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  IN THE SUPREME COURT OF THE STATE OF WASHINGTON



JOSEPH LEMIRE,

                         Respondent,              NO. 87703-3

            v.

STATE OF WASHINGTON,                              ENBANC
DEPARTMENT OF ECOLOGY; and
TI-ffi POLLUTION CONTROL
HEARINGS BOARD,                                                ~AUG   1 5 2013
                                                  Filed - - - - - - -
                         Appellants.



      STEPHENS, J.-The Department of Ecology (Ecology) is charged with

protecting our state waters from actual or potential contamination under the water

pollution control act (WPCA), chapter 90.48 RCW.           In this review of an

administrative order, we are tasked with determining whether Ecology has acted

within its statutory authority. Ecology issued an administrative order to a cattle

rancher, Joseph Lemire, directing him to take several 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 (Board).

Lemire filed an administrative appeal in Columbia County Superior Court. The
Lemire v. State Dep 't ofEcology & Pollution Control Hearings Bd., 87703-3




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. We reverse the trial court on all

counts, reinstate the Board's summary judgment order and the underlying agency

order, and hold that Lemire failed to establish a taking occurred.

                     FACTS AND PROCEDURAL HISTORY

       Joseph Lemire runs a small cattle operation in Columbia County. Pataha

Creek runs through his grazing land. The creek is on a state list of polluted water

bodies. In 2003, Ecology and the Columbia Conservation District performed a

watershed evaluation in Columbia County, which identified Lemire's ranch as

having conditions detrimental to water quality. From 2003 to 2008, Ecology made

four visits to Lemire's property. On those visits it documented a number of

conditions that it believed could contribute to the pollution in Pataha Creek. In

2009, it made visits to the property in March, April, and May, where it observed

the same conditions. Beginning in 2003, Ecology attempted to work with Lemire

to implement management practices that would curb pollution into the creek, with

little success. 1 Following its 2009 observations, Ecology issued administrative

order 7178.    The order prescribed a number of corrective actions for Lemire,


       1
          Contrary to the dissent's unsupported assertion that Ecology spent "six years
trying to make a case against Lemire," dissent at 5 n.5, the record shows that Ecology
spent six years attempting to work with Lemire in order to remedy the conditions on his
property without resorting to issuing an order. See, e.g., Admin. Order No. 7178, at 2
("Since 2003, Ecology has made five attempts to provide Mr. Lemire technical and
financial assistance to remedy the identified pollution problems. The local conservation
district has also offered technical and financial assistance.").

                                          -2-
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Bd., 87703-3




including constructing livestock fencing and off-stream water facilities in order to

eliminate livestock access to the stream corridor.

       Lemire challenged the order before the Board. Ecology moved for summary

judgment, which the Board granted, concluding there were no genuine issues of

material fact in dispute. Lemire then brought an administrative appeal before the

Columbia County Superior Court. After reviewing the administrative record, the

trial court reversed the summary judgment determination and invalidated the

agency order, holding the order was unsubstantiated by the record, and effected an

unconstitutional taking. Ecology appealed, and Division Three of the Court of

Appeals certified the case directly to this court.

                                     ANALYSIS

       Washington's WPCA is designed to "insure the purity of all waters of the

state." RCW 90.48.010. Ecology is charged with implementing the pollution-

prevention purpose of the WPCA. In order to effectuate this purpose, Ecology is

vested with the authority to issue orders for violations of the WPCA and for

activities that create a substantial potential to violate the WPCA.               RCW

90.48.120(1 ).

       We are asked to consider the propriety of an agency order requiring Lemire

to come into compliance with the WPCA. Lemire challenges the agency action on

both statutory and constitutional grounds.           We will turn first to his statutory

arguments.




                                           -3-
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Bd., 87703-3




      A. The Board properly upheld Ecology's order on summary judgment

        In an appeal under the Administrative Procedure Act (APA), chapter 34.05

RCW, the appellate court sits in the same position as the superior court, reviewing

the administrative record directly rather than the superior court record. Griffith v.

Emp't Sec. Dep't, 163 Wn. App. 1, 6, 259 P.3d 1111 (2011). In an appeal from an

administrative action, as elsewhere, "[s]ummary judgment is appropriate only

where the undisputed facts entitle the moving party to judgment as a matter of

law." Verizon Nw., Inc. v. Emp't Sec. Dep't, 164 Wn.2d 909, 916, 194 P.3d 255

(2008).     The facts in the administrative record are viewed in the light most

favorable to the nonmoving party, and conclusions of law are reviewed de novo.

!d.

         Here, the Board granted summary judgment in favor of Ecology when it

determined there were "no materially disputed facts about the potential for

discharge of organic material to state waters in violation of the statute."

Administrative Record (AR) 12, at 12 (Order Granting Mot. to Dismiss and Mot.

for Summ. J.).

         The trial court reversed the Board, reasoning that summary judgment was

not appropriate because substantial evidence did not support the agency's

underlying order. Having reversed the Board's order, the trial court went a step

further and invalidated Ecology's underlying order.         Lemire argues this court

should uphold that determination.       He argues that the agency order is invalid

because it is not supported by substantial evidence and because Ecology lacks the


                                           -4-
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Bd., 87703-3




                                                   2
authority to regulate nonpoint source pollution.       The party asserting the invalidity

ofthe order carries the burden of proof. RCW 34.05.570(l)(a).

       1. Substantial evidence supports Ecology's order

       An agency's final decision may be invalidated by a superior court if the

order is not supported by substantial evidence when the record is viewed as a

whole. RCW 34.05.570(3)(e). The trial court appeared to rely on this provision,

explaining that there was a "modicum of evidence" substantiating Ecology's order.

Clerk's Papers (CP) at 191. 3

       Ecology is authorized to issue orders remedying not only actual violations of

the state WPCA, but also those activities that have a substantial potential to violate




       2
         The AP A allows a court to grant relief from an agency's order only in the
following circumstances:
              (a) The order, or the statute or rule on which the order is based, is in
       violation of constitutional provisions on its face or as applied;
               (b) The order is outside the statutory authority or jurisdiction of the
       agency conferred by any provision of law;
               (c) The agency has engaged in unlawful procedure or decision-
       making process, or has failed to follow a prescribed procedure;
               (d) The agency has erroneously interpreted or applied the law;
               (e) The order is not supported by evidence that is substantial when
       viewed in light of the whole record before the court ... ;
               (f) The agency has not decided all issues requiring resolution by the
       agency;
               (g) A motion for disqualification ... was made and was improperly
       denied or [should have been made];
               (h) The order is inconsistent with a rule of the agency unless the
       agency explains the inconsistency by stating facts and reasons to
       demonstrate a rational basis for inconsistency; or
               (i) The order is arbitrary or capricious.
RCW 34.05.570(3).
       3
        The trial court also determined that that the order constituted a per se taking of
Lemire's land. CP at 191. This determination is addressed below.

