Environmental Protection and Conservation

New CAFO Draft Fails to Protect Water Quality

Although there are few if any CAFO’s (Concentrated Animal Feeding Operations) in the Spokane River Watershed, this is an extremely important issue when it comes to our statewide water quality!

Cow pic

The issue:

There are over 400 industrial dairy operations that run over 200,000 dairy cows throughout Washington state. These industrial dairy operations generate over 20 million pounds of untreated manure per day! This manure ends up in unlined lagoons, causing the groundwater in these areas to become seriously contaminated. When this contamination occurs it worsens our overall water quality resulting in unsafe drinking water and damage to nearby river ecosystems. Many farmers try to dispose of manure by over-applying manure onto their fields, however the excess then runs off into our rivers and creeks destroying aquatic life.

Unfortunately due to the strong influence big Agriculture seems to be having on the decision making of the Washington State Department of Ecology, the new draft permit is not sufficient in handling this issue.

The permit will inevitably fail to protect our waterways, this is why we need your help!

How you can help:

Help protect these fragile ecosystems by sending your comments to the Washington Department of Ecology.

In order to fully protect the public, and local wildlife from the dangerous pollutants currently in our waterways, Ecology must incorporate the following provisions in its final permit:

  • Mandatory groundwater monitoring
  • Science-based manure application requirements and restrictions
  • Science-based riparian (stream side vegetation) buffers for salmon-bearing stream
  • Implementation of best technology for CAFO operations such as synthetically-lined manure lagoons and other known and reasonably available technologies to eliminate discharges to surface and groundwater

For more information on the issue visit the Puget Soundkeeper Alliance.

Public hearings will be held on Tuesday July 26, 2016 at 6:00 pm at Whatcom Community College and Thursday July 28, 2016 at 6:00 pm at the Yakima Convention Center. Ecology will also be holding a webinar on the draft permit on Wednesday July 27 at 2:00 pm.

Please send your comments to Governor Inslee as well so he understands the publics’ concern in regards to this issue.

Riverkeeper: Standing with Mosier, OR – Testimony Supporting Halt to Oil Train Traffic

Spokane City Council takes the Courageous Stand to Call for Stop to Oil Train Traffic over our Spokane River and through Spokane, WA

 

Jerry at City CounselThis past Monday, Jerry White, our Spokane Riverkeeper, gave testimony at the Spokane City Council meeting regarding a resolution (2016-0056) in response to the recent oil train derailment and fire in Mosier, Oregon. The resolution was passed and can be read in full below. Last Friday, 16 cars from a 96-car train transporting highly flammable Bakken crude oil derailed in the Columbia River Gorge city of Mosier, Oregon. Four of the cars then caught fire sending massive amounts of smoke into the air. About a quarter of Mosier residents were evacuated, as well as 100 students from the local school that stands only 200 feet from the site of the flaming oil. Union Pacific Railroad and the city of Mosier agree that the damage from the crash could have been even more catastrophic if the wind speed had been at the usual 25 mile per hour rate that afternoon.

Jerry began his testimony by explaining that the Union Pacific Railroad has “pushed aside the derailed oil tanker cars and begun running train traffic while the burnt cars continue to smolder.” Voicing his grave concern for this reckless and unacceptable behavior, he continued to explain that the evacuated families had not yet returned home and measures had not yet been taken to clean up the spill when Union Pacific made this decision. In conclusion Jerry made clear that “the Spokane Riverkeeper stands with the city of Mosier and their Columbia River, and supports their request for a temporary halt in train traffic.” As a community voice for the river, Jerry and all of us here at the Center for Justice support this resolution and find it to be a reasonable short term response to an industry that appears to be out of control and out of touch with the norms of corporate and community responsibility.

In the end, the Spokane City Council, under the leadership of City Council President Ben Stuckart, took a courageous stance and passed Resolution 2016-0056, calling for the halt to oil train traffic through our city and over our river.  We thank them for their leadership and vision in the face of this issue.

Read Jerry’s full testimony below:

“It has come to our attention that in Mosier, Oregon the Union Pacific Railroad has now pushed has aside the derailed oil tanker cars and begun running train traffic while the burnt cars still smoulder. This is happening before many evacuated families have even returned to their homes. We know that oil reached the river, leaving state officials to initiate clean-up efforts. This reeks of a “business as usual” ethos on the part of Union Pacific that is absolutely unacceptable. This is particularly outrageous in light of the fact that we do yet understand the nature of the derailment. The Spokane Riverkeeper stands with the city Mosier and their Columbia River, and supports their request for a temporary halt in train traffic. Under 49 U.S.C. 5121(d), the United States Department of Transportation has the authority to declare an emergency prohibition of future oil train shipments through Mosier until it is proven to be safe for renewed rail traffic. We understand that Oregon’s Senators Jeff Merkley and Ron Wyden, Governor Kate Brown and Representatives Earl Blumenauer and Suzanne Bonamici released the following statement today calling for a temporary halt to oil train traffic in Columbia River Gorge Saying that, and I Quote, “They (the people of Mosier, Oregon) deserve to know that the causes of this derailment have been both identified and fixed, and there should be a moratorium on oil train traffic until they get those explanations and assurances” This terrifying incident is a mere warning of the catastrophic risks that huge segments of our community have been demanding action on for months. In light of proposed oil by rail facilities on Washington’s West side, Spokane will continue to bare the risk of oil fires in our river, spills in our community, in our river and over our drinking water. We bare the risk while the Union Pacific and Burlington Northern Santa Fe Railroads reap the profits of this traffic. This is in, and of itself, is outrageous. As a community voice for the river, I absolutely support this resolution which is a sane and reasonable short term response to an industry that appears to be out of control and out of touch with the norms of corporate and community responsibility.”

