If a Tree Falls In a Wood, And the Committee Can't Remember It ...

In several previous posts, the Trojan Heron has covered CAPR's lawsuit about the Open Public Meetings Act (OPMA). This lawsuit has to do with the alleged secret meetings of the former CAO Implementation Committee, which was comprised of County staff (including a Deputy Prosecutor) and three former Council people. The committee was formed to help shuffle the CAOs along, which are the subject of a separate lawsuit involving the County, the Friends, and the Common Sense Alliance.

Regarding the OPMA and the CAPR lawsuit ... the closed meetings of the CAO Implementation Committee took place regularly for months. CAPR's position is that these meetings should have been open to the public, according to the OPMA, because the committee took action on behalf of the Council in reviewing and discarding CAO options ... and because the committee involved a negative quorum of Council members (three members being sufficient to vote down a proposal).

The County alleges that no actions were taken in these meetings ... nothing happened. There were hundreds of hours of meetings, and nothing substantive occurred. They invited in consultants and staff, but only discussed ministerial functions such as scheduling. There are no meeting minutes, only some hand scribbled notes in addition to emails between staff and committee members. When deposed about the content of the meetings, participants could not recall what they discussed. 

• Lovel Pratt was deposed on January 3, 2013, and she expressed 67 denials of knowledge (63 "I don't recall", 4 "I don't know")
• Richard Fralick was deposed on January 3, 2013, and he expressed 22 denials (21 "I don't recall", 1 "I don't know")
• Patty Miller was deposed on January 4, 2013, and she expressed 63 denials (51 "I don't recall", 12 "I don't know")
• Shireene Hale was deposed on January 17, 2013, and she expressed 100 denials (52 "I don't recall", 31 "I don't know", 17 "I just don't have a specific recollection")

Despite all this "nothing" going on, in a January 2013 Council meeting, the Council spent time in one of their non-secret meetings congratulating themselves on the work they got done in committees and subcommittees. Councilman Stephens even referred to the CAOs directly. Pratt said that she could hardly remember any Council votes where subcommittees didn't get their way.

Yesterday, this case finally reached the Washington Supreme Court. Oral arguments were heard. A ruling is still several weeks away. The justices were very engaged and asked good questions yesterday. Several seemed skeptical that the County could spend so much time in secret doing nothing.

They aren't the only ones.

Shireene Hale's Pattern Of Behavior

Yesterday, the Council selected Michael Thomas as the new County Manager.  Thomas is from King County and has a planning background. Mr. Thomas, you have your work cut out for you because our Planning Department functions like a rogue government within a government, with a functional head who openly despises public participation and dissent.

In the email below (from a year ago), Hale discusses her reaction to a CAO public meeting that was, from our perspective, one of the greatest meetings from a public participation standpoint. It was one of the worst from the standpoint of the reaction of public officials.

Once again, Shireene Hale thinks dissent is violence. Someone who regularly cannot tell the difference between dissent and violence may not be stable enough to deal with the public, and perhaps we should be concerned about her reactionary behavior or the irrational steps she might take.

Who is the threat here? It makes me wonder whether Hale will start coming to meetings armed and dangerous. In more ways than one, we need protection from Hale.

From: Shireene Hale [mailto:shireeneh@sanjuanco.com]
Sent: Tuesday, April 10, 2012 11:54 AM
To: Colin Maycock; Jon Cain; Lovel Pratt; Patty Miller; Pete Rose; Randall Gaylord; Rene Beliveau; Richard Fralick; Shireene Hale
Subject: Agenda for Monday CAO Implementation Team meeting?

Good morning,

What do you all have for agenda items for the Monday CAO/SMP Implementation team meeting? Colin will not be attending as he will be in Costa Rica.

At this point I have two items:

*         Conduct of public meetings on CAO and SMP.

*         Alternatives for getting the wetland and fish and wildlife regulations through the approval process.

Conduct of Public Meetings

On the conduct of public meetings, I would like to discuss options for ensuring that our citizens, staff, consultants, Council and Planning Commissioners do not feel threatened or intimidated, and to ensure that comments are focused on the issues, and not on blaming or attacking individuals. Problem meetings in the past few months include the last three Planning Commission meetings (particularly the March 6 meeting), the San Juan town hall meetings, and the Orcas SMP meeting.

For those that have not heard, we are aware of two separate instances of people discussing the use of guns. One was a warning from someone that works at the Orcas fire station, the other was a conversation overhead on the ferry. Chances are nothing will happen, but given the way John Evans and others are stirring up fear, hatred and hostility, and given some of the testimony we heard on March 6, I don't think the possibility of violence should be dismissed. 

In addition, prior to the March 16 Planning Commission meeting, Gordy Peterson suggested to Janice  that she should consider calling in sick rather than attend the meeting, because "it was going to be ugly". This may constitute intimidation of a public servant under RCW 9A.76.180 and 9A.04.110. Given everything that is going on, it was intimidating to those of us charged with running the meeting. 

Alternatives to help with the public meetings include:

*         A clear statement from our leaders (Patty and/or the full Council ?) assuring people that we will get through this and that their comments are being considered. Other topics that could be touched on include reassuring people that if their house burns down, they will be able to replace it; that we are doing are best to keep costs down; that we are trying to find the least intrusive approach that will pass muster with the Growth Board; that what we are trying to develop is a moderate approach that is more fair and tied to the current science than the Ecology recommended regulations; that we are all friends and neighbors, and though we may disagree it is important to be civil and respectful of one another so that all points of view can be heard, and so that people don't feel intimidated; that we will try to find the resources to refine
the wetland map so that is does not show man made ponds that are not wetlands; and encourage people to read the proposals for themselves, rather than believing what others are telling them. 

*         Do what we can to get through the rest of the process in as efficient a manner as possible, to remove the anxiety associated with uncertainty.

