Breaking News

Breaking: BNSF’s motion to dismiss our Clean Water Act case is DENIED

The coal dust case against BNSF for Clean Water Act Violations that we filed with our allies (The Sierra Club, Puget Soundkeeper, Columbia Riverkeeper,  RE Sources for Sustainable Communities, Natural Resources Defense Council (NRDC), and Friends of the Columbia Gorge) in July has been given the green light by the courts.

coaltrainsliceThe U.S. District Court for the Eastern District of Washington denied a motion to dismiss, allowing the Clean Water Act case to proceed against BNSF Railway Company (BNSF) for coal contamination of U.S. waterways. The Sierra Club, Puget Soundkeeper, Columbia Riverkeeper, Spokane Riverkeeper, RE Sources for Sustainable Communities, Natural Resources Defense Council (NRDC), and Friends of the Columbia Gorge, filed the lawsuit on July 24, 2013, after finding substantial amounts of coal in and along several Washington waterways near BNSF rail lines. A similar case is also pending before the Western District of Washington in Seattle.

According to sworn testimony by BNSF Vice President of Transportation, Gregory Fox, “BNSF estimates that up to 500 pounds of coal dust may be lost from the top of each car.” The company currently sends four uncovered coal trains through the state every day, each with an average of 120 rail cars. Based on the company’s figures, BNSF’s trains lose an estimated 240,000 pounds of coal dust along its route daily.

“This victory is the first step in holding BNSF accountable for their continual pollution of our waterways,” said Cesia Kearns of the Sierra Club. “The court’s decision to move the case forward is a step in the right direction to stop coal—and its toxic associates, lead, arsenic, and mercury—from further poisoning our fish, our water, and our families. We take these threats seriously, and after today’s court decision we hope BNSF finally will too.”

The conservation groups point to BNSF’s long history of violating the Clean Water Act, which plainly states that dumping of any kind into a U.S. waterway without what is known as a National Pollutant Discharge Elimination System (NPDES) permit, is a violation of federal law. Each violation of the Clean Water Act carries a fine of $37,500, and the plaintiffs assert that every rail car that loses coal is considered a unique violation – a hefty number when considering four trains a day, at 120 cars each travel through Washington.

“BNSF should focus on cleaning up its act instead of facing substantial fines for polluting America’s rivers,” said Morgan Wyenn, attorney with NRDC. “We’re committed to holding BNSF accountable for its violations of the Clean Water Act and protecting our waterways from toxic coal dust.”

The implications of the case are monumental, as the Northwest has become ground zero in the fight to stop three proposed coal export terminals in Washington and Oregon. If built, Washington communities like Spokane would see an increase of 42 additional uncovered coal trains per day. Residents already experiencing the results of four uncovered daily coal trains say that they hope that this lawsuit will teach BNSF a lesson in corporate responsibility.

“BNSF’s plans to increase its daily coal train traffic by more than ten times the current amount is a testament to how important it is that they swiftly and responsibly find a solution to their coal pollution problems before further damaging our precious waterways, like the Spokane River,” said Bart Mihailovich, director of Spokane Riverkeeper. “If they want to continue to be in the risky business of shipping coal, they need to assume responsibility for all of the costs that go along with it. Washingtonians are fed up with subsidizing their dangerous operations with the health of our families and communities.”

“We hope that BNSF will start taking their coal dust pollution problem seriously instead of looking for loopholes,” said Brett VandenHeuvel, Executive Director of Columbia Riverkeeper, an organization that works to reduce toxic pollution and protect salmon in the Columbia River. “It’s time to put an end to illegal pollution and work to restore our waterways.”

BNSF is the second largest coal shipper in the nation, shipping coal through 28 states and near countless bodies of water. The original Clean Water suit was filed against BNSF in Washington’s Western District on June 5, 3013.

“This milestone in our case sends a clear message to BNSF and the coal companies that communities along the rail line value clean water and corporate accountability over the profits of big business,” said Crina Hoyer, executive director of RE Sources for Sustainable Communities.

 

The plaintiffs are represented by the Law Offices of Charles M. Tebbutt, P.C. of Eugene, OR, Andrea Rodgers Harris of Seattle, WA, Jessica Yarnall Loarie of the Sierra Club Law Program, and David Pettit and Morgan Wyenn of the Natural Resources Defense Council.

 

Are We Clear Yet?