                                           -5-
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Bd., 87703-3




the WPCA.       RCW 90.48.120.        Activities that violate or have the substantial

potential to violate the WPCA are discussed in RCW 90.48.080:

      It shall be unlawful for any person to throw, drain, run, or otherwise
      discharge into any of the waters of this state, or to cause, permit or suffer to
      be thrown, run, drained, allowed to seep or otherwise discharged into such
      waters any organic or inorganic matter that shall cause or tend to cause
      pollution of such waters according to the determination of the department,
      as provided for in this chapter.

(Emphasis added.) Pollution is broadly defined as

       such contamination, or other alteration of the physical, chemical .or
       biological properties, of any waters of the state, including change in
       temperature, taste, color, turbidity, or odor of the waters, or such discharge
       of any liquid, gaseous, solid, radioactive, or other substance into any waters
       of the state as will or is likely to create a nuisance or render such waters
       harmful, detrimental or i~urious to the public health, safety or welfare, or
       to domestic, commercial, industrial, agricultural, recreational, or other
       legitimate beneficial uses, or to livestock, wild animals, birds, fish or other
       aquatic life.

RCW 90.48.020.

       Hence, substantial evidence will support Ecology's order if the evidence

shows that conditions on Lemire's ranch have substantial potential to violate

prohibitions against discharging into state waters organic material that pollutes or

tends to cause pollution.

       The evidence Ecology presented at the administrative hearing before the

Board showed that Ecology visited Lemire's property in February 2003, February

2005, February 2006, and March 2008.               In 2009, Ecology visited the Lemire

property on March 12, March 25, April 3, and May 4. Decl. of Chad Atkins at 3.

Over the course of these visits, the following conditions were observed at the

Lemire property around the creek: livestock with direct access to the creek,

                                             -6-
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Bd., 87703-3




overgrazmg of the riparian corridor, manure in the stream corridor, inadequate

"woody" vegetation, bare ground, erosion, cattle trails across the creek, trampled

stream banks, and cattle "wallowing" in the creek. Id. at 3-4.

       Ecology's expert, Chad Atkins, described via declaration how these

conditions tend to cause pollution. Livestock defecation both in and adjacent to

the stream results in the presence of fecal coliform and other pathogenic

contamination in the water.      Id. at 4.     These pathogens have been linked to

outbreaks and epidemics of disease in humans, including salmonellosis,

leptospirosis, anthrax, and brucellosis. In addition, fecal coliform in the water

affects not only the health of humans who come in contact with the contaminated

water, but also the health of the water body itself; the pathogen depletes oxygen in

the water, harming fish and other aquatic life and affecting the pH balance of the

water. Id. at 5.

       In addition, uncontrolled movement of cattle across and around the stream

bed compromises riparian vegetation, which, along with hoof pressure from the

livestock, makes the stream banks unstable and causes erosion into the stream bed.

Id. at 6. The lack of vegetation eases the introduction of fecal matter into the

stream. The erosion in turn introduces sediment that changes the shape and course

of the stream, making it shallower and more susceptible to solar heating and raised

temperatures. Id. at 6, 8. As noted above, the increased temperatures have a

 significant negative impact on aquatic life. The erosion, like the introduction of

 livestock waste material into the stream, also changes the pH of the stream and


                                             -7-
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Bd., 87703-3




impacts the measure of dissolved oxygen in a stream, which can negatively impact

the stream's aquatic life. !d. at 7-8.

       Atkins's declaration explains that Pataha Creek is listed on the State's water

quality assessment, a report that is required by the federal Clean Water Act

(CWA). Id. at 2. The report describes the current conditions ofthe State's waters

to the United States Congress and the public. !d. The assessment report lists

Pataha Creek as exceeding water quality standards for fecal coliform bacteria, pH,

temperature, and dissolved oxygen. !d. The creek is a polluted water body. !d.

       In sum, then, Atkins's declaration states that Pataha Creek is presently

polluted due to its levels of fecal coliform, pH, temperature, and dissolved oxygen

content. He did not conduct the tests confirming this pollution, but his declaration

explains that the data evincing pollution was gathered as part of a federally

mandated report that describes the current conditions of the creek.           Atkins's

declaration further explains that the pollution of the creek is consistent with what

one would expect from the conditions at the Lemire property.

       Lemire disputes some of Atkins's observations. He claims that the banks of

Pataha Creek are naturally sparsely vegetated, and the denudation Atkins observed

was not caused by the activities of Lemire's cattle. AR 9, at 2 (Decl. of Joseph

"Joe" Lemire). Lemire challenges Atkins's suggestion that the cattle wallow in the

stream but concedes the animals drink from the stream and cross the creek at times.

!d. at 4-5. Lemire also disputes the suggestion that the diseases associated with

 fecal matter in the creek should be of concern, relying on information he received


                                           -8-
Lemire v. State Dep 't ofEcology & Pollution Control Hearings Bd., 87703-3




from veterinarians at a clinic in Lewiston, Idaho. !d. at 7. Before the trial court,

Lemire's briefing disputed Atkins's observation that there were large amounts of

manure adjacent to the stream. CP at 73.

      We acknowledge Lemire's challenges to Atkins's observations, but

substantial evidence nonetheless supports Ecology's order. And, reviewing the

record in the light most favorable to Lemire, the evidence supports a grant of

summary judgment for Ecology.         Atkins averred that his observations of the

cattle's access to the stream was consistent with the kind of pollution found in the

stream, such as sediment content, fecal coliform, and other disturbances of the

water quality. This was all Ecology was required to prove under RCW 90.48.120,

RCW 90.48.080, and RCW 90.48.020.                It was not required to rule out other

sources of pollution in the creek. Ultimately, as the Board recognized, Lemire did

not dispute those facts that were operative to Ecology's order. In particular, he did

not dispute that his cattle have unrestricted access to the stream.

       The trial court mischaracterized Ecology's burden under the relevant

statutes.   It noted, "[T]he record is absolutely absent of any evidence-direct

evidence-that Mr. Lemire's modest herd actually polluted Pataha Creek. There's

no testing, there's no showing, there's no increased numbers, there's nothing."