*         Consider holding a joint PC/ CC hearing on the fish and wildlife amendments, to provide the staff and Planning Commission, and particularly the Planning Commission chair, with some additional support, and to help move the amendments along through the process. 

*         Hold all meetings in the Council chambers so that they can be live streamed. If F&W is a joint hearing with the Council, perhaps testimony could be taken from the Orcas and Lopez libraries (we don't have the capacity to do it without assistance and another staff person).

*         Consider having a deputy present for the hearings/ meetings. We have been trying to avoid this - but it may be time to give it serious consideration.

*         Consider developing clear expectations of conduct, enforced by the chair, and let everyone know what they are and what will happen if they are not followed. I suggest that clapping, jeering, cheering, and statements that are focused on individuals rather than issues not be tolerated. Options include asking individuals to leave, and if the Planning Commission/ Council are in deliberations (testimony is not being accepted), if necessary the room can be cleared so that deliberations can continue without the disruptions.

Adoption Process for Wetlands and Fish and Wildlife Amendments

Regarding the approach for getting through the remainder of the process, following is a schedule I sent to Patty yesterday.

Wetland Amendments

April 23 - Signed PC draft of wetland amendments and staff report submitted to Council.

May 1 - First touch to review PC recommended draft, findings and recommendations (including the  recommendation for a conference call between the Council, Dr. Adamus and Dr. Mayer, to discuss whether we are properly applying Mayer et al. 2007, and to consider using a paper by Xuyang Zhang et al. (2010) as a guide to buffer width, rather than Mayer
et al.)

May 7 - field trip (may be just wetlands - if we can get the F&W draft out prior to then, could be both wetlands and F&W).

May 9 - publish hearing notice

May 21 or 22 - CC hearing on wetlands (half day?)

??? - deliberations (probably need a full day)

F&W Amendments

Prior to June 20 - release hearing draft and publish notice.

July 9 or 10 - Joint PC/CC hearing, with PC deliberations in July, followed by CC deliberations. If necessary CC can hold another hearing on another draft prior to consistency review. (Note: I am out of town on vacation June 18 through July 4).

Note: Having a joint hearing does a couple of things. This is likely to be a difficult hearing and it provides the Planning Commission and CD&P staff some support that they don't normally have. It also helps us get through the steps in a more efficient manner. 

Please let me know if you have additional items for discussion.

Shireene

Mirror Mirror ... Who Remembers The Least Of All

In one of the recent pleadings regarding the Open Public Meetings Act (OPMA) lawsuit, there is a declaration from a paralegal who has gone to the effort of quantifying the level of non-responsiveness of our public servants.

Before we get to the tally, for the sake of background, remember that the OPMA states the following:

The legislature finds and declares that all public commissions, boards, councils, committees, subcommittees, departments, divisions, offices, and all other public agencies of this state and subdivisions thereof exist to aid in the conduct of the people's business. It is the intent of this chapter that their actions be taken openly and that their deliberations be conducted openly.

"Governing body" is "the multimember board, commission, committee, council, or other policy or rule-making body of a public agency, or any committee thereof when the committee acts on behalf of the governing body, conducts hearings, or
takes testimony or public comment."

"Action" is "the transaction of the official business of a public agency by a governing body including but not limited to receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions. "Final action" means a collective positive or negative decision, or an actual vote by a majority of the members of a governing body when sitting as a body or entity, upon a motion, proposal, resolution, order, or ordinance."

"Meeting" means "meetings at which action is taken."

Remember, too, that there is no dispute about whether the CAO Committee meetings took place in secret. They did. The dispute concerns the content of the meetings. The position of the participants is that they only discussed scheduling and not more substantive matters, despite documentary evidence (notes and emails) to the contrary.

When questioned about the meetings, this is how the deponents remembered (or did not remember) events.

• Lovel Pratt was deposed on January 3, 2013, and she expressed 67 denials of knowledge (63 "I don't recall", 4 "I don't know")
• Richard Fralick was deposed on January 3, 2013, and he expressed 22 denials (21 "I don't recall", 1 "I don't know")
• Patty Miller was deposed on January 4, 2013, and she expressed 63 denials (51 "I don't recall", 12 "I don't know")
• Shireene Hale was deposed on January 17, 2013, and she expressed 100 denials (52 "I don't recall", 31 "I don't know", 17 "I just don't have a specific recollection")

Mirror, mirror on the wall ... who remembers the least of all? Looks like it's Hale, followed by Pratt, Miller, and then Fralick.

Alex, We Know How You Feel

I came across the letter below (see image at bottom of post) on one of my favorite Facebook pages, and it struck me that the teacher/author is treating his student the way our previous Council treated us during the CAO process. We suspect Adam Hilliker might fit in well in our Planning Department, or the Department of Ecology, or somewhere else in the Network. He might even be a good County Council candidate.

Speaking of the candidates, we've been looking at some of the statements being made by the current crop of candidates, but before we look forward, lets take a short look back. Have a gander at one of the campaign statements put out by Richard Fralick the last time he ran.

How do you think he did?

Dear Voter,

This is an exciting and critical time for our community. Home rule gives us new tools that can be used to design, build and, in some instances, streamline our county government to fit the unique needs of our islands. The separation of powers defined by the Charter gives Council Members the time to set long range policies. I believe I have both the vision and the skills needed to act positively in this vital process.

Our County Council must: resolve the levels of Growth Management Act compliance appropriate for our community, ensure acceptable ferry service, fund our urban growth areas' infrastructure, improve our cell phone coverage and high speed communication capability, protect our environment and the economic vitality and diversity of our community, all the while maintaining essential services and staying within budget.