Use of Force Commission emphasizes independent authority for Police Ombudsman.

Use of Force Commission Chairman Earl Martin with commission member Susan Hammond.

Use of Force Commission Chairman Earl Martin with commission member Susan Hammond.

In the midst of a deepening power struggle over civilian oversight of the Spokane Police Department, the Mayor’s Use of Force Commission is emphasizing the importance of independent investigatory authority for the city’s Office of Police Ombudsman. The Commission’s message is contained in an October 15th letter to the Mayor. It was obtained earlier this week via a Center for Justice public records request.

The Center for Justice shared the letter Thursday morning with U.S. Department of Justice officials who are initiating a review of Spokane police issues, including the role of the police Ombudsman.

“This is a welcome note of clarity from the Commission and it really underscores the message that Spokane voters sent earlier this year with Proposition 1,” says Center for Justice Executive Director Rick Eichstaedt. “It also directly disputes the suggestion, advanced by the mayor, that the Office of Police Ombudsman can be credible and effective without being empowered to independently investigate citizen complaints.”

The Commission’s letter flows from its first review of how the City and the Police Department are implementing the more than two dozen recommendations that the Commission presented to the mayor in February. The letter highlights three issues, and two of the three have to do with issues swirling around civilian oversight of the SPD.
Nine months ago, in February, the Commission recommended the City: “Invest the Office of Police Ombudsman with the authority and discretion to open and conduct independent investigations concerning the operations, actions or omissions of the SPD.”

In its October 15th letter, the Commission writes: “The Commission reiterates its position that an empowered and independent Spokane Office of Police Ombudsman would enhance trust between the SPD and the citizens it serves, provide support to conscientious and competent police officers, and improve the operations of the SPD.”

The Commission also used its letter to reiterate its earlier recommendation that the City “bring greater transparency to the City’s negotiations” with the City’s police unions. This relates directly to police oversight because the Spokane Police Guild has thus far succeeded in using closed-door contract negotiations with the City to put restrictions on the power of the OPO.

The powers of the Ombudsman directly relate to the broiling political dispute over whether Mayor Condon has been making a good faith effort to implement Proposition 1, which is now Article 16 of the City Charter. On November 11th, the Spokane City Council took the unusual step of suspending its rules so it could vote, immediately, to reject a new “tentative agreement” the mayor had negotiated with the Spokane Police Guild on a new collective bargaining agreement. In simple terms, the council didn’t accept Mayor Condon’s assertion that the “tentative agreement” complied with the Proposition 1 requirement to empower the OPO with independent investigatory authority.

In retrospect, it’s noteworthy that in his August 21st  response to the Use of Force Commission’s recommendation for independent investigatory authority for the OPO, the Mayor informed the Commission that its recommendation would be implemented via “Proposition 1, as approved by Spokane voters.”

The issue of the Ombudsman’s independence was a primary topic Thursday morning when Eichstaedt and members of the Center’s staff met with representatives of the U.S. Department of Justice’s Office of Community Oriented Policing Services (COPS), and contractors working with COPS. The meeting was at the invitation of the Justice Department which is initiating a review of Spokane police performance in the areas of Use of Force Incidents, Use of Force Investigations, Departmental Culture, and Civilian Oversight.

–Tim Connor for the Center for Justice
###

Not Buying It

Spokane City Council delivers a reverberating reality check to the mayor on police oversight.

By Tim Connor

In stunning fashion, the Spokane City Council suspended the rules during its afternoon briefing session today so it could unanimously reject a new contract with the Spokane Police Guild.

Council President Ben Stuckart guiding the stunning vote, Monday afternoon, to reject a "tentative agreement" with the Spokane Police Guild.

Council President Ben Stuckart guiding the stunning vote, Monday afternoon, to reject a “tentative agreement” with the Spokane Police Guild.

The move was at least as much a rebuke to Mayor David Condon as it was to the Guild, with whom Condon’s bargaining team has been negotiating for nearly two years. Conversely, it came as a pleasant surprise to citizen organizers and activists who’d planned to come to the council’s evening session Monday  to plead with council members to reject the highly controversial “tentative agreement.”

In a sense, the council beat them to it.

There was no immediate word from the Guild. But Mayor Condon responded shortly before 6 p.m., expressing his disappointment and criticism of the council.

“We had hoped the City Council would embrace the important next step toward independent oversight at a cost the citizens could afford,” Condon said through his spokesman. “We had negotiated an approach that provided independent oversight and allowed us to use the investigative information as part of discipline. Now we start over.”

