More Coal Politics: Appearance of Fairness, Local Land Use and Elections

The issue of appearance of fairness has generated some interest in regards to the proposed coal terminal at Cherry Point, Washington. Jared Paben at the Bellingham Herald asks, "Should candidates for County Council give their opinions on the proposed Gateway Pacific Terminal?" 

If one looks at only RCW (Revised Code of Washington) 42.36.040 one would readily conclude that candidates can give their opinions. RCW 42.36.040 states "Prior to declaring as a candidate for public office or while campaigning for public office as defined by *RCW 42.17.020 (5) and (25) no public discussion or expression of an opinion by a person subsequently elected to a public office, on any pending or proposed quasi-judicial actions, shall be a violation of the appearance of fairness doctrine"

However, RCW 42.36.110 states "Nothing in this chapter prohibits challenges to local land use decisions where actual violations of an individual's right to a fair hearing can be demonstrated". 

I posed this question regarding Section 110 to a reputable attorney who had previously cited Section 040 as a simple answer that council candidates can give their position. He noted that Section 110 has not been used in an appellate decision to invalidate a county land use decision. But he did go on to say "I believe it’s there to assure that in an egregious situation, the courts can act".

The Municipal Research Council (MRSC) says this about Section 110: 

"Even though some conduct might not violate the statutory provisions of the appearance of fairness doctrine, a challenge could still be made if an unfair hearing actually results. For instance, although RCW 42.36.040 permits candidates to express opinions on pending quasi-judicial matters, if opinion statements made during a campaign reflect an intractable attitude or bias that continues into the post-election hearing process, a court might determine that the right to a fair hearing has been impaired even if no statutes were violated. 

The safest approach: avoid any appearance of partiality or bias.

Because it is often difficult to sort out the many functions of local decision-making bodies, a clear line cannot always be drawn between judicial, legislative, and administrative functions. If the proceedings seem similar to judicial proceedings then they probably warrant the special protections called for by the appearance of fairness doctrine." 

So opinions offered by candidates may come down to how egregious statements are for or against the coal terminal. My attorney friend offered some statements that he felt might be viewed as leading to an appearance of fairness issue and some that might be acceptable. The example he gave of unfairness was a bit over the top, "I don't care about the law, I oppose or I am in favor no matter what". But then some candidates can say goofy stuff and that is likely why Section 040 was written. The acceptable examples probably would not be acceptable to people that really, really want to know candidates positions and sounded mealy mouthed.  

I am not sure anyone really knows where the line on appearance of fairness from campaign statements lies. Court decisions on non political statements have brought some clarity. Stuff like financial gain, or secret meetings outside the record or telling people participating in the hearings they are wasting their time. But thus far nothing on statements made during political campaigns.

I can think of three reasons for the lack of court cases.

1) Since the Appearance of Fairness doctrine was developed by the courts a number of new land use laws such as the Growth Management Act have gone into effect that reduces the politics on land use decisions. There is still plenty of room for politics on land use policy, but much more precise local codes and processes constrain local electeds when they have to make land use decisions. The good old days of arbitrary decisions are no more. The end result could well be that someone running for office would say "I fully support the coal terminal at Cherry Point" only to find that the county staff and Hearing Examiner recommend denial as the permit does not meet the code or even more likely conditions the permit so heavily that the terminal would never be built. That council member would then have to some how figure out how the Hearing Examiner and staff were wrong and convince at least 3 other council members to follow. My own experience with that process even when it turned out I was right went down 6-1 wa-supreme-court-rules-in-favor-of-fire.   

2) Most elected officials are routinely briefed on Appearance of Fairness matters and most believe in being fair anyway. During any quasi judicial process in which I took part, great pains were followed to appear fair and when bias of any sort is expressed ahead of time it is usually by accident or out of ignorance and usually the official in question would recuse themselves. I know that I stepped aside twice when I was on the Council because I knew too much about a particular quasi judicial issue and that information was not part of the record and I felt unable to not be influenced by that information. Council members will routinely give statements before hearings that despite some accidental conversation they can still decide in an unbiased manner.

