Earlier decision said ordinance lacks environmental info

By Ann McCreary

Attorneys for Okanogan County have asked the state Court of Appeals in Spokane to reconsider a ruling issued last month that found the county had failed to adequately analyze the environmental impacts of opening almost 600 miles of roads to wheeled all-terrain vehicles (ATVs).

The county’s motion for reconsideration challenges the court’s ruling on technical procedural grounds. The motion asserts that the appeal was not brought properly before the court and therefore the court should have dismissed the case.

In an opinion issued June 16, the state Court of Appeals found that Okanogan County’s environmental review of an ordinance allowing ATVs on 600 miles of roads was “superficial” and “almost devoid of information.”

A lawsuit brought by Methow Valley Citizen’s Council (MVCC) and Conservation Northwest contended that the county had not taken into account the environmental impacts that would result if ATVs were allowed on all county roads with speed limits up to 35 miles per hour.

In a 2-1 decision, the three-judge panel said the county had not done an adequate job of complying with the State Environmental Policy Act (SEPA), which requires the county to assess potential impacts on the environment of allowing ATVs on those roads. The decision voided the county’s ATV ordinance.

Attorneys for Okanogan County filed a motion last week asking the court to reconsider its decision on the grounds that MVCC and Conservation Northwest did not follow proper legal procedure in the way they asked the court to review the county’s SEPA compliance.

“We have argued all along that they failed to bring this properly before the court and the Court of Appeal made a mistake in reviewing it,” said Alexander Mackie, special deputy prosecuting attorney for Okanogan County.

The county’s motion contends that the plaintiff failed to follow proper legal procedure in their request to the appeals court for review of the county’s SEPA decision, and therefore “deprived … this Court of jurisdiction” to consider that issue. Therefore the court should dismiss the case, according to the county’s motion for reconsideration.

“What they [MVCC and Conservation Northwest] did is file for declaratory judgment — to review the validity of a statute. SEPA is a total separate decision. To bring that before the court you need to invoke the appellate capacity of the court,” Mackie said.

Jurisdiction question

In its motion for reconsideration the county says “no pleading invoking the appellate jurisdiction of the court was filed” and therefore the court did not have jurisdiction to issue an opinion with regard to the county’s SEPA review.

In their lawsuit challenging the county’s ordinance that opened many county roads to ATVs, the conservation organizations argued that ATVs are likely to leave the roads and travel across environmental sensitive areas like wetlands and steep slopes.

They said the county should have considered the potential environmental damage resulting from illegal riding of ATVs as part of its environmental review of the ordinance opening new roads to ATVs.

The ordinance was adopted in 2014, accompanied by an environmental checklist, which MVCC and Conservation Northwest challenged. The county’s environmental checklist was upheld in Okanogan County Superior Court, and the conservation groups appealed that decision.

The appeals court opinion said the county’s environmental checklist “contains repetitive, superficial, conclusory statements regarding the potential environmental impact of opening nearly 600 miles of county roads to ATV use.”

The judges ordered county officials to prepare an environmental checklist that includes a complete disclosure and review of relevant information related to legal and illegal use of ATVs if the county wants to adopt another ordinance allowing ATVs on county roads.

One judge on the panel dissented on the opinion, saying that no new asphalt or gravel would be installed and the ordinance simply allows a certain type of off-road vehicle to drive on existing roadways.

Other issues

While the county’s request for reconsideration of the court’s decision is based on a procedural technicality, the county also disagrees “with the finding of environmental impact found by the court,” Mackie said.

“The county will take into consideration the points made by the court in any future actions regarding opening toads to public travel for ATVs, but at this time we agree with the dissent that the county did in fact consider the materials presented and simply came to a different conclusion than the plaintiffs with respect to the magnitude of the possible impact,” Mackie said.

Melanie Rowland, an MVCC board member and an attorney for the plaintiffs, said the county has been “questioning every procedure they can” during the course of the litigation.

“If they do get the panel to reconsider, we will be asked to write our views,” she said. “If they win, it throws out the whole lawsuit. We would have to start again in a different form,” she said.

If the appeals court does not grant the motion to reconsider, the county has the option of asking the state Supreme Court to take the case.

Attorneys for MVCC and Conservation Northwest have filed a separate motion to the Court of Appeals, requesting it to “publish” its opinion in the case. The motion, if granted, would mean the court’s decision could be cited as precedent in future legal proceedings, Rowland said.

The 114-page ruling, which the judges themselves called “a painfully long opinion,” could provide precedent for other cases related to SEPA, she said.

“In our view this is an excellent decision with regard to SEPA. In this case [it describes] what an adequate SEPA analysis should be,” she said.

Rowland said the court would need to decide the motion to reconsider its ruling before deciding whether to grant the motion to publish.