Powerline appeals caught in volley between agencies

While DNR has announced its “intention to appeal” a ruling allowing the PUD to condemn state land for its powerline, it remains unclear whether the agency will be able to argue the case in a higher court.

The state attorney general has declined to represent the Department of Natural Resources and state law appears to prevent a state agency from hiring an outside attorney.

After a review of the May 11 decision by Okanogan County Superior Court Judge Jack Burchard, the state attorney general advised Commissioner of Public Lands Peter Goldmark last Tuesday, June 8, not to pursue the appeal.

The attorney general concluded that “it is not in the interest of the state to pursue an appeal,” according to Dan Sytman, spokesman for Attorney General Rob McKenna. The decision was based on the standard three-part test – a review of the case for possible legal error, a review of the facts and court record, and a determination of the likelihood of success of an appeal, he said.

While it is fairly common for a client agency to want to appeal but for the attorney general to advise against it, most clients defer to the attorney general’s expertise, said Sytman. What is less common is the public insistence on pursuing the case, he said.

“It is puzzling that our attorney general will not allow his client’s argument to be heard in court when he already supported trying it in a lower court,” said Goldmark in a press release issued June 8. “I hope he changes his mind again and appoints a special assistant attorney general.”

The attorney general again rejected Goldmark’s request to appeal or to retain a special assistant attorney general to represent DNR on Friday (June 11). The law states that the attorney general is the only entity authorized to represent a state agency or to appoint outside counsel.

“During the next phase of this proceeding, the valuation phase, the PUD will be required to fully compensate the school trust for the value of this property. The Attorney General’s Office is committed to vigorously advancing the interests of the school trust by securing full value for this property,” said McKenna in a press release issued Friday (June 11).

The attorney general’s determination is that the law is very clear in allowing a public utility district to condemn state land, said Sytman. “So we don’t believe that pursuing an appeal is going to generate a different result. What is to be gained for the state to pursue this? Nothing,” said Sytman, who said that part of the analysis includes weighing the cost to the state of an appeal.

Sytman also cited the testimony of DNR supervisor Lenny Young at a legislative hearing in February concerning a bill that would have prohibited the condemnation of school trust lands as evidence that the agency recognized that current law permits such condemnation. Young testified that a prohibition is appropriate to the broad range of public benefits provided by the trust lands, among them schools, recreation and wildlife habitat. The bill died in committee.

Goldmark and McKenna traded criticisms in a flurry of press releases last week, with Goldmark saying he was “deeply disappointed” in the attorney general and accusing him of “playing politics.” McKenna said it had been a “purely legal decision” and accused Goldmark of seeking to undermine the integrity of the attorney general’s office.

The attorney general represented DNR in its initial challenge to the PUD’s eminent domain action, claiming that a public utility district does not have the right to condemn state trust lands dedicated to a public purpose. In this case, the lands across which the PUD seeks almost 12 miles of easements for its powerline are leased for grazing, bringing in revenue for state schools, they argued.

DNR is currently researching its options, according to Aaron Toso, director of communications and outreach.

Environmental organization files notice of appeal, buying time

Meanwhile, Conservation Northwest, an intervenor in the case, filed a notice of appeal on June 9, in part to give the state additional time, according to Dave Werntz, science and conservation director for the organization. DNR learned only two days before the appeal deadline last Thursday (June 10) that the attorney general would not represent them, he said.

“We filed notice with the intent of giving the state some additional time to sort out what is a complex situation,” said Werntz, who could not recall a situation where an agency sought to pursue a claim and the attorney general refused to represent it. The notice gives all parties an additional 14 days to file an appeal.

“Commissioner Goldmark has legitimate and unresolved concerns about Okanogan PUD’s powerline and we support his efforts to preserve wildlife habitat and clean water for Washington citizens,” said Werntz.

The PUD filed its own notice of appeal in the case on Thursday (June 10), reportedly contesting the judge’s granting of intervenor status to Conservation Northwest.

PUD proceeds with construction bids for powerline

Meanwhile, the PUD received eight bids for the first phase of construction on the powerline, from Pateros to the Gold Creek substation, which they plan to begin this summer. The contractor will provide a schedule to do the work within parameters that will protect wildlife during breeding and migration seasons and minimize erosion and ground disturbance land after snowmelt.

The PUD board of commissioners briefly reviewed the bids at their meeting on Tuesday (June 15) but made no decisions, according to a PUD spokesperson