Correction. More Honor. Environmental Lawsuit Settlement Tactics.

Last Thursday, I went to a forum on water, hosted by Doug Erickson and Vincent Buys. It was an upbeat rollout of a solution for some of the water woes of Whatcom County.

Simply said, constraints on water use from the Nooksack River Basin, driven by environmentally clad activism, legislation, and bureaucratic oversight, have risen to the level that local cities, tribes, industry and farms are being turned into bitter rivals. And, there seems to be no end in sight.

The rotating door of local and state environmentalist activist groups keeps putting fresh, enthusiastic, activists into the fray, attaching to, penetrating and wearing down local business and government leaders. Grant driven, environmentally clad, social reform pays well in Whatcom County.

The forum last Thursday had a sense of fresh air. A very high volume water flow, not hydrologically connected to the Nooksack Basin has been appropriated by the Birch Bay/Blaine water authorities. Excess water from these deep wells, added to the reclamation water from Blaine’s state of the art septic treatment system is being proposed as a solution to supplement the twelve or so “distressed” rural water systems located around and north of Lynden. For now, this water is beyond the reach of the environmentalists.

Time will tell how this plays.

Last Sunday, a friend sent me a link to a Growth Management Hearings Board Case 13-2-0022,  a very recent settlement extension. My friend said this settlement extension was for a citizen lawsuit against Whatcom County over water management, filed with the Growth Management Hearings Board. They said it showed settlement negotiations were ongoing between Whatcom County officials and the appellants, contrary to, and undermining Whatcom County Council’s decision to continue funding the appeal of the GMHB ruling on Whatcom County non-compliance in ground water management in Skagit and/or Thurston County Superior Court regarding this lawsuit.

After being challenged by another friend on a mix up of GMHB case numbers, I found the first information incorrect, and have rewritten this article to reflect these facts. The settlement extension is for Case 13-2-0022, not for Case 12-2-0013. No excuses for my error—please accept my apology and corrections.

The primary question I asked earlier still stands. Can Whatcom County Council members resist the request by the Futurewise supported appellants Jean Melious, David Stalheim, Laura Leigh Brakke and Eric Hirst to negotiate a settlement rather than undergoing the more rigorous scrutiny and final precedents of Superior Court? What if the GMHB was found out of compliance in their non-compliance ruling?

Who on County Council would want to negotiate a settlement with these folks? Carl Wiemer? Rud Browne? Ken Mann? Sam Crawford? Pete Kremen? Barry Buchanan? Barbara Brenner? Did not the County Council vote to continue funding for the appeal of this GMHB ruling to a higher court?

Why would a settlement not be better than a ruling? Why not kiss up and avoid the legal burdens?

“A typical way these policies get implemented is for environmental interest groups to sue a government agency under either the National Environmental Policy Act (NEPA) or the Endangered Species Act (ESA), and for the agency then to settle the lawsuit in the interest group’s favor.”

“Sometimes—as in a 2008 lawsuit filed against the U.S. Forest Service by three environmental groups to prevent oil, gas, and mineral extraction in Pennsylvania—the government not only settles the lawsuit but also pays the interest groups for their complaints (in that case paying out nearly $20,000)…”  - Sagebrush Rebellion Redivivus” by William Perry Pendley, Hillsdale College Imprimus, April 2014

Did not the Lummi Groundwater Management Lawsuit go to settlement several years ago, with the tribes coming out much bigger winners than they would have in a court ruling? Did not Washington State grant property rights not in law to the Lummis by refusing to complete the court adjudication? By going to settlement, did not Washington State leave private non-tribal land owners subject to tribal approval if they want to buy or sell their parcels? Is this not an effort to create a tribal reservation by fiat, contrary to fee title law?

Settlement Tactics 101.

One. Raise environmental concerns through the media / education / smart growth echo chamber. Fully research environmental laws and tort options. Watch for an alignment of sympathetic bureaucrats, judges and elected officials.

Two. Bring an egregious lawsuit that has little chance of standing up in final courts. Request benchmark claims that make all ears ring and eyes bug open.

Three. Wait for lawsuit fatigue to set in.

Four. Offer to drop the lawsuit if a settlement with some teeny, weeny concessions can be made.

Five. Negotiate a settlement behind closed doors, in extended executive sessions, getting as much as possible in the process. Make those giving up things feel guilty for existing. Rely on your media echo chamber to cover your back. It is of utmost important to destroy the morale of your opponents. Resource use changes come after the social fabric is melted and reformed with “social equity”.

