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Expedite Hearing set September 13, 2013 Judge Shaller IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR THURSTON COUNTY ) ) ) No. 13-2-01603-3

ARTHUR WEST, plaintiff,

) Vs. ) PLAINTIFF’S ) RESPONSE WASHINTON STATE, ) IN SUPPORT LIQUOR CONTROL BOARD, ) OF MOTION et al, ) defendants ) ______________________________ )________________________________
Comes now the plaintiff, Arthur West, and responds to the September 12 reply of the State. The defendants’ response fails to address any of the substantive claims and he declaration of counsel establishes that no SEPA determination of any kind was issued by the Liquor Control Board to support the latest version of its rules. In light of the failure of the defendants to refute that the OPMA and SEPA are clearly established laws, or deny ongoing violations of these laws, the requested injunction should issue. RCW 42.30.130 PROVIDES AUTHORITY FOR INJUNCTIVE RELIEF TO HALT CONTINUING OR THREATENED VIOLATIONS OF THE OPMA RCW 42.30.130 provides… Any person may commence an action either by mandamus or injunction for the purpose of stopping violations
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RESPONSE OF SEPTEMBER 12 ARTHUR WEST 120 State Ave NE #1497 Olympia, WA 98501

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or preventing threatened violations members of a governing body.

of

this

chapter

by

The explicit terms of this statute provide a clear legal and equitable basis for the relief sought by plaintiff, to stop violations and preventing further violations of the Open Public Meetings Act by the Washington State Liquor Control Board. This is especially applicable in this case where there are numerous prima facia violations of the OPMA that have not been specifically denied. The numerous private meetings held by a quorum of the LCB show clear OPMA violations, and the continuing actions of the LCB Board to meet and conduct business in violation of the OPMA as recently as September 10, 2013 are more than enough to justify an injunction under RCW 42.30.130. Without action by this Court, these violations of the OPMA by the Board will almost certainly continue, as they did on September 10. As far as SEPA is concerned, it must be recognized that the Liquor Control Board had refused to make any form of threshold determination for its July 3 Rules until the plaintiff filed a petition on July 11, and that there was no determination at all for the September 4 Rules. Despite counsel’s creative arguments to the contrary, a defendant may not moot a claim for injunctive relief simply by ceasing the unlawful conduct. A contrary rule would encourage the resumption of unlawful conduct following the dismissal of litigation. In United States v. W.T. Grant Company, the Supreme Court held that the voluntary cessation of illegal conduct would moot a case only if the defendant established that “there is no reasonable expectation that the wrong will be repeated.” United States v. W.T. Grant Company, 345 U.S. 629, 633 (1953); Unless the defendant meets that “heavy” burden, the court has the power to hear the case and the discretion to grant injunctive relief.

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RESPONSE OF SEPTEMBER 12

ARTHUR WEST 120 State Ave NE #1497 Olympia, WA 98501

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In Friends of the Earth v. Laidlaw Environmental Services , the Court held that a claim intended to deter a polluter from exceeding discharge limits in a permit was not necessarily moot, even when the facility at issue had closed, because the defendant retained the permit. Friends of the Earth v. Laidlaw Environmental Services, Incorporated , 528 U.S. 167, 189, 193 (2000) Similarly, in this case, although the July 3 Rules have been withdrawn, the defendant has now issued a new set of rules (on September 4) As the Motion to Supplement demonstrates, this new action completely lacks any form of applicable threshold determination. There is every reason to believe that the previous wrong will be repeated by the Liquor Control Board without action by this Court. DEFENDANTS’ SEPA ARGUMENTS OVERLOOK THE CIRCUMSTANCE THAT THERE IS AND WILL BE NO SEPA DETERMINATION TO REVIEW The defendants’ SEPA arguments concerning the timing of SEPA review ignore the circumstance that without an order of this court there will be no SEPA determination to review. (See response of Jacob White, attached to Plaintiff’s Motion to Supplement) It is simply not reasonable for counsel to assert that plaintiff like some unhappy character in a Samuel Becket play, must wait for an event that is never going to occur. By counsel’s own declaration and the response of the Board to plaintiff’s inquiries, these has been no SEPA review of the September 4 Rules, and none is scheduled to happen. In fact, the schedule proposed by the LCB and appended to counsel’s declaration has no mention of or provision for SEPA review of any kind. In light of what appears to be a complete refusal of the LCB to follow the laws, SEPA does not provide a plain speedy and adequate remedy in this particular case.
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RESPONSE OF SEPTEMBER 12 ARTHUR WEST 120 State Ave NE #1497 Olympia, WA 98501

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To allow the LCB to completely ignore the requirement of a threshold determination and permit them to continue to deliberate and take action in secret poses the very real danger that there will not be any SEPA determination to review or any record sufficient to support a review.