Find the full resolution by City Council in the link below:

OilTrainsResFinal

For additional information on the train derailment, check out these links:

CNN

Climate Progress

ABC News

Oregon Live

Spokane Riverkeeper Announces “River Partners”

Spokane Riverkeeper is dedicated to protecting and restoring the health of the Spokane River Watershed. The Spokane Riverkeeper River Partners Program celebrates the value added to our community and economy by the Spokane River. Quality of life and the health of the economy and local businesses are related to the health of the environment. The River Partners Program provides an opportunity for businesses to become involved with the Riverkeeper program and increases the community awareness of the integral role of the Spokane River to our city. The program helps broaden and diversify the support base for Spokane Riverkeeper and creates an attitude of community stewardship towards the Spokane River.

Businesses who join the Spokane Riverkeeper River Partners Program sign a pledge agreeing to the following statements:

  • A healthy, swimmable and fishable Spokane River is good for our local community and our economic environment.
  • Accessing and recreating on the river is an important part of the cultural and economic life of our community.
  • Respecting other river users and holding professional standards with respect to health and safety of those who live, play and work on the river is a priority.
  • Adopting water friendly business practices is an essential part of conducting business.
  • We are committed to keeping out river clean and safe, respecting the contributions a healthy river makes to our community.
  • We will connect the customers we serve with the health and beauty of our river and conduct business in a manner that demonstrates respect for the Spokane River.

In addition to signing this pledge, program members are connected with other Riverkeeper partners and receive media exposure for their businesses at Riverkeeper events as well as regular Riverkeeper updates.

Spokane businesses who are among the first to participate in the program include Numerica Credit Union, Silver Bow Fly Shop, FLOW Adventures, Kizuri, Ammonite Ink, and River City Brewing. Members have the opportunity to engage with the Riverkeeper program in four different areas:

  1. Financial Engagement (the giving of monetary resources)
  2. Policy/Program Support (includes attending meetings and signing on to letters)
  3. River Healthy Practices (adopting policies that favor the Spokane River)
  4. Volunteer/Time (participating in Riverkeeper events including the river clean-up)

The wellbeing of the environment is directly linked to wellbeing of the economy and the community in general. Jake Krummel, the Downtown Market Manager for Spokane Numerica Credit Union, stated that “The health of our local watersheds has a direct impact on the health of our community and our local environment. The advocacy and education efforts of the Spokane Riverkeeper showcase the importance of keeping our river clean, and are something Numerica is proud to support.” Participating in the Riverkeeper River Partners Program is an excellent way to protect the Spokane River, grow a business and contribute to increasing the quality of life in the Spokane community. To become a partner, please contact Jerry White at (509) 835-5211 or [email protected].

Find out more about River Partners here.

Press Release: Coalition of Conservation Groups, Industry, and Municipal Government Challenge Hatchery Permit for Impacts of PCBs to the Spokane River

For Immediate Release: January 19, 2016

Media Contacts:

Jerry White, Jr, Spokane Riverkeeper (509) 464-7614

Rick Eichstaedt, Center for Justice (509) 464-7607

Mike Petersen, The Lands Council (509) 838-4912

Adrienne Cronebaugh, Kootenai Environmental Alliance (208) 667-9093

Coalition of Conservation Groups, Industry, and Municipal Government Challenge Hatchery Permit for Impacts of PCBs to the Spokane River

Challenge seeks a permit that requires PCB testing and participating in regional PCB task force

SPOKANE, WA–Last week, a coalition of conservation groups consisting of the Spokane Riverkeeper, The Lands Council, the Kootenai Environmental Alliance, and the Lake Spokane Association, along with the Inland Empire Paper Company and the City of Coeur d’Alene filed a challenge to the Washington State Pollution Control Hearings Board of a pollution discharge permit issued by the Washington Department of Ecology for the operation of a fish hatchery on the Little Spokane River.

The appeal raises concerns about the permit’s failure to adequately address impacts of the hatchery to water quality in the Spokane River, particularly impacts from toxic polychlorinated biphenyls (PCBs).  While hatcheries do not produce PCBs, a 2006 report raised concerns about the presence of PCBs in hatchery fish food, its impact on PCB levels in fish tissue, water quality impacts in the hatchery water discharge, and impacts to PCB levels in the Spokane River.

The appeal seeks measures that would require the hatchery to conduct the same type of monitoring and to participate in the Spokane River Regional Toxics Task Force (SRRTTF) in the same manner as other PCB dischargers, including Inland Empire Paper Company and the City of Coeur d’Alene.

