The Significance of “Trust” (and Bananas) in the Management of the State’s Public Forest Lands

Martha Wehling

“Martha was an Assistant Attorney General who primarily represented the Department of Natural Resources between 2004 and 2022. She also represented other state agencies, timber companies, local governments, and small forest landowners. In the late 1990s, she moved to Washington for field work in Olympic National Park on the Northern spotted owl, and never left, enjoying the wide variety of recreational opportunities and the diversity of public lands that make Washington such an exceptional state to live in. She is, as is obvious to at least two readers, a huge Arrested Development fan.”

Old-growth, spotted owls, and carbon are iconic representations of Washington’s vast forest lands. Yet management of those lands has been dominated by strife and litigation, most recently in the debate over whether and how to sequester carbon on some of the state-owned and managed public forest lands.¹ This article provides a description of the fundamental legal sideboards that affect the range of management options that apply to the State’s public forest lands.

A.   “That’s why you always leave a note”² or Terminology:  When is Public Land Not Actually Public?

Washington residents are fortunate to have access to numerous public lands within the state. Unfortunately, public lands are not as readily identifiable as Justice Stewart’s infamous description of pornography.³ There are several categories of public lands, and while some laws of general applicability apply to most of those lands, management options for others are sharply curtailed by their origin.

The majority of the 22 million acres of forest land in Washington, about 12.2 million acres, is federal land.⁴ This includes national parks, national forests, wilderness areas, and the BLM lands. These lands are governed by federal laws and policies, including the Northwest Forest Plan, the National Environmental Protection Act, the Endangered Species Act, and specific laws governing the Park Service, National Forest Service, and BLM. The management options for these lands, which includes varying levels of recreation and natural resource use, depend on the managing agency and its policies. Timber harvest was once a prominent use of the forested federal lands but following the listing of the spotted owl in the 1990s, federal management policies shifted.⁵

Also falling within the broad brush of public lands are the lands managed by state agencies, local governments, and local jurisdictions, such as local park districts. These constitute about 362,000 acres, excluding lands managed by the State Department of Natural Resources (DNR), and include the lands managed by State Parks, the Department of Fish and Wildlife, and local county parks. These lands are governed by many state laws of general applicability, including the State Environmental Policy Act and land use laws, but often also are subject to discrete, targeted management objectives, such as supporting local recreation or a particular ecosystem.

The public lands that are the subject of this article are the state-owned lands managed by the DNR, which constitute about 2.2 million acres and are further subdivided into two critically distinct categories.⁶ The first category is the “federally-granted” lands, also called the “state lands” in statute, which, despite their name, are not federal lands. These lands were granted to Washington at statehood (1889) from the federal government, for the support of seven specific institutions.⁷ Washington, unlike most Western states that received similar land grants, kept most of its lands and continues to manage those lands as working forests, conserved areas, and natural areas.⁸

The second category are the “state forestlands.” This category of lands was created by statute and the lands were deeded to the State from individual counties in the 1920s and the 1930s.⁹ There are about 600,000 acres of the state forestlands, which used to be called “forest board transfer lands” and are sometimes called “statutory” or “county” trust lands to distinguish them from the federally-granted lands.¹⁰ While these lands are subject to the same laws of general applicability that apply to other forest lands, the management options on those lands are constrained by the fact that the lands are managed by the State in trust.¹¹ Understanding the nature and terms of the trust is critical to understand the range of management options available for the State’s public lands.

B.  “I mean it’s one banana, Michael. What could it cost, $10?”¹² or Trust Principles:  Why Lindsay Might Not Get a Ferrari

Trust principles flow from common law, preventing bright-line tests defining the single correct way to manage a trust asset.¹³ Understanding the complex, and sometimes conflicting, trust principles is easier to understand through a hypothetical that avoids the highly technical complexities associated with managing the state trust lands.

We’ll use the example where George Bluth leaves his assets in a trust for his children, GOB (George Oscar Bluth), Michael, Lindsay, and Buster.¹⁴ Creation of any trust requires a trustee, an identifiable beneficiary (or beneficiaries), the trust corpus, and an objective.¹⁵ There are several types of trusts, and nearly infinite objectives, meaning it is up to the grantee to identify the goals of the trust, and the trustee to manage the trust to implement those goals. A trust can be definite, perpetual, or charitable; it can have a single objective or grant discretion to the trustee; it can skip generations, be passive, or terminate. The tremendous diversity in the creation, objectives, and beneficiaries of different trusts compounds the complexity of applying any precedent to a different trust, beneficiary, or discretionary decision.

