Archive for June, 2010

A warning to all those who would despoil the environment in North Idaho – you might want to put it off until the end of the summer. 

KEA is pleased to host three (yes, three) law students this summer. There is certainly no shortage of work for them to do around here — water quality, water rights, forests, and land use issues will keep them busy all summer long.  Meet Jeff Briggs (entering his third year at Gonzaga Law), Trevor Frank (entering his second year at Oregon Law), and Sean Waite (entering his second year at Seattle Law).

Meet KEA's Summer Legal Team - Jeff Briggs, Trevor Frank, and Sean Waite (via KEA BlackberryCam)

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Our friends at Doma Coffee and our Roots volunteers have made it to the finals of the Green America grants program! Now we need your vote to win the grant. With this grant we hope to fund a hoop house to extend the growing season at our Dalton Gardens CSA, and to acquire some bicycle equipment to help with our composting partnership with Doma. It only takes a half a minute to click over to the grants page and vote. It’s simple, and easy and our awesome agricultural operations would really appreciate it.

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This week, the Kootenai County Planning Commission will consider two draft amendments to the county’s site disturbance ordinance.  One draft, submitted by County staff, would add variance and appeal procedures to the ordinance. Another, submitted by a local planning and development firm, would create several potentially broad new exceptions to the ordinance.

 The site disturbance ordinance, of course, provides detailed regulation on how a property can be developed, and in particular, the ordinance creates critical undisturbed and vegetated buffer zones which protect our local waterbodies from runoff and erosion.   

 Some months ago, the Kootenai County Commissioners agreed with a hearing examiner and KEA that the current site disturbance ordinance provided no legal authority for a variance, and thus a request for a variance to allow disturbance of a portion of Hayden Lake’s shoreline was denied. In an effort to plug the regulatory gap, the County’s planning and legal staff has drafted an amendment to the ordinance (link to pdf here) that would allow for variances and appeals, which most land use laws allow.

 Meanwhile, e2 Planning and Design, a Post Falls firm which represents developers (and which represented the development denied the variance on Hayden Lake), has drafted an amendment to the site disturbance ordinance which would allow “installation of new improvements” in the buffer zones if they are recommended by a “design professional” and they “meet the definition of a best management practice.” The County planning and legal staff has attempted to amend the developers’ draft to provide clearer guidance and tighter language (a pdf of the county’s amended  draft is here), but at a workshop meeting of the Planning Commission this morning, the development firm appeared to balk at the County’s re-write.

 KEA is currently developing comments on the two proposed amendments and will appear at the Planning Commission’s public hearing on Thursday evening.  KEA has minor concerns about the County’s proposed variance and appeals amendment and major concerns about the development firm’s amendment.  Stay tuned.

UPDATE 6/25:  More on this later this weekend, but last night, the Planning Commission unanimously passed the County’s proposed variance legislation, and it unanimously tabled the proposal from e2 Planning and Development until concerns from KEA, DEQ, the Coeur d’Alene Tribe and the County were resolved.  Legal interns Sean Waite and Jeff Briggs testified most impressively and wrote the bulk of KEA’s comments available at our website.

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We read with interest an excellent op-ed in the Baltimore Sun from Rena Steinzor, president of the Center for Progressive Reform (and a law professor of mine at University of Maryland’s law school),  that points out that the regulatory failures leading up to the BP mess in the gulf is just one of a continuing series of failures of government to properly regulate industry for the protection of the public, the work force, and the environment.

Indeed the similarities are saddening: government regulatory agencies with conflicts of interest, failures of enforcement, and captured by the money and influence of Washington lawyers and lobbyists.  So we get a gulf full of oil, cars with faulty accelerators, coal companies with horrendous safety records, and salmonella in peanut products throughout the food system. And those are only the recent examples. As Steinzor says, “The only reliable, long-term solution is to putting strong and independent regulators back on the beat and self-serving lobbyists on the back benches.”