Six. Retire into the shadows

Seven. Do it again, in another place, at another time, with another issue. Activist lawsuits and court rulings happen all the time, only usually at a state or federal level, far removed from our local sensibilities.

In American Representative Republican Democracy, elections have consequences. County Council may legally flaunt open public meeting laws with back room executive sessions to deal with lawsuit driven issues. What a gift between environmental comrades. And what is the test for the rest of us?

Honor. Virtue. Should collusive lawsuit tactics draw dirt in reply? In the face of evil, render what?

What was the major foundation of American Democracy until post civil war anti trust legalese was needed, leading to Constitutional Societies drumming up the Constitution and the Bill of Rights in the 1930’s?

Rule of honor. A mans word was his guarantee.

Rule of honor. Elected officials were accorded more honor, and generally served with honor.

Rule of honor. Virtue, not religion, not money had the highest respect.

Rule of honor. More honor. Elections have consequences. Elections place officials on stage for service, for praise or shame. In the end, what counts more? Water? Salmon? Shell fish? Crops? Manufactured goods? Drinking water? Children?

Whose children? Who will the next generation honor?

Here’s the rub. Children will honor the adults who deal with honor. Can elected officials rule with honor? Yes. Is this an honorable lawsuit? Doubtful. Was a pressurized settlement always the end game? Likely. ReSources has proven, locally, that small lawsuits do get cash settlements rather than run up larger legal fees. And, ReSources and Futurewise have the hot line to County Council right now, in this big stakes lawsuit. Is this not so?

Honor? More honor? County Council, Whatcom County is watching.

The Washington GMHB enlarges to 150 days the settlement period for a citizen lawsuit against Whatcom County packing house rules.

The  Futurewise et al lawsuit against Whatcom County over groundwater management policies.

How environmental activists sue and settle for maximum gains

Supreme Court ruling protects efforts to designate all childrenas wards of the state and strike down parental oversight rights.

Cracking Open Closed Doors

Last night, participants and observers at the WRIA 1 Planning Unit meeting were given a teller size window peep at what has happened in Whatcom County ground and surface water actions between 2009 and 2013.  A brief, tiny postage stamp of a report. But, what a glorious flash of information!

The hot question in my mind this morning is what do the “dear leaders” want? It is obvious that the processes of water management take time, dedication, negotiation, money, skill, information… the list of costs and qualifications is big. Water rights and usage touches everyone, all the time. Do local leaders want to draw qualified local citizens in, to increase the “bench strength” of the local public policy team? Or do they prefer to let citizens snooze on while opportunistic agents feed on the public purse?

In spite of the civil dialogue of last night, the Planning Unit appears to be a foster child in the eyes of the most vested interests. It took threats of a lawsuit to force the County Executive’s office to even consider the role of the planning unit. The setting of legal fractures poked through briefly last night, as reference was made to the working out of PU procedural suggestions between the lawyers of the Whatcom Water Districts Caucus and the Whatcom County Executive Office.

What is my point? The reconvening of the Planning Unit has required threat of legal force. The public policy leaders of water management in Whatcom County have been dragged kicking to the table. If their work is so beyond question, why the secret executive sessions? Oaths of confidentiality? Failed spin campaigns like the WIT process that blew up recently? If the Vibrant Futures of Uniting Creatives is such a juicy piece of toast for public well being and input, why has that model not been applied in water management?

Local water management is a huge chess game, and stake holder outcomes could be spoiled by public pervue. In the public comment period last night, Greg Brown reported on his attendance at a statewide meeting last week of representatives of 35+ WRIA boards in Washington State. What was the key concern of other WRIA boards? A flood of regulations emanating from state level departments that is overwhelming local water public policy boards. Wake up, Whatcom County! There are state departments that want to gain and maintain control of local water policy. The PUD and the tribes may seek local oversight and jurisdiction, but the Puget Sound Partnership of the Governor’s Office, and the State Department of Ecology are pushing very hard behind the veil of media silence here.

The child of favor in Whatcom water management has been the Joint Board. Last night, the representative PUD District 1, Stephen Jilks, made it clear that the PUD does not want to become just an equal member of a Planning Unit with teeth. He inferred that the it was the Joint Board that created the PU, and that the PU is only advisory to Whatcom County Council. PUD District 1 has had a favored seat in the Joint Board, and is up to speed on everything that has transpired behind the closed doors of the last four years of water management activity. Are they willing to let other caucuses join them at the table?

