Orv Funds

[Tod]

The Northwest Motorcycle Association has filed a lawsuit against the Washington State Interagency Committee for Outdoor Recreation. The NMA is requesting that the court orders the IAC to stop using fuel tax revenues to fund nonmotorized projects.
:p :p :p :p

I'll be posting additional details soon, but if you'd like to get a copy of the court filing please PM or email me. (Bbbom and T-Rat, your copies will be sent in a couple of minutes :) )

 

[Tahuya Rat]

Got it :thumb:

 

[bbbom]

Got mine too, thanks Tod! All Washington Riders need to be aware of what's going on and at the very least send a donation to the NMA Legal Fund.

Time to wake up and rally behind the organization that is trying to save our sport!


Send your donation to:
NMA Treasurer
6702 Penny Lane
Lynnwood, WA, 98036

 

[Tahuya Rat]

Copied into word doc, removed line and page #s, let's see if it sticks;


PETITION FOR JUDICIAL REVIEW OF AGENCY ACTION - PAGE 1 OF 11 JAMES L. BUCHAL
MURPHY & BUCHAL LLP
1500 SW 1 ST AVENUE, SUITE 1135
PORTLAND, OR 97201
TEL (503) 227-1011 FAX (503) 227-1034
SUPERIOR COURT OF THE STATE OF WASHINGTON
FOR KITTITAS COUNTY
NORTHWEST MOTORCYCLE ASSOCIATION,
WASHINGTON STATE MOTORSPORT
DEALERS ASSOCIATION, PAUL OSTBO,
RICHARD LAW, and BYRON STUCK,
Petitioners,
vs.
STATE OF WASHINGTON INTERAGENCY
COMMISSION FOR OUTDOOR RECREATION
and LAURA ECKERT JOHNSON, in her capacity
as Director,
Respondents.
No.
PETITION FOR JUDICIAL
REVIEW OF AGENCY ACTION
Petitioners Northwest Motorcycle Association, Washington State Motorsport
Dealers Association, Paul Ostbo, Richard Law, and Byron Stuck allege:
PARTIES
1.
Respondent Interagency Commission for Outdoor Recreation is a statutory entity
created by RCW Chapter 79A.25.
2.
Respondent Laura Eckert Johnson is the Director of IAC, whose powers and
duties are set forth in RCW 79A.25.020, and is sued in her official capacity.

3.
Petitioner Northwest Motorcycle Association (NMA) is a Washington nonprofit
corporation. NMA strives to inform, educate and organize off-highway motorcyclists
within Washington State to preserve and expand off-highway motorcycling opportunities.
4.
Washington State Motorsport Dealers Association (WSMDA) is a Washington
nonprofit corporation. WSMDA promotes the interests of motorsport dealers in
Washington.
5.
Petitioner Paul Ostbo (Ostbo) is a member of NMA and resident of Kittitas
County, Washington. Petitioner Byron Stuck (Stuck) is a member of NMA and a resident
of King County, Washington. Richard Law (Law) is a member of NMA and resident of
Snohomish County, Washington. Petitioners Ostbo, Law and Stuck and other members
of NMA have suffered specific injury from respondents’ acts as alleged herein.
JURISDICTION AND VENUE
6.
Jurisdiction in Kittitas County Superior Court is proper under RCW 34.05.570
and venue is property pursuant to RCW 34.04.514 in that petitioner Paul Ostbo resides in
Kittitas County, and because property affected by challenged actions of the respondents
is situated in Kittitas County

