WWP settles with landowners in trespass caseWritten by Saige Albert
Lander - This week, plaintiffs released that documents were filed in a settlement from the June 2014 lawsuit against Western Watersheds Project (WWP).
"WWP has agreed to a permanent injunction against trespassing on any of the plaintiffs' lands," says Dan Frank, attorney at Frank Law Office, PC. "We've identified over 54, 000 acres that are covered."
The settlement also includes provisions for fines for future trespass and provision for required training.
Western Watershed Projects has trespassed on these private lands over 60 times since 2005.
"The landowners have contributed greatly to outdoor recreation by leaving thousands of acres of privately owned lands, in some cases interspersed with public lands, open to the public for hunting, fishing and recreation. This settlement will encourage these landowners to keep lands open for continued recreation use," a press release from the plaintiffs reads. "The Landowners were also concerned with monitoring for water quality and other natural resources on their land by individuals who have no formal training or education to conduct such monitoring and fail to abide by standard operating procedures such as the Department of Environmental Quality's water quality monitoring requirements and not no authorization to access private property.
Inside the case
Frank Ranches, Inc. was represented by Frank. Karen Budd-Falen represented the remaining 14 plaintiffs in the lawsuit.
"Frank Ranches was involved in this lawsuit because Jonathan Ratner of WWP was taking data and crossing our private lands to reach federal land," Frank explains. "We told him that he could not access our land anymore and he continued to trespass."
"Ratner responded with an email stating that the Bureau of Land Management (BLM) had an easement, but they couldn't find it.
"At that point, Frank Ranches felt that if an easement couldn't be produced that one did not exist, and to stop the trespassing from continuing, we decided we were going to bring a lawsuit," Frank says. "At that point, I conferred with Karen Budd- Falen to see if she had clients that had similar issues."
He adds, "We joined forces to bring one large action, rather than as separate landowners bringing separate court actions."
An initial motion to dismiss the lawsuit by WWP was denied by Judge Norman Young a year ago. Cross motions for summary judgement were made.
Young also granted a motion to prevent plaintiffs from gaining access to financial documents could be accessed.
"After he said that punitive damages would be difficult and highly unlikely, we went to mediation," Frank says. "We achieved everything we wanted to from the lawsuit, which includes the permanent injunction and enforcement mechanisms within the agreement."
The settlement agreement includes two important point.
First, WWP agreed that they would no longer trespass on all of the lands of those 15 landowners included in the suit where legal public access did not exist.
"We also implemented an enforcement mechanism," Frank says. "If there are trespasses, we'll settle them informally, but if they are contested, we'll go back to court."
The enforcement provisions provide that the first time WWP trespasses, they will be fined $2,500. For any subsequent trespass, a $5,000 fine will be imposed.
For example, if WWP or any representative of WWP trespasses on three parcels belonging to three different landowners, they would be fined $2,500 for each parcel the first time, and $5,000 for each trespass after that date.
"These enforcement provisions provide a stiff penalty," Frank comments.
Training and notice
I addition, the settlement agreement also provides that WWP will provide training to their employees, agents and volunteers.
"They also stipulate and agreed to where there are public easements and private easements. It's all spelled out and copies have been provided to WWP," he says.
They are prohibited from entering airspace at an altitude of 500 feet over the landowners by the 15 plaintiffs in the suit.
"They also must provide written notice of data collected from grazing allotments of the plaintiffs that is submitted to any agency by Oct. 31 of each year," says Frank. "The notice small identify the grazing allotment, the organization collecting the data and the entities the data was provided to."
The notice allows landowners to verify that data was collected without trespass.
If landowners believe trespass has occurred, they have to provide notice to WWP within 60 days for observed trespass or one year for implied trespass. WWP then has 30 days to respond and pay fines.
Implications for ag
"It is portrayed that evil ranchers are trying to hide something," Frank says. "That isn't the case at all. Landowners have the right to know and make decisions of whether they want people on their land."
