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Gravel yard warns Snohomish County school to stop speaking out — or else

By Daniel Beekman, The Seattle Times
Published: January 31, 2024, 7:39am

SEATTLE — A company that’s come under scrutiny for operating a gravel yard next to an elementary school in unincorporated Snohomish County sent the school’s principal a letter this month warning her and her teachers to stop making public complaints about noise and dust from the yard — or else.

The Mukilteo School District hasn’t replied to the cease-and-desist letter from an attorney for Mountain Loop Mine, which lacks permits for the yard by Fairmount Elementary School. But the head of the local teachers union called the letter “shocking” and several legal experts questioned the approach.

“This kind of letter is inappropriate,” said Hugh Spitzer, a University of Washington law professor who teaches legal ethics and professional responsibility. “It’s a weird letter, just trying to threaten the district.”

Claudia Newman, an experienced Seattle attorney specializing in land use, described the company’s step as unusual and Rick Aramburu, another longtime attorney, pointed to a state law that gives legal immunity in most cases to people who make complaints to government agencies.

“Even if the complaint is wrong, and that’s kind of the key,” said Aramburu, based in Seattle. “It’s a matter of protecting public expression.”

Neither the attorney who sent the cease-and-desist letter nor Mountain Loop Mine’s owner, OMA Construction, answered requests for comment Tuesday.

Principal Bente Klatt and teachers have spoken out in recent weeks about the gravel yard the county has allowed to operate since last school year without permits and environmental review. They say “loud bangs” from the Everett Aggregate Yard’s construction vehicles, dust from huge piles of rocks and sand and exhaust from trucks there are disrupting learning and potentially contributing to health problems like coughing, bloody noses and headaches.

Some Fairmount classrooms and portables are located about 50 feet away from the yard, separated from the heavy work by a driveway and a chain-link fence. Teachers say they’ve kept their windows closed during hot weather to block noise and dust, even though the school lacks air conditioning. Most students qualify for free lunch and half speak a language other than English at home, Klatt has noted, suggesting another school might get more help.

The yard’s manager has pushed back against the complaints in news interviews, saying the site in question is zoned for industrial activity and insisting that any negative effects on the school are being mitigated.

But the Jan. 16 letter from Mountain Loop Mine’s attorney took a more aggressive tack, raising the possibility of legal action against the school.

“It has come to Mountain Loop Mine’s attention that you and other employees of Fairmount Elementary School have made and continue to make disparaging and inaccurate statements to public agencies, the public and the press regarding Mountain Loop Mine’s operations,” attorney Lindsay Watkins from Ahlers Cressman & Sleight PLLC wrote in the letter that The Seattle Times obtained from the school district through a public records request.

“While Mountain Loop Mine shares your desire to ensure students and staff are in a conducive environment, Mountain Loop Mine’s activities are not infringing or impacting the students and staff,” Watkins added. “There is no basis to the misrepresentations and inaccurate narrative Fairmount Elementary School staff is pushing in the press and such statements and actions are interfering with Mountain Loop Mine’s business operations.”

The school’s complaints to local government agencies have led to multiple inspections at the yard, Watkins wrote. Although the agencies haven’t issued any citations, the complaints have continued “with the apparent goal of harassing and interfering with Mountain Loop Mine’s business,” she wrote, accusing the school of making “inaccurate and defamatory statements.”

“Mountain Loop Mine welcomes an opportunity to discuss how best to move forward as amicable neighbors. Nevertheless, Mountain Loop Mine demands that you and other school employees” stop trying to interfere with the business, she concluded, writing, “Should we determine that you continue such actions, Mountain Loop Mine will have no choice but to consider all available legal recourse against you and Fairmount Elementary School.”

Diane Bradford, a spokesperson for the Mukilteo School District, said the district has yet to formally respond to the cease-and-desist letter.

“We want to be respectful of their business and as a neighbor to the school, but our priority is the health and safety of our students and staff as well as student learning,” Bradford wrote in an email, saying district staff recently met with county staff to discuss the gravel yard. “We’re hopeful that the county will provide some solutions to our concerns.”

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County officials received an illegal-business complaint about the yard and issued a violation notice last May but have been giving Mountain Loop Mine time to apply for permits rather than taking enforcement action, saying they want to balance health and safety with business considerations. Most recently, they’ve given the company a mid-February deadline to complete various studies.

Tory Kartchner, president of the Mukilteo Education Association, said he was surprised to see the contents of the Mountain Loop Mine letter.

“To me, it’s shocking,” he said. “They don’t have permits, and we’re pointing out that this operation is having significant impacts on the school, and their response is to tell a bunch of elementary school teachers to shut up.”

State law doesn’t necessarily protect people making complaints to government agencies when their complaints are defamatory or involve a malicious intent to harm, Newman said. But such exceptions are narrow, and threats usually aren’t effective in resolving land use disputes, she said.

“It is possible for people to defame others,” added Spitzer from the UW, mentioning a $83 million jury verdict against ex-President Donald Trump in a defamation case last week. “But they have to work really hard to do it.”

Kartchner said the teachers just want reasonable conditions for learning.

“These are people who care a lot about their work and that’s what they’re complaining about. They can’t do their work,” the union leader said.

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