Can a Washington irrigation district sign a contract that lets it be on the hook for the federal Bureau of Reclamation's mistakes?

Plain-English summary

Then-Attorney General Bob Ferguson concluded that Washington irrigation districts had the broad statutory power to contract with the United States Bureau of Reclamation, but lacked the power to agree to indemnify the federal government in those contracts. Indemnification, he wrote, was not authority that could be implied; it had to be granted expressly by statute, and the irrigation code did not grant it.

The opinion built on a long line of Washington decisions limiting public agencies to expressly granted powers. Public agencies cannot indemnify others unless the legislature has said so, especially where the agency's treasury is the source of the indemnity. Two related sections of the irrigation code (RCW 87.48.010 and 87.03.015(4)) did contain express indemnity authority for narrow purposes (indemnifying the State of Washington, and assuming federal indebtedness), and the absence of any parallel power to indemnify the United States was meaningful.

The 2013 legislature drove the conclusion home by amending RCW 89.12.050(2) to provide that any contract purporting to indemnify the United States for damages caused by federal negligence "is not enforceable unless expressly authorized by state law." That amendment confirmed both the rule and that the legislature understood there was no general grant.

Currency note

This opinion was issued in 2013. 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

Q: Why can't an irrigation district just agree to indemnify the federal government if it wants to?
A: Because under Washington law, public agencies have only the powers the legislature gave them. Where the public treasury is on the line, "any doubt as to whether a power was granted to a municipal corporation . . . must be denied" (City of Tacoma v. Taxpayers of Tacoma, 108 Wn.2d 679, 692, 743 P.2d 793 (1987)). The Court of Appeals confirmed in Barendregt v. Walla Walla Sch. Dist. 140, 26 Wn. App. 246, 611 P.2d 1385 (1980), that broad contracting authority does not, by itself, include implied indemnity authority.

Q: But RCW 87.03.140 says an irrigation district can do "any and every lawful act necessary." Doesn't that include indemnifying the United States?
A: The AG read the broad-contracting language alongside RCW 87.03.475(1), which prohibits a district from incurring "no debt or liability in excess of the express provisions" of the reclamation act. That section narrowed RCW 87.03.140 in exactly this context: indemnity is a financial liability, and it has to be expressly authorized.

Q: The legislature did expressly authorize one kind of indemnity (RCW 87.48.010). What did it cover?
A: RCW 87.48.010 authorized irrigation districts to indemnify the State of Washington against any losses the state might suffer under a contract between the state and the United States relating to land settlement in the district. It is narrow: state losses, land settlement, that's it. The legislature also expressly let districts assume "as principal or guarantor" any indebtedness to the United States under federal reclamation laws on account of district lands (RCW 87.03.015(4)). Both of these expressio-unius examples cut against any implied general indemnity authority.

Q: What about the 2006 AG opinion that said cities could indemnify counties for criminal-justice contracts?
A: AGO 2006 No. 11 was a narrow exception for a specific statutory regime (the Interlocal Cooperation Act and RCW 39.34.180(2)), and depended on legislative history showing that the legislature had directed cities and counties to allocate criminal-justice costs between themselves. There was no parallel statutory structure or legislative history for irrigation districts and the federal Bureau of Reclamation. So 2006 No. 11 did not extend.

Q: What did the 2013 legislature say about indemnifying the federal government?
A: Right before this opinion issued, the legislature amended RCW 89.12.050(2) (Laws of 2013, ch. 177, § 13). That amendment said that any contract or agreement purporting to indemnify "against liability for damages caused by or resulting from the negligent acts or omissions of the United States" is not enforceable unless expressly authorized by state law. The Final Bill Report on Second Substitute H.B. 1416 made the no-implied-authority position even clearer. The opinion treated that amendment as confirming, not changing, prior law.

Q: What happens if a federal contract a district has signed already contains a broad indemnification clause?
A: The opinion did not directly resolve enforceability of pre-existing clauses. By its logic, an indemnity clause in a federal contract that the irrigation district had no statutory power to grant would be unenforceable to that extent. The 2013 amendment to RCW 89.12.050(2) made unenforceability explicit going forward.

Background and statutory framework

Irrigation districts in Washington are quasi-municipal corporations created under RCW Title 87. Like other public agencies, they derive their powers from statute, plus those that are necessarily implied or essential to their declared purposes (Mun. of Metro. Seattle v. Amalgamated Transit Union, 118 Wn.2d 639, 826 P.2d 167 (1992)). The default rule is restrictive: doubts get resolved against the existence of the power.

The cluster of statutes the opinion relied on:
- RCW 87.03.140 grants broad contracting authority, including with the United States, to acquire water supplies and operate works under the federal and state reclamation acts.
- RCW 87.03.475(1) caps liability: "no debt or liability in excess of the express provisions" of the state reclamation act.
- RCW 87.48.010 expressly authorizes indemnity but only to the State of Washington under land-settlement contracts.
- RCW 87.03.015(4) expressly authorizes assumption of federal indebtedness as principal or guarantor.
- RCW 89.12.050(2) (as amended in 2013) provides that purported indemnity of the United States is unenforceable absent express state authorization.

