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HomeMy WebLinkAboutCommittee of the Whole June 1 19991 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 WHATCOM COUNTY COUNCIL Committee Of The Whole June 1, 1999 The meeting was called to order at 6:15 p.m. by Council Chair Marlene Dawson in the Council Committee Room, 311 Grand Avenue, Bellingham, Washington. Also Present: Absent: Kathy Sutter None L. Ward Nelson Connie Hoag Barbara Brenner Tom Brown Robert Imhof 1. DISCUSSION WITH SENIOR DEPUTY PROSECUTOR DANIEL GIBSON REGARDING KITTITAS COUNTY'S AMICUS FILING STATUS (AB99- 018) Dawson stated that she put this item on the agenda because she felt the issues are similar to County interests. The Pacific Legal Foundation is interested in getting other counties to support the issue. She asked for a legal opinion from Dan Gibson, Senior Civil Deputy Prosecutor. This is a partnership. It is not like the Growth Management Act, which is mandatory. The County would be working with the federal government. Dan Gibson, Senior Civil Deputy Prosecutor, stated that this lawsuit was characterized as a mini - lawsuit, which he disagreed. There are some problems with the suit, because of the approach that the National Marine Fisheries Service (NMFS) has done such a terrible job that there isn't a problem. NMFS has failed to do its job to the extent that there should not be a listing. That is a difficult case to make. They are saying that harvest levels have been mismanaged and there has been too much by- catch. At the same time, they are compelled to say there isn't a problem so there shouldn't a listing. The conjunction of the two positions is odd. Legally, Jim Johnston, formerly of the Attorney General's (AG's) office, laid out a number of theories that may serve his clients well. They will carry the lawsuit forward. Regarding the Amicus status, other interested parties can seek to be designated as friends of the court, so they can make their arguments as well. Apparently, the Pacific Legal Foundation is looking for forces to ride on this process. In that context, Whatcom County has probably been approached. Whatever needs to be done is being done by others and does not serve Whatcom County's purposes. The lawsuit contains a number of positions that are offensive. It assumes an answer on the ability of the federal government to control Indian fishing. To the extent that the lawsuit assumes a simple answer, and the County is working with the tribes on legislative issues, they do not promote a working relationship by assuming an easy answer to a difficult question. Committee of the Whole, 6/1/99, Page 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 Dawson stated that she agreed with the information about the tribal fish. There are things in the suit that the tribes support. The predators also need to be addressed. Some people have said to not get involved because it would harm the working relationship. The tribes have said that the predators need to be addressed. They also need to address the ocean fishing. They may not support taking their nets out of the river. Everyone is in it together and has to abide by the federal regulations. Brenner stated that if the County is thinking about doing anything, they should discuss it first with the tribes. No one should be blind- sided. She has not seen the information regarding the lawsuit. Dawson questioned whether they would want to schedule someone from NMFS, the Tribes, and the Pacific Legal Foundation at the next Committee of the Whole to have a roundtable discussion. Hoag stated that they will not be able to talk together, but may be able to separately. Gibson stated that they should not be choosing sides, especially against the tribes, whom they have to work with. Brown stated that he supports this. Many things that the Council members have felt are a problem have been mentioned in the lawsuit. Letting someone else do battle on the issues, without taking part, is not his style. All of the information is the majority of the problem with the salmon. There has been no problem getting salmon until the 1960's. All of the land disturbances that have taken place in the early part of the County's development are atrocious compared to what goes on today. The citizens of the County should not have to take the brunt of the problem. Unless the County participates in the suit to force the federal government to live up to their responsibilities, it won't happen. They will damage the local citizens by inaction. Hoag stated that she would be happy to see the lawsuit filed. It raises issues that are being overlooked. At the same time, it is not the same as Whatcom County suing. She agreed with the issues that were brought up, but not the end logic that there shouldn't be a listing. She can see a lot of disadvantages to filing a suit. A lot of the work with the federal government's regulations is subject to interpretation. If they want federal flexibility when applying regulations, they need to have a good relationship. She questioned the advantage for the citizen if the County were to join the suit. Gibson stated that, legally, there is no difference. The Pacific Legal Foundation will make the same arguments for Kittitas that they will make for Whatcom. He did not expect the judges in Washington D.C. to count noses. Presumably, they make their decisions based upon the merits