Spokane County Commissioners should not enter into a multi-million dollar contract with CH2M Hill to design, build and operate a wastewater treatment plant that depends upon an unreliable vendor and uses technology that is incapable of meeting discharge limits to the Spokane River.

That’s the blunt message being delivered in a new, heavily-footnoted letter signed by the Club’s Spokane River Project Coordinator Rachael Paschal Osborn. Paschal Osborn also signed the letter on behalf of the Center for Environmental Law & Policy (CELP), for whom she serves as executive director. Center for Justice lawyers, who represent Sierra Club, assisted in the drafting of the letter which is dated December 1st.

One new and surprising twist in the debate is that Veolia Water Company of America, one of two prime bidders for the county’s contract, is now echoing Sierra Club’s main technical and regulatory concerns about whether the plant the county and CH2M Hill want to build can ever get a permit to discharge wastewater to the Spokane River. Cost estimates for the new plant run upwards of $100 million and the new letter sets forth the strongest challenge yet to the County to reverse direction in the face of a likely debacle.

The new Sierra Club letter, drafted with the assistance of Center for Justice attorneys, is a followup to an October 29th letter and testimony Paschal Osborn provided to the County last month.

“The County is committing over $127 million to build a wastewater treatment plant that relies on a discharge to the Spokane River,” the letter notes. And yet the regulatory obstacles are both clear and formidable. The federal permit to build the plant will require a state certification that legally can’t be issued unless and until the plant has obtained a Clean Water Act discharge permit (known as an NPDES permit). The problem is, the Spokane River is on the federal list of waterways that are out of compliance with water quality standards. In this case the problem is low dissolved oxygen and the pollutant of concern is phosphorus, a nutrient that fuels algae blooms that, in turn, cause the dissolved oxygen problem.

“Because the County is building a new plant at a site for which no plant existed,” Paschal Osborn writes, “it is a new discharger under federal and state law. Under these laws, existing dischargers who discharge into critically impaired waters and who are unable to meet necessary water quality standards may be given compliance schedules to meet these standards; new dischargers may not. Instead, new dischargers like the County must meet water quality standards upon commencement of the discharge.”

As part of the stiff warning about the regulatory problems with the county’s current strategy, Paschal Osborn also took on one of the more creative arguments the county has tried to advance. Because a new plant would accelerate the removal of septic tanks and eliminate the future demand for septic systems over the Spokane Valley aquifer, county officials have proposed that they be given credit, in the permit process, for a net decrease in phosphorous reaching the Spokane River via groundwater.

This so-called “offset” argument, she wrote, is illusory for two reasons. First, a 2007 U.S. Ninth Circuit Court of Appeals decision concluded there is nothing in the federal Clean Water Act “that provides an offset for new dischargers” putting pollution into impaired waterways. Second, she noted, the county’s efforts to date to demonstrate that a reduction in septic tanks will result in quantifiable reductions of phosphorous reaching the river via groundwater have not survived scientific scrutiny.

On these two key points, Sierra Club has won support from a surprising source: Veolia Water of North America, the international waste water treatment company that was the runner up to CH2M Hill in bidding for the county’s new plant.

“The key challenge of this project has been, and remains, the effluent discharge quality levels established for the proposed new plant,” wrote Veolia Vice President Sean Haghighi in a November 18th letter to the commissioners. “Faced with the realities of the Spokane River, the Washington Department of Ecology (DOE) established a new limit of 10 micrograms per liter (ug/L) of phosphorus (P) for Spokane County as a new discharger–a limit that is believed to push the confines of existing technologies. In turn, your Request For Proposal (RFP) established 50 ug/L of P as the discharge limit, with the intent of receiving an offset credit for the remaining P through the County’s ongoing Septic Tank Elimination Program–a controversial plan that is expected to face scrutiny and will likely face legal challenges along the way. [emphasis in original].

