Judge Relents, Cuts Environmental Fine Businessman Will Have To Pay Only Health District’s Legal Fees After Politicians Bring Pressure To Bear

After lauding John A. Hern Jr.’s record as an upstanding member of the community Wednesday, a judge all but erased the businessman’s $495,000 fine for a litany of environmental violations.

Hern will pay only Panhandle Health District’s legal fees from the agency’s three-year effort to get him into compliance with environmental laws. That amounts to just under $20,000.

Hern was accused of refusing to install septic systems or properly store hazardous chemicals at his 32-acre industrial park. That park includes a metal-coating business, a fertilizer company, a road oiling business as well as Hern Iron Works - a scrap recycling business.

Panhandle Health District started trying to bring Hern into compliance after he refused to respond to queries about dangerous chemicals on his property in 1994. He also refused to allow health district inspectors on his property.

The inspection was finally accomplished months later with a court order and escorts from the Kootenai County Sheriff’s Department.

The Kootenai County Commissioners lashed out at the agency after Hern was fined in November 1996, accusing Panhandle Health of vindictive retaliation and of trying to bankrupt Hern. Hern contributed money to both Commissioner Dick Compton and Commissioner Ron Rankin’s election campaigns.

When District Judge Craig Kosonen levied the $495,000 fine in November 1996, he considered Hern’s “intransigent refusal to comply with the most basic, fundamental requirement … continuing despite the onset of litigation.” In hindsight, Kosonen said he now understands Hern’s fear of Big Brother.

In court Wednesday, Kosonen praised Hern’s contributions to the local economy, his work in the community and his efforts caring for and finding homes for retired racing dogs. The judge also noted that Hern is now in compliance with requirements for sewage disposal, hazardous chemical storage and supplying drinking water to the tenants at his Atlas Road site.

Kosonen also lauded Panhandle Health for its diligent effort to persuade Hern to follow the law. The agency wasn’t “overzealous or zealous” but carried out its duties “in a rather restrained fashion,” Kosonen said.

Allegations to the contrary by the Kootenai County Commissioners were based on incomplete information, the judge said.

Larry Belmont, director of Panhandle Health, said he is pleased with the judge’s decision. “Our concern was compliance,” he said.

The decision sets two important precedents, he added. It says the health district acted appropriately and it has the right to do inspections on private property.

Hern told Kosonen he has “been totally confused by the whole issue. … I’ve been at the site for 27 years, I don’t want to foul my own nest.

“I don’t know why I’ve been dragged through this instead of being awarded Kootenai County Man of the Year,” Hern told the judge.

Hern’s attorney, John Magnuson, told the judge his client had started working to get his operation in line with the law as soon as he was contacted by the health district in April 1994.

While Magnuson acknowledged Hern refused to allow inspectors on the site, it only was because of advice from his attorney. That attorney was not Magnuson.

“Mr. Hern is not a recalcitrant malcontent,” Magnuson said.

Hern’s problems are not confined to Panhandle Health. The Kootenai County Planning and Zoning had similar frustrations with Hern’s violations of building and zoning requirements, said attorney Scott Reed, who represented Panhandle Health in court Wednesday. Hern turned buildings permitted only for storage into industrial businesses, said Reed.

After some negotiation, Hern finally came into compliance with building regulations although, “Mr. Hern moved towards the compliance with the plan reluctantly, rather like a turtle walking in molasses,” Reed wrote to the commissioners.

Hern also has had problems with tax assessors, who he has ordered to stay off of his property, said Reed.

Magnuson also argued that the $495,000 was far more money than Hern could pay. It could not be erased through bankruptcy, so “the fine would haunt him the rest of his life,” Magnuson said. “What good would that do?”

Hern’s record of rushing to fix his problems appears to be disputed. “That would be totally incongruous with us charging ahead if there had been any kind of cooperation,” said Reed.

Still, he emphasized that the agency has never asked for the penalties, aiming instead to get the situation fixed and to protect the environment. Reed withdrew Panhandle Health’s request for $9,000 in reimbursement for time expended by its inspectors at the behest of the county commissioners.

Commissioner Rankin was ecstatic about the reduced fine. “That’s so wonderful,” he said. “Justice has been served and I think John has learned a lesson.”

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