[No. 34943-4-II. Division Two. January 29, 2008.]
[1] Courts — Jurisdiction — Subject Matter — Question of Law or Fact — Review. Whether an action is subject to dismissal for lack of subject matter jurisdiction is a question of law that is reviewed de novo. [2] Eminent Domain — Authority — Limitations — In General. The power of eminent domain is an inherent power of the State. The power is limited by the state constitution and must be exercised under lawful procedures. [3] Eminent Domain — Authority — Statutory Authority — Legislative Delegation — Necessity. Delegation of the State's eminent domain power to political subdivisions of the State must be expressly given or necessarily implied. [4] Eminent Domain — Authority — Statutory Authority — Legislative Delegation — Construction — Strict Construction. Legislation purportedly granting authority to a political subdivision of the State to exercise the power of eminent domain is strictly construed. [5] Eminent Domain — Public Use and Necessity — Lawful Basis — Necessity. An order of condemnation must have a lawful basis. [6] Fish — Eminent Domain — Authority — Statutory Authority — Salmon Recovery Act. The Salmon Recovery Act, chapter 77.85 RCW, does not grant authority for a county, city, or tribal government to condemn private property and strictly forbids condemnation of private property for projects solely undertaken under its provisions. [7] Eminent Domain — Authority — Exercise — Grantee of Authority. The necessity and expedience of exercising the power of eminent domain are decided by the grantee of the power. [8] Counties — Eminent Domain — Authority — Statutory Authority — Exercise of Authority — County Commissioners — Prosecuting Attorney. RCW 8.08.010 grants eminent domain power to the counties, who exercise this power through their respective board of commissioners. It is for the board of commissioners to determine the necessity for a condemnation and to make findings in support thereof; a prosecuting attorney, as a subordinate agency, has no authority to articulate a different or additional purpose for condemnation not stated by the board. Nature of Action: A county sought to condemn private property to expand an easement to accommodate the replacement of an existing culvert with a larger culvert. Superior Court: The Superior Court for Cowlitz County, No. 06-2-00385-4, James J. Stonier, J., on May 23, 2006, entered a judgment in favor of the county, granting the county's petition for condemnation. Court of Appeals: Holding that the Salmon Recovery Act does not authorize the county to condemn the property and that the county prosecuting attorney did not have the authority to articulate a different or additional purpose for the condemnation than what was stated by the county, the court reverses the judgment. Robert M. Gregg-, for appellants. Susan I. Baur-, Prosecuting Attorney, and Ronald S. Marshall-, Deputy, for respondent. ¶1 PENOYAR, J. — Cowlitz County (County) filed a petition for condemnation to acquire an expanded easement over the Martins' property in order to replace the existing culvert for Baxter Creek at Coyote Lane. The trial court granted the petition, and the Martins appealed. Because the petition for condemnation contained no lawful basis, we reverse the trial court's order granting the petition. FACTS ¶2 Sometime in early 2002, the County decided to replace a culvert located where Baxter Creek intersects Coyote Lane. ¶3 At the time of the grant, the County held an easement for the existing culvert, but the replacement culvert required a larger easement. Beginning in April 2005, the County began making offers to enlarge its existing easement through voluntary purchase and sale, but the parties did not reach an agreement. ¶4 On October 18, 2005, the Cowlitz County Board of Commissioners passed Resolution No. 05-152, authorizing the County prosecuting attorney to file a petition for condemnation of the larger easement. The resolution stated that "the Baxter Creek Culvert Replacement Project is necessary to remove and replace the existing culvert that has been identified as a barrier to fish passage and the Salmon Recovery Funding Board has awarded a grant for the project." Clerk's Papers (CP) at 32. The resolution also stated, "the Board finds that the property rights to be acquired are necessary to accommodate replacement of the Baxter Creek Culvert and reconstruction of Coyote Lane and constitute a public use of such property." CP at 32. Shortly thereafter, the County filed the petition for condemnation with the Cowlitz County Superior Court. ¶5 The petition seeking condemnation filed by the County's prosecuting attorney alleged an additional reason for condemnation. The petition stated that condemnation was necessary to replace the existing Baxter Creek culvert because (1) "[t]he existing culvert acts as a barrier to fish passage" and (2) the existing culvert "is not adequate to handle stream flows under a 100-year design storm." CP at 1 (emphasis added). This was the first mention of the County's need to replace the culvert to handle storm stream flows. ¶6 In response to the County's petition, the Martins filed a motion to dismiss. The Martins' motion to dismiss argued, in part, that the trial