GENERAL ALLEGATIONS
7.
Article II, Section 40 of the Constitution of the State of Washington provides that
“all fees collected by the State of Washington as license fees for motor vehicles and all
excise taxes collected by the State of Washington on the sale, distribution or use of motor
vehicle fuel and all other state revenue intended to be used for highway purposes, shall be
paid into the state treasury and placed in a special fund to be used exclusively for
highway purposes.”
8.
In or about 1972, the Legislature set aside 1% of the gasoline fuel excise tax to
provide funding for a Nonhighway and Off-Road Vehicle Activities (NOVA) program.
In 1986, the Legislature amended the statute to provide a specific distribution of funds
available to IAC.
9.
Pursuant to RCW 46.09.170(d),
“54.5% [of that 1%], together with the funds received by the interagency
committee for outdoor recreation under RCW 46.09.110, shall be credited
to the nonhighway and off-road vehicle activities program account to be
administered by the committee for planning, acquisition, development,
maintenance, and management of ORV recreation facilities and
nonhighway road recreation facilities; ORV user education and
information; and ORV law enforcement programs. The funds under this
subsection shall be expended in accordance with the following limitations:
“(i) Not more than twenty percent may be expended for ORV
education, information, and law enforcement programs under this
chapter;
“(ii) Not less than an amount equal to the funds received by the
interagency committee for outdoor recreation under RCW
46.09.110 and not more than sixty percent may be expended for
ORV recreation facilities;
“(iii) Not more than twenty percent may be expended for
nonhighway road recreation facilities.
As alleged below, respondents and their allies have induced the Legislature to alter these
percentages in Second Substitute House Bill 1698, passed by the Senate on April 11,
2003, and, upon information and belief, shortly to be signed by the Governor.
10.
RCW 46.09.020 provides that "`nonhighway road’ means any road owned or
managed by a public agency, or any private road for which the owner has granted a
permanent easement for public use of the road, other than a highway generally capable of
travel by a conventional two-wheel drive passenger automobile during most of the year
and in use by such vehicles and that is not built or maintained with appropriations from
the motor vehicle fund.”
11.
RCW 46.09.020 provides that "`ORV recreation facility’ includes ORV trails and
ORV use areas.”
12.
RCW 46.09.020 does not define “nonhighway road recreation facilities”.
Section 1(14) of Second Substitute House Bill 1698 adds the following definition:
“`Nonhighway road recreation facilities’ means recreational trails and facilities
that are accessed by nonhighway roads and are intended solely for nonmotorized
recreational uses.” (Emphasis added.)
13.
For many years, petitioner NMA has monitored IAC’s expenditure of funds
pursuant to RCW 46.09.170. NMA has resisted expenditures on trails that cannot be
used by motorized off-road vehicles, particularly since nearly all motorized use trails are
multiple-use trails that may also be used by hikers, mountain bikers, and equestrian users.
14.
In or about March 2002, the IAC staff, acting in an alliance with
environmentalists, lobbied the Legislature to authorize the spending of gasoline excise
tax monies upon trails that could not be used by motorized vehicles at all. NMA was
unaware of this activity until after the Legislature acted.
15.
On March 28, 2002, Governor Locke signed (with partial vetoes not pertinent to
this petition) Engrossed Senate Bill 6396, set forth in Chapter 238, Laws of 2002, and
which contained, at Section 123(3)(b), an amendment to RCW 46.09.170(d), which reads
as follows:
“Funds may be expended for nonhighway road recreation facilities which may
include recreational trails that are accessed by nonhighway roads and are intended
solely for nonmotorized recreation uses”.
As a budgetary act, this language expires on June 30, 2003.
16.
In or about July 2002, respondents adopted a plan to guide expenditures under the
Nonhighway and Off-Road Vehicles Activity (NOVA) Program, for the years 2002-2008,
entitled “NOVA Plan 2002-2008”. The Plan sets forth policies with regard to the
expenditure of the 20% of nonhighway road (NHR) funds specified in RCW
46.09.170(d), the first of which was to “encourage a nonmotorized primary management
objective designation (hiking, equestrian, mountain bicycling, etc.) on trails receiving
NHR funding”.
17.
Petitioner NMA participated in the administrative proceedings leading up to the
2002 NOVA Plan and objected vigorously to this policy, pointing out that it was blatantly
unconstitutional to spend fuel tax monies on facilities that could not be utilized by
motorized vehicles, but respondents adopted it anyway.
18.
Respondents further particularized IAC policy regarding funding of Non-Highway
Road funding in a policy manual issued January 28, 2003. This policy declares
that maintenance and operation projects pertaining to “facilities open to both motorized
and nonmotorized use is also eligible for funding, provided that the primary management
objective of the facility is clearly non-motorized recreation”.
19.
Upon information and belief, there are no facilities within the State of
Washington that are open to both motorized and non-motorized use with non-motorized