3) It is likely very rare that a quasi judicial issue becomes a campaign issue so the opportunity to test the apparent forgiving language of RCW 42.36.040 may not have taken place in the past. While no appellant court has overturned a land use decision based on appearance of fairness issues related to statements made during a political campaign, my attorney friend did not indicate that a case has ever been brought forward on this issue.

The appearance of fairness doctrine was initially established in Washington State by the courts, not the State legislation. RCW 42.36.110 appears to recognize this. 

The MRSC makes a number of recommendations regarding appearance of fairness including, "Strive to preserve an atmosphere of fairness and impartiality—even if a given decision may seem to be a foregone conclusion," and " Make sure decisions are made solely on the basis of matters of record."

Not bad advice for any community leader. Particularly when a community faces a divisive issue. 

Field Work: Freeway and a Lone California Poppy

Not all field work is glorious geology problems. Monday started with crawling around in a basement and crawl space of a 90 year old masonry building evaluating foundation settlement. I then drove to "field" jobs in Kent, Lynnwood and Edmonds. Lot of time on the freeway. While entering the freeway at a freeway light meter east of Edmonds I spotted a California poppy growing out of the space at the base of the concrete land barrier.

Lone California poppy

Lack of centered picture resulted from keeping my eye on the road ahead

There were no other poppies anywhere in the area. I began looking for them as entertainment on my way back north and never saw another one. California poppies like droughty locations and I have noted them elsewhere along the freeway. So in my traffic addled mind I speculated if this lone poppy is the northernmost I-5 poppy. I will have plenty of opportunities to make that determination.

Coal Politics Comes to Washington and Wonky Process and Diplomacy (update)

Update: I may have overstated the applicability of appearance of fairness so I made a few changes to the post as noted via underlined text or strikeout. I suspect that there is more to this than what I have received by one attorney so far. 

Coal politics has come to Washington State, particularly in northwest Washington in Whatcom County and southwest Washington in the Longview area. Coal has been a powerful force in U.S. regional politics for a long time. In Washington State Coal mining has taken place in a number of areas including Bellingham, east King County, Cle Ellum and Centralia. Most of these mines closed many years ago. The last mine in Bellingham closed in the mid 1950s. Centralia was the only area with a significant open pit coal mine and that mine continues to operate. Centralia also has a coal fired electric power plant, but that plant is slated to close in a few years.

With coal being a fairly minor presence in Washington State combined with plentiful hydro power, coal politics has been a minor issue in Washington politics. But the proposed coal terminals first in Longview and now in Whatcom County have brought coal politics to Whatcom County and Cowlitz County and the State of Washington.

I previously posted on this issue: coal-terminals-in-washington-state, coal-terminal-preemptive-strike, and cherry-point-coal-terminal-update. There has been plenty of excellent reporting in Whatcom County on the issue by Bellingham Herald reporters John Stark and Jared Paben both in the paper addition as well as on line with an article last week on Whatcom County's decision to require the coal terminal project proponents to file a new shoreline major development permit and new major development permit whatcom-county-gateway-pacific-terminal-story-with-ssa-attorney-comments,  read-the-letters-in-the-county-decision-on-the-gateway-pacific-terminal-shorelines-permit/, and a compilation of State of Washington communications regarding the project a-peek-behind-the-scenes-as-state-agencies-review-gateway-pacific.

With local elections taking place this summer and fall, coal politics has come to Whatcom County. But it is a tricky thing for those running for office.