The AG also cited a 1923 case, State ex rel. Rice v. Bell, 124 Wash. 647, 215 P. 326 (1923), applying the predecessor of RCW 87.03.475(1) for the same proposition: in the absence of express authorization, no such authority will be implied.

Citations and references

Statutes:
- RCW 87.03.140, irrigation district contracting authority
- RCW 87.03.475, limitation on debt or liability
- RCW 87.48.010, indemnity to the State of Washington
- RCW 87.03.015, assumption of indebtedness
- RCW 89.12.050, transfer of federal reclamation projects (2013 amendment)
- Laws of 2013, ch. 177, § 13

Cases:
- Matthews v. Wenatchee Heights Water Co., 92 Wn. App. 541, 963 P.2d 958 (1998), Washington Court of Appeals, irrigation districts as quasi-municipal corporations
- Mun. of Metro. Seattle v. Amalgamated Transit Union, 118 Wn.2d 639, 826 P.2d 167 (1992), Washington Supreme Court, agencies limited to express powers
- City of Tacoma v. Taxpayers of Tacoma, 108 Wn.2d 679, 743 P.2d 793 (1987), Washington Supreme Court, doubts resolved against the power
- Barendregt v. Walla Walla Sch. Dist. 140, 26 Wn. App. 246, 611 P.2d 1385 (1980), Washington Court of Appeals, broad contracting authority does not imply indemnity authority
- Paopao v. Dep't of Soc. & Health Servs., 145 Wn. App. 40, 185 P.3d 640 (2008), Washington Court of Appeals, indemnity authority and the public treasury
- State ex rel. Rice v. Bell, 124 Wash. 647, 215 P. 326 (1923), Washington Supreme Court, predecessor of RCW 87.03.475

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/authority-irrigation-districts-indemnify-united-states

Original opinion text

Attorney General Bob Ferguson

DISTRICT, IRRIGATION—CONTRACTS—STATUTORY AUTHORITY—PUBLIC FUNDS —Authority Of Irrigation Districts To Indemnify The United States

Irrigation districts have the statutory authority to enter into contracts with the United States Bureau of Reclamation, but lack the statutory authority to indemnify the United States through such contracts.

August 20, 2013

The Honorable Mark Schoesler
State Senator, District 9
PO Box 40409
Olympia, WA 98504-0409

Cite As:
AGO 2013 No. 2

Dear Senator Schoesler:

By letter previously acknowledged, you have requested our opinion on a question we paraphrase as follows:

Under RCW 87.03.140, may an irrigation district enter into a contract with the United States Bureau of Reclamation in which the irrigation district agrees to indemnify the United States?

BRIEF ANSWER

No. Although irrigation districts have broad authority to contract with the United States, they do not have statutory authority to indemnify the United States Bureau of Reclamation. In the absence of express statutory authority to incur the financial risk of indemnification, RCW 87.03.475(1) precludes implication of such authority.

ANALYSIS

Irrigation districts are quasi-municipal corporations formed under RCW Title 87. Matthews v. Wenatchee Heights Water Co., 92 Wn. App. 541, 547-48, 963 P.2d 958 (1998). As a public agency, an irrigation district is limited to the powers expressly granted by statute "and powers which are 'necessarily or fairly implied in or incident to the powers expressly granted, and also those essential to the declared objects and purposes of the corporation.'" Mun. of Metro. Seattle v. Amalgamated Transit Union, 118 Wn.2d 639, 643, 826 P.2d 167 (1992) (quoting Port of Seattle v. Utils. & Transp. Comm'n, 92 Wn.2d 789, 794-95, 597 P.2d 383 (1979)); RCW 87.03.005. If there is any doubt as to whether a power was granted to a municipal

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corporation, it must be denied. City of Tacoma v. Taxpayers of Tacoma, 108 Wn.2d 679, 692, 743 P.2d 793 (1987).

In considering the scope of agency authority, the courts have held that agencies lack the power to indemnify unless the authority is expressly or impliedly granted by statute. Barendregt v. Walla Walla Sch. Dist. 140, 26 Wn. App. 246, 249, 611 P.2d 1385, review denied, 94 Wn.2d 1005 (1980). This is particularly true "'where the public treasury will be directly affected.'" Paopao v. Dep't of Soc. & Health Servs., 145 Wn. App. 40, 51, 185 P.3d 640 (2008) (quoting State ex rel. Bain v. Clallam Cnty. Bd. of Commr's, 77 Wn.2d 542, 548, 463 P.2d 617 (1970)). For example, in Barendregt, the Court of Appeals considered whether the Washington Director of Institutions' statutory authority to enter agreements with school districts "'at such times and under such circumstances and with such terms and conditions as may be deemed appropriate,'" allowed the Director to enter an agreement indemnifying a school district. Id. at 249 (quoting RCW 72.01.450). Noting that agencies lack the power to indemnify unless such authority is expressly or impliedly granted by statute, the court held that the broad authority to enter educational agreements did not provide commensurate authority to indemnify a school district. Id. at 250.