“Indeed, the County is all too familiar with the challenges and uncertainties associated with this project as evidenced by the first permit set back in 2002 which delayed the project for several years, and again in September of this year when the U.S. Environmental Protection Agency (EPA) announced that all permits were on hold pending the re-evaluation of the established water quality standards–standards that could become even more stringent when ultimately issues.”

It is these stark regulatory obstacles that set up the other main criticisms in the Club’s letter. Paschal Osborn argues that it would be “fiscally irresponsible” for the County to sign a twenty year contract with CH2M Hill given the unresolved questions about the design and cost of the plant, and that “CH2M Hill’s record as a service provider for the public sector raises concerns about its future performance.”

Much of the letter provides details on past instances, many in Washington state, where federal agencies have levied fines against CH2M Hill and its subsidiaries for misconduct, discrimination, and failing to act on reported safety and environmental hazards.

The letter also makes a hard push for the County to reconsider technological alternatives to the MBR (membrane bioreactor) treatment technology that the proposed CH2M Hill plant would use. Paschal Osborn cites the results of a recent EPA Region X survey of treatment technologies for phosphorous and other studies showing that sand filtration technology is not only more effective in removing phosphorous, but significantly less expensive to maintain.

“Finally,” Paschal Osborn concludes, “we would reiterate that the County has failed to date to prepare a cost-effectiveness analysis that compares the various technologies available that could achieve better phosphorous removal results and/or produce Class A reclaimed water. Until such an analysis is produced and objectively considered by the County, it is not in the public interest to enter into a contract for the construction of any plant, and certainly not the expensive facility proposed by CH2M Hill.”

With a 6-3 decision, the Washington Supreme Court has ruled that motorists who believe their vehicles were wrongly seized can pursue common law claims to seek compensation.

The class action lawsuit (Potter v. Washington State Patrol) tested the state’s argument that people whose cars were seized for driving with a suspended license, or other offenses for which seizure is authorized, can only seek recourse in the courts under Washington’s towing and impoundment statute (RCW 46.55). The statute lays out a set of procedures and costs by which owners can recover their vehicles or challenge whether their cars or trucks or motorcycles were properly impounded. The law also lays out the process for how a seized vehicle can be auctioned off, and the proceeds distributed between the towing company and the state motor vehicle fund.

The Washington State Patrol’s argument in the case was that the statute is the exclusive remedy for people who believe a seizure was unwarranted.

But today the Supreme Court disagreed, finding that the legislature did not clearly intend to cancel out and preclude common law tort claims arising under what is known as “conversion”–the act of usurping another person’s ownership in a way that unjustly deprives him/her of the rights or value of ownership. Thus, while a car owner can make use of the remedies in the towing and impoundment law, he/she can also choose to opt out of the statutory process and bring a common law claim seeking damages for unjustified seizure.

“The WSP argues the statute contains language of exclusivity,” wrote Justice Mary Fairhurst, for the majority. “But by its plain language, the statute applies only to redemption. ‘Vehicles…that are impounded by registered tow truck operators…may be redeemed only under the following circumstances.’ RCW 46.55.120 creates a statutory right of redemption by which an impounded vehicle may be reclaimed by paying all towing, removal, and storage fees. A statutory right of redemption is a distinct and separate remedy from common law action of conversion. In essence, redemption is a right, generally created by statute, to regain possession of property that is lawfully in another’s possession. In contrast, conversion is a common law tort action to recover the fair market value of property that is unjustifiably possessed by another. Thus, the statute provides a procedure by which a vehicle owner can regain possession of his or her vehicle. It does not, on its face, apply to instances where a vehicle has already been sold at an auction and the previous owner is seeking damages for the value of the vehicle rather than repossession.”

Later in her opinion, Justice Fairhurst elaborated on how the court saw that the rights of vehicle owners (at least those whose vehicles are unjustly taken from them) were constrained under the state statute, relative to the rights they could exercise under common law.