Additionally, Shaun Sims, president of the Wyoming Association of Conservation Districts (WACD), says, "It's important that those people collecting resource data are adequately trained, qualified and unbiased."
He continues, "Landowners are working cooperatively with local conservation districts and other partners in the state to collect data. It's not about landowners hiding anything. It's that we want to make sure that data is collected properly."
Sims adds that conservation district employees who collect data, for example, are required to participate in training courses and take certification exams. They are then subject to infield audits.
"Organizations like WWP are collecting data without training using homemade equipment and incubators," he says. "That causes a bunch of problems because they're not qualified and they're not using proper equipment."
Positive steps forward
A settlement in this case is positive for both landowners and the greater ag community, Sims comments.
"It goes beyond what was gathered here or these specific instances of trespass." Sims emphasizes. "Landowners have a right to decide whether they want other people on or moving across their ground, and we have the right to also deny that access. This lawsuit brought that to light."
He continues, It's also bigger that WWP. This is about enforcing private property rights and making sure that resource data is collected properly."
"These landowners achieved everything we hoped for," Franks says, "and now, we also have the data trespass statutes to further protect other landowners in the future."
Trespass law: Judge grants motion to dismissWritten by Saige Albert
Casper – On July 6, Judge Scott W. Skavdahl granted the motion to dismiss by the State of Wyoming in the case where a series of environmental and activists groups alleged that Wyoming’s data trespass law violated the First Amendment of the Constitution.
“This is excellent for Wyoming ag,” says Bobbie Frank, Wyoming Association of Conservation Districts executive director. “This decision says that the legislation, as amended in the 2016 session, was upheld, and individuals and entities cannot expect that they can trespass onto private property to collect data.”
Plaintiffs in the case included Western Watersheds Project, National Press Photographers Association, Natural Resources Defense Council, Inc., People for the Ethical Treatment of Animals and Center for Food Safety.
The Plaintiffs in this case argued that a pair of statutes passed by the Wyoming Legislature in 2015 and amended in 2016 to prohibit the collection of resource data on open lands was unconstitutional.
“In their original compliant, Plaintiffs argued the 2015 statutes: violated the Petition Clause of the First Amendment; violated the Free Speech Clause of the First Amendment; were preempted by federal laws; and violated the Equal Protection Clause of the Fourteenth Amendment,” wrote Skavdahl in his decision.
Later, the Wyoming Legislature adapted the 2015 laws during their 2016 session to eliminate reference to open lands and no longer required that the data be submitted or intended to be submitted to a governmental agency. The Plaintiffs maintained their suit, despite the changes, asserting that the statutes still violated the Constitution on their face.
Skavdahl explained his decision in two parts – free speech and equal protection.
First, Dan Frank, attorney at Frank Law and cattle producer, explains, “Judge Skavdahl affirmed and said that even if we have a first amendment right, it doesn’t say we can go anywhere we want to exercise those rights, and if we have private land, we can exclude people from going there.”
Skavdahl wrote, “Plaintiffs’ First Amendment right to create speech does not carry with it an exemption from other principles of law or the legal rights of others. Plaintiffs’ desire to access certain information, no matter how important or sacrosanct they believe the information to be, does not compel a private landowner to yield his property rights and right to privacy.”
Further, Skavdahl noted that the assertion by Plaintiffs that they were unable to determine location and land ownership during data collection, while it creates a conundrum, is invalidated by the necessity that data collected is recorded with its location.
“The ability to pinpoint and record the location of alleged environmental violations is essential to Plaintiff’s missions and goals,” Skavdahl added. “To say Plaintiffs are incapable of utilizing the same GPS tools, methods and research to determine their own location during and en route to such data collection activities is borderline disingenuous.”
The second half of the argument dealt with equal protection analysis.
“Equal protection analysis is always tricky,” says Dan. “It’s hard to understand.”
