PORT ANGELES — A Clallam County Superior Court judge is considering arguments in a Land Use Petition Act review of a county commissioners May 2010 ruling that said a rock quarry above the Elwha River violates county code because it is in an erosion zone.
Judge George L. Wood gave no indication of when he would make a ruling on the appeal brought forth by Little River Quarry owners Mike and Susan Shaw and George and Patricia Lane.
“I’m going to spend a lot of time looking at all this,” Wood said after hearing the case Jan. 26.
“I appreciate your arguments. They’re well-taken, and I’ll get to it as soon as I can.”
County commissioners upheld a June 2009 ruling of Clallam County Hearing Examiner Pro Tem Lauren Erickson that said the quarry poses an erosion hazard area because it is on a slope greater than 40 percent and consists of unconsolidated rock.
The Board of County Commissioners initially dismissed the appeal, but Superior Court sent it back to the quasi-judicial board for a ruling.
Superior Court was the next step on the appellate track.
“Once the Superior Court rules on this, the case can be appealed to the State appellate court to be reviewed ‘de novo’ or anew, with no presumption of correctness or deference to the Superior Court ruling,” Clallam County Chief Civil Deputy Prosecuting Attorney Douglas Jensen wrote in an e-mail.
“Judge Wood indicated at an earlier hearing that because he will be unavailable during a portion of February that a decision may not issue until March.”
Erickson’s 2009 ruling upheld an earlier recommendation of the Clallam County Department of Community Development.
A permit was granted to the quarry owners in 2007 under the Forest Practices Act to allow exploratory mining on the 40-acre parcel owned by the Shaws and Lanes off Olympic Hot Springs Road just outside the boundary of Olympic National Park.
Attorneys for both sides presented complex legal arguments on their interpretations of county code in the Jan. 26 hearing.
Craig Miller, one of the attorneys representing the appellants, cited inconsistencies in the code.
“Our key argument was that the county did not administer its ordinance as it is written,” Miller said after the hearing.
“Our point is that it requires a site-specific determination based on the best available science.”
Critical areas law
Jensen and Toby Thaler, the attorney who represents the Upper Elwha River Conservation Committee, a group of citizens who oppose the quarry, have argued that it falls under a critical areas ordinance.
“The county alleged that appellants were asking the Court to interpret a portion of the County’s critical areas ordinance relating to ‘erosion hazard area’ to exclude their quarry, and for the Court to rely upon the interpretation of County code of appellants’ in so doing,” Jensen wrote.
“Appellants had alleged that the examiner should have and the court is allowed to determine what is the ‘best available science’ for this particular permit review and at this particular time regarding erosion hazard areas, in overruling the Department’s and Examiner’s interpretation of the regulations.”
By contrast, the county said best-available science can be considered and applied only when drafting erosion hazard regulations, Jensen said.
Furthermore, Jensen said, the appellant’s best-available-science approach was barred under the Growth Management Act and local regulations.
“The county argued that the only real issue before the court was whether this site met the county’s criteria for designation as an erosion hazard area,” Jensen wrote.
The Land Use Petition Act review is a closed-record appeal, meaning no new evidence or information can be considered.
The state Department of Natural Resources informed the Shaws and Lanes in March 2008 that they could no longer operate the quarry under the Forest Practices Act. The quarry operated without county approval in 2007 and 2008.
The quarry was first proposed in 1998.
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Reporter Rob Ollikainen can be reached at 360-417-3537 or at rob.ollikainen@peninsuladailynews.com.
