Could a Washington county force federal or state agencies to follow county procedures for land use and environmental decisions?

Plain-English summary

In 1994, the Washington Attorney General concluded that a county could not make federal or state agencies follow county-created procedures or substantive rules for land use or environmental regulation merely by passing a local ordinance. Federal agencies had to conform to local law only where Congress specifically directed them to do so. State agencies had to conform where state law expressly or by necessary implication required it for a particular decision.

The question arose as counties considered ordinances asserting control over government decisions about land use and natural resources. The opinion used a Walla Walla County ordinance as context but did not decide the validity of that ordinance itself. It addressed broad county claims of regulatory control and noted that local zoning of state facilities could raise different issues.

Currency note

This opinion was issued in 1994. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could a county make a federal agency follow its environmental review procedures?
The opinion said no unless Congress had specifically directed the federal agency to conform to local law. A county ordinance alone could not impose those requirements.

Could a county require a Washington state agency to follow local land-use rules?
Only where state law expressly or necessarily required conformity for the particular agency decision. The opinion rejected general county authority to impose such requirements on state agencies.

Did the opinion invalidate the Walla Walla County ordinance?
No. The Attorney General described it as context and said a conclusion about that specific ordinance was unnecessary to answer the questions.

Did the opinion decide how local zoning applies to state facilities?
No. A footnote said that issue might present different questions from a county ordinance seeking to control state regulatory decisions.

Background and statutory framework

A state senator asked whether a county could impose procedural or substantive legal requirements on federal and state agencies in land-use and environmental decisions. The opinion analyzed federal supremacy and the limits of county power under the Washington Constitution. Its holding preserved the specific exceptions where Congress or state law required agency conformity with local rules.

Citations and references

• Authorities discussed: the U.S. Constitution's Supremacy Clause and Washington Constitution article 11, section 11.

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/authority-county-require-federal-and-state-agencies-follow-county-policies-and

Original opinion text

Attorney General Christine Gregoire

COUNTIES - LAND USE REGULATIONS - ENVIRONMENTAL REGULATIONS - UNITED STATES - STATE AGENCIES - Authority of county to require federal and state agencies to follow county policies and procedures

1. A county lacks authority to require any agency of the United States to follow county policies or procedures in land use decisions or environmental regulation, except where Congress has specifically directed federal agencies to conform to local law.

2. A county lacks authority to require any agency of the State of Washington to follow county policies or procedures in land use or environmental regulation, except where state law, expressly or by necessary implication, requires state agencies to conform to county procedural or substantive requirements as to a particular agency decision.

July 29, 1994

HonorableEugene A. Prince
State Senator, District 9

102 Institutions Building, MS 40409

Olympia, WA 98504-0409

Cite as: AGO 1994 No. 10

Dear Senator Prince:

By letter previously acknowledged, you have requested our opinion on two questions, as follows:

1. Does a county in Washington have legal authority to impose procedural or substantive legal requirements on the United States and its agencies in the area of land use or environmental regulation?

2. Does a county in Washington have authority to impose procedural or substantive legal requirements on agencies of the State of Washington in the area of land use or environmental regulation?

We answer both of your questions in the negative, with certain qualifications as noted in our analysis.

BACKGROUND

Your questions present general issues regarding the legislative authority of local governments in relation to federal and state governments. Your letter observes that several counties in Washington are considering the adoption of local ordinances asserting county authority over federal and state land use and environmental decisions.[1]

Although we do not focus our analysis upon the validity of a particular example, the Walla Walla County ordinance you referred to in your letter provides useful context. This opinion begins with a brief summary of that ordinance in order to illustrate the issues presented. Conclusions as to this specific ordinance are not necessary in order to respond to your questions, however.

On December 28, 1993, the Walla Walla County Commissioners adopted Ordinance No. 219, which is codified as chapter 19.04 of the Walla Walla County Code ("WWCC").[2] This ordinance establishes detailed procedural and substantive requirements on the part of federal and state agencies in regulating land use and natural resources concerns. The county asserts control over the substance and process underlying "any proposal, policy, regulation, rule, consideration, finding, study, or gathering or review of data that may lead to any substantive rule, regulation or administrative action or determination". WWCC 19.04.040.

The ordinance requires federal and state agencies to consult with the county according to procedures determined by the county. Federal and state agencies are required to assess the specific impacts of any land use or environmental regulation on Walla Walla County, to propose alternatives and adopt mitigating measures. The ordinance prohibits federal and state agencies from making certain determinations in environmental impact statements without consulting the county. WWCC 19.04.050.

Those general guidelines are followed by a series of sections governing specific subject areas. These sections impose limitations on federal and state regulatory authority in the areas of "agriculture and livestock" (WWCC 19.04.060), "timber and wood products" (WWCC 19.04.070), "cultural resources, recreation, wildlife and wilderness" (WWCC 19.04.080), "land acquisition and disposition" (WWCC 19.04.090), "water resources" (WWCC 19.04.100), "clean air" (WWCC 19.04.110), "mining and minerals" (WWCC 19.04.120), and "private property rights" (WWCC 19.04.130).

