Snohomish County v. Seattle Disposal Co.
| Decision Date | 09 March 1967 |
| Docket Number | No. 38550,38550 |
| Citation | 70 Wn.2d 668,425 P.2d 22 |
| Court | Washington Supreme Court |
| Parties | SNOHOMISH COUNTY, a municipal corporation, Appellant, v. SEATTLE DISPOSAL COMPANY, Respondent. The Tulalip Tribes, a Federal corporation, Intervenor/Respondent. |
Robert E. Schillberg, Pros. Atty., Henry Templeman, Deputy Pros. Atty., Everett, for appellant.
Julian Dewell, of Anderson & Hunter, for Chadwick, Chadwick & Mills, Everett, Bell, Ingram & Smith, Lewis A. Bell, Everett, for respondent.
The defendant Seattle Disposal Company leased land known as Allotments 91 and 92 from the intervenor, the Tulalip Tribes, for the purpose of operating what is called a sanitary land-fill garbage and refuse disposal site. The lease was authorized by Ordinance No. 29 passed by the Tulalip Tribes, an Indian group organized as a federal corporation pursuant to the Indian Reorganization Act, 48 Stat. 988, 25 U.S.C. § 477.
Allotment 91 was purchased in 1960 in the name of the United States in trust for the Tulalip Tribes. The Tulalip Tribes purchased Allotment 92 at a Snohomish County Superior Court sale in November of 1963. Both parcels of land are located within the Tulalip Indian Reservation and within Snohomish County. Under Snohomish County Zoning Ordinance No. 7, as amended, a conditional use permit is required in order to carry on garbage disposal operations, except on lands exempt from county regulation. Neither Seattle Disposal nor the Tulalip Tribes ever applied for a permit to allow garbage operations on Allotments 91 and 92, and such a permit was never issued.
The plaintiff, Snohomish County, brought suit against Seattle Disposal, seeking an injunction to prevent Seattle Disposal from disposing of, or preparing to dispose of, garbage within the county without first procuring a conditional use permit. The Tulalip Tribes moved for leave to intervene, and the trial court granted permission to do so. Both Seattle Disposal and the Tulalip Tribes moved for summary judgment on the basis that the court lacked jurisdiction over the subject matter of the action. The trial court granted summary judgment in accordance with the motions on the grounds, among others, that the state and its governmental agencies have no jurisdiction over the use of the land in question, that the zoning ordinance if applied to Allotments 91 and 92 would constitute an encumbrance in violation of 28 U.S.C. § 1360 and RCW 37.12.060, and that the Tulalip Tribes have the power to the exclusion of the county or state to regulate the use of the land in question and have done so by Ordinance No. 29. The county has appealed.
The plaintiff county contends that the use of the lands in question is within the jurisdiction of the state of Washington. The county relies in part on the General Allotment Act, ch. 119, § 6, 24 Stat. 390 (1887), which provided that lands would be allotted to individual Indians, and that such lands would be held in trust by the United States for the allottees for 25 years, at the end of which the land would be patented in fee to the allottees. The General Allotment Act further provided that at The issuance of the patent in fee the allottees would become subject to the civil and criminal laws of the state or territory in which they resided. Kirkwood v. Arenas, 243 F.2d 863 (9th Cir. 1957). The record discloses that Allotments 91 and 92 were allotted to individual Indians by executive order pursuant to the Point Elliott Treaty of 1855, 12 Stat. 927, and the sixth article of the Treaty with the Omahas of 1854, 10 Stat. 1043 and not by virtue of the General Allotment Act of 1887. We this have no occasion to determine whether, in view of 34 Stat. 326 (1906) and 48 Stat. 984 (1934), 25 U.S.C. § 462, which extended existing periods of trust, any jurisdiction over Indians was ever relinquished by the federal government by virtue of the General Allotment Act of 1887.
The county's alternative position is that Public Law 280, 67 Stat. 589 (1953), as amended and codified in 28 U.S.C., § 1360, operated as an authorization for Washington to assume jurisdiction, and that ch. 240, Laws of 1957, ch. 36, Laws of 1963, now codified as RCW 37.12, acted as the consent of the people, in terms of art. 26 of the Washington Constitution, to the assumption of civil and criminal jurisdiction over Indians and their lands within the state. This general proposition is clearly the law, and the Tulalip Tribe has voluntarily come within this grant of state jurisdiction. State v. Paul, 53 Wash.2d 789, 337 P.2d 33 (1959). The county further recognizes the limitation on this assumption of jurisdiction, which appears in RCW 37.12.060 as taken from 28 U.S.C. § 1360, which reads as follows:
Chapter limited in application. Nothing in this chapter shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights and tidelands, belonging to any Indian or any Indian tribe, band, or community That is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any federal treaty, agreement, or statute or with any regulation made pursuant thereto * * *. (Italics ours.)