“The Department of Ecology and the Environmental Protection Agency requires the cities and industries on the Spokane River to vigorously monitor their discharges for PCBs and to participate in a regional toxics task force,” said Jerry White, Jr., Spokane Riverkeeper.  “We don’t want to shut down the hatchery,” said White. “We just want to make sure that all dischargers follow the same rules.”

“What we are after is parity,” said Mike Petersen, director of The Lands Council.  “The other dischargers are spending a significant amount of money and time monitoring impacts and participating in the Toxics Task Force.  It is not unreasonable to expect that the Fish and Wildlife do the same.”

“Communities on both side of the state are taking the problem of PCBs in the Spokane River seriously,” Adrienne Cronebaugh, director of the Kootenai Environmental Alliance based in Coeur d’Alene, Idaho.  “That means every potential source of PCBs needs to take action to reduce and, if possible, eliminate PCBs.”

Once widely used in everything from electrical insulators to underwater paint, PCBs are now considered a long-lived pollutant associated with increased risk of cancer, reduction of immune function and impairment of the neurological development of fetuses.  The family of chemicals, polychlorinated biphenyls, lasts for years in the environment. PCBs can concentrate in fat, and are passed along through the food chain when one animal eats another.  PCBs are toxic in extremely small quantities.  Current regulations prohibit PCB dischargers in quantities measured in the parts per quadrillion.

The Spokane Hatchery operated by the Washington Department of Fish and Wildlife was built in 1934 and is one of the State’s original hatcheries. It is one of the major Rainbow Trout facilities in the state. The facility also raises German Brown Trout, Eastern Brook Trout, Cutthroat Trout, Tiger Trout, and Kokanee Salmon.

The Pollution Control Hearings Board hears appeals from orders and decisions made by the Department of Ecology. The Board consists of three members, who are appointed by the governor and confirmed by the State Senate for staggered six-year terms.

Rocked at the Docks

State Appeals Court finds Coyote Rock and City of Spokane Valley violated state law with docks at controversial development on Spokane River.

In a major victory today for opponents of the Coyote Rock developers’ plan to site 30 recreational docks on a scenic stretch of the Spokane River, a state court of appeals panel has ruled that permits for the first two docks at the site were illegally granted by the City of Spokane Valley.

The three-judge panel’s unanimous decision stems from a challenge that Washington’s Department of Ecology brought two years ago when it intervened in a challenge originally brought by the Spokane Riverkeeper, the Spokane Falls Chapter of Trout Unlimited, and The Lands Council. At the time, Ecology contested the validity of exemptions that the City of Spokane Valley issued under the state’s Shoreline Management Act. It also sharply criticized the overall plan because the “cumulative effects of locating 30 individual docks on this reach of the river will result in complete degradation of the shoreline” in violation of the state law.

The Court of Appeals ruling focuses on the legality of the exemption to the Shoreline Management Act (SMA) that the developer sought and the City of Spokane Valley granted. Specifically, the ruling agrees with Ecology’s interpretation of the law—that the Coyote Rock developer simply isn’t entitled to use the exemption it sought because the exemption is only available to a property owner seeking to use a dock for private, non-commercial use.

At issue were the first two docks constructed at the site, one constructed in early 2010, and a second added in the summer of 2010. Both docks, Ecology alleged, were “spec” docks, intended to demonstrate the value of the riverside property to prospective Coyote Rock lot owners.

The second illegal dock built at Coyote Rock in the 2010.

“If the construction of the docks for lots 23 and 9 canned be said to have been designed for Coyote Rock’s ‘use’ at all,” wrote Judge Laurel Siddowy for the panel, “then it was for resale, a clearly commercial use. Because Coyote Rock was not eligible for the exemption relied upon by the city, the superior court’s order denying Ecology’s land use petitions must be reversed.”

Having reached its ruling on the basis of the flawed exemption, the court ruled that “it is not helpful for us to reach Ecology’s second argument” which is that the city failed to impose conditions on the permits that would address “the cumulative impacts that will result from eventual construction of 30 docks, something the city’s letters of exemptions do not do.”

However, the court’s opinion, includes a telling footnote, that appears to not bode well for the developers’ long-term plans.

“We recognize that our conclusion that Coyote Rock’s construction of a spec dock does not quality for the owner-noncommercial uses exemption will have an additional ramification under the specific {Shoreline} master program at issue here: unless the city modifies its master program, Coyote Rock will not be able to construct docks at all on its waterfront lots (if any) that were not platted prior to 1974 and fall within the area that the master plan designates as Pastoral. This is not a direct consequence of our construction of the SMA, however, but a collateral consequences of the provision of the particular master program at issue here.”

In the meantime, the appeals court ruling sends the case back to Spokane County Superior Court “with directions that it reverse the exemptions issued by the city.”

“Washington’s Shoreline Protection Act is supposed to be read strictly in favor of protecting our shorelines, so that places like the Spokane River are protected,” Riverkeeper Bart Mihailovich said, in a statement praising the ruling. “Both the City of Spokane Valley and the Superior Court failed to give the benefit of the doubt to the River, instead allowing for dock development in an area of known Redband trout habitat.”

—Tim Connor for the Center for Justice.

Chairs for Three

Spokane County Planning Commission needs new members.