County Council:

For candidates for county council this issue is politically very tricky. Ultimately the Council will vote on final approval of the project via the rules for major development projects if it comes to them for approval. Hence, they are faced with an appearance of fairness issue. They really are very much like a jury and their decision is to be based on the record before them and how that record meets County Codes and the environmental impact statement. Hence, Council members have to refrain from speaking their true feelings about the issue. However, based on RCW 42.36.040 candidates are not in violation of appearance of fairness including "Prior to declaring as a candidate for public office or while campaigning for public office as defined by *RCW 42.17.020 (5) and (25) no public discussion or expression of an opinion by a person subsequently elected to a public office, on any pending or proposed quasi-judicial actions, shall be a violation of the appearance of fairness doctrine". So despite the appearance issue, council candidates and for that matter executive candidates may speak their mind.   Difficult for the Council candidates and frustrating for the public that may really, really, really want to know candidate views and really, really, really want to influence the council candidates.  However, another section, RCW 42.36.100 states "Nothing in this chapter prohibits the restriction or elimination of the appearance of fairness doctrine by the appellate courts. Nothing in this chapter may be construed to expand the appearance of fairness doctrine". And RCW 42.36.110 states "Nothing in this chapter prohibits challenges to local land use decisions where actual violations of an individual's right to a fair hearing can be demonstrated". A question for attorneys that is outside my knowledge. 

One sitting Whatcom County Council member likely already got sideways with this issue when he brought forward a resolution in favor of the coal terminal project. He was apparently ignorant of the appearance of fairness doctrine. Whoops.
What follows is a summary of the process county council members face. For some council members projects like this can be a truly awful situation, particularly if they oppose the project. The County administration will do the review of the project application and will then prepare a report for the Hearing Examiner. The purpose of the Hearing Examiner process which includes a public hearing is to make sure that the application meets the criteria of the County Code. The way to look at it is that the Hearing Examiner makes sure that the County planners properly followed the code and interpreted the application correctly. The hearing examiner acts as a judge of the law and the application for the project meeting the criteria set forth in County codes.

Once the application gets through the Hearing Examiner process it is forwarded to the County Council and  the Council has three choices:

1) Make a final decision on the application based on the Hearing Examiner recommendation with such modifications that the council deems appropriate. The Council is very constrained on what is appropriate)

2) Send the application to the Planning Commission for additional hearing and a recommendation before making a decision  as in number 1 above.

3) Set their own public hearing before making making a decision as in number 1 above.

Any significant modifications outside the legal parameters are not allowed and if they take place are readily challenged in a court appeal. And this is where it is an awful situation for some council members.  If the project meets the criteria to be granted a permit the council really can not alter the permit or deny the permit even if they do not like the rules they very well had nothing to do with setting as the rules governing the project were set some time ago.

What are the rules, from Whatcom County Code 20.88.130:

 The major project permit shall be issued by the county council when the applicant has established that the proposed major development:

(1) Will comply with the development standards and performance standards of the zone in which the proposed major development will be located; provided where a proposed major development has obtained a variance from the development and performance standards, standards as varied shall be applied to that project for the purposes of this act.

(2) Where the project is conditionally permitted in the zone in which it is located, the project must satisfy the standards for the issuance of a conditional use permit for the zone in which the project is located.

(3) Will be consistent with applicable laws and regulations.

(4) Will not substantially interfere with the operation of existing uses.

(5) Will be served by, or will be provided with essential utilities, facilities and services necessary to its operation, such as roads, drainage facilities, electricity, water supply, sewage disposal facilities, and police and fire protection. Standards for such utilities, facilities and services shall be those currently accepted by the state of Washington, Whatcom County, or the appropriate agency or division thereof.

(6) Will not impose uncompensated requirements for public expenditures for additional utilities, facilities and services, and will not impose uncompensated costs on other property owned.

(7) Will be appropriately responsive to any EIS prepared for the project.

It is possible that a clever council member may be able to get the majority to make a substantial change counter to the Hearing Examiner's recommendation, but it has been my experience that it is rare unless the Hearing Examiner made a decision that the staff opposed in which case the staff will have an alternative presentation to the council. I was once on a panel that altered the final draft of the EIS in order to better support our position as the original EIS drafters did not share our interpretation of a significant impact on a couple of issues. But in that case we had control of the EIS. In this case the Council is not in charge of the EIS. Hence, Council members would have to be able to clearly demonstrate with supportable findings found in the record flaws or failures in mitigation.

