Unable to deter efforts by citizens who feel that it is their right to hold a
referendum election to accept or reject a controversial FEMA model land use planning
ordinance, which was adopted against overwhelming public opposition last April by the
Idaho County Commission, referendum supporters are being assaulted verbally by at
least one county commissioner, are being accused of "attacking" County Clerk Rose
Gehring who refuses to hold the election and are being called "barbarians" and other
slanderous epithets.
In order to counter claims by those who oppose the right of citizens to vote--that
the referendum supporters are just a bunch of lawless, abusive, anti-government
radicals--referendum supporters are now arming themselves with video cameras so that
taped footage may serve as a record of their nonconfrontational behavior.
According to referendum supporter Tom Simmons, Gehring will no longer allow public
access into the records room because people are "abusing the priviledge." Simmons also
has a copy of the ad Idaho County placed in various publications in an attempt to sell
the county's law library.
"We haven't been able to find the statute that says a county must provide a law
library for the public, but I am sure that our exhaustive use of that resource may
have had something to do with the county's decision to sell the library."
State, County Fight to Deny Referendum Vote
Officials twist law, misapply legal precedent to justify actions
Article 3, Section 1, Constitution for the State of Idaho
Section 1. LEGISLATIVE POWER--ENACTING CLAUSE--REFERENDUM--INITIATIVE. The legislative
power of the state shall be vested in the senate and the house of representatives. The
enacting clause of every bill shall be as follows: "Be it enacted by the State of Idaho."
The people reserve to themselves the power to approve or reject at the polls any
act or measure passed by the legislature. This power is known as the referendum
and legal voters may, under such conditions and in such manner as may be provided by
acts of the legislature, demand a referendum vote on any act or measure passed
by the legislature and cause the same to be submitted to a vote of the people for their
approval or rejection.
The people reserve to themselves the power to propose laws and enact the same at the
polls independent of the legislature. This power is known as the initiative and legal
voters may, under such conditions and in such manner as may be provided by acts of the
legislature, initiate any desired legislation and cause the same to be submitted to
the vote of the people at a general election for their approval or rejection.
Background: A Brief History of Land Use Planning in Idaho County
by Bill Greeley
Attempt #1
Idaho County is the state’s largest county. It is comprised of some 5.4 million acres
of land, of which over 85 percent are "public" lands. The federal government has been
pressuring the Idaho County commissioners to place all or part of the 15 percent of
the county that is privately owned under federal jurisdiction by virtue of federal
flood regulations for over a quarter of a century. On February 11, 1975, just one month
into their two-year term of office and feeling secure from voter reprisal, the
commissioners adopted Ordinance #8. Ordinance #8 established universal building
permits, a permit fee schedule, and a building code that addressed just one problem,
i.e. flood hazard. While the risk of flood damage in Idaho County is quite low,
federal authorities treat Idaho County much the same as they do counties in extremely
high flood hazard areas such as the eastern seaboard and the Mississippi River flood
plain. On April 14, 1975, the commissioners succumbed to public outrage and suspended
Ordinance #8 "until such time as definite flood plain areas were defined and plats
made available."
On October 14, 1975, the commissioners passed Ordinance #10, a repealer for Ordinance #8.
Attempt #2
Pressure from the federal government mounted until, on February 15, 1979, just four
years and two days after the adoption of Ordinance #8, and again just one month into
their term of office, the commissioners adopted Ordinance #15. Ordinance #15 mandated
building permits in a broadly defined flood plain. On October 9, 1979, a hugely
successful referendum drive culminated in the rejection of Ordinance #15 by a 2036
to 1015 vote.
Attempt #3: The "study"
The federal government, more determined than ever to make Idaho County’s private
property a federal jurisdiction, now approached the commissioners with a new proposal
to create a Federal Insurance Rate Map (FIRM) of Idaho County in the hope that by
reducing the ambiguity of the flood plain boundaries public resistance would atrophy.
On July 17, 1986, FEMA held a scoping meeting with the commissioners after which FEMA
official Herb McElvaine reported in a memo to his superior:
"The county is largely inhabited by people who are generally anti-government in
outlook. The county has a history of non-participation in the National Flood Insurance
Program, however, the county commissioners understand the pressures of the real world
and are interested in completing this study so that they can offer adequate coverage
to the people in the special flood hazard areas."
The federal processes of study and mapping produced the Flood Insurance Study (FIS) and
a set of FIRMs dated September 25, 1991.
