They're betting on brinkmanship to draw attention to their cause: freedom from state and federal controls.
"I am resolved to have our challenge heard on its merits," says Republican county commissioner Earl Marcellus, "and if that takes going to the U.S. Supreme Court, then I'm in favor of that."
But one challenge has already failed. On May 14, the state Supreme Court refused to hear the commissioners' constitutional argument against the state Growth Management Act (GMA). That led Gov. Mike Lowry to order the county to comply with the law by July 31 or face severe sanctions - $1.6 million in withheld state road maintenance aid. To comply, the county must draw up interim plans to protect both agricultural lands and vulnerable habitats for fish and wildlife. Commissioners Marcellus and John Wall, however, remain undeterred. They recently announced that they will ask a federal judge in Seattle to grant an injunction against the governor's sanction threat to give them time to settle their two pending constitutional challenges to GMA.
Controversial from the start
Chelan is not the only county having problems with the Growth Management Act, which the state legislature passed in 1990 to control the impacts of urban sprawl on agricultural lands and fish and wildlife habitat. Under the law, the state gave counties four years to produce interim growth plans (HCN, 9/5/94). To help counties meet this goal, it has doled out some $40 million in grants, of which Chelan County has already received $500,000. Even with the aid, though, counties have complained they have no staff to do the planning. Fewer than half the 29 counties the GMA covers have acceptable interim plans in place.
But only Chelan County, an important apple-growing region, has openly defied the law. Two of its challenges are pending in county and federal district courts.
The county's main grievance is with the regional boards appointed by the governor and empowered to invalidate local planning laws. Last January, the Eastern Washington Growth Hearing Board did just that with Chelan County's interim plan, charging that it did not go far enough to protect agricultural lands and critical areas.
Commissioners Marcellus and Wall charge that the regional growth boards threaten local government sovereignty, violating Article I of the state constitution - which holds that "governments derive their just powers from the consent of the governed' - and the U.S. Constitution's separation of powers.
"If policy-setting power is removed from the hands of elected officials," the two commissioners wrote in a Jan. 23 letter to Gov. Lowry, "then the people lose control of their government."
Richard Ford, a Seattle land-use attorney, believes the county has little hope of winning a broad constitutional challenge of state powers to regulate local government growth-management plans. "They cannot constitutionally ignore the state," says Ford, who headed the governor's Growth Strategies Commission which advised the legislature on developing the GMA. He notes that Washington counties were constitutionally created as state government entities, and the legislature has broad powers to set a legal framework that local governments must follow.
"They (the commissioners) are in extremely difficult waters on the broad validity of the GMA," Ford says. "Article I is a state power and no county or town can defy state law." But on the issue of separation of powers doctrine, which reserves budgetary power for the state legislature, the commissioners may have an argument, Ford adds. "Can the legislature delegate to the governor the authority to withhold tax funds? That is another matter," he says.
Two mavericks on a mission
Chelan County's challenge can be partly understood by looking at its land. The county's 2,900 square miles straddle the Columbia River, stretching from the forested foothills of the eastern Cascade Mountains into the semi-arid sagebrush steppe of the Columbia Basin. Some 88 percent of the land is managed by federal and state agencies.
The remaining private lands - still predominantly apple orchards - have become a hot commodity. Over the past two decades, a steady flow of newcomers has chipped away at the agricultural lands. Chelan County's population has doubled to 60,000 since 1970 and is projected to hit 80,000 by 2010. New construction tops $100 million a year, triple the rate of four years ago.
With these forces at work, land use planning was bound to be contentious. But it took two maverick commissioners to create a crisis. Wall, 59, is an apple-orchard owner and former car dealer who has made a 16-year political career of fighting growth-management laws, while Marcellus, a career logger and forester, is just half-way through his first four-year term.
"Our issue is local control, local government by local elected people," says Wall. He has publicly encouraged private landowners to bypass planning regulations, and orchard owners, he adds, should have the option of converting land to other uses, such as housing developments.
Wall's pugnacity has made life difficult for county planners. Two years ago, the county planning director resigned after 15 years on the job. His replacement, who lasted six months, quit just before Wall and Marcellus symbolically threw out the county's interim growth plan. The newest planning director, John Harrington, says things are going smoothly. He is pushing ahead with a new interim plan even as the commissioners push their legal challenge.
Marcellus, 52, relishes the intellectual argument and limelight of controversy. Armed with a new master's degree from the Yale School of Forestry, he arrived in Washington 30 years ago from his native upstate New York, but did not become politically active until three years ago, when a state Department of Ecology official, inspecting his logging operation, charged him with leaving wood debris in a stream near a beaver dam.
Marcellus eventually convinced officials that the debris had been left by beavers. The incident, however, revealed to him how "government is out of touch and out of control. We need a major issue that we the people can rally around, and this (the GMA) is it."
Marcellus and Wall are not saying yet how they will respond to the governor's sanctions, but their rhetoric is defiant. "We will take off our 16-ounce boxing gloves, and put on our eight-ouncers," says Marcellus. "You can hit harder with those."
They have positioned themselves against moderate elements of the county Republican Party, including Tom Green, the county's third and most senior commissioner, and the mayors of the county's largest cities, who are upset that the county is not providing more planning aid.
"I don't mind checking the constitutionality of the law," says Green, 52, a retired reserve Army colonel and former deputy sheriff. "But to stop planning? I have a difficult time with that."
The 1,000 Friends of Washington, an environmental group fighting the county's suit with the help of the Sierra Club Legal Defense Fund, praised the governor's threat of sanctions. Dick Rieman, a Chelan County orchardist and 1,000 Friends activist, says the GMA is critical to preserving the quality of life. "It's not because we are growing," he says, "but how we are growing and producing this huge amount of rural sprawl." Subdivisions are pushing further into rural lands, he says, creating demands for more roads, hospitals and schools. "The developer does not pay for that, we the citizens pay for it," Rieman says.
The commissioners have asked the U.S. District Court in Seattle to hear their constitutional arguments, but a hearing date has not been set. And a Chelan County Superior Court judge is expected to rule this month on their motion to dismiss the Growth Hearings Board's January invalidation of the county interim plan.
Meanwhile, after 20 years on the county commission, Tom Green plans to retire this year. Wall's term is up as well, but he will run again in a September election that promises to be one of the noisiest in Chelan County history. For more information, contact the Chelan County commissioners at 509/664-5215 or 1,000 Friends of Washington at 206/343-0681
* Peter Chilson
The writer works in Seattle, Washington.
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