Methow power-line fight turns into Supreme Court showdown

CARLTON, Okanogan County — The fight over the future of the shrub-steppe grasslands above the shimmering Methow River has become what few could have predicted: a constitutional feud between the heads of two state agencies.

A coming Supreme Court showdown between Commissioner of Public Lands Peter Goldmark, a Democrat, and Attorney General Rob McKenna, a Republican, began as a typical land-use dispute.

But what started as a fight over the location of a power line — part environmental battle, part neighborhood spat — is now about another kind of power entirely.It's become a political feud — one that Republicans say Democrats simply have manufactured in hopes of tarnishing a possible GOP contender for the 2012 governor's race.

Earlier this year, Goldmark lost a court battle that allowed the Okanogan Public Utility District (PUD) to condemn state trust lands so it could build a new transmission line across the Methow. McKenna declined to appeal on behalf of the state, so Goldmark asked the state Supreme Court to force him. The court will hear arguments in November.

"I believe it's squarely the duty of the attorney general to carry out legal issues at my request," Goldmark said, adding that he believes those duties are spelled out in state law.

McKenna argued his duty extends beyond Goldmark. He said his team of lawyers asked the same questions they do for all appeals: Did the trial judge err? Is there a good legal argument? Could new precedent damage other agencies?

"In this case, none of the three criteria was met," McKenna said. "I reviewed the statutes myself."

Political accusations

Each side accuses the other of playing politics.

State Democrats suggest McKenna is going rogue, ignoring his responsibility and repeating what he did with President Obama's health-care plan, when he ignored Gov. Chris Gregoire's objections and joined other attorneys general in a challenge.

McKenna's supporters say Goldmark and state Democrats are urging him to take on a risky case that for years had been championed by one of Goldmark's most vocal supporters.

Meanwhile, the battle simmers in the Methow Valley.

On a gray summer afternoon, a pickup bounced past thin timber and wildflowers up steep, rutted tracks to a bunchgrass bench. At a clearing, three local residents — Craig Edwards, Don Johnson and a woman named Maeyowa — stepped out and looked down on Highway 153.

"It's something, isn't it?" Johnson said.

The rolling hills here remain mostly roadless and serve as winter range for mule deer. They are a mix of state and private lands and, according to the PUD, the best, cheapest route to run a new power line.

The sole source of the valley's electricity is a frail, 60-year-old line that stretches along a corridor to the north. Nobody disputes upgrades are needed.

But these three residents are among those who believe the PUD chose the wrong place — a 28-mile corridor between the Columbia and Twisp rivers.

"Why disturb a whole new area?" said Maeyowa, who goes by one name.

She and others, a mix of ranchers and environmentalists, learned of the PUD's plans in the late 1990s, and have fought in and out of court since. Each side claims it has the support of a silent majority.

It has been a contentious battle, the subject of dozens if not hundreds of updates and letters over the years in the local newspaper.

Opponents say the PUD gave only lip service to potential alternative routes. Johnson, in particular, said he would know; he was a PUD commissioner during the project's early phases.

"They never wanted to find another location," Johnson said.

The PUD says it considered other options, but doesn't dispute this one's always been its top choice.

"There's been controversy about this route since Day 1," PUD Commissioner Dave Womack said. "But anywhere else we put that line there probably would have been people who didn't want it."

Opponents are represented by wealthy Seattle environmental attorney Peter Goldman, a contributor to Democrats who also happens to be one of Land Commissioner Goldmark's most outspoken supporters.

After power-line foes lost several challenges in the 2000s, the PUD filed paperwork with the office of the newly elected Goldmark. Since the line would cross his agency's lands, he said he decided to take a look.

He determined the actions would harm state trust lands, bifurcating them with lines, increasing the risk of fire and the potential to spread invasive weeds.

When the PUD assured residents it wouldn't have to scar the backcountry with roads and could dig holes for power poles by hand, Goldmark commissioned a study. It showed the ground in many places was solid rock, which would require heavy equipment to excavate.

"I don't think the PUD was as transparent as it could have been," Goldmark said.

When the PUD moved to condemn state trust lands to start its project, Goldmark filed a legal challenge. His office also testified before a legislative committee this year on a bill that would prevent other governments — such as PUDs — from condemning state trust land by eminent domain. The bill went nowhere.

McKenna's office represented Goldmark, but lost. When Goldmark urged the office to appeal, it declined. McKenna's office detailed its rationale in a four-page letter neither side would release, both claiming attorney-client privilege.

McKenna said the decision was made by his staff before he knew anything about the case. But after Goldmark called him personally to request an appeal, the attorney general said he reviewed the issues and concurred with his staff's decision.

McKenna wouldn't detail the decision, but said"in this state we have other clients, including DNR [the Department of Natural Resources], who need to exercise eminent domain from time to time. We thought trying to make very creative arguments could have boomeranged and hurt other agencies."

Goldmark argued that McKenna's constitutional duty was to do what he asked.

"My duty is to the trust beneficiaries — the people of the state," Goldmark said. "Talking about other state agencies is a red herring, quite frankly."

Goldmark sought advice from a private attorney who believed he still could win an appeal. He asked McKenna to appoint a special counsel. McKenna refused.

McKenna said special counsels are used when his office has a conflict or needs a lawyer with special skills.

"If a case fails the test for filing an appeal, why would it make sense simply to have another lawyer argue it?" he asked. He also added that the fact Goldmark's office supported changing the law suggests he knows the case is weak.

Regardless, in late June, Goldmark filed his Supreme Court challenge, using a private attorney.

State Democrats argued that McKenna was cozying up to the PUD, trying to placate a conservative Eastern Washington constituency — a charge McKenna and his supporters deny.

Goldmark's critics contend he took on the battle because it was important to Goldman — a charge Goldmark denies.

"I've tried my best to stay out of talking with him about this case," Goldmark said, though he admits they've been in contact. "To be frank, I'm available to many members of the public. Many people are appreciative of my efforts."