Okanogan PUD

First-Ever Washington State Voter Initiative Tested by New Transmission Line

In an attempt to improve electrical utility service in Okanogan County, the Okanogan Public Utility District faced an almost 10-year court battle to condemn easements over state school trust lands.

In 1930, in the first-ever initiative to the people of the State of Washington, voters authorized Public Utility Districts (“PUDs”). At the same time, voters authorized PUDs to condemn certain State lands that may be necessary for public purposes, such as improvements to infrastructure.

Eighty-five years later on January 29, 2015, the Washington State Supreme Court affirmed the right of Public Utility District No. 1 of Okanogan County to condemn easements over state school trust lands needed for the PUD’s Methow Transmission Project (Pateros to Twisp).

Reliable Power to the Methow Valley

The Okanogan County PUD began initial planning for the 26-mile Methow Transmission Project in 1996. The project will construct a new 115 kV transmission line between the towns of Pateros and Twisp to improve electrical service to the PUD and Co-op customers.  The proposed transmission line route crosses 10 parcels of state trust lands in addition to federal and private lands. The PUD sought a 100-foot-wide easement over 12 miles of state land.

After a decade of extensive environmental review and litigation, the PUD selected the project route, which was upheld by the Court of Appeals in 2008. In addition to crossing private lands, the new transmission line will cross a portion of school trust lands managed by the Washington State Department of Natural Resources (“DNR”). The trust lands are generally vacant, with little revenue generated through grazing leases.

The PUD successfully negotiated the necessary easements with most of the private property owners, but was unable to secure easements from DNR. In 2009, the PUD filed its petition to acquire the easements pursuant to its statutory eminent domain authority.

The Courts

The Methow Transmission Project has been subject to multiple challenges in the state courts.

In 2006, the Okanogan PUD prevailed in a Superior Court challenge to its Final Environmental Impact Statement for the proposed project. After another challenge, the environmental review was upheld by the Court of Appeals and later the Supreme Court in 2008. During this period, the PUD negotiated with DNR to acquire the necessary easements and the PUD’s formal easement application was submitted in October 2008.

After the Superior Court for Okanogan County approved the condemnation in May 2010, the State and intervenor Conservation Northwest appealed. A separate dispute ensued in Washington State Supreme Court between the Commissioner of Public Lands, Peter Goldmark (who took office in January 2009), and then-Attorney General Rob McKenna, who did not want to proceed with a State appeal as unwarranted.  Following resolution of that dispute, the Court of Appeals heard oral arguments.

In the May 7, 2013 decision, the Court of Appeals reaffirmed long-held precedent establishing that school trust lands not dedicated to a public use are subject to condemnation. The Court held that the PUD could condemn easements over the school trust lands as a matter of law and observed that condemnation of the easements will not negatively impact the economic productivity of the lands, which are held in trust to benefit the state’s common schools. Read more about the specific issues the Court of Appeals addressed in deciding in favor of the PUD, in the alert "Court of Appeals Reaffirms Public Utility District Authority to Condemn State School Trust Land."

Following the Court of Appeals decision, the Commissioner of Public Lands sought review by the Supreme Court. On January 29, 2015, the Washington Supreme Court confirmed the PUD’s statutory authority to acquire necessary right-of-way for the Methow Transmission Project by condemnation.

The PUD

The Okanogan PUD, formed in 1939, includes all of Okanogan County, the largest county in Washington state by area (5,315 square miles). The PUD serves approximately 20,000 customers, including residential, commercial and irrigation accounts. Its major power sources are hydropower and wind power and its electrical system consists of more than 1,380 miles of overhead and 440 miles of underground distribution lines.

Foster Pepper is pleased to have represented Okanogan PUD since November 2009 in connection with its real estate, land use and eminent domain/condemnation proceedings.