Recently, the Washington Supreme Court made a decision that will impact many Eastern Washington ranchers. The case involves a Columbia County cattle rancher and the enforcement of a Washington Department of Ecology administrative ruling that required the rancher to fence off his cattle from a stream that runs across the rancher’s property. The rancher had only about 60 head of cattle on his 250 plus acres.

In 2009, after some investigation, a DOE administrative order was issued that required the rancher to fence the stream on his property so his cattle could not access it or pay a fine of $10,000 per day. The rancher appealed to the Pollution Control Hearings Board. He cited 54 reasons why the DOE order was mistaken or wrong, but the Hearings Board ruled against the rancher. The rancher then filed a lawsuit in Columbia County Superior Court. The DOE argued that under state law, just the potential of his cattle to cause pollution provided sufficient cause for enforcement whether or not any pollution had actually occurred. The Superior Court found in favor of the rancher.

The DOE appealed to the Court of Appeals. Without making a decision, the Court of Appeals transferred the case to the Supreme Court in November of 2012. In August of 2013, the Supreme Court handed down a judgment in favor of the DOE and against the rancher. The decision was 8 to 1. Justice Debra Stevens wrote the opinion, saying that since access to the stream by cattle was a recognized source of pollution, the DOE had met its burden of proof under the law and that direct evidence of pollution was not necessary. In other words, it did not matter whether or not the rancher’s cattle actually polluted the stream, only that the cattle are a recognized source of pollution.

This decision has huge implications for Washington cattle producers and livestock ranchers. The requirement that a rancher fence his animals away from streams that pass through his property, is “extremely burdensome” in the opinion of Justice James Johnson, the lone dissenter to the opinion. He accused the majority of “rubber stamping” decisions by the DOE and PCHB. He went on the say, “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.”

Apparently there was no thought about how the federal government leases out federal land to ranchers and permits them to run cattle on forestland and that these cattle have unrestricted access to streams and water sources. And there was probably no thought given to the inescapable conclusion that all the wildlife in the woods have access to the streams and are potential sources of pollution. Does the court want every stream in Washington to have a fence on both sides to protect it??? That makes a pretty picture doesn’t it?

I like clean water as well as anyone, but I think this decision is misguided. Before effectively taking the use of land, the government ought to have to prove that what a person is doing on their land is a real source of pollution rather than just have the potential for polluting. This is an example of the enforcement of a law that does not serve all the people and an example of an agency that has run amok. Justice Johnson said the court was simply following agency desires. Maybe you can tell, I agree with Justice Johnson.

The case is Lemire v Washington Department of Ecology. I hope our legislators, Joel Kretz, Shelly Short, and Brian Dansel can find other people in Olympia with common sense and change this law.