Title: An act relating to allowing property owners to acquire access to landlocked parcels across public lands.

Brief Description: Allowing access roads to private property surrounded by certain public lands.

Sponsors: Representatives Hinkle, Armstrong, Blake, Shabro, Buck, Hatfield, Upthegrove, Condotta, Moeller, McMorris and Bush.

Brief Summary of Substitute Bill

• Requires the Department of Natural Resources and the Department of Fish and Wildlife to grant easements and other rights in state lands to landlocked property owners under certain conditions.

• Authorizes the Department of Fish and Wildlife to grant easements and other rights in state lands under other circumstances and within certain specifications.

Majority Report: The substitute bill be substituted therefor and the substitute bill do pass. Signed by 13 members: Representatives Linville, Chair; Rockefeller, Vice Chair; Schoesler, Ranking Minority Member; Holmquist, Assistant Ranking Minority Member; Kristiansen, Assistant Ranking Minority Member; Chandler, Eickmeyer, Grant, Hunt, McDermott, Orcutt, Quall and Sump.

Several state agencies administer, manage, or operate lands owned by the state. For example, the state Department of Natural Resources (DNR) manages the state's upland properties for the benefit of the designated trust beneficiaries and has regulatory and aquatic land management responsibilities related to public lands. In addition, the state Department of Fish and Wildlife (DFW) has statutory authority to manage certain state-owned lands.

The DNR has statutory authority to grant access to private property owners across the state lands it manages. The DNR may grant any person the same type of easement or other right in these state lands that the person could acquire in private lands through eminent domain proceedings. The DNR also may grant permits to any person for the use of access roads on the state-owned lands it manages. This authority may be exercised when the DNR determines that granting the access road permit is in the state's best interests and when the rights acquired by the state allow a permit to be granted. The access road permit is subject to reasonable regulation by the DNR, including:

State law allows a property owner to acquire a "private way of necessity" across another person's property for ingress to and egress from his or her landlocked property. The landlocked property owner must demonstrate a reasonable need for the access and must pay the other property owner for the private way of necessity. Surrounding and contiguous property owners must be joined in the court proceeding filed to establish a private way of necessity. State statutes specify route selection criteria if more than one possible route exists. While a Washington Supreme Court decision authorized a private way of necessity across an easement on state land that had been given to a private party, later appellate decisions indicate that the private way of necessity statutes do not expressly authorize an acquisition of public land and may not be considered authority to acquire these rights on state or local public land.

Private property owners may obtain access to their landlocked properties across state-owned land under certain circumstances. The DNR and DFW must grant easements and rights in state-owned lands they administer when:

• there has been historical usage of those state lands to access the person's property; and

• the easements or other rights in those state lands are needed to access the person's property.

The DFW is expressly authorized to grant easements and rights in the state-owned lands it administers to the same extent that a person may acquire rights in privately owned lands through proceedings in eminent domain. The full market value of the right granted and any damages to remaining state property must be paid before such a grant may be made.

Any easements or rights granted by the DFW (both mandatory and permissive) must be as necessary to provide for historical use and must be granted along routes the DFW selects to minimize impacts to state resources. In addition, any road constructed by the DFW to grant easements or rights must be constructed in compliance with the Forest Practices Board's road construction and maintenance rules.

The substitute limits application of the provisions to the DNR and DFW. The substitute also replaces provisions for granting road use permits under specified circumstances with requirements for granting easements and other rights when certain conditions are satisfied. In addition, the substitute adds express authority for the DFW to grant easements and other rights in other circumstances. Further, the substitute adds the specifications for the DFW to grant easements and rights under both the mandatory and permissive grant provisions.

Effective Date of Substitute Bill: The bill takes effect 90 days after adjournment of session in which bill is passed.

Testimony For: (Original bill) The issue in this bill was raised by a constituent concern but addresses a principle and not a single incident. This bill's intent is to prevent purchases of land by state agencies at reduced prices because access is not recognized in the land's title. The bill is not intended to force state agencies to build roads or to circumvent forest road standards. This bill could be amended to focus on historical users of state land.

(Concerns) (Original bill) Existing statutory authority for private ways of necessity requires consideration of a set of criteria, including avoiding agricultural land and availability of alternative routes. The DNR has issued thousands of private access rights but cannot use trust funds for non-trust management purposes. New road construction in environmentally sensitive or wildlife areas creates concerns. Agencies are willing to look for access opportunities in situations involving historical use.

(With concerns) Howard Thronson, Washington State Department of Natural Resources; and Steve Pozzanghera, Washington State Department of Fish and Wildlife.