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.

Reconveyance on DNR agenda for July 2nd

Below is a copy of a letter sent to the Board of Natural Resources yesterday.  The letter speaks to the County's contention that the Growth Management Hearings Board doesn't have jurisdiction to decide if the County violated the Growth Management Act when it applied for reconveyance because the County Council had its fingers crossed when it adopted the resolution asking for Reconveyance.

Letters to the Board of Natural Resources would be good because they are addressing reconveyance in some fashion next Tuesday at 9 o'clock in Olympia.  The public can speak on the issue but it is not a hearing... it is a meeting so any testimony is informal and is not counted as the equivalent of public testimony but can still have influence.

The Smoke Screen

So, we'll tell them they don't get to decide if we broke the law yesterday because we might want to do it again tomorrow..Is that clear to everyone?

TESTIMONY MEMO         6/24/13

FROM:  Jack Petree

TO:

Commissioner Peter Goldmark and other members of the DNR Board of Natural Resources, Kyle Blum, Deputy Supervisor for State Uplands and, Jed Herman, Conservation, Recreation, and Transactions Division Manager

RE:  Before the Growth Management Hearings Board, Whatcom County argues its resolution and “formal application” for reconveyance “has no force of law” and thus, does not bind the County to utilize the reconveyed land as required by reconveyance law.  The Hearings Board is told it has no jurisdiction because the County may not ultimately decide to comply with the terms of the reconveyance statutes.

Commissioner Goldmark and other Board Members, Mr. Blum and Mr. Herman

Whatcom County appears to be willfully attempting to mislead the Board of Natural Resources in an effort to make the DNR/BNR the scapegoat in the ethical and legal mess that must inevitably follow a BNR decision to allow the Lake Whatcom Reconveyance at this time.

There are, however, ethical and legal opportunities for the BNR to sidestep Whatcom County’s efforts and assure reconveyance law is properly followed.

At the Board’s July meeting last year, Commissioner Goldmark and other members of the BNR were upfront and honest in telling citizens the Board is bound by the law and must defer to the County in reconveyance matters; once a legitimate reconveyance application is put forward the Board is obliged to allow reconveyance but, only, for use as a public park.  The Board’s legal representative at that time was specific in saying there would be no hearing on the matter though the public would be allowed to speak informally, as it always is on such matters.

The Whatcom County Council seemingly made application March 12 of this year by means of a “formal application” for reconveyance, binding the Board to approve reconveyance, aside from a DNR finding the proposed park will conform with the State’s outdoor recreation plan (virtually any “park” meets that test). 

As I told you before, I challenged that application before the Growth Management Hearings Board.

Now, in formal legal argument before that judicial body, the Hearings Board, the County claims its application does not bind Whatcom County to do anything; that the County may, indeed, flout the reconveyance law and never provide for a public park on the reconveyed land at all.  Consider the County’s statements made in its dispositive motion to the Board: 

·        “Under Whatcom County Charter, a resolution has no force of law;

·        “The operative section of the resolution includes a sentence that is a request, and a sentence that is a finding, but no regulatory language of control.”

·        “Even if DNR reconveys the land, the terms of the resolution/application document do not control physical development.” 

·        “Indeed, the DNR must hold a hearing and make a finding before park uses are required." (bold is mine – DNR specifically told citizens last year there would be no hearing because DNR is bound to provide reconveyance on receipt of a legitimate application from the county.  The County has asked the Board not to allow that conversation by the Board to be allowed as evidence in the hearing on Hearings Board jurisdiction being held today at the same time as the BNR meeting on reconveyance is being held)

·        “The County might acquire the land and THEN change the zoning… Or the county might acquire the land and THEN fail to use the land for park purposes, in which case DNR would take the land back into trust.” (NOTE, RCW 79.22.300 says “public park use” not "public park purposes")

Public parks are not allowed on land zoned Commercial Forest in Whatcom County; that is a key argument in the case before the Growth Management Hearings Board.  It appears Whatcom County has a strategy that it believes will trap the Board of Natural Resources in an untenable position and allow the County to simply keep the reconveyed land in an unused, untouched status forever (gain reconveyance, fail to use the land for a public park, and dare the DNR to go through the political, legal, and economic misery that will accompany any thoughts of a request to reacquire the land).