Skavdahl explained that, because no first amendment rights were violated, the statute was not subject to a strict scrutiny test. At that point, a rational basis test becomes the standard by which equal protection is compared.
“Then, Judge Skavdahl gets into legitimate state interests under the rational basis test, and he compares these statutes to the ag gag laws in Idaho,” Dan explains. “Skavdahl precluded trespassing to collect any resource data, whether it is favorable or unfavorable data. He said the statute is content neutral and a legitimate government interest.”
Ultimately, Skavdahl noted, “Plaintiffs’ claims are erroneously premised upon their perceived First Amendment right to trespass upon private property to collect resource data. No such constitutional right exists.”
“The ends, no matter how critical or important to a public concern, do not justify the means, violating private property rights,” he concluded.
Dan says, “The biggest problem with the old criminal trespass statutes was that the fine was so small that it was worth it for certain elements to trespass and collect data. Usually, that data is used against landowners.”
The new legislation provides a large enough penalty to dis-incentivize trespass for the collection of data.
He also notes, “This decision basically says, no matter what they are trying to do or what they’re trying to monitor for or how important they think it is, they don’t have a right to trespass on private land.”
All in all, Dan notes that this decision is positive for the ag community, and while there are options for appeal, either in an appeal up to the 10th Circuit Court or on an as-applied basis as it relates to a specific enforcement of the statute, any further action has not been seen at this point.
“It’s a much better result than when Judge Skavdahl said he had some concerns with the initial version of the statute,” Frank comments. “It took some courage on the part of the legislature to change it, clean it up and push forward with this statute.”
Water committees look at Colorado River water proposalWritten by Saige Albert
At the August meeting of the Wyoming Water Development Commission (WWDC) and Select Water Committee, Sen. Ogden Driskill of Devils Tower brought forward a proposal he – and other members of the committee – believes has merit. His proposal is one to better utilize Wyoming water that flows down the Colorado River each year.
“Wyoming has somewhere in the neighborhood of 200,000 acre-feet of unrestricted water that flows down the Colorado River every year,” says Driskill. “This is water that was allocated to Wyoming, and it has flowed downstream every year since the compact.”
He continues, “My proposal is that we lease water to the downstream states, which would allow them, for a term, to use Wyoming’s part of the water.”
Driskill adds that a similar arrangement can be seen on the Snake River with Idaho where water is stored in Wyoming and sold to end-users in Idaho. The money returns to the state of Wyoming.
He proposed that the idea be pursued in a level one study by WWDC.
“What I’m proposing is that we take that volume of water – whatever the study comes up with – and lease it in 25,000 to 50,000 acre-foot increments,” he says.
If funded, Driskill says both a level one and level two water study would likely have to be conducted to define the amount of water available, analyze the parameters of the Colorado River Compact and look at determining how to sell water leases and deliver water to buyers.
“On its surface, it is a very simplistic proposal,” says WWDC Director Harry LaBonde. “Administratively, it is very difficult – hence the need for study, if Wyoming is interested in going forward.”
Currently, California and other Lower Basin states in the Colorado River Compact are experiencing severe droughts, which have been detrimental to their economies.
“Water has been sold for between $2,000 and $4,000 an acre-foot each year in California,” Driskill explains. “We are talking about a potential $200 million to Wyoming.”
The revenue would be deposited into a fourth water development account, as proposed by Driskill. The money from the account would fund storage projects that would be 100 percent owned by the state of Wyoming.
“There would be no cost-share on building the projects,” he says. “They would be available for irrigators or other users to purchase the stored water or the entire project, similar to what is done by Bureau of Reclamation.”
“We could end up with millions of additional acre-feet of storage in the state of Wyoming,” Driskill says.
In addition, the proposal would add revenue to the state through agriculture.
“As energy winds down in Wyoming, more of the tax burden will shift back to agriculture, and ag generates much more money on irrigated ground than dry ground,” he explains. “This is long-term economic development.