“The redemption statute does not provide adequate or comprehensive relief for the conversion of a vehicle for a number of reasons,” she wrote. “First, while good faith limits the liability of the impounding agency under the statute, good faith is not a defense to conversion. Thus, if a conversion action is brought following a DWLS [driving with license suspended] impoundment, loss of use damages would be available under the common law, but not under the statute, assuming a good faith reliance on driving records. Second, for people who do not attempt to, or are unable to, redeem their vehicles, the remedy is even more inadequate. Once a vehicle is sold at an auction, the owner has the right to claim any surplus proceeds for up to one year. Under conversion, the owner would receive the fair market value of the vehicle. The auction value of a car, after satisfaction of a tow truck operator’s lien, is an inadequate remedy when compared to the fair market value of the vehicle. In short, the inadequacy of the remedy provided by the redemption statute is evidence that the legislature did not intend the statute to be the exclusive remedy for an unlawful impoundment.”

One apparently successful business model is to offer people with bad or poor credit the opportunity to buy a computer, and pay for it through an extended payment plan. Whether it works for the consumer is a whole different matter. That’s the issue at the heart of recent media investigations, a Federal Trade Commission settlement, a Better Business Bureau finding, and continuing lawsuits. Recently, the Center for Justice has teamed up with other lawyers in eastern Washington to look into this and similar predatory lending practices. We’d like to hear from people who think they may have been victimized.

Although there are imitators, the company most commonly associated with the controversial advertising and payment schemes is BlueHippo, a Maryland-based finance company that uses a Barney-like mascot and photos of children to offer “brand name” computers and other electronics to buyers “with limited financing options due to less than perfect credit or no credit at all.”

According to the allegations in a pending federal lawsuit filed in San Francisco, here’s how at least one BlueHippo plan worked:

*Notwithstanding advertising for “affordable” computers, the computers were actually sold for “several times the prices that consumers would pay” if they purchased the same merchandise from manufacturers or mainstream retailers.

*Under what it called a layaway plan, the company required a substantial first payment of $99 and then three months of consecutive weekly payments of at least $36 (by then, the customer would have paid as much as the commonly available retail price for the computer) before it would ship the machine to the buyer.

*After the initial payments were made, the company would offer a time payment contract on the same item.

And these are the allegations in just one complaint. Earlier this year, the Federal Trade Commission agreed to accept at least $3.5 million and promises for reform from BlueHippo Funding, LLC and BlueHippo Capital, LLC to settle a complaint filed in federal court in New York state.  Several state attorneys general have also sued BlueHippo.

According to the FTC complaint filed in late February, BlueHippo required customers to agree to a series of automatic withdrawals from their bank accounts and in many instances did so without disclosing that customers would not get a refund if they canceled before the product was delivered. The FTC complaint alleged multiple violations of federal rules related to truth in lending, electronic fund transfers, and mail orders. Moreover, the complaint noted that many buyers didn’t receive their merchandise or refunds.
The Better Business Bureau of Greater Maryland, which opened a file on BlueHippo Capital LLC in 2003, finds that “the company has an unsatisfactory customer experience report with BBB due to a pattern of complaints, unanswered complaints, failure to eliminate complaints, and government actions related to the company’s marketplace conduct.”

If you have a BlueHippo (or similar) story you’d like to share, please call us at (509) 835-5211, or email us.

In a letter sent last week to Assistant City Attorney Mike Piccolo, the Center for Justice provides a detailed critique of a new slate of proposed city ordinances designed to crack down on panhandlers and even street musicians in downtown Spokane. In short, the Center’s criticisms point to a variety of ways in which the proposed changes to the city’s municipal code would invite challenges under the free speech protections of the First Amendment to the U.S. Constitution. City officials sought the Center’s analysis as the proposed ordinances were slated for a First Reading before the Spokane City Council Monday night.

“In these [draft] ordinances,” wrote CFJ attorney Bonne Beavers and CFJ intern Chris Longman, “the City is largely attempting to curtail one type of speech-begging. The jurisprudence in this country has made it clear that begging is constitutionally protected speech and, although cities may regulate begging on public sidewalks or parks, these regulations must be consistent with First Amendment protections.”

