Tribe says zoning will harm water and fishing rights

By Marcy Stamper

The Yakama Nation has filed a lawsuit against Okanogan County, claiming that the county’s new zoning code threatens the tribe’s fishing rights because it fails to protect the quality and quantity of groundwater.

The lawsuit also asserts that the environmental review the county conducted on the zoning changes was not sufficient for county commissioners to evaluate the impact of zoning changes nor compare the changes with existing conditions.

The lawsuit, filed in Okanogan County Superior Court on Aug. 15 by the Confederated Tribes and Bands of the Yakama Nation, says the zone code violates state planning and environmental laws because the code allows for more parcels than can be supported by available water resources, particularly in the Methow Valley. The county commissioners adopted the new zoning ordinance and an accompanying map on July 26, the first complete update in almost four decades.

The lawsuit also alleges that the county failed to designate agricultural and forest lands with long-term commercial significance in the zoning code. It says the code also must address the impacts of wildfires on the county’s natural resources.

The claims in the Yakama lawsuit are similar to those made by the Methow Valley Citizens Council (MVCC) and Futurewise in a lawsuit filed this month against the zoning code, as well as an earlier case these two conservation groups filed over the county’s comprehensive plan. The comp plan is the basis for the zoning code, which applies concepts from the plan to specific geographic areas and actual land uses.

In fact, the Yakama Nation cites documents submitted by MVCC and Futurewise and requests that the court consolidate their lawsuit with any other appeal against the zone code “for the sake of judicial economy and a full and comprehensive adjudication.”

Treaty rights

The Yakama Nation has fishing rights, reserved by treaty, to take fish at their “usual and accustomed” places, which includes the Columbia River and its tributaries in Okanogan County, according to the lawsuit.

But because of the deficiencies in the zone code and environmental analysis, “the fishery resources … it [the Yakama Nation] manages may be damaged and its treaty-reserved fishing rights may, likewise, be adversely impacted,” according to the complaint.

The Yakama Nation lawsuit references comments the tribe submitted to the county in April as the county was analyzing the potential impact of the zoning changes. Those comments raised concerns that the county’s zoning code could exacerbate water shortages, harm water quality and affect instream flows and fish.

The county has other regulations that ensure water adequacy and protect the environment, according to the environmental impact statement on the zoning code. This issue has also been addressed in court. For example, a property owner must demonstrate the availability of adequate, drinkable water to get a building permit, said Sandy Mackie, special counsel for Okanogan County during the case about the comprehensive plan.

But the Yakama Nation was not satisfied with the county’s assurances that these environmental concerns would be addressed elsewhere. The county’s review of the zoning code fails to discuss the probable environmental consequences, the Yakama Nation’s Department of Natural Resources said in its April letter.

“Instead, the DEIS [draft environmental impact statement] first waffles on whether or not there will even be adverse environmental consequences, then punts that question to the project-level environmental review processes, and ultimately attempts to offer other existing regulatory controls as a form of mitigation for potential environmental impacts,” they said in the letter. These issues have not been corrected, the lawsuit alleges.

The Yakama Nation is asking the court to require that the zone code and accompanying documents comply with Washington planning and environmental laws.

The attorney for MVCC and Futurewise said earlier this month that he will petition the court to consolidate the comp plan and zoning cases.

Okanogan County intends to file a reply to both the Yakama Nation and MVCC/Futurewise lawsuits next week, said Mackie.

Neither the Yakama Nation’s attorney nor representatives for the tribe could be reached for comment.