DNR dust-ups

Tuesday, June 22, 2010

DNR DUST-UPS: A cooperative effort between the Dept. of Natural Resources and Whatcom County to transfer thousands of state timber lands around Lake Whatcom into county management can move forward, a court rules; meanwhile, a more hostile transfer of state lands ignites a constitutional crisis.

The Washington State Court of Appeals last week dismissed a challenge to efforts between DNR and Whatcom County that could transfer as many as 8,100 acres of state trust lands in the reservoir watershed into county management as a park. The court found that efforts between the state agency and the county to study the reconveyance of these lands were too nascent and speculative to warrant the involvement of the courts at this time. DNR is only now in the earliest stages of an audit of these forest lands to determine their value.

“Any determination of whether or to what extent a reconveyance would affect [private] property interests is highly speculative at this time because it depends on a series of actions that have not yet occurred and that may never occur,” the court observed. “Whatcom County may or may not request the reconveyance. The DNR may or may not approve the application and may or may not impose conditions on the reconveyance that will affect [private] property interests. The selection of the specific trust lands to include in a reconveyance must also await further actions,” the court noted. The ruling allows the logging and milling interests who filed the appeal to bring their challenge forward again at a later date.

Meanwhile, DNR is forced to go it alone in its appeal of a superior court ruling that allows a public utility district in the eastern portion of the state to seize state trust lands for an electrical transmission line. The agency will not be represented by the state attorney general, who declined to appeal the case. The AG’s decision touched off an unusual storm of press releases, with both agencies accusing the other of political grandstanding.

Earlier this month, Commissioner of Public Lands Peter Goldmark, who heads DNR, criticized Attorney General Rob McKenna’s refusal to represent the agency’s efforts to prevent the Okanogan County PUD from condemning 11 miles of state trust land for its Pateros-Twisp transmission line.

Okanogan PUD commissioners, chafing at delays last August, unanimously approved pushing forward on a condemnation of 31 private properties and a patchwork of parcels in the Methow Valley managed by DNR as trust lands that provide revenue for schools. Okanogan Superior Court sided with the PUD’s action against DNR, a decision the state agency will appeal… without the assistance of the state’s authorized legal counsel.

Goldmark declared his agency has a fiduciary (and constitutional) duty to protect trust beneficiaries from loss of revenues from the PUD’s seizure of school lands.

“By refusing to represent the Common School Trust and the non-tax revenue it generates, AG McKenna is choosing to allow the inappropriate use of eminent domain over Washington’s schools,” Goldmark complained. “McKenna is choosing to play politics with our state’s heritage.”

“It’s unfortunate that the Lands Commissioner has inserted politics into a purely legal decision by the Attorney General’s Office,” McKenna shot back. McKenna maintains the decision was based, as are all appeals handled by the AGO, on consideration of the trial court record and the likelihood of the appeal’s success. “The assertion that politics played any part in our decision is wrong, and frankly, insulting.”

But… clearly politics is playing a role, as conservative commerce interests rub against liberal environmentalism. The PUD’s route was supported by Democrat Goldmark’s immediate predecessor, Republican Lands Commissioner Doug Sutherland.

The public land is currently leased for grazing, which provides substantially less revenue for schools than commercial forestry. A statute passed in 1931 by voter initiative grants the state’s public utility districts broad powers in acquiring rights-of-way to build electric networks, deemed a public benefit; however, no case has tested the power of a subordinate entity such as a PUD or county to condemn public trust lands deeded under the state constitution. Okanogan County Superior Court Judge Jack Burchard split the difference, ruling that grazing is compatible with a transmission line and that the state could continue to raise money for schools through the grazing leases.

Conservation Northwest sided with DNR as an intervenor in the suit, concerned that the fragmentation of this shrub-steppe endangers mule deer habitat in the Methow Valley. The Bellingham-based environmental group also expresses concerns about erosion and similar impacts roadbuilding may cause to Methow’s salmon-bearing streams. But more than that, CNW champions DNR’s continued authority and stewardship over state-owned lands. The organization filed its notice of appeal last week.

McKenna’s refusal to provide special counsel to an independently elected head of a state agency, when such counsel has been requested by that official and agency, appears unprecedented (and possibly in violation of state law). Agencies like DNR are prohibited from seeking their own independent counsel outside the AGO, the state’s designated legal representative.

The AGO’s decision encumbers DNR’s right to appeal. DNR is stranded without legal representation and is denied access to the courts.

The Lands Commissioner is constitutionally bound to represent the state in actions or proceedings related to the public lands of the state; and as this case threatens a precedent where subordinate authorities may seize state-owned properties, he is compelled to act. McKenna is similarly bound under RCW 43.12.075 to appoint a special counsel to represent the state’s interest. While the statute is unambiguous, McKenna claims a greater obligation to protect a broader public interest. What that broader interest is, the AGO has refused to say, claiming attorney-client privilege (the client, the AGO declares in circular reasoning, is DNR).

Since Goldmark will not—indeed, with the precedents being established here, cannot—back down, this constitutional collision is headed to the state Supreme Court.