WA supreme court rules 8-1 against rancher in water quality case

Sep 9, 2013

A long-awaited decision from the Washington state supreme court, issued August 15, ruled 8-1 against Washington rancher, Joe Lemire, in a case that may have far reaching implications regarding the enforcement of water quality laws in that state. The case, which pitted Lemire against Washington’s Department of Ecology (DOE) comes as a blow to area ranchers, who worry that the precedent set will grant DOE near-limitless enforcement authority over private landowners within the state.

Lemire was first contacted by DOE in 2003. At that time, Lemire received a letter, regarding his property along Pataha creek in rural Columbia County. The letter informed him that his operations along the creek presented a ‘substantial potential to pollute,’ and encouraged him to seek financial help from his local conservation district in order to pay for fencing livestock off the creek. Lemire refused, pointing out that no evidence of actual pollution to Pataha creek existed, and that such a fence would make successful ranching on his property impossible. Lemire continued to deny the DOE’s request for the next six years.

Finally, in 2009, DOE issued an administrative order, forcing Lemire to install fencing, or face a fine of $10,000 per day for every day that the fence remained unconstructed. Lemire appealed, taking his case to the state’s Pollution Control Hearings Board (PCHB), where he cited 54 instances where he felt DOE had been incorrect, or had overstepped their authority. 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,” Lemire told the Western Livestock Journal at that time. “Yet DOE asked for it, and got it.”

Lemire next took his case to Columbia County Superior Court, filing suit against DOE for failing to provide evidence that polluting agents in Pataha creek were the result of his operation prior to taking enforcement action, and claiming that the action amounted to a taking of his private property.

DOE, however, argued that specific evidence was not necessary. Under state law, they said, the potential of Lemire’s cattle to pollute the stream provided sufficient cause for enforcement, whether or not any pollution had actually occurred.

The superior court found in favor of Lemire, overturning the summary judgment issued by PCHB. DOE appealed the decision, and the case was brought before the state supreme court in November of last year.

The majority ruling, written by Justice Debra Stephens, favored the claims by DOE that direct evidence of pollution by Lemire was unnecessary. “The statute under which DOE operates does not require it to prove causation,” wrote Stephens. According to testimony, she added, access to the stream by cattle was a recognized cause of pollution, namely the introduction of manure into the stream.

“Such organic matter tends to cause pollution,” wrote Stephens. “Hence, DOE met its statutory burden. It was not required to show that the conditions on Lemire’s property were a proximate cause of the polluted creek.” The court also dismissed Lemire’s takings claim, ruling that he had failed to prove that the required fencing would prevent his cattle from utilizing his entire property.

According to Lemire’s attorney, Toni Meacham, the 8-1 ruling comes as a surprise, given the length of time the case was deliberated. “It’s taken long enough, we weren’t sure we were going to win, but we thought the decision would be tighter than this,” said Meacham. “This is a very devastating blow to everybody,” she added. “Especially considering that the majority didn’t even look at the case, they basically ignored it. Only the dissenting opinion actually discussed it.”

In his lone dissenting opinion, Justice James Johnson accused his colleagues in the majority of “rubber stamping” the earlier decisions by DOE and PCHB, and called the decision “extremely burdensome.”

“The order may also force a rancher, whose retirement is tied up in his small farming and ranching operation, to spend tens of thousands of dollars to erect the very fence that will keep him from using a significant portion of his property,” wrote Johnson.

Johnson also criticized his colleagues for taking DOE’s claims regarding the condition of Lemire’s property at face value, and dismissing Lemire’s claims to the contrary. Lemire, in his declaration, had stated that the conditions observed by DOE during their site visits were primarily the result of season, weather conditions, and a variety of other factors not related to cattle which, he said, did not have access to the stream during the winter months anyway. Additionally, he pointed out, these site visits were conducted from a nearby highway with a pair of binoculars, calling into question everything DOE claimed to have seen. None of this was addressed in the majority opinion.

In his dissenting opinion, Johnson also called into question the level of authority granted to DOE by the majority ruling. “According to [PCHB] and the majority, in order for a rancher to create a ‘substantial potential to pollute,’ all the rancher has to do is have a state water body on his or her property that is not completely fenced off, and own cattle that occasionally cross or drink from the water body,” wrote Johnson. “Surely that cannot be what the 1945 legislature intended by a ‘substantial potential to violate.’” Also concerning, according to Meacham, is the court’s decision that PCHB behaved appropriately when it issued a summary judgment, denying Lemire an initial hearing. A decision that she says flies in the face of existing case law.

“They basically said that PCHB has the right to do that,” she said. “In the past, the courts have always gone the other way, ruling that the appellant should have his day in court. We would hate to see this be the new viewpoint on summary judgment.”

Under state law, she explains, summary judgment is only to be issued when there is absolutely no controversy on an issue. “The standard for summary judgment is that, if there is any issue of material fact at all, it is not appropriate,” she said.

According to Meacham, Lemire has not yet decided his next step. “We’re hoping that there is a possibility to move forward, but we can’t guarantee anything,” said Meacham, who points out that the next step would involve an attempt to have the case heard in federal court. “The number one priority is making sure that’s the right thing for Joe.”

For other ranchers in the state, Meacham stresses the need not to give up.

“Obviously, we need to be as positive as possible,” she said. “Nobody sat around waiting for this opinion, we’ve all been working towards a better relationship with DOE. Maia Bellon, in charge of DOE, has been extremely helpful, and she has never wavered in her dedication to having a better relationship with agriculture.”

According to Meacham, the next step will involve a stronger focus on the science of stream pollution.

“We are seeking a scientific expert that can come out to individuals who have received these DOE orders, and evaluate the site,” she said. “We want to base our new strategy on science, we want to know the facts.”

“We’re likely still going to have to go down the same path,” she adds. “But it’s going to be much harder for PCHB to issue a summary judgment, or for that judgment to be upheld. — Jason Campbell, WLJ Correspondent