Hearings Board Rejects Reconsideration

Well, the Hearings Board has rejected my Motion For Reconsideration on the Reconveyance matter.  Big surprise or, as the kids say on Facebook lol... (laugh out loud).

Keep in mind, the Board did not listen to argument and rule on whether the County was out of compliance with the law... the Board simply dodged jurisdiction on a matter dear to the hearts of at least some board members and, thus, as I would paraphrase the Board's clear intent, "Too hot to handle."

Here's an example of the issues I brought up in the Motion for Reconsideration:

Issue #5

The way the Board’s citation of Whatcom County Code (WCC) 20.43.150 is handled is very disturbing to anyone depending on the judiciary for interpretation of the law.  On this issue alone the Board should reverse itself and accept jurisdiction.

On page 8, line 27 the Board cites County Code 20.43.154, a conditional use, with emphasis on the quote, “Operation of dispersed, primitive recreational facilities…” The Board’s quote stops at that point.

In full, 20.43.154 reads, “.154 Operation of dispersed, primitive recreational facilities including tent campgrounds, game reserves, developed trailheads with parking for more than 30 vehicles, but excluding uses such as community centers, riding academies, off-road vehicle parks, parks, marinas, camping clubs, institutional camps and recreational vehicle and travel trailer parks.” (Emphasis added)

How can a Board with any concern for rational legal analysis find that “Operation of dispersed, primitive recreational facilities,” is a determinative phrase demonstrating that (page 9, line 9 and 10)County Code allows “park uses within commercial forestry districts,” while a plain reading of the phrase in the exact same section and following, “excluding uses such as…”… “…parks…” does not exclude parks? 

On page 9, lines 9 and 10 the Board comments that “The Board finds a challenge to the land uses allowed in the Commercial Forestry District would be untimely as the County’s development regulations were adopted and not appealed years ago.  What part of the plain language reading of the law excluding parks from the CF zone is petitioner missing?  Had the Board allowed briefing the Board would have learned that nearly every other zone contained in Whatcom County Code, including the Airport zone, provides for trails, trailheads and other park like facilities.  Only the CF zone explicitly excludes “parks.”  That exclusion was indeed adopted and not appealed years ago and that exclusion was included because of the special place Resource lands have in law.  And the Board doesn’t have jurisdiction?

Is this the kind of partial quote and twisted logic the Board wants future participants in the growth management process to view as precedent?  Is this the kind of argumentation the Board wants to see in future PFR’s?

I'll have more on this in the future but, for now, the Reconveyance Challenge is dead and gone.  I could take the thing to Superior Court but that would cost me at least a couple of thousand dollars in fees and (because I would have to pay the Hearings Board to make multiple copies of the hundreds of pages of documentation submitted in the case), copying costs.  I see more benefit to be had in other approaches. 

For now, I'm signing off...

County and Whatcom Land Trust Fail Respond To Reconsideration

Thought you might like the map, just for fun

Yesterday was the last possible day for the Land Trust and for Whatcom County to respond to my motion for reconsideration on the Reconveyance Challenge.

Given the Board's cavalier treatment of logic and the law the two probably already know how the Board will rule.

At any rate, if the Board has not responded by next Wednesday then the motion is denied.

That will not be the end of it, however.

http://www.bellinghamherald.com/2013/07/25/3111435/case-against-controversial-lake.html

Ken’s comments in the story this morning make my head hurt… adding 9000 acres (.09%) to the already existing 1+ million acres of parks, federal lands, and state lands already managed for recreation in Whatcom County and then restricting uses significantly below the level already allowed on that land is going to draw more tourists?

 

Check out the story in the Herald this morning.

 

I've already entered a motion for Reconsideration before the Board.

 

I'll post the motion at some later time but, for now, I believe that if an attorney before the Board used the approaches the Board used in explaining its decision, that attorney might be facing sanctions before the bar as a result.

Hearings Board Washes Their Hands Of The Reconveyance Challenge

The Growth Management Hearings Board rejected jurisdiction regarding the Reconveyance Challenge July 17th (just got the paperwork in the mail today).

Keep in mind, the Board did not find my argument in error.  They did say that they had no jurisdiction in the matter but based that decision on a couple of flimsy arguments.

Two options are available. 

First, it is possible to ask for reconsideration.  Given that at least two Board members were obviously desperate not to have to make a decision on something so near and dear to their hearts it is unlikely a request for reconsideration is anything but a waste of time.

Second, an appeal to Superior Court is also possible.  I've never been to Superior Court before but, then, I've never represented myself at the Hearings Board either. 

Superior Court is the likely option because the Hearings Board chose the most flimsy argument possible in rejecting jurisdiction.

On a positive note, the Board did agree to admit evidence I wanted admitted into the record.  That evidence proves the case and will be useful in Superior Court.

More later

Musings About The Reconveyance Challenge

The Hearings Board still has not decided what to do about jurisdiction over the Petition For Review regarding the so called Lake Whatcom Reconveyance.  Because of that I've been a little lazy about writing the brief that must go to the Board in a few weeks but, I will apply the whip to the mule that is my ambition and get to work in earnest this week.  It is a big undertaking.  I'll probably end up spending about a 100 hours or so on the thing.

I've also been musing over what to do about the fact that exactly at the same time the County was telling the Hearings Board in Olympia (in a telephonic hearing) one story about the Reconveyance it was telling the Board of Natural Resources in Olympia a different story in complete contrast to the story being told across town. 