“As a legislator, I think it hits on irresponsible to give away this much of Wyoming’s water every year,” Driskill emphasizes.
Driskill notes, however, that the proposal is not without some concerns.
“There is a real concern about creating insatiable demand for the water, which would mean we wouldn’t get it back,” he says. “My response is that we have to wrestle it back for ourselves right now. At least we would have the acknowledgement of the entire river basin that it is Wyoming’s water.”
He also adds that there is much research to be done, and he doesn’t have all the answers related to the proposal yet – which makes a study by WWDC important.
LaBonde comments, “While this proposal seems straightforward, due to the complexity and laws of water on the Colorado River, it is not that simple.”
The Upper Colorado River Compact Commission, among others, would be involved in the regulatory aspects of any potential agreement, adding more complexity.
“Similar proposals have been brought forward numerous times in the past and have not been successful,” LaBonde adds. “There are a lot of institutional interests that will be looked at.”
Other questions also arise if the state of Wyoming can lease its water outside of the Colorado River Compact.
For example, if the state can lease water, can individual appropriators get involved in the market? The answer to that question is currently unknown.
LaBonde also looks at the 200,000 acre-feet of water that currently flows out of the state, noting that it ends up in Lake Powell and counts as system water which the Upper Basin states use to meet downstream compact obligations.
“How do we protect the water once it leaves state boundaries?” asks LaBonde. “Does this take a step toward weakening the Colorado River Compact? There are a lot of questions to be answered.”
“There could be some holes in this proposal,” Driskill says, “but on the surface, there are no fatal flaws that we’ve seen.”
During their August meeting, WWDC and the Select Water Committee opted to go forward with a level one study of the proposal. It will be presented as a project of WWDC at their Nov. 4-5 meeting in Casper.
EPA settles Johnson’s Clean Water Act caseWritten by Saige Albert
Cheyenne – On May 9, a consent degree was filed at the U.S. District Court in the District of Wyoming, effectively settling the Clean Water Act case of Andy Johnson v. U.S. Environmental Protection Agency (EPA), et. al.
Cheyenne Attorney Dan Frank of Frank Law Offices says, “This is the end of this case. I would say that this is a win for us.”
The requirements set forth in the consent decree were described by Frank as actions that Johnson had already begun working towards.
“We had to plant some willows, which he already did, and then he has to submit a compliance report this year and next year showing that the willows are surviving,” Frank commented. “He also had to put in a fence.”
“This is a victory for common sense and the environment, and it brings an end to all the uncertainty and fear that the Johnson family faced,” said Jonathan Wood, a staff attorney with Pacific Legal Foundation (PLF) who represented Johnson in his court challenge to the EPA, and in negotiating the settlement.
“This is a huge victory for us, as well as private property owners across the country,” says Johnson. “The next family that finds itself in our situation, facing ominous threats from EPA, can take heart in knowing that many of these threats will not come to pass. If, like us, that family stands up to the overreaching bureaucrats, they may very well back down.”
A look back
Frank notes that Johnson first approached him in 2013 on a referral from Harriet Hageman of Hageman Law.
EPA told Johnson he must remove a stock pond he had built to provide safer, more reliable access to water for a small herd of cattle. EPA also imposed strict fines of $37,500 per day if he did not comply with the order.
“We set up our case and hired Kagel Environmental,” Frank explains. “Our choices were to let this thing ride or take the battle to EPA. That’s when PLF agreed to get involved in the case. They did the heavy lifting once we proceeded to federal court.”
As documented by Ray Kagel, a former federal regulator, the pond proved to be a benefit to the environment, says PLF.
Ultimately, Johnson had to sue EPA, represented by PLF and local counsel, arguing that the order was illegal because “stock ponds” like his are expressly exempt from the Clean Water Act. Additionally, he challenged the government’s assertion of jurisdiction.