Which brings up the other election to county government.

County Executive:

Of all the positions that are important in regards to major development projects, the County Executive is far the most important. But again the Executive candidates can't not show favoritism. They must demonstrate that they would oversee the review of the project in a fair manner. For big projects like this one there are numerous administrative decisions where discretion can be applied. One area of discretion is the scope of the Environmental Impact Statement (EIS) and the oversite evaluating the impacts and mitigation. The scope of the EIS may be established before the election is over, but that scope and candidate views on the scope will be a good way to judge the candidates on this issue. And again this position is much more important than the council.

Mayor of Bellingham:

A friend pointed out that the next mayor of Bellingham might be determined by an issue that the mayor has no authority on. As the position has no legal role, mayor candidates and for that matter city council candidates can pretty much say whatever they want.

Though the mayor may have no authority on this project, the mayor may be able to influence those that do have some authority. One mayor candidate, Dan Pike, has already come out strongly opposed to the terminal project after initially being tentatively supportive bellingham-mayor-region-needs-jobs. The other leading contender, Kelli Linville, has also come out opposed to coal.

With no authority, it would appear on the surface not to matter what the mayor's position is. However, the mayor is a political leader and may be able to have influence on County leaders. The question may then come down to diplomacy. What is the best approach for influencing the legally binding process the county must follow? The current mayor up for reelection sent a letter to the Governor asking the state to take the lead on the EIS. The State has no authority to take the lead unless the County requests the state to do so. The letter further argued that the State is much better equipped to handle the EIS. The County response to this letter was to send a letter to the Governor outraged at the mayor's letter. Now imagine being in the Governor's office and getting two letters from the same area of the state basically pissing on each other (for a lack of a better term). Yikes.

And regardless of this diplomatic kerfuffle, Is it better to have local control of the EIS or state control of the EIS? Did this letter make any friends with the very people you may want as your friends (the County) if you oppose the project?


City Council:

Like the mayor, city council members have no authority on this issue and can say pretty much whatever they may want. The current City Council sent a letter to the County simply asking that a broad range of impacts including traffic impacts and train impacts along the rail route be considered as part of the review of this project. I suspect the Council being a process oriented body has a good grasp of the process and has behaved in a diplomatic manner. No toe stomping with a respectful letter of request to the county.


It is an election season; and style and process and making a difference on the landscape may not matter nearly as much as Coal Politics.

Lake Whatcom and a Special Thanks to Dennis Jones

Setting good policy and its impact on the land is about people. If we only looked at land and policy setting from a strict land perspective, it would be easy to develop smart sensible land use policies. But people are part of setting policy as well.

Lake Whatcom is the drinking water source for half of Whatcom County and the entirety of Bellingham. Unfortunately at one time the land around the lake was nearly all privately owned so protecting the lake has involved people - a lot of people with a lot of different interests. Over the past 20 years significant land use policies and decisions have come up on Lake Whatcom: Land transfers, zoning changes that reduced development potential, land purchases, development regulations, lake specific forest regulations for the public land, and rules for motorized boats. Many of these tasks were exceedingly difficult and I found myself in the middle of them as a member of the County Council and as a geologist.

No matter what the specific policy issue on the Lake, Dennis Jones was there to testify. He was always positive even with County Council members that were obstructive or with city officials that were passive. And had great follow through. After a policy was voted on and he would often be at the next meeting to say thanks. Due what I felt were severe problems on the lake I proposed a development moratorium for the lake until the Council could complete development of appropriate stormwater and development regulations. This was not a popular move, but it passed. I was invited to a meeting with a fairly hostile crowd to answer questions and take my required beating. Dennis Jones was there. He mellowed the crowd out better than anyone else could have. It was brave but also a kind thing to do and I will always appreciate what he did and said at that meeting. It made a huge difference to not only me but the public and in the end for much better policy.

Dennis certainly did not come across as a fighter, but the last time a Lake Whatcom issue was before the Council, he was there. He was clearly ill. He was a greater fighter for the lake. He symbolized about as well as anyone I have ever know what good land use policy is about people. Thanks Dennis.

