Subject: [OMJP] IMPORTANT Re: Oly Nuclear Free Zone Date: Wed, 24 Aug 2005 01:27:37 -0700 From: Carrie Lybecker To: OMJP As you know, the city council was expected to pass the NFZ ordinance tonight, which it did, sort of, 5:2, Mah and Foutch dissenting. Here's what happened. Be forewarned, my account is long and will contain some cyber shouting. The first ominous clue was that at 7pm, the mayor opened the meeting by saying they'd already been in two executive sessions, one conferring with the city attorney on the nuclear free zone ordinance. Hours went by. In the interim I chatted with Katherine Tam of The Olympian. One thing I told her was that I was very disappointed with the input thus far from the city attorney. Every time he had been asked a question, he didn't have the answers, gave a very superficial analysis, was asked to get this and that info and then came back basically enptyhanded the following week. Matt Green was standing next to us and didn't look too happy. Finally, after 10pm they got to the ordinance. City manager Steve Hall said to the council, you have in front of you the ordinance that has been revised due to legal questions we brought up last week. He said, there has been a question of legal vulnerability, ie the city's vulnerability to law suits, especially brought by the federal government. So the city attorney got more information from other cities, especially Oakland. [The City of Oakland was sued by the US gov in 1989 regarding its nuclear free zone ordinance. The feds prevailed. The city did not appeal, but changed its ordinance instead.] Now, the attorney had been previously asked for information about the legal ramifications in every council meeting where the ordinance was discussed. So, it was determined (no one said by whom or when, presumably in tonight's executive session that was closed to the public, that new language would be added to the ordinance EXEMPTING THE FEDERAL GOVERNMENT FROM THE ENTIRE SECTION [4] PROHIBITING THE TRANSPORT, PRODUCTION, STORAGE ETC ETC OF NUCLEAR WEAPONS AND THEIR COMPONENTS. Not only that, it exempts from the transportation prohibition any materials transported via the federal highway system and its parts, ie the freeways AND ALL TRANSPORTATION CORRIDORS TO AND FROM THE PORT OF OLYMPIA, AS WELL AS THE PORT. These are exempt because they allegedly are an extension of the federal highway/transportation system. As Doug Mah pointed out, this now exempts the one entity most likely to be transporting nuclear materials through Olympia. It also exempts that entity's means of doing so. Friends, the ordinance that passed tonight includes these exemptions. We won't know exactly what to think for sure until we see it in writing. Which brings up a point....they passed an ordinance the public hasn't read. They also met in executive session and discussed what I think should have been discussed publicly. I want to know what their explanation for this is. Following this, the political maneuvering began. I have to say, Mayor Foutch is a skilled politician. He immediately jumped on the general government committee (TJ, Curt Pavola, Matt Green), asking why this didn't get worked out in committee before it was ever brought to the council, and that the committee had even been given the option of consulting with an outside attorney. He said the public hearing shouldn't have taken place before these questions were resolved. Well, the mayor himself and the council as a whole have asked these questions of the attorney and city manager for weeks. At no time did any of them say, hey, we asked you this last week, you still don't have a substantive answer, we need facts before we move forward. At no time did any of them suggest postponing the public hearing until they had the answers. TJ pointed out that Takoma, Maryland's law has been on the books for twenty years without challenge. Foutch tried to trivialize this by saying they don't have a port, it's not a comparable situation. TJ said the U of Maryland does physics research, and Foutch changed the subject. According to the minutes of the general government committee of July 25, FOUR weeks ago and well before the public hearing: "There was a short discussion about the City’s ability to pass such an ordinance in the context of Federal pre-emption. The City Attorney said that in order to do the research, outside council would have to be hired. The committee decided they would like to have the City Attorney do some research on the topic, but those additional resources ought not to be spent." And then tonight someone on the council mentioned that the attorney couldn't spend time doing the research due to family issues. Well, last week I left the city council meeting and got on the net. I found via Westlaw two analyses of the Oakland case in about 10 minutes (Buffalo Law Review, California Law Review), plus 4 other legal reviews on the general subject of nuclear free zones. The actual court opinion (what the attorney really needs and apparently doesn't have even now) is not archived electronically. I couldn't call the CA fed district court during their regular hours to request it, but for pete's sake, any attorney could get this opinion with minimal effort. And I think it's really unacceptable for an attorney to advise a city based on what officials (attorneys or not) from other cities tell him, without reading the actual case law. And frankly, I think the city council should expect more from legal counsel. Of course, these legal questions are essentially smoke and mirrors. So a federal judge in CA found Oakland's ordinance unconstitutional 20 years ago. Previous judges have also decided that interracial marriage is an abomination before God. So the City of Oakland made a strategic decision to change their ordinance rather than pursue an expensive appeal. None of that means that THIS CITY needed to avoid confrontation with the federal government at any cost. What were they thinking? Who is the greatest purveyor of nuclear weaponry in the world today? Did they think there is any such thing as a real nuclear free zone that doesn't challenge this government? Did they not understand that we know full well that establishing a nuclear free zone does challenge the government and other proliferators of nuclear weapons, and that we want an ordinance anyway, understanding and accepting the consequences? What did they think we meant? Anyway, there is still the part about city contracts and investments. But I think this council needs to be held accountable on many levels. It seems that, as the ordinance stands, if Osama bin Laden drives a flatbed down 4th Ave with nuclear warheads piled in the back, he'd get fined $25 for the first infraction, provided 4th Ave isn't an extension of the federal highway system. If he's going to or from the port, he should be okay. Carrie ---------------------------------------------------------------------