Public Input on an Important Change
The Board of County Commissioners will be holding a public hearing on November 18 @ 3:30 to decide whether to change the process by which appeals of hearing examiner decisions are reviewed.
Presently, those appealing a decision by the hearing examiner are able to present their case to the Board. If the Board decides to stop entertaining appeals, people would have to take their case directly to the Superior Court, a process which is prohibitively expensive for most people. In addition, the Board can decide issues based on already-decided policies while judges for the Superior Court and appeals courts must make decisions only on the basis of law. Also, judges must begin with a “presumption of correctness” for hearing examiner decisions.
It has been suggested that commissioners should avoid tough choices to protect themselves. Handing over all appeals to a costly court process might shield officials from political risk, but it comes at the expense of democracy and access to justice. By contrast, making hard decisions in the open, where the public can hold you accountable, is the very essence of elected leadership.
Thurston County’s Planning Commission voted unanimously to recommend that the Board NOT change the rules and instead continue to allow appeals to the BOCC. You can also support NO CHANGES TO THE CURRENT APPEAL PROCEDURE by testifying online or in person at the November 18 public hearing, or by commenting online at https://www.surveymonkey.com/r/PJ78LWK
Johnson Creek Mine Appeal
The recently filed Johnson Creek Mine appeal is the perfect example. The appeal would have never happened were it not for the fact that residents were able to appeal to the Board. An appeal to a Superior Court Judge would be too costly.
Our last issue included the saga of residents appealing the county’s environmental review in that case. The county had given a green light to the mine owners to expand from 10 acres to 228 acres in Forestland of Long Term Commercial Significance, a special forestry district meant to conserve forestlands. After the county’s environmental review said the project could go forward, the hearing examiner granted the mine owner a Special Use Permit to expand, and denied residents’ appeal of the environmental review.
This case is extraordinary in that although county staff gave a green light in their environmental review, during the special use permit hearing they told the hearing examiner not to issue the permit. In other words, they contradicted themselves.
During the hearing, county staff testified about how the applicant had repeatedly failed to provide information requested by the county, and so the county finally gave up and decided to put the issue before the hearing examiner.
One can easily fault the county for greenlighting the project in its environmental review (i.e., by issuing a Mitigated Determination of Non-Significance-“MDNS”). When there is insufficient information to make a decision, the county should undertake an extensive environmental review (“Environmental Impact Statement” or EIS). But as been previously reported, the County rarely orders a full project level EIS, even if warranted.
It is highly unusual that a hearing examiner, who is supposed to give deference to county staff’s expertise, should even have considered granting the permit, given the County’s opposition.
There is a good chance the Appellants could win this appeal to the Board, which could reverse the hearing examiner’s decision and deny the permit, based on the Board’s own determination that it is bad policy to expand the mine at the expense of forestland, salmon runs, and well water.
Some of the conditions county staff requested were intended to control stormwater from the site to prevent mud from flowing down the steep slopes into nearby streams, wetlands, and the Deschutes and Skookumchuck Rivers, damaging salmon runs. But the hearing examiner decided to delete the county’s protective conditions.
The hearing examiner also chose to disregard this mine owner’s multiple water quality violations and lack of compliance with pollution controls and permit standards. The hearing examiner claimed that “past compliance issues have been addressed and the history does not suggest that the conditions attached to this decision will be ignored.” But the only evidence he relied on for this conclusion was the mere fact that the Department of Ecology did not provide public comment about this history of noncompliance.
The Board could reverse the decision based on the hearing examiner’s many errors, or they could simply reverse based on county policy. Policy reasons include the Thurston Climate Mitigation Plan. It has strong protections for trees and critical areas. If the residents had been required to instead appeal directly to Superior Court, the judge would have no ability to render a decision based on these policy reasons. Only the Board can base decisions on policy reasons because it is a legislative body.
If the Board were to change its rules to send appeals directly to the Superior Court, it would serve to give control of county development to a hearing examiner and a judge, instead of to the elected Board.
Maytown Appeal
Not only can we look at the Johnson Creek Mine appeal to see how important the Board is for our ability to appeal bad hearing examiner decisions, but we also can look to the past: Maytown Sand & Gravel LLC v. Thurston County (2018).
That was a case that the county lost. Some point to it as proof that the Board should avoid appeals. In fact, it shows the opposite. The commissioners protected the public from a devastating project by NorthPoint similar to the one written about in 2019 in Illinois. In the Illinois case, local officials welcomed a multimodal freight transfer center based on the promise of good paying jobs. What they got instead was a project that ruined the local economy, led to a huge budget deficit due to semis tearing up roads, provided low-paying jobs only, created a death trap on the highway from speeding semis, and added pollution to the air from diesel gas. Children cannot play outdoors anymore.
In the Maytown case, the Board was tripped up by a legal procedural trap engineered by the Port of Tacoma’s attorneys. The case resulted in an award of $12 million against the county. But the supposed catastrophic hit was not catastrophic at all — the county paid about $1 million, with the remainder covered by insurance. This is what insurance is for. The real takeaway from the Maytown case is that commissioners acted bravely to prevent an outcome that would have forever damaged our community. We all owe the commissioners in the Maytown case a huge debt.
Legal machinations are one of the biggest problems with removing the Board from the appeal process—few residents who take an appeal to Superior Court find justice when they get there. It’s expensive, the judge cannot consider policy and and the judge is required by law to presume the hearing examiner’s decision was correct (this is called a “presumption of correctness”). Access to justice is front and center in the question of whether the Board should be involved in appeals.
If the Board shuts off this avenue of appeal, it will in essence be giving up its superpower to make the county a good place to live.
Removing the Board from appeals is not about protecting taxpayers. It is about insulating elected officials from accountability. The real catastrophic hit would be to the farmland, natural resources, and rural character of Thurston County if residents lose their only meaningful chance for a fair hearing before the leaders they elected.
Ronda Larson Kramer and Esther Kronenberg write on environmental issues for WIP.
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