Appeal filed in smelter lawsuit

NEWPORT — Foes of the proposed silicon smelter are appealing an adverse ruling involving the sale of public land to site the facility.

Counsel for Responsible Growth *NE Washington, Citizens Against the Newport Silicon Smelter and Pend Oreille County landowners argued the Pend Oreille Public Utility District acted beyond its legal authority when it sold one of its parcels to Canada’s Hi-Test Sands, a Canadian company now known as PacWest Silicon, in 2017.

The attorneys maintained the plaintiffs were deprived of being part of the proper process for divesting the public property.

Attorneys for the groups and landowners further argued that the land sale exposes them to future harmful environmental effects.

Attorneys for PacWest, the county and the PUD, countered that the plaintiffs lacked standing to sue because they have not alleged any substantial harm beyond making conclusory statements, according to court documents.

Spokane Superior Court Judge Julie McKay heard oral arguments in the matter in January and rendered a letter order on March 22, court records show.

In it, McKay ruled that general dissatisfaction with the sale and purchase of the parcel was insufficient to show an injury in fact. She further ruled that a majority of the plaintiffs declarations speak to injuries or impacts which have not occurred at this time as the smelter has not been permitted.

However, McKay denied a defense motion for summary judgment on the issue of standing due to the public importance doctrine.

“The district distributes electricity to 8,500 customers and the development of a smelter would impact commerce, finance, labor, industry or agriculture generally. The controversy is of serious public importance, especially to the Pend Oreille community,” McKay wrote.

As to the matter of ultra vires — Latin for beyond the powers — McKay held that the land sale was discussed at a public meeting, although a PUD resolution declaring it surplus did materialize until well after the sale.

McKay called the arrangement “unusual or irregular,” but not beyond the PUD’s powers.

“The district has the authority to purchase property, create easements, declare property to be surplus and sell surplus property. While all of this was not done following the procedure used for the prior parcels found to be surplus, I cannot say the district acted outside its authority and therefore its acts were ultra vires,” McKay said in the four-page ruling.

McKay’s decision was firmed up in an April 1 ruling, prompting the plaintiffs to seek redress through Washington’s Division III Court of Appeals April 10.

In other developments, the Pend Oreille County Planning Commission voted 4-2 on April 9 not to advance a comprehensive land use plan amendment involving public lands. Opponents of the smelter contend the code amendment is meant to facilitate permit approval of the smelter, an accusation county officials have denied. The majority of the board concluded the code change would have created too many inconsistencies within its land use code.

The smelter proposal continues to divide communities in eastern Washington and northern Idaho. State Route 20, which follows the Pend Oreille River, is dotted both with signs in opposition and support for the project. Supporters contend it bodes well for economic development and jobs in the county, while opponents maintain it will cast a devastating pall over the environment and the public.

Keith Kinnaird can be reached by email at kkinnaird@bonnercountydailybee.com and follow him on Twitter @KeithDailyBee.