PUD claims eminent domain over state land

By Marcy Stamper

The PUD has upped the ante in its efforts to acquire land by eminent domain for its Pateros-Twisp transmission line, passing a resolution that seeks to condemn state land in addition to private property.

The Okanogan County Public Utility District commissioners unanimously approved a resolution at their Tuesday (Aug. 18) meeting, authorizing condemnation of 31 private properties and scores of parcels managed by the Department of Natural Resources as trust lands to provide revenue for schools.

PUD board president Trish Butler said after the meeting that they had incorporated DNR lands in the resolution because, “At this point, we still are hopeful to negotiate a lease with DNR, but we are not willing to lose any time, so we included them.”

The resolution directs the district’s staff to continue negotiations with property owners to acquire the easements, but allows the PUD to begin proceedings in court to take “early possession” of such interests if an agreement cannot be reached.

While questions have been raised by legal experts about whether a public utility district has the right to condemn state land, Butler said, “We would not be proceeding if we did not believe we have that right.”

Aaron Toso, director of communications and outreach for Commissioner of Public Lands Peter Goldmark, said DNR officials believed there were few precedents for a PUD or similar entity to condemn state land.

DNR asks for details on costs and environmental impacts

Goldmark addressed a letter to each PUD commissioner on Friday (Aug. 14) in response to the PUD’s July 20 letter threatening eminent domain and commenting on his review of the district’s easement request and a recent tour of the proposed powerline route. In his three-page letter, Goldmark requested detailed information from the PUD about road design and location and its vegetation-management plans.

“These roads have not been assessed, surveyed, field marked, or specified in design. Will they be a constructed road or just a carved out trail, how will they be abandoned, how many miles will be needed?” asked Goldmark.

Goldmark also questioned whether the difficulty of hand-digging holes might result in more road construction than previously envisioned “if it becomes physically impossible to dig these holes by hand,” and wondered whether it is even realistic to contemplate hand-digging in so rocky and remote a site.

Goldmark asked for an accounting of the total cost of easements calculated by the PUD for each of the seven alternatives studied, which he said he had been unable to find in the EIS. He also seeks a feasibility analysis of new powerline technology that was not considered when the district developed its initial proposal.

While Goldmark wrote that they are still reviewing information that suggests the transmission line may result in adverse impacts, primarily with respect to public services, he said DNR’s full review may require a supplemental EIS to comply with the state Environmental Policy Act.
In conclusion, Goldmark noted that, “from DNR’s perspective, the PUD’s preferred alternative has the greatest impacts on State trust lands.”

Response to condemnation efforts

Attorneys for four of the affected private property owners stated their opposition at the meeting to the PUD’s condemnation efforts. One challenged the PUD’s assertion that they would not traverse properties without the agreement of landowners unless there were no feasible alternatives, drawing their attention to the six other routes explored in the Environmental Impact Statement.

“It is technically possible and feasible for the PUD to design this thing to avoid my clients’ parcels,” he said, asserting that the PUD had selected the “least feasible” option and subjected itself and the public to further delays and expense.

Another lawyer and property owner read from the EIS regarding easement negotiations. “I have never been contacted by anyone from the PUD for any purpose, including for mutually satisfactory agreement on an easement,” she said, noting that all she had ever received from the district were letters notifying her of court proceedings.

Ray Ellis, general manager of the Okanogan County Electric Coop, spoke in favor of the proposed powerline, citing the conservation benefits of having power transmitted via a shorter route.

Legal questions raised regarding condemnation of state lands

State law gives PUDs the right to condemn lands in the same manner as cities and towns, but there are no published cases addressing the question of whether a PUD can condemn school trust lands, according to research conducted by attorney Peter Goldman, who represented plaintiffs in a lawsuit challenging the PUD’s powerline EIS.

Goldman cited a 1959 case in which the court held that cities’ right to condemn state land applies only to state land that is not previously or presently dedicated to a public use,” which he suggested would apply to DNR’s obligation to manage these lands in trust for schools.

Goldman also cited a case regarding condemnation of state forest lands in which the court ruled that “a general grant of eminent domain power to a local government entity does not empower it to condemn lands of the State.”

Urging Goldmark to defend the state’s land and the resources earmarked for schoolchildren, along with taxpayers’ money and wildlife habitat, Goldman said his clients intend to support the state legally and will try to intervene as a party to the extent allowed.

While support for the eminent-domain resolution was unanimous, commissioner Ernie Bolz said, “It saddens me that we have to proceed this way when civic-minded people used to support the means to provide adequate power for their neighbors.”

Butler said all eminent-domain petitions would be filed together in Okanogan County Superior Court in the near future.

Photo courtesy of Washington Department of Natural Resources

DNR School Trust land southeast of Twisp is target of a PUD claim of eminent domain for the proposed Pateros-Twisp transmission line.