Attempt #3: Blackmail
All was quiet until a flood event hit Idaho County in January of 1997. FEMA arrived
to assist with disaster relief and at once smelled an opportunity. Once again, the
commissioners were in the first month of their two-year term of office and feeling
confident and immune from voter reprisal. FEMA threatened the commissioners that the
effects of non-participation in the NFIP are:
"Flood insurance will not be available to residents and businesses... no federal
disaster assistance...no federal mortgage insurance...new construction in flood hazard
areas are at risk of flood damage and will incur higher insurance premiums when
community joins program at a later date...community may be held liable."
While all of the above statements are untrue, two of the commissioners quickly fell
into line. Minutes of the March 10, 1997 commissioners’ meeting reveal:
"Pat (Long) made a motion that Idaho County join a Federal Flood Insurance Program.
Harry (Owens) seconded. Motion withdrawn."
While it only takes two of the commissioners to carry a motion, the commissioners
reluctantly decided that they had best go through the motions of a sham "legal process"
in order to ratify their foregone conclusion.
The commissioners directed the county prosecuting attorney to draw up an ordinance to
effect the same, and a "show" public hearing was scheduled for April 7, 1997. At the
"public hearing," a hearing at which the commissioners refused to provide any expert
testimony and refused to answer any questions, a straw poll showed that four people
were in favor of the proposed Ordinance #36 and 400 people were opposed to Ordinance #36.
Ignoring the will of the people, the commissioners signed Ordinance #36 into law a week
later.
Referendum drive begins
Citizens reacted immediately by organizing a referendum drive to reject the ordinance.
On November 24, 1997, over 2,300 witnessed signatures on the referendum were presented
to Idaho County clerk Rose Gehring.
On December 22, 1997, after having certified in excess of the 1,478 signatures
required to set an election, Gehring abandoned her oath of office, stepped outside of
the law, and refused to hold an election.
Referendum Supporters Take Advice, Hire Private Counsel
Pollot legal opinion contradicts Lance, Payne opinions
by The Idaho Observer
Idaho County Prosecutor Jeff Payne recommended to referendum supporter Lynn Mortimer
in his June 20, 1997 opinion, that, since his opinion, in legal contemplation, is
worth little more than the paper upon which it is written (according to Idaho state
law), "that the petitioner seek the advice of private legal counsel..."
The referendum supporters took Payne’s advice.
Nationally recognized and respected property rights Attorney Mark Pollot of the
Foundation for Constitutional Law was retained by the Clearwater Grange Referendum
Supporters to render a legal opinion as to the validity of their attempt to place
the Idaho County Commissioner’s decision to approve Ordinance #36 on the ballot for a
popular vote.
Pollot’s legal opinion states the obvious as to why Gumprecht has nothing to do with
this referendum: Gumprecht dealt with an initiative and, in using the state’s
definition of initiative vs. the state’s definition of referendum, Pollot stated,
"As is obvious, the referendum and the initiative are two entirely separate species.
There is no reason to believe, therefore, that the rules which apply to one necessarily
apply to the other."
Pollot’s opinion also explained the critical paradox of Payne’s reasoning in one
logical paragraph: "The basis for the use of the initiative and referendum process
is found in the Idaho Constitution at Article 3, Sec. 1. It provides that the people
of Idaho have the right to demand a referendum on ‘any act or measure’ and to ‘initiate
any desired legislation or cause same to be submitted to the people.’ The Idaho
Constitution then states that the State legislature is to create the procedures used
for implementing the peoples’ referendum and initiative rights. However, clearly the
legislature may not create an implementation scheme for the initiative and referendum
process which effectively nullifies those rights. Stated differently, the state cannot
deprive people of the right to submit initiatives and referendums by creating a process
that makes it impossible to or nearly impossible to successfully invoke the initiative
and referendum right."
It appears that government attorneys have cited an irrelevant legal precedent in
Gumprecht to dissuade a referendum election to address public approval or rejection
of Ordinance #36. It also appears that government attorneys are attempting to use this
inappropriate legal precedent to as a mechanism to make it nearly impossible for the
citizens of Idaho County to invoke their constitutionally guaranteed right to
initiative and referendum.
What do you think?
And, while you are thinking, why do you think the people in government seem willing
to use any legal, parliamentary and statutory tricks in the book, whether they are
applicable or not, to keep the comprehensive land use planning ordinance in place for
eventual enforcement? How is it possible that the obstructionist activities of
government officials are actually being done for the good of the governed when an
outspoken majority of the governed are trying desperately to use their constitutional
rights to at least put the ordinance to a vote of the people?
Finally, why are government officials afraid to allow citizens to put the acceptance
or rejection of Ordinance #36 to a vote? Is it because they are afraid that the people
will vote the way they want them to vote or are they afraid that the people will vote
in the way that they do not want them to vote?
© 1998 The Idaho Observer
