Measure B Bites Dust? Perils of Overreach? Does it Matter? Questions Remain!
Judge Piquet [correction! correction! It was Judge Martin Tangeman's case. Here in Sewerville, you need a program to keep all the lawsuits straight. My apologies.] handed down his ruling as to the validity of the Measure B initiative, an initiative that would have allowed the citizens to vote on selecting a sewer system they want to "buy," including the option of "none of the above." If I read his ruling right, it appears that the initiative failed because the initiative “over reached,” that is, it had a clause in it that allowed the voter to vote for NO PROJECT, an option that overstepped its bounds and slipped it into the realm of being an “administrative” decision, not strictly a” legislative” one.
What’s unclear to me is how the legal mandate (and limitations) of the Regional Water Quality Control Board fit within this ruling. The Board cannot dictate what kind of system is to be built. They can only set discharge standards, for example, and then approve or disapprove of whatever system is brought before them for a discharge permit.
So if voters elected a Board and the Board wanted to select one sort of system or another, the RWQCB would have no “administrative” say in the matter, only the right to approve or disapprove of whatever was decided. And if the voters elected a Board that decided they didn’t want to build ANY system and instead wanted to have the town’s tanks pumped every day and truck the wastewater to Oregon, the RWQCB would also have no say in using that method either, so long as the discharge requirements under Resolution 83-12 & 13 were met.
So, there’s my puzzle with this ruling. Tangeman ruled the measure invalid because, if I understand correctly, the initiative gave the voter power to directly vote for . . . something . . . as opposed to voting for elected officials who would then vote for . . . something. Apparently the former is “legislative” and is considered a no-no, while the latter is “administrative” and is o.k.
What I couldn’t find in the ruling is the judge’s discussion of a phrase that was in the Initiative that stated that if any section of the initiative was found to be illegal, it could be “severed” and the rest would remain. So, I have no idea what happened to that.
Also, it’s still a puzzle to me why the Judge had a problem with the clause in the initiative that allowed the voters to vote for NO PROJECT. He notes: “An initiative is not legally permitted to take over that administrative function by placing the issue of whether the District will comply with the state mandate in the hands of the electorate. Measure B unlawfully does so, by allowing the electorate to choose not only where such a facility shall be built, but whether such a facility will be built at all. In other words, the electorate is allowed to choose whether they prefer the “no project’ alternative, which means non-compliance with an existing state-imposed mandate.”
Uh, please correct me if I’m wrong, but doesn’t Resolution 83-12 & 13 set discharge levels, with an ultimate result in NO DISCHARGE by such and such time? And since the RWQCB can’t dictate WHAT system (if any) is to be built, (or where, if anywhere) I’m still puzzled as to why a NO PROJECT vote would violate anything, since the "state imposed mandate" is about discharge levels. Once again, if voters wanted to truck their waste daily to Oregon for disposal, they would be meeting the RWQCB’s discharge requirements (hence meeting the “state-imposed mandate”) but they’d be doing it without a “project.” So, I have to wonder if Judge Piquet thinks that the state and the Regional Board legally has an “administrative” say in building some particular project? So far as I know, they don’t. Not legally, at least. (Judge Tangeman) does note, “Although Resolution 83-13 did not specify how the discharge of sewage should be handled, it evidently contemplated the construction of some sort of facility because it established a timetable for the District to “Begin Design, Complete Design, obtain Construction Funding, Begin construction, Complete Construction.” What I’d be curious to know is whether that “evident” contemplation was mere assumption or had some legal basis.)
And, finally, does any of this matter any more? Seriously. For most folks, Measure B was a whisker-thin “win,” that, in may ways, simply represented a desperate measure on the part of people who wanted a say in where their sewer plant was going to be built since the recalled board refused to hold a Prop 218-type vote. (A matter that’s still unresolved.) So, now it’s kaput, does it matter?
As with all things Sewer, stay tuned.