BELLINGHAM - The No Coal! initiative banning the transport of coal through the city will not get to voters in November.
On Friday, Aug. 3, Whatcom County Superior Court Judge Charles Snyder granted the city of Bellingham an injunction that blocks the Whatcom County Auditor from putting the measure on the ballot.
Before making his ruling, Snyder listened to legal arguments from attorneys representing initiative backers, the city and BNSF Railway Co., in a courtroom with packed benches and dozens of standing spectators.
Snyder said the initiative, with its coal transport ban and Community Bill of Rights, exceeded the scope of city government's power. Among other things, it would have attempted to nullify state and federal laws, Snyder said.
Besides the public expense of conducting a vote on an initiative that had no legal validity, allowing an election to proceed would be misleading to the voters, Snyder added.
He said the initiative would "give the people in the community the impression they are doing something they cannot. ... It clearly would diminish faith in city government."
Before he made his ruling, Snyder posed sharp questions to attorneys on both sides.
The judge reminded Assistant City Attorney James Erb that the city had to show "irrevocable harm" to its interests to meet the legal standard for issuance of an injunction. He asked Erb to spell out what harm would result to the city if the initiative stayed on the ballot.
Erb replied that the city would have to pay the county the costs associated with adding the measure to the ballot, but he did not know how much that would be.
Snyder then noted that the City Council is discussing placing the coal issue on the ballot and incurring those costs anyhow, although the measure that the council is considering would be a non-binding advisory measure.
Erb replied that the harm to the city would go beyond dollars.
"More important than the cost is the damage to the initiative process in allowing an invalid measure to go forward," Erb said.
If the council decides to put an advisory measure on the ballot, Erb said, the measure will be worded to make it clear to voters that it is advisory only and without legal impact, Erb said. But the No Coal! initiative is labeled as a new city ordinance that will prevent coal trains from moving through the city.
Breean Beggs, representing the initiative backers, argued that in many Washington state cases, courts have preferred to review an initiative's legal validity only after voters have approved it.
Even when initiatives have been struck down after passage, they have served a useful purpose in making the will of the voters clear to lawmakers, Beggs said. He cited the 1999 initiative that rolled back car tab fees and made Tim Eyman famous. That measure was ruled unconstitutional, but legislators then scurried to roll back the fees with a new state law.
But Snyder said state courts also have struck down ballot measures in advance, when it could be shown that they were clearly beyond the scope of the initiative power.
"Does the city of Bellingham have the right to tell its citizens, 'You don't need to have a license plate on your car?'" Snyder asked Beggs.
Beggs replied that if the city or its voters tried to enact such a measure, the courts could quickly overturn it.
"What would be beyond the scope of the initiative power?" Snyder then asked. "Based on what you're telling me, it sounds like nothing would be."
Beggs contended that citizens have the right to vote on a measure that met the legal requirements for a place on the ballot.
"The people have the right under the Washington constitution to vote, and under the City Charter to vote," Beggs said. "All the people are asking for is the power to vote. ... Their government has kind of turned against them on it."
Snyder was not convinced.
"Today's decision is not about coal," he said. "It isn't about coal trains. It isn't about corporate power. It's about a point of law. ... It's not an easy one to grasp. ... This isn't a simple decision nor is it a one-way decision."
Snyder contended he was well within established state precedents in blocking an initiative that attempted to give the city legal powers it cannot exercise under state and federal law.
"The city has no right to act illegally," Snyder said. "The city has the legal right to come to court and say, 'Don't make us do something that is against the law.'"
Snyder also ruled against Beggs' motion to collect damages and legal fees from the city, on grounds that the city's lawsuit violated the Washington Act Limiting Strategic Lawsuits Against Public Participation, known as the SLAPP law.
Beggs argued that in filing a lawsuit to block the initiative and naming initiative backers as defendants, the city was attempting to discourage their right to express their political views.
Snyder said the city lawsuit would have no such effect.
"It (the lawsuit) is not intended to silence the defendants," Snyder said. "They will continue to be as vocal as they wish to be."
The No Coal! group, with Stoney Bird and Rick Dubrow taking some degree of leadership, was launched in response to widespread concern about the increase in coal train traffic that could result if SSA Marine succeeds in getting regulatory approval for the Gateway Pacific Terminal project, which would export coal and perhaps other cargoes. Coal trains traveling from Powder River Basin mines east of the Rocky Mountains would travel through Bellingham en route to Cherry Point.
After backers of the initiative submitted about 10,000 signatures to the city on June 18, the Whatcom County Auditor verified that at least 4,990 of those signatures were valid, meeting the legal requirement for a place on the ballot. At that point, the city stepped in with the lawsuit, authorized by unanimous vote of the City Council. City attorneys advised council members that the passage of an initiative that contradicts state and federal laws would result in a potentially costly legal controversy for the city.
On Monday, Aug. 6, the council will consider a proposal to allow citizens to express their opinion on the coal shipments in a non-binding advisory vote.
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