CHINOOK — Pacific County Public Utility District No. 2 General Manager Doug Miller defended the PUD’s decision to dig in an area that contains remains of Chinook Indians, saying the PUD had an easement that gave them the right to do the work without giving notice, or seeking permission.

However, the Chinook Observer has learned that the PUD’s easement expired 20 years ago. Furthermore, Miller already knew there was no easement when he spoke with the newspaper on Jan. 19.

In late December, PUD workers replaced one failing utility pole at Middle Village/Station Camp, a site within the Lewis and Clark National Historical Park in McGowan, and another on Bill Garvin’s neighboring property.

The PUD’s decision to do the work without contacting anyone in the Chinook Indian Nation, the Washington State Historical Society (which currently owns Middle Village), or the National Park Service (which manages it) raised serious concerns, because the site has major cultural and historical significance. The site was once a thriving Chinook trade village. Archaeologists believe the bodies of many Chinook Indians are buried close to the surface.

“We have an easement. We have a right for [the utility poles] to be there, and we have to maintain them,” Miller said in a Jan. 19 phone interview. “When a pole’s ready to fall on the ground we’ve got to do what we’ve got to do.”

In interviews last week, however, state and federal officials provided information that raised doubts about Miller’s version of events.

“The PUD let the easement for that property lapse,” Lewis and Clark National Historical Park Superintendent Scott Tucker said on Jan. 28. Tucker is acting as a liaison between PUD, federal, state and tribal authorities, as they prepare to assess the impact of the PUD work.

Tucker said he first spoke with Miller on the morning of Jan. 19. During that conversation, Miller acknowledged that the PUD did not have current easements for either property.

“He confirmed when I brought it up,” Tucker said. “He confirmed to me that there was no easement on the property.”

Shortly after Miller and Tucker ended their call, Miller returned a series of calls and emails from a Chinook Observer reporter, and made the statement about the easement.

“The PUD did have an easement that was granted in 1946. However, there was a term-limitation of 50 years, so it expired in 1996,” Stephanie Fuller, a state Department of Enterprise Services staffer who works in the real estate division, said on Jan. 29. DES keeps track of the state’s real estate transactions. DES spokesman Jim Erskine noted that easements usually don’t have expiration dates, so it is possible that PUD employees honestly believed they still had an easement.

“They could have thought at that time that they were OK doing that,” Erskine said.

On Feb. 1, Miller said he knew the easement had expired, but he didn’t know when.

At first, Miller suggested that the confusion over the easement was a misunderstanding.

“I think I said I ‘had’ an easement. In my mind it was past-tense, and in your mind it was present-tense. It’s the English language,” Miller said.

When a reporter pointed out that Miller, too, had used the present-tense to describe the easement, he provided an alternate explanation.

Miller said that when concerns over access to other properties arose in the past, a PUD attorney had told PUD officials that there is a provision in state law that effectively grants access to entities that have maintained a presence on a property for a certain amount of time.

“After a period of time goes by, and there’s no issue that’s brought up from the parties, then you have the right to be there and maintain the facilities,” Miller said.

Miller could not immediately recall which law would guarantee the PUD’s access in the absence of an easement, or what the legal concept he was referring to was called. He said it was simply easier to describe it to the newspaper as an “easement.”

“… In my mind, the right to be there is the same as having an easement. To try to explain to the general public the words I can’t think of at the time — that wouldn’t look very good either,” Miller explained.

In a Feb. 2 email, Miller followed up, writing, “The words I was searching for are ‘Prescriptive Easement’, essentially the same rights as an ‘Easement’ except not in writing.”

Also on Feb. 2, a reporter asked Tucker if he and Miller discussed any alternate to an easement that might have guaranteed the PUD’s access.

“No. We have not. I have no idea what that provision would be. I’d have to talk to our land-lawyers on that one,” Tucker said. “The only conversations I have had with him [since Jan. 19] is about the archeology and the need to get an easement in place with specific provisions for them.”

Tucker said the PUD and state and federal officials are working on a new easement in preparation for March, when the Middle Village/Station Camp site will be handed over to the National Park Service. Federal government does not issue easements. So, “If there is not an easement in place for the land-transfer in March, there’s no way for them to get an easement,” Tucker said. The new easement should be complete before then, and will ensure the PUD can access NPS land.

NOTE: An earlier version of this story gave the wrong name for a state Department of Enterprise Services employee. Stefanie Fuller is the real estate division employee who verified the status of the PUD’s expired easement.