The attorneys for a second challenger regarding the reconveyance application said in addressing the County’s position, the Hearings Board is being asked to, “assume the County will act in bad faith, and believe that the County is requesting reconveyance from the DNR while having no intent to comply with the requirements of its own Resolution, state statute, and even its own Memorandum of Agreement with the DNR.”

The Board has at least two legal, and ethical, ways to address the County’s actions in this matter:

First, while State law requires the BNR to accomplish reconveyance on receipt of a legitimate application by which the County certifies it has the right to, and will, establish a public park, the Board is not bound to a timeline.  The Hearings Board will issue an opinion in November regarding the resolution.  If the Hearings Board finds the County violated the Growth Management Act in passing the application then, the application is invalid and the BNR is released from any obligation to provide reconveyance until the County goes through a proper process to dedesignate the land as Forest Lands of long term commercial significance and redesignate it to a proper zoning for public parks and then reapply.  The BNR can, and should, wait for the Hearings Board decision before deciding on reconveyance.

If the BNR feels it must move forward with the reconveyance now, it should attach conditions to assure the land is used as the law intends it to be used.  Conditions should include: 

·        A formal agreement by the County that it is irrevocably bound, by accepting reconveyance, to establish a public park on the land;

·        A time limit for creating a park plan for the park, funding the plan and, beginning work to realize the plan;

·        A time limit for establishing the public park not to exceed two years;

·        A requirement that the reconveyed land cannot be compromised by the sale or gift of conservation easements or agreements that could preclude the use of the land for Commercial Forestry, or impede transfer of the land back to the DNR if the county fails to use the land as required by State law;

·        An upfront condition that if a public park is not, or cannot, be established on the land the reconveyed land is automatically returned to the DNR without objection by the County.

If Whatcom County is serious about following the law, it should have no problem accepting conditions imposed on the reconveyance designed to assure the law actually is followed once the DNR loses control of the land.  As Commissioner Goldmark told the citizens of Whatcom County last year, “We are bound by the reconveyance statutes.”  Whatcom County is also bound by the statutes.  If the County claims in a formal legal proceeding it is not bound to comply with the reconveyance statutes, it becomes the BNR’s duty to reject the County’s application as being incomplete. 

The last thing the BNR should consider is rewarding the County for a less than appropriate approach to reconveyance.  It is the Board’s duty in the matter to assure reconveyance statutes are fully followed. If not the BNR then who will?

A screen shot of the County’s argument is attached. 

I regret I cannot speak to the Board in person July 2 as I will be replying to Whatcom County’s attempt to derail the Hearings Board process that same morning.

Regards,

Jack  Petree

tradewrld@comcast.net  or 733-1303       2955 Sunset Drive, Bellingham, Washington 98225

Footnote referred to on page 8

Whatcom Land Trust Has Documents Before Challengers Have Them

Something’s Fishy! 

Yesterday afternoon Whatcom Land Trust’s attorney Heather Wolf had her secretary send over a “Memorandum in Support  of Whatcom County’s Motion to Dismiss” the reconveyance challenge filed by a number of parties against Whatcom County.  Ms Wolf also served the Hearings Board with the memo.

One big problem!

There is no motion by Whatcom County to dismiss the reconveyance challenge!

might hear some whoppers when the land trust tries to explain this one

Now, the fact of the matter is, there probably will be a motion and it will probably be filed on Monday as not too many county employees with the big titles work the weekends but, here is the question.

If the people challenging the county’s action in the Reconveyance matter haven’t been served with a motion how does Ms Wolf acting on behalf of the Whatcom Land Trust, an intervenor with restricted rights in the case, already have a copy or, at least, enough information to write a longish legal opinion in support?  Is that on the up and up?  Not being a lawyer, I don’t know but, it is certainly offensive though I am a big boy and broke out into laughter rather than go into a funk about it.  Maybe the county legal department uses Verizon; that could explain the leak.

