Washington ranchers at odds with state agencies over stream fencing

Dec 21, 2012

An ongoing battle underway in Washington is pitting landowners and ranchers against the state Department of Ecology (DOE), Washington’s primary water regulatory agency, over the agency’s claimed authority to force the fencing of stream banks on private property to exclude livestock.

At the heart of the conflict is Washington’s water quality law, which states that it is unlawful for a landowner to discharge anything into a stream that ‘shall cause, or tend to cause, pollution.’ Under DOE’s interpretation of the law, this gives them the authority to enforce regulations on any landowner who has the potential to cause pollution, whether or not any pollutants are actually documented. This definition includes livestock with access to streams, which, DOE officials maintain, may have a “substantial potential to pollute” state waters. Orders by DOE for ranchers to fence their streams have risen sharply in recent years, as have enforcement actions against those who fail to comply. Landowners, however, argue that this interpretation of the law gives DOE near limitless authority over private lands. Further, they say, the methods used by DOE to gain compliance with this version of the law include threats of hefty fines, and amount to little more than intimidation.

In nearly all cases, say landowners, the basic procedure is the same. A rancher receives a letter from DOE informing them that a complaint was received about their property, and that they are in violation of state law. The letter then states that they must fence their stream. If this letter is ignored, a second letter is sent. The second letter gives the landowner 60 days to gain compliance with DOE regulations, and threatens enforcement if landowners fail to comply. It then informs them that DOE may fine them up to $10,000 per day for each infraction noted. Faced with the prospect of these fines, most landowners give in to DOE demands.

In both letters, the landowner is referred to their local conservation district (CD), and told that there may be money available, on a cost share basis, to offset the expense of installing fences. As in most western states, Washington CDs are local entities, overseen by a state commission, that exist to provide landowners with financial assistance in meeting conservation goals. They accomplish this by securing grant funding, from DOE as well as other sources. Perhaps most concerning are the complaints leveled by several landowners against their local CDs in recent years which include accusations of misrepresentation, financial mishandling, and forgery.

For Colfax rancher John Pearson, disputes with DOE and the local CD stretch back to 2002. At that time, Pearson, who leases property from another landowner within the Adams CD, was approached about the need to fence off a stream that ran through the property. “There was an electric fence there from years before, so we put it back up,” remembers Pearson. In a subsequent meeting, he was again offered the opportunity to cost share fencing along the creek. “When I told them that a fence was already in place, they offered to pay me for that,” he says. According to Pearson, then district manager Gary Devore offered to pay him $2 per foot for the existing fence if he would submit an invoice to the district. “Apparently, they wanted to have it on their books that they had built some fence,” says Pearson. Concerned over the legality of such an offer, he ultimately refused the money in the fall of 2003. The following spring, he received a letter ordering him to fence the creek, or face the now familiar $10,000 daily penalty for failing to comply.

When he approached Adams CD for further information, Pearson was told he had been sent a warning letter the previous fall, which he denied ever receiving. He requested another copy of the letter, which was provided, with the name of the recipient blacked out. By holding the letter to a light, Pearson was able to determine that the letter had not been addressed to him, but to another landowner in the district. When charged with this, district personnel explained that they had been unable to locate a copy of Pearson’s letter, but that it was similar to the one that they had provided him. Refusing to recognize this, Pearson ignored the letters threatening monetary fines, which arrived annually, in a stalemate that lasted for the next five years.

During this time, Pearson approached a member of the state legislature, expressing concerns that all was not as it should be at Adams CD. His complaint, as it turned out, was not the first within that district. In response to multiple complaints, an audit was triggered in 2008/2009. According to the state auditor’s office, there were significant findings that the district lacked adequate monitoring of their financial activities. The audit included, among other things, reimbursement of personal credit card purchases without receipts to back them. In response to these findings, the state Conservation Commission, the agency that oversees local CDs, began denying funds to Adams CD.