“Andy obtained a permit from the state engineer for the stock pond, and he thought he was in the clear,” Frank says. “He believed he had done everything that he was supposed to do.”
After a day in settlement talks with a federal magistrate, Frank says that the outcome is largely favorable.
“What Andy has to do to comply with the consent decree is actually good for his property,” he says. “It’s things he probably would have done anyway.”
Johnson is required to plant willows and document that they have survived through September 2017. In addition, he is required to install an exclusion fence on one side of the pond.
While the case is a win for the Johnson family, Frank notes that because it is a settlement, no legal precedent is set.
“EPA just basically said, all right. We’ll call this a draw. We won’t sue Andy, and he can’t sue us,” Frank comments.
With the case behind him, Johnson says, “This was about more than just a pond. This was about a family of good, hard-working Americans that were willing to fight to the end for what they believed in.”
“We’re not setting any precedent with this case, but it does get into the tricky issue of stock ponds,” Frank says.
He continues, “Under Section 404 of the Clean Water Act, there is a recapture provision where, if we have certain impacts on the water, the EPA can come in and say that the pond is not really exempt as a stock pond.”
Ultimately, Frank notes that the CWA provides the exemption but also comes up with a way for EPA to remove that exemption and claim jurisdiction regardless.
“We contend this was a stock pond and that is it exempt from the Clean Water Act,” he adds. “EPA says no.”
EPA did not provide reasons or justification that the pond was not exempt, and as a result of the settlement, those answers will not be determined.
Another issue in the case was the assertion that the fill material used required permitting.
“There is already a national permit for projects that have less than 10 cubic yards of fill and inundate less than one acre of land,” Frank explains. “In this case, there was wetlands, but this particular stream did not show up on the National Wetlands Inventory.”
Additionally, Johnson did not fill wetlands. The fill material he utilized within the ordinary high water mark of the creek wasn’t more than 10 cubic yards, which would have exempted him, says Frank.
“The final issue was that the EPA and Army Corp of Engineers didn’t have jurisdiction over the water because it never actually gets back to the Black’s Fork River,” he says, explaining that the creek, Six Mile Creek, where the pond is located, dumps into Bridger Butte Canal, which flows into a reservoir that does not overflow.
Frank comments, “There were three good reasons that the EPA was out of line.”
For other landowners
While Johnson’s case is resolved, Frank urges other landowners to be cognizant of all the issues when building stock ponds.
“I would always be concerned if I was going to build a stock pond,” he says. “We can look at it two ways.”
One option, when building a new pond, would be to contact the Army Corp of Engineers directly.
“The Army Corp of Engineers is going to try to find a way that they get to regulate the pond,” Frank says. “The other way would be to contact legal help and a consultant before doing a project.”
Frank adds that it is important that landowners are prepared and have done their homework prior to building any stock ponds on their property.
Water quality - Public comment heard on UAAWritten by Saige Albert
Casper – Following a notice by the Environmental Protection Agency that inadequate public involvement occurred prior to the submission of its Categorical Use Attainability Analysis (UAA) for Recreation, the Wyoming Department of Environmental Quality (DEQ) held a public hearing in Casper on Sept. 16 to officially gather comments from stakeholders.
“The UAA has been publically noticed twice for review and comments by the public,” said Kevin Frederick of Wyoming DEQ. “There has been at least one public meeting to present information and answer questions.”
Frederick continued, “This hearing is to provide testimony on the UAA.”
With testimony coming from a wide swath of the public, DEQ heard testimony from 34 members of the public, both for and against the UAA, all of which was recorded by a court reporter. In addition, written statements were submitted, and more than 100 members of the public attended the meeting.
“The comments we received prior to and during the hearing will assist the agency in finalizing the UAA document,” said Todd Parfitt, DEQ director. “Having this additional public input helps DEQ improve the final UAA. I want to thank everyone who took time to participate in this process.”
