Judgment sought in smelter court battle

By Cameron Rasmusson
Reader Staff

Opponents of the proposed Newport smelter are seeking speedy resolution to a court battle over the legality of land sale that supplied property for the controversial facility.

A coalition of organizations and individuals are requesting summary judgment in their favor in a court case alleging that Pend Oreille Public Utility District failed to follow legal public procedures in a land sale to HiTest Sands, now known as PacWest. The plaintiffs, which include Responsible Growth *NE Washington, Citizens Against Newport Silicon Smelter, Theodore and Phyllis Kardos, Denise Teeples, Gretchen Koenig, Sheryl Miller, James and Rosemary Chandler and Pamela Luby, request that the land sale be voided. A showdown between the plaintiffs and PUD is set for Jan. 11 when Spokane Superior Court will hold a hearing.

The plaintiff’s memorandum argues that PUD acted outside its statutory authority when it sold the land, which it acquired from Pend Oreille County, to PacWest. It alleges that PUD acquired the land with the specific purpose of selling it to the company when it only has authority to buy and sell land for the purposes of generating energy.

“The purpose of PUD is to provide its customers with electrical service, not engage in land transactions for the benefit of private corporations,” the memorandum states.

Part of the controversy over the land sale hinges on Resolution 1399, which was passed by the PUD Board of Commissioners to declare the property surplus and authorize the sale. But plaintiffs allege that the transaction had already taken place before any resolution had passed, making it procedurally incorrect and therefore invalid.

Plaintiffs maintain that they have standing to challenge the land sale because they, as customers of PUD, were denied an opportunity to voice their opinion of the sale. According to the request for summary judgment, “the PUD is required by law to follow certain procedures when it sells land. The procedures require public involvement whenever public land is sold, either by vote or by resolution and public hearing. When the PUD ignored its obligations to perform either of these duties, it harmed Plaintiffs by denying their rights to be involved in the process.”

The memorandum also alleges that the plaintiffs were harmed due the potential environmental hazards of the proposed silicon smelter. That reflects the broader concerns about the smelter across the region, including in North Idaho. Residents worry it will damage air and water quality with pollutants, leading to diminished property values, health problems and reduced tourism.

Even if the plaintiffs had no conventional standing in the issue, the memorandum argues that the smelter issue is of such significant importance, with the potential to impact “commerce, finance, labor, industry or agriculture,” that legal precedent allows a hearing in such matters.

PUD, meanwhile, argues that it acted for the benefit of its customers by selling the land, saying it secured a price higher than its appraised value. Their argument also hinges on past court cases which have allowed public agencies a degree of leniency when procedural errors occur, as well as broader interpretation of its mandate to act in the public interest.

With both sides requesting summary judgment, they will wait until the Jan. 11 hearing to learn whether the court favors PUD or the plaintiffs.