The seven member Spokane County Planning Commission that advises the county’s commissioners on a variety of land use regulations, policies and plans has three vacancies to fill. According to the county, seats on the Planning Commission assigned to District 2 and District 3 will come open at the end of this year due to term expiration. A third seat, assigned on an at-large basis, will also come open in January. Members are appointed by the Board of County Commissioners.

The current makeup of the Planning Commission is:

District 1

Peter Ice
Joyce McNamee

District 2

Doug Kelley (chairman)
Mike Schmitz (vice chairman)

District 3

Randall Gillingham
Dave Jones

At-Large

Bill Moore

It is the seats currently occupied by Schmitz, Gillingham and Moore that expire at the end of this year and are open to interested applicants. Board members are volunteers and are limited to serving two four year terms.

“I think people who care about land use, traffic, habitat, water and environmental  protection should seriously consider applying for the planning commission,” says Kitty Klitzke, the Eastern Washington field organizer for Futurewise, the statewide land use organization that works to uphold and enforce the state’s Growth Management Act. “The Planning Commission looks at all the facts pertaining to land use decisions and hears from everyone concerned. They are the ones who put together the facts that the County Commissioners will see and they make the recommendations on which action to take. The Commissioners don’t always choose to take the course the planning commission recommends, but the planning commission is the most influential voice and also the most ‘in the know’ about how our built environment is taking shape. It is very important to have smart people who care about our environment, our quality of life, and our natural resources on the Planning Commission.”

Those interested in applying for one of the open seats should fill out an application and return it to Ginna Vasquez, the Assistant to the Clerk of the Board of County Commissioners at [email protected]. Ms. Vasquez can be reached by phone at (509) 477-2265. The County asks that specific questions about the roles and responsibilities of the board be addressed to planning director John Pederson at (509) 477-7212.

According to Ms. Vasquez, those applying for district designated seats must reside in the same district, but the at-large seat is open to any Spokane County resident.

Another Smoke-filled Room at Ecology

Seattle Times takes Governor and department to task for secretly negotiated agreement on coal plant emissions.

Reinforcing criticisms from Northwest environmental groups, the Seattle Times is criticizing Governor Chris Gregoire and the Washington Department of Ecology for a closed-door deal with a Canadian-based company that operates a large coal-fired power plant in Centralia. As the Times reported yesterday, even the National Park Service is publicly irritated with being kept out of negotiations that will determine how much toxic mercury and smog-causing nitrogen oxides the plant will be allowed to spew from its towering 470-foot smokestack. The Park Service is concerned because pollution from the plant contributes to haze at Mount Rainier National Park.

As of yesterday, Ecology was still refusing to make public the terms of the agreement, the negotiations on which were apparently instigated out of fear that the company, TransAlta, would close the state’s only coal-fired power plant if it were forced to meet new and more stringent emissions requirements related to haze reduction and green house gas reductions.

In today’s editorial, the Times offers a public criticism of Gregoire and Ecology that has flowed mostly privately from state environmental organizations who’ve watched the state’s once-sterling reputation as an enforcer of environmental rules being undermined by a series of private deals with polluters ranging from field burning wheat growers to Spokane river dischargers.

“Gregoire made her reputation in part by holding polluters accountable and making them deal squarely with the state,” wrote the Times in today’s editorial. “In this case,” it urged her, “direct the state to deal candidly with the public.”

Ironically, the newspaper’s editorial blast at the Governor comes a day after it published a lengthy guest column by Gregoire in which she wrote, in glowing terms about, “a Washington that can lead the nation and world in reducing harmful greenhouse-gas pollution that threatens our environment, our economy and our way of life.”

Every Breath He Takes

Ten Years Ago, Tim Krautkraemer was a sick kid who just wanted to play football. Today he’s a thriving witness to his family’s courage and to a CFJ lawsuit that continues to protect the health of thousands of people.

By Tim Connor
A few months before Spokane was introduced to the Center for Justice, eastern Washington was introduced to Tim Krautkraemer.

In a fall 1998 newsletter from the citizen group Save Our Summers, Tim was “Timothy,” a young boy with sad eyes, reddish hair, and a swollen face looking out from beneath a headline that asked: “Wheat Stubble Burning–Who Pays The Price?” A year later he was “Tim K.” one of two named plaintiffs in a CFJ federal lawsuit at the heart of an epic battle, spanning two states, pitting a politically powerful coalition of farmers against a tirelessly determined network of parents, doctors, scientists and lawyers from Spokane’s newest law firm, the Center for Justice.

To look at Tim today, a healthy and engaging young man with the breeze from a crystal clear Palouse sky blowing through his hair, it’s hard to grasp what he and his family and their compatriots went through to recover his health and to quite literally save the skies of the inland Northwest.

How bad was it? Well, consider how Jerry Zahl, a farmer and respected agronomist from Walla Walla, put it in a “protest” letter to state officials in early 1999:

“The orange-gray clouds that have turned our once beautiful crisp, clear fall days into the ugly fall days from hell are a definite threat to the welfare and productivity of many.”

The smoke clouds were just a nuisance to most, but to thousands of people who, like Tim, were sensitive to air pollution, they could inflict pure misery. One of the early known casualties of field burning was Aaron Ditmer an otherwise healthy 21-year-old Pullman man who suffered a fatal asthma attack after smoke from burning bluegrass fields in south Spokane County inundated the Pullman area in September 1994.

