Petition for Constitutional Writ of Certiorari and Complaint for Declaratory Judgment and Injunction.
Petitioner/Plaintiff Wildlife Forever of Grays Harbor hereby brings this action pursuant to Article IV, § 6 of the Washington State Constitution and RCW Chapters 7.16 and 7.24, and hereby alleges as follows.
PARTIES
1. Wildlife Forever of Grays Harbor ("Wildlife Forever") is a not-for-profit corporation organized under the laws of the state of Washington. Wildlife Forever is dedicated to preserving wildlife and wildlife habitat throughout Grays Harbor County for the benefit of citizens of Grays Harbor and the State of Washington. Members of Wildlife Forever use and enjoy the parcels of land that are protected for wildlife mitigation pursuant to the Satsop Site Certification Agreement ("SCA"), originally issued by the Washington Energy Facility Site Evaluation Committee ("EFSEC") on October 27, 1976, and subsequently amended.
2. This suit challenges the action of the Washington Public Power Supply System ("WPPSS") in transferring its ownership of and restoration responsibilities for certain real property at the Satsop Power Plant Site (herafter "the transfer"). On information and belief, the transfer occurred on or before April 2, 1999, pursuant to a Site Transfer Agreement executed on February 26, 1999. It is believed that WPPSS is a quasi-state agency, organized as a municipal corporation under the laws of the State of Washington.
3. While this suit does not challenge the actions of the other respondents, they are appropriate parties to this action as recipients of the challenged transfer. Upon information and belief, the Satsop Redevelopment Project is an entity created by interlocal agreement between Grays Harbor County, the Public Utility District No. 1 of Grays Harbor, and the Port of Grays Harbor.
PETITION FOR CONSTITUTIONAL WRIT
4. On or about April 2, 1999, the Washington Public Power Supply System ("WPPSS") transferred its ownership of and restoration responsibilities over certain real property at the Satsop Power Plant Site. This transfer included ownership and responsibilities related to approximately 1100 acres of land that had been set aside for wildlife habitat in part to mitigate the impacts of the construction of the Satsop Power Plan and the maintenance of a major facility within critical wildlife habitat. The transfer purported to be authorized by RCW 80.50.300. This action was arbitrary, capricious and/or illegal and contrary to public policy, and therefore should be found null and void.
5. Despite the public interest in the mitigation lands, WPPSS gave no public notice of its action and provided the public with no avenue of appeal.
6. The transfer of the site and restoration responsibilities by WPPSS violated RCW 80.50.300, because WPPSS had not taken the prerequisite step of effecting transfer of site restoration responsibilities, including the responsibility to adequately protect the wildlife mitigation lands.
7. The transfer of the site and restoration responsibilities by WPPSS violated RCW 80.50.300, because the SRP was not a political subdivision of the state.
8. The transfer of the site and restoration responsibilities by WPPSS violated RCW 80.50.300, because the SRP was not a political subdivision of the state composed of elected officials. If the SRP was a public development or other authority under RCW 35.21.730 at time of transfer, the transfer violated RCW 35.21.730 because it was a direct conveyance from WPPSS to the SRP.
9. The transfer of the site and restoration responsibilities from WPPSS violated the statutory scheme under which the wildlife mitigation lands were set aside and protected, including the provisions of RCW Chapter 80.50. For example, but not by way of limitation, the mitigation was required for construction impacts that have already taken place and for ongoing impacts caused by the maintenance of a major facility in critical wildlife habitat. WPPSS has retained possession of a portion of the site creating such ongoing impacts with the intention of developing one or more energy facilities. Yet, WPPSS has transferred and thereby acts to deregulate all of the mitigation lands.
10. Prior to transferring the site and restoration responsibilities, WPPSS failed to complete requisite analysis of environmental impacts including that required under SEPA.
11. Prior to transferring the site and restoration responsibilities, WPPSS failed to assure that the transferee had sufficient expertise and resources to maintain the mitigation lands and pursue the mitigation goals.
COMPLAINT
FIRST CAUSE OF ACTION -- DECLARATORY JUDGMENT
12. Wildlife Forever realleges the allegations in paragraph 1 through 11 herein.
13. The SCA, the concurrent Wildlife Mitigation Agreement, and applicable statutes and regulations set up a scheme for the protection of approximately 1100 acres of wildlife mitigation lands. The goal of the mitigation was to create habitat for species dependent upon a mature/old growth forest ecosystem. The protection of the mitigation lands was to continue until complete restoration of the site and cessation of the ongoing impacts.
