The recent Washington State Supreme Court decision Hirst vs. W. Washington Growth Management Hearings Board (“Hirst”) opens a new offensive against individual property rights and common sense; and it continues the trend of legislative rule making by our Supreme Court, where the Justices have habitually strayed from their judicial role into the realm of policy making from the bench. The ruling is disastrous for property rights, and it is a crowning achievement of decades of subterfuge by Futurewise (the prime plaintiff in this case, even though they were listed last), who together with like-minded groups, champion never-ending aggression and control of citizens via centralized planning.
To quote from the dissent (written by Justice Stephens): “The majority's decision hinges on an interpretation of RCW 19.27.097 that is unsupported by the plain language of the statute, precedent, or common sense.” Let’s review the case and how we got here.
What is the Hirst case about?
Water. For decades, various elements of Washington State’s environmental movement have expressed anger and resentment about the potential for people to build homes in rural or suburban settings. The battle-axe used to keep people in line has been, up until Hirst, the Growth Management Act (GMA), which was passed, appropriately, on April Fool's Day, 1990. The GMA had three effects. First, it set up a system of order and control for housing and development. Second, it established a revenue generation system for local government to maintain and enforce control. Third, it provided attachment points for environmental groups to litigate in order to maintain and expand government control over the most basic needs of the masses (i.e., housing). Ostensibly, the GMA was to benefit individuals by preventing urban sprawl, but in reality, only government benefited via increased control, by the addition of new revenue streams, and by providing backdoors for the government’s environmental allies to beat down citizens ever more. The current litigation leader in Washington State is a corporate “non-profit” called Futurewise, which is a rebranded version of an earlier organization called 1000 Friends of Washington. Those who have suffered at the hands of this organization call it “Future Lies.”
One of the most significant, but subtle, aspects of the GMA is that it introduced a whole new logic for control – that the government could, and should, manage all aspects regarding the housing of the masses. Whole new government bureaucracies were built from the ground up on the backs of individuals, a system that affects every hill and dale throughout all municipalities in the state of Washington.
Now Hirst has done the same for water. It establishes an entirely new logic for government control over the most basic needs of the masses (i.e., water). You, as an individual, are no longer entitled to water unless you meet certain (virtually impossible to meet) conditions. Hirst affects all new wells and related development, and it may also affect existing wells and water users. Like the GMA, its effects will be felt in every nook and cranny of the state.
The Hirst Lawsuit
Futurewise was the lead entity organizing and facilitating the “Hirst” lawsuit in Whatcom County. The players in this litigation drama are worth knowing. The plaintiffs were largely represented by Jean Melious, who is often called “Jean Malicious” by many residents of Whatcom County. She is a graduate of Harvard Law School, and a professor at Huxley Environmental College at Western Washington University. She is former head of the Whatcom County Planning Commission, and maintained a local blogsite called “Get Whatcom Planning” with one of the plaintiffs - David Stalheim. David Stalheim came to Whatcom County in 2007 as a bureaucrat from the City of Wenatchee. In Whatcom County he was the Whatcom County Planning Director for several years, before working for the City of Bellingham in 2010 and helping to file this lawsuit against Whatcom County. Eric Hirst was a Futurewise acolyte and board member of local Whatcom County “nonprofit” grant collection scheme called ReSources.
With generous taxpayer funded salaries, the plaintiffs and their attorneys figured that they could advance the Futurewise central planning agenda and take a shotgun, hail-mary legal approach with litigation against Whatcom County claiming their planning programs in the Nooksack watershed should no longer allow private wells. The legal path was uncertain (because the plain language of the law was against them), but the Growth Management Hearings board gave them hope with the board’s political appointees conveniently supporting serial litigation factory Futurewise. The plaintiffs suffered a temporary setback in the Appeals process, but with the, opportunity to use their case to end all private wells in one legal case, the gamble paid off. Six Washington State Supreme Court judges (including three up for reelection this year) decided to ignore the law and write their own.
The practical effect of this decision is that no county in Washington State can allow any new private well anywhere without conducting a very expensive hydrogeological study of each well site to determine if there is some potential impact to the Minimum Instream Flow of local streams or creeks. We will discuss the significance of these studies later. For practical purposes, this ends all private wells except for the most wealthy individuals. While there is some debate on how widespread the Hirst decision is upon Washington State outside Whatcom County, most counties will take the path that Spokane County just took and stop providing permits for any new wells. The Department of Ecology appears to be following that lead as well. Those who do not comply will be sued by Futurewise and their followers. Few counties have the budget to endure this style of litigation.
What can you do about this now?
First, we are only weeks away from an election. The three incumbent supreme court judges all signed onto this poorly written decision. A message must be sent. New judges must be elected, and these sorry incumbent judges need to be replaced. The challengers are far more likely to read the plain language of the law and interpret accordingly. The challengers will not invent new legislation as dictated by special interests to promote an agenda (that is the job of legislators, not judges). You can make a difference. Vote for these guys: Dave Larson, Greg Zemple, and David DeWolf.
Secondly, the Executive Director of Futurewise is running for the office of Public Lands Commissioner. She is Hillary Franz, and she is partly responsible for this legal decision as well. Her open hostility and history of antagonistic behavior towards private property owners is well known on Bainbridge Island where she was on the council and working for Futurewise running their litigation factory. The ravages of a rapacious special interest like Futurewise only gets worse if they gain control of the Department of Natural Resources. Vote for Steve McLaughlin for Public Lands Commissioner in November.
