BELLINGHAM - The Bellingham City Attorney's office has filed a lawsuit aimed at keeping an anti-coal train initiative off the ballot this November, after the Whatcom County Auditor's Office determined that the measure's backers had gathered enough valid signatures.
The lawsuit was prepared by two assistant city attorneys, James Erb and Shane Brady. It asks Whatcom County Superior Court Judge Steven Mura for an injunction to keep the initiative from going to city voters.
The City Council authorized the lawsuit's filing June 18. The city's legal staff had advised them that if the initiative were passed into law by city voters, the city would then be obliged to defend it in court, even though city attorneys believe it won't survive judicial scrutiny.
Among other things, the initiative would create an ordinance that outlaws the transport of coal through the city - a response to widespread concern about the increase in coal train traffic that could result if the Gateway Pacific Terminal project is built to export coal and other cargoes at Cherry Point.
The city's lawsuit argues that the regulation of railroads and other transportation is beyond the city's legal authority under both the state and U.S. constitutions.
"The initiative proposes legislation that exceeds the authority of the City of Bellingham," the suit says. "In its fundamental overriding purpose, the initiative seeks to regulate interstate commerce, the railroads, and the rights of corporations. It also declares local ordinances to be superior to federal law and state law. The City does not have the authority to pass and enforce the measures proposed. ... To pass such a law would be directly contrary to state law, the state constitution, federal law, and the United States Constitution."
Backers of the initiative submitted about 10,000 signatures to the city on June 18, and city officials handed those signatures over to the County Auditor for verification. Once the auditor's signature verification process determined that the minimum requirement of 4,990 signatures had been obtained, the city stepped in with the lawsuit intended to stop the otherwise automatic placing of the measure before city voters.
Rick Dubrow and Stoney Bird, organizers of the petition effort, had said they were trying to establish the rights of local communities to govern themselves. The measure's ballot title says it would "establish the sovereignty of Bellingham residents, the rights of natural communities, and rights to a sustainable energy future and a healthy climate," among other things.
But the lawsuit contends that the conflict with state and federal law makes the measure indefensible even if voters approve it.
"The purpose of a pre-election challenge is to prevent public expense towards an invalid initiative," the suit says. "Without court intervention, the City will continue to incur administrative and ministerial expenses and will be forced to expend public funds to conduct an election on this invalid initiative," as well as in "post-election litigation."
Bird, a former corporate attorney, said he would reserve comment until he has a chance to study the lawsuit.
Courts have thrown out Bellingham citizen initiatives before, after city attorneys argued that their goals were beyond the legal limits of the initiative process.
In 2006, Superior Court Judge Ira Uhrig blocked an initiative mounted by environmental activists that tried to mandate stringent environmental cleanup of the city waterfront. In 2001, Mura blocked a business-backed initiative that had aimed to block a new city stormwater fee.