The ordinance requires federal and state agencies to consider county-specific impacts of regulations, even if those regulations are nationwide or statewide in application. Federal and state agencies must consult and coordinate with the county in specific detailed ways prior to taking a wide variety of actions that are subject to the ordinance. Finally, the county asserts preemptive jurisdiction over various subjects to the purported exclusion of federal and state regulations.[3]

ANALYSIS

Question 1:

Does a county in Washington have legal authority to impose procedural or substantive legal requirements on the United States and its agencies in the area of land use or environmental regulation?

The Constitution of the United States enumerates certain powers which are granted to the United States. See, e.g., U.S. Const. art. 1, § 8. The U.S. Constitution also establishes the supremacy of federal law within the ambit of its authority. U.S. Const. art. 6, cl. 2. "A corollary to this principle is that the activities of the Federal Government are free from regulation by any state" unless Congress has authorized regulation of federal instrumentalities by the state. Mayo v. United States, 319 U.S. 441, 445, 87 L. Ed. 1504, 63 S. Ct. 1137 (1943). Counties, of course, are legal subdivisions of the state. Const. art. 11, § 1. Unless Congress has specifically authorized state or local regulation, the police power of states and counties does not extend to imposing procedural and substantive requirements upon the federal government. Hancock v. Train, 426 U.S. 167, 178, 48 L. Ed. 2d 555, 96 S. Ct. 2006 (1976).

The United States Supreme Court has explained that, "[w]hen the Federal Government acts within the authority it possesses under the Constitution, it is empowered to pre-empt state laws to the extent it is believed that such action is necessary to achieve its purposes". New York v. FCC, 486 U.S. 57, 63, 100 L. Ed. 2d 48, 108 S. Ct. 1637 (1988). This supremacy extends to both acts of Congress and to federal administrative regulations validly promulgated to implement such legislation. Id. Provided, therefore, that the relevant federal agency acts pursuant to properly delegated authority, "[t]he statutorily authorized regulations of an agency will pre-empt any state or local law that conflicts with such regulations or frustrates the purposes thereof". Id. at 64.

The court's application of these principles to Arizona's claim that construction and operation of the Boulder Dam would violate state law is illustrative. Arizona v. California, 283 U.S. 423, 75 L. Ed. 1154, 51 S. Ct. 522 (1931). Arizona contended that the project would violate the laws of Arizona regarding dam construction and subsequent appropriation of water rights. Id. at 449. The court rejected Arizona's position and held: "The United States may perform its functions without conforming to the police regulations of a state." Id. at 451. See alsoUnited States v. Montana, 699 F. Supp. 835 (D. Mont. 1988) (holding that Montana may not apply its state building code to federal construction projects).[4] Accord AGO 1978 No. 6.

Authority that may not be found in a county's police power alone may nevertheless be derived from specific federal legislation. The federal government may be made subject to state laws if Congress so provides, but not otherwise. United States v. Idaho, 508 U.S. ___, 123 L. Ed. 2d 563, 571, 113 S. Ct. ___ (1993) (construing the McCarran Amendment, by which Congress allowed the states to join the United States as a defendant in comprehensive water right adjudications). In such instances, however, the terms of the federal statutes, and not a county ordinance, would define the rights and obligations of the various governmental units. A county may not add to its rights as against the federal government, nor impose obligations upon the United States, that are not specifically authorized by federal statute. Mayo, 319 U.S. at 447-48.

We therefore answer your first question in the negative, with the caveat that counties may, consistent with federal and state law, subject the federal government to such local rules as Congress may specifically allow.

Question 2:

Does a county in Washington have authority to impose procedural or substantive legal requirements on agencies of the state of Washington in the area of land use or environmental regulation?

The analysis of this question depends upon principles of the scope of county authority as set forth in our state constitution. The Washington Constitution provides counties the authority to enact "such local police, sanitary and other regulations as are not in conflict with general laws". Const. art. 11, § 11. "The county's police power is as extensive as that of the Legislature, so long as the subject matter is local and the regulation does not conflict with general laws." Snohomish Cy. v. State, 97 Wn. 2d 646, 649, 648 P.2d 430 (1982).

Our state supreme court has stated that "the plenary police power in regulatory matters accorded municipalities by Const. Art. 11, § 11, ceases when the state enacts a general law upon the particular subject, unless there is room for concurrent jurisdiction". Lenci v. Seattle, 63 Wn.2d 664, 669, 388 P.2d 926 (1964). The court further defined the standard:

Whether there be room for the exercise of concurrent jurisdiction in a given instance necessarily depends upon the legislative intent to be derived from an analysis of the statute involved. If the legislature is silent as to its intent to occupy a given field, resort must be had to the purposes of the legislative enactment and to the facts and circumstances upon which the enactment was intended to operate. If, however, the legislature affirmatively expresses its intent, either to occupy the field or to accord concurrent jurisdiction, there is no room for doubt.

Id.at 669-70 (citations omitted).

As we have previously advised:

The state may preempt by implication if the Legislature has created a single uniform standard intended for statewide application, or if the Legislature has created so comprehensive a legislative framework in a particular area that there is no room left for concurrent jurisdiction.