As a 27 year Orcas Island resident, I know the history of our growth management issues and appreciate the importance of maintaining our economically diverse population. I value nature and the habitat but also know that we have to prioritize our environmental concerns to those matters that are realistic to achieve at our local level. As a small business owner, I understand budgeting and am willing to ask the hard questions and pursue the best solutions using existing financial resources.

Click to enlarge

Quick Lawsuit Update

This is just a brief post to update everyone on a promise we made a couple of weeks ago. Back on January 12, we mentioned that the depositions of some members of the CAO Implementation Committee (Lovel Pratt, Richard Fralick, Patty Miller, Shireene Hale) might soon be available.

We have since discovered that the depositions of those participants in alleged secret meetings are technically still open. While they each have been deposed once already, they may be called back. As scheduled, Shireene Hale was deposed last Thursday. Pratt, Fralick, and Miller were deposed previously (in that order). Now, the plan is to depose Deputy Prosecutor Jon Cain next. Yes, that's right ... one of our Deputy Prosecutors allegedly took part in the alleged secret meetings. It's messy.

Cain's deposition will be interesting ... having our own Prosecuting Attorney's Office deposed in a case being defended by our Prosecuting Attorney's Office.

Stay tuned, but there won't be any detailed word on the content of the depositions while they remain open. The press release associated with the lawsuit (and fundraising associated with the lawsuit) can be found in our posting from January 12.

San Juan County's Lil Wayne

The lawsuit against the County for holding secret meetings about the Critical Areas Ordinances (CAOs) is at the deposition stage. Thus far, the three Council members who allegedly took part in the secret meetings have been deposed. Depositions have been taken from Lovel Pratt, Richard Fralick, and Patty Miller in that order. Shireene Hale is scheduled for deposition this coming Thursday.

The transcripts for the depositions will be available shortly, and we will post them. However, so as not to interfere with the discovery process, the Trojan Heron won't be releasing any details until after Shireene Hale has been deposed at the earliest. If further depositions are subsequently scheduled, we may reconsider our timing, but our hope is to share the transcripts sooner rather than later.

Once you see the transcripts, you'll be able to answer the riddle of who in the County most resembles Lil Wayne. Based on the evidence gathered so far, the case against the County seems to have substantial merit and is growing stronger.

Lawsuits cost money. The Citizens Alliance for Property Rights (CAPR) is the organization that brought the suit, and yesterday, they put out a press release which included a request for help in funding the lawsuit.

Below is the CAPR press release, and if you are interested in getting to the bottom of the secret meetings and their affect on the CAO process, please consider a donation.
_________________________________________________________

Citizen’s Alliance for Property Rights,

San Juan Chapter, (CAPR) Lawsuit Update

On October 12, 2012 a lawsuit was filed against San Juan County for violations of Washington State’s Open Public Meetings Act (“OPMA”). The complaint alleges that “Individual Council members participated in three-person subcommittee meetings,” and they knew, or should have known, “that their actions were in violation of the OPMA.” Dennis Reynolds of the DDR Law firm is representing CAPR in this legal action.

The CAO/SMP Implementation Team or Committee included Council Members Lovel Pratt, Richard Fralick, and Patty Miller. The “Team” also included Jon Cain of the Prosecuting Attorney’s office, planning staff, various consultants, DOE, and the County Administrator. During the 25 or more meetings of the Implementation Team, “ideas and policies are brought forward, discussed, narrowed and discarded and approaches are formulated.” (Gaylord memo 4/25/12).  Decisions were made and action was taken.

Even though it was listed as part of the official CAO “public process,” the public was not allowed to attend these meetings. There was no public notice and no minutes were taken. The 3 Committee members reported back to the full Council with their recommendations.

The schedule to pass this CAO legislation before year’s end was hurried along by the Committee before two of their members left office (Lovel Pratt and Richard Fralick). The 3 Committee members Lovel Pratt, Richard Fralick, and Patty Miller, voted as a block for final passage of the five CAO Elements. (3 Council members can’t pass legislation, but in a body of 6 they can stop anything from passing with a tie vote).

CAPR believes that open and transparent government is the right of every citizen. We should not have to go to court to enforce it. Although the actions of the Council were not consistent with the law, it explains why public testimony was ignored, science was rejected, and people were only allowed limited time to speak before they were rudely cut off. The decisions had already been made in the backroom with staff and consultants calling the shots. In this case the people were treated disrespectfully and their concerns dismissed.

Eighty-five percent of the voters in San Juan County voted in favor of transparent government in the last election. It was so important that we added strict language to our Home Rule Charter to eliminate any confusion. It shouldn’t matter if the subject is the budget, solid waste, or the CAO, the County Council should not be allowed to ban the public and the press while discussing policy decisions in secret subcommittees. Transparency in government and fairness in the deliberation of ideas and policies is the goal of this lawsuit. We hope you will support our efforts. 

Donations to the San Juan CAPR legal fund can be sent to P.O. Box 1866, Friday Harbor, WA.

Living In A Post-CAO World

Today, we got our first look at the CAOs that were passed yesterday. They can be found at this link.

The County came out with a press release regarding Council CAO approval. As we review and analyze the final version, we will be providing our own commentary. At this stage, it appears as if many of the last-minute changes made by the Council were cosmetic. Councilwoman Pratt is quoted as saying that the CAOs represent "hard work" and "compromises," but the final CAO text appears to represent neither. It makes us wonder whether Pratt has a grasp of either concept.

Consider, as a brief example, the Reasonable Use Exception in the General Section. Aside from adding some meaningless platitudes up front about respect for private property, the Council left it alone. It's still the same old unreasonable Reasonable Use Exception that we've seen in every unacceptable draft up to this point. Nothing substantive has changed.

One of the local newspapers said the CAOs were "blessed" by the County Council yesterday. We think they have their religious imagery mixed up. The citizens of the County were cursed by it.

