By Marcy Stamper
Although it would extend just 28 miles from Pateros to Twisp, the PUD’s proposed transmission line has attracted the attention of parties from across the state and the West, who join the PUD and Washington’s Commissioner of Public Lands when they make their case before the state Supreme Court later this month.
An environmental group, trade and professional associations, and the cities of Tacoma and Seattle have all weighed in on the state’s case against the Okanogan County Public Utility District (PUD) that challenges the PUD’s attempt to condemn state land for its Methow Transmission Project.
Groups backing the PUD argue that municipalities and utilities must be able to take property by eminent domain for projects in the public interest, while those backing the state are concerned about preserving environmentally sensitive areas and about the authority of state officials to decide how to manage those lands.
The justices hear oral arguments—just 20 minutes from each side—on Feb. 25, but they have reams of supporting documents from the PUD and the Washington Department of Natural Resources, plus amicus (friend-of-the-court) briefs submitted in support of each side from four other parties, several weighing in for the first time in the case.
Commissioner of Public Lands Peter Goldmark first challenged the PUD’s attempt to condemn state land to build the powerline in 2010. As head of the Washington Department of Natural Resources (DNR), Goldmark argues that he has the duty to determine how to manage and protect state lands, particularly those held in trust for schools.
Okanogan County Superior Court and the state Court of Appeals both ruled in the PUD’s favor, finding that the powerline serves a necessary public use and is compatible with the state’s current use of the land, some of which is leased for grazing.
Parties on both sides of the issue invoke more than a century of legal precedent to back their claims. The PUD and trade associations for electric utilities contend that public utilities have had the power to condemn state land for years. Tacoma and Seattle open their brief with the claim that “the authority of Washington’s political subdivisions to condemn easements in school lands has been unquestioned for over a hundred years.”
But the Western States Land Commissioners Association cites a decision in the U.S. Supreme Court in its brief, arguing that land grants for schools outlined in 19th-century federal law are a “‘solemn agreement’ between the United States and the states to use revenues from the trust lands to educate the citizenry.” The group is concerned that previous decisions in the case do not preserve maximum discretion for the trust land manager.
The PUDs and cities worry about the cost of power if school lands cannot be condemned for the power grid. Attorneys for the two cities say it would be “an impossible task” to build transmission lines to avoid public land and still ensure reliable, affordable service.
Both sides offer opposing interpretations of the responsibilities of the commissioner of public lands. Attorneys for Goldmark argue that since the early 20th century, courts have granted power to the state to determine what constitutes a public use of the state’s own property. By contrast, the PUD has no interest in the long-term management of the land but is instead “motivated by its own mission—to sell electricity to its customers,” they contend.
Yet the utilities argue that by “elevating scenic and aesthetic preservation… over the core obligation to maximize income from trust lands,” Goldmark is violating his duties as steward of public lands, since compensation for easements would most likely exceed what the state currently earns from leasing the lands for grazing.
The environmental group Conservation Northwest, which has been involved in the case since 2010 when it was granted intervenor status, is fighting the PUD’s request that the court rescind that status because the group does not own the land in question. Conservation Northwest contends that its interests in protecting the largest publicly owned shrub-steppe habitat in the Methow Valley will not be adequately represented by the state.
The proposed transmission-line route crosses 10 parcels of state trust lands in addition to federal and private lands. The PUD is seeking a 100-foot-wide easement over 12 miles of state land. The project would also require the construction of 22 miles of new roads for construction and maintenance, according to DNR.
DNR is being represented by the Pacifica Law Group, which was appointed as a special attorney general after Washington’s former attorney general refused to appeal the 2010 decision by an Okanogan County Superior Court judge.
The Methow Transmission Project was initially proposed in 1996 to supplement the 65-year-old powerline over Loup Loup Pass. There has been a succession of legal actions about environmental review of the project and condemnation of both private and public land.
The PUD and DNR had been in negotiations over easements and mitigation for the powerline for a year but the PUD withdrew the application for easements before any agreement was reached, according to DNR.
Oral arguments before the Washington Supreme Court are scheduled for Feb. 25 at 1:30 p.m. The archived hearing can be watched on the Washington State Public Affairs TV Network at www.tvw.org.