Puget Sound Partnership Suit

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR THURSTON COUNTY _____________________________________________________________________________ _ _____________________________________________________________________________ _ ARTHUR WEST

) plaintiff ) ) No. 08-2-02750-1 vs. ) ) ) PLAINTIFF’S ORIGINAL PUGET SOUND PARTNERSHIP, ) COMPLAINT AND PETITION SHORELINES HEARING BOARD, ) FOR CERTIORARI AND DEPARTMENT OF ECOLOGY. ) RCW 34.05 REVIEW STATE OF WASHINGTON, ) PORT OF OLYMPIA ) CITY OF OLYMPIA ) defendants ) ____________________________________)_________________________________________ I INTRODUCTION 1.1 This is an action for judicial review of the State Environmental Policy Act (SEPA) Determination of Non Significance (DNS) issued November 6, 2008, for the Puget Sound Partnership’s (PSP) draft Action Plan, as well as appeal of the Model Toxic Control Act (MTCA) orders and DNS’s issued for agreed MTCA interim cleanups of two of the underlying actions included in the Action Plan currently underway at the Port of Olympia, the East Bay Redevelopment and Pilot Berth Dredging project, which are actually development projects, not 1 PLAINTIFF’S Arthur West ORIGINAL [email protected] State Ave NE # 1497 COMPLAINT Olympia, Washington, 98501

120

“cleanup” actions. Plaintiff also seeks judicial review under RCW 34.05 of the final ruling of the SHB on the Shoreline Substantial Development Permit for the East Bay Redevelopment. 1.2 In addition, plaintiff seeks a declaration that the Bonds issued by the Port of Olympia to finance the “Deep Water” Dredging and East Bay (MTCA) Redevelopment projects were not issued in accord with RCW 53.20.10-20 or the requirements for full disclosure to investors of their status as environmental cleanup-development projects under MTCA. The DNS document for the PSP Action plan as well as the approvals and determinations issued for the two Port Projects authorized under the action plan are inadequate and unlawful, and the bonds issued by the port under resolution No. 2008-15 were, and are, not in accord with any single existing official Comprehensive Scheme of Harbor Improvements accurately describing the projects, and Plaintiff is entitled to the relief herein sought.

II. PARTIES AND JURISDICTION 2.1 At all times relevant Arthur West resided in Thurston County, State of Washington. He is a citizen, landowner, and voter with full civil rights, and has standing to maintain this action in all particulars. He has a recognized connection to South Sound and Budd inlet, and uses the specific areas described in this complaint for recreation, leisure and professional activity on an almost daily basis. He is particularly impacted by the degredation of water and air quality reasonably foreseeable from implementation of the action agenda and the port’s two MTCA projects authorized in the PSP action plan. He is also impacted particularly by the rest of the projects approved and actions fostered by the PSP plan. The expenditure of significant State revenue based upon a faulty and ill conceived plan without any meaningful performance benchmarks has socioeconomic impacts that will also particularly impact plaintiff, as well as other taxpayers. 2.3 At all times relevant, the Puget Sound Partnership was an Agency of the State of Washington. 2.4 At all times relevant, the Department of Ecology was an Agency of the State of Washington. 2.5 At all times relevant, the Shoreline Hearings Board was an Agency of the State of Washington. 2.6 At all times relevant, the Port of Olympia was a quasi-municipal corporation. 2 PLAINTIFF’S Arthur West ORIGINAL [email protected] State Ave NE # 1497 COMPLAINT Olympia, Washington, 98501