In the midst of this, another area rancher began to have his own difficulties with the district and DOE. In 2008, rancher Wayne Olesen was approached by DOE and the district concerning the need to fence the portion of the Palouse River that ran through his property. Faced with the threat of daily fines, Olesen agreed to a cost share program with the district, under which they would pay 75 percent of the costs associated with fencing and the placement of offsite water for his stock. According to Olesen, his concerns with the district started almost immediately, with their insistence that the entire length of the river on his property needed fenced, even along high bluffs from which access by cattle was impossible. “Right from the start, I should have figured out that a regular person would not fence the top of a 600-foot bluff,” he says. “They could have just fenced the crevasses and been fine, but they brought in rock drills and fenced it from one end to the other.” The resulting fence, says Olesen, cost roughly $14,000 per mile to construct. The total bill for fencing and well drilling, for which Olesen was to have been 25 percent responsible, amounted to $81,000. The real problems, however, began after the audit, when a cashstrapped Adams CD approached Olesen, ordering him to pay a much larger portion of the bill. Then district manager Devore informed him that new laws had placed caps on the money that could be spent, that grant funding had expired, and that Olesen would have to cover the difference out of his own pocket. When Olesen contested the amount that Adams CD was demanding he pay, Devore informed him in writing that the costs he now owed paled in comparison to the fines that would have been levied by DOE had he failed to act. Feeling coerced, Olesen nevertheless paid the requested figure, which amounted to nearly $52,000. “I felt like I had to do something to make them happy,” says Olesen. “It was a presure thing.”

At no point prior to construction, says Olesen, was he informed of the expected cost of the project, or exactly what his share would be. This flies in the face of state regulations which call for a written contract to be drafted between the CD and landowners, detailing the expense of each step of the project, and how much the district will pay. Under these regulations, the rancher is then supposed to pay for the project, and obtain reimbursement from CD. “The only thing that I ever signed was an agreement that I would participate in the conservation program,” says Olesen. According to him, no dollar amounts were ever mentioned. Nor, he says, did he ever sign any specific contracts related to cost sharing on either the fences or the wells. Despite this, an attorney investigating the situation for Olesen turned up several such contracts, all bearing Olesen’s signature. Signatures that he says he never rendered. “We had three or four contracts,” he says. “They were signed by me, but I’d never seen them before.”

The presence or lack of valid contracts is also at the heart of a more recent dispute between John Pearson and Adams CD. In 2011, Pearson rented another parcel of land within the district and sought to remove a fence placed with state funds in order to convert existing pasture land into hay fields.

When told he could not remove the fence, he requested a copy of the associated contract, in order to determine its terms. Despite assurances from Adams CD that a contract did exist, and multiple requests by Pearson, he was never shown the contract. In August of this year, Pearson sent a letter to Adams CD threatening to remove the fence if a contract was not provided. When it had not appeared by late September, Pearson began removing the fence. While both Adams CD and DOE have expressed disapproval at Pearson’s actions, neither has provided a copy of the contested contract. “I don’t think they have it,” says Pearson. “When we start pulling fences out, and they can’t stop us, we’ve really crossed a line here.”

“We’ve really put pressure on Adams CD to come up with something, and they have failed,” says attorney Toni Meacham. “We’re still asking to see that original document that the landowner supposedly signed, and nobody has ever come up with it.”

Chad Atkins with the DOE regional office in Spokane says that Pearson’s actions are being taken seriously. “We obviously are concerned about tearing out the fence,” says Atkins. “The purpose of the fence was to gain compliance with state water quality law. When the fence comes out, there is the potential for impact to surface water, if cows are going to be accessing surface water, in violation of state law. A lot of taxpayer money went into building that fence to protect the stream from livestock impacts,” adds Atkins. “The landowner signed a contract to protect the stream for the lifespan of the fence, which is 10 years.” The landowner, for his part, denies ever signing such a contract, says Pearson.