Condon’s response also illustrates why the council and community groups have become so frustrated with him.

As Liz Moore of the Peace & Justice Action League of Spokane (PJALS) reminded the council this evening, the council and the public have been clear for several years about wanting to empower the City’s Office of Police Ombudsman (OPO) with independent investigative authority. Resistance from the mayor’s office (beginning with Condon’s predecessor, Mary Verner) is what ultimately resulted in the council sending Proposition 1 to the ballot in February, with its main purpose to amend the city charter to require the OPO to perform independent investigations. Prop. 1 passed by nearly 70% of the vote and is now part of the city charter.

As his statement today indicates, Condon has his own interpretation of Proposition 1—and believes it would be acceptable for the OPO to work within the lines and limitations of the SPD’s internal affairs process. When the “tentative agreement” with the Guild became public a couple weeks ago, Spokane voters could see for themselves that the independent investigations they thought they’d secured at the ballot box last February were not included in the agreement the mayor had signed off on. The result was strong political blow-back that seemed to catch Condon by surprise and led to evasive and nearly incomprehensible answers at recent press events.

The gulf between what Condon had delivered with the new “TA” and what Proposition 1 requires fueled a political crisis even before the agreement was made public eleven days ago. Already there were closed door meetings to try to craft an implementing ordinance that could somehow bridge the gap. But it was a bigger gap than the council first realized, and efforts to span it with new ordinance language were reigned in late last week by a lawyer for the Guild, Hillary McClure. McClure’s position is very understandable and is reported in a lengthy, investigative  story we published over the weekend. After having negotiated with the City for 22 months, why would the Guild agree to re-negotiate key elements of the agreement almost as soon as its members had voted to approve it?

When Moore got her three minutes to talk this evening, she reminded the council of its consistent support for independent investigations and ripped Condon and the new agreement for failing to deliver it.

Liz Moore testifying Monday night.

Liz Moore testifying Monday night.

“I want to particularly salute, and appreciate and thank you for asserting the reality of what independent investigations and oversight has to mean in our community and for asserting it even in the face of Mayor Condon’s claim to the media and the community that it could mean lots of different things,” Moore said. “And in spite of those claims you all have asserted the reality that we know which is that independent investigation means independent investigation. It doesn’t mean anything less than that. It doesn’t mean anything different than that.”

The move to suspend the rules this afternoon came after the city council adjourned its regular, Monday afternoon briefing session to go into executive session, something state law allows when labor negotiations are being discussed. The session that was expected to last thirty minutes instead lasted most of an hour.

Shortly after the public session resumed in the council chambers, Stuckart invited Councilman Jon Snyder to offer a motion to reject the tentative agreement.

Most of the council members made brief statements before the vote.

Steve Salvatori, whose leadership brought Proposition 1 to the ballot, said his decision to vote to reject the new agreement was sealed when he learned the Guild was unwilling to give any assurances that they would not bring a legal challenge against an ordinance that tried to bridge differences between the “tentative agreement” and Proposition 1.

That message—that the Guild would not be signing off on anything different than the “tentative agreement”—was apparently delivered with some clarity during the executive session this afternoon.

And that news clearly unsettled Nancy McLaughlin who was laboring not just to understand what had happened, but about how she could address in open session something she’d just learned in a closed session.

On a second try, she said she was “struggling” with how close the Guild and the City were and she posed a question to Assistant City Attorney Erin Jacobson, who was Condon’s lead negotiator.

“There’s a part of me that says maybe we’re jumping the gun by a week, if we’re jumping the gun by a week,” she said. “If we could get a change in a couple of those areas we talked about. Any thoughts?”

Jacobson replied: “So assuming the primary issue you’re talking about is that which councilman Salvatori addressed, which is at the end of this process, if we’re able to deal with additional language issues, will the Guild sign something saying ‘we now approve this ordinance,’ or sign a new tentative agreement or sign a supplemental agreement, or something to that effect? And the answer is no.”

“Additional time will probably give us some more language that we like in a draft ordinance on some of the other issues that we discussed,” Jacobson continued, “but I don’t think there’s any end in which the Guild signs a new agreement.”

The City had originally planned to go out for three public hearings–the first was scheduled for this coming Wednesday night–but those sessions are now canceled because of the death, this afternoon, of the agreement that the public was supposed to be commenting upon.