In a separate matter that might have implications for CAO implementation and general governance, a lawsuit was filed today to overturn the election results regarding Proposition 1 (Actually, the prayer for relief requests that all three propositions be invalidated. See comments below). Among other things, the suit seeks injunctive relief to stop the scheduled county-wide elections for three new councillors. Readers also may remember that there already is a separate lawsuit in progress regarding the behavior of Fralick, Miller, and Pratt and their secret CAO meetings. The year 2013 is shaping up to get off to a bang in what may be a year of continuous litigation for the County.

Interesting times.

Lamest of Lame-Duck Councils Passes the CAOs

Geologically hazardous and frequently flooded areas passed 6-0. All others passed 5-1, with Rich Peterson opposing. Miller couldn't resist jabbing at Peterson for his "no" vote on the General Section.

There were some important changes in today's final hearing, but we will have to wait for the final print copy to give a full report. In the meantime, here is footage of the actual vote and its effect on the County.

Crimes Against Nature Ordinance

Tomorrow, the County Council is poised to pass the Critical Areas Ordinances (CAOs). Despite feverish opposition, despite horrifically bad science, despite election results, and despite lawsuits, they press onward.

When I am asked to summarize the CAOs for the uninitiated, I find it difficult to find the words to neatly convey their content and flaws. Generally speaking, though, I have come to think of them as the Crimes Against Nature Ordinances (CANOs).

Imagine a crime has been committed. The crime is "general worldwide environmental degradation" and you are a suspect. You are a suspect because you are alive, and more specifically, you have "nature" on your property. You come into contact with "nature" during the course of your activities at home, too.

The vague wording of the new ordinances ensures that nearly everything is construable as protectable nature (e.g., habitat, water courses, aquifer recharge area, wetland, buffer, etc.). Nearly any activity could be construed as environmental harm, too. That's a dangerous formula. You might think you have nothing to worry about because you consider yourself to be "green" and you live harmoniously with nature. But these new ordinances do not care about that. In fact, the more harmonious and the more integrated your life may be with nature, the greater the potential risk that you might be elevated from suspect to alleged environmental criminal.

The person who will decide whether to prosecute you for crimes against nature is René Beliveau, the Director of Planning. It will be his decision alone. He has unlimited discretion. If he decides to prosecute you, you can either admit your guilt (thou shalt not suffer a witch to live) or pay $2,300 to fight the charge. If you fight it, you will need an army of expensive consultants to prove your innocence, and the people who will sit in judgment of your expensive new evidence will be the very people who accused you of the crime in the first place: namely, Beliveau accompanied and assisted by various and sundry "experts" from the State Department of Ecology.

If "they" disagree with your experts, and you still wish to fight, then you have to proceed with Hearing Examiner and court challenges.

There are still people in this County who think I am exaggerating. There are many who think they (and/or their loved ones) will never be personally subject to the enforcement aspects of this law. You are wrong ... flat dead wrong.  And none of it, absolutely none of it, will have anything to do with environmental protection.

Every locavore should be against these ordinances. Every permaculturist. Every gardener. Every homeowner. Every Democrat, every Republican, and every Independent. There is no protected class. We are all environmental suspects under this law.

It didn't have to be this way, but that is what this Council has done to us ... to our community. None of us should forget it.

Please also read the Island Guardian editorial.

This is how a farmer in Germany got around the permit rules.  Our situation may not be so humorous.

Burning Down the House

Watch out, you might get what you're after. That's a line from the Talking Heads song Burning Down the House. That's how today's hearing on the CAOs went: a bunch of talking heads burning down the house.

In many ways, today's hearing was typical of the standard public participation events occurring throughout the CAOs. We heard from the tribes (the Tulalip). We heard from the Friends multiple times. During public access time we also heard from staff, such as Barbara Rosenkotter who is a County employee serving as the Salmon Lead Entity Coordinator. In customary zoomorphic and theomorphic style, she claimed that she spoke for the salmon who are not able to speak for themselves. I wonder how many salmon know that? We heard from the Common Sense Alliance (CSA), and we heard from CSA supporters too. And oh yeah, I suppose somewhere in there was a non-affiliated person or two, but I honesty couldn't tell you.

We heard the usual environmental hysteria talk. The San Juans are unprotected. The CAOs are the weakest in the state. We have to be more careful with an island. We have to ... we have to ... we have to ... blah blah blah.

Surprisingly, there were some curious parallels between the testimony of the Friends and CSA. Both organizations feel that the CAOs are deeply flawed. The Friends, for example, say the proposed CAOs are the weakest in the state. They say the CAOs amount to no protection at all. Then in the next breath, with no concern for their self-contradiction, the Friends urge the Council to pass the CAOs. That puts the Friends in the peculiar position of openly supporting the passage of laws which they allege do nothing in terms of environmental protection.

CSA also thinks the CAOs do nothing, except place lots of restrictions on homeowners, trap them with incomprehensible formulas and rules, and potentially restrict nearly every aspect of property use.

However, the Friends apparently like the part about abusing homeowners, so they urged the Council not to kick the can down the road to the next Council. Buoyed by such bold encouragement and despite the Council's repudiation during the recent election, the Council members have convinced themselves they are on a mission from God to pass the CAOs. We heard Lovel Pratt today refute the notion that the elections were a referendum on her performance relative to the CAOs. She claimed that she lost the election because she was outspent and because we voters were confused. We heard other self-puffery and deflection from other Council members too. They flattered themselves with their knowledge and hard work on the CAOs.  The bottom line is that this Council is going to pass the CAOs come hell or high water. No more kicking the can down the road.

Kicking the can down the road? The Council fully admits that these CAOs will be appealed to the Growth Management Hearings Board (GMHB). Instead of kicking the can down the road to the next Council, they're kicking the can upstairs to the GMHB.

