May 14, 2005 in City
Dispute over land-use rules at high court
OLYMPIA – A years-long battle over land-use rules in sparsely populated Ferry County this week reached the state’s highest court.
The issue: When a county has little money and a tiny staff, what is “best available science” for making rules to protect wildlife habitat?
Bigger than Rhode Island but with a population of just 7,300 people, Ferry County maintains that it used the “best available science” when it found a local retired Alaskan biologist to write, free of charge, a couple of letters suggesting what kinds of threatened wildlife might need habitat protection.
But that’s nowhere near adequate, according to a state hearings board. The board cited a state list of a dozen threatened species believed to be in the area. Among them: the woodland caribou and the American white pelican.
The county disputes that those creatures even exist in Ferry County.
“There’s more reports of sasquatch here than there is of either one of those species,” said Mike Blankenship, county commission chairman. “I don’t happen to be a sasquatch believer, but we’re expected to prove a negative, and that’s pretty doggone tough to do.”
The county five years ago appealed to a Thurston County Superior Court judge in Olympia, who ruled that the board “is clearly incorrect” in implying that those species are in Ferry County without any evidence.
But it was not a significant error, Judge Thomas McPhee ruled. The real issue, he said, was whether Ferry County had used the best available science in developing its state-mandated habitat conservation plans.
“It’s not necessarily about the caribou,” said David Robinson, president of the group that filed the lawsuit, Concerned Friends of Ferry County. “It’s about habitat conservation.”
In 1990, Washington lawmakers passed the Growth Management Act, which regulates land use and planning. Legislators were concerned about uncoordinated, unplanned sprawl threatening the state’s environment. The act sets goals and deadlines and offers direction. Among other things, local governments – like Ferry County – are responsible for designating critical habitat, such as the areas alongside streams, and adopting regulations to protect that habitat.
To come up with its list of local animals needing habitat protection – the bald eagle and the lynx – the county sought out a retired Alaska Department of Fish and Game ecologist, Donald McKnight. According to court records, McKnight did some research and submitted two letters to the county, each two pages long. He charged nothing for his services.
In his 2002 ruling, Judge McPhee sided with Concerned Friends of Ferry County. “Under no circumstances can it be argued here that the county has submitted any information that would rise to the level of best available science,” he said. The Eastern Washington Growth Management Hearings Board said that McKnight hadn’t mentioned any field observations, and apparently hadn’t consulted with the Confederated Tribes of the Colville Indians or the U.S. Forest Service.
Blankenship said that the county, despite its size, has very little taxable land left for development. The Colville reservation covers the southern half of the county; national forest covers much of the rest. Depending upon how you calculate it, only 13 percent to 18 percent of the county’s land is taxable, Blankenship said.
“It’s a tiny tax base,” he said. As a result, he said, the county’s employees are among the lowest-paid in the state. Some departments consist of a single employee. So the county was happy to find an accredited biologist who would volunteer to help out, he said.
Michael Pierson, the attorney for Concerned Friends of Ferry County, told the Supreme Court that the county could have gotten grants, checked state biology Web sites, or sought help from state agencies or the Colville Tribes.
“There wouldn’t be any charge for consulting with the Forest Service,” agreed Justice Susan Owens.
“Even though great deference is given (to local government’s plans), you still have to show your work, to some extent,” said Justice Mary Fairhurst.
Concerned Friends’ attorneys have also pointed out that the county’s list made no mention of bull trout, an endangered species, despite the fact that the Forest Service has designated a local bull trout recovery zone.
Other justices seemed sympathetic to the county.
“It would be real pricey, I would think, if you start having peer review about whether the woodland caribou is wandering around Ferry County,” said Chief Justice Gerry Alexander. “What is available with a county with 7,000 people versus what’s available to, say, Pierce County, King County or Spokane County?”
Just how far should a county have to go, wondered Justice Richard Sanders.
“I suppose in something like this, you could always do more,” he said. “You could round up 10,000 guys and have them march through the county, shoulder to shoulder,” documenting any creatures they find.
Nobody’s claiming that would be necessary, responded Pierson.
A ruling isn’t expected for months.