A main thrust of the Center’s criticism is that many of the specific prohibitions being proposed appear to single out begging as opposed to other forms of protected speech, and are thus subject to Constitutional challenge as restricting “content.” But the letter also highlighted problems created in proposals that would target street musicians, by requiring some, but not others, to obtain business licenses at a cost of $60 per year. A main problem with this provision, the letter notes, is that the license requirement is dependent on a distinguishing between “active” and “passive” solicitation.

In this and other areas, CFJ is challenging the vagueness of the draft ordinances and how they could be misapplied in ways that violate First Amendment rights to free speech and against prior restraint.

“The definition of ‘active solicitation,’” wrote Beavers and Longman, “includes using a hat or open guitar case. This would indicate that the ordinance includes any performer who takes steps to actively solicit other than providing something for people to throw money into. It’s hard to imagine a way to ‘passively solicit’ that would not fall within this definition. It would appear then that the ordinance aims at any performer who performs for money without actually saying so.”

“Clearly,” the letter concluded, “the City’s concerns about the impact on begging on economic activity are legitimate. And, just as clearly, the City may regulate this activity, but not in an unequal and unjust manner…We would ask the City to think carefully before enacting criminal laws such as these whose effects fall especially hard on the poor, are exclusive rather than inclusive, and the very opposite of community.”

The full text of the letter can be read here.

SMC 10.10.025 Pedestrian Interference (Ordinance C34337)

Summary: Would make it a misdemeanor offense for a person to “knowingly” obstruct pedestrian or vehicular traffic or “aggressively” solicit.

CFJ critique: Ordinance is over-broad and unreasonable because a “knowing” obstruction is not the same as having the intent to obstruct. Federal Courts have found a person exercising a First Amendment right can knowingly obstruct or interfere with pedestrians so long as he or she does not intend to obstruct. Likewise, while laws can prohibit aggressive solicitation, the language in the proposed ordinance should more clearly adhere to evidence of “intent.”

SMC 10.10.26 Sitting, Lying on Sidewalks in Retail Zone (Ordinance 34338)

Summary: Would make it a misdemeanor to “sit or lie down” on a public sidewalk or sit “upon a blanket, chair, stool, or any other object placed upon a public sidewalk” in the downtown retail area between 7 a.m. and 9 p.m., with medical and other tightly defined exceptions.

CFJ critique: As drafted the proposed ordinance contains no exceptions for protected First Amendment activities and “there may be situations in which a prohibition against sitting or lying impermissibly restricts expressive conduct.”

SMC 10.40.010 Street Performers (Ordinance C34339)

Summary: Establishes the requirement for a regular or temporary license with a “peddler” designation under prescribed circumstances including the selling of food or wares from mobile carts, door-to-door sales, business activities “with no permanent location,” and street performers. Street performers coming under the ordinance’s definition would have to pay $60 a year for their licenses, or a reduced fee of $10 per year if they can provide proof their gross business revenues for a calendar year do not exceed $12,000. Violations are a misdemeanor offense.

CFJ critique: Courts have found that restrictions on First Amendment protected speech must be content-neutral (meaning they don’t discriminate on the basis of a person’s message). Because the ordinance’s license requirement is dependent upon whether a street performer engages in “active” solicitation (as opposed to “passive” solicitation), “it appears to regulate based on the particular message conveyed.” Even if a court were to find that the ordinance is content neutral, “we believe it will still be subject to strict scrutiny” because “it requires government permission prior to engaging in speech.”

SMC 10.10.27 Regulation of Solicitation (Ordinance 34340)

Summary: Makes it a misdemeanor offense to solicit in specified places (including near ATM machines, public pay phones, bus stops, car washes, and gas pumps). It also prohibits solicitations “within any public right of way” without a special events permit. Prohibits solicitations “by coercion.”

