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Here’s to A Positive Outcome and Kudos to the Fox’s for Fighting the Good Fight

To All,

We had our day in Appellate court and now we wait. Thanks to all of you for getting us there.

I thought Peter did a great job representing us and staying focused on the law. What the DOE and Tribe said was nothing that I haven’t heard before.  I do find it interesting of being accused of “making end run around the instream flow rule and trying to move to the head of the line” that has been said many time by the tribe in their oral arguments. When I think about that statement it I see that is the issue with the instream flow rule; the opposing side is using the instream flow rule to get around the water law, without going through the legislature, where laws are supposed to be made or changed, to change state water law. If this is upheld in the that court our “due process” has been eliminated without legislative action.

I have been asked about where we go from here and my answer is; we have to wait for the court’s ruling to make any decisions on our path forward, the waiting is the hardest part. In a couple days we will be able to down load the recording from yesterday’s hearing and I will send it to each of you so even if you were not able to attend you will hear what was said. Then when we get a ruling we will have 30 days to decide what we will do, hopefully that means a permit. If not, are we willing to take this to the Supreme court.

Thanks for your support, without you we would have never made it this far,

Richard and Marnie

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SVH had a brief recap of the hearing in this morning’s (2/27) paper and online, followed by a clarification/explanation from Will Honea, the lawyer representing Skagit County.

http://www.goskagit.com/all_access/appeals-court-hears-skagit-water-rights-case/article_473ece05-b4ec-544c-a433-49ec06938457.html

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Appeals court hears Skagit water rights case

By BRANDON STONE @Brandon_SVH

SEATTLE — The state Court of Appeals heard oral arguments Friday morning in Fox v. Skagit County.

Richard and Marnie Fox have been seeking a building permit for land they own in Concrete since 2014, but have been turned away by the county because of the state Department of Ecology’s 2001 instream flow rule.

The rule states that when the Skagit River reaches a certain water level, the state can deny homeowners access to water in an effort to protect fish.

Peter Ojala, attorney for the Foxes, said a ruling on the case likely won’t come for a couple months.

Ojala argued in front of a three-judge panel Friday that because the flow rule does not explicitly discuss permit-exempt wells, such as the small domestic well the Foxes would use, the rule should not apply to them.

Exemptions exist, he said, to keep domestic well users out of the court system, and Ecology should be responsible for mitigating the impact of permit-exempt wells on the Skagit River watershed.

Assistant Attorney General David Stearns, who represented Ecology, said the 2001 rule covers all water users, even if it doesn’t explicitly talk about exempt wells.

Stearns and Emily Haley, an attorney representing the Swinomish Indian Tribal Community, argued the Foxes have not made an effort to create a mitigation plan that would allow them to receive a building permit, and instead have sought legal action to find a way around the rule.

Ojala said hiring a hydrogeologist to determine whether the Foxes’ well draws from the Skagit River watershed would cost the Foxes about $30,000.

Ojala also said the Foxes’ paperwork subdividing their property in 2000 mentioned the presence of a well, so the county was aware of the couple’s plans before the establishment of the 2001 rule.

“My client has shown his plans have been consistent,” Ojala said. “He’s always wanted to build his dream home on the corner of his farm.”

But Stearns said subdividing the property does not qualify as intent to build because the Foxes didn’t act on that intent for about 10 years. In order to qualify for a water right, he said the Foxes needed to make regular and beneficial use of the well.

Will Honea, deputy prosecuting attorney for Skagit County, argued that the county was not opposing the instream flow rule, but rather challenging Ecology’s right to eliminate the statutory right to permit-exempt wells by not mentioning them specifically in the rule.

“There was no way a reasonable property owner would have known … that this statutory right would go away,” he said.

— Reporter Brandon Stone: bstone@skagitpublishing.com, 360-416-2112, Twitter: @Brandon_SVH

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Will Honea ·

University of Washington School of Law

Hi Brandon, a minor clarification to your article.
The County does in fact believe that the Skagit Instream Flow Rule is based on bad science. It sets the minimum flow of the Skagit River far above any known historical river level, creating, in effect, an immediate, retroactive moratorium on all building permits in the Skagit Basin. To put this into context: the Skagit River has never met the minimum flow set by the State in the Skagit Instream Flow Rule, meaning, if you follow the regulatory logic used by the State, that no human civilization should have occurred in the Skagit Basin because there was never any water available. This is not a reasonable point of view.
The Skagit Instream Flow Rule is not the product of a thoughtful or legitimate governmental process. Rather, it is the product of a bureaucratic mistake by Ecology, a mistake that Ecology could fix but refuses to, because the Swinomish Tribe threatens to sue them if they do. This is not my interpretation; Ecology directly said so in a letter recently.
A challenge to the text of the Instream Flow Rule itself is not properly before the Court of Appeals in Fox’s case (which is the reason that Judge Lau kept returning to that question, over and over, at yesterday’s hearing).
However, Ecology’s 2013 interpretation of the Instream Flow Rule, which contends that the Rule’s silence means that exempt wells are eliminated, is properly before the Court. The Rule says nothing at all about exempt wells, and Ecology now tells the public, 12 years later, that silence means exempt wells were eliminated. We feel that this lacks the due process required by the U.S. Constitution.
If the Court were to agree with the County, all it would mean is that Ecology would have to re-do the process of adopting the Skagit Instream Flow Rule, this time dealing explicitly with exempt wells so that Skagit County landowners can understand what their government is doing to them, at the time it happens. This is why I said yesterday that all this is really about honest and transparent government more so than treaty rights, fish, or water.
As grossly unfair as this obviously is for the hundreds of landowners that followed all the rules, sadly, I’m not hopeful of a good outcome for the Foxes. The path of least resistance for the Court of Appeals will be to side with Ecology and the Swinomish Tribe, and deny Fox’s appeal. After that Fox would have the right to appeal to the Supreme Court.

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One comment

  1. “if you follow the regulatory logic used by the State, that no human civilization should have occurred in the Skagit Basin because there was never any water available.”This quote from Will Honea in the article above is the very essence of what is wrong with government in our state and county. This type of logic in the regulatory environment that we currently live under adds thousands of dollars to building costs, restrains job creation, and brings fear into our living rooms.

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