WA supreme court rules 8-1 against rancher in water quality case
A long awaited decision from the Washington state supreme court, issued August 15, has ruled 8-1 against WA 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, moving forward 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
Re: Joe Lemire v. Ecology
SC 87703-3
RE: NEWS RELEASE
Joe Lemire, asks for the following to be released immediately:
On August 15, 2013 the Supreme Court released their opinion on the Lemire v. State of Washington, Department of Ecology; and PCHB. This decision will have severe adverse impacts on every agricultural operation in the state of Washington. The Supreme Court opinion is an 8-1 opinion in support of the Department of Ecology. Mr. Lemire has reviewed the opinion and believes that legislative change needs to occur so that Washington law supports agriculture. This opinion rubber stamps Ecology’s actions in a manner that is not consistent with the intent of the law.
Mr. Lemire, his legal team, and agricultural community are considering the options. Mr. Lemire is disappointed in the opinion, although he feels that the Dissent correctly looked at the law and legal intent.
Water testing by agency questioned in State Dept. of Ecology’s case against rancher
Posted 12/6/2012
Washington State – Rancher Joe Lemire questions whether inspectors from the Washington Department of Ecology got valid readings from Pataha Creek before accusing him of polluting state waters.
In 2009, the state Pollution Control Hearings Board ordered Lemire to avoid the risk of pollution from his 29 head of cattle. After a Superior Court judge dismissed the order, the hearings board and Ecology appealed the case to the state Supreme Court.
Laura Watson, a lawyer from the state attorney general’s office representing Ecology, told the Supreme Court justices that Ecology’s action was in response to fecal coliform samples taken from the seasonal creek downstream from Lemire’s property.
Mary Sue Wilson, senior assistant attorney general, later confirmed that samples were not taken upstream of his ranch because the creek was on private property and inspectors could not get access to it.
Lemire insisted that Ecology does have access above and below his property. Just upstream are a Department of Fish and Wildlife fish trap and two county roads.
He also said that the owner of the 3/4-mile stretch just downstream “won’t allow the state on his property, so the tests were taken 3/4-mile downstream.”
Chad Atkins, with Ecology’s Water Quality Program in Spokane, offered a different explanation. Inspectors didn’t try to obtain access from any landowner, he said. The case is based on exhaustive documentation of conditions on Lemire’s land known to cause water pollution.
“There was no upstream monitoring as part of this case, but we have done it in the past,” Atkins said. “There has been a fair bit of data collected in the watershed over the years,” including sampling done by Washington State University and conservation district inspectors.
Toni Meacham, one of the attorneys representing Lemire, said the rancher tried and was unable to get water samples DNA-tested to confirm the source of fecal coliform.
“Ecology did take samples but failed to follow their own protocol, and the DNA samples were removed from the case,” Meacham said.
Atkins said DNA testing “is not an exact science, not a science we utilize a lot.” Water quality goes beyond the bacteria issue, he said, and involves problems with temperature, dissolved oxygen, sediment, nutrients and acidity.
He also disagreed with Lemire’s lawyers when they told the Supreme Court that Pataha Creek is dry most of year.
“Our data show it’s a year-round stream, which provides habitat for endangered fish,” he said.
Meacham said the essence of the case is that “Ecology claims that they do not have to prove pollution, that the possibility is enough. Clearly we do not agree with this stance.”
Steve Brown/Capital Press
Rancher Joe Lemire and longtime friend Margaret McVicker leave the Temple of Justice after the Washington Supreme Court heard arguments in a water case on Nov. 13. The state Department of Ecology is appealing a judge’s dismissal of a 2009 state Pollution Control Hearings Board order that required Lemire to avoid the risk of pollution from his 29 head of cattle in Pataha Creek, in Eastern Washington.
Water testing at center of disputed in state’s case against rancher
Posted: Wednesday, December 05, 2012 9:30 AM
By STEVE BROWN
Capital Press
Rancher Joe Lemire questions whether inspectors from the Washington Department of Ecology got valid readings from Pataha Creek before accusing him of polluting state waters.