In our hypothetical, George designates his son-in-law, Tobias, as trustee. George states that he wants the trust corpus to be used to “support and maintain” his children and grandchildren. The trust is perpetual, meaning that the trust corpus must be managed to also provide support and maintenance to future generations. Tobias must decide how to use the trust assets to meet GOB, Michael, Lindsay, and Buster’s diverse needs, but he cannot exhaust the trust, no matter how dire those needs are, so that no funds are left for George Michael, Maeby, or their future children.

The Bluth family children have very different needs. Michael runs a successful real-estate business in Phoenix, but he wants to open a second banana stand in Washington. His success means that his basic lifestyle needs are met, although he wouldn’t mind upgrading from a bike to a car. In contrast, GOB devoted his career to magic. He has an urgent and dire need for income to buy more illusions¹⁶ for his business and increase his personal spending. Lindsay has a young daughter enrolled in private school, but she longs for a Ferrari, while Buster has his personal needs met because he still lives with his mother, but he needs money to complete his degree in cartography.

The art of trust management is how Tobias will manage George’s trust assets to meet these diverse needs. Sideboards prevent Tobias from using the trust corpus for his own needs, like buying a night club, or for laudable but unrelated objectives such as donating to rebuild Maui following a wildfire, raising money for “tbd,”¹⁷ or for completely ignoring the needs of the current generation of beneficiaries and supporting only their children. These foundational limits stem from several common-law principles, including prudent management, undivided loyalty, the exercise of reasonable care and skill, and intergenerational equity.¹⁸

The question is what George meant by “support and maintain,” and how the trust corpus can be used for his children while complying with that objective? In our example, had George defined the objective of the trust as to “fund the education of” his children and grandchildren, it would have eliminated any debate over whether a Ferrari for Lindsay or the second banana stand for Michael fell within the trust objectives. The beneficiaries still might argue whether the trust assets should be used to send Buster, Maeby, and George Michael to Cambridge, Gonzaga, UW, or WSU, but the range and scope of the debate is much narrower.

Here, our beneficiaries have very different needs, and Tobias’s well-meaning intent is obscured by George’s vague objective. This means Tobias must make hard decisions about competing uses of the trust assets, and the beneficiaries may debate whether a decision to give GOB money to buy a new illusion so he can go on the road with Tony Wonder but deny Lindsay money to start a bee¹⁹ business falls within the discretion of a “reasonable and prudent trustee.”

C.  “There’s always money in the banana stand.”²⁰ or Discretionary Management of Washington’s Public Forest Lands

Washington’s two categories of state-owned forest lands are managed, as mentioned above, similarly, but come from two distinctly different trusts. Almost all of those lands, granted by the federal government at statehood, are held in trust for seven enumerated beneficiaries: common schools (K-12), the University of Washington (UW), Washington State University (WSU) (as agricultural college and scientific school), normal schools, capitol buildings, and charitable, educational, penal and reformatory institutions (CEP&RI).²¹ The federal government defined the trust objective in the granting document, the 1889 Enabling Act. The language varies by beneficiary but includes the restriction that the lands “shall be held, appropriated, and disposed of exclusively for the purposes herein mentioned.”²² Because the grant required the State to “support and maintain” those beneficiary institutions, the federal government as trustee created a perpetual, fiduciary trust, not a passive or charitable trust, for specific institutional beneficiaries.²³

Unlike the federally-granted lands, the trust lands created by statute, the “state forestlands,” are held in trust for the counties where the lands are located.²⁴ The purpose of the trust is unambiguously stated in the authorizing statutes:  “economically administered for forest development purposes.”²⁵ Because the statutes require harvest and reforestation, the State as trustee, created a perpetual, fiduciary trust for those counties.²⁶ Because of the different language specifying the grantor’s intent, the trust manager, DNR, has less discretion for management options on these lands relative to the federally-granted lands.

