Apparently, State Attorney General Rob McKenna is too busy representing the people of Florida to do his job representing the people of Washington, at least as evidenced by his announcement yesterday that he would no longer represent the state Department of Natural Resources in its legal fight against Okanogan County’s condemnation of Common School Trust land to build a PUD transmission line.
McKenna’s shirking of his constitutional obligations (he is, after all, the state’s attorney) leaves DNR, which has already laid off about 9 percent of its workforce, scrounging for money to hire an outside attorney in order to defend income producing public trust lands.
Which raises the question: who the hell does McKenna work for?
I thought he worked for us, the people, or more directly for the various state agencies for which his office is required to provide legal services, but McKenna apparently takes a more cavalier approach to his job. In defiance of both the Governor and the Legislature — our state’s policy setting bodies — McKenna was quick to use his office to join Florida’s lawsuit to repeal federal health insurance reform that is slated to bring hundreds millions of dollars a year of new federal funding to the state. But when Public Lands Commissioner Peter Goldmark needs the AG to represent the interests of the people of Washington state, McKenna can’t be bothered to perform the mundane duties of his office.
Let’s be clear: it’s not McKenna’s job to determine the merits of the case or weigh in on the policy decisions guiding it. He’s DNR’s attorney, not it’s judge or jury, and his ethical and legal obligation is to represent his client to the best of his ability. And that, he is clearly failing to do.
The result? Okanogan PUD’s bifurcation of public trust lands with transmission lines and maintenance roads will reduce the value of the land and the income it produces to the state, while increasing both the fire risk and the cost of maintaining and patrolling it. This takes money out a public trust that has generated over $3 billion for public school construction over the past several decades.
It’s time for McKenna to put aside his 2012 gubernatorial campaign and start doing the job for which he was elected.
??????
The state AG’s office isn’t representing the state when ownership of state lands is in question? This makes no sense. Can the governor force him back on to the case?
How about giving us the whole story goldy?
I know its habit for you to only give one side, but maybe you should expand your horizons a bit and try giving the whole story, not just twist the parts in order to fit your agenda.
Can you do it?
This is not the only time McKenna has shown favorable treatment to the public utility folks. His AAG recently let them off with a slap on the wrist for a serious PDC violation, yet, in other cases the PDC and the AG have been curiously aggressive.
Yeah, the original case was decided already.
McKenna is choosing not to _appeal_ the case.
Likely because they can’t win.
My initial comment was asking for a link with more information. If the above comment is right, though, it’s hardly unprecedented to choose not to appeal. This is a non-story.
http://www.atg.wa.gov/pressrelease.aspx?id=25816
Goldy–
Please explain why “it’s not McKenna’s job to determine the merits of the case.”
What if Gregoire decided she wanted to file a lawsuit to takeover all private businesses in Washington?
You seem to be saying McKenna must do it..even if it is unConstitutional.
Did you try asking McKenna why he made this decision? The problem is I don’t think he can legally tell you, can he? Attorney/Client priv.
Obviously McKenna is not walking away from this with no reason. Your analogy with Florida is hence ludicrous.
Ask your buddy Goldmark specifically what McKenna told him. You made no mention whatsoever of that which makes your whole post ridiculous.
Try to get Goldmark on the record.
If you don’t, it’s obviously just another Goldy Political Game-playing exercise in futility to try and create some futile Public outcry…or to make McKenna look bad with ZERO substance to your empty insinuations.
Goldy, you look disingenuous on this one.
Well played…not.
Attempt at parking the bus on McKenna = TEH FAIL.
So the local PUD needs a new power line, the DNR says no, the court says yes, the AG having seen what the court said, decides not to represent the loser in a battle between TWO GOVERNMENT agencies in a likely useless appeal.
Goldmark is pissed because his budget is affected. Whiner.
Goldy, believing everything dropping out of Goldmark’s ass is worth eating, gets all self-righteous. Moron.
He’s DNR’s attorney, not it’s judge or jury, and his ethical and legal obligation is to represent his client to the best of his ability.
—
Then sue, Goldy, if you really believe he’s failing to fulfill his legal obligations. An extra bonus will be all the great PR, which might be good for additional donations to keep you afloat . . .
