The Washington Court of Appeals this week handed a win to opponents of gravel mining in rural northwestern Clark County.
In a unanimous decision, the court upheld a 2023 state Growth Management Hearings Board ruling.
“The record supports its conclusion that the county’s threshold determination was clearly erroneous. We affirm the board’s final decision and order invalidating the ordinance,” Judge Ian Birk wrote.
The yearslong legal battle began when Granite Construction submitted a request to Clark County in early 2021 seeking a mining zoning overlay on 330 acres in the Chelatchie Bluff area.
In December 2021, the Clark County Council passed an ordinance approving Granite Construction’s request for a zoning overlay to permit surface mining. Granite Construction is leasing the land from BRP LLC, a subsidiary of Texas-based Natural Resource Partners.
Environmental group Friends of Clark County appealed the council’s decision to the state Growth Management Hearings Board, which ruled in March 2023 that the county “improperly chose to defer a more in-depth review of impacts of the surface mining overlay until the project stage, despite the higher level of detail provided by the applicant.”
At the heart of the dispute is when a full environmental analysis is required. The county council, as well as Granite Construction, said that analysis should come when a land use permit, not a zoning application, is requested. The hearings board disagreed and said the analysis should be done “at the earliest possible time.”
“Washington case law is clear that an (Environmental Impact Statement) is required if, based on the totality of the circumstances, future development is probable following an action and if that development will have a significant adverse effect upon the environment,” Birk said in the appellate court ruling.
Despite the hearings board ruling, the council decided to leave the ordinance and zoning overlay in place. The county, along with Granite Construction and BRP LLC, then appealed the decision to the Court of Appeals. Oral arguments were heard in January.
“Today’s unanimous decision vindicates every person in Clark County and their right to know what the environmental consequences might be before our elected officials contemplate a decision that is reasonably likely to significantly harm our county’s sensitive habitats and lands,” Friends of Clark County attorney David McDonald said Tuesday.
According to the state, the county council’s decision in October to leave the ordinance in place put the county out of compliance with the Growth Management Act, leaving it ineligible for some grants and low-interest loans.
“There is $2.9 million that we’ve lost and that’s a direct loss because we’re not in compliance,” Councilor Sue Marshall, who voted against leaving the ordinance in effect, said at an Oct. 22 meeting. “(What’s) alarming to me is that we’re not applying for grants because we might not be eligible. We don’t know what additional millions we may be losing.”
With the Court of Appeals ruling, the county council will now have to decide whether to appeal the ruling to the state Supreme Court, repeal the ordinance or take some other action.
“The county just received the decision. This will be discussed with the council soon,” County Manager Kathleen Otto said in an email Tuesday. Meanwhile, the environmentalists who challenged the mining overlay celebrated the ruling.
“Friends of Clark County’s tenacity over the past three years serves as a reminder that people with money and power should, to paraphrase Margaret Mead, never underestimate the power of a small group of thoughtful, committed people to achieve positive change,” McDonald said.