On a purely speculative basis it could be put forward that the Whatcom Land Trust is managing the case for the county.  After all, one of their complaints when they intervened was that the county might not manage the case to the Land Trust’s liking.

The next speculation might be, "Who is footing the bill?"  The land trust or the county?

Very strange;

More next week.

Land Trust's Position On Reconveyance With Some Comments

Below you will find an opinion piece recently printed in the Bellingham Herald.  At the end, in reverse order are some comments by Jack Petree, David Stalheim and Jean Melious.

Sorry about the lack of paragraphs and such.  This is the way the thing copied from the Herald and I don't have the time or the inclination to fix the thing.

By CRAIG LEE AND RAND JACK — COURTESY TO THE BELLINGHAM HERALD
On April 9, 2013, Jack Petree filed a petition with the Growth Management Hearing Board to try to block the 5-to-2 decision by the Whatcom County Council to return 8,844 acres in the Lake Whatcom watershed from the Department of Natural Resources to local control by Whatcom County for use as a park. Whatcom Land Trust's petition to intervene in support of Whatcom County was granted May 10th. This transfer of ownership from commercial forest to park use is provided for by Washington statutes. The process is called reconveyance. Whatcom County does not have to purchase the property, but only to pay DNR's transaction costs. The acquisition of this property will cost Whatcom County less than $35 an acre.Because only a about a quarter of the reconveyed land is suitable for commercial logging, job loses and harm to the timber industry in Whatcom County will be very small, if any. The county will still be able to conduct timber harvest where and how appropriate to help defer the costs of managing the park.Whatcom Land Trust has worked with Whatcom County to support reconveyance for more than eight years. We have participated in the public process at every step of the way and have consistently provided the County Council with accurate information to help inform its decision-making. When concerns about lost timber revenue by the Mount Baker School District threatened reconveyance, the Land Trust reached an agreement with the school board to compensate the district for revenue lost due to the reconveyance. We see intervention in the Growth Management Hearing Board process as a responsible continuation of our involvement and support. Our intervention allows us to keep abreast of the proceedings and to participate to the extent it is helpful to the county. We hope that our intervention also signals to the County Council that we deeply appreciate its reconveyance decision and that our support is steadfast. Whatcom County retains the lead role in opposing the challenge.We continue to support reconveyance because it provides a number of significant benefits to our community:It will provide extraordinary recreational opportunities in an exquisite natural environment in close proximity to many city and county residents. People will be able to walk, run, mountain bike, horseback ride, enjoy nature and contemplate expansive views in an aging natural forest.By restoring natural ecosystems and minimizing ground disturbance, reconveyance will help protect the drinking water of about half of the county's residents. Though not a solution to Lake Whatcom's problems, a largely undisturbed forest filtering runoff and stabilizing slopes will help.This exceptional public amenity will help attract new businesses, creative entrepreneurs and skilled workers to Whatcom County. Studies show that increasingly businesses that will drive the economic future of communities in the west are drawn to communities with high quality of life and outdoor recreation opportunities. Reconveyance will conserve and enhance large contiguous parcels of wildlife habitat and functioning natural ecosystems. The forest will gradually take on old-growth characteristics.This critically located land will be returned to local control. Local government will make decisions in the interest of the local community.As a non-profit organization, we work for what we believe to be in the public interest of the people of this community - wildlife habitat, productive forest and farmland, open space and outdoor recreation, functioning ecosystems, healthy lakes, streams and seashores, and the scenic grandeur of Whatcom County. We think that these values will help produce a thriving local economy as we proceed into the 21 century. The Land Trust believes that most people in Whatcom County share this view of the public interest. That shared view brought together two Republicans and three Democrats on the County Council to vote in favor of the reconveyance.Whatcom Land Trust does not gain ownership or control of the land as some opponents have claimed. Ownership and control remains in the hands of Whatcom County. The Land Trust benefits from our support of reconveyance and our intervention only by furthering what we believe to be in the public interest of our community.

