Clallam commissioners decide to stay out of private lawsuits after invite to join water management rule litigation
By Rob Ollikainen
Peninsula Daily News
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A group of citizens has asked commissioners to join a lawsuit filed against the state Department of Ecology’s controversial water management rule for the Sequim-Dungeness Valley — or at least file an amicus brief in support of the action.
Opponents of the rule, including McEntire, said the regulation is flawed because it prohibits property owners who drill new wells from using their water outdoors because of a lack of available “mitigation” water in areas south of the valley’s irrigation ditches.
The lawsuit was filed Dec. 31 by the Olympic Resource Protection Council in Thurston County Superior Court.
While commissioners want Ecology to fix the 2013 rule, they agreed Monday that joining a lawsuit would set a bad precedent.
“What is the limiting principle?” McEntire asked. “How do you then say no to the next one that comes in?”
McEntire said it would be “inadvisable” for any government to join a private legal action. He suggested that the county have a written policy concerning lawsuits.
Commissioners directed County Administrator Jim Jones to research the discretion of the Board of County Commissioners and the elected prosecuting attorney to file independent lawsuits.
The board will hold a future work session with Prosecuting Attorney Mark Nichols to expand on the discussion.
McEntire said the county has had a long-standing tradition of “essentially stay in our lane and not seek to get in somebody else’s lane.”
“There’s a lot of wisdom in that, it seems like to me,” McEntire said.
Individual commissioners are free to contact state legislators to lobby on behalf of constituents, Commissioner Mike Chapman said.
“I don’t see how a board of commissioners can require a prosecutor to do anything,” Chapman said.
“That would have to be a teamwork approach.”
Chapman and Commissioner Bill Peach recently signed onto a letter that McEntire penned regarding the rule area from Bagley Creek to Sequim Bay.
The letter to Ecology said the rule conflicts with county zoning because farming and agriculture are allowed in rural areas.
Chapman, who recently announced that he will not seek a fifth four-year term, said Clallam County has supplied Ecology with hundreds of letters regarding the water rule and a water management plan for the Sequim-Dungeness Valley.
“I wish they would have followed our plan to the letter of the law so we wouldn’t be in this mess,” Chapman said.
Connie Beauvais, vice chair of the county Planning Commission, asked the board last week to join the lawsuit or file an amicus brief — a court document filed by an entity not directly related to a case but with strong interest in or views on the subject of an action — supporting it.
She said she was speaking on behalf of the Port Angeles Business Association.
Beauvais and Kaj Ahlburg of the Olympic Resource Protection Council told commissioners that joining the lawsuit would strengthen the county’s negotiating position and stimulate Ecology to remove the “yellow area” where no mitigation water is available on Ecology maps.
Chapman questioned whether an amicus brief would contain anything that Ecology officials haven’t already heard.
“Even if we wanted to, I don’t see how we could pass a motion today requiring an elected prosecutor to file an amicus brief,” Chapman said.
“I don’t think we have that authority.”
Jones said there would be practical barriers to joining the lawsuit, including the fact that many citizens support the water rule.
“You’ve got to preserve your ability to represent everybody,” Jones told commissioners.
“Once it gets down to legal warfare, I think we try to stay out of that for the practical reason of it just doesn’t make sense to get involved.”
Peach raised the option of a non-binding advisory vote to allow citizens to weigh in on major political issues like the Dungeness water rule.
“At what point does the use of an advisory vote assist us?” Peach asked.
Jones said it would be possible to run an advisory vote in a November election.
Reporter Rob Ollikainen can be reached at 360-452-2345, ext. 5072, or at firstname.lastname@example.org.
Last modified: March 30. 2015 6:57PM