Clark County commissioners were in a fightin’ mood on Wednesday, choosing to battle both the state and federal government in court.
After an hour-long executive session with county attorneys, the commissioners voted 3-0 in a regularly scheduled meeting to appeal the federal decision allowing the Cowlitz Indian Tribe to establish a reservation near La Center and build a casino on it.
Commissioners Tom Mielke, Marc Boldt and Steve Stuart also unanimously voted to appeal last week’s ruling by the state Pollution Control Hearings Board, which found the county’s development standards in violation of state and federal laws designed to protect clean water.
The Cowlitz appeal will be filed in U.S. District Court in Washington, D.C., while the stormwater appeal will be filed in Clark County Superior Court.
Chief Civil Deputy Prosecutor Bronson Potter said the county’s appeal of the Dec. 23 decision by the Bureau of Indian Affairs will contend, among other things, that the BIA’s ruling violates Carcieri v. Salazar, a 2009 U.S. Supreme Court decision.
The decision restricted the federal government’s ability to take land into trust for tribes not under federal jurisdiction prior to 1934.
The Cowlitz Tribe was federally recognized in 2000.
Assistant Secretary of Bureau of Indian Affairs Larry Echo Hawk concluded the tribe was under federal jurisdiction from at least 1855. In granting the tribe’s 2002 application to take 152 acres into trust west of La Center, he said he relied on the 1934 Indian Reorganization Act.
“For purposes of our decision here, I need not reach the question of the precise meaning of ‘reorganized Indian tribe’ as used in the (Indian Reorganization Act), nor need I ascertain whether the Cowlitz Tribe was recognized by the federal government in the formal sense in 1934, in order to determine whether land may be acquired in trust for the Cowlitz Tribe,” Echo Hawk wrote in the 118-page decision.
According to plans submitted to the federal government, the tribe wants to build a $510 million casino-hotel complex on the site, about a 30-minute drive from downtown Portland.
After the Dec. 23 decision was announced, tribal Chairman William Iyall said the project would be built in phases, starting with a two-story casino that would have a134,150-square-foot gaming floor.
Iyall said Wednesday that the county’s decision to fight the BIA does not come as a surprise.
He said he’s confident the federal ruling will withstand the county’s legal challenge.
The challenge could further stall the project, however. Construction is already anticipated to be at least two years away as the developers revisit plans — which were made before the economy tanked — and secure financing.
According to the BIA’s decision, the project would create 4,011 jobs over the entire construction period, with an average annual wage of $46,200. At completion, the hotel and casino is projected to have 3,151 employees with an average wage of $28,000.
Development issue
As for challenging the state Pollution Control Hearings Board, Potter said the county will argue the board made legal and factual errors in its 2-1 ruling.
The board rejected the county’s plan for managing stormwater runoff, which had been developed in a compromise with the Department of Ecology.
The county’s plan was challenged by the Rosemere Neighborhood Association, Columbia Riverkeeper and the Northwest Environmental Defense Center, represented by Earthjustice.
Potter said the board didn’t give deference to the Department of Ecology on some of the technical aspects of the county’s plan.
Attorney Jan Hasselman from Earthjustice said Wednesday that the state board found the county’s plan unlawful in at least five areas.
“In order to successfully appeal, they would need to overturn the board on every one of those issues. We think that instead of spending another year in court and continuing to implement a program that violates state and federal law, Clark County should be looking for solutions that protect clean water and the people that rely on it.”
The state requires that newly developed sites drain as slowly as they did prior to Euro-American settlement.
Under the county’s plan, the developer has to ensure that on-site flow conditions do not change, and the county will make up the difference between that and the presettlement standard by restoring flow conditions elsewhere in the same watershed.
Kevin Gray, director of the county’s Department of Environmental Services, said after the ruling last week that this winter alone the county will be planting more than 60 acres of native vegetation, which would be more than the state would require if the county used the Department of Ecology’s default standard.
