Washington water case heads to state supreme court

Aug 24, 2012

The ongoing legal battle between a Washington rancher and that state’s water regulatory agency is now headed to the state Supreme Court in a case that may profoundly affect the level of authority wielded by such agencies, potentially throughout the west.

The case represents the most recent step in a yearslong dispute between the state Department of Ecology (DOE) and Dayton rancher Joe Lemire, who owns property on nearby Pataha Creek in rural Columbia County. Like many streams in Washington, Pataha Creek is classified as 303(d), a designation under the federal Clean Water Act that describes it as ‘impaired by pollution.’ Under federal law, the state is required to locate sources of pollution on streams that carry this classification, and develop improvement plans to address those pollutants. Citing livestock use as a potential source of pollution, DOE early in the last decade began approaching landowners along Pataha Creek.

“In 2003, I received a letter from DOE; it said I had the potential to pollute,” says Lemire. “They hadn’t observed any actual pollution, but they encouraged me to check into programs on the local level to pay for fencing, and said that I would have to fence cattle off the creek.” Troubled by the letter, Lemire met with DOE officials, pointing out that he was already implementing many of DOE’s own best management practices, including placement of off stream stock water, and drift fencing of steeper banks. Further, he indicated, fencing the creek, which winds its way through his 264-acre parcel, would render portions of his property useless, and cripple his livestock operation. Additionally, he said, fencing programs provided by the local conservation agency were insufficient to cover the true costs of the additional fence required on his property.

“I was told it would be best if I went along with what they wanted, or it was going to be really hard on me,” remembers Lemire. “I took that as a threat.” Lemire returned to his ranch. Over the next six years, he continued to receive annual letters from DOE, calling on him to fence his portion of the creek, or face the threat of hefty fines. Finally, in 2009, DOE issued an administrative order, forcing Lemire to install fencing.

“They ordered me to build exclusionary fences, and to go in and sign up for the programs that were available at the local level,” says Lemire. “In other words, they were making those voluntary programs mandatory for me.” In addition, Lemire was ordered to provide a total farm plan, detailing steps he would take to avoid polluting the creek. “Any changes I wanted to make to that plan, I had to get their permission,” says Lemire. “If I wanted to move a salt lick, I had to have permission from DOE.” Under state law, a landowner may appeal DOE administrative orders, and appear before the state’s Pollution Control Hearings Board (PCHB). Lemire did so, citing 54 instances where he felt DOE was incorrect. He was subsequently informed by PCHB that they had granted summary judgment in favor of DOE, and denied Lemire a hearing to voice his complaints. That judgment, contended Lemire, was counter to Washington state law. “You cannot grant summary judgment in any case where anything is under contention,” he says. “Yet DOE asked for it, and got it.”

Frustrated, Lemire filed suit against Washington DOE, taking the case to Columbia County Superior Court. Among his complaints, Lemire pointed out that DOE had provided no water sampling evidence to back up their claims that the potential for pollution existed on his property.

“They’ve produced absolutely no evidence, none whatsoever, that we had polluted the creek,” he said.

DOE relied on observations made during site visits conducted from the highway adjacent to Lemire’s property, made during winter months over a period of years, where they claimed to have seen manure on the stream banks, trampling of vegetation, and other evidence of livestock activity. These observations, argues Lemire’s attorney Toni Meacham, don’t add up to the ‘substantial potential’ for pollution claimed by DOE. “To issue this order without substantial evidence to back it up was a complete disregard for Joe Lemire’s rights,” she points out. Further, she says, the words ‘substantial pollution’ have a legal definition and should not apply to nonpoint sources of pollution, such as Lemire’s operation. “He should not be impacted by substantial potential,” she says. “If DOE thinks that he should be, they’ve got to have more than a few limited site visits and no substantiation to issue an order as exacting as this one.” While some sampling had occurred, says Meacham, it was not conducted according to DOE’s own requirements, and was voluntarily removed from the proceedings by DOE.

Instead, DOE officials suggested that direct samples are not a necessary step in the regulatory process. “We regulate based on the presence or absence of livestock impacts, not on the presence or absence of livestock,” says Chad Atkins, of the DOE eastern regional field office. “When we’re out in the field, we’re looking for signs of overwhelming scientific evidence that pollution is occurring, has occurred, or is likely to occur.”

