Supreme Court orders AG to represent Goldmark

The Washington State Supreme Court has ruled that Attorney General Rob McKenna must represent state Lands Commissioner Peter Goldmark in a case dealing with whether the Okanogan PUD can build a new transmission line over property owned by the state Department of Natural Resources.

Last year, Goldmark lost in a court dispute with the Okanogan County Public Utility District over the powerline, and McKenna subsequently refused to appeal on behalf of the state. Goldmark asked the Supreme Court to decide the issue.

The PUD seeks to condemn state trust lands so it can build the new 27-mile Pateros-Twisp transmission line, which would traverse about 12 miles of land managed by DNR, held in trust for schools.

In its ruling Thursday (Sept. 1), the Supreme Court said that state law “expressly requires the attorney general to represent the commissioner in any court when so requested by the commissioner. This duty is mandatory, and the attorney general has no discretion to deny the commissioner legal representation.”

In a statement, Goldmark said Thursday that “I applaud the Supreme Court for striking down what would be a dangerous precedent by the attorney general to dictate policy for another statewide elected official.”

“As Commissioner of Public Lands, I have an obligation to manage the state’s trust lands sustainably for future generations, and I will continue to fight for what I know is right,” Goldmark said. “Thankfully, the Supreme Court has agreed with me. It is essential that the Office of the Commissioner of Public Lands has the ability to carry out its responsibility to the trusts, and not having counsel leaves the Common School Trust defenseless. The schools supported by the trust and the citizens of Washington are the big winners today.”

In declining to file the appeal, the state attorney general claimed that the lower court had made no errors and the case was unlikely to succeed on appeal. The attorney general filed a contingent appeal, pending outcome of the Supreme Court case.

Goldmark’s appeal to the Supreme Court was handled by Seattle attorney David Bricklin. The environmental group Conservation Northwest had already filed an appeal in the condemnation lawsuit.

In the oral arguments presented to the Supreme Court in November, the main issues were whether the attorney general has the prerogative to choose which cases to pursue or whether he has an obligation under Washington law to represent any state executive who requests his counsel. Further, Goldmark argued that if the attorney general declines to represent a state executive, he must appoint another lawyer to handle the case.

“It’s important to note that disagreements between the Attorney General’s Office and its clients over legal strategy are exceedingly rare and that the court today relied on a specific statute governing the commissioner’s authority to direct legal action,” McKenna said in a statement.

PUD general manager John Grubich released a statement on the ruling Thursday. “Okanogan PUD is ready to defend [Okanogan County Superior Court Judge (Jack) Burchard’s decision upholding the PUD’s statutory authority to acquire state lands through the eminent domain process. The PUD commissioners do not take this authority lightly and chose to exercise their eminent domain authority only after all reasonable attempts to secure an easement from DNR across state lands failed. The PUD hopes the Court of Appeals will expeditiously schedule this matter for review.”

The state land in question is currently leased for grazing, which, while it brings in little income for schools, was the basis of DNR’s argument at the April 2010 hearing in Superior Court that the PUD is not authorized to condemn state trust lands devoted to a public use. Burchard ruled that grazing is compatible with a transmission line and that the state could continue to raise money for schools through the grazing leases.

After Goldmark asked the Supreme Court to hear the case, McKenna said, “It’s unfortunate that the Lands Commissioner has inserted politics into a purely legal decision.” McKenna said the decision was processed like all other appeals, with considerable research and analysis.

In June, McKenna announced his intention to run for governor on the Republican ticket.

The PUD was hoping to begin construction on the powerline this summer but those plans have been derailed by a series of court challenges. DNR was granted a stay in a decision on the value of the land the PUD wants to condemn at the end of June by an Appellate Court commissioner, pending a settlement of the larger land-condemnation case. In August, the PUD asked the entire Court of Appeals to lift the stay. No ruling has been issued yet in that case.