Sunday, June 5, 2011

Judge orders lawyers in Crescent Bar suit to hold on

A lawsuit filed by condo and RV-space leaseholders fighting eviction from Crescent Bar Island is still alive, after a federal judge Thursday declined a Grant County PUD motion to dismiss the case.

But U.S. District Court Judge Justin Quackenbush ordered attorneys for both sides to consider postponing the case until federal dam authorities issue their own ruling on whether the islanders can stay — a process that could take years.

Attorneys have until “high noon” June 17 to issue their opinions on the proposed postponement, the judge said during a conference call with attorneys.

The World, and some Crescent Bar islanders listened by phone.

The judge said that if he agrees to postpone, he would order that the islanders’ eviction be halted until their lawsuit is resolved.

The judge repeatedly told attorneys that he would not issue any ruling that would conflict with a decision by the Federal Energy Regulatory Commission (FERC).

The judge said FERC has the final say on whether the leaseholders can remain on the Columbia River island, although the islanders could appeal a FERC ruling.

The FERC is currently studying a “shoreline master plan” the PUD has filed that doesn’t include island condos or year-round RVs. Islanders have asked FERC to let them stay.

The proposal to postpone came after attorneys for the PUD and co-defendant Port of Quincy observed a predicament: Future litigation of the present suit hinges on FERC’s still undecided ruling about the islanders’ eviction.

The judge said he and his staff had spent “countless hours” studying the attorneys’ arguments, and it seems to him that:

• Both the PUD and port had expressed written agreement in the 1970s to extend the lease, given FERC approval, to 2023.

• That the PUD and port intended to make a “good-faith effort” to work with federal authorities to extend the lease, but then both changed their positions.

• That the islanders may have relied on these and other assurances to invest in their RV homes on leased lots and leased condos.

• The islanders could make a “pretty good Fifth Amendment claim” against the PUD and port.

The Fifth Amendment to the U.S. Constitution provides that private property shall not be taken for public use without just compensation.

“In fairness to everyone, it would seem to me that the extension of this long-term lease for another 11 years would resolve innumerable problems arising from the port district’s extending the lease to 2023,” the judge said. “... the defendants on the fact of the complaint made innumerable commitments to lessees to obtain FERC approval. It would appear from the face of the complaint that the defendant port district and PUD may well have breached commitments.”

The owners of 110 island condominiums and 305 RV spaces filed suit in January demanding the PUD honor their leases through 2023 or pay damages for their eviction.

Their own lease agreements, which show expiration dates in 2012, come under a sublease from the PUD to the Port of Quincy to develop the island for recreation and then from the port to private developer Crescent Bar Inc. to administer the island.

The port sought a lease extension in the 1970s because the private developer said it needed a longer lease term to get financing for the condos it built there.

The islanders’ suit doesn’t mention a damage amount, but in early efforts to settle with the PUD, they demanded new leases or $90 million.

In their motion to dismiss, the PUD and Port of Quincy, had claimed district court was the wrong venue for a dispute linked to a federal license to operate hydroelectric dams.

The PUD owns Crescent Bar as part of the lands affected by the water levels behind its Columbia River dams, Priest Rapids and Wanapum.

The PUD contends that FERC no longer approves of residential use of PUD lands, so the islanders have to go.

Crescent Bar is about 30 miles southeast of Wenatchee, near the town of Trinidad.

By Christine Pratt, World staff writer,, 665-1173



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