Washington counties can't use eminent domain power to rehabilitate salmon habitat

By Brenda Molner
August 15, 2007

Yesterday in Cowlitz County v. Martin, the Washington Court of Appeals, Division Two, held that Washington's Salmon Recovery Act ("SRA"), RCW 77.85 et seq., does not authorize the State or its entities to condemn private property for salmon habitat restoration.  The Court not only found there was nothing in the SRA granting a county, city or tribal government authority to condemn private property, but that there was significant indication to the contrary in the statute.

The Court also found the condemnation could not proceed under RCW 8.08 et seq., the statute that confers the power of eminent domain to Washington counties.  Following the principal that preference should give given to a more specific and more recent statute that addresses the same issue as an older, broader statute, the Court found the SRA covered the issue of salmon fish passage restoration and protection and that the Legislature clearly elected not to grant eminent domain power to protect this public interest.

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