B-1 Verbatim Report of Proceedings (July 7, 2011) at 15 (emphasis added).

Lemire advances this argument regarding the lack of direct causation evidence or

testing. Resp't's Br. at 18-20. He maintains summary judgment cannot stand

because no link was ever proved between the pollution in the creek (which he also


                                           -9-
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Bd., 87703-3




contends was never confirmed for the stretch of creek running on his land) and the

conditions ofhis parcel. Id. at 19.

      But as noted, the statute under which Ecology operates does not require it to

prove causation. Ecology's expert declaration provided evidence that the current

condition of Pataha Creek is polluted.           His declaration further averred that

conditions on the Lemire property-e.g., the cattle's access to the stream-are

recognized causes of the discharge of organic matter into water, namely, the

livestock fecal matter and sediment. See RCW 90.48.080. Such organic matter

tends to cause pollution of waters. I d. Hence, Ecology met its statutory burden. It

was not required to show that the conditions on Lemire's property were a

proximate cause of the polluted creek. See RCW 90.48.120(1) (explaining that

Ecology may issue an order when it determines that a person creates a substantial

potential to violate pollution laws).

       Likewise, Lemire and amici's argument that "causation" is an issue of fact

that cannot be resolved on summary judgment is unavailing in light of the WPCA.

See Resp't's Br. at 20-21; Br. of Amici Curiae Washington Cattlemen's

Association et al. at 13-14. As noted, Ecology needed only to show the substantial

potential to violate under RCW 90.48.080, which its expert's declaration

established.    Moreover, the "causation" contemplated by the statutes is the

likelihood that organic or inorganic matter will cause or tend to cause pollution.

RCW 90.48.080.       Ecology's expert averred that fecal matter and sediment-

conditions present on the Lemire property-result in pollution, and this assertion is


                                          -10-
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Ed., 87703-3




unchallenged by Lemire. The trial court erred when it reversed the Board's grant

of summary judgment and invalidated Ecology's underlying order for lack of

factual support.

       The dissent chastises us for disregarding the supenor court's judgment.

Dissent at 19. In an AP A review, as previously noted, we sit in the same position

as a superior court and afford its decision no special weight. See Griffith, 163 Wn.

App. at 6. The dissent also claims that our holding today means that "in order for a

rancher to create a 'substantial potential' to pollute all the rancher has to do is ( 1)

have a state water body on his or her property that is not completely fenced off and

(2) own cattle that occasionally cross or drink from the water body." Dissent at

11-12 (footnote omitted). This is not anywhere near the fact pattern presented to

us here, as our recitation of this case and the evidence before the board makes

clear. As explained above, undisputed evidence in the record demonstrates that the

cattle had much more than occasional access to the creek. 4 Ecology properly

exercised its statutorily mandated powers and duties.


       4
         The dissent repeats the mistake of the trial court, seizing on Lemire's assertions
to deduce that the cows had "occasional" access to the creek. The trial court described
Atkins's observations as "an annual observation of seeing a cow or two cross the creek
and maybe you saw some manure in the creek or maybe you didn't ... [W]as it deer, was
it elk, was it the cattle?" B-1 Verbatim Report of Proceedings (July 7, 2011) at 14. This
is not a fair reading of the record before the Board. The dissent accuses us of taking as
"gospel truth" the declaration of Ecology's expert. Dissent at 5. But viewing the record
in the light most favorable to the nonmoving party, as the summary judgment standard
requires, does not require us to assume Ecology's affiant is untruthful. Moreover, there
are no facts in the record to support the dissent's suggestion that Ecology's expert never
actually visited the Lemire property, id. at 5 n.4, or that what he saw were merely gopher
mounds, id. at 6. The material facts, while perhaps doubted by the dissent, were not
disputed in the record.

                                           -11-
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Bd., 87703-3




        We affirm the Board's grant of summary judgment because there are no

genuine issues of material fact in dispute.             We reverse the trial court's

determination that Ecology's order was not supported by substantial evidence.

        2. Ecology did not exceed its authority in issuing the order

        An agency order may also be invalidated where it "is outside the statutory

authority or jurisdiction of the agency" or the "agency has erroneously interpreted

or applied the law."      RCW 34.05.570(3)(b), (d).        Lemire makes two separate

arguments concerning Ecology's authority to issue administrative order 7178.

First, he contends that Ecology lacks the jurisdiction to issue administrative orders

based on nonpoint source conditions because nonpoint source conditions do not

constitute a discharge under RCW 90.48.080 (the statute on which Ecology based

its order).   Second, he argues that the order contravenes statutory prohibitions

against the impairment of water rights and the conversion of agricultural land into

nonagricultural land. We address these arguments in turn.

           a. Ecology has the authority to regulate nonpoint source pollutants

        Ecology's regulatory scheme identifies two main types of pollution: point

source and nonpoint source. The Washington Administrative Code (WAC) defines

each.

        "Point source" means any discernible, confined and discrete conveyance,
        including but not limited to any pipe, ditch, channel, tunnel, conduit, well,
        discrete fissure, container, rolling stock, concentrated animal feeding
        operation, or vessel or other floating craft, from which pollutants are or
        may be discharged. This term does not include return flows from irrigated
        agriculture.




                                            -12-
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Bd., 87703-3




WAC 173-220-030(18).

              "Nonpoint source" means pollution that enters any waters of the
      state from any dispersed land-based or water-based activities including but
      not limited to, atmospheric deposition, surface water runoff from
      agricultural lands, urban areas, or forest lands, subsurface or underground
      sources, or discharges from boats or marine vessels not otherwise regulated
      under the National Pollutant Discharge Elimination System program.

WAC 173-201A-020.

       As noted, Ecology has broad authority to regulate any person causing the

discharge of matters into waterways that cause or tend to cause pollution. RCW

90.48.080. Lemire argues that Ecology's authority is limited to regulating point

source pollution because its regulations define "discharge of pollutant" as deriving

exclusively from a point source. He cites to WAC 173-220-030(5), which reads:

       "Discharge of pollutant" and the term "discharge of pollutants" each means
       (a) any addition of any pollutant or combination of pollutants to surface
       waters of the state from any point source, (b) any addition of any pollutant
       or combination of pollutants to the waters of the contiguous zone or the
       ocean from any point source, other than a vessel or other floating craft
       which is being used as a means of transportation.

(Emphasis added.)        Based on this definition,         Lemire reads the vanous

administrative code provisions to mean that nonpoint source pollution is not a

"discharge of pollutant" and that Ecology cannot regulate nonpoint source
             5
pollution.