The last person to speak before the vote was Stuckart, who spoke first to Jacobson. He thanked her for her work, and added: “I don’t believe that you were given the proper direction on what independent investigative authority is.  I think that’s where we’re stuck.”

He added: “I hope what will happen is negotiations will reopen and we don’t just go to arbitration. Because we came so close if we’d just negotiated that step into the TA (tentative agreement). In my opinion, once we vote yes on that TA, we’d be stuck with that for another three to four years. And we’d be playing around the edges and a possible PERC (Public Employment Relations Commission) violation if we passed any ordinance.”

Stuckart later sent out a press statement about the vote. Here is the full text of the mayor’s statement in response to the vote.

All the testimony at the evening session was in support of the council’s rejection of the TA.

But long-time Spokane activist David Brookbank also criticized the council for conducting such an important vote during its afternoon briefing session, instead of during the more visible evening session.

“The point is,” Brookbank said, “we have very few opportunities to look in on how our government actually works.”

Brookbank actually attended the afternoon briefing and noted that McLaughlin had censored herself when she started talking about what had happened during the executive session.

“It reminds people that there is this process that has been mutilated and mishandled and people have been deceived about for a long time,” he said.  “There’s a whole lot of stuff that happens outside the view of the public.”

Brookbank was followed by Ann Murphy, the president of the Spokane chapter of the League of Women Voters. She, too, applauded the council’s vote to reject the “tentative agreement.”

“The League continues to support independent investigatory powers for Spokane’s ombudsman,” Murphy said, in closing.

 

–CFJ

Condon’s “Travesty”

In a breath-taking revelation, the Mayor’s spokesman confirms the City didn’t even negotiate with the police guild for independent investigations into citizen complaints.

Despite public assurances that he was working to implement the Proposition 1 reforms added to the Spokane city charter nine months ago, Mayor David Condon did not instruct his negotiators to bargain for the central Prop. 1 reform as they worked on a new labor agreement with the Spokane Police Guild. This is the main revelation in a lengthy investigative report by CFJ Communications Director Tim Connor published earlier today.

Spokane Mayor David Condon.

Spokane Mayor David Condon.

The article, entitled “Erasing Prop. 1,” finds that instead of working to implement the will of Spokane voters (who approved Proposition 1 by nearly 70 percent of the vote in a special election last February) the mayor has actually undermined the goal of implementing the charter amendment.

“The Office of Police Ombudsman is supposed to be the public’s watchdog on the police department,” says Connor. “The overwhelming message from voters last winter is that they’d exhausted their patience waiting for the mayor, the city attorney, and the city council to bolster the powers of the office to ensure it could independently investigate citizen complaints. That’s what Prop. 1 is all about. Realistically, the only route to get that done was to bargain for it with the Guild. The mayor just chose not to do that. And the result is the utter chaos that you see now.”

Connor reports that the Center’s lawyers and interns were stunned when CFJ confidentially obtained a copy of the 2013 “tentative agreement” (TA) that Condon had signed with Guild leadership in early October. The new “TA” was substantially the same as the agreement that Condon’s predecessor, Mary Verner, had privately negotiated with the Guild in April 2008, which was converted to city ordinance later that year. Despite the fact that Proposition 1 amended the city charter to get free of the restrictions in the 2008 ordinance, the ordinance is still on the books, and the Office of Police Ombudsman (OPO) is still not authorized to conduct independent investigations into citizen complaints. What the Center’s staff saw in the new agreement is that independent investigative authority for the OPO had simply been omitted.

In an October 16th letter, written two weeks before the City formally released the new proposed contract with the Guild, the Center’s executive director, Rick Eichstaedt, wrote to Condon and City Council President Ben Stuckart strongly objecting to the TA.

“The sum of our analysis,” Eichstaedt wrote, “is that the tentative agreement is a travesty.”
Connor first reported on Condon’s peculiar approach to police oversight a year ago, noting that even though the mayor had issued an “immediate police action plan” that ostensibly included securing investigative authority for the OPO, he didn’t seem to be in a hurry to formalize it, even though the City had been in negotiations with the Spokane Police Guild for several months by that time. Moreover, when CFJ staff members met with City Attorney Nancy Isserlis in October 2012 they were taken aback to learn from Isserlis that she professed not to know what the City was negotiating with the Guild, despite the fact that one of her assistant city attorneys, Erin Jacobson, had been negotiating with the Guild for several months.