In 2009, the state Pollution Control Hearings Board ordered Lemire to avoid the risk of pollution from his 29 head of cattle. After a Superior Court judge dismissed the order, the hearings board and Ecology appealed the case to the state Supreme Court.
Laura Watson, a lawyer from the state attorney general’s office representing Ecology, told the Supreme Court justices that Ecology’s action was in response to fecal coliform samples taken from the seasonal creek downstream from Lemire’s property.
Mary Sue Wilson, senior assistant attorney general, later confirmed that samples were not taken upstream of his ranch because the creek was on private property and inspectors could not get access to it.
Lemire insisted that Ecology does have access above and below his property. Just upstream are a Department of Fish and Wildlife fish trap and two county roads.
He also said that the owner of the 3/4-mile stretch just downstream “won’t allow the state on his property, so the tests were taken 3/4-mile downstream.”
Chad Atkins, with Ecology’s Water Quality Program in Spokane, offered a different explanation. Inspectors didn’t try to obtain access from any landowner, he said. The case is based on exhaustive documentation of conditions on Lemire’s land known to cause water pollution.
“There was no upstream monitoring as part of this case, but we have done it in the past,” Atkins said. “There has been a fair bit of data collected in the watershed over the years,” including sampling done by Washington State University and conservation district inspectors.
Toni Meacham, one of the attorneys representing Lemire, said the rancher tried and was unable to get water samples DNA-tested to confirm the source of fecal coliform.
“Ecology did take samples but failed to follow their own protocol, and the DNA samples were removed from the case,” Meacham said.
Atkins said DNA testing “is not an exact science, not a science we utilize a lot.” Water quality goes beyond the bacteria issue, he said, and involves problems with temperature, dissolved oxygen, sediment, nutrients and acidity.
He also disagreed with Lemire’s lawyers when they told the Supreme Court that Pataha Creek is dry most of year.
“Our data show it’s a year-round stream, which provides habitat for endangered fish,” he said.
Meacham said the essence of the case is that “Ecology claims that they do not have to prove pollution, that the possibility is enough. Clearly we do not agree with this stance.”
Water battle rises
Updated: Friday, November 16, 2012 12:10 PM
Lemire takes fight to state Supreme Court; ‘If we lose here, we all lose,’ rancher says
By STEVE BROWN
Capital Press
OLYMPIA – Lawyers for rancher Joe Lemire and the state Department of Ecology argued before the Washington Supreme Court Nov. 13 in a case both sides say could have far-reaching ramifications for farmers and ranchers.
The controversy began in 2003, when Ecology officials first told Lemire to fence off a stream running through his southeastern Washington property to keep his cattle away from it.
At issue is whether that requirement constitutes a “taking” of private property.
Ecology appealed a Superior Court judge’s dismissal of a 2009 state Pollution Control Hearings Board order that required Lemire to avoid the risk of pollution from his 29 head of cattle in Pataha Creek.
Lemire, with the financial and moral support of fellow ranchers and county and state Farm Bureaus, has mounted a legal battle that he said is intended to protect the rights of landowners across the state.
“I don’t compromise,” he said after the court hearing. “If I lose, I’m willing to gamble it all. Why not? I have no backup plan.
“There are thousands of people backing us. If we lose here, we all lose,” he said.
Laura Watson, a lawyer from the state attorney general’s office representing Ecology, argued that addressing a substantial potential for water pollution is not a “per se taking.”
She said Ecology’s action was in response to fecal coliform samples taken from the seasonal creek downstream from Lemire’s property. Mary Sue Wilson, senior assistant attorney general, later confirmed that samples were not taken upstream of his ranch because the creek was on private property and inspectors could not get access to it.
When Justice James Johnson repeated the Superior Court judge’s statement that there was no proof of actual pollution, Watson said the state has the authority to take corrective action over potential pollution before it impacts public health.
Lemire’s description of a taking as “the use of property being impacted” has never been upheld in court, she said. The required fencing would have gates allowing the cattle access to other pastures. The ranch also has access to well water, she said.
Representing Lemire, attorney James Carmody told the justices the issue is significant to the farming and ranching community, that prohibiting access to a stream “is going to destroy that agricultural undertaking.”
