Federal judge enjoins WOTUS in Oregon
Although the Oregon Cattlemen’s Association won a recent court battle, and he’s thankful for it, rancher Curtis Martin wishes there was another, better way, than litigation.
Represented by Tony Francois of the the Pacific Legal Foundation, the OCA won its suit against the federal government, seeking to “enjoin” – or halt the implementation of – the Waters of the United States (or WOTUS) rules in Oregon, on July 15, 2019.
Martin provided a “declaration” or written document to help the judge understand how the WOTUS rules, if enforced, would affect his ability to manage his own private property. Martin and Francois say President Trump’s administration is choosing not to implement the 2015 WOTUS regulations, but that the Obama-era rules amount to government over-reach at its worst.
“What we are really telling the court is that they way these agencies have overextended the Clean Water Act – it subjects intermittent and ephemeral drainages on their operations to the need for unnecessary permits from the EPA and/or the Army Corps of Engineers,” said Francois. And Judge Michael Mosman agreed. Mosman, a President George W. Bush appointee, is known for being fair, thorough and well-prepared, said Francois. The PLF attorney doesn’t have knowledge of other property-rights related cases he has ruled on.
The suit covered two main points, Francois said.
1. First the legal question of whether the statute allows the EPA the control of the use of non-navigable waters like intermittent creeks, drainages and such on their clients’ farm and ranches, because the rule refers only to “navigable waters.”
2. Whether our clients would be harmed by this overbroad regulation. “There we could show the judge that farms and ranches require all kinds of work in all kinds of weather conditions, frequently without a lot of notice or ability to plan ahead. A lot of work has to happen in these drainages, etc., like plowing, maintaining water diversions, flood recovery. A variety of these things, in ordinary course, would require permits from the Army Corps if these drainages were regulated. We were able to show the judge that the result regulating these properties could subject them to a permitting regime that is very expensive in terms of time and money. And the judge agreed with us.”
Fraincois, who spent several hours on Martin’s ranch to see management practices on several drainage areas (low elevation locations that are sometimes wet but sometimes dry, depending on rainfall and other weather conditions), said that he explained to the judge that farmers and ranchers need to be able to make decisions on their own private property, based on the best interests of their businesses and the land and water surrounding them.
Martin said an attorney representing the federal government told the courtroom via telephone the day of the hearing, that the Trump administration plans to write a new set of definitions that would be narrower than the current, and the “old” regulations (pre-Obama era rules).
Even if the WOTUS rules, adopted in 2015 by the Obama administration, are repealed, some adjustments to the previous rules would be helpful, said Francois.
“We would agree that the 2015 Obama era rule is even broader than the one before, and both the new and old are broader than statute allows. We’re talking about ‘where does the regulation apply?’”
Much of the argument surrounds the term “navigable waters,” said Francois, which, according to federal statue, is the water the federal government can regulate.
“There is a lot they regulated beyond what is navigable,” he said.
Francois said that PLF believes regulation of water is necessary in many cases like factories, sewage plants, and such, but that the statute doesn’t allow the EPA and Army Corps to require permits and prohibit farming on non-navigable waterways.
“The agencies need to visit this and develop a more reasonable regulation,” he said.
Francois doesn’t expect the government to appeal the ruling, but he said the Columbia Riverkeeper organization was present at the hearing to voice opposition to the suit. It’s possible that group would appeal.
Martin said the Columbia Riverkeeper is known as an extremist group who, in his opinion isn’t interested in learning the truth or in supporting the presence of farming and ranching in the West.
“I don’t think they are a legitimate outfit interested in finding the truth,” he said.
The Columbia Riverkeeper organization doesn’t mention the hearing on its website in a prominent location but a broader “Riverkeeper” website expresses support for the current WOTUS rules.
“The Riverkeeper spokemsan was arguing that ditches are exempt and that because there are exemptions for farmers and ranchers, the WOTUS law is not harmful to those of us working the land,” said Martin.
“But there is so much gray area. Private landowners are really in danger of being held in violation. I want to tell them and other groups like them ‘we are after the same thing. Farmers and ranchers want clean water and air, appropriate stewardship, best management practices. If you are truly concerned for this, we are on the same page, as long as you recognize that I as a farmer or rancher have a right to exist. If your organization doesn’t respect me as an individual with private property rights and that I have a right to be here, economically, to do what I’m doing, with my lifestyle and culture; if you have a strict philosophy that what I’m doing is wrong by raising cattle, you and I can’t have a conversation.’”
But Martin said he is on the search for an organization truly dedicated to improving the environment that he and other ranchers can talk to. “If they got to know us and me, I think they’d understand that what we’re doing is really a good thing. They would realize their preconceived notions about us harming the environment and polluting weren’t accurate.”
While he’s thankful for the outcome of the hearing and for PLF’s help, Martin doesn’t like the antagonism between agriculture and groups who portend to protect the environment. While many extremist radical anti-grazing groups have no interest in working with agriculture or supporting agriculture, he said he believes there are individuals, and hopefully groups, who genuinely care about the environment, and also respect rural America and acknowledge the important role of small towns.
“I don’t want a continual butting of heads. I’m willing for them to live in their urban setting and I’m not going to tell them how to run their sewer district or whatever. Maybe they need to extend the same respect for what I’m doing. But they will need to get rid of their preconceived ideas.”