Posted: Wednesday, December 05, 2012 9:30 AM
Steve Brown/Capital Press
Rancher Joe Lemire and longtime friend Margaret McVicker leave the Temple of Justice after the Washington Supreme Court heard arguments in a water case on Nov. 13. The state Department of Ecology is appealing a judge's dismissal of a 2009 state Pollution Control Hearings Board order that required Lemire to avoid the risk of pollution from his 29 head of cattle in Pataha Creek, in Eastern Washington.
By STEVE BROWN
Rancher Joe Lemire questions whether inspectors from the Washington Department of Ecology got valid readings from Pataha Creek before accusing him of polluting state waters.
In 2009, the state Pollution Control Hearings Board ordered Lemire to avoid the risk of pollution from his 29 head of cattle. After a Superior Court judge dismissed the order, the hearings board and Ecology appealed the case to the state Supreme Court.
Laura Watson, a lawyer from the state attorney general's office representing Ecology, told the Supreme Court justices that Ecology's action was in response to fecal coliform samples taken from the seasonal creek downstream from Lemire's property.
Mary Sue Wilson, senior assistant attorney general, later confirmed that samples were not taken upstream of his ranch because the creek was on private property and inspectors could not get access to it.
Lemire insisted that Ecology does have access above and below his property. Just upstream are a Department of Fish and Wildlife fish trap and two county roads.
He also said that the owner of the 3/4-mile stretch just downstream "won't allow the state on his property, so the tests were taken 3/4-mile downstream."
Chad Atkins, with Ecology's Water Quality Program in Spokane, offered a different explanation. Inspectors didn't try to obtain access from any landowner, he said. The case is based on exhaustive documentation of conditions on Lemire's land known to cause water pollution.
"There was no upstream monitoring as part of this case, but we have done it in the past," Atkins said. "There has been a fair bit of data collected in the watershed over the years," including sampling done by Washington State University and conservation district inspectors.
Toni Meacham, one of the attorneys representing Lemire, said the rancher tried and was unable to get water samples DNA-tested to confirm the source of fecal coliform.
"Ecology did take samples but failed to follow their own protocol, and the DNA samples were removed from the case," Meacham said.
Atkins said DNA testing "is not an exact science, not a science we utilize a lot." Water quality goes beyond the bacteria issue, he said, and involves problems with temperature, dissolved oxygen, sediment, nutrients and acidity.
He also disagreed with Lemire's lawyers when they told the Supreme Court that Pataha Creek is dry most of year.
"Our data show it's a year-round stream, which provides habitat for endangered fish," he said.
Meacham said the essence of the case is that "Ecology claims that they do not have to prove pollution, that the possibility is enough. Clearly we do not agree with this stance."