery is a lien, and it does not provide that the department “shall” have a lien automatically, as implied, but only conditionally.
¶29 The operative statutory language creating the department’s right to recover fire costs from a negligent party appears in subsection (1) of RCW 76.04.495:
Any person, firm, or corporation . . . [w]hose negligence is responsible for the starting or existence of a fire which spreads on forest land . . . shall be liable for any reasonable expenses made necessary by [a type of fault identified by] this subsection. The state . . . may recover such reasonable expenses in fighting the fire, together with costs of investigation and litigation including reasonable attorneys’ fees and taxable court costs, if the expense was authorized or subsequently approved by the department.
Because the superior court has jurisdiction in all cases at law in which the demand amounts to $300, the department properly filed a complaint seeking damages under RCW
¶30 Subsection (2) of the statute, dealing with the right to pursue a lien, is conditional, not absolute. It provides that the department shall have a lien by following a prescribed procedure. As the department points out, the short timeline for applying for a lien (90 days after expenses are incurred) and the mandated documentation present “impractical requirements for large fires,” with the result that even when dealing with private parties, the department prefers to pursue direct payment from the liable party and its insurer. Br. of Resp’t at 15. The lien is, as the department argues, an enforcement option.
¶31 As further support for its argument, the PUD cites Washington cases holding that public property has never been subject to mechanics’ or materialmen’s liens under general mechanics’ and materialmen’s lien statutes. But while the PUD relies on those cases, it ignores their common theme: namely, that when a claimant is unable to file a lien against public property, the legislature has ordinarily provided another remedy.
¶32 In Hall & Olswang v. Aetna Casualty & Surety Co., 161 Wash. 38, 47, 296 P. 162 (1931), the court discussed the statutory requirement that a general contractor post a performance bond on public projects from which laborers, mechanics, and materialmen had a right of action, stating, “It seems plain that [the performance bond provisions] were enacted and have remained the law, in recognition of the law that public property has never been subject to mechanics’ or materialmen’s liens under our general mechanics’ and materialmen’s lien statutes.” In Maxon v. School District No. 34, 5 Wash. 142, 145-46, 31 P. 462 (1892), the court similarly observed that “[t]he general idea” of an 1888 act requiring local governments to obtain a “ ‘good and sufficient bond’ ” from their contractors was “to provide for laborers and material men some safe means of obtaining their just dues as against a contractor on a public work
¶33 The lien cases, then, are in accord with our conclusion that the Act’s fire suppression cost recovery provision provides dual remedies: a suit for damages or a lien. And these dual remedies parallel dual remedies available under a different provision of the Act: RCW 76.04.610(1), which authorizes the department to impose monetary assessments on owners of forest land to whom the department provides protection. Amounts owed by private owners are reported to the county assessor in which the property is located, become a lien in the same manner as general state and county taxes on the same property, and can be collected through foreclosure, just as taxes can. RCW 76.04.610(4), (5). Assessment amounts owed by public entities, by contrast, “are not a lien against the ... land but shall constitute a debt by the nonfederal public body.” RCW 76.04.610(7). Just as under RCW 76.04.495(1) and (2), then, provision is made by which liabilities of both private and public entities may be collected by the department.
Conclusion
¶34 Because the PUD is a “person, firm, or corporation” within the plain meaning of RCW 76.04.495, we need
Review denied at 184 Wn.2d 1006 (2015).
Section 1 of the 1909 law delegated to “any incorporated city or town within the state” the power to
*496 construct, condemn and purchase, purchase, acquire, add to, maintain and operate works, plants and facilities for the purpose of furnishing such city or town and the inhabitants thereof, and any other persons, with gas, electricity and other means of power and facilities for lighting, heating, fuel and power purposes, public and private, with full authority to regulate and control the use, distribution and price thereof.
Laws op 1909, ch. 150, § 1, at 580-81.
“Person” and other terms are defined in RCW 76.04.760, enacted in 2014, which creates an exclusive civil cause of action by which an owner of forested lands may sue “a person” for property damage resulting from a fire negligently started or negligently allowed to spread. But the definitions appearing in RCW 76.04.760 “only apply throughout this section . . . unless the context clearly requires otherwise.” RCW 76.04.760(5).
Other provisions require “[a]ny person” engaged in activity on forest lands to immediately report fires on such lands, RCW 76.04.445(1); require “a person” to have a valid burning permit to burn certain flammable materials on forest lands, RCW 76.04.205; and provide that “no person” may dump hazardous quantities of mill wastes or forest debris on forest lands without a permit, RCW 76.04.235.
The second premise of the second syllogism is couched in overly strong terms but need not be addressed further because we agree that the lien provided by RCW 76.04.495(2) could not be obtained against the PUD. Washington cases have clearly and consistently followed the general rule that mechanics’ and materialmen’s liens cannot be placed on public property. The basis for the rule is common law, not constitutional, however. It is within the legislature’s power to authorize a lien against public property. But we would not infer a legislative intent to do so absent clear and unmistakable language.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.