Third, contact your state legislators and state senators and demand a legislative fix to this blatantly flawed judicial legislation by the supreme court. There are many ideas being discussed already in Olympia, but your legislators need to hear your demands that they reverse this decision before the harms become more widespread.
Finally, please join and contribute to the Citizens Alliance for Property Rights. You can go here to sign up or donate. If you are already a member, encourage your family, friends, and neighbors to join as well. We are the only organization in Washington State focused on defending your property rights in the political, legal, and grass roots arena. We have many allies who will join us for specific battles, but we are the only organization concerned solely with protecting your property rights in their entirety. There is strength in numbers, so add your numbers to ours and help us become more effective at preventing this type of attack on our freedoms in this state.
The Watershed Hydrogeologic Model Game
Most people hearing about this decision will want to understand what a hydrogeologic study of the watershed or well site would look like. Is it just a very expensive consultant study? Unfortunately, it is a very expensive process, partly based on science, and partly based on theory of water connectivity and flow. The practical result will be hundreds of thousands of dollars spent to get some fancy maps and a computer generated “model” that will demonstrate that your well could adversely impact the watershed. Since there is no practical way to verify or disprove this theoretical model, your only recourse (if you really, really needed that well) would be to hire a competing hydrogeologist who could produce a model that demonstrated your well would not adversely impact the watershed.
Then, the two models could be pitted against each other in an intellectual exercise that would not be much different than two kids playing Dungeons and Dragons arguing about which invisible laser beam could defeat which invisible force field. In addition to creating endless job security for hydrogeologists, the Hirst Decision also guarantees a whole new realm of pointless litigation where wholly unqualified judges are going to be deciding between which invisible, unprovable model is true. Science will be paid lip service, but mainly these decisions will just be about who can put on the best show. While this might be entertaining, it certainly won’t be productive for individual freedom or legal certainty.
Future wells denied, existing wells now targets
Beyond the obvious problem of denying, for all practical purposes, the ability to install a new well, the Hirst decision leads to far worse outcomes almost immediately. Futurewise is celebrating an unexpected early victory handed to them by a feckless State Supreme Court. It doesn’t take a Huxley College graduate to realize that the same lack of logic that spawned the Hirst decision could lead to another equally flawed decision to meter or remove existing exempt wells. After all, if any proposed well could be harmful to the watershed, then what about existing wells?
The plan to meter existing wells has been in place for many years, and some counties have even gone down that road already, but now Hirst can jumpstart that process and lead to various regulatory options like well taxes, well water rationing, and shutting down existing wells. The various greeny groups can even bribe and cajole local government strapped for cash by demonstrating how much tax revenue can be gained by taxing well water (meters are the first step to taxing the water). Smart wireless, networked water meters make the implementation of this process pretty simple. Now the rural folk can pay their “fair share.” Fun times.
Concerns about a legislative fix and the rule of law
The biggest concern we have with the Hirst case is less about the destruction of property rights at the stroke of a pen, although that is disastrous enough. What should be alarming is that a majority of the Supreme Court ignored the plain meaning of the law as written and passed by the legislature. Why would this Supreme Court follow any other law on the books? Why would they follow new legislation passed by the legislature, even if it was written to fix the problems the Hirst case creates? Fundamentally, our concern with the Hirst case is the problems this creates with a collapse in the rule of law. We may not see visible anarchy outside our windows today, but if the laws written by our elected officials have no practical meaning once they go before these judges in Olympia, then what confidence should any of us have in any law as written?
Follow the Money to the Water Trust "Solution"
We expect an obvious and predictable backlash from private property owners, real estate agents, farming interests, and some building organizations. We also expect “solutions” to be proposed by the allies of Futurewise in an effort to calm the angry mobs and perhaps deflect effective legislation. The most likely “solution” will involve a water bank or water trust type buy-back scheme.
Generally, this will be an organization that purchases, acquires, or is granted “senior” water rights in a given watershed. They can, in turn “lease” or “rent” these rights to private well owners who will meter their new or existing wells and pay the trust or bank for the use of the water. This has been tested in Clallam and Kittitas Counties already, so the framework is basically in place right now. Many water-intensive farm operations with senior water rights have been shut down in recent years, and many of these water rights have already been purchased or acquired by various green groups who have seen the writing on the wall. Additionally, many tribes in Washington State have been positioning themselves to take advantage of “super” senior water rights by speaking for the fish.
Regardless of who controls which territory (and the turf war will probably be pretty vicious in some areas), there will be some green “non-profit” entity looking for greenbacks for their water right investment. The great thing about this is that they don’t need to install much infrastructure to your new home or existing well. Once they have you in their utility-like district of a watershed, they just install a smart meter on your well, and they start collecting their cash. Initially it will be a pretty modest amount to keep the rural residents from getting too restless. Then, when everyone is more accepting of their status as purveyors of their rural water, the rates will be increased. Most likely the plan is for Futurewise or groups like them to pick which watersheds, properties, or homes will be allowed and where. If you are a troublemaker, they can determine your well is too harmful to the watershed and shut you down. Your property is worthless, unfinanceable, and uninsurable. The dream of shifting more independent rural folk into the dense urban core is realized and central planning utopia has arrived. I’m sure it will be heaven on earth.
And people wonder why I call them Gang Green...
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