“The concentration of particulate in the smoke plume of a field burn,” a senior Washington Department of Ecology official wrote in 1996, “can be devastating to an asthma victim or someone with heart or respiratory problems, even when exposure lasts a matter of minutes.”

Frustration with smoke from field burning, particularly in the Spokane–Coeur d’Alene corridor–led to the formation of the Save Our Summers citizen group in 1995. SOS’s rise was accompanied by unprecedented organizing among area physicians, more than 300 of whom came forward on behalf of literally thousands of patients in two states to plead for effective regulation of field burning. Among the heart-wrenching stories was that of Alex Heisel, a then-young girl suffering from cystic fibrosis, whose Post Falls family lived in constant fear for her life during the fall burn seasons. (Alex would be the other named plaintiff, with Tim, in the federal lawsuit that CFJ brought on their behalf in 1999.)

Now, it seems very much like yesterday’s news. Up here on a Pullman ridge top with a healthy Tim Krautkraemer it’s easy to forget what he and thousands of others went through. Today, because of the case that Tim’s experience was at the center of, complaints from field smoke in the region are virtually non-existent. It makes it easier to forget that field burning was not just any controversy. It was a gut-wrenching battle for just about everybody involved, including the young law firm that brought the case to federal court. Nationally important legal issues were at stake, and a wide and menacing cultural divide separated the adversaries.

“Tim was going to be a public figure and Jeff and Patti wanted to make sure he knew what was going on and that it was something he wanted. And he did.”–former CFJ attorney Karen Lindholdt

“It was a chasm as wide as the Grand Canyon,” says Karen Lindholdt, the CFJ attorney who represented SOS and Tim and Alex in the case.

Lindholdt herself became a target. In 2002, in the midst of a high-profile field burning case in Coeur d’Alene, vandals came to her home in Spokane in the dead of night and wrapped her trees and bushes with toilet paper.

Four years earlier, two Save Our Summers activists, Jan Tenold and Tricia Hoffman, were forced to seek refuge in a rural Franklin County home after growers in pickup trucks chased them from where they’d been videotaping smoke rising from a burning field. To mollify the angry growers, the two women were charged with trespassing. (The pair were represented before a Franklin County jury by Jim Sheehan, the Center for Justice’s founder who, it turned out, was making his last trial appearance as a practicing lawyer.)

It wasn’t just the activists who were targeted. Not long after the SOS women were chased, several growers trapped and detained two inspectors from the Washington Department of Ecology who were investigating illegal burning in Franklin County.

But nothing was more wrenching to Save Our Summers than the actions of the state itself.

The organization’s biggest victory came in early 1996 when Mary Riveland, the Director of Washington’s Department of Ecology, announced she was using the agency’s emergency rule-making authority to all but eliminate the burning ofTim with his father Jeff, mom Patti Gora, and sister Anneliese in 1999 bluegrass over a three year period. Riveland, to her credit, had taken the time to visit victims of field burning and was visibly moved by their stories, including Alex Heisel’s.

Riveland retired in January of 1997 and was replaced by Tom Fitzsimmons, a director who, by all measures, was far more interested in protecting field-burning farmers. As fate would have it, the improvement in air quality due to the phase out of bluegrass burning ordered by Riveland, was being offset by a dramatic surge in the number of wheat acres being burned, in part because of a shift to no-till farming methods.

While bluegrass growers had enjoyed years of political influence in Olympia through their trade organization, wheat growers had even more clout.

“Absolutely,” says Lindholdt, “the Washington Association of Wheat Growers was not the Inland Grass Growers Association. The wheat growers are clearly a very powerful organization.”

“The orange-gray clouds that have turned our once beautiful crisp, clear fall days into the ugly fall days from hell are a definite threat to the welfare and productivity of many.”–Farmer and agronomist Jerry Zahl in a 1999 protest letter to state officials

Just how heavily Ecology leaned toward farmers who burned their fields became clear in early 1999 when a citizen researcher looking through boxes of agency records lifted up an innocuous-looking cover sheet. Beneath it, in striking detail, was a secret plan worked out between a WAWG representative and top Ecology officials to mislead the public and the press about an agreement Ecology had reached with the WAWG on field burning.

The so-called “Roll Out” memo touched off a storm of ridicule in the press. It also led to CFJ’s first successful public records lawsuit because the document had been illegally withheld from SOS. The episode all but destroyed the agency’s credibility as an honest broker in a controversy where a balance had to be struck between farmers who wanted to burn fields and people like Tim Krautkraemer who, under state and federal law, were supposed to have a right to breathe air that didn’t make them sick.

By conspiracy and deception, Save Our Summers had simply been shut out of the process. There was only one thing to do, and that was to file a lawsuit. But what kind of lawsuit?

The answer came from Tricia Hoffman, the Spokane Valley veterinarian who was SOS’s lead organizer, publicist and spokesperson. Hoffman is a voracious researcher and she had come across a case from Iowa, known as the “Heather K.” case, where open burning in an Iowa town had been constrained under the Americans With Disabilities Act (ADA) to protect a child with respiratory disease and a heart disorder.