Greg Schuler, current director of Adams CD, also maintains that a contract exists. According to Schuler, in response to requests under the Freedom of Information Act earlier this year, he made contracts and other documents available to the landowner, but that they were never picked up. He was unable to provide them directly to Pearson as the lessor on the property, he says, because he was unable to determine whether Pearson was making his request as a private citizen or as a representative of the landowner.

Schuler, who joined Adams CD in March, says that he is still working to rebuild bridges burnt around the time of the 2008 audit. He points out that an audit conducted in November found everything in good order. Additionally, he says, the district is working to implement policies that will help prevent disputes with landowners in the future. “The policies are going to be A to Z, how we work with landowners and follow up,” says Schuler. “The intent there is to ensure that the district is following all of the applicable state rules on how state funding is used, and the landowner doesn’t get caught surprised in association with what financing is available.” According to Schuler, the frustrating experiences of Pearson and Olesen are likely the result of poor communication on both sides. “It’s going to take some time to reestablish trust; that’s what I’m trying to do,” he says. “I can’t make any guarantees at this point, but I will continue to try and work with these landowners to remedy some of these old problems to their benefit. It’s critical, he points out, that all parties understand the role of CDs in such matters. “Yes, we’re getting funding from state and federal sources, but our goal is to work for the landowner,” he says. Equally important is the need to underline the separation between DOE as a regulatory agency, and the CDs. “We are not associated with the enforcement authority of DOE,” he says.

“That needs to be more clearly communicated.”

That there is confusion on this point comes as little surprise to Pearson, who points out that, in past years, the threat of monetary fines was equally likely to come from the CD as from DOE itself. Nor, he says, is the problem of apparent collusion between the two entities confined to Adams CD. Pearson and other ranchers point out that CD operating budgets around the state rely on the acquisition of grant funding, which must either be spent on conservation projects or returned to the source. When money is spent on a project, a portion of that grant goes to cover the operating costs of the district. When not enough landowners seek voluntary assistance, argue the ranchers, a conflict of interest is created in which the district may feel compelled to seek regulatory action against a landowner by DOE in order to keep itself afloat. “It’s not about water quality,” says Pearson, “It’s about keeping the money flowing.”

On the nearby Palouse CD, says Pearson, a $250,000 grant was awarded to the district, by DOE, to fence portions of the Palouse River, along which Pearson owns property. Following multiple efforts by CD to sign ranchers up for voluntary programs, a complaint from a private citizen led to issuance of threatening letters from DOE. The letters informed them they were in violation of state law, and directed them to make use of the grant monies available at Palouse CD. While the timing of the complaint may have simply coincided with the grant’s availability, for the landowners along the river, the implications were clear. “Those people’s jobs were dependent on farmers building fence,” says Pearson. “If you didn’t want to participate, you were going to get a letter from DOE, you were going to have to build fence, and it was all to keep those people employed.”

“At the end of the day, what frustrates me is that the cattlemen have been stepped on,” says Pearson. “They feel like they have the power to come in, fence your creek off, tell you that you have to pay for it, tell you that they are going to help, and then leave.”

“I think that we’ve got a real problem, and it’s probably statewide,” Pearson added.

In the midst of these disputes, a court case currently under deliberation in the state supreme court stands to have far reaching implications concerning the level of authority wielded by DOE over private landowners. The case involves Joe Lemire, a Dayton area rancher who was ordered to fence the stream on his property, under threat of DOE fines, in 2009. Citing a lack of evidence to support DOE claims of pollution, Lemire appealed the order, ultimately taking the dispute to the Columbia County Superior Court where the judge ultimately ruled that DOE lacked evidence on which to base its enforcement actions. Earlier this year, DOE appealed the decision, and the case was brought before the supreme court in November. Landowners worry that a judgment favoring DOE will set a precedent allowing them near limitless control over private property in the state. These concerns are further fueled by rumors that DOE is sitting on numerous enforcement letters for eastern Washington ranchers, awaiting the outcome of the trial. “This is getting out of hand,” says attorney Toni Meacham. “We need a favorable outcome, and we need it soon.”— Jason Campbell, WLJ Correspondent