of the case. Some people may see it differently, and believe that the legal process is more political. He disagreed. Imhof stated that there are 39 counties in the State, and no one has joined so far. That should be an eye- opener. There are very few positives that would come out of it. There are more negatives. He agreed with Gibson that it will be Committee of the Whole, 6/1/99, Page 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 argued whether Whatcom County is there or not. Whatcom County has other issues to deal with. Dawson questioned whether he would be supportive of having anyone come in to discuss it. Imhof stated that he would not. Sutter questioned for what decision they are looking. Gibson stated that the Pacific Legal Foundation is looking for a Declaratory Judgement and Injunctive Relief. They want the listing lifted and NMFS to be directed to do a number of other things. Sutter stated that she has a problem that the lawsuit says the listing is erroneous. She was not sure that it is erroneous. The conclusion they drew is not one that going is to be drawn by the courts. She would like to have answers to all the questions that the lawsuit asks, but wondered whether they have to go to court to get those answers. She didn't like to be forced to do things. They will not get willing cooperation from NMFS or the federal government if they are going to be forced. She questioned whether there are more effective and less costly ways to get those answers from NMFS. She would not be supportive of having someone address the Council on this issue. Brenner stated that she liked the information that was brought up, but did not agree that the fish were not in danger. She wanted the federal government to pay for a lot of the expenses and expand what is covered. She wanted to work toward getting issues resolved with federal funding. If the federal government dumps the entire cost on the County, then she would not have a problem in the future joining a lawsuit if she felt they are not getting anywhere. Dawson stated that there is a consensus to postpone going further. Brown stated that he will be writing a letter as a Council member supporting the lawsuit. 2. DISCUSSION REGARDING THE COUNCIL'S LETTER WRITING POLICY (AB99 -171A) Dawson stated that this item was brought forward by Council Member Hoag. If an issue is time - sensitive, she proposed that a supermajority send the letter without it going before the Council at a Council meeting. She would also like copies of the correspondence distributed to the other Council members. Hoag stated that her suggestions are listed on Council packet page 244. Imhof questioned why she wants approval by a supermajority. Hoag stated that it would not be going through the public process. Imhof stated that the public process is to bring a letter before the Council for a vote. Committee of the Whole, 6/1/99, Page 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 Hoag stated that, if a letter does not go through the public process, then at least five Council members should support it. Dawson stated that most of the letters that are time - sensitive are regarding legislative issues. Imhof stated that it would be tough to get in touch with five people on a time - sensitive deadline. Hoag stated that the attempt should be made to contact all Council members because one might know critical information about an issue that the others do not. Dana Brown - Davis, Clerk of the Council, stated that the Council member writing the letter should make the attempt to contact all the other Council members because staff can't explain the issue. The committee concurred. Hoag stated that the reason for the supermajority is that it is easy to make controversial decisions when no one is looking. That isn't appropriate. If they are not doing something in a public forum, then they need to ensure that the Council is really behind the issue. Getting four votes on the floor is different than getting four votes behind closed doors. Brenner stated that she did not mind it being a regular majority, as long as it was announced at the next regular Council meeting. She was more concerned about whether something was time critical. Brown -Davis agreed that it go before the Council at the next regular meeting. The committee agreed that approval is only needed by a majority, and that the letter would be announced at the next regular Council meeting. policy. Hoag moved to recommend that the Council adopt the proposal as a new Motion carried unanimously. OTHER BUSINESS Dana Brown - Davis, Clerk of the Council, stated that there was a request by a Council member to change the minutes format to reflect the order of business rather than the order items are scheduled. Imhof asked what the pros and cons are. Brenner stated that it is more understandable if someone wants to go through the meeting and see what happened. It is also easier for the Chair to recall the events as they happened. Committee of the Whole, 6/1/99, Page 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 The committee concurred. ADJOURN The meeting adjourned at approximately 7:00 p.m. Jill Nixon, Minutes Transcription These minutes were approved by Council on July 13 , 1999. ATTEST: Dana Brown - Davis, Council Clerk WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON Marlene Dawson, Council Chair Committee of the Whole, 6/1/99, Page 5