In written testimony to the Council today, here is how CSA summed up the Council's position relative to the CAOs:

We have supported this Council’s intent not to “kick the can down the road.” However, if Council adopts a seriously defective CAO just to “get 'er done” and satisfy those who keep saying it is taking too long, YOU WILL BE “KICKING THE CAN DOWN THE ROAD” and leaving a toxic mess for our community, by elevating form over substance and failing to properly protect our critical areas, our economy, or our community. Much hard work has been done, and significant progress has been made, but this is not the time for analytical shortcuts or legislative horse-trading. The fundamental defects we have identified are not new – they are not 11th hour delaying tactics. We urge you to keep working to either cure these defects or consider the alternative approach, “A Reasonable Way Forward for the County and the CAO Process” submitted by CSA on September 10, 2012.

But in typical fashion, the County isn't listening.



P.S. Don't miss Nick Power's article in the Island Guardian because we should be ashamed of ourselves.

Their Finger Is On The Button

As we approach the final hearings on the CAO (tomorrow 10:45 am), I feel it is an appropriate time to reacquaint ourselves with our vision statement from our Comprehensive Plan. As was noted in a comment to an earlier post, the preamble says:

WE THE PEOPLE of San Juan County recognize that these rural islands are an extraordinary treasure of natural beauty and abundance, and that independence, privacy and personal freedom are values prized by islanders. Being a diverse people bound together by these shared values, we declare our commitment to work towards this vision of the San Juan Islands in 2020 A.D.

The rest is pretty good too. Read it at this link, and judge for yourself whether we are living up to our common vision.

After you do that, reflect on the miserable quality of the scientific deliberations for the CAOs. Reflect on the baseless, blind ambition to invade islanders' privacy. Reflect on what the CAO restrictions will do to our sustainability, our self-reliance, our independence, and our personal freedom.

One of my favorite Facebook pages goes by the enthusiastic but somewhat improper name of "I Fucking Love Science", which is often abbreviated IFLS. I'll leave you with some of the posters and cartoons from IFLS that have particular resonance with the CAOs.

Okay, this last one is from the Economist, not IFLS.  We may not be Greece exactly, but have you seen the County's debt or the growth of its expenditures while we have frittered away time on the CAOs?

Peterson CAO List

We have had a request to publish the Peterson list. It just so happens that we have a copy. Happy reading! (Click to enlarge each image).

And after you're done, have a look at another story about the ways our public officials try to circumvent public scrutiny ... this time involving the EPA.

One Of These Is Not Like The Others

Like the old Sesame Street game, when we look at our Council members relative to the CAOs, one of them is not like the others. We saw more evidence of that yesterday when the Council had a discussion about their upcoming consistency hearings (November 27 and December 3). But before we get into that, I have to explain one of the deliberate misconceptions perpetuated by some CAO supporters.

As most readers of the Trojan Heron know by now, the State has no formal authority over the CAOs.  However, since San Juan County opted into full participation with the GMA back in 1990, our CAOs can be appealed to the Growth Management Hearings Board (GMHB). Anyone can bring a complaint before the GMHB, including the State, and it often does. The State also can take other actions to restrict the County's access to funding, at least as a theoretical possibility.

In this way, the State is able to claim that it has no role in the CAOs while simultaneously leveling threats at the County about the CAOs. There is often a gulf, however, between the demands of the State and the legal requirements of the CAOs. Therein lies much of the controversy about the CAOs. Do we follow what the law requires, or do we follow what the State says we have to do ... even when the State's threats do not appear to be consistent with the law or with the facts on the ground, insofar as the facts can be ascertained and demonstrated?

Broadly speaking, suffice to say that five of the councillors seem to be more concerned about the State's threats (or the threats of the Friends) than with the law and the facts. One councillor (Rich Peterson) is a hold out. He is more concerned about the law and facts (not to mention the citizens and the environment) rather than the threats. As a further obfuscation, some CAO supporters (e.g., Lovel Pratt) have frequently characterized their opponents as ignoring CAO law. That is exactly the opposite of the reality of the situation.

Peterson believes the current proposed CAOs have several fundamental and fatal legal flaws. He is unlikely to vote for the proposed CAOs without major changes. He has circulated to the Council a list of the minimum changes that he feels are necessary to gain his support.

That brings us to yesterday's Council meeting. The five pro-CAO councillors, especially since the election, are eager to pass the CAOs unanimously. Unanimous approval might convey some legal legitimacy upon the new CAOs that they wouldn't otherwise have. Probably more importantly, though, three of the existing councillors are likely to stand for election (Miller, Pratt, Stephens). After all the CAO criticism aimed at the councillors, unanimous approval of the CAOs might rehabilitate their electoral chances. During the consistency discussion yesterday, we saw the Council dealing with all these subtexts while at the same time not saying a word about them. The words we heard were about public notice and schedule, but every councillor was pondering whether the five could accept the demands of Peterson with enough time to fulfill the public notice and related administrative requirements of the law. We even saw Patty Miller deliver a rather desperate lecture to Peterson (see the discussion around the 6:39 video mark) about the information he needed to provide to the rest of the group in order to strike a deal.

Can they swallow Peterson's changes? Can they get the changes done in time for a 6-0 vote before their lame-duck terms expire, or do they press forward as is?

Only time will tell, but with respect to the CAOs, one councillor is definitely not like the others, and the Trojan Heron is very glad about that.

As a postscript, I would like to point out the paradox embodied in the argument that says we must listen to the State about the CAOs while at the same time we overwhelmingly voted for a State initiative that rejected federal law.

I'll Agree with the "Lame" Part

Nick Power has a very worthwhile perspective on the status of CAOs relative to the election results. It's a good read.

The last blogpost suggested that the elections were a repudiation of all things County. As Nick Power points out, the overwhelming passage of Prop 3 is a strong indicator of public sentiment regarding the CAPR lawsuit against the County ... because that is exactly what the lawsuit is about.