ABOUT THE AUTHORSCraig Lee is executive director and Rand Jack is a board member of the Whatcom Land Trust. For information about the organization, go online to WhatcomLandTrust.org.
Read more here: http://www.bellinghamherald.com/2013/05/24/3018021/land-trust-continues-support-for.html#storylink=cpy

Jean, sorry to associate you with Futurewise.  I know you were steering committee chairman last year.  If I'm out of date I'm sorry.  I also could have sworn that Futurewise has made farmland preservation a priority...since Ag and Commercial Forest are both resource lands of the county...oh well, I guess they've given up on that as well. 
Birddog, in the interests of fairness, the Herald has always been good about allowing me the opportunity to comment on issues even when they disagree pretty wholeheartedly.

David, the Nooksack River is also part of the water supply for those 100,000 people you mention as well as the water supply for a good part of the other 100,000 people in the county.  I'd ask if that means you don't want logging roads anywhere in the County but I think I already know what your answer would be so I'm afraid to ask.
 Jean Melious: I haven't commented at all on the Reconveyance -- there are lots of qualified and interested people, including the Land Trust, to take care of Reconveyance issues --  and do not support Jack's challenge.  I have used the term "de-planning" to describe the County's rural planning, not the Reconveyance.  Finally, I am not "of" Futurewise, although I do support its work.
birddog: I wonder if the opposing view will get a retort?  Oops, this is the Herald and this is their pet agenda.
 jackpetree:  It's unusual that an issue brings Jean Melious of Futurewise, David Stalheim and Jack Petree together in agreement but the Reconveyance Challenge does.  The challenge is not about the Park the Whatcom Land Trust wants established.  The challenge is about the legality of changing uses on land dedicated to support for the timber industry by law without the transparent public process required by law to effect such a change.  Jean and David have labelled the process taken by the county, "deplanning."  It's as good a term as any.  I am surprised Futurewise has not intervened on my side as they claim to have preservation of resource lands as a prime directive.
David:Stalheim  Jack, I have no idea why you think that I would be in agreement with you regarding your challenge to the reconveyance. I don't encourage dairy farms over oyster beds, and I don't encourage building logging roads in the water supply of over 100,000 people. Your challenge has no merit, and it has no substance. I will be fully supportive of Whatcom County, as well as the Land Trust in their intervention in this matter.

Read more here: http://www.bellinghamherald.com/2013/05/24/3018021/land-trust-continues-support-for.html#storylink=cpy

A New Challenger Enters The Fray

Challenging the County is about as much fun as...

The mail today contained two items related to the Hearings Board Challenge calling into question the so called "Lake Whatcom Reconveyance."

First, the formal Board order allowing the Whatcom Land Trust to intervene in the case.  Two good things came out of the request that the Trust not be allowed into the case.  The Presiding Officer ordered that the Land Trust "...may not change or add to the issues presented for resolution as set out in the Prehearing Order in this case," and that, "Should the Petitioner and the Respondent enter into settlement negotiations, the Intervenor shall not be a necessary party to those discussions."

The WLT had worried in their motion to intervene that the County might come to its senses and do a settlement with Jack Petree.  If the County does decide to settle, the Trust has nothing to say about it.

A couple of people have said something to the effect of, "What do you expect out of a board appointed by the Governor?"  That is unfair in this case.  The Board made exactly the right decision.  State law makes it very difficult to keep an intervening party out of a case but, here, the party is restricted to sticking with the issues and, may not interfere in a legitimate negotiation process that saves everyone time and money and begins a proper process to discuss the importance of Resource Lands in Whatcom County.