court lacked subject matter jurisdiction to condemn the property because (1) the county board of commissioners acted without authority when it condemned the Martins' property for salmon passage, (2) the Salmon Recovery Act does not authorize counties to condemn private property, and (3) salmon passage does not constitute a "public use" under RCW 8.08.010. ¶7 The trial court held an evidentiary hearing on May 19, 2006, and ruled in favor of the County, denying the Martins' motion to dismiss and granting the County's petition. The trial court found that (1) the replacement of the Baxter Creek culvert would promote fish passage and accommodate 100-year storm water flows; (2) these two uses constitute "public uses"; and (3) to accomplish these two purposes, it is necessary that the County acquire the sought-after easement rights. The Martins now appeal. ANALYSIS I. STANDARD OF REVIEW II. WASHINGTON COUNTIES' AUTHORITY TO CONDEMN PRIVATE PROPERTY ¶11 We face three questions of first impression: (1) whether the Salmon Recovery Act authorizes the State or its entities to condemn private property, (2) whether Resolution No. 05-152 contains a valid alternative finding of public use for the project, and (3) whether a prosecuting attorney has the authority to articulate an additional purpose for condemnation not articulated by the board of commissioners in their resolution. A. The Salmon Recovery Act ¶13 Statutes authorizing a county, city, or municipality to exercise eminent domain must be clear and strictly construed. E.g., Hemenway, 73 Wn.2d at 137. We find nothing in the Salmon Recovery Act granting a county, city, or tribal government authority to condemn private property. In fact, we find significant indication to the contrary. There are several instances where the act states that any habitat project that occurs on private property requires the express consent of all of the affected property owners. RCW 77.85.010(3), .050(1)(a), .060(2)(b). Clearly, the legislature did not intend to grant any eminent domain authority by passage of the Salmon Recovery Act. Thus, Washington counties, cities, and tribal governments have no authority to condemn private property under the Salmon Recovery Act. B. Alternate Findings of Public Use ¶14 Respondents argue that repairing and improving salmonid fish runs supports condemnation in this case under chapter 8.08 RCW, which confers the power of eminent domain to Washington counties when the condemnation is necessary for a "public use." RCW 8.08.010. ¶15 In the Salmon Recovery Act, our legislature clearly elected not to grant eminent domain power to protect this public interest for projects solely funded and regulated by the Salmon Recovery Act. Because the county commissioners authorized condemnation solely for the purpose of fish passage by means of a project funded and regulated by the Salmon Recovery Act, we must adhere to the authority granted in the Salmon Recovery Act, rather than the broader grant of condemnation power found in RCW 8.08.020. While condemnation for the improvements potentially could be authorized for some other purpose, or even for fish passage under some other provision of the law, the Salmon Recovery Act strictly forbids condemnation for projects solely undertaken under its provisions. Respondents point to two phrases in Resolution No. 05-152 and argue that the project was also authorized for a county road project under chapter 8.08 RCW. The phrases are "Acquiring an Easement by Condemnation for a County Road Project" in the title and "reconstruction of Coyote Lane . . ." in paragraph three. CP at 32. A reading of the entire resolution shows that the project had no road improvement purpose independent of the culvert replacement under the Salmon Recovery Act; once the new culvert was installed, the road bed of Coyote Lane would have to be replaced. The county commissioners chose to proceed under the Salmon Recovery Act and authorized condemnation for no other public purpose. In this situation they may not proceed at trial under RCW 8.08.020. C. Prosecuting Attorney's Authority To Articulate New Purpose ¶16 Counties have clear statutory authority to condemn property for roadways and for storm water control facilities. E.g., In re Petition of Seattle Popular Monorail Auth., 155 Wn.2d 612, 121 P.3d 1166 (2005); State v. Dawes, 66 Wn.2d 578, 583, 404 P.2d 20 (1965); Hallauer v. Spectrum Props., Inc., 143 Wn.2d 126, 149-50, 18 P.3d 540 (2001). The Martins argue that the Board of Commissioners did not act to exercise this general authority and acted only to protect salmonid fish runs. They point out that the Board of Commissioners' resolution mentions only salmon runs and claim that allowing the prosecuting attorney to allege other reasons for the condemnation in the action filed in the trial court is an unlawful delegation of the power of condemnation. ¶18 We hold that the Salmon Recovery Act does not authorize counties to condemn private property to further projects undertaken solely under its provisions, and that a prosecuting attorney does not have authority to articulate a different or additional purpose for condemnation not stated by the county. ¶19 Accordingly, we reverse. HOUGHTON, C.J., and QUINN-BRINTNALL, J., concur.