'Potential' to pollute a poor argument

A Washington State Supreme Court case has gained the attention and support of numerous agriculture organizations, including the Cattle Producers of Washington, as a Dayton-area rancher is challenging the Washington Department of Ecology’s attempt to take his land via pollution regulations.

Rancher Joe Lemire has 29 head of cattle that sometimes graze along Pataha Creek near Dayton in Columbia County. In 2009, the Department of Ecology (DOE) ordered Lemire to install permanent fencing along the creek to prevent his cows from allegedly “polluting” the stream. Lemire argued that fencing off the creek would render his operation unfeasible and result in a “taking” of property by the state. Lemire sued the DOE in January of 2012, winning his case at the lower level before it was accepted by the Washington Supreme Court.

Lemire also contended that DOE was over-reaching their authority by ignoring the necessity of a specific point of “discharge” in order to regulate pollution. Instead, DOE had “extended enforcement to source site conditions.” In his legal appeal, Lemire also noted that unless DOE is reigned in, it will set a precedent for every livestock operation in the state.

“Ecology has used its purported administrative authority to severely restrict the use of private property……each and every farmer and rancher will be subject to administrative mandates and a loss of farming rights” if DOE wins, Lemire said.

Several members of the Cattle Producers of Washington (CPOW) travelled to Olympia to hear the arguments on Lemire vs. Department of Ecology before the Washington Supreme Court on November 14.

“We are concerned that Ecology is targeting this rancher and trying to make an example out of him without any real proof,” said CPOW President Dave Dashiell. “While Ecology is trying to keep a cow out of the creek, they are ignoring that there are a great number of animals, particularly wildlife, which could also be considered sources of pollution.”

CPOW notes that four different public agencies own over 190,000 acres near Dayton, but none of them have ever been asked to regulate their “non-point” sources of pollution. The public lands in Columbia County include the Umatilla National Forest and the Wenaha–Tucannon Wilderness Area, a landmass of over 160,000 acres where wildlife live, drink from and defecate near streams and waterways.

It is much more likely those areas with their abundance of unmanaged wildlife regularly “pollute” the streams and waterways in the area, said Dashiell.

“It is unreasonable to start regulating someone due to their ‘potential’ to pollute unless you are going to address all of the ‘potential polluters’,” said Dashiell. “This case shows that DOE is looking to illegitimately expand their authority in order to control private land.”

According to legal counsel involved in the case, it will likely be several months before the Washington Supreme Court issues a decision on Lemire vs. Department of Ecology.

CPOW is Washington’s fastest growing cattle producer organization, representing approximately 35 percent of the state’s beef cowherd that contributes over $100 million to Washington’s economy. For more information, visit www. cattleproducersofwashington.org.