He adds, “We’ll make multiple site visits, and we’ll document with photographs the conditions on the ground that are known to cause pollution.”

Atkins continued, “We’ll take some samples off the stream, but our case here isn’t depending on those samples, we’re focused more on the site specific conditions on the ground that we observed.” Those conditions, Atkins claims, included exposed banks, evidence of trampling and erosion, and overgrazing.

Additionally, points out Atkins, Lemire was given multiple opportunities to comply with DOE regulations. “We provided several opportunities to seek help and get help, both from us and from the local conservation agencies,” says Atkins. “That’s typically how we work.” Enforcement, he says, was a necessary final step. “Livestock is a really important industry in the state, and we recognize that, so we’re really trying to help these guys gain compliance,” says Atkins.

“It’s only after those efforts have failed to get them the help that they need that enforcement becomes an issue.” Atkins also indicates that cases requiring enforcement are relatively uncommon. “It’s rare that we use those tools that are available to us. Most producers sit down at the table with us and we develop a strategy that is protective of water quality and works out for them.”

According to Meacham, however, such a compromise was not possible for Lemire. “One of the things I always tell people is, if you go to trial, you have the potential to lose, so let’s see if we can work something out,” she says, indicating that efforts were made to discuss the issue with DOE. “That meeting was over in 15 minutes.” DOE, she says, was unwilling to bend on the fencing issue.

“He told (DOE) from the very beginning that he couldn’t do what they wanted, and he had reasons why. They told him from the very beginning that their goal was to fence that creek.”

In July of last year, Superior Court Judge William Acey found in favor of Lemire, indicating that DOE lacked sufficient evidence to back their claims of substantial potential to pollute. “The record is absolutely absent of any evidence that Mr. Lemire’s modest herd actually polluted Pataha Creek,” said Acey in his decision. The judge also criticized DOE for its apparent persecution of Lemire. “It’s clear to me,” he said, “that the administrative order was issued not so much based on the extremely modest modicum of observations, as it was their disenchantment with Mr. Lemire for not coming to the table and working something out with them on a plan both sides could live with.” His ruling reversed the summary judgment issued by PCHB, and additionally found, as claimed by Lemire, that forcing him to build exclusionary fencing on his property constituted a taking under the Fifth Amendment, entitling him to compensation if the fences are built.

In their appeal, filed last September, DOE contested the challenge to their regulatory authority, as well as the claim that fencing the creek constituted a takings. “Ecology is now hoping to get the order reinstated through the appeal, and we’ve got confidence that our legal arguments are strong,” said Assistant District Attorney Ivy Anderson. “When you look at the requirements that need to be shown for it to be considered a per se taking, we don’t believe that was shown at all to the court. Judge Acey didn’t really explain what he was basing that ruling on, and when you look at the court decisions where takings have been found, they don’t really fit this situation.”

Owing to the gravity of the takings claim, and the potential effect on DOE authority, Washington Court of Appeals bypassed the case, sending it directly to the State Supreme Court. Whether it stops there, or continues upwards, says Meacham, is anybody’s guess. “I hope that this is the end, for Joe’s sake,” she says. “I see how broad the scope of this case is, and I’m very concerned it will go higher. For Joe Lemire’s sake, I really hope not; this has not been a cheap fight.”

The Farm Bureau, the state cattlemen’s association, and multiple legal foundations have stepped forward in support of the case, but for Lemire, the stakes are much higher. “I’ve invested a lot of money¬† in this place, and built it from scratch,” he says. “If they’re allowed to fence the creek off, I lose a lot of my little pastures, and I’m left with nothing for my investment and my labor. I’d probably have to sell the place for about what I paid for it; I’d lose everything.”

Despite financial troubles, however, Lemire shows no signs of giving up the fight. “If I lose this, I’m out of business, so I’ve got nothing else to lose,” he says. “My hackles are up, and I’m not backing down on this thing. This is a big deal, and it’s going to affect folks in other states, too. Hopefully, this is a win we can give the state of Washington, and its landowners.” — Jason Campbell, WLJ Correspondent