Stealing Our Water One Lawsuit at a Time - The Hirst Heist and Our Diminishing Legislature

By Glen Morgan and Cindy Alia

On October 6, 2016,  Futurewise, with the assistance of six Washington State Supreme Court Justices, managed to win the lawsuit lottery.  The Supreme Court ruled in Hirst v. W. Washington Growth Management Hearings Board (decision linked here) on a 6-3 vote in favor of Futurewise and against the people.  This ruling invented new land use rules approved by no legislature or elected official.  This litigious and aggressive environmental NGO funded by wealthy Seattle donors was able to end the historic private well exemption.  

 Instantly, tens of thousands of private landowners lost their ability to build a home, raise a family, or live independently.

While Futurewise, the Sierra Club, CELP, and Washington State’s Native Tribes celebrated the harm and suffering they had inflicted on the rest of the state, serious elected officials, farmers, property owners, and rural residents of the state struggled to find a rational work-around to an irrational policy prescription invented by six judges.  We wrote extensively about this situation here.  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.”

Our elected legislature weakly responds

Most observers were caught flat-footed by the Hirst decision.  Partly, this was because the envisioned result demanded by Futurewise seemed so absurd, partly because Futurewise lost at the appellate court level, and partly because nobody realized just how truly out of touch and unlettered in the separation of powers doctrine the majority of the Washington State Supreme Court had become.  People more familiar with water law and the strong financial forces supporting the Greenish agenda were expressing some concern, but they were voices in the wilderness.  Many had been warning of this scenario after localized efforts in Skagit, Kittitas, and the Dungeness Watershed were testing this model of stealing historic water rights.  After last October, the apathetic have began to wake up.

Many elected officials heard from constituents who could no longer build their homes on land they had purchased and saved money to build for many years.  In some instances, local residents got on their knees and begged their local officials and state legislature to fix this problem.  Initially, a flurry of legislation was offered to “fix Hirst.”  Some were genuine fixes which entirely reversed this harmful ruling like this one and this one.   Some were intended to muddy the waters more and create new layers of confusion.  Some were intended as compromise “solutions” that would kick the problem down the road for a few years and still allow some private wells under certain limited conditions.  The State Senate was able to pass out a bill like this here.

However, it has become clear that, with a few notable exceptions, the Democratic caucus is not willing to fix the Hirst decision.  While they weren’t brave enough to sponsor a bill to destroy the lives of rural residents, they are happy to outsource their jobs and let the Supreme Court do the dirty work for them.  The Futurewise donor base will surely reward them. This positions the Democrat caucus to create legislative“fixes” that are truly harmful and strongly resemble the wish lists of Governor Inslee, the Department of Ecology, and the Environmental Cartel.  Some Republicans believed in creating a compromise solution along the way – desperate to at least give the impression of passing a bill (any bill!) to “fix” Hirst.

Compromise has failed and lacking the will for a massive political battle, a fix will not happen with the far more disciplined Democrats.  An uncompromising Republican battle to restore exempt well water rights is needed now.  Other issues may remain unresolved and the crumbs of bills granted by Speaker Chopp may not pass with such a strategy, but thousands of angry and disappointed Washington state citizens happen to think their water and property rights are worth the political fight.  Those rights should take priority in the legislature over the many silly and serious bills that have passed on a fast track flurry of legislative action.

This is the nature of the legislative process, and if you don’t want to know how the sausage is made, you may want to look the other way.  It isn’t a perfect system, and few expect it to be simple.  However, lost in the back and forth of amendments, vote counts, bill drafts, and hearings is a much more fundamental problem.   Our elected officials are diminishing in significance as they take a back seat to law making by judges and agency bureaucrats.

Elected officials are less consequential than judges

People often decry the fact that the political process has become awash in cash from campaign donations and lobbying budgets.  This is a rational outcome of the relentless growth of government into wider aspects of people’s lives.  Nobody can live without government dictating to them almost every element of how they live their lives.  The tentacles of bureaucracy touch everything.  Corporations, special interests, and powerful people have great incentive to influence this process to their benefit or to support their cause.  Politicians don’t mind because it ensures they can command lots of cash for their campaigns and get the attention they crave.  However, politicians have largely become figureheads in policy battles as exposed by the recent Hirst decision. 

