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Coal-Free Bellingham

Initiative struck from ballot; supporters appeal decision

By Tim Johnson · Wednesday, August 8, 2012

Backers of the initiative to ban coal shipments through Bellingham say they’ll fight to get their question restored to the November ballot. Whatcom County Superior Court Judge Charles Snyder agreed with city attorneys and railroad counsel last week and issued an injunction to strike their proposition from the ballot.

Before making his ruling, Snyder listened to legal arguments from attorneys representing initiative backers, the city and BNSF Railway Co. The county courtroom was packed with supporters and observers.

The Coal-Free Bellingham Community Bill of Rights asserts arguments of natural law that grant citizens the power of local control over decisions like the proposed Gateway Pacific Terminal project, which could ship hundreds of tons of climate-changing coal through Bellingham. The measure recognizes the fundamental right to clean air and water, to local self-government, the rights of ecosystems to exist and flourish, and it would prohibit the transportation of coal within City of Bellingham.

Supporters argued the city’s attempts to interfere with their initiative amount to a threat against public participation. Nearly 10,000 people signed the petition to get the initiative on the ballot.

The right to direct legislation is granted by state law and the city’s governing charter. But city attorneys argued Coal-Free Bellingham’s proposed Community Bill of Rights exceeded citizens’ right to direct legislation in key respects. The legislation must be within the scope of the powers, function and duties of the city, they argued. It must relate to matters under the control of the legislative branch.

“Bellingham’s initiative process establishes a method independent from the City Council for enacting local laws,” Assistant City Attorney James Erb argued in Superior Court. “While the goals of the proposed initiative may be laudable, it is simply not within the city’s power to nullify ‘state and federal laws, constitutional provisions, permits, and other authorizations,’ even if those laws contribute to the progress of climate change,” Erb quoted from the text of the proposed law.

Attorneys argued that attempts to sever portions of the law from other portions that are inoperable or impermissible would so change the purpose and intent of the ballot title—the description of the proposed law as it would appear on the November ballot—that the measure could potentially deceive voters. Snyder agreed, and granted the injunction, removing the measure.

“Once many of the provisions that are clearly invalid are taken out, we’re left with a ballot title that is extraordinarily misleading,” Snyder observed. “If you sever out the pieces that are outside the scope of the initiative, and leave those that are not, what’s left cannot stand alone, they are so intertwined with other parts of this initiative.”

“The initiative might be rewritten in such a way that it could be brought before the people,” Snyder admitted, “but in this case it includes things that are so closely tied to the inoperable portions that it can’t be placed on the ballot without creating a misleading opinion, giving the people in the community an opinion that they are doing something that they are not.”

Coal-Free Bellingham appealed Snyder’s ruling to the State Court of Appeals, asking that a decision be made prior to August 28, the last day on which the County Auditor can take action about what to put on the November ballot.

“The people’s state constitutional right to direct legislation lost out,” said Terry Garrett, a volunteer organizer for Coal-Free Bellingham. Garrett stressed the group’s desire to make sure “the people of Bellingham get the chance to vote on reprogramming government to be about people and the environment, instead of supporting corporate exploitation.”

Breann Beggs, attorney for Coal-Free Bellingham, noted the policy of Washington courts is to test the validity of initiatives only after the people have had a chance to vote on it. To do otherwise denies people their rights of direct legislation, he argued.

“Without this right, we lose an important means for letting the legal system know how it needs to adjust,” agreed Morgan McCartor another volunteer for Coal-Free Bellingham.

In legal arguments, City Attorney Erb drew distinctions with last year’s initiative to ban red light cameras in Bellingham, noting in that instance city officials had not sought injunctive relief by asking that the measure be struck from the ballot.

Snyder said he believed it was appropriate for the city to seek legal guidance from the courts on the validity of what it is the ordinance proposes to do.

“The city has no right to act illegally,” Snyder said. “The city has the legal right to come to court and say, ‘Don’t make us do something that is against the law.’”

“Community-rights ordinances like this one are the only way a town or county can fight back against the corporate license to ‘develop’ nature without acknowledging the costs of doing that,” said Phil Damon, a member of the Living Democracy group that helped underwrite the effort to gather the 10,000 signatures. The think tank and educational non-profit sponsors programs that identify and overturn barriers to self-governance.

“Our city (with their partner in the injunction, BNSF) has chosen to prevent its citizens from exercising their right to just such an initiative,” Damon continued. ”No surprise from the railroad, but from the City Council? That’s a big ouch.”

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