Permits are required for concentrated animal feeding operations, he said, “but this is not a CAFO.” Lemire runs a few dozen head on his cow-calf operation, which encompasses 256 acres.
That herd of cattle is a nonpoint source of pollution, which cannot be regulated by the state, Carmody said. Lemire employed all the best management practices of cattle ranching, including drift fences, rotations and feeding in upland areas.
The purpose of the original state statutes protecting water was to protect livestock operations, he said.
“Ecology has turned that on its head,” Carmody said.
Lemire said Ecology estimated that about 7 acres would be closed off by the fencing. Depending on how the agency interpreted the set-aside requirement, though, that could be 23 or 24 acres, he said, nearly 10 percent of his land.
“Without green grass, I had to feed the cattle, and they don’t do as good,” he said. “We need that grass.”
Washington Supreme Court hears arguments on livestock water pollutionUpdated: Wednesday, November 14, 2012 5:10 PM
By STEVE BROWN
Capital Press
OLYMPIA – Lawyers for rancher Joe Lemire and the state Department of Ecology argued before the Washington Supreme Court Nov. 13 in a case both sides say could have far-reaching ramifications for farmers and ranchers.
The controversy began in 2003, when Ecology officials first told Lemire to fence off a stream running through his southeastern Washington property to keep his cattle away from it.
At issue is whether that requirement constitutes a “taking” of private property.
Ecology appealed a Superior Court judge’s dismissal of a 2009 state Pollution Control Hearings Board order that required Lemire to avoid the risk of pollution from his 29 head of cattle in Pataha Creek.
Lemire, with the financial and moral support of fellow ranchers and county and state Farm Bureaus, has mounted a legal battle that he said is intended to protect the rights of landowners across the state.
“I don’t compromise,” he said after the court hearing. “If I lose, I’m willing to gamble it all. Why not? I have no backup plan.
“There are thousands of people backing us. If we lose here, we all lose,” he said.
Laura Watson, a lawyer from the state attorney general’s office representing Ecology, argued that addressing a substantial potential for water pollution is not a “per se taking.”
When Justice James Johnson repeated the Superior Court judge’s statement that there was no proof of actual pollution, Watson said the state has the authority to take corrective action over potential pollution before it impacts public health.
Lemire’s description of a taking as “the use of property being impacted” has never been upheld in court, she said. The required fencing would have gates allowing the cattle access to other pastures. The ranch also has access to well water, she said.
Speaking for Lemire, attorney James Carmody told the justices the issue is significant to the farming and ranching community, that prohibiting access to a stream “is going to destroy that agricultural undertaking.”
Permits are required for concentrated animal feeding operations, he said, “but this is not a CAFO.” Lemire runs a few dozen head on his cow-calf operation, which encompasses 256 acres.
That herd of cattle is a non-point source of pollution, which cannot be regulated by the state, Carmody said. Lemire employed all the best management practices of cattle ranching, including drift fences, rotations and feeding in upland areas.
The purpose of the original state statutes protecting water was to protect livestock operations, he said.
“Ecology has turned that on its head,” Carmody said.
11/13/12 Today the Washington Supreme Court heard the case of Joe Lemire v. Ecology. Joe has expressed his gratitude to his legal team, James Carmody and myself, and felt that he could not be in better hands. The legal team also included Pacific Legal and Western Resource Legal Center with the extremely helpful Amicus Briefs that were filed in this matter. We have been working on this case since 2009 and today was the final argument on this matter. As the Supreme Court themselves put it, they are the “court of last resort.” As most of you know, this case was won at the Superior Court level in front of Judge Acey, and we strongly feel that today we put on a strong case, much stronger than our opposition. The fate of this case now rests in the hands of the nine Justices on the bench.
Joe has asked me to thank everyone for their support, everyone that showed up and helped to prove that this case is more than just one man, this case involves every landowner in this state. And the Amici for their generous support, as most have contributed with funds to help keep this case going.
We don’t know when we will hear the opinion of the Court, it could be soon or it could be a year from now. We do know that with the legal argument of James Carmody, this case has been placed before the Justices in its strongest position.
I personally want to thank Joe and Mitzi for never giving up and standing up for what is right. It takes strong people to stand up to a government agency. No matter what the outcome, we have won this battle by not backing down and asking Ecology to take a step back and realize that it can’t run over people.