Behind closed doors. Last night we heard a very, very brief recounting of how the water management projects of today flowed from the Bertrand Creek and the Nooksack Middle Fork pilot projects that were the last sighting of the PU open process in 2009. Emphasized was the frustration of the 2009 PU participants as closed door negotiations sealed by oaths of confidentiality burrowed on in 2009.

In conclusion: what goes into minutes of public meetings is only part of the record. The speeches at the meetings may be encapsulated nicely in minutes, but the attitudes in the faces and voice tones of the speakers and moderators are what is burned in the memories of the observers.

A sticky item last night was public input. Is the Planning Unit subject to the Open Public Meetings Act? Must there be a period for public comment? Claire Fogelsong of the City of Bellingham objected very intensely to public comment. Perry Eskridge, the political consultant for the Whatcom Realty Board objected less strenuously. What do they fear? A motion Perry made during the meeting was turned back. Roberts Rules of Order are not part of the consensus process. What is this consensus process? How really does it work? How can the procedural problems of 1999 – 2009 be avioded this time around? Could public comment help keep things on track?

The public comment period happened at the end. Claire Fogelsong (COB) and Greg Young (small cities) and Kasey Cykler (DOE) walked out just before public comment was approved. By design? I do not know. The tribes were absent. The Herald, the Tribune, and the Cascade Radio Group were absent. Stephen Jilks stayed to listen. There is hope. There is also a long road ahead to regaining public consensus.

The body language is speaking. What do you hear? Wake up, Whatcom County. It is your water. It may not be your water for long. This PU process is one more chance for American citizens to do more than just memorize baseball scores.                           -- Submitted by John Kirk for Whatcom Works.

WRIA 1 Planning Unit Meeting – What’s In It For You?

Control water (and property), and you control a people. The citizens of America have enjoyed extensive lifestyle and faith freedoms, made possible by foundational freedoms in managing water and property since 1776. All these freedoms are at huge risk today, thanks to a dedicated group of progressives who are reshaping public policy on water and land use.

In the last forty years, there has been a different, environmental only drumbeat. Industrialization has left a mixed legacy to our generation. Our generation hopes in technologies, yet at the same time fears the industrial and resource use processes that give them to us. Slipping quietly through these discussions is the spectre of communitarianism, the new socialist, group think, precautionary principle. (That should be another post). Stall all new development until the educated few control the unwashed many.

Whatcom County has two very diverse interest groups. There is a power struggle going on between them. The WRIA 1 planning unit is a prime example of this.

On the one hand are technocrats in public works and environmental agencies, many with considerable educational credentials. They live in world of grants and tax revenues, and are quite good at developing complicated mechanisms for achieving their ends, and using public sentiment to give themselves a unilateral playing field. They are water “managers”.

On the other hand are water users. Tribes. Fishermen. Farmers. Rural families. Small Whatcom cities. Most are not paid to deal with water management issues during work day hours. Some of these groups have put together caucuses to represent themselves. They are rough and ready, and usually kept out of the public eye unless it suits the media and the water managers to make a public example of them.

(Note that the media organs of Whatcom County sent no reporters to the first reconvened WRIA 1 Planning Unit meeting last month.)

The WRIA 1 RCW mandated process brings these two groups together.

A particular concern of the water users is being shut out of the decision making process by the water managers. An undetermined number of closed door meetings were held between 2009 and 2013, where water managers took actions that have raised a considerable pushback from the water users. The tribes were given special seats in the recent closed door meetings, even after they torpedoed aspects of the process right from the beginning in 1999. The tribes did not come to the first reconvened PU meeting last month.

Take some time to read the following two submittals for tonight’s water planning unit meeting. The city of Bellingham speaks for its residents. The water districts association speaks for a farther flung group of interests. Note the application of the RCW law (or lack thereof) in the two proposals.

My questions. Can the managers make a place at the table for the users? Will the managers try to run out the clock and budget of these first four meetings with procedural discussions? Should state (DOE) entities be given a full voting position? Should a statement limiting federal participation to ex officio positions be adopted? Come. Listen. Compare the reality with the RCW requirements. Speak if you have a chance.

See you tonight!