Connor’s new report traces the history of the six year struggle to secure independence for the police ombudsman, and explains why the goal has proven so elusive.

“What it boils down to,” says Connor, “is that the mayor is responsible for securing the new charter requirements. That’s his job. His choices were to either bargain with the Guild for independent investigations for the OPO or, in the alternative, to squarely notify the Guild that the City wished to remove the 2008 language from the contract so it could reserve its managerial prerogative under state law to implement what Proposition 1 requires. He chose to do neither.”

“I don’t care why it didn’t happen,” PJALS Liz Moore told Connor when she learned on November 2nd that the mayor chose not to bargain for the independent investigatory authority that Proposition 1 requires. “It’s just unacceptable that it didn’t happen. We needed this result. The mayor didn’t get the job done, and he had twenty two months to do it.”

 

–CFJ

 

 

Justice Night

First Tuesday, 5-6 p.m., 35 W. Main Ave.

Justice Night is the Center for Justice’s monthly effort to reach out to low income people and families who need legal assistance. From 5-6 p.m. in the Community Building lobby (35 W. Main Avenue) we provide an opportunity to visit one-on-one with a volunteer attorney to address a variety of legal issues. Please note we don’t offer assistance on criminal matters at this time.

JJN

Jntflyersmu

For the Record

City releases “Tentative Agreement” with the Spokane Police Guild.

By Tim Connor
Spokane Mayor David Condon appeared with Spokane Police Chief Frank Straub this morning to officially release the long-awaited “tentative agreement” (TA) with the Spokane Police Guild. If ratified by the council, the agreement will replace a controversial collective bargaining agreement with the guild that has been in effect since January of 2009 and has, among other things, been used to stifle independent civilian oversight of the Spokane Police Department.

Mayor Condon releasing the TA this morning.

Mayor Condon releasing the TA this morning.

Today’s press event did not add all that much to the public record.  I highly recommend a fine piece of reporting by The Inlander’s Heidi Groover that was posted very early Friday morning.

In short, what Groover’s story explains is that the plan this week was for the City to release the TA (which was approved by the Guild membership late last week) along with an ordinance that filled in some of the gaping holes in the TA with regard to civilian oversight of the police. But those plans had to be shelved for lack of a consensus, and it was clear that among those who objected were representatives of the police guild.

I’m continuing to develop this story with additional document analysis and interviews and will have much more to report over the weekend. You can read Mike Prager’s story in the Spokesman-Review here.

As you’ll eventually see (and hear) one of the questions I pushed at the press conference today is whether, after Spokane voters roundly approved Proposition 1, Mayor David Condon instructed his negotiators to bargain with the Guild for independent investigatory authority for the Office of Police Ombudsman. I think this is a key  question, and perhaps the question that frames this entire fiasco. I now have the answer to that question and I’ll report it in my next story.

As importantly, part of what we’re now learning is that the Mayor’s interpretation of independent oversight is quite different than you might have expected if you’re one of those who voted for Proposition 1 last winter.

In the meantime, here are some new documents to take a look at.

Tentative Agreement

Legal Analysis provided by a city legal consultant on October 3rd.

The latest draft of the working group ordinance (to be clear there is no consensus on this draft)
Also, City Council President Ben Stuckart announced earlier that three public meetings are scheduled to take public comment on the TA and any draft ordinance that becomes available in the meantime.

•Wednesday November 13th, City Council Chambers 6 to 8 p.m.

•Wednesday November 20th at West Central Community Center, 6 to 8 p.m.

•Wednesday December 4 at the Northeast Community Center, 6 to 8 p.m.

—CFJ

Not Mincing Words

In a bitingly direct report, the Spokane Regional Criminal Justice Commission makes a clarion call for reform.

In an extraordinary development for “Smart Justice Spokane” and other advocates for reform, the Spokane Regional Criminal Justice Commission is calling for sweeping changes in its eagerly awaited draft report.  The report was published on the Commission’s website late this afternoon.

Entitled “A Blueprint for Reform,” the 58-page document combines what is, in places, a blistering critique of the county’s court system with a five year timeline for change. The Commission sides with “Smart Justice Spokane” on several key issues, including the need to shift away from incarceration to more effective means of punishment and rehabilitation for offenders.