Please pass the word on to those that have an interest in this case.
Thanks,
Toni Meacham
Attorney at Law
Matthew Weaver/Capital Press Attorney Toni Meacham looks to rancher Joe Lemire during an update on Lemire’s upcoming case before the state supreme court at the Cattle Producers of Washington annual meeting Oct. 26 in Moses Lake, Wash.
Legal fees rise for rancher as case reaches state Supreme Court
Lemire points to lack of any evidence of pollution in creek
Capital Press
MOSES LAKE, Wash. — A Washington rancher says he has spent $80,000 on his legal battle against the state Department of Ecology, which goes before the state Supreme Court in two weeks.
The state appealed a judge’s dismissal of a 2009 state Pollution Control Hearings Board order that required rancher Joe Lemire to take steps to avoid the risk of pollution from his 29 head of cattle to Pataha Creek. No pollution was found in the creek.
“The record is absolutely absent of any direct evidence that Mr. Lemire’s modest herd actually polluted Pataha Creek,” Columbia County Superior Court Judge William D. Acey said in dismissing the board’s ruling.
Lemire said he was using best management practices and that there is no evidence pollution ever occurred.
The department appealed the ruling, contending that it attempted to provide Lemire with technical assistance for six years.
The case skipped the court of appeals and went directly to the high court.
Lemire and attorney Toni Meacham addressed the Cattle Producers of Washington Oct. 26 annual meeting in Moses Lake, Wash.
“We feel Ecology is going to try to win this one way or another,” Meacham said. “Even if they have to bankrupt (Lemire) that is how they’re going to win.”
Lemire called Ecology’s administrative order requiring Lemire to take steps to stop the potential for pollution a backdoor approach. It requires ranchers to prove they don’t have the potential to pollute.
“You’re guilty until you prove yourself innocent,” he said. “Now that’s against the Constitution.”
Meacham and Lemire said they’re not going to give up.
“I don’t care if you own an acre or half-acre or 10,000 acres, this is everybody’s fight,” Meacham said.
Meacham said Roger Wynne, an assistant city attorney for Seattle, has requested time to address the court. Ecology solicited Wynne’s amicus brief and others that have been used to “bombard” Lemire’s team, Meacham said.
Lemire estimated his legal bill at more than $80,000.
Rancher case could allow private property taking
By MATTHEW WEAVER – Capital Press (OR)
Oct 29, 2012
MOSES LAKE, Wash. — A Washington rancher’s battle with the state Department of Ecology goes before the state Supreme Court in two weeks.
Ecology is appealing a judge’s dismissal of a 2009 state Pollution Control Hearings Board order that required rancher Joe Lemire to avoid the risk of pollution from his 29 head of cattle in Pataha Creek.
The case skipped the court of appeals and will go directly to the high court. Lemire and attorney Toni Meacham addressed the Cattle Producers of Washington Oct. 26 annual meeting in Moses Lake, Wash.
Meacham said Roger Wynne, an assistant city attorney for Seattle, has requested time to address the court.
Meacham said Ecology solicited Wynne’s amicus brief and others that have been used to “bombard” Lemire’s team.
Lemire estimated his legal bill at more than $80,000.
“We feel Ecology is going to try to win this one way or another,” Meacham said. “Even if they have to bankrupt (Lemire) that is how they’re going to win.”
Lemire called Ecology’s administrative order a back-door approach, requiring ranchers to prove they don’t have the potential to pollute.
“You’re guilty until you prove yourself innocent,” he said. “Now that’s against the Constitution.”
But Meacham and Lemire said they’re not going to give up, even if the supreme court sends the case all the way back to the original pollution control board.
“I don’t care if you own an acre or half acre or 10,000 acres, this is everybody’s fight,” Meacham said.
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Ecology appeals lack of evidence
Updated: Thursday, November 03, 2011 11:18 AM
‘Ruling strikes at our fundamental authority to help prevent pollution’
By DAN WHEAT
Capital Press
OLYMPIA, Wash. — The state Department of Ecology has filed an appeal of a Columbia County court ruling that it says endangers its authority to prevent water pollution.