CFJ critique: The sweeping restriction on non-permitted speech in a public right of way places “a prior restraint on all protected speech activities in which the message includes a request for immediate contributions” and is thus a prior restraint and de facto prohibition on spontaneous solicitation speech. The restrictions on solicitations in the vicinity of ATM machines, etc., “may be subject to challenge as an over broad restriction on protected speech” because the only speech prohibited is speech soliciting immediate contributions. It is thus subject to challenge as a content-based restriction on free speech.

SMC 10.10.28 Prohibiting Solicitations from Vehicles (Ordinance C34341)

Summary: Makes it a misdemeanor offense for any person “to knowingly conduct a solicitation directed to or intended to attract the attention of the occupant of any vehicle stopped or traveling” on an arterial street.

CFJ critique: Because the ordinance “would target someone holding up a sign asking for help” and not others holding signs with other messages or advertisements, the speech restriction is content-based and thus subject to constitutional challenge. “If adverse consequences to traffic safety occur when motorists pull up to the curb in response to people holding signs, then all such sign-holding should be banned, not just some.”

The Center for Justice will be among a handful of Spokane-area conservation and river protection groups sponsoring a series of public workshops this fall for the purpose of updating and taking input from citizens on Spokane River issues. Among the topics slated for discussion are wastewater treatment, river flows during low water summer months, the cleanup of toxic chemicals and metals, and efforts to protect native redband trout.

Our partners in the workshops are the Center for Environmental Law & Policy, Spokane Falls Trout Unlimited, Friends of the Aquifer, and Sierra Club’s Upper Columbia River Group. Everybody’s welcome and refreshments will be served.

River Workshops

Monday November 17th, 6:30 to 8:30 p.m., Lakeside Middle School Auditorium, 6169 Highway 291, Nine Mile Falls.

Monday November 24th, 6:30 to 8:30 p.m., The Community Building Lobby, 35 W. Main Avenue, Spokane.

Wednesday December 3rd, 6 to 8 p.m., Post Falls Library, 821 N. Spokane Street, Post Falls, Idaho.

For more information go here, or call CELP at (509) 209-2899.

In a letter sent this week to the Spokane County Commissioners, Sierra Club’s Upper Columbia River Group warns that the county “is leading the public down a path it cannot afford” by opting for a water treatment technology this is ill-suited to meet stringent regulatory requirements needed to address the Spokane River’s dissolved oxygen problem. The letter urges county commissioners to rethink wastewater treatment technology before entering into a costly contract with CH2MHill.

“County Commissioners are poised to spend unprecedented sums on a sewage treatment plant,” says Rachael Paschal Osborn, director of the Sierra Club’s Spokane River Project. “Cheaper and much more effective technology is available. Spokane County has never seriously evaluated the alternatives.”

In February 2007 Spokane County predicted the plant would cost $106 million. More recently, Osborn says, County Commissioner Todd Mielke has predicted costs of $500 to $800 million. On Nov. 18, the Commissioners will vote to enter into a contract with CH2MHill to design, build and operate the new County treatment plant. The Commissioners have offered no justification for spending these sums of money, she says.

“The County will be unable to get a permit for this plant as it is currently designed,” said Osborn. “No permit equals no sewage treatment plant equals moratorium on future development. The County must adopt alternative wastewater treatment technology.”

Key arguments in Sierra Club’s letter are:

• Spokane County will likely never be granted a permit to put effluent in the river during summer months.

• Septic proliferation is a problem of the County’s making - change in approach is needed.

• MBR (membrane bio-reactor) treatment is not the best technology, but it is just about the most expensive.

• Plant design is inadequate to address sewage overflows to the Spokane River.

• The County’s proposal to remove septic systems in exchange for discharging pollution into the River will not pass legal muster.

• New and cheaper approaches are available to address sewage treatment.

The controversy arose in the case of Kathie Costanich, who successfully challenged the revocation of her foster care license by the state Department of Social and Health Services. Costanich prevailed in a King County superior court when she appealed a DSHS administrative ruling revoking her license. DSHS appealed the case and while the agency lost on the substance of the case regarding the license revocation, the Court of Appeals ruled that Costanich was entitled to no more than $25,000 to compensate her for legal fees incurred while successfully challenging the revocation.