120

2.7 At all times relevant, the City of Olympia was a Municipal corporation with no enforceable regulations or permit requirements to monitor or prevent discharge of toxic waste to the Sound via storm water. (see testimony of Craig Tosomeen, SHB No. 08-013) 2.8 The Thurston County Superior Court has jurisdiction over the parties and subject matter of this claim. III ALLEGATIONS 3.1 The Puget Sound Partnership is an agency charged with adopting an Action Agenda for cleaning up Puget Sound. 3.2 Instead of initially conducting a proper environmental review under SEPA and basing their recommendations upon empirical data, as would be required under state law, the PSP engaged in a consensus shaping political process largely dictated by private “Shadow Government” associations such as the Association of Washington Cities and Washington Public Ports Association that was designed to perpetuate the status quo, avoid any real substantive cleanup or control of toxic discharges into the Sound, and obtain funds for dozens of shoreline development projects under the false color of “cleanup” projects. 3.3 By artificially narrowing the scope of the Action Agenda by a self-serving politically dominated process, in the absence of initial scientific study and a thorough SEPA EIS review, any possible objective consideration of a reasonable set of alternatives has been precluded. Despite the complicated nature of the subject matter, no reasonable study of any alternative actions and their proposed impacts on protected species habitat were considered. This is an egregious violation of basic SEPA procedure. 3.4 The PSP SEPA DNS of November 6, 2008 was issued as an inadequate afterthought and without adequate study of the actual causes of the pollution of the Sound, to justify a course of action already determined by political expediency. No reasonable consideration of alternatives was considered, especially any alternative that would have actually imposed any substantive conditions designed to control pollution entering the Sound or address deficiencies in the current State administered NPDES permit system that allows this pollution to enter the Sound unchecked. 3 PLAINTIFF’S Arthur West ORIGINAL [email protected] State Ave NE # 1497 COMPLAINT Olympia, Washington, 98501

120

3.5 Worse still, despite the State of Washington’s legally binding commitment to the United States to implement the Coastal Zone Management Act and its Six enforceable policies, and despite the State’s obligations to administer the federal NPDES permitting system in a manner consistent with Federal law, no reasonable or adequate study of the CZMA, or any of the policies required to be implemented under it was conducted by the PSP in their DNS, creating a fatal flaw, especially if federal funds will be requested to implement the Action Plan. 3.6 While the PSP DNS was issued on November 6, 2008, and includes hundreds of Toxic Waste Cleanup Sites, the Port of Tacoma, just 7 days earlier, had issued a draft EIS for a Blair Waterway project involving a mere 15 toxic waste sites. This discrepancy is indicative of arbitrary and capricious agency action. The PSP’s wholesale approval in a DNS of scores of “cleanup” projects under MTCA, which are in essence developments in sheep’s clothing, despite clear evidence in existing environmental documents of reasonably foreseeable significant impacts resulting from a much smaller project is outrageous and unconscionable. 3.7 The environmental checklist is completely vague and inadequate and fails to address the projects covered by the DNS or the protected and endangered species habitat that will be adversely impacted by the ill-defined action agenda. 3.8 Despite the hundreds of millions of dollars requested to implement the agenda, no socioeconomic analysis was performed, not even of how the agenda is supposed to be funded. The implementation of an action agenda of the broad scope imprecisely indicated by the DNS and checklist, costing hundreds of millions of dollars and involving “cleanup projects” as a duplicitous cover for dozens of projects that will actually increase development and degrade water quality has an undeniable reasonably foreseeable significant adverse impact. 3.9 The performance criteria of the “Action plan” are meaningless and apparently commercially driven. One example is an increase in commercial shellfish cultivation. This industry does not improve water quality in any way. Expansion of this commercial activity will degrade, not improve the Sound. Such an inclusion smacks of industry influence and renders the entire scheme suspect. 3.10 The complete lack of any benchmark in regard to toxic waste in the sound (with the sole exception of PBDE levels in one species of fish) also demonstrates that the Action Agenda is in 4 PLAINTIFF’S Arthur West ORIGINAL [email protected] State Ave NE # 1497 COMPLAINT Olympia, Washington, 98501