       5
          Alternatively, Lemire appears to be arguing that Ecology is trying to force "a
quasi or backdoor permit process" and that "Ecology has no authority to require
agricultural operators to obtain permits for nonpoint source pollution which are addressed
through the application of best management practices."               Resp't's Br. at 28.
Administrative order 7178 in no way suggests that Lemire must obtain a permit, or a
quasi-permit, in order to continue an operation that has substantial potential to discharge
(or is discharging) pollutants into Pataha Creek. The point of Ecology's order is aimed at
curbing or stopping the discharge of pollutants into the creek.

                                           -13-
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Ed., 87703-3




      We disagree.      Most importantly, the regulation defining "discharge of

pollutants" is expressly applicable only to the WAC chapter governing the national

pollutant discharge elimination permit program, which does not apply to nonpoint

source pollutants. WAC 173-220-020 (titled "Permit Required" and explaining

that "[n]o pollutants shall be discharged to any surface water of the state from a

point source, except as authorized by an individual permit issued pursuant to this

chapter" (emphasis added)). Second, the plain language of RCW 90.48.080 and

RCW 90.48.020 give Ecology the authority to regulate nonpoint source pollutant

discharge. Lemire's appeals to tools of statutory construction and to a dictionary

definition of discharge are unavailing. Likewise, his contention that his activities

do not constitute discharges under the federal CWA, Resp't's Br. at 30-31, is

irrelevant to the question of Ecology's authority to regulate his activity under state

law. As amici Waterkeepers Washington explain, "Lemire's actions may not be

subject to a permit requirement under the [CWA], but his actions are well within

the state's jurisdiction to prevent and control pollution within its borders." Amici

Curiae Br. of Waterkeepers Washington in Support of State of Washington,

Department of Ecology at 15. We hold that Ecology did not exceed its authority

when it ordered Lemire to comply with regulations concerning nonpoint source

pollutant discharge into Pataha Creek.




                                          -14-
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Bd., 87703-3



          b. Ecology's order was not contrary to statutes prohibiting impairment
             of water rights and conversion oj agricultural land

      Lemire argues that Ecology's order conflicts with a statute protecting his

stock water rights, RCW 90.48.422(3), and a statute protecting the integrity of

agricultural lands, RCW 90.48.450(1). Resp't's Br. at 35.

       With regard to his claimed stock water rights, the trial court declined to

reach this issue because the record contained no evidence of the right. CP at 191.

We likewise reject this argument as lacking factual support.          Lemire bore the

burden to establish facts necessary to show Ecology's order was invalid. RCW

34.05.570(1 )(a).

       With regard to the conversion of agricultural land to nonagricultural land,

RCW 90.48.450 requires Ecology to "consider whether an enforcement action

would contribute to the conversion of agricultural land to nonagricultural uses"

prior to issuing a notice of a violation. Lemire argues that Ecology offered no

proof on this point.    Ecology responds that had Lemire timely raised it as an

affirmative defense at the hearings stage, Ecology could have offered evidence of

the measures taken to meet the statutory requirement. Reply Br. of Appellant at

17. Resolution of this issue comes down to the burden of proof. At this stage of

the proceedings, we must presume Ecology's order was valid. Again, we resolve

this issue based on Lemire's failure to meet his burden of proof under RCW

34.05.570(1)(a).




                                          -15-
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Bd., 87703-3




      We hold that Ecology is authorized to regulate nonpoint source pollution,

and there is no evidence suggesting that Ecology otherwise contravened statutory

prov1s10ns.

      The remammg 1ssue 1s whether Ecology's order impaired Lemire's

constitutional rights.

   B. Ecology's administrative order did not effect an unconstitutional taking

       Lemire contends that Ecology's order constitutes a taking in that it deprives

him of economic use of his land because ( 1) the fence he has been ordered to put

up along the riparian corridor will prevent his cattle from grazing pasturelands on

the far side of the creek and (2) the fence will prevent him from exercising his

stock water rights. The trial court accepted Lemire's argument and invalidated

Ecology's order.

       The parties and amici strenuously debate the framework upon which this

court should rest a taking analysis, including whether and to what extent our state

constitutional takings provision may offer greater protection than its federal

counterpart. Compare U.S. CoNST. amend. V, and WASH. CONST., art. I, § 16. But

we need not answer any of these questions today because there is no factual basis

for finding a taking.

       First, Lemire has not established that Ecology's order actually destroys his

cattle's ability to cross the creek to the pastureland on the other side.     Lemire

asserts that the "salient factual issues were not disputed" below and that the order

"mandated installation of exclusionary fencing and prohibited livestock from the


                                          -16-
Lemire v. State Dep 't ofEcology & Pollution Control Hearings Bd., 87703-3




riparian corridor." Resp't's Br. at 36. But Ecology did dispute the claim that its

order restricts the cattle from any access to the creek. Reply Br. of Appellant at 21.

Compare CP at 102 (Lemire's briefing before the trial court, arguing that the order

"precluded [livestock] from utilizing the area" and that " [s]uch a requirement

constitutes a 'taking' for constitutional purposes"), with CP at 129 (Ecology's trial

court briefing explaining that Lemire's plan to prevent pollution and protect water

quality "may include provisions for cattle crossing the creek, limited access to the

creek for watering, and off-creek drinking water supply."). The record contains no

finding in support of Lemire's assertion as to the effect of Ecology's order.

       Second, the trial court concluded that the administrative record was silent as

to the stock water rights Lemire claims. Therefore, any claimed invasion of such

rights cannot support a takings finding. Further, Lemire concedes that his claim of

economic loss is neither a physical invasion nor a regulatory taking. Resp't's Br.

at 38. Thus, on this record, we cannot agree that as a matter of law a per se taking

was established. Lemire failed to prove that he has suffered any economic loss, let

alone an economic loss that constitutes a taking. We reverse the trial court.

    C. Attorney fees under the equal access to justice act (BAJA)

       The trial court granted attorney fees to Lemire under the EAJA. CP at 191.

That statute provides:

       Except as otherwise specifically provided by statute, a court shall award a
       qualified party that prevails in a judicial review of an agency action fees
       and other expenses, including reasonable attorneys' fees, unless the court
       finds that the agency action was substantially justified or that circumstances
       make an award unjust. A qualified party shall be considered to have



                                           -17-
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Bd., 87703-3



      prevailed if the qualified party obtained relief on a significant issue that
      achieves some benefit that the qualified party sought.

RCW 4.84.350(1). Because we reinstate the Board's decision, Lemire is not the

prevailing party.   Accordingly, he is not entitled to a fee award under RCW

4.84.350(1).