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The Kootenai County Commissioners decided this morning that they would pull back on their draft “emergency” legislation to extend time to developers to complete projects. Instead, the Commissioners referred the legislation back to the Planning Commission for their evaluation without the “emergency” status.  The poorly-drafted legislation  would have granted developers up to two years of additional time to complete projects upon an application to the County showing economic hardship.

 Commissioner Currie was concerned that any such legislation would need “sidebars” so that the legislation would not be a “complete free ride” to developers. He said he would require that economic hardship be “proven” and “definite” and that extensions of time would only be afforded to “substantially completed” projects. He also noted that there should be a formal process available for hearings and appeals, if necessary, and that a simple request for an extension was not enough justification.

 Commissioner Tondee suggested that after his “first pass” through the legislation, he thought it was an idea “good for the local economy.” However, he said he couldn’t come to terms with the “emergency” designation, and was concerned that the circumstances of this legislation did not constitute a proper emergency as anticipated by the State’s authority. He said he’d rather send the proposal through the Planning Commission to carefully consider “sidebars” as suggested by Commissioner Currie, and to avoid the problems with designating it as an emergency ordinance.

 Commissioner Piazza generally concurred, noting that “something needs to be done” but also that the economic downturn is continuing, and a more extensive solution might be necessary beyond what emergency legislation can accomplish.

 The next steps will be up to the Planning Commission. Stay tuned.

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We were pleased to have the opportunity to watch today’s live webcast of the U.S. Senate’s Energy and Natural Resources Subcommittee on Public Lands and Forests hearing today regarding the Boulder-White Cloud bill which would bring new wilderness to central Idaho.

In a press release issued after the hearing, Idaho Conservation League noted that “the legislation will protect as wilderness 332,775 acres in the Boulder – White Clouds, including the proposed White Clouds, Hemingway-Boulders and Jerry Peak Wilderness areas, including 150 peaks more than 10,000 feet high, headwaters of four Idaho rivers, spawning beds for salmon, wildlife habitat and backcountry destinations for hikers, anglers, hunters, campers, and wildlife watchers.”

Rick Johnson, Executive Director at Idaho Conservation League testified ably about the lengthy process that led to the legislative initiative. More than ten years of negotiations and compromise led to a bill finally supported by Senators Crapo and Risch, and Congressman Simpson, who all spoke at the hearing. Motorized recreation interests still oppose the bill.

Remarkably, though, Idaho Governor Butch Otter sent a letter dated only Monday (pdf available here) in opposition to the bill too. Opposed to “more wilderness acres and federal red-tape” Otter says the bill will “negatively impact state wildlife management, mechanized recreation and grazing.” He proposes several “suggestions” regarding hunting, trapping, water rights, noxious weeds, and conveyances.

Immediately, though, Otter’s gubernatorial opponent this fall, Keith Allred put out a statement in support of the legislation.  Allred said the legislation “preserves motorized access areas where my family and I have long enjoyed snowmachining. It extends wilderness protection to the pristine areas where we love to backpack, ride horses, and hunt. With these protections, future Idahoans will enjoy those areas in the same way we do today. [The bill] also respects the cattle ranchers’ and local communities’ interests.” Allred, no doubt, understood that recent polling in Idaho shows strong support for this particular bill and all its component parts.

So, on the merits of the legislation, Otter has chosen to be out of touch with the entire Idaho Republican delegation to Congress, and has given Allred a clear issue on which to campaign. More concerning to us at KEA, however, is Otter’s willingness to undercut a 10-year collaborative process. As collaborative conservation and landscape-scale land management becomes more of the norm in the western U.S. (whether we like it or not) this does not bode well for any similar collaborative possibilities in North Idaho.

UPDATE 6/18 : Rocky Barker from the Idaho Statesman writes about these concerns today. Not only the nascent North Idaho collaboration, but collaborations in the Clearwater, the Payette, Shoshone County, and Lemhi County will be looking at how this Otter-caused fiasco plays out.

UPDATE 6/19: Kevin Richert of the Statesman writes a scathing editorial about Otter’s misguided opposition.