120

essence an “Inaction Agenda” in regard to toxic contamination of the sound. This is underscored by the plan’s support for numerous projects on toxic waste sites that, in the absence of actual testing and monitoring of storm and wastewater discharge, will increase the level of toxic waste in the sound. If this is the “last best chance to save Puget Sound”, we might as well admit defeat now and save hundreds of millions of dollars of taxpayer’s money. 3.11 The PSP DNS and Checklist Completely fail to address the cumulative impacts of many of the very actions that they seek to accelerate upon the already imperiled Sound. The cursory treatment of the projects authorized and species impacted in the checklist demonstrates that the action agenda is merely a politically self serving program to capitalize on the idea of “cleanup” to justify approving massive expenditures to further degrade the Sound under the control of the very back room politicos who have brought it to the brink of disaster in the first place. 3.12 The Port of Olympia and The Department of Ecology have recently issued SEPA DNS documents for two interim “cleanup plans” for projects incorporated as part of the PSP action plan for the South Sound. These are the Berth Dredging and East Bay Redevelopment projects. Predictably, both of these projects are actually developments and have no lawful basis for MTCA cleanup status. Plaintiff has expressed his concerns as to the propriety of both of these projects. 3.13 The Department of Ecology has failed to perform nondiscretionary duties under RCW 70.105D.030, including sections d, e and f, and a substantial endangerment exists due to the complete lack of any monitoring of toxic discharges from the MTCA sites at the Port of Olympia, and statewide. 3.14 The bonds issued by the Port for the Dredging and East Bay redevelopment were issued based upon misrepresentation of the projects and in violation of RCW 53.20.10-20, since the actual projects were not part of any duly adopted Comprehensive Scheme of Harbor Improvements at the time of the Bond issue. In addition the Bonds make no mention of any MTCA cleanup or pilot sediment study. The unlawful and unconstitutional nature of these bonds and projects has been the subject of a request for action by the State Attorney General. As of this date, the request has been refused, as has every single previous request made by plaintiff over the last two decades. Any further request or exhaustion would be futile. 5 PLAINTIFF’S Arthur West ORIGINAL [email protected] State Ave NE # 1497 COMPLAINT Olympia, Washington, 98501

120

3.15 On November 17, 2008, the Shoreline Hearings Board issued two orders on a Shoreline Substantial Development Permit for infrastructure involving the East Bay Redevelopment Site, SHB No. 08-013. Although a proceeding for reconsideration is anticipated, as well as a ruling on a companion case, SHB 08-020, plaintiff will seek to amend this action to include review of the final orders in those cases. This is just one example of the scores of developments fostered by the PSP that will have a significant foreseeable impact. 3.16 The PSP and the DOE as an inferior tribunal, board or officer, has exceeded the jurisdiction of such tribunal, board or officer, acted illegally, and not according to the course of the common law, and there is no appeal, nor, any plain, speedy and adequate remedy at law. 3.17 The PSP Action Agenda fails to address the deficiencies of the Environmental Hearings office, which is also improperly influenced by Shadow Government organizations. 3.18 Plaintiff makes this petition for review of the final action of the SHB in denying the appeal of the East Bay Redevelopment project: The petitioner is Arthur West, 120 State Ave NE #1497, Olympia, Washington 98501. The agency whose action is at issue is the Shoreline Hearings Board, located at 4224-6th Avenue SE, Rowe Six, Bldg. 2, Lacey, WA 98504-0903. The agency action at issue is the final order of the Board denying petitioner West’s Shoreline appeal of the East Bay redevelopment project, or the reconsideration thereto. Briefly summarized, the order denied the appeal. The persons who were parties in any adjudicative proceedings that led to the agency action were Arthur West and Jerry Dierker. In addition the Port and City of Olympia appeared. Petitioner is entitled to obtain judicial review due to the following facts: A final order has or will issue, and the substantial development permit was not issued as required by State law, or on accord with the CZMA or the CWA, the order was based on improper procedure, or is otherwise unlawful, the order and procedures of the board violated due process, the Board was composed of members of the AWC and WSAC that had conflicts of interest in violation of the appearance of fairness, the project violates the SMA and will degrade water quality, the order was based on false representations made regarding the sites wetlands and the 100 year flood plain boundaries, the conditions of the project were unlawful, the project was unlawfully segmented and no cumulative impacts were addressed, the JARPA was falsified and incomplete, and submitted by the City of Olympia, not the Port, the project is located on a MTCA site where 6 PLAINTIFF’S Arthur West ORIGINAL [email protected] State Ave NE # 1497 COMPLAINT Olympia, Washington, 98501

