Tuesday, August 27, 2013

Visit by the department of Ecology today

I received a visit from the department of ecology today.  They apparently have received a telephone complaint.  The complaint on the form is quoted as follows: 

"Caller reports that Mr. King is rearing pigs in a wetland at the southwest corner of his property.  This wetland flows to salmonid-bearing surface waters.  Caller thinks that this may be a violation of Washington states water pollution control law". 
The southwest corner of my property

Every drop of water that falls in Washington state eventually ends up in water that could support salmon or salmonid species.  In my case, there's no surface water in that area, no stream, and no runoff, but that's what the call was.  *

So at my door were three department of ecology employees.  Mark A "Mak" Kaufman was one of them.  I was a little surprised that I didn't recognize any of them; I thought I knew all of the ecology folks in this area.  
Mark "mak" Kaufmans contact info

He explained that he was here to investigate the complaint, and could he have access to my property to inspect?

The simple answer to that one is No, you do not have my permission to enter my property.  It's interesting that he asked, because Mr. Kaufman has done presentations on investigating complaints, and he states in it that he doesn't have to ask my permission to enter my property.  You have to go down a couple of pages for his reference to rcw 90.48.090 **

This is a guy who believes he has to right to enter without permission or warrant anyplace he chooses without any oversight by anyone other than his agency.   That's a pretty broad set of powers for a state agency.  Even the police organizations don't get inspection powers like this.  Now if the law said something like "emergency situation" or "active pollution" or something, I'd have a little more sympathy --  Police officers get more rights to enter if something is actually happening that might require immediate access,  but "all reasonable times" pretty much means whenever they want.  That's more than a little bit astonishing. 

Dairy cow- violator.  Notice manure load

I did explain to Mr. Kaufman that allowing enforcement officers to inspect your property at their whim seems like a generally bad idea, and would he invite a police officer to inspect his car after a routine traffic stop? 

Mr. Kaufman  surprised me by saying "Yes, I'd allow them to search my vehicle if they wished, I've got nothing to hide and I've broken no laws".
Bigger view of the southwest corner, gate in distance at right

So I asked him if I could quote him on that, and he said yes.  Consider it done, Mark.   Next time I've got to ask him if I can see the contents of his wallet and see what his answer is.  If he's got no objection to random searches and has nothing to hide, there shouldn't be any problem, right? 

 I had to laugh about that.  With the wide discretion that is given police officers, it's my belief that an officer can find a violation of law in any car at any time.   The department of ecology has similar wide discretion, and while they can compel me to allow access I'll only do it under protest.  I have no interest in helping them in any way. 

He then showed me a folder and said "you have a history with the department of ecology", and had pictures of the excavator that was sunk by my neighbor.   Yes, I've got a history with ecology Mr. Kaufman, but what does that have to do with this property or the conditions here?   And what do the actions or events on my neighbors property have to do with me? 

Wetland?  really? 

He backpedaled on that one, "well, nothing..." .  That's correct, Sir.  Nothing at all. 

One of the staff members was there to help "evaluate the wetland" and the other one was... well, I'm not sure why she was there.  Moral support?  She didn't say anything until I questioned her directly about how she tracked her time and what written records she kept of a visit.   I'll wait a few days, and then file a public disclosure request to see their time logs and notes made

I listened to what they had to say, and then explained that while they may suspect that the area they are looking at is a wetland, those factors are not present.  In general they are soil, vegetation and hydrology, and that the area in question didn't have all of those characteristics
There has been some clearing happening:  Beavers did it!

This is actually a key point when talking about wetlands.  Having a wetland plant, or standing water, or hydric soils (iron-deficient soils) are all indicators of wetlands, but you need to have all three simultaneously during the growing season, which I do not. 

Since I'm in a river valley, the soils may be consistent with wetland, but wetland soil conditions can persist for hundreds of years after the water causing them subsides.  Vegetation and presence of water during the growing season (defined in this area as soil temperatures in excess of 41F) are better indicators. 
Facing north, southwest corner of my property from outside my fence 

I asked him if he'd already looked at the area in question.  Yes, he said.  and then what he'd seen?  Two cows, he says.  Ok.  And how big an area are we talking about?  "Between 2 and 3 acres".   And I asked him if thought that the manure from two cows in a three acre area was sufficient for concern?

Yes, he said.  During the winter there may be runoff from that area.     I suggested that he could confirm that by coming back in November, during the rainy season, and testing the water quality at any point he wished to see if my farm was producing any runoff or if there were levels of manure that would warrant concern. 

Well, he said, we have the duty to prevent pollution or potential pollution.   So I asked him how many cows he'd seen as he drove up the valley to investigate this complaint?  "Hundreds".  And how many of those cows produce manure?  "all of them".  And they're all grazing the river bottom land, all of which could be described as wetland?  Yes. 