The whine from the DNR:
http://www.dnr.wa.gov/Recreati.....na_nr.aspx
Good for Commissioner Goldmark to stand up for our State’s public lands. McKenna thought he could bully Goldmark into submission but, like the Okanogan PUD, he was wrong. It’s nice to see some leadership in Olympia.
@11
So the good folk of Okanagan County can have a school, they just can’t have any lights. Is that what you’re saying?
“The ruling allows the PUD to condemn a 12-mile-long corridor of state land, currently used for grazing, said DNR spokesman Aaron Toso.
Judge Jack Burchard ruled May 11 that a new transmission line would not prevent the current public use of the property, now leased for grazing livestock.”
http://www.wenatcheeworld.com/.....ne-tangle/
A quick calculations also says that 12 miles long by half a mile wide is 6 square miles or 3,840 acres. At a high-end grazing fee rate of $14 per acre (top notch pasture land, which it isn’t), that’s $54k per year if ALL GRAZING WERE ELIMINATED (which it won’t be).
Goldmark could save double that by firing the PR flack who suggested this might be a good idea.
@12
I thought you guys didn’t like paying taxes? From the article you linked to:
Maybe Goldmark just doesn’t want the people of Washington State to get screwed over in the deal? You’re taxes might be going up to cover the costs of this.
Looks like another case of Eastern Washington Welfare Queen-ites to me.
@12
Last I checked all my relatives in Omak had electricity.
Oops, that should be Eastern Washington Welfare Queen-itis.
@16
maybe those welfare queens you complain about should stop sending food and electricity to you whiners like yourself.
or maybe they should just shoot the limpwristed Belltown types like yourself who go hiking and mountain biking over there.
just saying.
Hmm, I take it this isn’t the thread about Sarah Palin’s breast implants. I’ll take it, er, those up on the open thread.
@15
1. See #15.
2. I’m not in Seattle.
3. Delbert come on here all the time bitching about his taxes and then doesn’t support things that might keep keep his taxes low. WTF am I supposed to do with that?
4. I’m trained in the use of firearms and PR-24’s.
@19
Oops, that should be @17.
Time for dinner!
@19
so in other words you just a run of the mill whiner.
ok then.
The Okanogan PUD has burned DNR in the past; literally! They’re a bad actor and Commissioner Goldmark is looking out for the people of Washington State. Good man!
“[Goldmark] said the DNR has had problems in the past with the Okanogan County PUD’s inability to manage weeds, and pay for fire costs when power lines ignite fires on state lands. More roads will mean more unauthorized use, increasing enforcement costs, the news release said.”
http://www.wenatcheeworld.com/.....ne-tangle/
@21
See 22.
I’m not the whiner on this one. Goldmark’s trying to make sure we don’t get screwed over.
@19
It’s not about taxes. This is between two government organizations (Okanagan PUD vs. DNR) fighting over money and power. And since there’s barely any money involved, it’s more likely about power and control.
If the PUD involved was Seattle City Light, you assholes would be all over on the other side.
@19: Well, if you can’t fight about money and power, you might as well strike your colors and leave the field. As for it “just” being a dispute “between two government agencies”, how about this one: http://www.atg.wa.gov/pressrel.....8;id=25796
Can anyone tell me what legal errors Judge Burchard supposedly committed in making his decision in favor of Okanogan County PUD? There has to be a legal basis for an appeal, otherwise it is frivolous.
I certainly can relate to the point of Muley @ 22, if Okanogan PUD is breaching legal obligations to DNR about its utility lines, etc. But that is a separate legal issue from whether Okanogan PUD can build the line in the first place (which is what an appeal would deal with).
Or how about this appeal undertaken by our esteemed AG:
http://www.atg.wa.gov/pressrelease.aspx?id=20378
No language there about an evaluation of the probability of winning.
RPope,
In response to your query, see this article:
http://www.conservationnw.org/.....ation-suit
The decision came down on May 11. A party wishing to appeal a Superior Court decision has 30 days in which to do so. Yesterday, June 8, McKenna informed (kind of informed) his client, DNR, that he would not appeal. That does not leave the client a whole lot of time in which to scramble to find another attorney. A little guy like me doesn’t get to wait that long to say to the client that no appeal will be filed. I’ve got about 2 days after the decision is rendered. I’d get sued for malpractice in private practice if I’d done what McKenna has done. Politics plainly played a role in his behavior here. Oh, and by the way, Peter Goldmark is from Okanogan County. He’s also a rancher. I suspect he knows what he’s talking about with regard to this issue.