Second, a new challenger to the county in the garb of the forest products industry has been mounted.  Tom Westergreen, Richard Whitmore, and the A.L.R.T. corporation (a timber harvesting firm) have lawyered up and challenged the reconveyance.  The Hearings Board has consolidated the Petree challenge and the new challenge so, a new timeline is established.  The challenges will be decided in November.

As always, remember to "share" this post with your facebook friends.

Whatcom Land Trust Allowed To Intervene But Is Restricted To Addressing Challenge Issues

The pre-hearing conference between the Western Washington Growth Management Hearings Board, Jack Petree and Whatcom County was held this morning.

Despite not having yet been accepted as an Intervener, Whatcom Land Trust's attorney, Heather Wolf, called and signed into the conference as well.

Don't Forget To Share On Your Facebook Page Etc.

Whatcom Land Trust's view of how large the local forest products industry should be

The land trust participation was a good thing in the sense that we were able to address my objections to the Trust's participation today without having to disrupt the schedule.

The Land Trust was allowed to intervene in the case but, the Trust was limited by the Board to addressing only issues brought up in the challenge to the reconveyance so, the potential for a circus revolving around issues having nothing to do with the reconveyance is avoided.

Lots of work for the remainder of the month asking for new materials to be added to the exhibit list and so on. 

Land Trust Intervenes In Reconveyance Challenge - Are They Threatening To Sue The County Or The Hearings Board If They Don't Get Their Way?

The following was released late yesterday.  Aside from the intervention is anyone else as puzzled as I am about why the Whatcom Land Trust holds conservation easements on 15 of our county park properties?  More on that later but, for now:

Press Release:  Jack Petree   360-733-1303

Subject:  Whatcom Land Trust Intervention In Petree Challenge To Growth Management Hearings Board

Title:  Whatcom Land Trust Positions Itself To Assure It Can Sue Whatcom County And/or The Growth Management Hearings Board In Superior Court Over Reconveyance

May 3rd, the Whatcom Land Trust moved to intervene in Jack Petree’s challenge of the Lake Whatcom Reconveyance before the Growth Management Hearings Board. 

According to Petree, the County’s challenger, “The land trust did not address the issues before the Board in its motion to intervene but, instead, appears to be worried about two non-legal issues.

First, the Trust complains, the County, “…may choose to settle with Petitioner on terms that substantially affect WLT, even though it (the Land Trust) is not a party.”

Second, the Land Trust worries that, “The County has no independent interest or motivation to advance or protect the property interests of any individual or organization.”’

Petree says he has offered to settle his challenge if Whatcom County will agree to suspend its reconveyance request until it has docketed and attempted, in a transparent public process, to dedesignate the land proposed for reconveyance and redesignate those lands to a zone that allows public parks.  Currently, he says, parks are excluded from the land proposed for reconveyance.

The County has rejected a transparent public process to change the zoning on the land, Petree says, but he is “…still hopeful the County Council will do the right thing and avoid the legal challenge now before the Board along with the expense and effort required by both Petree and the County when legal remedies are the only way to settle an issue.”

Second, Petree puts forward, it is interesting that the Land Trust is so worried about its own ability to control the Whatcom County Parks system.  In its request the Land Trust points out that it already controls, through the mechanism of conservation easements, 15 county park properties.  “Now the Land Trust seems to be worried it will lose the potential to control another 8,800 acres of land currently dedicated, by Washington State Law, to the preservation of Whatcom County’s timber industry,” Petree continues.  “I always thought the public should control its own parks but, apparently, the Whatcom Land Trust disagrees.”

Petree said he will oppose the Land Trust’s request for intervention because the Land Trust did not speak to the issues of the Petition for Review in its intervention request but will be surprised if the Trust is not allowed to intervene.  That could mean, Petree says, if he prevails at the Hearings Board the Land Trust could take the Hearings Board to Superior Court and possibly beyond in an attempt to overturn the decision.  Alternatively, Petree contends, if the county chooses to settle the issue with Petree the Land Trust’s intervention appears to be a thinly veiled threat to sue to stop the transparent public process necessary to rezone the land to allow for a public park. 

