Water battle rises
Lemire takes fight to state Supreme Court; 'If we lose here, we all lose,' rancher says
By STEVE BROWN
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."