Theoretically, we can remove our elected officials and replace them with new people if we don’t like the direction government is taking.  This is a real problem for special interests who are achieving their goals with the system that currently exists.  In order to reduce the impact or value of uncertain elections, it is important to use alternative, more stable means to influence policy.  Hence, the logical path is to focus on influencing and controlling bureaucracy and the judicial system.

If you can’t get elected officials to support your policy goals through legislation, then the next most logical path is to focus on litigation.  However, the pesky problem of the constitution, case law, and judges who can read must be overcome.  Since Washington State elects judges, then these policy outcomes can be achieved by electing judges who are willing to ignore the constitution, flout common sense, and deny history in order to stretch and invent the desired policy of special interests like Futurewise.  This is why Futurewise so wisely spends their resources on the lawsuit lottery filing over 300 lawsuits against local government in order to obtain outcomes like the recent Hirst decision.

Who needs state senators, legislators, or commissioners if you can just control a handful of judges in black robes?  This is indeed a wise use of donor cash, and most of the people who oppose the hostile policies of Futurewise, the Sierra Club, and tribes like the Swinomish are late to the party.  They are pleading with our elected officials to “fix” Hirst, not realizing that the majority of our elected officials have long ago ceded their power to a handful of judges.  Policy, it appears, will no longer be written by the legislators, but by the Black Robed in the Hall of Justice.  This is the outcome demanded by the donors who support the “environmental” agenda?  They really want, as Hirst dictates, thousands of families to suffer, and it doesn’t matter that these families use less than 1% of the water in Washington State.

Any bill – give me any bill – compromise and desperation

Politicians make promises to their constituents.  However, politics is often the art of compromise, and the process of drafting a solution is messy.  Unfortunately, most people won’t dig into the details, so they tend to only look at the headlines.  This is understandably part of human nature.  However, the process of amending bills and “fixing” problems means that those with the the most experience, access, and best threats will have the most influence on this process.

Behind the scenes, government agencies (like the Department of Ecology) have a lot more sway on the policy drafts that come out of the legislature.  These agencies are always looking for opportunities to expand their budget, power, and mandate, so a manufactured “crisis” like Hirst is a golden opportunity for the Department of Ecology to expand their operations.  This is why they have demanded a lot of cash to grow their agency to “fix” or “address” Hirst.  Meanwhile, if anyone actually pays attention to the bureaucrats who work at the Department of Ecology, they would realize that the Hirst decision is not something they oppose.  The messier and more confusing the better for them.  This is the perfect opportunity to grow their budget.

Meanwhile, as the celebration winds down at Futurewise, Sierra Club, CELP, and the Tribal Casinos for the damaging and cheap victory they won with the Hirst decision, the environmental cartel is able to come back and threaten further litigation against any local government that dares to oppose their agenda.   These threats are taken seriously because the Supreme Court is heavily influenced by Futurewise and their big donors.  No rational person would trust their fate to those judges, so the tendency to cave in is very strong and understandable.

There are politicians in Olympia who genuinely want change, but the solution is murky to most of them.  The halls of Olympia are not filled with elected officials who are experts on water law, and they generally believe what they are told by “experts” who are often the very agencies who have created the confusing and messy circumstances of law and policy.  Politicians know they need to “fix” this problem, particularly if they represent rural constituents.  They are under a lot of pressure to do “something.”

Mitigation schemes, kick it down the road and hope for the best

This is the perfect opening for more special interests to take advantage of the situation.  Knowing that most of the Democratic Caucus in both chambers are happy to destroy the lives of rural people, the real decision making and negotiation is made on the Republican side of the aisle with a few swing Democrats involved for bipartisan flavor.  Since Republicans barely control the state senate, and are only a few votes shy in the House, even a change of heart or stiffening of the spine by a few politicians makes a big difference in the final outcome.  At the same time, Futurewise and the environmental cartel only need to threaten and cower a couple of politicians to create the desired negative impact.

Special interests generally opposed to the extermination of exempt well water rights like farming interests, developers and real estate agents have been very engaged in this process, but each of them have a natural willingness to compromise based on their member’s interests.  Some commercial farming interests see the Hirst decision as an opportunity to profit from the harm inflicted on their neighbors because they can sell some of their excess capacity water rights for big cash.  Generally,  big developers want the ability to negotiate mitigation schemes so that they can build and sell their homes, but they tend to be less concerned about the individual private property impact or the potential cost overhead impact to the average new homeowners.  Real Estate agents understandably want the ability for people to buy and sell homes, and they have tended to side most frequently with the concerns for property rights like Citizens Alliance for Property Rights (CAPR) on these issues.