THE BOARD’S WAIT AND SEE ATTITUDE VIOLATES THE ANTISNOWBALLING INTENT OF SEPA THAT IMPACTS BE ASSESSED AT THE 5 EARLIEST POSSIBLE TIME, BEFORE PROJECT INERTIA BUILDS
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The LCB's argument that the proposal and adoption of Rules are not "actions" for which SEPA review is required under state law ignores the antisnowballing intent of SEPA and the determination in King County v. Washington State Boundary Review Board for King County, 122 Wn.2d 648, 860 P.2d 1024 (1993). In that case, the Supreme Court reversed an annexation decision enlarging the city of Black Diamond because it was not preceded by the preparation of an environmental impact statement. Boundary Review Bd., 122 Wn.2d 648 (1993). In Boundary Review Board, even though approval of the annexations constituted a nonproject "action." (WAC 197- 11-704(2)(b) (iv)), the Court found that… "Even a boundary change, like the one in this case, may begin a process of government action which can 'snowball' and acquire virtually unstoppable administrative inertia." Boundary Review Bd., 122 Wn.2d at 664. Postponing environmental review such cases risks… "'a dangerous incrementalism where the obligation to decide is postponed successively while project momentum builds.'" Boundary Review Bd., 122 Wn.2d at 664, quoting William H. Rodgers, The Washington Environmental Policy Act, 60 Wash. L. Rev. 33, 54 (1984). The danger of allowing preliminary actions such as the LCB rules proposal to be taken without any SEPA review is that, even if adverse environmental effects are discovered later, the inertia generated by the
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RESPONSE OF SEPTEMBER 12 ARTHUR WEST 120 State Ave NE #1497 Olympia, WA 98501

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initial

government

decisions

(made

without

environmental

impact

statements) may carry the project forward regardless. When government decisions may have such snowballing effect, decisionmakers need to be apprised of the environmental consequences before the project picks up momentum, not after. Boundary Review Bd., 122 Wn.2d at 664. (emphasis added) Without an early an accurate assessment of the impacts of the proposed I-502 Rules, there is a clear danger that the momentum created by the LCB’s initial actions will build to create irresistible inertia to propel the action forward regardless of adverse impacts. This is exactly the type of unrestrained action that SEPA was designed to prevent and which this Court should act to forestall. ANY BOND SHOULD BE MINIMAL IN LIGHT OF THE LACK OF ANY DAMAGES RESULTING FROM THE LCB FOLLOWING THE LAW The defendant’s arguments as to the bond required are also defective in that there are no possible damages resulting from the LCB having to follow the law. In fact the refusal of the LCB to follow State law is the cause of any delay or expense in this case. In fact, for counsel to admit that following the law will result in a delay also admits the gravamen of plaintiff’s argument, that the LCB has deliberately cut corners on public process and environmental review in order to meet an unrealistic and impossible schedule. In reality, the sooner the Board commences acting to adopt rules in accord with the law, the sooner there will be a legal set of rules to follow. Any delay resulting from the operation of State law is not a “damage”, but the result of the lawful operation of the government and laws of the State of Washington. As such, there is no possibility that the State can represent itself as the “innocent victim” of an injunction that merely requires it to
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RESPONSE OF SEPTEMBER 12 ARTHUR WEST 120 State Ave NE #1497 Olympia, WA 98501

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follow the law. The requirement of a Bond should be waived or set in the nominal amount of $50. The defendants’ arguments as to the “damage” resulting from the injunction are an implicit admission that the LCB has deliberately attempted to violate the laws in order to meet an accelerated schedule. This is the archetype of the type of snowballing and economic inertia that propel government decisions forward regardless of the consequences that might have been identified or mitigated with adequate prior review. In light of the failure of the defendants to contest the claimed violations, and in light of the continuing actions of the LCB in violation of the clear terms of law, the requested injunction should issue. I, Arthur West, certify the foregoing to be correct and true under penalty of perjury of the laws of the State of Washington. Done September 12, 2013, in Olympia.

ARTHUR WEST

6 PLAINTIFF’S
RESPONSE OF SEPTEMBER 12

ARTHUR WEST 120 State Ave NE #1497 Olympia, WA 98501

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