recreation being the primary management designation. As a practical matter, respondents
will not fund the development, maintenance or operation of motorized trails with NHR
funding.
20.
Pursuant to ESB 6346 and its policies, respondent IAC funds projects for
recreational trails that are intended solely for nonmotorized recreation uses. In the most
recent grant cycle, none of the projects funded with NHR funding provided motorized
recreation benefits.
21.
Pursuant to ESB 6346 and its policies, respondent IAC has denied funding of
several projects that would have provided motorized recreation facilities, including DNR
Burnt Hill, U.S.F.S Domerie Peak, DNR ORV Planning, USFS Sasse/Corral
Reconstruction, and State Parks, Riverside ORV.
22.
Because IAC’s funding authority is finite, and more project applications are
typically received than can be funded, IAC’s decisions to fund recreational trails which
are intended solely for nonmotorized recreation uses directly reduce recreational
opportunities available to NMA and its members.
23.
NMA and its members have suffered substantial prejudice from the policy and
funding decisions of respondent IAC, including but not limited to reduced recreational
opportunities by the failure to fund the projects listed above.
24.
Upon information and belief, IAC staff and their agency and environmentalist
allies have lobbied the Legislature to pass additional legislation expanding upon the
provisions of ESB 6346 about which petitioners complain.
25.
Second Substitute House Bill 1698 amends RCW 46.09.170 to provide that the
NOVA funds received by IAC are reduced from 54.5% to 52.5%, to be expended as
follows:
“(i) Fifty percent must be expanded on facilities . . . for nonhighway road
recreation projects or nonhighway and ORV education, information, and law
enforcement programs under this chapter. For purposes of this section,
nonhighway road recreation projects include, but are not limited to, campgrounds,
trails, restrooms, interpretive facilities, signage, and building maintenance;
“(ii) Of the amount not expended in (d)(i) of this subsection not less than an
amount equal to the funds received by the [IAC] under RCW 46.09.110 and not
more than sixty percent may be expended for ORV recreation facilities;
“(iii) Of the amount not expended in (d)(i) of this subsection not more than sixty
percent may be expended for nonhighway road recreation facilities.
When and if enacted into law, the likely effect of the measure will be to expand the
unconstitutional NOVA expenditures from 20% of the program to 80% of the program.
26.
If it is enacted, respondents will make funding decisions pursuant to Second
Substitute House Bill 1698 that will continue to divert excise tax revenues on facilities
solely intended for nonmotorized users, injuring plaintiffs.
FIRST CAUSE OF ACTION
27.
Petitioners reallege paragraphs 1-26 as if set forth herein
28.
Pursuant to RCW 34.05.570(2), petitioners are entitled to a declaration that
respondent IAC’s plans and policies are unconstitutional as alleged above, that
§ 123(3)(b) of Chapter 238, Laws of 2002, is unconstitutional as alleged above, and that
§ 1(14) and/or § 2(1)(d) of Second Substitute House Bill 1698, if enacted, will also be
unconstitutional as alleged above.
SECOND CAUSE OF ACTION
29.
Petitioners reallege paragraphs 1-28 as if set forth herein.
30.
Petitioners’ clear legal rights to agency action in compliance with the laws of
Washington, and its Constitution are being violated by respondents.
31.
As set forth above, petitioners have a well-grounded fear of invasion of such
Rights
32.
Petitioners are suffering an actual, substantial and continuing injury insofar as
respondents continue unlawfully to spend excise tax monies, thereby reducing
recreational opportunities for NMA and its members.
33.
Petitioners have no adequate remedy at law.
34.
Petitioners are entitled to an order enjoining respondents from relying upon IAC’s
plans and policies, § 123(3)(b) of Chapter 238, Laws of 2002, or §§ 1(14) and/or § 2 of
Second Substitute House Bill 1698 , if enacted, to expend any funds from excise tax
revenues for trails which are intended solely for nonmotorized recreation uses.
PRAYER FOR RELIEF
WHEREFORE, petitioners pray for judgment as follows upon petitioners' causes
of action against respondents:
1. For a judgment declaring IAC’s plans and policies unconstitutional; §
123(3)(b) of Chapter 238, Laws of 2002, unconstitutional; and §§ 1(14) and/or 2(1)(d) of
Second Substitute House Bill 1698, if signed into law, unconstitutional, all to the extent
these authorities are construed as authorizing respondents to expend excise tax revenues
on facilities intended solely for nonmotorized users.
2. For an injunction barring respondents, their employees and agents from
relying upon IAC’s plans and policies, § 123(3)(b) of Chapter 238, Laws of 2002, and
§§1(14) and/or 2(1)(d) of Second Substitute House Bill 1698, if enacted, for expending
any funds from excise tax revenues for trails which are intended solely for nonmotorized
recreation uses.
3. For an award of petitioners’ attorney fees, costs and other expenses
pursuant to RCW 4.84.350(1), insofar as petitioners constitute “qualified parties” within
the meaning of RCW 4.84.340(5).
4. For such other and further relief as the Court may deem just and proper.
DATED April 16, 2003.
MURPHY & BUCHAL LLP
/s/ James L. Buchal
_____________________________
James L. Buchal, WSBA # 31369
Attorney for Petitioners