The issue before the Supreme Court was how to interpret the fee recovery provision of Washington’s Equal Access to Justice Act (EAJA). While the 1995 law waives the state’s sovereign immunity to allow citizens like Costanich to recover legal fees when they successfully challenge an agency action, it limits that recovery to $25,000 per “judicial review.”

The law left unresolved the issue of whether judicial review encompassed all appellate proceedings, or whether prevailing citizens are entitled to a maximum of $25,000 for each judicial proceeding necessary to win their cause.

“Without clear guidance [in the legislation],” wrote Justice Charles Johnson for the court majority, “judicial review is susceptible to different meanings and could mean either each level of judicial review or all levels combined. Because the statute is ambiguous, we must discern and implement the legislature’s intent.”

And here is how the court resolved it, according to Justice Johnson’s opinion:

“The EAJA is meant to provide equal access to the courts to private litigants defending against government actions. Specifically, the legislature found that ‘[c]ertain individials…may be deterred from seeking review of or defending against an unreasonable agency action because of the expense involved in securing the vindication of their rights in administrative proceedings….The legislature therefore adopts this equal access to justice act to ensure that these parties have a greater opportunity to defend themselves from inappropriate state agency actions and to protect their rights.’ Based on this explicit statement of intent, to ensure the public has the ability to contest and appeal agency decisions and rule making, a finding that the cap is for each level of judicial review is reasonable. This decision is particularly appropriate in this case where the Department appealed the superior court decisions on the substantive issue and lost, forcing Costanich into the Court of Appeals proceeding, and Costanich’s attorney fees at this point in the appellate process are greater than $200,000.”

Thus, by the court’s ruling, instead of being capped at $25,000, Costanich should be able to recover $75,000, to cover the Court of Appeals challenge and the Supreme Court proceedings.

The Center for Justice’s Chief Catalyst, Breean Beggs, offered this comment on the ruling:

“A divided Washington Supreme Court ruled today that the legislature intended to reward citizens and non-profit groups for holding state government accountable for illegal activity by requiring
the state to reimburse up to $25,000 on legal costs at each level of judicial review rather. This will strengthen the ability of individual people and organizations to hold state government to the standards it sets for everyone else.”

Costanich didn’t get everything she wanted. A commissioner had awarded her $46,239 in fee and cost recovery associated with the King County Superior Court proceedings, but the Supreme Court majority ruled that this sum exceeded the statutory cap for that phase of the proceedings.

Of course, the glaring irony in Judge Johnson’s opinion is that Costanich’s fees and costs far exceeded even the $75,000 in higher caps constructed by the majority’s ruling which, as Johnson noted, was rooted in legislative intent “to ensure the public has the ability to contest and appeal agency decisions and rule-making” that are harshly adverse to them.

Chief Justice Gerry Alexander dissented from all parts of the decision, explaining that he viewed the EAJA language as clearly setting a total cap at $25,000. Justice’s Richard Sanders and James Johnson agreed with the majority but dissented as to the $46,239 fee award which they believe is owed to Constanich. Justice Barbara Madsen, while agreeing with the main thrust of the reasoning of the majority opinion, dissented as to the final $25,000, compensating Constanich for fees and costs of the Supreme Court appeal. Justice Madsen wrote that she believed the statute clearly pertained only to appeals of “agency actions” and that the ruling on attorney fees and costs was a court decision and not an agency action.

Federal District Court Judge Fred Van Sickle has denied Spokane County’s requests that he reconsider recent rulings against the county in a high-stakes due process case involving the collection of booking fees at the Spokane County jail. The plaintiff is Shawn Huss of Spokane who is represented by the Center for Justice.