A second thing of significant importance to citizens in upcoming years is the vast influence the Whatcom Land Trust has over affairs in the County.  They probably control more land in the county than anyone save for the State and Federal governments and, through their influence and control, have tremendous impact on the lives of the County's citizens.  Is that good or bad?  It may be time for discussion on that question.

Well, that is something for another day.  For now, any big news is likely to be the upcoming Board decision regarding jurisdiction and then there won't be much news for awhile... it will be blood, sweat and tears (if the County, and especially, the Whatcom Land Trust, can use hyperbole so can I) involved in writing the brief that will probably determine the outcome of the whole thing.

Board of Natural Resources Votes For Reconveyance

This morning the Bored of Natural Resources (couldn't resist the misspelling) approved the Lake Whatcom Reconveyance, I am told, by a vote of 5 - 1.

At the same time yours truly was testifying to the Growth Management Hearings Board about the Hearings Board Challenge to Whatcom County's Resolution asking for the Reconveyance.

The Bored of Natural Resources action does not impact the Hearings Board challenge at all except to serve as proof that the County misinformed the Hearings Board about the process following the Resolution - the County assured the Hearings Board there would be a public hearing...there was none - and so on...

The challenge remains before the Hearings Board and I, at least, will continue to pursue that challenge... 

More later

A Post From My Environmental Blog Regarding Water

This isn't specifically reconveyance oriented but, it has to do with the same assault on rural lifestyles the reconveyance and similar approaches impact.  To read the environmental blog try: http://www.jackpetreeontheenvironment.blogspot.com/:

Meanwhile

If you really want to control the everyday lives of people, control their water.

Whatcom County, Washington is an example of how the pop-environmental movement, in an effort to impose its will on the unwashed masses, has seized control of a water rich environment on the basis of (you guessed it), water shortages!

The first pioneer settlements in Whatcom County centered on Whatcom Creek (Supposedly translated as "Noisy Waters") because the falls provided power for sawmills

Once nicknamed “The Fourth Corner” because it is the most northerly of the United State’s West Coast counties, Whatcom County, along with the rest of Western Washington, is world renowned for rain.  As this is being written near the last weekend in June we are seeing our third straight day of rain.  Summer crops are sometimes ruined by rain in June and July though, in general, rainfall does slack off in July and August.  In those months it is not uncommon to go for two or three weeks without rain.

On top of that, literally, is a mountain range beginning its rise only a couple of dozen miles in from the ocean inlet, Puget Sound.  An hour’s drive from the bayside city of Bellingham, a ski resort holding the world’s record for snowfall in a winter season at ninety-five feet contributes to a year around rush of water from mountainside to ocean.

So where’s the water shortage?

The water shortage is in the most important place it can be; in the minds of a cadre of urban centric pop-environmentalists dedicated to forcing Whatcom County’s rural landowners off the land and into high rises located in the city.

So how does one go about creating a water shortage in rivers and streams discharging tens of millions of gallons of water into the ocean each day?

Well, if you want to assure success, you combine two perfectly reasonable concepts, connectivity and minimum instream flows, into a unified water plan and then you use false science to force the drawing of false conclusions.

Fish, especially fish that migrate to the ocean then return to rivers and streams to spawn are important to the people of Whatcom County so measures designed to improve fish runs are easy to promote to an audience largely uninterested in questioning the pronouncements of those purportedly speaking with authority.

Put simplistically and speaking only to the issue of connectivity and minimum instream flows, fish need a certain amount of water flowing down stream and river beds to propagate and send lots of little fish children out to sea.

So, scientists, and others, pay attention to minimum instream flows in developing strategic plans to enhance fish health and survival. 

Many sources contribute to flow volume in rivers and streams.  Water flowing underground is one important source, especially in months where rainfall and/or snow melt are inadequate to maintain healthy levels of flow so, connectivity becomes an issue legitimately open to discussion.

Connectivity is the issue allowing zealots to seize control of the daily lives of individuals owning land throughout a river system.  The claim of connectivity provides control of water withdrawals from wells dug or drilled to provide water for lawns and gardens or for other daily uses.  “After all,” the argument goes, “When a homeowner turns on the faucet to get the water needed to make a cup of tea that homeowner may be harming fish by taking future water away from their poor little gills.”

So, how much water actually is needed in a stream to support a healthy fish population?

In Whatcom County no one quite knows and that’s just the way the pop-environmentalists like things.  It is difficult to create hysteria without a sense of crisis.

Minimum instream flows for Whatcom County were established by state law in the middle 1980s using a curiously odd technique having nothing to do with what fish need to live but, rather, with what the pop environmental movement needs to keep raising funds.

Basically, in Whatcom County, minimum instream flows represent the average flow of water measured month by month the year around.  Using that methodology assures the County’s waters are guaranteed to be out of compliance with the purported needs of fish much of the year.  Average, after all, means that some of the time water levels will be higher than average and some of the time water levels will be lower than average.  Since lower than average flows violate the law the approach assures water shortages and plenty of fodder for those pursuing political ends that can be linked to those purported shortages. 

Think about it.  Based on the averaging technique for calculation of necessary instream flows, pre-settlement streams were unable to support fish populations, by definition.  So, where did all the fish purported to have existed in pre-settlement times come from?

The technique used to measure minimum instream flows, applied to areas with little or no habitation as is the case here still shows violations demonstrating the inaccuracy of the technique

In Whatcom County, violations of minimum instream flows are being used by an urban centric elite to seize control of the ability to drill wells in the county needed by farmers and other landowners wanting to live on, and work, their lands.

If you want to control people, control their water and, to the pop-environmental movement, the ends justifies the means, as is the case in most of the discussions about environmental health going on in the world today.