Case centers on evidence of small herd polluting stream

By MATTHEW WEAVER

Capital Press

The Washington State Court of Appeals next month will hear the state's appeal of a case in which a Dayton, Wash., rancher won a battle against the Department of Ecology.

A Superior Court judge last year tossed out a state Pollution Control Hearings Board order that required Joe Lemire to avoid the risk of pollution from his 29 head of cattle on his ranch near Pataha Creek.

The department's appeal of that ruling will go before the state court of appeals June 13 in Spokane.

"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.

Acey said it was clear the order was issued based on disenchantment with Lemire for not working with the department.

Laura Watson, Washington state assistant attorney general, said the state hopes to reinstate the board's ruling.

"It's important to Ecology to be able to use its authority to address nonpoint source pollution and the Superior Court decision calls that authority into question," Watson said.

Lemire expects Acey's ruling to be upheld, but said the department would likely try to get an extension on the hearing date until next fall.

"They've done everything they can to drag their feet on this issue," he said. "Obviously the plan is to try to break me. They've got quite a ways to go if they're going to do that."

Ecology claimed to observe cattle on Lemire's ranch with uncontrolled access to the creek and repeated observations of manure in the stream corridor. Lemire denied the charges, saying he was using best management practices.

"Ecology does not need to present scientific analysis that the livestock wandering or crossing the stream actually caused pollution of the waters of the state, nor does Ecology have to rule out all other contributing factors," chair Andrea McNamara Doyle wrote in the pollution control hearings board order, issued October 2010. "Ecology need only show that the actions at the Lemire property posed substantial potential to discharge pollution to the waters of the state."

Acey suggested that the department and Lemire consider entering nonbinding mediation efforts.

"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."