The case has its roots in Huss’s October 2004 arrest on a domestic violence charge when Huss’s wallet and all his money was seized at the time he was booked into the Spokane County jail. Even though Huss was released, his (now empty) wallet returned and the charge dropped the next day, it took four months and a letter from a CFJ attorney to get Huss’s money back from the County. The Center also filed suit on Huss’s behalf, arguing that the state law and county policy authorizing the automatic seizure of money without an opportunity for Huss and other inmates to contest the seizure violated Constitutional due process protections.

In August 2006 Judge Van Sickle agreed, finding that the state law and the booking fee practice at the Spokane County jail were “facially unconstitutional.” Fourteen months later, Judge Van Sickle also determined that the County was financially liable “because the Jail’s booking fee policy deprived [Huss] and others similarly situated, of property without due process of law.” Then, in August of this year, the Judge granted a motion for class certification, setting the stage for a class action lawsuit in which Huss would serve as the class representative.

It was in response to this most recent ruling [click here to link to the September 4, 2008 Spokesman-Review article about the decision] that the County filed its motions for reconsideration. At the time, CFJ attorney Breean Beggs estimated that the County’s total liability for the class action suit would exceed $1 million, accounting for continually accruing interest on the estimated $760,000 that would have been improperly seized by jail officials. One key controversy in the case is whether the county should be liable for booking fees seized from inmates who were later convicted. By his August 25th ruling, Judge Van Sickle ruled that the class of plaintiffs should include all inmates processed between May 5, 2004 and December 20, 2006, the period during which the constitutionally flawed fee collection process was in effect.

The case has its roots in Huss’s October 2004 arrest on a domestic violence charge when Huss’s wallet and all his money was seized as he was booked into the Spokane County jail. The charge was quickly dropped, the wallet returned, but the County kept the money for several months.

While rejecting the motions for reconsideration, Judge Van Sickle did grant the County’s request that he certify an interlocutory review by the U.S. Ninth Circuit Court of Appeals on the issues raised in the County’s motions for reconsideration. Concurrently, and as is standard, Judge Van Sickle has stayed further activity in the case, pending review by the Ninth Circuit Court of Appeals.

“In this order,” says Beggs, “the federal district court puts to rest once and for all the County’s argument that it should be relieved of liability for taking people’s money without a hearing. The County had argued with its first attorney and now re-argued with its new attorney that by starting to give notice in January of 2005 of their illegal seizures, that somehow cured the violation of rights in failing to provide a pre-seizure hearing. The trial court also rejected the remarkable argument that even if the county’s forcible seizure of funds was illegal, it could be excused if a prisoner was later convicted for unrelated charges.”

“Finally,” Beggs added, “the trial court certified the issue of expedited appellate review. Pre-judgment interest and attorney fees continue to accrue which will test an already weak county budget situation. Hopefully, the Commissioners having been called to account twice with different lawyers will consider repaying the money that they illegally seized from their
citizens.”

In a complicated ruling that criticized Spokane for having a “conflict” between its Comprehensive Plan and development regulations, the Eastern Washington Growth Management Hearings Board (EWGMHB) nonetheless sided today with the City and developers in a dispute over the legality of city ordinances opening up large scale retail development in the bitterly contested Southgate area. The Southgate controversy has mushroomed in the past year in response to development plans to locate more “big box” retail stores in the once pastoral area where south Spokane meets the Palouse Highway.

The central issues in Tuesday’s ruling by the board was a) whether Spokane’s Comprehensive Plan required a neighborhood planning process as part of the public participation program set forth in the Spokane Municipal code, and b) whether the City violated its Comprehensive Plan and the Growth Management Act by approving Southgate development ordinances without having a neighborhood planning process in place.

On both counts, the hearings board’s answer was no.

The answer was “no” even though:

1) The hearings board found that the City comprehensive plan and its development regulations are in “conflict” because the “Comprehensive Plan directs a final determination as to the location of a center to be subject to the neighborhood planning process, yet the Spokane Municipal Code..only ‘encourages’ the persons proposing site specific amendments to address these through the neighborhood planning process.” and,

2) While the “City Council’s final determination to locate a center is..dependent on the neighborhood planning process, which is defined in the Comprehensive Plan, but was not available to the neighborhood groups because of a lack of City funding.”