14. In 1996, the Washington State Legislature enacted RCW 80.50.300, which allows WPPSS to transfer restoration responsibilities and in limited cases also transfer certain property.
15. Pursuant to RCW 80.50.300, WPPSS believes itself empowered to transfer a portion of the Satsop Site, including the entire mitigation lands, despite the fact that impacts are ongoing, WPPSS continues to hold property creating such impacts, and the SRP has stated its intention to make use of the mitigation lands in ways inconsistent with mitigation goals and the public interest. WPPSS also takes the position that no environmental analysis of its action is necessary.
16. The SRP has taken the position that by virtue of WPPSS' action and the adoption of RCW 80.50.300, mitigation responsibilities have now been lowered to the status of a contractual agreement. The SRP has stated that it can take actions contrary to the mitigation goals if it merely obtains the agreement of other parties to the most recent Mitigation Agreement. The SRP has also taken the position that no further environmental analysis is needed for its future development activities on the site. The SRP is currently planning to take actions on the mitigation lands that are directly contrary to the mitigation goals, including certain logging activities which will prevent the creation of a mature/old growth forest ecosystem.
17. Wildlife Forever has a genuine dispute with the Respondents' interpretation of the applicable laws and documents. Wildlife Forever maintains that based upon the authorities outlined above, the transfer was invalid and that no transfer of the mitigation lands is authorized under these circumstances without suitable, long-term protection for the mitigation lands.
18. Without a declaration of the various rights of the public and the parties under these laws and documents, Wildlife Forever and the public have sustained and will continue to sustain injury to their interests in the long-term protection of the mitigation lands. Members of Wildlife Forever in particular will sustain injury through decreased protection of the mitigation lands, loss of accountability for maintenance of the mitigation lands, and further impacts to wildlife habitat on the mitigation lands caused by the management of the SRP.
19. Wildlife Forever seeks declaratory relief and a finding by this court of the following matters:
a. A declaration that the mitigation lands must be protected pursuant to the original mitigation goals of creating mature/old growth forest habitat, and articulating the level of protection that must be afforded the mitigation lands and the scheme for assuring such protection.
b. A declaration that the current management plans of the SRP are inconsistent with the protection that must be afforded the mitigation lands.
c. A declaration that the WPPSS failed to satisfy the prerequisites necessary to transfer of the site from WPPSS to another entity, including those contained in RCW 80.50.300.
d. A declaration that WPPSS lacked authority to transfer the site in this instance.
e. A declaration that WPPSS and the SRP must conduct environmental analyses of the transfer and future development activities prior to such actions.
f. A declaration that the public continues to have an interest in the mitigation lands and that the mitigation responsibilities have not been lowered to the status of a mere contract that can be modified by the consent of the parties.
SECOND CAUSE OF ACTION -- INJUNCTION
20. Wildlife Forever realleges the allegations in paragraphs 1 through 19 herein.
21. Based upon the above allegations, an injunction should be issued to protect the mitigation lands pending the outcome of this case and, if appropriate, thereafter. An injunction should be issued to prevent further actions transferring the site and restoration responsibilities. Such relief is necessary to prevent irreparable harm to the mitigation lands and the interests of Wildlife Forever.
. Relief Requested
Petitioners respectfully requests that this Court grant the following relief:
1. An Order declaring as null and void the transfer of the site and restoration responsibilities from WPPSS, and any agreements entered into by WPPSS effecting such transfer.
2. A declaration establishing the protection that must be afforded the mitigation lands, the application of applicable laws to the facts of this case, and other matters as described above and as the Court deems necessary.
3. Injunctive relief as described above and as necessary to halt the challenged transfer and to protect the mitigation lands.
4. An award of allowable costs and attorneys fees; and
5. Such other relief as the Court finds just and equitable.
Respectfully submitted this 6th day of April 1999.
Smith & Lowney, P.L.L.C.
By: ___________________________
Knoll D. Lowney, WSBA # 23457
Richard A. Poulin, Of Counsel
WSBA # 27782
Attorneys for Petitioners
Meeks Morgan Bauer
By: ___________________________
Thomas R. Bjorgen, WSBA # 10829
Smith & Lowney, P.L.L.C.
2317 EAST JOHN STREET
Seattle, WA 98112
(206) 860-2883 fax (206) 860-4197
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