                                   CONCLUSION

       We reverse the trial court and reinstate the Board's decision on summary

judgment upholding Ecology's administrative order 7178. The underlying order

was supported by substantial evidence, and Ecology has the authority to regulate

nonpoint source pollution.      The trial court's conclusion that Ecology's order

constituted a taking is unsupported by the record.        Because Lemire is not the

prevailing party for purposes of the BAJA, we further reverse the trial court's

award of fees and costs.




                                          -18-
Lemire v. State Dep 't ofEcology & Pollution Control Hearings Bd., 87703-3




WE CONCUR:




~lzuAt~+.            q
                      I




                                         -19-
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Bd., No. 87703-3
Dissent by J.M. Johnson, J.




                                      No. 87703-3

       J.M. JOHNSON, J. ( dissenting)-Glossing over genume Issues of

material fact, the majority rubber stamps the Pollution Control Hearings

Board's (Board) decision and overturns the trial court's grant of summary

judgment.      The Department of Ecology's (Ecology) order is extremely

burdensome and may "take" seven acres of this farm, as the trial court held.

The order here converts land that was homesteaded in the 1800s, which 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. 1'       2
                                                          Ignoring the obvious stakes,



1
  Interestingly, the majority never mentions that it is over seven acres ofland of this small
farm and ranch that is being taken or converted for state conservation purposes. See Br.
of Appellant at 36; Resp't's Br. at 2.
2
 On several occasions, Ecology proposed to financially help or bear this burden. We
will see.


                                                 1
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Bd., No. 87703-3




disputed facts, and a state constitution that provides strong protection to

private property rights, the majority denies Joseph Lemire his judgment from

a court with unquestioned jurisdiction.          Because the majority disregards

constitutionally protected private property rights, and bases its decision on

credibility judgments and factual findings, the law requires us to return the

case to the trial court. I therefore dissent. On other issues such as Ecology's

statutory authority, I have assumed the majority rulings.

                                  PROCEDURAL HISTORY

       Ecology issued its order in 2009. Lemire challenged the order before

the Board.      Ecology moved for summary judgment, which the Board

granted.

       Lemire properly appealed the Board's decision to the Columbia

County Superior Court, Judge William D. Acey presiding. After a thorough

review of the administrative record, Judge Acey reversed the summary

judgment determination, invalidated the agency order for lack of evidence,

and ruled that the order affected an unconstitutional taking.               Given the

record, Judge Acey was especially troubled by the fact that Lemire "never

had his day in court." Verbatim Report of Proceedings at 16. Ecology




                                           2
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Bd., No. 87703-3




appealed to Division Three of the Court of Appeals, which certified the case

to this court.

                                         ANALYSIS

I.     There Are Genuine Issues of Material Fact that Preclude Summary
       Judgment

       In an appeal under the Administrative Procedure Act (APA), chapter

34.05 RCW, we are to confine our review of disputed issues of fact to the

administrative record. RCW 34.05.558. Additionally, "where the original

administrative decision was on summary judgment, ... [we] must overlay

the AP A standard of review with the summary judgment standard." Verizon

Nw., Inc. v. Emp 't Sec. Dep 't, 164 Wn.2d 909, 916, 194 P.3d 255 (2008).

Consequently, in an appeal of an administrative grant of summary judgment,

we are to view the facts in the administrative record in the light most

favorable to the nonmoving party and review conclusions of law de novo.

!d.   Summary judgment is appropriate only "where the undisputed facts

entitle the moving party to judgment as a matter of law." !d.

       The operative statutes in this case, RCW 90.48.080 and RCW

90.48.120, make it illegal to pollute and give Ecology the authority to

initiate an enforcement action against someone who "creates a substantial



                                           3
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Bd., No. 87703-3




potential to violate" the State's pollution laws. 3               RCW 90.48.120.

Presumably, all landowners could potentially violate the state's pollution

laws, so when Ecology has not proved a direct violation but still wants to

initiate an enforcement action, the key word in the statute is "substantial."

Id.   The dictionary defines "substantial" as "having a solid or firm

foundation"     or   being    "soundly based."          WEBSTER'S       THIRD NEW

INTERNATIONAL DICTIONARY 2280 (2002).               Here, the key to the Board's

erroneous grant of summary judgment was its finding that there were "no

materially disputed facts about the potential for discharge of organic

material to state waters .... " Administrative Record (AR) 12, at 12 (Order

Granting Mot. to Dismiss and Mot. for Smnm. J.). The Board's omission of

the word "substantial" is telling of its mentality.

       The Board and the majority myopically focus on the allegations in

Ecology's declaration. Disregarding the legally required standard of review

for summary judgment, the Board and the majority assumed that Ecology's

allegations are gospel truth4 and summarily dismissed the statements in



3
  Notably, the arguable vagueness of the "substantial potential" standard has not been
argued nor resolved.
4
  The majority refers to Ecology's employee, Chad Atkins, as an expert in water quality.
Majority at 6. Atkins may be able to qualify as such, but no court made that "expert"


                                           4
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Bd., No. 87703-3




Lemire's declaration that counter Ecology's claims as "conclusory

allegations."    See AR 12, at 13; majority at 8.            An examination of the

allegations and Lemire's corresponding responses will illustrate my point.

       After eight sporadic site visits spread out over a six-year period,

visiting mostly during the winter months and never in the summer or fall, 5

and observing the property only from a distance, Ecology makes a number

of allegations about the conditions on the Lemire property. First, Ecology

claims there is overgrazing of the riparian corridor and consequently, bare

ground along the creek. AR 7 (Decl. of Chad Atkins at 3). Lemire responds

that the absence of vegetative growth along the creek in the winter and early

spring months (when Ecology made its observations) is due to the fact that

the creek dries up sometime between July and December. AR 9 (Decl. of

determination. ER 702. It is unclear, however, without more foundation whether Atkins'
statements regarding the conditions he claims to have observed from a distance-clear
outside the farm and from a passing highway-would be admissible in court. A fact
witness is required to establish enough foundation to show that he or she has personal
knowledge of the facts in question. ER 602. From the record, we do not know where
Atkins was when he made his observations, what time of day it was, how long he stayed
to observe, how it was that he was able to see the detail he describes from an observation
site somewhere off of Lemire's property, etc. It appears Atkins made most observations
from his car along Highway 12, which bisects Lemire's property.
5
 It is not insignificant that Atkins spent six years trying to make a case against Lemire.
Ecology made one visit in February 2003, one visit in February 2005, one visit in
February 2006, one visit in March 2008, and then a series of four visits in succession in
2009 when it was ramping up its efforts in anticipation of the enforcement order: two in
March, one in April, and one in early May. AR 7 (Decl. of Chad Atkins at 3).