@29
I was wondering if anyone was going to point that out.
***************
Can the governor tell the AG to get back on the case?
Nah, it couldn’t have anything to do with increasing DNR’s cost to manage the land…
So, the righties want the state to pick up those extra costs and at the same time they want to complain about how their taxes are too high.
Proud @ 27, 28
There was a trial in Okanogan County Superior Court. Judge Burchard considered the evidence and legal arguments, and made a decision. Obviously, he did not fully adopt the DNR position, since Goldmark wants to appeal. It is unclear whether the court fully adopted Okanogan PUD’s position — or whether the decision (apparently about the monetary compensation to be paid for the easement) was somewhere in between the position of the two litigants.
If Judge Burchard’s decision is disputed based on his factual determinations, those are usually very hard to reverse on appeal — so long as there is at least some evidence to support the decision.
If Judge Burchard’s decision is disputed based on his legal rulings, then there would be a stronger basis for appeal. An appellate court determines the law de novo — i.e. it makes its own decision about the correct legal standards.
It is important for McKenna to follow the correct legal standard as well. If the appeal would not be frivolous, McKenna should file the appeal, if that is what his client (DNR) desires. In any event, the budget process for the AG’s office results in its clients (such as DNR and other agencies) paying the AG for the actual cost of legal representation.
In the 2008 King County Superior Court case on the water rights law, I assume that McKenna’s client (presumably a state agency) wanted the appeal to be filed. And the challenged decision (striking down the law) was presumably mainly an issue of law, which is the usually strongest basis on which to appeal (due to de novo legal determinations on appeal).
I wonder whether McKenna won that appeal? The press release you reference is from July 7, 2008, so maybe the state supreme court has decided the case already. (I will try to find this.)
30: “Can the governor tell the AG to get back on the case?”
McKenna is a complete loose cannon at this point. He joined the southern states’ frivolous lawsuit alleging that the federal healthcare legislation is unconstitutional, despite Governor Gregoire’s requests. Now, he does this. Rob McKenna, who was never a litigator, is a purely political creature, who primarily looks after Rob McKenna’s interests. He’s also a dweeb.
Proud @ 29
The decision came down on May 11. A party wishing to appeal a Superior Court decision has 30 days in which to do so. Yesterday, June 8, McKenna informed (kind of informed) his client, DNR, that he would not appeal.
You are 100% CORRECT on this issue. Regardless of whether McKenna thought an appeal would be frivolous, you don’t wait 28 days and tell your client 2 days before the time expires to find another lawyer!
At the very minimum, McKenna’s office could file a timely notice of appeal (which only costs his client $280 or so filing fee, plus an hour or two of AG lawyer time to draft — all of which gets billed to client DNR), and then immediately seek to withdraw so that DNR could get different counsel.
Pope asked what the legal error was? The Court of Appeals reviews the legal issue (“can the PUD condemn state trust lands?) de novo (from scratch) so no “error” review is invovled. Delbert goes on and on about how necessary this t-line is and how the State will make more money from it than from cows. But this misses a critical point: this state land ain’t “just” for making money for present day generations. It’s Goldmarks’s job to manage it for future generations too. Saddling the largest piece of public shrub steppe habitat with a 26 mile long line (100 ft wide, Delbert) destroys this lands, in Goldmark’s learned opinion. And yes, he’s a life long rancher 20 miles away so he knows what he’s talking about.
McKenna sucking up to PUD’s at expense of the environment. Period.
Goldman @ 35
Pope asked what the legal error was? The Court of Appeals reviews the legal issue (”can the PUD condemn state trust lands?) de novo (from scratch) so no “error” review is invovled.
If that is the legal issue — “can the PUD condemn state trust lands?” — and it has never been decided by a state appellate court, then definitely there should be an appeal on that issue.
By the way, it is still an “error” review. If the trial court decided a legal issue incorrectly, it has committed an error of law. The standard of review is different, since an appellate court decides legal issues de novo (from scratch). Factual issues are more difficult, since factual findings usually only need to be supported by substantial evidence to be upheld on appeal (i.e. the appeals court usually does not re-weigh the evidence).
