Second round of legal case begins today

CRESCENT BAR - The second round of proceedings in the lawsuit brought by residents of Crescent Bar Island (CBI) against the Grant County Public Utility District (PUD) over the extension of lot leases will get under way at noon today.

That's when Judge Justin Quackenbush of the U.S. District Court for the Eastern District of Washington is to receive arguments from both sides for or against postponing the lawsuit until after a Federal Energy Regulatory Commission (FERC) decision on the PUD's plan to remove the islanders.

Where or when the case proceeds from there should be answered this afternoon. Already the CBI residents appear to have a leg up in the matter. Quackenbush accepted their lawsuit two weeks ago, rejecting a motion for dismissal by the PUD.

Dale Foreman, attorney for the Crescent Bar Condo litigants, said after the June 3 proceedings, that Quackenbush telegraphed vibes favorable to the residents. The transcript of the proceeding reveals Quackenbush did so immediately.

Addressing David E. Sonn, attorney for the PUD, Quackenbush said: "All right. I've read the pleadings. Let me tell you why you have the laboring oar, Mr. Sonn."

In an exchange later between the judge and Sonn, the judge asked if the original leases were submitted to FERC for approval. Sonn answered that FERC was, and is, aware of them.

"No," Quackenbush said, "but my question was whether or not there was ever any formal approval of the leases going back, I guess, from the time of the first lease in 1962. Did... FERC ever approve the leases?"

Sonn answered that he did not know the answer to that question. Later Quackenbush pursued the point with Lewis Card, an attorney for two of the plaintiffs. Card answered he had not received any document stating so.

Quackenbush responded: "Well, my impression, from everything we've read, is that we saw nothing where there is formal written approval."

Quackenbush never clarified the importance of the question. However, the postponement the two sides are to argue today is for the purpose of allowing FERC to rule on future residential use of the island.

Quackenbush said that, by law, FERC determines issues such as residential use of FERC project lands. Apparently he finds it important if it did so at CBI the first time around.

Quackenbush noted his court can deal with matters of financial damage, and he indicated the islanders appear to have such a claim.

"My impression is that the plaintiffs have a pretty good Fifth Amendment claim against the Port District in that, undoubtedly, in reliance upon the written commitments of the Port District to extend the lease to 2023, probably invested substantial sums of money. I assume that maybe they even obtained financial commitments or mortgage money in reliance upon the PUD extending the lease to 2023."

There was some confusion as to whether the judge was speaking about the PUD or the Port. At a later point, Sonn asked about that, and the judge said the PUD.

At another point, the judge said: "(T)he written documents set forth the intention of the parties and of the PUD and the Port to extend the term to 2023, subject to FERC approval. Isn't that the case?"

Sonn answered that "it says they desire to extend."

Most of the exchanges between the judge and the attorneys went about the same way. They leaned in favor of the islanders.

At one point the judge even suggested the PUD and Port find a way to extend the leases until at least 2023. He seemed to believe this matter is going to take some time to resolve anyway. He noted that even if FERC goes against the folks, he would expect an appeal in the Ninth Court of Appeals.

"Another 11 years to resolve everything would be reasonable," he said.

As for the immediate future, Quackenbush said that, if he decides to postpone the case, he will issue an injunction on the PUD and Port to halt eviction proceedings.