The three Councilors involved in that lawsuit (Pratt, Miller, and Fralick) have had particularly disastrous terms as Council members. Aside from the multitude of troubles Miller has experienced on the CAOs, the solid waste solution (and tax) she promoted went down in scorching defeat last year.

Long ago, Fralick began his term with robust support for his own solid waste fiasco: to set up a needlessly pricey John-Shannon solid-waste wonderland at Beaverton Valley. In the Council vote on that measure, Fralick was the only member to support it to its death. On the CAOs, Fralick has been the main advocate of Adamus as the way forward, which has not worked out particularly well. In addition, Fralick was a strong anti-CRC backer. Right or wrong on those issues, much of what Fralick stood for, politically, is in tatters. His legacy as a retiring Councilman is empty.

Pratt was involved in the Brickworks failure, but more importantly, Pratt seems to share Shireene Hale's view that she's never met a parcel that didn't need more "protection." Moreover, Pratt also seems to have never met a tax and spending proposal she didn't like either. Put those two tendencies together, and you end up with faux environmentalism that is utterly detached from economic reality. That pretty well approximates the position of Pratt, who has been an endless fount of vacuous tautologies about the CAOs and their impacts.

Below is the article by Nick Power titled "Lame Ducks" which also can be read in the Guardian.
___________________________________________________________

My head is spinning thinking of what Tuesday’s local election results mean for the future of the Critical Areas Ordinance (CAO), and I fear that we are now at the point of no return where a misstep by the County will lead to untold economic waste.

First, the The Council races.  Simply the defeat of Howie Rosenfeld and Lovel Pratt were in effect a vote of “no confidence” in Howie's and Lovel's support of the proposed CAO.  Here are two self-identified incumbent Democrats, supported by the endorsement of the Democratic Party, in a County which voted 2 to 1 for Obama over Romney, and they both lose.  Telling since both Howie and Lovel have been two of the proponents of the most extreme portions of the revision of the CAO.

Second, the absolute landslide passage of Charter Amendment No. 3 was, a complete repudiation of how the proposed CAO was engineered and drafted  -- largely in secret and without meaningful public comment.  

I fear that the "we're going to pass this thing come hell or high water" mentality which seems to be the mantra of a majority of the Council will be fulfilled, and the fundamentally flawed CAO will become law at the behest of what is now a gaggle of lame ducks.

But it gets worse, much worse.

Because after Flock of Lame Ducks #1 passes the CAO, Flock of Lame Ducks #2, the newly elected short-term County Council, takes over.

Here is where it gets sticky.  Currently there is a very serious lawsuit against the County alleging various substantive and procedural flaws which invalidate the current draft CAO.   Just because Flock #2 is lame, does not mean that they cannot bind the County and settle the suit and enter into a consent judgment with the plaintiff, Citizen's Alliance for Property Rights (CAPR). 

Why would they do that?  Fundamentally, because CAPR's allegations are substantially correct and it would be the right thing to do.  But moreover, imagine that some ducks from Flock #2 want to experience life as a healthy and vigorous duck so they decide to run in this Spring's special election.  Lame-duck-cum-candidate says to himself, “how the heck do I win an election in San Juan County?”  Well, being skeptical of the CAO seemed to work for Bob and Marc, maybe, just maybe, they were onto something.

So here we are, at the last juncture for the current Council to do what is right and to revisit and repair the fundamental flaws in the proposed CAO.  If this opportunity is not taken, the Council has just bought us all some very expensive tickets to Kabuki theater.

Save me the aisle seat.

Countdown to CAOmageddon: Flaw #61 - County Mixins'

For those who may be unfamiliar with the term, "mixins" is what some ice cream shops call the toppings (peanuts, M&Ms, etc.) that a customer can choose to have "mixed in" with their ice cream scoop. However, it might also refer to the modus operandi of our various County officials.

As we saw in the last post, despite the fact that our Auditor is an independently-elected public official, and instead of exercising independent discretion with respect to the economic consequences of Council activities (e.g., the CAOs), she has gone out of her way to put forward Council views on the CAO. From my view, our Auditor has become a participant in the process rather than an independent evaluator of facts.

And that brings us to the lawsuit filed by the Citizens Alliance for Property Rights (CAPR) against the County over the CAO process. The lawsuit alleges two causes of action:

• Meetings (of the CAO Implementation Committee) were held without notice or minutes and closed to the public.
• The County's continuing failure to comply with the requirements of the Growth Management Act (including its public participation requirements) must be enjoined.

One of the difficulties to be worked out on the lawsuit is the status of our Prosecutor's office. Our Prosecuting Attorney is charged with defending the lawsuit; however, a Deputy Prosecuting Attorney, Jon Cain, was a standing member of the CAO Implementation Committee. There is a potential conflict, and the Prosecuting Attorney might be called as a witness.

Regardless of how that is worked out, the participation of the Deputy Prosecutor in months (if not years) of meetings as an apparent participant in a legislative committee, just serves to further illustrate the "mixins" that are part of our local government. It seems like one more example of group think instead of independence of mind.

Despite the fact that three Council members have been named in a lawsuit regarding the CAOs and the CAO process, the Council appears determined to continue moving ahead with its approval of the CAOs. It would come as no surprise if we were to learn that everyone were of one mind about that.

Countdown To CAOmageddon: Flaw #49 - Trajectory

Where do our Friends go when they leave us?

That's not an existential question, but one about networks and common tactics. We already know that Stephanie Buffum came from the hardball Center for Biological Diversity and is the former Mrs. Kieran Suckling, but what about some of the people who have left the Friends. Where are they now?

