Newport smelter opponents appeal land sale decision

Lawyer: ‘A win here will invalidate the sale of the property to PacWest’

By Zach Hagadone
Reader Staff

Legal wrangling over the controversial silicon smelter plant proposed in Newport, Wash. is entering another phase, as opponents filed an appeal July 24 with the Division III Court of Appeals in Washington state. 

Filed on behalf of eight Newport residents and the organizations Responsible Growth*NE Washington and Citizens Against the Newport Silicon Smelter, the brief contends that the local Public Utility District reached beyond its legal authority when it sold four parcels of public land to Canada-based smelter developer PacWest in the fall of 2017.

The appeal asks that a prior Spokane Superior Court ruling upholding the transaction — though it was “unusual or irregular” — be overturned and the sale voided.

Appellants argue that Washington public utility districts are prohibited by law from selling land unless it is first declared surplus and cannot acquire land unless it is used “strictly for the PUD purposes” of improving the delivery of public utility services. 

According to the brief, the PUD purchased one parcel from Pend Oreille County and offered it for sale to PacWest before designating it as surplus.

When confronted in April 2018 by the appellants with allegations that the property transfer had been performed in violation of Washington law, the brief alleges that the PUD retroactively declared the contentious parcel surplus — “nearly eight months after the sale was already completed and the deed recorded in PacWest’s name.”

The appeal argues the PUD violated the spirit, if not the letter, of the law by working to push through the land sale to PacWest without following the statutory steps to ensure that it went before the public and served the purposes of the utility district and its stakeholders.

“Public utility districts were created to serve the people and the public interest, not private companies,” according to the appeal.

PUD spokesperson Kenna Tornow wrote in an email to the Sandpoint Reader, that, “The PUD’s authority to buy and sell property was affirmed by the Superior Court. The PUD will respond to the plaintiff’s appeal in due course, but we feel confident that the Superior Court’s reasoning was sound and will be upheld.”

Rick K. Eichstaedt, the Spokane-based lawyer representing the appellants, wrote to the Reader that, “we are confident in this appeal.”

The PUD, Pend Oreille County and PacWest have a month to file a response, after which appellants have another month to reply. Eichstaedt expects oral argument to happen about 90 days after that with a decision coming three to six months later.

“We are still a long way off from a decision,” he wrote, adding that a successful appeal would alter PacWest’s plans in Pend Oreille County:

“A win here will invalidate the sale of the property to PacWest. This might create an opportunity to finally end its effort in Newport. If not, if we win, the other side could appeal to the State Supreme Court or try to correct the errors in the sale and try again.” 

PacWest CEO Jayson Tymko couldn’t comment on specifics but said the legal back and forth has resulted in alterations to the company’s timelines.

“Right now, we’re just in a holding pattern,” he said. “But we need to have our zoning complete.” 

That part is two years behind, he added. 

“It’s yet another delay tactic,” Tymko said of the recent appeal. “And we’re not concerned about appeals. … We expected it.”

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