WRIA 1 First Meeting Minutes

10/16/13 - WRIA 1 Water Planning Unit
6:00 PM; Civic Center Building Garden Level Conference Room, 322 N. Commercial Street, Bellingham, WA 98226

City Of Bellingham On Voting Positions

Water Districts Caucus On Voting Positions

Water Districts Caucus On Voting Positions

WATER DISTRICTS CAUCUS COMMENTS

PLANNING UNIT REPRESENTATION AND PROCEDURE 

OCTOBER 15, 2013 

General Comments. The Water Districts Caucus reviewed Bellingham’s proposal on Planning Unit representation at our meeting on October 14, 2013. It would have been our preference to move the process forward without reviewing credentials, at least at this point, but are cooperating with the preference of the group to perform this assessment. With that disclaimer, we find Bellingham’s suggestions to be reasonable, on the whole, but do have a few comments and would like to place a few questions on the table.

Bellingham treats every member of the Planning Unit as a caucus, posits three types of such caucuses and proposes categorizing participants into those three categories. However, Bellingham, the PUD, the County and the Port are not caucuses – that is, groups of entities united by particular interests. They are specific local government entities that have been deemed sufficiently distinct to warrant direct representation on the Planning Unit. We agree with the process proposed for validating the representation of these entities.

The WRIA 1 Planning Unit caucuses consist of other local governments, certain local interests, and state and federal governments. As proposed, Category 2 would consists of caucuses of smaller local government units, state and federal governments and the Non-Municipal Water Systems.

Those local governments with caucus seats (Small Cities, Water Districts and Diking and Drainage Districts) have been created pursuant to enabling statutes and are headed by elected officials. Every one of the local government caucuses represents a relatively small number of entities, each having identical statutory powers. The 10 water districts in our caucus, for example, are organized under RCW 57 and headed by elected commissioners. These smaller local government entities were organized into caucuses for administrative convenience, in order to allow for a manageable Planning Unit meeting process. The inherent legitimacy of such entities, which represent voters and property owners pursuant to state law, is precisely equal to that of those local government entities having direct representation at the Planning Unit. We agree with the process proposed for validating the representation of local government caucuses as described under Category 2.

Non-Municipal Water Systems. The Non-Municipal Water Systems (i.e., water associations) are private business interests - not local governments. We understand Non-Municipal Water Systems Caucus represents a very large number – perhaps hundreds - of water associations. As such, we believe the Non-Municipal Water Systems Caucus should be subject to the process proposed for validating the representation of other interests under Category 3.

State. For several reasons, we question DOE’s participation as a full-fledged voting member of the Planning Unit. The Watershed Planning Act envisions a planning process driven primarily by local citizens and their governments, with participation from the tribes and a wide range of local water resource interests. 1 The role of the state in this process was to be mainly advisory and not directive:

 “If a planning unit requests technical assistance from a state agency as part of its planning activities under this chapter and the assistance is with regard to a subject matter over which the agency has jurisdiction, the state agency shall provide the technical assistance to the planning unit.” RCW 90.82.030(2),

“Each state agency with regulatory or other interests in the WRIA or multi-WRIA area to be planned shall assist the local citizens in the planning effort to the greatest extent practicable, recognizing any fiscal limitations. In providing such technical assistance and to facilitate representation on the planning unit, state agencies may organize and agree upon their representation on the planning unit. Such technical assistance must only be at the request of and to the extent desired by the planning unit conducting such planning. The number of state agency representatives on the planning unit shall be determined by the initiating governments in consultation with the governor's office.” RCW 90.82.060(7).

The latter citation contemplates that non-state members of the Planning Unit will decide on state participation. We believe that DOE has a valuable role to play in coordinating presentation of technical information from state agencies to the Planning Unit, but that continuing to vote on the same basis as local governments will prove problematic.

The Watershed Planning Act states:

“The planning unit shall not add an element to its watershed plan that creates an obligation unless each of the governments to be obligated has at least one representative on the planning unit and the respective members appointed to represent those governments agree to adding the element that creates the obligation. A member's agreeing to add an element shall be evidenced by a recorded vote of all members of the planning unit in which the members record support for adding the element.” RCW 90.82.130(3).

This provision applies to the narrow question of obligations created in the proposed plan. It does not require DOE to vote on all aspects of the local plan. Placing DOE in the position to frame recommendations for its own consideration is illogical and inconsistent with the intent and design of RCW 90.82.

