'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."