The Legislature delegated management of both types of trust lands to DNR. DNR’s management options for the lands are constrained not only by the common law fiduciary principles, the trust objectives, laws of general applicability, and the statutes specific to the lands and the agency, but also by policies and voluntary legal restrictions it adopts to meet the trust objectives.²⁷ These policies tend to be long-term, ranging from 70-100 years, because of the time scale associated with a rotation of a timber “crop,” which can range from 35 to 75 years, depending on the management objectives and site-specific conditions.²⁸

The Washington Supreme Court reaffirmed DNR’s discretion to exercise reasonable and prudent management of the trust lands in a unanimous 2022 decision.²⁹ There, beneficiaries and advocates challenged two policy decisions. The first was adoption of a 10-year management plan setting a sustainable harvest level for both categories of state trust lands. The second was an amendment to a 100-year management plan that conserves about 51% of the trust lands for conservation and biodiversity, but sustainably manages the remaining trust lands for timber harvest. In the unanimous decision, the Washington Supreme Court addressed whether there is a trust, and if so, who the trust lands are managed for. The Court, consistent with every prior challenge to trust management since statehood, affirmed that the lands are managed for specific beneficiaries.³⁰ And absent an abuse of discretion by the trustee, it is not the Court’s role to second guess those discretionary decisions.³¹ The court found no abuse in either of DNR’s challenged decisions, the 10-year sustainable harvest calculation or the amendment to the 100 year Habitat Conservation Plan, both of which reduced timber harvest in some locations of the state to ensure a perpetual, sustainable supply of timber while balancing conservation of a federally-listed species, the marbled murrelet.³²

D.  “I’ve made a huge mistake.”³³ or What Would a Prudent Trust Manager Do?

DNR, as trustee, has the same dilemma as Tobias. Some beneficiaries, like Lindsay, don’t need a trust disbursement, but would gladly use the money to buy that Ferrari. Other beneficiaries, like GOB, would use the trust revenue to continue his magic career, while Michael might use the money to open a second banana stand. The needs are as diverse as the beneficiaries, and there is no one-size-fits-all solution.

In addition to state law, DNR’s management options are further restricted by the trust documents. It is legally obligated to manage the federally-granted lands for the seven institutions in perpetuity: the K-12 schools, colleges, capitol buildings, and CEP&RI.³⁴ What support, use, and maintain means varies by beneficiary. UW’s needs are vastly different from a rural school district. Similarly, each beneficiary may have a different perspective on the value of litigation to enforce the trust obligations or implementation of the trustee’s decision. For example, UW may choose not to litigate DNR’s decision not to offer a $1 million timber sale because of public opposition, even though a $1 million timber sale located in a rural county could provide funds desperately needed by the local fire district for new trucks.

The two different origins of the trusts, however, also affect DNR’s management options. DNR is legally obligated to harvest timber from the county trust lands, even if the county beneficiary no longer prioritizes revenue.³⁵ The only exception to this is when the county requests “reconveyance” of the lands.³⁶ At that point, the lands are returned to the county, who then must use those lands “for public park use” and incur the costs and risks associated with their management. The reconveyance decision is entirely up to the county and its elected officials. Some counties have requested reconveyance of some of the county lands, notably, Whatcom County’s use of Lake Whatcom as its drinking water supply.³⁷ Most counties that deeded their forest lands to the State 100 years ago have chosen to keep their lands under DNR’s management.³⁸

These legal requirements don’t mean the trust documents can’t be changed. The federal government can amend the Enabling Act, which it has done for other western states that received similar land grants.³⁹ Washington can then amend its constitution, an action that other western states have also taken. Governing laws would also need to be amended, but that’s within the purview of the Legislature. Such amendments could include changes to the objectives or beneficiaries to expand the management options for these lands.

Management of the county lands can also be changed. Because the trust was created by legislation, changing the Enabling Act or Constitution isn’t required, just the governing statutes.⁴⁰ Yet such a change would likely affect the long-term policies that apply to management decisions on both types of lands.

E.  “No touching!”⁴¹ or Conclusion: “It Depends”

There is no single management option that meets the needs of diverse, perpetual beneficiaries when the trust asset is finite and must be managed sustainably in perpetuity. Moreover, willfully misrepresenting the governing law and range of management options delays the development of effective solutions. The question about how to manage the state trust lands isn’t whether DNR has discretion to sequester carbon on the state’s forest lands, but whether doing so is in the best interests of the beneficiaries who will be affected by that decision. It may be a prudent decision for some beneficiaries but not others.