Dennis R. Jones, 66, passed away peacefully at home on June 20, 2011. He was born April 9, 1945 in Burbank, Calif., to Reynard and Helen "Jerry" (McGowan) Jones. High school sweethearts Dennis and Heidi married on August 20, 1966, in Los Altos, Calif. Dennis was a loving husband, father, and grandfather. He was a teacher and a business owner, and spent the last decade of his life as a community activist. A passionate man, Dennis' pursuits included soccer, sailing, and working to better his community, especially in his efforts to preserve the water quality of Lake Whatcom. Dennis is survived by his loving wife of 44 years, Heidi, daughter Dianna (husband Daniel) Murray of Seattle and their children Alek, Clark, Miki, and Kyler, son Eric (wife Jocelyn) Jones of Olympia and daughters Spirit and Teagan, son Simon (wife Tahney) Jones of Seattle and their son Alex, son Stefan Jones of Seattle, and sister Teresa (husband Neal) Cabrinha of Saratoga, Calif. In recognition of their compassionate care for Dennis, memorials may be made to Whatcom Hospice. A celebration of Dennis' life will be held at Westford Funeral Home at 2 p.m. on Sunday, June 26, followed by a reception across the street at Westford's Broadway Hall. You may view photos of Dennis' life and share memories with the family at http://www.westfordfuneralhome.com/ Westford Family Funeral Home & Cremation

Sick's Stadium, Lowe's and Rainier Valley Redevelopment

Lowe's store on Rainier Avenue, Seattle

I was in Seattle earlier this week and heard a bit of buz about a proposal to rezone the Lowe's home supply store on Rainier Avenue in the southeast part of the city. The rezone proposal is apparently coming from the city as part of a plan to increase development density in this part of the city. Large box stores are more typically seen in suburbs and freeway interchange areas on the margins of cities, but this Lowe's store is in an urban neighborhood and . This is an area of Seattle where a significant amount of redevelopment has been taking place in part because Sound Transit has built commuter rail in the area, improvements to Rainier Avenue particularly to the north of this area towards downtown and the relatively affordable homes and apartments combined with less expensive and shorter commutes. Beyond that there area a number of urban centers that that are very appealing that have redeveloped along Rainier Avenue.   

There is a concern by residents of the area about losing an important anchor store. I know from living part time in a different part of Seattle a few years ago caused me to have to adjust my shopping habits as ready access to a variety of stores was limited and getting certain items could be very time consuming driving through urban traffic.

Sick's Stadium (Seattle Archives)

In addition this site has some significant history for Seattle. The site occupied by the Lowe's store was the former site of Sick's Stadium or Sicks' Stadium depending on the year. The stadium was used for many years by Seattle's minor league baseball team and for one year was the home of a major league baseball team, the Seattle Pilots. The Seattle Pilots single season in Seattle was a disaster. The stadium was too small and had inadequate facilities. By the end of games the water pressure was so low that visiting teams had to return to their hotels to shower. In addition the weather was terrible with many drizzly, cool cloudy days that were not conducive to baseball. Jim Bouton, a pitcher for the team chronicled the season in the famous book Ball Four. Reading the book revealed lots of problems with the team.  The team failed and the next year they were in Milwaukee as the Milwaukee Brewers

Columbus, Washington and Wood for Steam Boats on the Columbia River

Former Columbus, Washington

Just north of the Highway 97 Columbia River crossing and below Maryhill is a stretch of orchards and farm fields along the river shore. This area was settled before the arrival of Sam Hill and the construction of Maryhill. For one thing this low bench above the river area would have been an ideal location for First Nations settlement. When the Lewis and Lewis and Clark Expedition passed this area they noted many villages along the river as the river provided abundant fish for food. At that time (1805) there were probably significantly more people living along the river than today. One challenge the expedition had in this area was the lack of wood available for cooking purposes and on occasion they were obliged to purchase wood from the First Nations villages that they came across.