I thought you might like this from Wikipedia:
http://en.wikipedia.org/wiki/Conservation_easement

In the United States, a conservation easement (also called a conservation basement, conservation covenant, conservation restriction or conservation servitude) is a power invested in a qualified private land conservation organization (often called a "land trust") or government (municipal, county, state or federal) to constrain, as to a specified land area, the exercise of rights otherwise held by a landowner so as to achieve certain conservation purposes. It is an interest in real property established by agreement between a landowner and land trust or unit of government. The conservation easement "runs with the land," meaning it is applicable to both present and future owners of the land. As with other real property interests, the grant of conservation easement is recorded in the local land records; the grant becomes a part of the chain of title for the property.

Why There Must Be A Reconveyance Challenge

People ask why a challenge to the Reconveyance is so important.  Interestingly, some of those people are the same persons who fight hard to preserve Ag land and the county’s agricultural heritage.

Pretending slides and other natural events will stop if we just have Reconveyance is disingenuous

Sometimes the question is asked because the person asking is unaware that the land the county has requested for reconveyance is zoned Commercial Forest (CF), a designation that, by law, confers the same protection on the land that designation as an AG zone does.  Under the Growth Management Act and by adoption of the Whatcom County Comprehensive Plan and its accompanying development regulations, lands zoned CF are dedicated to the maintenance and enhancement of the County’s timber industry.  Parks are, by law, forbidden in the zone.  Many Hearings Board decisions and a couple of Supreme Court decisions have upheld that contention.

If the Executive and the County Council had done what they are required to do some years ago, there would be no challenge.  To change a zoning designation the County is supposed to docket (schedule) a transparent public discussion of the change, allow the Planning Commission to examine the facts about the rezone, take testimony then make a recommendation regarding the change to the County Council.  If the Council votes to rezone the land, actions like the reconveyance can be initiated.  Parks and Commercial Timber production are not compatible.  The land cannot be dedicated to both at once.

County Council member Pete Kremen has belittled the impact of removing 8,800 acres of land from the forest resource base.  It should be remembered that several other reconveyance actions have already reduced the timberlands of the county and more are planned.  In addition, consider the following quote from a DNR analysis about the future of the forest in Washington presented to the Washington Legislature in 2007 (pre-recession):

“Timber harvest has dramatically declined in the past 15 years on all ownership categories, from 5.9 billion board feet per year to 3.6 billion board feet per year, a 40 percent aggregate decline. The greatest declines have been on national forests as a result of federal policy. Unanticipated harvest declines have also occurred on state trust lands, on western Washington tribal lands, on industrial forest lands, and on western Washington non-industrial private lands, largely in response to changing regulations and market conditions and to land conversions.”

A Petition For Review or challenge to a County action is not a lawsuit.  It is just what it says it is, a petition for review.  If the Hearings Board finds the County erred then the Reconveyance Resolution will be sent back to the County for a proper process.

If we are going to deliberately destroy an industry shouldn’t we at least acknowledge we are doing just that?  The appropriateness of such an action is what a proper and transparent process to redesignate the land to a zoning designation allowing parks on the land would explore. 

All that is one reason a challenge is important.

We're More Than Just A Pretty Face Now

I received a form from the Prosecutor's Office Friday with the case number on it.  Apparently we are Hearings Board number 13-2-0016 based on that communication.  I have not yet been formally notified, probably because mail is a bit delayed from Olympia.

Meanwhile, I thought you might enjoy the photos below, taken in the 1890s.  The two forests pictured are not the Reconveyance lands but are of forests similar to Whatcom County's.

The takeaway is that the pre-settlement forests were not static. They burned, they died, they were blown over in windstorns and they grew again.

Don't forget to hit the "share" buttons at the bottom to share news of the reconveyance with your Facebook and other friends.

According to the survey of the nation's forests accomplished in the last years of the 1800s, much of the forest in Whatcom County had burned before it was harvested.  Note the forest in front of the McMansion in the bottom photo.