AGO 1993 No. 5, at 6 (citingSeattle v. Shin, 50 Wn. App. 218, 221-22, 748 P.2d 643 (1988)).

Further, an ordinance is invalid if it conflicts with a state statute. Snohomish Cy. v. State, 97 Wn.2d at 649. In that situation, "Const. art. 11, § 11 requires that the local regulation yield to the general laws of the state". Id. at 650. An ordinance conflicts with a state statute if it permits or licenses that which the statute forbids, or alternatively if it forbids that which the statute permits. Id. at 649 (citingLenci, 63 Wn.2d at 669); AGO 1993 No. 5, at 6.

An effort by a county to dictate to a state agency the procedure or outcome of a regulatory process would, by its nature, conflict with the state statute that delegates authority to the agency. State agencies act pursuant to specific statutory authority granted by the Legislature. "An agency has only those powers which are expressly granted or which are necessarily implied from statutory grants of authority." Municipality of Metro. Seattle v. Public Empl. Relations Comm'n, 118 Wn.2d 621, 633, 826 P.2d 158 (1992). Agency authority extends to the adoption of rules to "fill in the gaps" in statutes if necessary to effectuate the statutory scheme, and the rule is reasonably consistent with the statute being implemented. Green River Comm'ty College v. Higher Educ. Personnel Bd., 95 Wn.2d 108, 112, 622 P.2d 826 (1980). Given the deference accorded an agency's construction of its authorizing statute,id. at 117-18, a county's determination upon a different construction or action would conflict with the statewide application of Washington laws. Any effort by a county to alter the procedures or substance of that action would necessarily conflict with the statute granting authority to the state agency. A county's assertion of authority to decide a matter would conflict with the statute vesting that authority in the state agency. It therefore follows that a county ordinance that imposes procedural and substantive requirements upon a state agency, acting in a regulatory capacity, would conflict with the state statute under which the agency acts.[5]

This conclusion must be tempered by the caveat that the Legislature may, if it chooses, delegate decisionmaking authority to the counties. As noted above, the touchstone for the analysis of a particular county provision would be the legislative intent governing that subject area. Snohomish Cy. v. State, 97 Wn.2d at 649. It is therefore possible that in some specific subject areas, counties may identify state statutes which either authorize or preserve concurrent county jurisdiction. In such situations, however, the scope of county authority would depend upon the state legislation and not upon the independent powers of the county.

Although the analysis of your second question turns upon rather different principles than those raised by your first question, our answer is similar. As a general proposition, a county ordinance seeking to impose procedural or substantive requirements upon state agencies engaged in a regulatory process would conflict with the state statutes authorizing the agency action. Any decisional authority delegated to or remaining in the counties would be governed by the state legislation, and not the county ordinance. A county may not add to its rights as against the state, nor impose obligations upon state agencies that are inconsistent with statute.

We trust that this opinion will be of assistance to you.

Very truly yours,

CHRISTINE O. GREGOIRE

Attorney General

JEFFREY T. EVEN

Assistant Attorney General

:aj

[1]As your letter notes, these are sometimes referred to as "Catron County Ordinances", after the New Mexico county that adopted the prototype. The Attorney General of New Mexico, in a formal opinion issued April 18, 1994, has concluded that various ordinances of this type adopted by a number of New Mexico counties are of no legal effect. Op. Att'y Gen. No. 94-01 (N.M. 1994). While we reach a similar conclusion, and find the reasoning of our sister state helpful in doing so, our analysis differs. The New Mexico ordinances were characterized as zoning ordinances,id. at 3, while your questions instead concern the authority of counties to impose requirements upon federal and state regulatory decisions. Application of local zoning ordinances to state facilities may present different issues than those considered in this opinion. SeeEverett v. Snohomish Cy., 112 Wn.2d 433, 440-41, 772 P.2d 992 (1989).

[2]The Commissioners later adopted a resolution setting forth interpretive principles to govern enforcement of the ordinance. Resolution No. 94-170. That resolution would appear to disavow any intention to enforce the ordinance independent of specific state or federal statutes.

[3]As examples, the ordinance prohibits designation of any species as threatened or endangered except based upon county-specific data. WWCC 19.04.080(C). It limits the authority of federal and state agencies to make any decisions about wetlands designation, management of river flows (including out-of-county sources of water flowing into the county), and irrigation, except in compliance with county water use plans. WWCC 19.04.100. Federal and state agencies are prohibited from acquiring water rights in the county for any purpose without first complying with the ordinance. Id.

[4]We do not read the cited cases as turning upon any issues related to state jurisdiction over federal enclaves. Cases such asNew York v. FCC andArizona v. California did not involve federal enclaves. The focus is rather the county's claim of control over procedural and substantive aspects of federal regulatory activities.

[5]Additionally, it is important to recall that local governments may not exercise their police powers outside their boundaries. Wilson v. Mountlake Terrace, 69 Wn.2d 148, 152, 417 P.2d 632 (1966); Petstel, Inc. v. County of King, 77 Wn.2d 144, 159, 459 P.2d 937 (1969). Therefore, counties lack the inherent authority to determine the content of statewide regulation, or to require consultation to that end.