                                            5
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Bd., No. 87703-3




Lemire at 1). Moreover, Lemire claims that the large bluff on the south side

of the property casts a shadow over the creek during these months so that

little to no direct sunlight touches the creek leaving the banks covered in

growth-inhibiting frost. I d. at 1. Lemire asserts that there is in fact a healthy

five to seven inches of grass that grows along the creek in the late spring.

AR 1, at 2 (Notice of Appeal). Moreover, Lemire claims he uses the "best

management practice" of flash grazing (a very limited grazing regime) in

order to protect riparian vegetation. I d. If a parcel is overgrazed, it does not

have enough vegetative cover. Was Lemire's property overgrazed or just

experiencing a normal lack of vegetative growth during the colder winter

and early spring?

       Second, Ecology claims that Atkins observed manure in the stream

corridor. AR 7 (Decl. of Chad Atkins at 3). Lemire counters that what

Atkins saw (again, from a distance) were gopher mounds.                  AR 1, at 1.

Lemire asserts that the cattle are not even permitted access to the creek from

late November through the run-off period in April (the time period in which

most of Atkins' visits and observations took place) to protect them from

flash flooding caused by heavy rains and snow melt. AR 9 (Decl. of Lemire




                                           6
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Bd., No. 87703-3




at 5). So, the obvious factual issue arises: Was a polluting substance seen by

Atkins?

         Third, Ecology claims there is inadequate woody vegetation along the

stream banks. AR 7 (Decl. of Chad Atkins at 3). Lemire maintains that

there are a variety of trees of various species growing along the creek. AR 9

(Decl. of Lemire at 2).          However, Lemire states that when he originally

purchased the property in 1991, there was little brush or 'woody species. I d.

Also, Lemire testifies that some of the trees have recently been taken by the

local beaver population as well as by fire. Id. Lemire testifies that cattle do

not damage the bushes and trees because they have ample room to

maneuver. I d. Lemire also cites studies, including the Northwest Power and

Conservation Council's Tucannon Subbasin Plan, that he argues show that

the "shrub-steppe" species commonly found on the Columbia Plateau do not

grow in the Tucannon Subbasin where his farm is located. Id. This record

does not establish whether climate and nature or Lemire's cattle cause the

alleged "inadequacy" 6 of woody vegetation along the creek.




6
    Again, a vague and subjective criterion.


                                               7
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Bd., No. 87703-3




       Fourth, Ecology claims that there are trampled stream banks, cattle

trails across the creek, and erosion, all as a result of cattle in the riparian

corridor. AR 7 (Decl. of Chad Atkins at 3). Lemire says that any erosion is

due to natural processes (erosion is how streams are formed in the first

place), especially during the wintertime when vegetation is naturally sparse. 7

AR 1, at 2.      Moreover, during the colder months, Lemire says that the

ground along the creek bank is naturally distorted by ice and frost formation,

which is known to cause soil movement. Id.

       Lemire concedes that at an earlier time he discovered a few places

where the cattle were breaking down a higher bank and that he solved that

problem by installing drift fencing in each such location. AR 9 (Decl. of

Lemire at 5). Additionally, Lemire contends that the cattle do not linger in

the riparian corridor, but mostly cross the creek to get to food in the other

pasture lands (that are otherwise inaccessible) and that when they do cross

they use the same small trails. I d. at 1, 5. In an assertion undisputed by

Ecology, Lemire notes the banks of the creek are mostly 10-12 feet high, so


7
  WAC 173-201A-260(1)(a) recognizes that sometimes water bodies "cannot meet the
assigned criteria due to the natural conditions of the water body" and that when this
occurs "due to natural climatic or landscape attributes, the natural conditions constitute
the water quality criteria."


                                            8
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Bd., No. 87703-3




the cattle could not walk on the banks or cross the creek at those places. Id.

Given that Ecology is now stating it would be acceptable for Lemire to

install gates in the fence to allow his cattle to access otherwise inaccessible

pastureland, the type of erosion Ecology claims it is seeking to prevent

cannot be caused by cattle periodically crossing from one pastureland to

another. See Br. of Appellant at 36. The record leaves an open factual

question as to whether the type of erosion that Ecology is seeking to prevent

is actually occurring, or may occur absent the order, requiring remand to the

court for resolution.

       Fifth, Ecology alleges that Lemire's cattle "wallow" in the creek. AR

7 (Decl. of Chad Atkins at 4). The dictionary defines "wallow" as "to roll or

move oneself about in an indolent ungainly manner" or "sprawl

luxuriously." WEBSTER'S, supra, at 2573. Lemire notes that Atkins did not

actually view any cattle "wallowing" because cattle do not wallow: they get

stuck in mud, so they prefer firm dry ground. AR 9 (Decl. of Lemire at 4).

Lemire states that cattle lying down in a creek may even drown. Id.               Cattle

often use their heads and necks to right themselves and when they are on

slick ground it may mean that they keep their mouths and noses under water




                                           9
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Bd., No. 87703-3




for too long while they are attempting to get up. Id.              Again, remand is

appropriate to resolve this unlikely and unsupported allegation of harm.

       Finally, Ecology claims that the cattle have direct, continual, and

uncontrolled access to the creek and that there is a livestock confinement

area adjacent to the creek. AR 7 (Decl. of Chad Atkins at 3-4). Lemire

responds that he constantly monitors his cattle and that the cattle are not

allowed access to the creek from late November through the run-off period

in April due to possible flash flooding. AR 9 (Decl. of Lemire at 5). Lemire

further alleges that there was a two-year period between 2003 and 2009 in

which no cattle ever accessed the creek. AR 1, at 3. Additionally, Lemire

argues that he has implemented best management practices since 1994. AR

9 (Decl. of Lemire at 3). For example, Lemire locates salt licks, the cattle's

watering troughs (one in each pasture), and the cattle's feed several hundred

yards to over three-quarters of a mile away from the creek, all in an effort to

protect the riparian corridor. I d.; AR 1, at 1.

