Opinion No. Oag 30-77, (1977) ( 1977 )

PATRICK H. STIEHM, District Attorney, Washburn County

Your predecessor asked whether sec. 28.11 (3)(c), Stats., allows a county board to "exchange" 80 acres of isolated county forest land for 40 privately-owned acres surrounded by other county forest land, along with $6,000 cash as added consideration.

The term "exchange" signifies a transaction in which the parties give each other things of approximately equal character or value, each as consideration for the other, but in which neither offering consists wholly or in substantial part of money.Black's Law Dictionary, 4th Edition. See also, Lang v. Fuller,21 Wis. 122 (1866); Topzant v. Koshe, 252 Wis. 585, 9 N.W.2d 136 (1943). Thus, the proposed transaction described in your letter may be more aptly characterized as an "exchange" of 40 acres for 40 acres, coupled with a "sale" of another 40 acres for money.

Section 28.11 (3)(c) authorizes the exchange of "other county-owned lands" for the purpose of consolidating and blocking county forest holdings. This is the only proper purpose for such exchange. 40 OAG 57, 58 (1951). However, I read the power to exchange to be limited to non-forest lands. This is based upon the use of "other" to describe those county-owned lands subject to exchange. The term "other county-owned land" is not synonymous with "county forest land." While all land in a county forest is county-owned land, all county-owned land is not in county forest status. Section 28.11 (3) is at least ambiguous, and I believe the ambiguity should be resolved in favor of the legislative scheme to preserve county forest land or at least subject its withdrawal to the scrutiny of the public and the Department of Natural Resources.

Hence, before the county board either exchanges the first portion or "sells" the second portion of the county forest acreage, it first must withdraw the lands from the county forest under sec. 28.11 (11), Stats. The terms of that section evince a strong legislative purpose to discourage the withdrawal of lands from the county forest program, although once withdrawn under sec. 28.11 (11), they are subject to sale under sec. 59.07 (1) (b), or exchange under sec. 28.11 (3), Stats.

In conclusion, I agree with you that the proposed transaction as you have described it is probably not within the county board's power unless the lands are properly withdrawn under sec.28.11 (11), Stats.

BCL:LMC