Since most people impacted by this recent court case are not yet aware of the harm caused by Hirst, the full anger and impact has not yet been felt by the elected officials.  Average citizens are only slowly awakening to how their future has been sold to the highest bidder by Six People in Black Robes.  The lack of awareness about the depth of this complicated decision is helping Futurewise, the Sierra Club, and the Tribes move quickly to consolidate the gains they obtained at the State Supreme Court and move to their next set of agendas – effectuating the need for mitigation schemes, metering all existing private wells, creating water banks (or “trusts”), and ensuring that only the wealthy and politically connected can live rurally.

A slow motion train wreck

Every day a property owner discovers, one family disaster at a time, that their dreams of living independently or more rurally have been destroyed by unaccountable judges, bureaucrats, and special interests.    The wealthy donors to Futurewise and Sierra Club celebrate the harm they have inflicted on rural communities.  Farmers, builders, and municipalities try to seek exemptions or bless their good fortune that the supreme court didn’t destroy them this time – rarely aware that they are next on the target list at some future date with the collusion of a few Black Robes.  And just as rural people have always cautioned when asking for help and understanding in past regulatory takings, the warning is given to urban people; when they are finished ruining our lives and stealing our freedoms, they will come and take yours.  For government agencies and Gang Green, it will never be enough.

Meanwhile our elected officials flounder in confusion, never realizing how their failures are only reducing their importance and significance to the people who worked so hard to elect them to office.  Political impotence is never pretty.  The checks and balances are not working.  A few Black Robes rule Olympia – everyone else is just a supporting character in a tragic play.  Futurewise and other wealthy special interests – the environmental cartel have wisely figured out long ago – if you own the judges then you own the state – everyone else is just background noise and bit players on the stage.  Freedom will continue to die one legal ruling at a time until the people and our elected officials wake up to this stark reality…and stand firm in their belief and willingness to fight for individual liberties and property rights.  Compromise will not work this time...

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OUR CONSTITUTION BEGINS WITH THE PHRASE “WE THE PEOPLE.”  IT WAS THE FOUNDER’S INTENT THAT GOVERNMENT BE CREATED BY THE PEOPLE, TO SERVE THE PEOPLE.  IT WASN’T THEIR INTENTION FOR THE PEOPLE TO SERVE THE GOVERNMENT.  IT WAS ALWAYS INTENDED THAT GOVERNMENT WHICH FAILED TO SERVE THE PEOPLE SHOULD BE “ALTERED OR ABOLISHED.”  UNTIL WE RETURN TO THE FOUNDER’S INTENT, WE REMAIN WE THE GOVERNED…

Referenced Source Documents:

Washington State Supreme Court Decision (including Dissent) Hirst v.  W. Washington Hearings Board – Oct 6, 2016

If link to Supreme Court is down or they hide the case, you can also download it here

HB 1348 – Proposed bill in house which would fix Hirst

HB 1349 – Another proposed bill which would fix Hirst

SB 5239 – Senate bill which did pass Senate only – which would partly, temporarily address Hirst (passed on mostly partisan vote)

Spokane County Public Notice regarding Hirst Decision

Whatcom County temporary response to Hirst Decision

Western Water Law and Policy Reporter (May 2015):  article after Futurewise lost in appeals – interesting reference before Supreme Court Decision

Other Commentary on Hirst Decision:

Hirst Decision by supreme court unleashes the wrath of Futurewise upon property owners

Seattle Times Opinion:  Fix Cout Decision:  Property Without Water is Worthless

Capital Press:  Fallout over Water Ruling Heats up in Washington

The Lens:  Potential “Hirst Fix” passes Washington State Senate

Futurewise Press Release about Hirst

Capital Press:  Washington Supreme Court casts doubt on new wells

Washington Policy Center:  Washington Supreme Court takes the liberty to make a policy decision it should not have made

Other Background articles:

Whatcom County Planning Director hired by City of Bellingham (before he filed lawsuit against Whatcom County)

Gang Green and the Government Staff Infection

Stifling Human Ingenuity