Ruling vacates 2017 agreement with Okanogan County
By Marcy Stamper
The Yakama Nation had every right to hold Okanogan County to a 2017 agreement negotiated in court over revisions to the county’s comp plan and zoning code — but the county missed every deadline for almost two years, the Washington Court of Appeals Division III ruled Feb. 2.
Because the county failed to meet any terms of a March 2017 agreement, the Court of Appeals sent the case back to Okanogan County Superior Court to vacate the agreement dismissing the Yakama Nation’s original 2016 lawsuit over inadequate water protections in the plans.
The agreement committed the county to adopt a new comprehensive plan and zoning code and to conduct an environmental review by the end of 2018. It also required the county to create a tracking system so the public could comment on pending land-use applications.
The original lawsuit by the Confederated Tribes and Bands of the Yakama Nation, filed in August 2016, claimed that the county’s zoning code threatened the tribe’s fishing rights because it fails to protect the quality and quantity of groundwater. It also said the county code allowed more development than can be supported by available water resources, particularly in the Methow Valley.
While the lawsuit concerned the county’s land-use planning process, the Court of Appeals viewed the case in broader terms. “This appeal concerns one of endless broken promises by American government authorities toward Native Americans,” Judge George Fearing wrote for the three-judge panel. The other judges concurred in the 27-page opinion.
Because the order of dismissal imposed numerous obligations on Okanogan County, some of which it disobeyed, the Court of Appeals found that Okanogan County Superior Court should have granted the Yakama’s request in 2019 to abandon the agreement and to enforce the original court order requiring the county to address the Yakama’s concerns about water.
But when the Yakama Nation tried to get out of the court-ordered stipulation, Okanogan County Superior Court Judge Henry Rawson said in an August 2019 ruling that dismissing the agreement wouldn’t accomplish the Yakama Nation’s goals. The Yakama Nation appealed that ruling in February 2020.
Breached agreement
In its reply to the Yakama appeal, Okanogan County listed numerous land-use policies implemented after consultation with the Yakamas and members of the public. The county commissioners also determined that the new draft of the comp plan would include a revised water section, they said.
“The declaration [by the county’s former planning director] is long on the steps taken by Okanogan County, but does not explain why the county could not have completed individual steps quicker,” Fearing wrote.
While the county agreed to adopt a new comp plan and zoning ordinance by the end of 2018, the stipulation didn’t require the county to make any specific changes to the present plan or ordinance, the judges said. “The undisputed facts establish that Okanogan County breached the agreement,” they said.
“We observe that the county possessed intimate knowledge of the process of and time required for preparing and passing a comprehensive plan and zoning code when it entered the 2017 agreement. The county could have refused to enter the agreement if it did not consider the deadline realistic,” the judges said.
Moreover, if the county needed more time to meet the deadline, the county should have asked the Superior Court to modify the order before the end of 2018, the judges said.
The county has made progress on the comprehensive plan. A new draft of the plan and accompanying environmental analysis were released last week. The county has scheduled a public hearing on the plan on March 8. Because the zoning code is based on the comp plan, an updated version of that isn’t likely to be prepared for some time.