There is no question but that Allotment 91, title to which was taken in the name of the United States in trust for the Tulalip Indians, comes within the limitation expressed in RCW 37.12.060. The county argues, however, that Allotment 92 does not come within the terms of this limitation. We disagree. Allotment 92 was Sold free and clear of all trusts or restraints against alienation, pursuant to 70 Stat. 290, 25 U.S.C. § 403a--1, at the judicial sale in the partition action of Snohomish County Superior Court Civil Cause No. 76503. However, the purchase of Allotment 92 by the Tulalip Tribes reimposed the requirement, under 54 Stat. 1057, 25 U.S.C. § 403a and 70 Stat. 290, 25 U.S.C. § 403a--2, that any long term lease or sale of this land be made only with the consent of the Secretary of the Interior. The necessity of the Secretary's approval constitutes a restriction against alienation imposed by the United States. See La Motte v. United States, 254 U.S. 570, 41 S.Ct. 204, 65 L.Ed. 410 (1921). Thus the limitation stated in RCW 37.12.060 and 28 U.S.C. § 1360, applies, and the state is without authority to encumber or tax either Allotment 92 or 91.
The county argues that the application of zoning ordinance No. 7 to the land in question, particularly the mere requirement of application for a conditional use permit, does not constitute an 'encumbrance' on the property. The requirement of a permit is part and parcel of the zoning ordinance, and if the ordinance cannot be applied to the land involved neither can the requirement of a permit.
This court has said in the past that any 'burden upon land depreciative of its value, such as a lien, easement, or servitude, which, though adverse to the interest of the landowner, does not conflict with his conveyance of the land in fee' constitutes an encumbrance. Hebb v. Severson, 32 Wash.2d 159, 167, 201 P.2d 156, 160 (1948). The application of the zoning ordinance to prohibit or limit the use of this land for commercial purposes certainly could be considered to diminish its value. We agree with the approach taken by the United States Supreme Court in Squire v. Capoeman, 351 U.S. 1, 76 S.Ct. 611, 100 L.Ed. 883 (1956). In that case the Court concluded that the words 'charge or encumbrance,' as they appear in the General Allotment Act of 1887, should be interpreted broadly, and any doubt should be resolved in favor of the Indians for whose benefit that legislation, as well as the legislation before us, was intended. We, therefore, hold that Snohomish County Zoning Ordinance No. 7, if construed to apply to Allotments 91 and 92, constitutes an encumbrance within the meaning of 28 U.S.C. § 1360, and RCW 37.12.060.
We find support for this result in an opinion by the Acting Solicitor for the Department of the Interior which concludes that the state in the exercise of its police power may not interfere by zoning ordinance with land held by the United States in trust for Indians. 58 I.D. 52 (1942). See, also, an opinion of the Washington Attorney General, AGO 59--60, No. 59 (1959), in which the same conclusion is reached. We find nothing in Public Law 280 or in other applicable federal law to indicate an intention to the contrary. Thus, we conclude that, even apart from the inclusion of zoning ordinances within the word encumbrance, the federal government has not intended to allow states or their governmental agencies to interfere with the use of restricted Indian lands by means of zoning ordinances.
The county also argues that since Seattle Disposal is a non-Indian organization it should not be able to benefit from the special rights or privileges granted to Indians. The Tulalip Indians are clearly authorized, subject to the regulation of the Secretary of the Interior, to make commercial leases for substantially unlimited purposes. See 54 Stat. 1057, 25 U.S.C. § 403a; 60 Stat. 962, 25 U.S.C. § 403b; and 69 Stat. 539, 25 U.S.C. § 415. Limitation on the use to which a lessee from the Tulalip Tribes can put Indian lands is limiting the Indian use. The county cannot indirectly accomplish federally prohibited interference with property that it could not accomplish directly See AGO, No. 59 (1959); Jordan v. O'Brien, 70 S.D. 393, 18 N.W.2d 30 (1945); United States v. County of Allegheny, 322 U.S. 174, 64 S.Ct. 908, 88 L.Ed. 1209 (1944).
The county also contends that to hold that the zoning ordinance does not apply to the lands in question and to allow Indian self-regulation would deny to the members of the Tulalip Tribes and to residents of adjoining lands the equal protection of the laws. This novel argument would...
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Table of Cases
...4.4(1), 4.15(1), 4.16(1)(a) Snively v. Jaber, 48 Wn.2d 815, 296 P.2d 1015 (1956): 4.22, 4.24(1) Snohomish County v. Seattle Disposal Co., 70 Wn.2d 668, 425 P.2d 22, cert. denied, 389 U.S. 1016 (1967): 5.4(1) Snyder v. Harding, 38 Wash. 666, 80 P. 789 (1905): 9.3(1), 9.3(2)(f) Sohol v. Clark......
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CHAPTER 1 FEDERAL, STATE, COUNTY, AND INDIAN JURISDICTIONAL PROBLEMS ON RECLAMATION, LAND USE, AND ZONING
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