Richard,
I’m quite aware of the distinction between appeals asserting factual errors and those alleging legal errors. I actually do a fair amount of appellate work. You might note that there is a difference between Proud to Be An Ass (who I highly respect) and proud leftist (who I don’t respect so much).
@35
Apparently only 12 miles is DNR managed land per the Wenatchee World article and if it’s 100 feet wide then we’re talking about 145 acres out of the 2.2 million acres of trust land in Washington State. 145 acres of prime grazing land will yield $2,036 per year. It’s a turf war.
If McKenna would defend the DNR, it would take only 8,742 years to pay off Queen Christine’s failed $17.8 million appeal when she was AG.
delbert,
Actually, that $17.8 million dollar verdict was highly likely to have stood up on appeal. It was, after all, a verdict, which means that a jury examined the facts and determined the result. (See discussion of factual and legal errors above.) Perhaps the state could have made some legal arguments about evidentiary decisions or jury instructions, but the likelihood of a jury verdict like that one being overturned on appeal were slim to none. And, what might the state have obtained had it won the appeal? The opportunity to try a really tough case to a jury once again. Do you think things would have turned out better, given the outrageous facts involved in that case?
@3 Well, at least he’s cozying up to the public utility folks instead of the private power interests. That’s worth something in a populist state like Washington. There’s gotta be a catch to it somewhere, though. You should never trust Republican populism.
@39 It is extremely — and I mean EXTREMELY — unlikely the appeals court would have reversed the verdict against DSHS if a timely appeal had been filed. Of course, you’re not a lawyer, so you have the luxury of shooting from the lip without knowing what you’re talking about. There’s a chance the appeals court might have reduced the award, but that is purely speculative. Like all Republican talking points, this one is built on a foundation of falsehoods and lies.
@38
It’s not grazing fees that are at issue, it’s the character of the land, the health of the overall habitat and the increased maintenance costs on the land that are the “costs” issues.
Grazing fees don’t even cover the states costs for having the animals on the land.
@ 40 & 42
We’ll never know if the appeal for the $17.8 million dollars would have been successful.
Chris G. fucked up and didn’t file the appeal. End of story.
@43 It’s 145 acres, it’s grazing land now, it’ll be grazing land afterwards. It’s a drop in the bucket costwise. This lawsuit is about power and control.
Anyway, looks like the case is Okanogan County Superior Court No. 09-2-00679-4. From what I can tell from the docket, it seems the issue decide was whether the PUD had the legal right to condemn DNR land. And this was decided on a summary judgment, as opposed to a trial. I don’t think that the court has decided the amount of compensation that PUD owes to DNR, but condemnations are usually a two step process. First, the right to condemn (which is rarely opposed and seldom denied) and second the amount of compensation (the main issue in most cases).
It seems to me that one unit of government should have the right to condemn property owned by another unit of government, on the same standards that they could condemn private property. Otherwise, it could prove impossible to build a power line or a road in a county (such as Okanogan) where the government owns a large percentage of the land. But that is the logical public policy analysis, and the legal analysis could be different.
145 acres of scrub.
Clearly, as Delbert points out, this is a turf war based on Goldmark’s ego.
Clearly, it was necessary & reasonable.
Let’s get on to something that really matters.
145 out of 2.2 million acres = .0000659
It’s the same as a 6″ X 8″ patch on a 5,000 sq. ft. lot!
Come on…let’s reason together on this one.
“Come on…let’s reason together on this one”
The big hurdle here would be you freaks coming up with somebody capable of reason.
I’m in Twisp. I’d spout but I’d lose my membership in Club Lib. Oh, what the hell…
Let’s just say that the local grocery store’s (Hank’s) installation of an electrical generator was the lead story in the Methow Valley News recently with a “Japan Surrenders; End of War!” headline.
The newspaper insists outages are rare. But I’m always coming home from work to find my alarm clock blinking 12:00, 12:00, 12:00, 12:00…
I think Commissioner Goldmark and his friends at Methow Valley Citizens Council — God bless ’em — should walk away from this and turn their attention to the Coalition for Property Rights in Okanogan County, which is handing them BOTH their heads on the county comprehensive plan.