“I thought ‘why not?'” Lindholdt said when Hoffman suggested the approach. “Once I read that case and studied the ADA it looked to me that there couldn’t be a better fit. The right to breathe and the right to leave your house, that’s what the ADA is all about, obtaining these basic rights for people with disabilities. So the shoe really fit.

The case–SOS et al. v. Department of Ecology–was filed on October 1, 1999 and into the federal courtroom in Spokane stepped young Tim Krautkraemer.

By that time, Tim and his parents–WSU Economics Professor Jeff Krautkramer and his wife, Patti Gora–were prepared to do just about anything to protect their ten-year-old son from field smoke. Tim had begun suffering from asthma, allergies and sinus infections since before kindergarten but the annual field burning, both in the spring and fall, tipped him into harrowing health emergencies requiring steroids and bronchodilaters like albuterol. The steroids had serious side-effects and even the albuterol made it difficult for him to get to sleep.

“He would be on fifteen medications a day,” Patti remembers, “and I would have to make a flow chart. It was insane.”

What added to their frustration with Ecology is that their legislative representatives in Whitman County were so loyal to wheat farmers that none were willing to help protect the city and the WSU campus from smoke intrusions. In October 1998, two SOS members wrote a letter to K.J. (Gus) Kravas, WSU’s Vice President for Student Affairs, to “express our regret” that their asthmatic son with a 3.9 GPA would not be attending the university because of smoke from field burning. Kravas wrote back not only to report his regret but to convey his own frustration.

“I have spoken to a number of current students,” Kravas wrote, “who have expressed their displeasure about the practice and have learned first hand that it can create a life-endangering situation. That has prompted me to contact several county and state agencies about the problem. I have experienced the same level of frustration you seem to have had.”

After a particularly bad day in 1998, where she and her wheezing son were literally trapped in their home by a suddenly arriving plume of smoke, Patti put in a phone call to their state senator. When the senator returned the call a few days later, Tim was in the room when his father answered it. The senator’s solution to the problem was for the family to leave “wheat country.” Attorney Karen Lindholdt

“I actually remember my dad getting that phone call,” Tim says. “He [his father] was livid. At that point my parents were talking to me and my sister because we were growing up and could understand more. So that was the first consciousness I had about what we were up against.”

The politics were complicated. But one thing was clear. Tim was losing his childhood. The simple act of going outside in summer and fall and playing football with his friends was taken away from him because the smoke from field burning made him too sick.

“I couldn’t breathe,” he remembers. “I distinctly remember one day, we’d come up to Spokane to meet with Doctor McCarthy, my asthma specialist. He’d given me a prescription for anti-biotics and after we came back to Pullman and picked them up at ShopKo, I asked my mom if we could just drive by the practice fields to see if we could watch the kids practicing. And I remember just sitting in the car that day watching an entire practice with all my friends there. That was kind of a defining moment for me. But I still wanted to play football and I still wanted to be successful at it.”

He also remembers the conversation with his mother in which she told him that she didn’t think the problem would get solved without legal action. He didn’t know what to expect as a plaintiff but he was up for it.

“I remember meeting Karen Lindholdt,” he says, “because she was with us from day one. And I remember going out to the store and buying khakis, a dress shirt, and a tie.”

“Tim was going to be a public figure,” says Lindholdt,”and Jeff and Patti wanted to make sure he knew what was going on and that it was something he wanted. And he did.”

If there was a reason to be optimistic about a federal ADA lawsuit against Ecology it was, in part, because the purposes of the ADA seemed to align perfectly with the clear declaration in Washington’s Clean Air Act about the law’s purpose “to secure and maintain levels of air quality that protect human health and safety, including the most sensitive members of the population.”

But to the person who mattered most, Federal District Court Judge Robert Whaley, it wasn’t nearly so simple. Because the ADA is a fairly new statute, there is a dearth of case law on how anti-discrimination laws like the ADA were to be reconciled with environmental laws like the state and federal Clean Air Acts.

In short, the nearly two years worth of proceedings in Judge Whaley’s courtroom became a textbook example for CFJ founder Jim Sheehan’s critique of how illusive justice can be through the courts.

“I actually remember my dad getting that phone call. He was livid. At that point my parents were talking to me and my sister because we were growing up and could understand more. So that was the first consciousness I had about what we were up against.”–Tim Krautkraemer, recalling the moment when his father was told by a state senator that the solution to the problem was for the family to leave Pullman.

As Judge Whaley acknowledged, the facts were on the side of Save Our Summers and Tim and Alex at least in terms of their having shown that smoke from field burning was inflicting harm upon them. But what Judge Whaley couldn’t find was that the harm being inflicted was the result of a discriminatory policy or practice by Ecology.

“(T)he fact that Defendants know Plaintiffs are being hurt by burning does not mean that Defendants allow burning in order to hurt Plaintiffs,” Judge Whaley wrote in his June 2001 decision dismissing the case. Elsewhere, he noted: “The agency has drawn a line between those whose health it will protect,” he wrote, “and those whose health it will not; some, including the Plaintiffs, have been hurt by this.”

Judge Whaley’s dismissal would have been the end of things were it not for what else had happened inside and out of the courtroom over the two years since the case was filed. Perhaps it’s too simplistic to say that Save Our Summers had won by losing, but neither is it far from the truth.