Proponents of UAA
Agriculture and conservation groups testified largely in favor of the UAA, citing the use of sound science, as well as widespread public input during the three years since the public process began.
Wyoming Department of Agriculture Director Doug Miyamoto commented, “I support this proposal because it allows us a more accurate baseline, and it allows a cleaner process than the current method.”
Miyamoto continued that water bodies will still be protected, but rather than a uniform standard, the level of protection will reflect their uses.
In addition to providing written comments, representatives from 15 conservation districts around the state attended the meeting, largely voicing their support for the effort. District employees explained their involvement in ground-truthing the model, as well as their work in regulating water quality.
Christine Tilley of the Shoshone Conservation District said, “We have 1,609 stream miles in our conservation district. The very, very large majority of those stream miles cannot and will not support recreation. Prior to this UAA, they were listed to do just that.”
Tilley added that she logged 160 hours validating the UAA in 2010, noting that 77 percent of the waters were appropriately identified.
“Accuracy has been our goal,” she said.
“This is a risk management standard – not an absolute,” emphasized Wyoming Association of Conservation Districts Executive Director Bobbie Frank. “We believe DEQ has approached the UAA conservatively. Nothing in the UAA changes water quality conditions or eliminates water quality protection.”
Agriculture organizations, including Wyoming Farm Bureau (WyFB) and the Wyoming Stock Growers Association (WSGA) also supported the UAA.
Ken Hamilton, WyFB executive director, noted, “Many of our members support the scientific process that DEQ used for this effort. This is something that has long been needed, and we support the process.”
He further commended DEQ on de-politicizing the effort and using a scientifically justifiable method of classifying streams.
WSGA’s Jim Magagna added that his organization did not participate in the original public input process “because the process DEQ proposed seem to be a logical way to address the issue.”
Additionally, he continued, “We stand in strong support of the approach taken. The proposed changes will help us to better manage water quality by focusing available resources on those locations where primary contact recreation is occurring or can potentially occur.”
However, concerns from groups including the Wyoming Outdoor Council and Sierra Club surrounded use of backcountry waters by hikers, outfitters and recreationists, among others.
Opponents of the UAA argued that the standards of more than an average of six cubic feet per second of flow for a primary contact recreation water was too high, and they noted that people hike many miles and recreate in streams that are very remote, despite levels of flow.
Gary Wilmont, executive director of the Wyoming Outdoor Council, mentioned, “DEQ could fix part of this problem by using flow data for early summer months when outdoor recreation and snowmelt are at their peak, rather than using the average.”
“The model captures a lot of great streams that people actually use for recreation,” he added.
Sierra Club’s Connie Wilbert commented, “We oppose the UAA as it is written. Some of the biggest concerns that our members have is the failure of DEQ to communicate with the citizens of Wyoming in an effective way about the changes.”
Wilbert asserted that the September meeting was the first she had heard about the UAA, though the process has been ongoing for several years.
While opposing the UAA, some groups did come with suggestions.
In a comment letter dated Sept. 15, the U.S. Forest Service’s Rocky Mountain Region and Intermountain Region requested that all waters managed under the Wilderness Act of 1964 or the Wild and Scenic Rivers Act of 1968 remain designated as primary contact recreation use.
A number of backcountry land users also recommended that Forest Service, wilderness areas, wilderness study areas and wild and scenic rivers be excluded from the UAA.
Additionally, opponents urged DEQ to re-open the comment period on the UAA and to conduct additional public meetings around the state.
Comments closed when the public meeting was adjourned, and at this point, DEQ will review and respond to all written and oral statements. All information submitted will be given due consideration for changes to the UAA, the agency reports.
“Once the review and responses are complete, the agency will release both the updated UAA and the response to comments document,” DEQ said.
In addition, DEQ emphasized, “As this comment period has ended, the public is still able to provide site specific information that will help the department better prioritize streams for protection and restoration based on the actual use of the water.”