UPDATE 6/20: The Times News in Twin Falls weighs in with jeers to Gov. Otter.

UPDATE 7/6: Rep. Simpson addresses Otter’s concerns.

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KEA member and sometimes volunteer Rich Hurry emailed this account from the federal court hearing yesterday in Missoula regarding the de-listing of wolves under the Endangered Species Act. In his account, Rich, who is very much a wolf advocate, suggests some important lessons for both sides of the debate.

I attended Judge Molloy’s hearing in Missoula, MT yesterday about whether the gray wolf was improperly de-listed from the Endangered Species List by the U.S. Fish and Wildlife Services.  (For a accurate summary of some of the proceedings, see this article in the Missoulan.)

 First, let me say that listening to the oral arguments presented by both sides of this litigation was very informative and interesting.  Judge Molloy instructed each side to restrict their comments to five aspects of the legality of Fish and Wildlife Services’ de-listing wolves in Montana and Idaho, while keeping them listed in Wyoming. For the most part, each side stuck to this theme.  Most interestingly, the Judge frequently interrupted both sides’ attorneys during their orations to ask questions.  His questions were probing and displayed a deep knowledge of the minute facets of the legal framework surrounding this case.  My take is that he questioned the defendants (US F&WS, Montana, and Idaho) far more aggressively than the plaintiffs, environmental groups represented by Earthjustice

 Several things struck me from sitting in the very first row behind the plaintiff’s attorneys:

 1.  The plaintiffs’ attorneys were extremely knowledgeable about all the subtle nuances and characteristics of this case. It was apparent that they had spent literally weeks poring over every possible source of information about this case. Listening to the secondary attorneys kibitzing among themselves and were seated directly in front of me, they had rehearsed every phrase and legal construction to their satisfaction before EarthJustice’s lead attorney, Doug Honnald, used them in his remarks.  Honnold performed a careful analysis of the exact language of the Endangered Species Act and teased out those words and phrases which supported his case.  He responded positively to the Judge’s inquiries and never was stumped for an answer.

 2.  The defendants appeared less well prepared. Their lead attorney, US Dept of Justice attorney Mike Eitel, who had argued this case at the last hearing in front of Judge Molloy, appeared inarticulate, stumbled on questions, mumbled, and gave a less than inspiring or informative defense of the US F&WS’s actions. He wilted under questioning by the judge and it appeared the judge gave up on pursuing further questions. His co-counsel from Montana, Bob Lane, similarly gave a rambling and barely audible oration, which basically said Montana loves wolves and would never allow their numbers to drop below the federal baseline of 15 breeding pairs and 150 wolves.  Idaho’s solicitor, Steven Strack, was much more polished and gave a much better defense of Idaho’s record regarding wolves.  He was smooth, perhaps because the judge did not ask him any questions. 

 3.  My biggest take away from this experience is how important it is to me (and perhaps other wolf advocates) to become much more knowledgeable in the facts and nuances of all aspects regarding wolves.  I was astonished at how much I, a presumably well-informed consumer of news about wolves, did not know but learned from listening to the oral arguments yesterday.  I think anyone who endeavors to advocate for wolves must go beyond “wolves are nice and good for the environment” to educating themselves on fundamental issues such as:

     a.  Genetic Connectivity between wolf packs in a “distinct population segment“–itself a term with powerful legal ramifications from the ESA.  Become familiar with the various peer studies and research on the rocky mountain gray wolf in particular.  Delve into them to see what’s been demonstrated and what was not said or proved.  Tie this into the listing/de-listing criteria written into the ESA. 

     b.  The history of listing gray wolves, going back to the 1974, when wolves were listed in all states, except for Alaska and Hawaii.  Trace the legal history of congressional actions that amended the ESA.  Trace the house and senate analyses of these bills.  Trace executive office rules and implementations of these listing decisions.  Actually become an expert in the legal history to date of the ESA so that you can argue persuasively for wolves inclusion on it.  Learn why there was disparate treatment between the listing of the great lakes gray wolf versus northern rocky mountain gray wolf.