Before Kyle Loring, the Legal Director of the Friends was Amy Trainer. She is now the Head of the Environmental Action Committee of West Marin (EACWM), where she's making life unbearable for some people in Northern California. Like the Friends, EACWM doesn't let facts get in the way of their efforts to destroy people, small business, and agriculture.

Some people feel that Trainer/EACWM are testing strategies that will be deployed here in the very near future, so if we want to see where we are headed, have a look at OysterGate. It's about a small oyster farm in Point Reyes National Seashore. In 1962, Congressman Clem Miller wrote and introduced a bill for the establishment of Point Reyes National Seashore to protect a shoreline region from residential development. Miller's vision included the continuation of the historic ranching and oyster farming in the area along with the preservation of the grasslands and open scenic vistas. The mix of commercial and recreational uses was the reason the area was designated a National Seashore rather than a National Park. In 2010, all of the park's beaches were listed as the cleanest in the California.

Regardless of Miller's intent or of the park's spectacular environmental health, Trainer/EACWM, in conjunction with corrupt government officials and bad science, have had it in for a small oyster farmer in the park. Trainer and EACWM's tactics have even been too extreme for the typically eco-friendly California Democratic Party, as Senator Diane Feinstein has sided with the oyster farmer. Doesn't matter, though. Trainer and EACWM keep pounding away.

Have a look at the videos below (and the linked article here).  Think of what is happening in Pt. Reyes when the Friends send out misleading emails saying, "Shouldn't we protect at least 9% of our shorelines?" The Friends never mention that our proposed CAOs will designate 100% of our shorelines as critical. The Friends never mention how much shoreline is already in parks or otherwise protected here (about 20%-25% of shoreline parcels are in a natural or conservation land use designation).

Every move by the Friends and Gang Green is calculated to position us for the next move ... and then the next ... and the next. Thank you, Friends, may I have another? There will never be an end until we are all driven out, like the Drakes Bay Oyster Farm.

NOTE: The video screenshot that was posted here from ABC News was causing scripting errors to some users, so it was taken down.  However, you can still access the video by going to this link.  To see the second video (OysterGate Scandal), just click on the image below.

Countdown To CAOmageddon: Flaw #47 - Incompetence & Bias

After watching the Council session yesterday, the conclusion that many have drawn is that our Council just doesn't get it.

At one point yesterday, Council Chair Miller even admitted that BAS was nothing more than "group-think," but it's clear they are going to follow it anyway ... even though they don't really even know what that means. They rely on Dr. Adamus to tell them. The Council voted numerous times yesterday to simply roll over and agree to virtually everything Dr. Adamus said. Fralick, Pratt, and Miller were particularly active in driving the out-of-control CAO bus, with Rich Peterson offering periodic objections that were ignored. As usual, Rosenfeld and Stephens were just along for the ride offered by Fralick, Pratt, and Miller.

At this point, the Council has come to identify so heavily with Dr. Adamus' scientific prowess that they believe "Adamus=BAS." Adamus begins every sentence with "According to Science," and I get the impression that Adamus could say, "According to Science, thou shalt not suffer a witch to live" and the Council would believe it were BAS.

Yesterday confirmed for many that we have extremists for Council members serving as acolytes for a charlatan "scientist" propped up by the lunatic fringe of Ecology. The Council never considers or makes reference to any comments or views except those expressed by Shireene Hale, Adamus, and on the margins, Deputy Prosecutor Cain. Cain has reduced his role to sitting next to Shireene Hale and acting like a pull-string doll, repeatedly saying that if the Council departs from "science" they will have to explain why. The Council interprets this to mean that they either follow whatever Adamus says or else explain themselves, which they are loathe to do. The entire show is a sycophantic corruption of process and science that has become the standard MO for this confederacy of dunces running our County.

The Planning Commission is largely ignored, community groups like the Common Sense Alliance are totally ignored, and the overwhelming outpouring of individual citizen comments are ignored. I would think that even a modicum of respect for the public process would cause our Council to at least recognize that public input has been received; and to comment as to why it is not being considered. But no. If recognized at all (as in a previous meeting on August 28), the only stakeholder groups mentioned are the Friends, Futurewise, and Ecology. The rest of us don't exist.

But I guess that's the real point. We don't exist. Tolerated for our legally-required 3-minutes of public testimony, they'd prefer that we all go away.

Yesterday, the Common Sense Alliance sent out a press release with their view of the situation and a set of recommendations. It makes a heck of a lot more sense than the views of our Council.

The Common Sense Alliance (CSA), a San Juan County-based community organization focused on environmental protection, community health, and economic vitality, yesterday submitted to the County Council its urgent recommendation that the County abandon its current proposed changes to our Critical Areas Ordinance (CAO), because the proposal is scientifically and legally indefensible, and that the County instead affirm our existing CAO regulatory scheme, improve its enforcement, and develop a professional data collection and monitoring program.

The CSA recommendations constitute a sensible, compliant, and prudent way forward for our County, our environment, our economy, and our people. We recognize the success of the substantial public and private efforts by our citizens to protect our ecosystem. We acknowledge the significant testimony and factual evidence of our environment's health, while accepting that areas of uncertainty remain which may be clarified over time by monitoring of appropriate scale and quality.

The question that came to the minds of most of us as this process unfolded is “What is the problem”? To date, we have seen no scientifically supportable answer. Indeed, a few weeks ago, an eminent federal scientist testified before Council that our fish and wildlife habitat was “spectacular,” and that she could not think of anything that we were doing wrong. CSA agrees. Oft-repeated alarmist claims that humans in San Juan County are directly responsible for material harm to salmonids and orcas have no creditable scientific underpinning, and the Council should recognize that those claims no more warrant extensive, expensive, and burdensome new CAO regulations than the Department of Ecology’s oft-repeated claim that the volume of toxics washing into Puget Sound from stormwater was equivalent to an Exxon Valdez oil spill every two years (recently retracted), or Ecology’s claims that fish kills in Hood Canal are the fault of humans (retracted just this week).

