From: Scott Roberts []
Sent: Thursday, July 15, 2010 11:16 AM
To: Norman MacLeod
Subject: FW: Jukanovich - PDS Summation


Per Merle’s request.


Property Rights Director

Evergreen Freedom Foundation

360-956-3482 office

360-352-1874 fax


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Envision Washington Project


From: Merle Ash

Sent: Thursday, July 15, 2010 7:55 AM
To: Scott Roberts

Subject: FW: Jukanovich - PDS Summation




Again, I want to thank you for your help and support on the Jukanovich Shoreline issue.  We had the second hearing Tuesday and the DOE was there to defend their position.


I am CCing anyone I know that has any interest in Shorelines issues as the DOE is exposing another game they are trying to play that impacts any shoreline property owner.


The DOE is really worried that we will prevail on the OHM call.  And worried they should be.  In total disregard for the law, they are making up their own definitions. They are threatening to appeal if we prevail.


I have attached a summary from the county planner that I think is pretty good information for anyone concerned about shoreline issues.  We are fortunate in that this planner has a PhD in Aquatic Ecology and has taken great interest in our case. 


The DOE is using a dissertation by some PhD candidate as the call on the Mean Higher High Tide which he specified at near 13 feet.  The NOAA MHHT benchmark set in Everett is 10.83 and the historic MHHT used by Snohomish County has been 11.1.  The MHHT is supposed to be a “mean” of the higher high tides (the highest of the two high tides each day) over an epoch (about 19 years) as correctly computed by NOAA.  The DOE actually came to the Hearing with the 6 highest tides of the year and tried to claim that the average of these high tides is what they are using.    


They have clearly ignored the very words of the RCW, WAC, and local code definitions and are trying to make up their own.  When the details of their decisions are exposed, it is clear they are operating outside the bounds of the laws set by the legislators. 


The DOE is worried this case will set a precedence and they are gearing up to fight it.  The unfortunate thing is that they are using our tax dollars to fund the attack on our rights.    


The good news here is that Snohomish County Planning has come to our side on this issue and if the Hearing Examiner decides in our favor the Snohomish County PA will have to defend the position.  We believe it will have to be a LUPA appeal straight to Superior Court and not to the Shorelines Hearing Board as the DOE is hoping.


I would let anyone you know that has a vested interest in shoreline issues know about this case.  They are using this same extreme high tide in all parts of Puget Sound. 


Tom Barry, a renowned surveyor here in Puget Sound, has had to fight with other similar cases in Skagit and Island County.  As with this case, they used “indicators” from December 2006 to make the MHHT call.  If you remember, Gregoire declared a state emergency due to flooding that month; that was the year the freeway in Chehalis washed out.


Just to summarize, your Shoreline setbacks are starting from a line based on freeways being washed out due to flooding as opposed the a “Ordinary” or “Mean” event.  There is nothing “…so common or usual, or so long continued…” about it.


Thank you again Scott; I think we have them on the run.  Could you please forward this to Norman MacLeod, my emails bounce back even on replies.


The Hearing Examiner has left the record open until tomorrow close of work day to provide additional testimony.  One bit I would like to find is if the law gives DOE the authority to revise the call on MHHT.

Merle Ash

Land Technologies Inc

18820 3rd Ave NE

Arlington WA 98223


From: Caine, Ed []
Sent: Wednesday, July 14, 2010 2:10 PM
To: Merle Ash; 'Anderson, Paul (ECY NWRO SEA)'
Subject: Jukanovich - PDS Summation


Merle and Paul,


Attached is the PDS summation that was provided to the Examiner this afternoon at approximately 1:15 PM.  As the applicant’s contact and the representative of DOE that appeared at the hearing, I wanted each of you to have a copy.


Ed Caine

Project Planner