Little creek sparks pivotal court battle
Updated: Thursday, December 20, 2012 12:29 PM
The Washington State Supreme Court last week heard the case of a 69-year-old Dayton rancher whose main transgression appears to have been to question the judgment and authority of the state Department of Ecology.
For his troubles, he has landed in court.
Joe Lemire's problems began nine years ago along the banks of tiny Pataha Creek in southeastern Washington. Lemire runs a couple of dozen cattle on 256 acres, which the creek crosses.
Ecology says it tried for six years to get Lemire to, in the agency's words, prevent "water quality impacts." Though a letter the agency sent him in 2009 says, "Ecology has documented violations of water quality standards for fecal coliform bacteria below your operation" it did not document what the bacteria level was upstream from his ranch. Nor did it acknowledge that the creek is typically dry five months of the year. During that time, there is no water to pollute.
Therein lies the rub. The agency in its letter says, "Your operation has been identified as having a significant potential to pollute." The letter also states that cattle were allowed access to the creek and some streamside areas are "degraded" and bare, eroded and have large manure accumulations.
With the letter, Ecology also had hand-delivered by a sheriff's deputy an administrative order that required Lemire to fence his cattle at least 35 feet from both sides of the creek. That would cost Lemire the use of 8 acres, or about 3 percent of his ranch.
The document also stated, "You have the right to appeal this order."
That's just what Lemire did.
The first appeal went to the state Pollution Control Hearings Board, a three-member panel that works for the state, which sided with Ecology. Lemire then appealed to the Superior Court, and that's where his case got more interesting.
"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.
He also said the department and Lemire should consider entering nonbinding mediation.
"Certainly, (Ecology) has the responsibility regarding clean water," Acey said. "But on the other hand, we do have a very small cattle ranch that's been there for over 100 years that has some rights, too. We've got to balance this thing and come up with something both sides can live with."
That apparently wasn't good enough for the folks at Ecology. The next stop was last week's hearing before the state Supreme Court.
During the court hearing, two lawyers from the state attorney general's office acknowledged that Ecology didn't get water samples upstream from the Lemire ranch.
What? During the past nine years Ecology was unable to get an upstream water sample?
Much of the case hinges on Ecology's requirement that Lemire fence off the creek, which runs through his property for nearly a mile. Doing that constitutes a "taking" on the part of the state, he argues. If Ecology can "take" Lemire's land by forcing him to keep his cattle away from areas that offer good grazing, the use -- and, presumably, the value -- of the land is diminished or lost entirely, according to the argument.
During the Supreme Court hearings, one of the justices showed particular interest. Justice James Johnson is a former assistant state attorney general and has been in court many times before. According to his biography on the court's website, he has tried major cases involving the environment. He asked one of the state's lawyers about the Superior Court judge's statement that there was no proof of actual pollution.
The lawyer said the state has the authority to take corrective action over potential pollution before it impacts public health.
This has the earmarks of a case in which Ecology believes there was a problem but was unable to prove it conclusively. It is also an example of an agency that at first offered Lemire help but when he figured out he would lose access to as much as 3 percent of his property decided against it.
Lemire's is a tiny ranch on a tiny creek in a remote corner of Washington state. Yet if the full force of the state can come down on him for "potentially" polluting a seasonal creek part of the year and cause him to lose access to valuable grazing land in the process, every farmer and rancher has cause for concern.
If Ecology can do that to Joe Lemire, it can do it any farm or ranch in Washington state, his lawyer, James Carmody, told the court.
Lemire recently said that he has spent $80,000 to defend himself. Seeing the stakes, other groups and organizations have helped with his legal bills.
"There are thousands of people backing us," he said after last week's hearing. "If we lose here we all lose."