The state of Washington has tried for 10 years to get Dayton rancher Joseph Lemire’s cattle out of Pataha Creek.
Thursday, the state Supreme Court said he, and they, will have to stop their foot-dragging. The ruling affirmed the Department of Ecology’s authority to regulate non-point source pollution; a victory for clean water, but one not likely to resolve the running debate on what constitutes a “taking” of property.
The retired Lemire, who runs fewer than 100 head, had challenged the DOE’s authority to require fencing and other measures that would reduce the sediment and fecal matter flowing into the Columbia/Garfield county stream. He had also rejected various state and federal programs that would have paid for the fencing, stream bank remediation, an off-stream water source, even potential rental payments on land his cows might not be able to access.
The Pataha is a seasonal creek, but one with a higher profile than most, because in 1993 the Northwest Power and Conservation Council designated the watershed a model for work that would help improve fish spawning conditions there and in the Tucannon River. As a result, the Bonneville Power Administration and conservation districts spent more than $300,000 by 2007 to clean up the stream.
Conditions on Lemire’s ranch were, to say the least, counterproductive.
But his refusal to make improvements despite the available assistance was embraced by conservatives who saw in his case a miniature of their effort to fight state or federal land use regulation. The Washington Cattlemen’s Association and Washington Farm Bureau rallied to his side.
Washington Waterkeepers and several tribes filed legal briefs supporting the DOE.
A Pollution Control Hearings Board decision in favor of the DOE was overturned by the Columbia County Superior Court, which the Supreme Court overruled, 8-1. The dissenter, Justice James M. Johnson, mostly contested the validity of the DOE’s evidence, given the department’s inability to sample water near the section of the Pataha crossing Lemire’s property.
But neither Johnson nor the majority led by Justice Debra Stevens offered much support for the argument that the DOE’s demands on Lemire were compromising the value of his property.
“It does not appear the (majority’s) order takes any of the sticks in Lemire’s bundle of property rights,” Johnson wrote.
Given the expansive definition of takings under the Washington Constitution, the court’s ruling will disappoint Lemire’s supporters. But, as a commentator from the conservative Pacific Legal Foundation noted, the court nevertheless recognized the validity of the principle.
The remediation the DOE sought from Lemire just was not that burdensome.
With that, there is an opportunity here to find the middle ground for state and Lemire. The 2009 DOE order for remediation has expired. With the legal issue apparently resolved, it would be better for everyone if the department and he re-engaged and found a workable resolution.