As with the statute addressed in Barendregt, irrigation districts have broad statutory authority to "enter into contracts for a water supply . . . and do any and every lawful act necessary to be done in order to carry out the purposes" of the state reclamation act. RCW 87.03.140. Under RCW 87.03.140, the board of an irrigation district may enter into "any obligation or contract with the United States" for construction, improvement, sale, operation, or maintenance of works for delivery of water "under the provisions of the state reclamation act, or under the provisions of the federal reclamation act, and all amendments or extensions thereof, and the rules and regulations established thereunder[.]" RCW 87.03.140. The statute further provides that an irrigation board may contract with the United States for a water supply or for general reclamation purposes under "any act of congress for reclamation purposes heretofore or hereafter enacted . . . or for the assumption of the control and management of the works[.]" RCW 87.03.140. Since the federal Bureau of Reclamation is an agency of the United States government, operating under the Department of the Interior, the power to contract with the United States includes authority to contract with the Bureau of Reclamation. 43 U.S.C. § 373a.

Although RCW 87.03.140 provides irrigation districts with broad authority to contract with the United States, it does not state that irrigation districts may assume the financial risk of indemnifying the United States for injuries or damages for which the United States would otherwise be liable. Interpretation of an irrigation district's authority is further limited by RCW 87.03.475(1), which provides that an irrigation district "shall incur no debt or liability in excess of the express provisions" of the state reclamation act. In determining what statutory language the legislature intended to be sufficient to constitute an express grant of such authority, it is helpful to consider related statutes. Dep't of Ecology v. Campbell & Gwinn, L.L.C., 146 Wn.2d 1, 11, 43 P.3d 4 (2002). RCW 87.48.010 states that an irrigation district may "indemnify

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the state of Washington against any and all losses and damages which the state of Washington may suffer, under any contract between the state of Washington and the United States relating to land settlement in said district." RCW 87.03.015(4) provides that irrigation districts may "assume, as principal or guarantor, any indebtedness to the United States under the federal reclamation laws, on account of district lands." Both of these statutes provide express authority to incur debt or liability. In contrast, although RCW 87.03.140 contains a broad grant of authority, it does not expressly state that an irrigation district may indemnify the United States or the Bureau of Reclamation.

As you noted in your request letter, the Attorney General has previously stated that, in the absence of express statutory authority, a municipal corporation may have implied authority to enter an indemnity agreement. AGO 2006 No. 11. In that opinion, we were asked to address the authority of a city to indemnify a county when entering an agreement to supervise criminal offenders. AGO 2006 No. 11, at 5. The legislature has provided authority in the Interlocal Cooperation Act for counties and cities to enter contracts or interlocal agreements for criminal justice services, and directed that the contracts consider the costs and revenue incident to such services. RCW 39.34.180(2). Our opinion read RCW 39.34.180(2) in conjunction with additional legislation and legislative history addressing the need to shift the fiscal impact of criminal justice costs between cities and counties and found that cities have authority to include indemnification for tort liability in contracts with a county. Based on this specific statutory structure and legislative history, the 2006 opinion reached a narrow conclusion that differs from the standard rule reflected in Barendregt.

A similar basis for inferring implied authority to indemnify is lacking with regard to irrigation districts. There is no legislative history and there are no related statutes indicating an intention to permit irrigation districts to indemnify the Bureau of Reclamation. To the contrary, the most recent legislative intent is expressed in RCW 89.12.050(2). That statute provides that an irrigation district may enter a contract for the transfer of maintenance and operation of a federal reclamation project, but such a contract "does not impute to the district negligence for design or construction defects or deficiencies of the transferred works." RCW 89.12.050(2). The legislature amended the statute in 2013 to provide that any contract or agreement purporting to indemnify against liability for damages caused by or resulting from the negligent acts or omissions of the United States "is not enforceable unless expressly authorized by state law." Laws of 2013, ch. 177, § 13(2). The Final Bill Report regarding the amending legislation explains that, "absent express authorization in state law," any contract between an irrigation district and the United States that purports to indemnify liability for damages caused by the federal government is unenforceable. Final Bill Report on Second Substitute H.B. 1416, 63d Leg., Reg. Sess., at 5 (Wash. 2013). Although this statement relates to RCW Title 89, it strongly counsels against reading into RCW 87.03.140 an implied authority to indemnify. Moreover, our 2006 analysis of city authority was not limited by the application of a statute akin

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to RCW 87.03.475(1), which prohibits irrigation districts from incurring liability in excess of the express provisions of the state reclamation act. See State ex rel. Rice v. Bell, 124 Wash. 647, 650‑51, 215 P. 326 (1923) (applying the predecessor to RCW 87.03.475(1) and holding that "in the absence of express statutory authorization, no such authority will be implied").

For these reasons, we conclude that irrigation districts have neither express statutory authority nor implied authority to enter contracts indemnifying the Bureau of Reclamation.

Sincerely,

ROBERT W. FERGUSON
Attorney General

Anne E. Egeler
Deputy Solicitor General