     c.  Study what appears to be the only legal precedent germane to yesterday’s hearing:  Defenders v. Norton in the 9th Circuit , concerning de-listing toads in a “distinct population segment” which crossed state boundaries of California and Arizona.  The issue was that US F&WS delisted the toad in one state because their habitat was no longer degraded to the point of threatening their survival, while allowing listing to continue in another state, because this state’s habitat had not recovered.  Defendants claimed this provided precedent for delisting wolves in Montana and Idaho, while keeping them listed in Wyoming.  Plaintiffs claimed it did no such thing.  So, one has to “dig into the stacks”, figuratively speaking, and call up that decision and study it for him/her self.  Have a study session among colleagues after all have read and studied it.  Come to our own conclusions.

 To avoid a potential swarm of protesters, I arrived early and was just the second person on-line in front of the courthouse.  Accordingly, I was able to take a seat once I got inside the courtroom in the first row right behind plaintiffs’ counsel.  It was a great place from which to sit and watch the proceedings.

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Although the growing season has barely begun, we were pleased to see that our brand new Roots CSA has already gained some level of success. We’re big fans of one of our CSA’s big fans, and we were pleased to see that the nice folks at ilovecda.com were able to take some early harvest spinach and turn it into something that looks absolutely scrumptious. Check out the recipe here.

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We continue to watch in horror as the gulf oil spill expands and consumes beaches, marshland, birds, fish, and other wildlife. Even when the spill finally stops, the gulf region is facing years and years of cleanup.

Those of us in North Idaho can relate as well as anyone south of Prince William Sound, Alaska.  Environmentally, the oil mess in the gulf is not unlike the mining mess in the Coeur d’Alene basin. Contamination spread for miles by natural currents of water. Brought on, in no small part, by under-regulated industrial operations.

Of course, the contamination of our region was decades in the making and decades ago. The cleanup here will continue for decades. Currently the EPA is considering an update to the Superfund “Record of Decision” for the upper Coeur d’Alene basin, which is intended to guide cleanup plans for the next 50 to 90 years.  (That’s right – another 50 to 90 years of cleanup in the upper basin. Meanwhile, we try to remain hopeful that the lower basin will get some attention prior to the year 2060. )  Anne Dailey, from the EPA’s office in Seattle will join us this Thursday, noon, at the Iron Horse to discuss the “ROD Amendment,” as it is called.

Our thoughts go out to our fellow Americans along the gulf of Mexico. Welcome to our world.

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In a stunning decision, the Idaho Department of Lands has approved a proposal by Kootenai County Parks and Waterways to locate moorage buoys for motorized boats in Cougar Bay.  We are reviewing the decision here at KEA, but on initial reading, we are deeply concerned.

The IDL decision reduced the number of moorage buoys from the 12 in the original proposal to three. The IDL decision also sets conditions on the permit such that there will be a limit to the number of boats per buoy in order to prevent movement of the anchor. IDL expressed continued support for a no wake zone in the Bay, but the IDL decision did not explicitly approve the 15 marker buoys in the proposal.

On one hand, the decision states that “if the usage of the mooring buoys results in conflicts with the conservation or non-motorized use of Cougar Bay, then this permit may be subject to revocation.” But on the other, the decision also states that “If these mooring buoys appear to be compatible with other uses of Cougar Bay, then the Applicant may apply for more in the future.”

The IDL decision notes that the proposal will require removal of pilings in the permit area, and emphasized that piling removal was not part of this particular decision. Such removal would require a much more detailed evaluation including consideration of the contaminated lakebed sediments. Ominously, the permit sets a three-year time limit for the piling removal, or else the moorage permit will expire.

We are saddened by this decision, and we are likely to have more on this soon.  Our first thought, though, we’d urge Kootenai County Parks and Waterways to rethink their proposal. There is likely to be a more comprehensive solution to the piling problem and Bay protection. Plopping three party buoys in quiet Cougar Bay is not a positive contribution.

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