For starters, the blunt language in Judge Whaley’s rulings about the injuries that Ecology was allowing to be inflicted on the plaintiffs was jarring given public expectations that Ecology was in the business of protecting public health and the environment.

But SOS had also acquired a very potent card that it could play in an appeal to the U.S. Ninth Circuit.

It was clear almost from the start of the case, says Lindholdt, that senior Justice Department were very much engaged in the issues raised in Save Our Summers et al. v. Ecology because of the broad implications the case would have if SOS were to prevail.

“What it did,” she says, “is that it brought high-level attention to the issue. Because we were on the verge of opening up a new avenue of litigation against agricultural and other pollution. And it made our government very nervous. So that’s when the Department of Justice (DOJ) said to EPA, ‘you might want to get involved here. So EPA told us and Ecology it wanted to resolve the matter.”

Justice Department officials also let it be known, Lindholdt says, that they tended to agree with SOS’s position. And so a private understanding ensued, where federal officials would support and fund the mediation efforts in the case, in exchange for SOS not pushing DOJ to file the amicus brief that Judge Whaley had requested just two months into the case.

It was only when a first round of mediation broke down in August of 2000, that the Justice Department formally filed its amicus brief–ten months to the day after Judge Whaley requested it. The 28-page brief directly challenged the Judge’s early rulings and explained how, in the U.S. Government’s view, the ADA and the clean air laws could be reconciled.

“Plaintiff’s ADA and RA [Rehabilitation Act] claims are not barred by the Clean Air Act, notwithstanding the CAA’s extensive remedial scheme,” the brief read. “These two statutory schemes can be interpreted in a manner that promotes both statutes’ objectives; thus, neither scheme should be construed to displace the other.”

Patti Gora certainly understood the importance of the Justice Department’s filing. Shortly afterwards, on a trip that she and Jeff took to Washington D.C., she made time to go directly to Justice Department headquarters and shake the hands of the lawyers who’d authored the brief.

Another round of mediation ensued, this time without the WAWG. Finally, on November 9, 2001, SOS and Ecology reached an agreement that laid out a process for setting new rules for wheat field burning in Washington.

In Lindholdt’s view, the Justice Department’s filing, and the continued cost of the litigation to Ecology was only part of the reason for the settlement.

“We’d won the battle in the court of public opinion,” she says. “I just think they lost their stomach against the constant charges that they weren’t willing to protect sick kids.”

SOS, at its core, was a group of deeply committed mothers who were out to protect their kids. In December 1998, the tenacious moms thought they were on the verge of a breakthrough in that top Ecology officials had begun assuring them and journalists that the agency would shortly be promulgating new rules for wheat burning that would be based on public health protection and rooted in sound science. It’s hard to express the betrayal the moms felt when, a month later, Ecology suddenly announced its secretly negotiated agreement with the WAWG.

It had taken three long and bitterly frustrating years, but now SOS had a consent agreement with Ecology that committed the agency to the rule-making it had promised in 1998. In the short-term, even before the new rules had been fleshed out, what SOS members noticed is that the air in the fall and spring was getting cleaner. Without much fanfare, the Ecology field staff had begun to curtail field burning when atmospheric conditions were marginal and to tightly limit the acres that could be burned on days when weather conditions weren’t ideal for lifting and dispersing the smoke.

It made such a difference that Tim Krautkraemer could now play football without worrying so much about getting sick. It was, however, a personal triumph beset by tragedy. In the fall of 2004 as he was warming up for a football game, a trainer took him aside and Tim was brought to the hospital in Pullman, where his father had just been diagnosed with inoperable cancer. Jeff Krautkraemer died a few weeks later.

“Jeff was my right hand man,” Lindholdt remembers. “The guy was essentially an in-house expert. He had a Ph.d. in Economics and agricultural economics was his speciality. The research he did to advance the case was phenomenal and he paid for it professionally. There were months when he spent ten to fifteen hours a week working with me.”

Because he was so young when the federal lawsuit was filed, Tim says he didn’t always understand what was happening in Judge Whaley’s courtroom in Spokane. But he well understood the work his dad was doing on the case and, as SOS chairman, the wrenching negotiations with Ecology and the WAWG.

“Both of my parents had to pull double duty to make it happen,” Tim says. “And I’m so grateful for them that they did that. I know they could have easily just tried to live with it and say, ‘oh well, this is how it is, and as long as we just take care of Tim’s asthma we’ll be fine. But instead, you know, they wanted to make it better because they didn’t want other families to have to go through the same thing.”

In May 2006, Ecology, Save Our Summers, and the Washington Association of Wheat Growers together announced their support for the new state rules governing cereal grain burning–rules that refined and formalized the new, health-based system Ecology had begun to put in place at the time it decided to settle the SOS lawsuit. That fall, Tim Krautkraemer, now a linebacker, running back and special teams player, helped the Pullman Greyhounds win a state high school football championship.