CSA urges the Council instead to recognize that the current process is irredeemably tainted, the existing product is fatally flawed, and that it is time to move ahead to obtain the information we need for rational rules for the protection of our environment.

We invite you to review our recommendations at this link, and to urge Council to pursue them.

The Most Important Question Is "Why?"

In the emails below, Shireene has a lot of questions for the authors of the Zhang paper, and she relays to Dr. Adamus the results of a conversation she had with Richard Fralick, Patty Miller, and Pete Rose.

Of all the questions being asked about the CAOs and SMP, I think the most important question has to be, "Why?"  Why is the County conducting itself in this manner? Why can't the citizens of this County hear conversations in the open? Why the secret "science" conversations? Why does Shireene take such a lead on "science", to the point of seeming to influence the answers and implementation? Why the secret CAO Implementation Team meetings? Why the claims of public threats and incivility from the County when there appear to be none. According to sources who have checked on the matter of "threats", not even the sheriff's office knows what "threats" they may be talking about.

Why does our County government act this way?
______________________________________________________________
From: Paul Adamus [mailto:adamus7@comcast.net] 
Sent: Monday, April 16, 2012 7:08 PM
To: Shireene Hale
Subject: Re: Zhang et al. 2010 questions

Thanks, Shireene.  I'm unavailable this week (working in Alberta again) but am willing to communicate with those authors if they, too, are willing.

Paul
 _____  

From: "Shireene Hale" <shireeneh@sanjuanco.com>
To: adamus7@comcast.net
Sent: Monday, April 16, 2012 4:05:32 PM
Subject: Zhang et al. 2010 questions

Paul,

I met with Patty, Richard and Pete this morning. They were not crazy about a conference call with the scientists to discuss the Mayer and Zhang papers (which the Planning Commission recommended). They are however discussing the CAO schedule with the full Council tomorrow. 

They are hoping that you, Dr. Mayer, and Dr. Zhang can perhaps have a conversation about the two papers and provide them an explanation of the merits and draw backs of each approach.

I contacted one of the authors and received this response. The primary author is Xuyang Zhang, and her e-mail address is xzhang@cdpr.ca.gov. See my e-mail below.

If something changes as a result of the Council meeting tomorrow I will let you know.

SH

P.S. It is taking a while for Lynda to complete the minutes from the four Planning Commission meetings. It will probably be later this week before we have a draft with their changes integrated, and probably next week before we have the approval of the Planning Commission officers. 



From: Minghua Zhang [mailto:mhzhang@ucdavis.edu] 
Sent: Monday, April 16, 2012 1:26 PM
To: Xuyang Zhang; Shireene Hale
Subject: Fwd: Zhang et al. 2010 questions

Hello,

I forward this email to the senior author of our paper who reviewed hundreds of papers and put the paper together.  She will know by heart on the work and can better answer your questions without having to re-think about the paper.  So your questions can be better handled.

Xuyang, go ahead and answer these questions.  Thanks.

If you have more questions, feel free to contact me.  Thank you for your interest in our work.  It is pleasing to hear that you may take some of the approaches for management.

Minghua

-------- Original Message -------- 


Subject: 
Zhang et al. 2010 questions
Date: Mon, 16 Apr 2012 13:14:08 -0700
From: Shireene Hale  <mailto:shireeneh@sanjuanco.com> <shireeneh@sanjuanco.com>
To: <mailto:mhzhang@ucdavis.edu> <mhzhang@ucdavis.edu>

Good morning,

I work for San Juan County and we are in the process of reviewing and updating our wetland, stream and shoreline protection regulations to meet Washington State requirements (including the requirement that we consider the best available science and ensure no net loss of the functions and values of these areas). 

As part of this effort we are attempting to develop a site specific approach to sizing wetland and riparian buffers, and of course protection of water quality is an important consideration. At this point our proposed approach for the water quality component of the buffer uses rational method runoff coefficients to predict whether the runoff will be above or below ground, and Figure 1 of Mayer et al. (attached) to determine appropriate buffer sizes for a given percentage of pollutant removal (using nitrogen removal as a proxy for all potential contaminants flowing into the buffer). 

As an alternative, there is now interest in using the paper you co-authored as a guide to appropriate buffer sizes (again, just for the water quality aspects of the buffer), and I have a few questions.

First, it appears your focus was on buffers for agricultural land uses. Did you review any studies of buffers for residential and commercial land uses, where lawns and hardscape (e.g. roads/ driveways, parking areas, roofs, tennis courts etc. ) cause more of the runoff to flow above ground?  Do you think we can apply your results to the runoff and buffers for residential and commercial land uses?

Dr. Mayer's paper presented results based on whether the runoff is above or below ground. That seems important for runoff from residential and commercial areas. If we were to use your paper as a guide, should we assume that figure 3 depicts the situation for runoff that is below ground, and increase the buffers as sites become more impervious and more of the runoff is above ground? 

In comparing the two papers, it looks like the pollutant  removal estimates for nitrogen, with a 10 meter buffer, and runoff mostly below ground, both show a removal efficacy of about 70%. For a 20 meter buffer, your paper shows about 90% removal, while Mayer et al. shows about 75%. Do you have any thoughts on why they are different? 

Finally, would you or another member of the team that worked on your study, perhaps be willing to talk with me, Dr. Mayer, and our consultant, Dr. Paul Adamus, about your results and the use of your paper? I spoke with a portion of our County Council this morning, and they are hoping we can facilitate a dialogue on the use of either or both papers as a guide to the water quality component of our buffer requirements.

Thank you for your time.

Sincerely,

Shireene Hale
Planning Coordinator/ Deputy Director
San Juan County
360.370.7569

shireeneh@sanjuanco.com