Why aren't you investigating those farms?  "We haven't received a complaint yet.  Would you like to make a complaint?  " 

That's where people get squeamish about this.  Look, I'm all for the environment, but if these standards are truly important, and you directly witness hundreds of potential violations as you drive to investigate the complaint, shouldn't you be investigating all of them, too? 

Maybe its time to crank up the computer and just file a complaint about every single farm in this valley, from Puget sound to the cascades.   This is a little ridiculous, honestly.  We have sweeping water quality laws that are enforced in a random fashion.  In this case, because a neighbor and I have a property line dispute. 

Mark, I think you have bigger fish to fry.  But I'll look for you in November.  I'll be right here.

* We have spent $441,989,000 on salmon recovery projects since 2006.  Half a BILLION dollars.   If you'd like to see a map of the projects, you'll find it here.  After spending close to a half-billion dollars on salmon recovery, we have seen one salmon run increase, one decrease, and all the others remain the same.  Half a billion dollars.   Washington state will spend any amount to "save the salmon", even if there is no discernible effect at all.  The green mafia at work.   Here's the report card on salmon recovery spending.   The next time you see some agency crying about being short of money, remember this half a billion dollars. 

** Note to self:  rcw 90.48.090 is discussed in this practice guide written for Washington state agencies by the Washington state Attorney General for issues related to trying to gain access to private property for various administrative purposes.  On  page 56,  It appears that the language used in this law is not sufficient to support the issuing of warrants for access, and that a warrant probably is required for access for purposes of inspection.  It also states that agency employees can be liable for personal charges of trespass in the event of either a warrantless search or a search based on an invalid warrant.  So while "it is the internal policy of the Department Of Ecology to seek permission to search, that may not be a kindness on their part -- it might be because their authority to search isn't as broad as they would like you to believe and agency employees are subject to trespass charges in the event that their access is denied/challenged.  Helpful of the attorney general to write this up; your tax dollars at work. 


JAG in the Box said...

It's amazing the lengths that people will go to when they have no apparent options. Don't like the result of the boundary line survey? Losing in court? Not enough funds to fight "fairly?" No problem! Call in the Government - the guys with (seemingly) endless budget and unknown bounds on authority.

"I asked him if he'd already looked at the area in question. Yes, he said." In that case, why bother asking to inspect? He already performed an inspection. He (probably) already made his determination before he approached you. The verdict's in, now it's just a matter of writing it up.

Coming to your door was to determine how hard you were going to fight. Were you going to roll over and concede the wet land? Case closed! Send out the notice of fine! The best defense in this case was knowledge, and an unwillingness to be bullied.

If/when you file the public disclosure request, I think you will be surprised at the identity/function of the third woman. No advance knowledge here, just a hunch.

Andrew said...

Love the use of FOIA requests. Have you used Muckrock (muckrock.com) before? They don't cover my state, but they do cover Washington, so it may be of some use to you.

brentcu said...

Your cow-owning neighbors in the valley might want to know that the dept of ecology wants to ban cows there. Or that all they need do is have an issue with their neighbor and the dept will come calling to ban their cows. Or even better that your specific Neighbor X is using the govt to ban cows and could do it to them too. I don't know if peer pressure works there but it certainly keeps folks in line out here.

Does this apply to all valleys in Western Washington?

It is fun to watch you being trouble for these bureaucrats. It also makes me angry that these guys must successfully bully other small farmers.

Bruce King said...

JAG: I'm guessing that she is very unhappy with the conversation she had with her attorney, and this is her way of making it a little bit better. I figured we'd get here sooner or later; it's just sooner.

You are absolutely right that he had decided prior to knocking on my door that I was guilty and the "permission" was just window dressing.

They'll probably delete the name of the reporting party from the FOI Request response, but I pretty much know the score already.

Bruce King said...

Andrew: Haven't used muckrock: just have some boilerplate that I had an attorney draw up. Fill in the blanks, send it certified mail to establish the date of the request (because there are penalties that I can ask for if they are slow to respond -- thank you Washington state sunshine law!) and look at what they return.

Bruce King said...

Brent: It's hard to get folks to care about this stuff until they get stuck with it. So what the DOE does is basically hit each person whenever they get around to it. "Nice farm you have here...be a shame if a wetland happened to it. Maybe you should talk to the conservation district..."

What's funny about these guys, and Mr. Kaufman is no exception, is that they maintain that "most people are happy with their contact with us". uh, what planet are you living on, Mark? What sort of bubble makes it impossible to know that regulatory agencies are NEVER popular with the people they contact. The comments here are more in line with that I hear every day when I talk to farmers about the department of ecology or the snoco PDS. You deal with these guys because you're compelled to, not because you enjoy it.

Honestly, what they consider to be a violation most farmers would consider to be a best practices. Take a look at the "cow watering" slide in Mark Kaufmans presentation. The cattle are fenced away from the ditch, they've got a trough to drink from, and there's no mud, debries or visible manure. that's a violation? really?

Bruce King said...

"cow watering slide" -- pages 5 and 6 of the presentation I linked to in this article about access. Mr. Kaufman is the author of that presentation.