In other words, the public participation process was thwarted in this case because the City didn’t have the funds to support the neighborhood planning process. But because the City did provide opportunities outside the unfunded neighborhood planning process, the Board concluded that the City had actually fulfilled the substantive requirement for public participation.

“Given the facts that there was no adopted neighborhood plan or a neighborhood process in place,” the Board ruled, “[Comprehensive Plan section] LU 3.2 is moot.”

Moreover, the Board noted: “Given that there was no process in place to practice the directive found in LU 3.2 for a neighborhood planning process, the specificity discussed at the [City-convened] workshop, and based on the timing of the workshop prior to the City Council’s adoption of Ordinance Nos. C34261, C34256, and C34257, the ‘neighborhood planning process’ may very well have taken place. We must remember that the neighborhood planning process does not dictate a particular result.”

The convoluted reasoning of the Hearings Board’s ruling did not persuade Center for Justice attorney Rick Eichstaedt who, along with Futurewise legal director Robert Beatty, argued on behalf of the neighborhood leaders, the Southgate Neighborhood Council, the Neighborhood Alliance of Spokane and the Futurewise organization.

“The simple fact is that the Comprehensive Plan says to do it [neighborhood planning] and they didn’t,” Eichstaedt said. “And I think the Hearings Board got it dead wrong.”

“The Hearings Board really missed the ball on this decision,” Eichstaedt added, “the Comprehensive Plan clearly requires neighborhood planning and it is undisputed that it did not occur. It does not matter that the City lacked funds, time, or that they consulted with the neighborhood in other ways. Neighborhood planning was a prerequisite to amending the comprehensive plan and the City should not have acted until this occurred.”

Eichstaedt said that CFJ will consult with its clients in the controversy, including the Southgate Neighborhood, to decide whether to appeal today’s decision and, if so, where to file the appeal.

The Eastern Washington Growth Management Hearings Board has yet to rule on two other elements of the Southgate challenge that the Center has crafted along with attorneys for Futurewise on behalf of the citizens and organizations challenging the proposed development. Those issues involve alleged non-compliance with the State Environmental Policy Act and a legally required planning provision known as a capital facilities plan.

U.S. District Judge Ricardo M. Urbina chastised the Bush Justice Department today when he ordered seventeen Chinese Muslims (Uighurs) to be expeditiously released from their captivity at the U.S. government prison in Guantanamo Bay, Cuba. Although a succession of U.S. Supreme Court and Appeals Court rulings set the stage for Urbina’s dramatic ruling today, this was the first time that a U.S. court directly ordered the release of one or more Guantanamo prisoners.

As we reported last July, the case dealing with the specific circumstances of the Uighur captives (they are a Muslim minority from western China) was brought forward as Huzaifa Parhat v. (U.S. Secretary of Defense) Robert M. Gates, et al.

The case involved 17 Uighurs who happened to be in the wrong place at the wrong time when, after the September 11th attacks, the U.S. launched attacks against suspected Al-Qaeda bases in Afghanistan. The camp where Parhat and his Chinese companions were training to take up arms against the Chinese government was bombed. He and the 16 other Uighers fled to Pakistan where they were taken into custody by Pakistani authorities, who then turned them over to the U.S. military. In June 2002, Parhat was transferred to the U.S. detention camp at Guantanamo Bay, Cuba, and he and the others have been there ever since. Last June, an appeals court ruled that evidence against the Uighur prisoners was unreliable. Parhat and the other Uighers have always denied they were enemies of Americans and were training with any intention to harm Americans.

According to media accounts, Judge Urbina reacted angrily today when, after ordering the release of the men, the Justice Department sought a stay to appeal his decision. What happens next remains to be seen but lawyers for the Uighurs expressed confidence to reporters that an appeals court would not interfere with the release of the men to relatives in the United States.

The Washington Post story on today’s ruling can be found here.

The New York Times story by William Glaberson can be found here.