This inconsistency is especially troublesome in connection with modifying instream flow rules, an activity included in the scope of work for WRIA 1. The Watershed Planning Act provides that 3 instream flow rules shall not be modified “…unless the members of the local governments and tribes on the planning unit by a recorded unanimous vote request the department to modify those flows…” RCW 90.82.080(1)(a)(i).² At that point, it would seem to be the intent that DOE would undertake rule-making. RCW 90.82.080(1)(b). DOE’s participation in formulating proposed minimum stream flow rules as a full voting member of the Planning Unit prior to rule-making, however, could invalidate the rules under the Administrative Procedures Act (RCW 34.05).

We believe the best procedure would be for the non-state members of the Planning Unit to define the state’s technical assistance role and for the state’s voting to be confined to those instances where obligations would be imposed.

Federal. We could find no grounds for including the federal government as a voting member of the WRIA 1 Planning Unit. We recommend the federal government be invited to participate ex officio.

Agriculture. Since the Planning Unit was first formed in 1999, two irrigation districts have been formed. We believe these are governmental entities under RCW 87 entitled to representation on the Planning Unit as an additional local government caucus. Because these districts are defined territorially, we propose that the Agricultural Interest caucus should remain and be filled by interests not included under the irrigation districts.

Procedure. The procedural matter we would like to point out is in connection with a request to DOE to modify instream flow rules, as noted above under RCW 90.82.080(1)(a)(i). This situation would require a recorded unanimous vote of only the local government members of the planning unit (since the tribes are not participating at the Planning Unit). Not only does this procedure exclude interests and state government from voting, it may prevent caucus representation for that particular question. This should be reflected in the Process and Procedural Agreement.

1 The statute provides that the tribes will be invited to participate. RCW 90.82.060(4).

2 We note that DOE is precluded from voting on this question.

City of Bellingham On Voting Positions

From: Clare Fogelsong, City of Bellingham Planning Unit Representative
Date: October 10
Subject: Planning Unit Caucus Representation

There are three basic caucus types; 1) those that represent a single entity (City of Bellingham, Whatcom County, PUD 1, and Port Authority), 2) those that represent a relatively small and identifiable group of entities and have a structure for meeting and selecting a representative (Federal and State governments, Small Cities, Water Districts, Diking/Drainage Districts, and Non-Municipal Water Systems), and 3) caucuses with dispersed constituencies and a range of organizational ability to represent their constituents (Agriculture, Environment, Fishers, Forestry, Land Development and Private Well Owners).

The differences in organizational structures should be reflected in the requirements for caucus representation. To that end the following suggestions are presented for consideration.

Representatives of the Type 1 caucuses, City of Bellingham, Whatcom County, PUD 1, and Port Authority, will present to the Whatcom County Council some indication of appointment from the mayor, executive, or respective commission.

Representatives of the Type 2 caucuses, Federal and State governments, Small Cities, Water Districts, Diking/Drainage Districts, and Non-Municipal Water Systems, will present to the Whatcom County Council some indication of appointment resulting from a vote or assignment registered by the group of participating members of the caucus, e.g. a vote taken and recorded in the minutes of a meeting.

The Type 3 caucuses, Agriculture, Environment, Fishers, Forestry, Land Development and Private Well Owners, are similar in that their constituents are dispersed throughout the community. However they vary widely in the degree of organizational structure available for selecting a Planning Unit representative. It appears that Agriculture and Land Development have the most established organizational structures, representing a significant portion of their constituent groups. Fishers, Forestry and Environment may also be able to rely on existing organizations to serve the purpose of selecting representation. The Private Well
Owner caucus seems to be the most challenged in this regard. For all these caucuses a meeting should be held inviting members of the public, who are associated with the issues represented by the caucus, to participate in the selection of a representative. The selection action could be added to the agenda of a regular  meeting of an existing organization that is recognized in the community for its representation of a single caucuses' issues, or the meeting could be held for the single purpose of organizing a caucus to select the representative and establish a means to keep caucus members informed of Planning Unit issues. Representatives of these caucuses will present to the Whatcom County Council a copy of the meeting notice, list of attendees and some record of the action taken to select a  representative.

Whatcom County's Water Rights are in Danger, Litigation Pending

In 1998, Puget Sound Chinook salmon were listed as “threatened” under the Endangered Species Act (ESA). This designation meant that these fish were vulnerable to eventual extinction and required urgent development of a recovery plan to protect them. 

A key part of the recovery plan adopted for Puget Sound Chinook was the Watershed Planning Act (WPA- RCW 90.82), that allowed each region to assess its own water situation and to set goals and objectives for water resource management by developing a watershed management plan.  

 

Read more here.