Commission members (from left) Jim McDevitt, James Murphy, Phillip Wetzel

Commission members (from left) Jim McDevitt, James Murphy, Phillip Wetzel.

“The Commission supports some rather significant changes to current criminal justice operations,” the report notes. “We maintain that a new governance structure must be created to allow for overall management of the criminal justice system in our area. We must recognize that technology must be embraced, and that system-wide performance measures (or ‘report cards’) are needed. Research has repeatedly demonstrated that jail and intensive supervision do not reduce recidivism, and shifting away from an over-reliance on jail and towards community-based alternatives is critical to move us into a 21st century justice model.”

The Commission reserves its harshest system for Spokane County’s district court system and, in the same breath, offers praise for the City of Spokane’s municipal courts.

“It is clear that the Municipal Court, and all city agencies, have been innovative, cooperative and effective,” the draft report found. “This cannot be said about the District Court. All city agencies are vehemently opposed to consolidation with the District Court. The District Court was found to lack cohesion and was unwilling to embrace plainly needed reform, and unconcerned with the costs of jail sentences and detention before trials and probation hearings.”

The members of the Spokane Regional Criminal Justice System are Attorney Phillip “Dutch” Wetzel, retired Superior Court Judge James Murphy, who chairs the commission, and former U.S. Attorney for the Eastern District of Washington James McDevitt. The Commission was appointed last November and, since then, have conducted 37 public meetings, encompassing more than 140 hours to receive testimony.

The Commission will conduct a public meeting on their draft report next Wednesday evening, November 6th, at the Gonzaga University Law School.

Among those acknowledged for their contributions in the report are Smart Justice Spokane and, in particular, CFJ staff attorney Julie Schaffer and her mother, volunteer CFJ lawyer Mary Lou Johnson “who attended nearly every hearing, and who were more than willing to bring their knowledge and experience in to assist this Commission.”

Read the Commission’s Draft Report.

—Tim Connor, for the Center for Justice. 

About that Meeting…

Center files complaint alleging County conducted illegal, closed session on controversial land use issue.

On behalf of a handful of plaintiffs, the Center for Justice has filed an Open Public Meetings Act (OPMA) complaint against the Spokane County Commissioners.

ugasmThe suit, filed October 18th, alleges the commissioners violated state law when they met in executive session to discuss amending the County’s comprehensive plan and expanding the county’s urban growth area. The meeting occurred two months before the commissioners approved the controversial urban growth area expansion which the Center and other critics say violates Washington’s Growth Management Act (GMA). Last month, Governor Jay Inslee notified the County that the state also concluded the county violated the GMA and was also appealing the County’s action.

The open meetings complaint alleges that the commissioners abused an exemption to the Open Public Meetings Act that allows agencies to close meetings when their lawyers are offering legal advice. The problem, the complaint asserts, is that a state Department of Commerce official was present and participated in the meeting, thereby obviating  any legitimate claim that the meeting was primarily about legal advice.

“The OPMA requires that discussions of potential litigation are to be focused on matters proceed by attorney-client privilege,” the complaint states. “Nothing in the OPMA allows an agency to conduct an executive session for the purposes of discussion of amendments to a Comprehensive Plan with a third party.”

The lead plaintiff in the case is the Neighborhood Alliance. In March 2012, the County agreed to pay the Alliance $400,000 to settle a lawsuit claiming violations of the state’s public records law.

–Tim Connor for the Center for Justice

Wake Up. Now.

Center asks Mayor and Council to take immediate action to uphold Proposition 1 on civilian oversight of police.

amarchers300The Center for Justice is asking the City of Spokane to take immediate action to uphold and protect the voice of Spokane voters on independent civilian oversight of the Spokane Police Department.

In a letter sent late yesterday to Mayor David Condon and Council President Ben Stuckart, the non-profit law firm and community advocacy organization warns the City it is misleading both Spokane voters and the members of the Spokane Police Guild with the claim that a new “tentative agreement” (TA) with the Guild complies with Proposition 1, a ballot initiative Spokane voters overwhelmingly approved in a special election last February.

“The sum of our analysis is that the tentative agreement is a travesty,” writes CFJ Executive Director Rick Eichstaedt.

In the letter, Eichstaedt says the new agreement “is so plainly contrary to Proposition 1” that the city council cannot vote to approve it without violating the new section of the city charter that was created as a result of Proposition 1.