A small post First Nation community called Columbus was located at this site in as early as 1880. This small community traded in the very product that the Lewis and Clark Expedition found wanting in the area - wood. Steam powered ships moved goods up the Columbia all the way to Lewiston, Idaho on the Snake River. These low draft ships needed wood for firing their boilers. A trip from Columbus to Lewiston required 170 cords of wood. Not far downstream of this site was Celio Falls which effectively blocked ship passage and importing wood via ship from the more forested areas to the west. To the east there is no forest so this was the spot to get wood. Oxen teams would haul wood from the forests near Goldendale located to the north down the steep road to Columbus. 

Over time this operation probably pushed the forest edge around Goldendale back. The forest near Goldendale is a mix of oak and ponderosa pine with Douglas fir and a variety of other trees at higher altitude to the north.

With the arrival of rail, the steamboat shipping began to decline. What steamboats remained were then able to get coal from rail shipments to the area and the wood trade at Columbus came to an end. The timber harvest in the high country near Goldendale did not end, but the end use of the wood products shifted to lumber products.  

Sam Hill and "Where the rain meets the sun"

When I first moved to Washington State On the way to my new home in eastern Washington (DT pointed out he thought I moved) my first good look at my new landscape included a bit of Sam Hill's legacy in Washington State. We had driven down into the Columbia Gorge meeting the river at Biggs, Oregon. Looking across the big river at my new home state I was struck by the huge size of the Columbia River, the treeless hills, and expansive fields of golden wheat stubble. We also spotted Sam Hill's Maryhill mansion on the bluff across the river.

Sam Hill's path to financial fortune started in Wisconsin where he routinely sued the newly built railroads for killing farmers' cows and over eminent domain claims. James Hill, the president of the Great Northern Railroad (no relation at the time) asked Sam if he would be interested in working for the railroad. Sam declined but said he would like to work with the railroad thus getting a piece of ownership at a time when railroads made a group of people very wealthy and Sam indeed became very wealthy. Sam Hill later married James Hill's daughter Mary.

Sam Hill fell in love with the Columbia River Gorge and in particular loved the setting "Where the rain meets the sun". He had big dreams for the site and began building his mansion. Unfortunately his wife was not so keen on the idea and the utopia he envisioned was never completed. However, Hill left a lasting legacy in the Columbia River Gorge. The old mansion houses his art collection including a collection of Rodin sculptures gifted from the Queen of Romania. After a period of mismanagement and lack of funds in the 1980s, the mansion has been fixed up and is a frequent stop for tourists that are now also attracted to the new wineries in the vicinity. 

Hill also built a Stonehenge replica as a memorial to Klickitat County soldiers killed in World War I. He also spearheaded the construction of the first highway in the lower gorge helping make the gorge a famous tourist attraction. This attraction later led to the area being designated a National Scenic Area. However, Maryhill is outside the Scenic Area and hence the wind turbines on the sides and ridges of gorge in this area. Hill had a fair bit of impact on my current home area in Whatcom County with the construction of the Peace Arch at the Canada-U.S. border crossing in Blaine and as a primary investor in Seattle Gas and Electric - a company that for a time mined coal from the Blue Canyon area at south Lake Whatcom  park-store.

Sam Hill was a bit eccentric and eclectic in his tastes and visions and Sam Hill: The Prince of Castle Nowhere John Tuhy (1983) suggests that he was manic-depressive as an explanation of a number of odd projects Hill pursued and abandoned. Maryhill can be easily viewed as a monument of folly standing alone in an empty landscape. I sometimes think that Hill may have fallen in love with the place on a rare calm day and it may have taken awhile before he realized the problem with the location: it is very very windy. But for those of us that lived in the treeless windy expanses of eastern Washington, the fact that a wealthy tycoon of the early 20th Century viewed eastern Washington as a possible utopia always gave us some satisfaction.     

Sam Hill Memorial Bridge

The Peach Beach area and former townsite of Columbus below Maryhill