Ecology filed the appeal in the Joe Lemire case in state appellate court on Sept. 22. Ecology is appealing Columbia County Superior Court Judge William D. Acey’s July 7 ruling that Ecology did not have enough evidence to find that Lemire’s cattle had substantial potential to pollute Pataha Creek.
“We think the judge has it wrong. His ruling strikes at our fundamental authority to help prevent pollution in the water in the state,” said Kelly Susewind, Ecology’s Water Quality Program manager in Olympia.
Ecology submitted evidence from multiple site visits and was not required by law to have water samples, Susewind said.
“It’s their decision. I don’t know what they can appeal. The judge was very clear in what he said,” said Lemire, 68. “This has been going on since 2003. We’re garnering support as we go along. We’re prepared to go all the way to the state Supreme Court.”
Ecology lost but continues to think and act as if it won, Lemire said.
Ecology will continue pursuing similar cases in other counties, first asking for voluntary compliance and offering technical and financial assistance to do things like helping with fencing to keep cattle away from streams, Susewind said.
Ecology issued an order in 2009 claiming Lemire’s cattle had “substantial potential to pollute” and ordering him to fence them out of the creek. Ecology’s order was upheld by the state Pollution Control Hearings Board before Acey overturned it.
Ecology officials have said the creek is polluted above and below Lemire’s ranch. They say they’ve found large amounts of manure next to the creek and uncontrolled cattle access, extensive overgrazing and erosion of creek banks, all in violation of state law.
Lemire disagrees, saying he follows best management practices recognized by the agencies, including keeping water troughs, feeding areas and salt licks away from the creek. He says he’s fenced cattle away from steeper creek banks.
“I’m saddened the state is pursuing this especially since it didn’t have the evidence to back up its claim,” said Toni Meacham, Lemire’s attorney.
Ecology’s site visits were limited and were not enough to show a substantial potential to pollute, she said.
“We take the position that you need evidence and scientific data before you can issue an order and there was nothing there,” Meacham said. She cited a case where a federal agency was ruled to have erred by failing to prove pollution before requiring a processor to get a pollution permit.
Noting Ecology has greater financial resources than Lemire, she said, “They have the potential to put a good man out of business because they can drive him into the ground financially with this appeal.”
Rancher beats Ecology in court
Updated: Thursday, August 11, 2011 12:59 PM
Judge says five visits were insufficient to reach conclusion
By DAN WHEAT
Capital Press
DAYTON, Wash. — A rancher says it will take time to feel at home on his ranch after winning a lawsuit against the Washington state Department of Ecology.
“I’d like to pursue what I started in 1990, to have a nice herd of cattle and enjoy my retirement,” said Joe Lemire, 68, while noting he has more issues to raise if the state appeals.
“I hope they leave us alone,” he said. “We’re not doing anything wrong, never have.”
Columbia County Superior Court Judge William D. Acey heard arguments July 7 and found insufficient evidence for Ecology to have issued an order in 2009 claiming Lemire’s cattle had “substantial potential to pollute” Pataha Creek and ordering that he fence it off, said Toni Meacham, Lemire’s attorney.
Ecology officials alleged the creek was polluted above and below Lemire’s ranch and that they’ve found manure next to the creek, uncontrolled cattle access, overgrazing and erosion near the creek, all putting Lemire in violation of state law.
Lemire disputed Ecology’s allegations, saying he follows best management practices recognized by state and federal agencies.
The judge declared Ecology’s order null and void, saying it was based on just five site visits in four years that were insufficient to reach the conclusions it reached, Meacham said.
Water samples were not taken, so it came down to an Ecology official’s word against Lemire’s, Meacham said.Fencing would have kept Lemire from using 7 acres of his 265-acre ranch, which the judge found to be a taking of property without compensation.
“The message here is Ecology cannot run rampant over agriculture. They have to base their orders on evidence and sound science,” Meacham said.
Ecology is discussing its options, said Ivy Anderson, an assistant state attorney general representing the department in the case.
The judge held that there was no direct evidence that Lemire’s cattle caused any pollution, Anderson said.
