OLYMPIA, Wash. (Legal Newsline) -- The Washington Supreme Court last week favored a state agency in a case brought against a cattle rancher for alleged water contamination.
The court majority ruled against Joseph Lemire and instead sided with the state Department of Ecology, which issued an administrative order directing Lemire to take steps to curb pollution of a creek that runs through his property.
Lemire challenged the order, which was upheld on summary judgment by the Pollution Control Hearings Board.
Lemire filed an administrative appeal in Columbia County Superior Court. The trial court reversed the summary judgment determination and invalidated the agency order as unsupported by substantial evidence. The trial court also concluded that the order constituted a taking.
In its 19-page ruling filed Thursday, the court majority reversed the trial court on all counts, reinstated the board's summary judgment order and the underlying agency order, and held Lemire failed to establish a taking occurred.
"Lemire failed to prove that he has suffered any economic loss, let alone an economic loss that constitutes a taking," Justice Debra Stephens wrote for the majority.
In his dissent, Justice James Johnson said the majority's "contrary decision" disregards a judgment of a superior court and "undermines, if not destroys," the value of Lemire's agricultural land that is entitled to statutory and likely constitutional protection.
"Glossing over genuine issues of material fact, the majority rubber stamps the Pollution Control Hearings Board's decision and overturns the trial court's grant of summary judgment," he wrote.
"The Department of Ecology's order is extremely burdensome and may 'take' seven acres of this farm, as the trial court held."
Johnson said the order converts land that was homesteaded in the 1800s -- and has been continuously used for agricultural purposes since that time -- into nonagricultural property.
"The order also may force a rancher, whose retirement is tied up in his small farming and ranching operation, to spend tens of thousands of dollars to erect the very fence that will keep him from using a significant portion of his property," the justice wrote, adding that he would remand the case for hearing.
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