120

the specifics of the “cleanup” and/or “Substantial Development” have yet to be determined, and the project is in fact a development, not a “cleanup” subject to MTCA. 3.19 Relief should be granted under RCW 34.05 for the following reasons: The application was not complete or adequate under law, and as page 9 of agreed order No. DE5471 at section E states…”The Port is currently in the design and permitting stages of infrastructure construction of the site” despite the previous issue of a Shoreline Substantial Development Permit. The conditions imposed by Examiner Thomas Bjorgen were inadequate to prevent pollution and degradation of water quality and species habitat. No enforceable standards exist within the City of Olympia to monitor or control discharge of toxic material. Petitioner requests that the East Bay Redevelopment Shoreline Substantial Development Permit and all related approvals be vacated. 3.20 On December 8, 2008, The Port attempted to remedy the unlawful lack of an “official” Comprehensive Scheme of Harbor Improvements by adopting a document purported to be such. The adoption of his document, which includes the East Bay and Dredging projects, was unlawful and arbitrary and capricious in that no SEPA review was conducted. This was in excess of the port’s authority. IV CAUSES OF ACTION 4.1 WRIT OF CERTIORARI-SEPA REVIEW By their acts and omissions the defendants, including the Puget Sound Partnership and DOE, created a cause of action for a writ of Certiorari to review their unlawful actions approving the 3 DNS documents issued for Action Agenda and the East Bay and Pilot Berth Dredging Projects, and the Port CSHI. Defendants are liable for the relief requested below. 4.2 ARBITRARY AND CAPRICIOUS ACTION CLAIM By their acts and omissions defendants and each of them, created a cause of action for arbitrary and capricious agency action, damaging plaintiff, for which they are liable for the relief requested below. 4.3 MTCA REVIEW CLAIM 7 PLAINTIFF’S Arthur West ORIGINAL [email protected] State Ave NE # 1497 COMPLAINT Olympia, Washington, 98501

120

By their acts and omissions defendants, and each of them, created a cause of action for violation of MTCA, damaging plaintiff, for which they are liable for the relief requested below. 4.4 DECLARATORY RELIEF RCW 7.24 By their acts and omissions the defendants, and each of them, created a cause of action for declaratory relief concerning the proper activities of public officers, damaging plaintiff, for which they are liable for the relief requested below. 4.5 UNCONSTITUTIONAL EXPENDITURE OF PUBLIC FUNDS By their acts and omissions the defendants created a cause of action for unconstitutional application of statute and expenditure of public funds. Defendants are liable for the relief requested below. V PRAYER FOR RELIEF WHEREFORE, plaintiff respectfully requests the following relief: 1. That a writ of certiorari issue under the seal of this court, compelling review, and the

SEPA DNS of the Puget Sound Partnership, as well as those of the Department of Ecology for the dredging pilot study and the East Bay redevelopment, be vacated as unlawful and void. 2. That a full EIS by ordered of the cumulative impacts of all of the actions and projects authorized by the Action Agenda, and that a full spectrum of alternative actions be considered, including those with substantive remedial provisions. 3. That an injunction issue prohibiting the further authorization or construction of any project contained in the PSP Action Agenda, including the Pilot Dredging and East Bay projects, until such EIS is completed. 4. That the MTCA agreements for the pilot dredging and East Bay Redevelopment be

voided and the various Budd Inlet MTCA projects be subject to a coordinated SEPA EIS for cleanup of the Sound. 8 PLAINTIFF’S Arthur West ORIGINAL [email protected] State Ave NE # 1497 COMPLAINT Olympia, Washington, 98501

120

5. That the final determination of the Shoreline Hearings Board on the Substantial

development permit for the East Bay Redevelopment site be vacated under RCW 34.05. 6. That the ports CSHI (including the East bay and Dredging) be declared unlawful in that it was not adopted in compliance with SEPA, and the East Bay and Dredging be declared unlawful as no SEPA review was conducted based upon a duly adopted CSHI. I certify the foregoing to be correct and true under penalty of perjury of the laws of the State of Washington. DATED this 28th day of December, 2008, in Olympia. ______________________ ARTHUR WEST

9 PLAINTIFF’S Arthur West ORIGINAL [email protected] State Ave NE # 1497 COMPLAINT Olympia, Washington, 98501

120