The management of Washington’s public lands has unfortunately been dominated by litigation for the preceding 25 years, including challenges to each significant policy decision and numerous skirmishes challenging implementation of those decisions. As the Supreme Court clarified last summer, those policy decisions are not within the purview of the Court.⁴² Using the finite resources of time and money for litigation benefits lawyers, but often results in no practical solutions for the beneficiaries, or for all the people in Washington who incidentally benefit from millions of acres of forest land managed for wood products, ecosystem services, conservation, and recreation. As Washington’s policymakers debate how and whether to change management of the state’s forest lands, including how and whether to participate in the carbon market, how proactively to manage lands to reduce wildfire risk, and what level of harvest is sustainable for the next 10 years, the beneficiaries’ needs should be the primary consideration, despite public desire for modified uses of the lands.

The original land grants were durable and resilient, guiding management of the State’s vast public forest lands for over 100 years. But climate change and changing societal needs support reevaluation of those prior decisions and the generation of long-term, sustainable solutions to meet the needs of current and future beneficiaries. To find those solutions, the stakeholders will need to trust each other. Another decade of litigation will get the attorneys a Ferrari (or two) but is unlikely to help GOB advance his magic career, Michael with his second banana stand, or Maeby earn something better than a crocodile in spelling.

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Footnotes

1 Compare Rachel Baker, Is the state managing its public lands for all Washingtonians? Not yet, Seattle Times (October 3, 2023 at 2:57 pm), https://www.seattletimes.com/opinion/is-the-state-managing-its-public-lands-for-all-washingtonians-not-yet/ with Matt Comisky, WA’s forested trust lands are working for us, Seattle Times (October 10, 2023 at 2:31 pm), https://www.seattletimes.com/opinion/was-forested-trust-lands-are-working-for-us/.

2 A recurring line and running joke in the television show Arrested Development.

3 Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (“I know it when I see it”).

4 Carol Hardy Vincent, Cong. Research Serv., R42346, Federal Land Ownership:  Overview and Data 17, Table 4 (2021) (available at https://sgp.fas.org/crs/misc/R42346.pdf).

5 See Carolin Maier and Jesse B. Abrams, Navigating social forestry – A street-level perspective on National Forest management in the US Pacific Northwest, 70 Land Use Policy 432 (2018).

6 Astute readers will note the numbers do not add up to 22 million. There are also about 9.4 million acres of private timberland and 1.7 million acres of tribal timberland. Tribal forest lands are also subject to both trusts and carbon projects, and some private land is enrolled in carbon sequestration projects, but the additional complexity of management of these lands is beyond the scope of this article.

7 Enabling Act, ch. 180, 25 Stat. 676 §§ 10-18 (1889); RCW 79.02.010(15)(a)-(g).

8 Washington State Dep’t of Nat. Resources, https://www.dnr.wa.gov/managed-lands.

9 RCW 79.02.010(14), RCW 79.22.010, RCW 79.22.040, RCW 79.22.020.

10 Wash. State Office of Attorney General, State’s trust responsibilities with respect to lands granted by the United States or placed in trust through state legislation, Att’y Gen. Opinion No. 11 (1996), https://www.atg.wa.gov/ago-opinions/states-trust-responsibilities-respect-lands-granted-united-states-or-placed-trust.

11 Conservation Northwest v. Franz,199 Wn.2d 813, 514 P.3d 174, 177 (2022); County of Skamania v. State, 102 Wn.2d 127, 129, P.2d 576 (1984).

12 Arrested Development, Charity Drive, Season 1, Ep. 5.

13 Restatement (Second) of Trusts (1959) and Restatement (Third) of Trusts (2003).

14 These are fictional characters from a television show called Arrested Development.

15 United States v. Mitchell, 463 U.S. 206, 225 (1983).

16 Not “tricks.”

17 Arrested Development, Prison Break-In, Season 3, Ep. 7 (the Bluth family held a fundraiser where the cause was “to fight TBA,” or “to be announced” but the family pocketed the money.