       Lemire concedes that there is currently no fence stretching across the

entire creek on both sides, that the cattle will cross the creek to get to other

pastures (something Ecology apparently will have no problem with in the

future), and that the cattle will occasionally drink from the creek (again,

                                           10
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Bd., No. 87703-3




Ecology said that this would be no violation). 8 See Clerk's Papers (CP) at

129; Br. of Appellant at 36.       Lemire reiterates, however, that he does not

concentrate the cattle on the stream banks by placing feed near the banks or

in any other manner. AR 1, at 1. As noted in detail above, Lemire contests

Ecology's argument (not testimony) that his cattle have "uncontrolled" and

"continual" access to the creek.          The claim that Lemire's cattle have

"unrestricted access to the stream," i.e., wander all over the property and

creek without any sort of guidance or control, is clearly conte,sted. 9 See

majority at 9.

       In sum, Lemire conceded that there is no continuous fence on the

property like the one Ecology seeks, that cattle occasionally drink from and

cross the creek, and that whenever cattle were breaking down points along

the high banlc of the creek he fixed that problem with drift fencing. Lemire

contested every other Ecology assertion of fact. Consequently, according to

the Board and the majority, in order for a rancher to create a "substantial

potential" to pollute, all the rancher has to do is (1) have a state water body

8
 Especially when Lemire's electrical water pump system for groundwater fails because
of a power outage or the pipes freeze and he cmmot fill the troughs. AR 9 (Decl. of
Lemire at 5). Lemire says this usually happens one or two days a year. ld.
9
 The drift fencing Lemire installed is one obvious example of how Lemire has controlled
and guided his cattle's movement on the property. AR 9 (Decl. of Lemire at 5).


                                           11
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Bd., No. 87703-3




on his or her property 10 that is not completely fenced off and (2) own cattle

that occasionally cross or drink from the water body. That is it. Nothing

else needs to be proved but those facts. Surely, that cannot be what the 1945

legislature    intended     by    "substantial     potential     to   violate."       RCW

90.48.120(1 ). That conclusion is strongly called into question by all the


10
   The majority incorrectly suggests that evidence that Pataha Creek is polluted is
sufficient proof (entitling Ecology to summary judgment) that the conditions necessary to
create a substantial potential to violate exist on Lemire's property. For example, the
majority makes sure we know that the "[t]he creek is a polluted waterbody" and that the
alleged "pollution of the creek is consistent with what one would expect from the
conditions at the Lemire property," but the majority is not so quick to point out that
Ecology's order is no way dependent on Pataha Creek's polluted status. Majority at 8.
Ecology makes it very clear that it is not and does not have to rely on any testing. AR 7
(Ecology's Mot. to Dismiss and Mot. for Summ. I. at 25-26). Even if a water body is
polluted, Ecology must still meet its burden by proving that conditions that create a
substantial potential of violation exist on the property in question. It is important to note,
however, that Ecology may have to prove causation in any future enforcement action
against Lemire.
Ecology's regulations require activities which generate nonpoint source pollution to be
controlled by the application of BMPs. WAC 173-201A-510(3)(a). The regulations
further require a nonpoint source polluter to apply all appropriate best management
practices. WAC 173-201A-510(3)(b). If a nonpoint source polluter is applying "all best
management practices appropriate or required by the department and a violation of water
quality criteria occurs, the discharger shall modify existing practices or apply further
water pollution control measures, selected or approved by the department, to achieve
compliance with water quality criteria." !d. (emphasis added). Thus, if Lemire complies
with Ecology's order in full, the only way for Ecology to force Lemire to apply further
control measures would be for Ecology to prove that Lemire has caused a violation of
water quality criteria. This is significant because the record reflects the strong possibility
that pollution sources upstream from Lemire's property and downstream from Lemire's
property (but upstream from Ecology's testing site) are significant contributors to the
pollution of Pataha Creek. AR 1, at 8. Ecology catmot continue to bring its regulatory
might to bear on Lemire alone when he has complied with this burdensome order and
Pataha Creek is not cured of all of its pollution problems without direct proof that
Lemire's property is in fact a source of pollutants.


                                              12
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Bd., No. 87703-3




other legislation in place protecting the use of agricultural land and

stockwater rights.      See, e.g., RCW 90.48.422(3) (protecting water rights

from Ecology action); RCW 90.48.450 (requiring Ecology to avoid

enforcement actions that would contribute to agricultural land being

converted into nonagricultural purposes).               That conclusion is further

contradicted by the position Ecology took before the superior court and then

later before this court that Lemire would be able to install gates in the

required fencing to allow the cattle to cross and drink from the creek. 11 CP

at 129; Br. of Appellant at 36.

       Lemire's statements amount to much more than "conclusory

allegations" 12 and create genuine issues of material fact about whether or not

the conditions Ecology's witness (not a qualified "expert") allegedly

observed are present.         An appellate court must evaluate the evidence



11
  If we confined our review to the administrative record, like we are supposed to, the
order strongly suggests that the cattle would never be allowed to enter the riparian
corridor, let alone cross the creek to access the other pastures or to drink. AR 1 (Ecology
Order 7178, at 2-3).
12
   Just as Atkins would likely qualify as an expert for purposes of a trial due to his
training and experience, Lemire also would likely qualify as an expert in farming,
ranching, and cattle behavior for similar reasons. As a fact witness, Lemire has certainly
observed his cattle with more frequency than Atkins. Consequently, the Board's cursory
dismissal of Lemire's statements as "conclusory allegations" was inappropriate. See AR
12, at 13.


                                            13
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Bd., No. 87703-3




presented in the record in the light most favorable to the nonmoving party.

The majority impermissibly made its own credibility judgment when it sided

with Ecology.

       Given the presence of genuine issues of material fact as to whether or

not the many detrimental conditions alleged by Ecology actually exist,

however, I would remand the case to conduct a hearing. A hearing would be

the proper place to judge credibility and would result in a proper record for

an appeal. 13

II.    Ecology's Authority To Issue the Order

       I assume the majority's finding that RCW 90.48.080 and RCW

90.48.120 on their face allow Ecology to regulate some nonpoint sources of

pollution. I also agree that we should not reach the issue of stockwater

rights given the lack of evidence in the record. 14 Likewise, I agree that it

would be improper for this court to invalidate the order on the basis of RCW

90.48.450 when Lemire failed to timely raise the issue before the Board.



13
  The stakes are high for Lemire. Lemire must either construct a fence that will likely
cost tens of thousands of dollars, give up ranching, or be subject to what will likely be
substantial financial penalties. See RCW 90.48.142; .367.
14
  Moreover, it is now Ecology's position that Lemire's cattle can drink from the creek.
CP at 129; Br. of Appellant at 36.