Patti Gora took the fight for clean air next door to Idaho and became executive director of Safe Air For Everyone (SAFE) which, until 2008, worked to regulate field burning in Idaho. In 2007, Lindholdt and the SAFE legal team scored a stunning victory in federal court that forced the Idaho officials and growers in Idaho who burn bluegrass and wheat fields to completely overhaul state rules for field burning to bring the practice into compliance with the federal Clean Air Act. The blueprint for the Idaho rules came from the rules adopted in Washington as part of the SOS settlement. Thus, the final effect of the SOS lawsuit was to develop new rules for field burning that now protect vulnerable citizens in both Washington and Idaho.

“It was amazing,” Lindholdt says. “It was such a grassroots effort and we could not have done it without all the time donated by the SOS leadership and the doctors.”

As for the legal battle itself, Lindholdt says: “It was unquestionably one of the most intense and emotional cases I will ever be involved in. But it was such a neat opportunity for so many reasons, the people, the doctors, the SOS moms, the litigation, working with EPA and DOJ was possibly something that won’t ever occur again in my career.”

Tim Krautkraemer is now a healthy sophomore at Washington State University, currently immersed in Comparative Ethnic Studies, but already thinking of a future where he can be a social activist, possibly a lawyer, and help people. That, in itself, is a legacy of the hard fight his parents waged on his behalf.

“What they were really good about was supporting each other when the other would get frustrated. They would tell each other, ‘hey, it’s not the end of the world, we’re still fighting, and it’s going to be a long battle.’ But they knew in the end that it was going to turn out the way it was supposed to. They set a really good example.”

“I’m just proud of what can happen,” he says about his involvement in pivotal case. “Everybody’s interests were against compromising, but from where it stands now, everything is so much better. Of course, there’s still field burning and of course there’s still smoke in the air, but it’s not even close to the extent it was before. It just makes me proud.”

–CFJ

Hammered Again

Spokane County gets yet another pen-lashing for multiple violations of the state’s Growth Management Act

With unusually blunt language, the Eastern Washington Growth Management Hearings Board has once again treated Spokane County harshly on a land use appeal to the three member panel.

McGlades restaurant on Highway 2

In a decision announced last week involving a citizen and Neighborhood Alliance challenge to the county and the proprietors of McGlades restaurant on Highway 2 north of Spokane, the Hearings Board found the county in error in all six issues raised in the appeal.

As the Hearings Board noted in its ruling, the McGlades property was permitted for use as a rural produce stand in 1984, but has since morphed into a full-service restaurant, complete with alcohol service and a drive up espresso stand. The 4.2 acres on which the restaurant now sits is referred to in the record as a “bunny tooth” of commercial property intruding into a rural residential area.

The Center for Justice represented the petitioners and argued on their behalf before the Hearings Board.

It wasn’t just the number of errors that drew the Hearings Board’s wrath. It was the county’s apparently willful decisions to try to bypass state environmental assessment procedures and its own comprehensive plan that elicited the harshest rebukes.

“The County deferred environmental review to the project stage, which essentially makes the SEPA (State Environmental Policy Act) process moot,” the Hearings Board ruled. “SEPA is to provide agencies environmental information prior to making decisions, not after they were made.”

Significantly, neither the County nor the restaurant owners contested two of the six issues that the Center argued on behalf of the petitioners.

Because the Hearings Board also found that the County’s decisions in the case “would substantially interfere” with three provisions of the state’s Growth Management Act, it capped its ruling with a formal finding of “invalidity.” This last ruling was accompanied with a detailed order and timeline for the County to come into compliance.

“It is significant that the Board ruled in our favor on all six legal issues,” said Rick Eichstaedt, the CFJ attorney representing the neighbors and the Neighborhood Alliance. “This decision makes it clear that the County must analyze the environmental impacts of its actions when it amends its comprehensive plan and zoning ordinance, and that it can’t defer until a development proposal is submitted. It also affirms that urban development, such as commercial business, are supposed to be the exception and not the rule in rural areas outside the Urban Growth Boundary. By using the finding of invalidity, the Board sent a clear message that the County’s actions violated the fundamental goals of the state’s Growth Management Act.”

The tone and sweep of the Hearings Board’s ruling is strikingly similar to its rulings in 2005 and 2006 when it found that the County had unlawfully allowed expansions of its urban growth areas to accommodate developers on the Five Mile Prairie and in the Palisades area west of Spokane. Our story about those decisions can be found here. The Center represented petitioners in Five Mile and Palisades cases as well.

Another key factor in the Hearings Board’s decision in the McGlades case is the fact that the restaurant is located in a critical aquifer recharge area (CARA) “with a rating of high susceptibility. What that meant, the Hearings Board ruled, is that the County needed to exercise special care in evaluating how allowing commercial development in the area could ultimately affect groundwater. And it hadn’t done so.

Given the inadequacy of the environmental review, the Hearings Board found, “the County failed to (sic) its duty to protect a designated critical area or, at the very minimum, use best available science to determine future impacts to the CARA from the increased septic effluent and stormwater runoff from an expansion of the business.”

“It is unfortunate that citizens must take legal action against the County to ensure that it follows the law and its own comprehensive plan,” said Eichstaedt. “The good news is that the Board’s decision will make sure that proper SEPA analysis is considered prior to making significant comprehensive plan and rezone decisions. This is a problem not only with Spokane County, but we have seen it in the City of Spokane’s decision to approve the Southgate big box stores. This decision certainly will be helpful in the Center’s appeal of that decision.”