In order to protect the City’s and the voters’ interests in Proposition 1, the Center is asking the council to use its emergency powers to adopt an ordinance—prior to the Guild membership’s vote on the agreement—that would plainly reaffirm the City’s intent to comply with Proposition 1, and specifically the charter amendment’s requirement that the City’s Office of Police Ombudsman be empowered to conduct independent investigations into complaints against Spokane police officers. The Center is also recommending that the Mayor’s Use of Force Commission take the lead in the public review of the tentative agreement, to independently determine whether it complies with Proposition 1 and the Commission’s own recommendations on civilian oversight of the SPD.

Although it has not yet been made public, the new agreement has been endorsed by Mayor Condon and the Guild leadership. It is scheduled to be voted on next week by the Guild. If it is approved by the Guild membership it will then become public and voted on by the city council.

Under the terms of a confidentiality agreement with Spokane city councilman Steve Salvatori, the Center obtained a copy of the section of the agreement (Article 27) that deals with “Civilian Oversight” of the police department.

“What is deeply disappointing to us,” writes Eichstaedt, “and what should greatly concern both of you, is that Article 27 not only fails to comply with Proposition 1 but evinces an alarming degree of bad faith toward Spokane voters.”

The Center supported a robust ordinance to implement Proposition 1 that Councilman Salvatori brought forward for a council vote on October 7th. But in the face of intense lobbying by the City administration, the council amended the ordinance to strip out nearly all of the provisions, including those needed to implement independent investigations. Council President Stuckart explained that the council amended the ordinance under threat that if it voted for the full ordinance, it would result in immediate legal action from the police guild, and the guild’s withdrawal from the tentative agreement.

The Center is asking the council to use an emergency ordinance to adopt the parts of the Salvatori ordinance that were stripped out on October 7th.

“Such an ordinance,” Eichstaedt writes, “would provide much-needed assurance to voters that the City is serious about implementing Proposition 1. It would also serve to put the Guild members on notice that their approval of the new contract will not preclude full enforcement of Proposition 1 as the city charter now requires.”

–Tim Connor for the Center for Justice.

Of Portions & Poisons

Spokane Riverkeeper joins lawsuit to tighten water pollution rules related to fish consumption.

A coalition of environmental and fishing organizations, including the Spokane Riverkeeper, is filing a federal lawsuit today to try to force the State of Washington to better protect people from toxins in fish caught in state’s waters.

A redband trout from the Spokane River. (Photo courtesty Jeff Holmes.)

A redband trout from the Spokane River. (Photo courtesy Jeff Holmes.)

The gist of the suit is that, according to the plaintiff groups, Washington state is clinging to a risk model (used to determine compliance) that greatly understates the amount of wild fish and shellfish people actually consume. The suit, however, is aimed at the U.S. Environmental Protection Agency (EPA) which has responsibilities under federal law to ensure states are using scientifically defensible risk models. The net effect, say the plaintiffs, is that by using a formula that downplays risks to fish consumers, the state allows more toxic pollution to enter its lakes, streams, and other waters.

“EPA’s inaction continues to allow polluters to discharge mercury, PCBs, lead and other toxins at levels that contaminate fish, pollute our waters, and threaten public health,” said Janette Brimmer, an Earthjustice attorney representing the coalition of groups. “We have a water pollution problem that needs to be fixed now, and it is EPA’s responsibility under the law to act when states fail to do so. Everyone, including EPA, agrees Washington’s fish consumption rate and human health standards are under-protective. We can’t allow EPA to continue kicking the clean water can down the road.”

The groups illustrate the complaint by noting that the fish portion size used in the state’s risk equation is so small that it “fits on a snack cracker” and results in a monthly sum of just under 8 ounces.

“A large number of local sport fishers, Native Americans, Asian Americans and others eat fish each week, if not each day,” says Chris Wilke, Executive Director of Puget Soundkeeper Alliance. “Fish and seafood play a significant dietary role for many Washingtonians, not to mention the cultural importance of local seafood for many of us. The current fish consumption rate set by the state does not reflect this and fails to protect fishing as a designated use of our waters.”

Says Spokane Riverkeeper Bart Mihailovich: “Each year EPA fails to fix Washington’s inadequate water pollution rules, it guarantees that dangerous levels of toxic contaminants will continue to flow into our waterways. This inaction endangers our citizens. It endangers wildlife. It threatens our economy. It’s hard to believe there is delay in the face of this kind of evidence.”

—CFJ