OLYMPIA – The fight over a proposed power line in the Methow Valley pits Lands Commissioner Peter Goldmark against Attorney General Rob McKenna.
Goldmark gets a chance later this year to persuade the Supreme Court to order McKenna to continue representing him in an ongoing legal battle over the proposed route for an Okanogan Public Utilities District transmission line.
McKenna says the legal work to appeal a case the state lost in May isn’t worth the time and energy it would take. Goldmark says McKenna’s office has the duty as the state’s legal counsel to continue the fight.
With each accusing the other of politicizing the case, the Supreme Court this week ordered attorneys for Goldmark and McKenna to file legal briefs this fall and to argue in November whether they should issue McKenna a writ of mandamus – an order from a court to a government official to do something because it’s his or her legal duty.
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Goldmark said he was pleased the state’s highest court agreed to take the case, calling it “a critical constitutional question” of whether the attorney general, an elected official, can make policy decisions for another statewide elected official.
A spokesman for McKenna said the court’s decision to order oral arguments is an incremental step, with the justices wanting a more complete briefing on the dispute. “It’s developing day by day, week by week,” Dan Sytman said.
The underlying dispute, over a proposed transmission route from Pateros to Twisp, has been developing for more than five years. Okanogan PUD wants to replace its current transmission line, which it says is inefficient and unreliable, and began releasing versions of an environmental impact statement in early 2005.
The proposed route was challenged by landowners, the Methow Valley Citizens Council, and the People for Alternatives, Conservation and Education, who argued the new line should follow the same route as the existing line rather than going though sections of undeveloped land.
“It’s going to be incredibly expensive, and it’s going to destroy a lot of land,” Vicky Welch, chairwoman of the citizens council, said Tuesday.
They contended the impact statement was inadequate, but lost in Superior Court in 2006, an appeals court in early 2008 and the Supreme Court in late 2008.
The PUD began condemning land through eminent domain for the new route in 2009. The line would go through Public School Trust land managed by the Department of Natural Resources, making the state one of the biggest landowners. Although the PUD would have to pay for the land it used, the state argued the line would split existing tracts, making the remaining land less valuable.
The state joined other landowners in contesting the eminent domain request.
When a Superior Court judge granted the PUD’s request in May, Goldmark wanted to appeal, saying it was an important fight to protect state land. McKenna said the state’s case wasn’t strong enough to win an appeal.
State law currently allows a PUD to condemn state land for a public use, he said. In fact, the Legislature considered a bill last spring that would have changed state law to prevent such actions; DNR supported the bill, and even asked that it be rewritten to be retroactive, to prevent Okanogan PUD from prevailing in court.
But the Legislature never voted on the bill, and it died with the session.
Goldmark said by refusing the appeal, McKenna was making a policy decision that isn’t his to make.
That’s the basis of Goldmark’s request for a writ of mandamus, which is being handled by a private attorney.