18 See Restatement (Second) of Trusts (1959) and Restatement (Third) of Trusts (2003).

19 Not “beads.”

20 Arrested Development, Top Banana, Season 1, Ep. 2.

21 RCW 79.02.010(15).

22 Enabling Act, ch. 180, 25 Stat. 676 § 17 (1889) (grants to UW, WSU, normal schools, capitol buildings, and CEP&RI); §§ 10 and 11 (grants to common schools and “for educational purposes”).

23 See Conservation Northwest, 514 P.3d at 181.

24 RCW 79.22.040.

25 RCW 79.22.020.

26 RCW 79.22.040 requires state forestlands to be “administered and protected . . . in the same manner as other state forestlands.” RCW 79.10.310 requires DNR to “manag[e] . . . the forest to provide harvesting on a continuing basis without major prolonged curtailment or cessation of harvest.” See Conservation Northwest, 514 P.3d at 185-86 (“DNR is not required to harvest timber from state lands (although it is required to do so with respect to forest board lands), but it may elect to do so to generate revenue for its beneficiaries.”).

27 Washington State Dep’t of Nat. Resources, https://www.dnr.wa.gov/managed-lands/forest-and-trust-lands.

28 A farmer would not sprinkle a few apple and corn seeds and hope for a productive crop. Similarly, timber management is much more complex than just passively letting trees grow.

29 Conservation Northwest v. Franz,199 Wn.2d 813, 514 P.3d 174 (2022).

30 Conservation Northwest, 514 P.3d at 185.

31 Id.; There have been at least 27 decisions affirming the trusts and management decisions. See Brief of Respondents at n. 14 Conservation Northwest v. Franz, 199 Wn.2d 813, 514 P.3d 174 (2002) (No. 99183-9), https://www.courts.wa.gov/content/Briefs/A08/991839%20Resps%20Brief.pdf.

32 The murrelet deserves its own separate article. It is a chubby, “potato-shaped” seabird that can only fly at terminal velocity and which crashes through the tree canopy with its webbed feet, knocking its eggs and young out of the “nest” (which is just a ring of poop); Even the esteemed authors of Attorney General Opinion 96-11 declined to opine on whether a particular decision (there, the development of the 1997 HCP which set aside 51% of the State’s forest lands for conservation) was a prudent exercise of discretion

33 A recurring line and running joke in Arrested Development. While most often stated by the character GOB, it has also been uttered by other characters.

34 Enabling Act, ch. 180, 25 Stat. 676 §§ 10-18 (1889) (to support common schools, for the purposes of a university, for erection of a penitentiary, for the use and support of an agricultural college, for the establishment and maintenance of a scientific school, for normal schools, for public buildings at the capital, and for CEP&RI institutions). 

35 Conservation Northwest, 514 P.3d at n. 12 (“DNR is obligated by statute to harvest timber from forest board lands [the state forestlands]”) (citing RCW 79.22.040).

36 RCW 79.22.300.

37 Lake Whatcom Reconveyance, https://www.whatcomcounty.us/625/Lake-Whatcom-Reconveyance.

38 The Dunning-Kruger effect applies to the complexity of management decisions for forests, just like most other high-profile policy decisions. This article cannot begin to address these nuances, which cover a diverse range of areas of specialized expertise, including forestry, carbon projects, computer modeling, wildlife conservation, and wildfire and pest control.

39 See, e.g., ARIZONA STATEHOOD AND ENABLING ACT AMENDMENT OF 1999, PL 106–133, December 7, 1999, 113 Stat 1682, https://www.congress.gov/bill/106th-congress/house-bill/747/amendments.

40 For example, the reconveyance statute could be amended so that state forest lands could be used for park purposes “or carbon sequestration projects.”

41 A recurring line in Arrested Development, most often stated by the Orange County Prison Guards.

42 Conservation Northwest, 514 P.3d at 177 (“[B]ecause DNR’s land management strategies are neither unconstitutional nor arbitrary and capricious, we are not empowered to weigh in on DNR’s exercise of its discretion in managing state and forest board lands.”); id. at 185 (“Even accepting, arguendo, that we were of the opinion that timber harvests should not be prioritized over other activities … we still would not be empowered to reverse DNR’s [challenged decisions because] DNR’s position is a defensible exercise of its discretion to make state and forest board lands productive properties.”).

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