                                           14
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Bd., No. 87703-3




III.   Takings

       I briefly write on this topic to make it clear that the "question" of

whether or not our state constitutional takings provision offers greater

protection than its federal counterpart has already been answered in the

affirmative. 15   See majority at 15.       E.g., Manufactured Hous. Cmtys. of

Wash. v. State, 142 Wn.2d 347, 357-361, 13 P.3d 183 (2000) (holding that

article I, section 16 of the Washington Constitution offers broader protection

than the Fifth Amendment to the United States Constitution); Brutsche v.

City ofKent, 164 Wn.2d 664,681 n.11, 193 P.3d 110 (2008) ("We have held

in other cases that article I, section 16 provides, in some ways, greater

protection."). Among other differences between the state and federal takings

provisions, article I, section 16 states that "[n]o private property shall be

taken or damaged for public or private use without just compensation having

been first made .... " WASH. CONST. art. I, § 16 (emphasis added). The

extent of this greater protection has not yet been fully delineated in all

contexts.




15
   The conversion of agricultural land to other use is statutorily restricted. Lemire even
attached RCW 90.48.450 to his notice of appeal.


                                           15
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Bd., No. 87703-3




        The superior court found that Ecology's order constituted a per se

taking. Under state and federal law there is a per se or categorical taking

when:

        ( 1) a regulation effects a total taking of all economically viable
        use of one's property; or (2) the regulation has resulted in an
        actual physical invasion upon one's property; or (3) a regulation
        destroys one or more of the fundamental attributes of ownership
        (the right to possess, exclude others and to dispose of property);
        or (4) the regulations were employed to enhance the value of
        publicly held property.

Manufactured Hous., 142 Wn.2d at 355 (citations omitted). Despite the

additional protection our state constitution affords, the record before us

presents insufficient facts for us to conclude that there has been a per se

taking, though the court below so held. 16' 17


16
   On appeal, Lemire concedes that there has been no physical invasion or total regulatory
taking. Resp't's Br. at 38. Lemire's argument instead is that there has been a partial
regulatory taking because there has been a "derogation or destruction of a fundamental
attribute of property ownership." Id. at 39 (citing Guimont v. Clarke, 121 Wn.2d 586,
603, 854 P.2d 1 (1993)).
17
   Notably, the United States Supreme Court's recent decision in Koontz v. St. Johns
Water Management District, 570 U.S._, 133 S. Ct. 2586, _ L. Ed. 2d _ (2013),
also expands property owners' ability to challenge local land use regulations and fees. In
Koontz, the Court said that a landowner may challenge a government's decision to deny a
land use permit or condition approval of a land use permit on the payment of fees using
the standards set forth in Hollan v. California Coastal Commission, 483 U.S. 825, 107 S.
Ct. 3141, 97 L. Ed. 2d 677 (1987), and Dolan v. City o,[Tigard, 512 U.S. 374, 114 S. Ct.
2309, 129 L. Ed. 2d 304 (1994). Id. at 2589. Here, there was no permit, but arguably
worse, the threat of enforcement (including criminal charges) against the use of one's
own property. Koontz, however, illustrates the continued strength of private property
rights under our federal constitution.


                                            16
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Bd., No. 87703-3




         Lemire claims that the fence will prevent his cattle from grazmg

pasturelands on the far side of the creek, that it will prevent him from

exercising his stockwater rights, and that it will derogate his "fundamental

property interests by denying the full and complete right to occupy and

possess" his property. Resp't's Br. at 45. If we review the order, it clearly

does not make any specific provision for the cattle to drink from or cross the

creek.     AR 1 (Ecology Order 7178, at 2).           To the contrary, it requires

"exclusion fencing," "off-stream watering facilities," and that Lemire

eliminate "[l]ivestock access to the stream corridor ... by May 31, 2010."

I d. at 2-3. It was only later in its briefing to the superior court and before

this court that Ecology finally clarified that Lemire's cattle would be

allowed to drink from and cross the stream to reach the other pasturelands;

this is argument, and it contradicts the challenged order in the record. CP at

129; Br. of Appellant at 36.

         The order does, however, fence off approximately 7.23 acres of

nonriparian land. Br. of Appellant at 36; Resp't's Br. at 3. Lemire claims

that he has only about 40 acres of flat irrigated land suitable for farming and

that the order's fencing requirement (35 feet out from the top of the stream

bank on each side measured horizontally) will significantly cut into his crop

                                           17
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Bd., No. 87703-3




production. AR 1 at 3. Lemire will no longer be able to graze his cattle in

this area nor will he be able to farm the land. Assuming all 7.23 acres is

farmable, the order converts approximately 18% of Lemire's farmland into

nonagricultura1land. 18 Moreover, if Lemire decides to sell his property at

some point in the future, undoubtedly the 7.23 acres will have to be sold at a

substantially reduced price or for no value at all.

         Considering the fundamental attributes of property this court has

identified to date, from this record it does not appear that any of the

fundamental attributes of Lemire's property have been destroyed. Lemire is

still the owner of the enclosed land, can still exclude others from occupying

it, and can still transfer the land. Unlike the landowners in Manufactured

Housing, it does not appear that the order takes any of the sticks in Lemire's

bundle of property rights. See Manufactured Hous., 142 Wn.2d at 367. It is

possible that Lemire's property has been "damaged" by the order, but there

is not enough evidence in the record to establish the type and magnitude of

this damage. 19 See WASI-l. CONST. art. I,§ 16.



18
     See supra note 15 (citing RCW 90.48.450).
19
   Acknowledging that I write in dissent, it is my sincere hope that Ecology will attempt
to help Lemire secure a source of funding for this expensive fence. It would be an


                                            18
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Bd., No. 87703-3




                                     CONCLUSION

       By upholding the Board's grant of summary judgment and reversing

the judgment of the superior court, the majority makes an implicit finding

that the Department of Ecology is more credible than Mr. Lemire.                         An

evaluation of credibility, however, has no place in the review of a grant of

summary of judgment. It is the province of the fact finder below. Because

we are required to evaluate the evidence presented in the administrative

record in the light most favorable to Lemire, the nonmoving party, I would

remand the case for a hearing. It is clear from the record that there are

genuine issues of material fact.

       The majority's contrary decision disregards a judgment of a superior

court and undermines, if not destroys, the value ofMr. Lemire's agricultural

land that is entitled to statutory and likely constitutional protection.                  I

dissent.




injustice if Lemire had to sell his farm or close down his cattle operation because he
could not afford the fence.



                                            19
Lemire v. State Dep 't of Ecology & Pollution Control Hearings Bd., No. 87703-3




                                          20