Jack Field, executive vice president of the Washington Cattlemen’s Association in Ellensburg, attended the court hearing. He said the ruling has important ramifications in more than a dozen other cases in Lincoln, Klickitat and Garfield counties, where ranches have received notices from Ecology.
He said four of the five site visits were in February, the worst month of the year.
The ranch is 15 miles northeast of Dayton.
Rancher sues over creek
Posted: Thursday, December 23, 2010 9:00 AM
Department of Ecology wants creek fenced off, protected from livestock
By DAN WHEAT
Capital Press
A cattle rancher near Dayton, Wash., says the state Department of Ecology has bullied him for not voluntarily fencing off a creek that runs through his ranch.
Rancher Joe Lemire said Ecology has violated his constitutional rights by ordering him how to manage his ranch and that the state’s Pollution Control Hearings Board violated his rights by not giving him a hearing before finding him in violation of Ecology’s order. Lemire says he’s laying his ranch on the line to fight Ecology and the board in court.
Lemire filed his petition for judicial review in Columbia County Superior Court on Nov. 29. If he loses, Ecology could fine him $10,000 a day and that would force him to sell his ranch, said Toni Meacham, Lemire’s attorney in Connell. No court dates have been set.
Lemire, 67, raises registered Polled Herefords on 265 acres 15 miles east of Dayton.
Pataha Creek runs through his property for about 4,600 feet. It dries up two out of three summers, Lemire said.
Pataha Creek above and below Lemire’s ranch is polluted and impaired under the federal Clean Water Act, said Michael Hepp, Ecology compliance specialist in Spokane. The creek is too warm, is too high in fecal coliform and pH and has salmon, Hepp said.
According to the Pollution Control Hearings Board’s Oct. 27 ruling, Ecology observed and documented Lemire’s ranching operations on numerous occasions between February 2003 and November 2009.
In a Nov. 23, 2009, order, Ecology said it found uncontrolled livestock with access to the creek, large amounts of manure adjacent to the creek, severe overgrazing of riparian areas along the creek, livestock containment areas near the creek and extensive hoof damage and erosion of creek banks.
All of that constituted a “substantial potential to pollute” and therefore put Lemire in violation of state law, Ecology said in the order.
The order required Lemire to develop a plan to prevent pollution, install practices of an approved plan by May 31, 2010, allow Ecology to inspect his property for compliance with the order and have changes to a previously approved plan reviewed and accepted by Ecology.
Lemire disputes Ecology’s findings. He told Capital Press that he follows best management practices recognized by state and federal agencies, including keeping water troughs, feeding areas and salt licks away from the creek. He said he’s careful not to allow overgrazing and has used some fencing to direct cattle away from steeper creek banks.
Ecology wanted Lemire to join the voluntary federal Conservation Reserve Enhancement Program through which he would be paid to fence off the creek bank as wildlife habitat while being allowed two spots for cattle to cross, Meacham said.
“They told me I needed to join and I chose not to. We are doing nothing wrong out here and have evidence to back that up,” Lemire said. “They want the creek and I’m one of the holdouts.”
Another rancher in the area is fighting Ecology. Several others have caved in and all feel bullied, Lemire said.
Ecology’s order violates a Right to Farm Act by ordering Lemire how to farm, Meacham said.
Jack Field, executive vice president of the Washington Cattlemen’s Association in Ellensburg, said he met with Lemire and Meacham but has not been to the ranch.
Field said he and the Washington Farm Bureau are working with ranchers in Lincoln, Klickitat and Garfield counties who have received similar notices from Ecology.
“Most ranchers want to fix the problem. Many times Ecology is unable to clearly quantify what the problem is,” Field said.
“Under the state Clean Water Act, Ecology can act if they think there is significant potential to create pollution. If we own a Corvette, do we automatically deserve a speeding ticket?” Field said.
“It’s not just having a Corvette. The Corvette is wrapped around a tree,” Hepp said. “There’s multiple evidence of pollution.”
Ecology doesn’t use its power flippantly, he said.
“Our real goal is to get things done in the stream and improve water quality,” Hepp said. “The town of Pomeroy and other ranchers have done a lot to fix things up in this stream.”
Toni Meacham Attorney At Law 