Tuesday, June 16, 2009

Legal stuff; appeal of Dept. of Ecology order 6708

This is a copy of the appeal of an order issued to me by the department of ecology for spreading wood chips on my property. The best information I have is that these appeals will typically result in a pre-trial hearing in 4-6 weeks, and a formal hearing in 9-10 months. So we'll resolve this one sometime in 2010.
This notice filed per WAC 371-08-340

Appellant: Bruce King
444 Ravenna Blvd, Suite 308
Seattle, WA. 98115
206-940-4980 (voice)
206-985-4464 (fax)

Apellee: Department of Ecology, order #6708

For site located at 1905 55th avenue SE
Everett, WA 98205-2132

Tax parcel #29052200300300

The area in question comprises 1/8th of an acre, located on the south east corner of my 12 acre property. The Department of Ecology has caused an order to be issued that prevents any work on my entire property, a working farm. I am contemplating seeking an injunction against this order because it substantially interferes with normal daily activities on my farm, such as repair of existing fences, planting corn or other crops, tilling, mowing, haying or any other activity. This order is causing me severe hardship and economic damage.

This order was issued in response to my spreading wood chips on my property to prevent erosion and serve as mulch to control reed canary grass,a non-native and invasive species of grass listed as a noxious weed by the snohomish county weed control board and other agencies. Spreading and use of wood chips as mulch or soil amendment is a common and legal practice.

The department of ecology has not offered any proof of any discharge and wishes me to spend thousands of dollars in the hope that my money will prove their assertion. Such fees prior to any finding in any competent court or jurisdiction present a fine or penalty that is prior to any due process. If the department of ecology wishes to press this point and believes that there is a violation, at the very least the department of ecology should pay for the assessment and survey. There is no proof, measurement or indication of any sort that any detectable pollutant is emitted from my property, much less that wood chips on my property created any such pollutant.

The department is able to collect samples of the water from the state right of way, over 1,000 feet of linear distance that comprises the south property line of my property, or from any other point or points, but has not done any testing that I know of. The areas that I have spread chips on are only inches away from this right of way, so any pollutant that is produced would surely show on tests if they chose to perform any. They have done this sort of testing in other cases but have chosen not to in my case, despite the Department of Ecology assertion that he was aware of this matter as early as January 11, 2008.

The have had over a year to do any testing by their own admission and this appears to be more than adequate time for them to do so.

It is unfair to attempt to have me pay to prove their case for them when they have every right and ability to do their own testing and have chosen not to do so.

Relief sought: I want this order struck and a declaratory order entered stating that use of wood chips on agricultural land for mulch or soil amendment is consistent with normal agricultural practice, is legal and permissible, and to have the department of ecology enjoined from further harassing me on this matter.

Facts in support of this appeal:

Mr Anderson, the ecology biologist responsible for this order, directed and approved the filling and grading of a hole created when a neighbor of mine sank an excavator on his property that adjoins mine. On multiple occasions, in the presence of at least 5 witnesses, Mr. Anderson threatened Jim Clementson, the owner of this neighboring property, with fines of $10,000 a day and continued to make those threats to Mr. Clementsons attorney. Later, he threatened me with the same fines. Mr. Anderson has used these threats on multiple property owners which I intend to show at this hearing. He makes these threats verbally.

In order to facilitate the removal of this equipment, because the state DOT refused to allow any access under highway 2, the recovery effort was mounted over my property. I received no recompense for any of this work, and did so under the direction of Mr. Anderson, believing that removal of this equipment and nuisance was best for all parties - those parties being the state of Washington, Mr. Clementson, and myself and various other state and federal agencies. I have incurred substantial loss to facilitate solving this problem and am puzzled by Mr. Andersons actions in light of his complicity in this recovery effort. Mr. Anderson took many photos of this recovery effort and published those photos in various journals. The recovery of this equipment was a public spectacle, and Mr. Anderson was there the entire time. No action I have taken was done with any intent other than best agricultural practices for a small, working farm and to restore the land to its original status as productive pasture as rapidly as I could.

Mr. Anderson was present at multiple times during the recovery effort for that equipment and approved the actions required to remove that equipment from the property.

My property is zoned AG-10, an agricultural designation in snohomish county and has been in continuous use as agricultural land for at least 50 years. It is within the 100 year flood plain.

Mr. Anderson directed Mr Clementson in my presence to "Do whatever you need to do to get equipment back there and fill that hole". and told Mr Clementson to fill his hole with whatever material he could. Mr. Clementson, obviously very disturbed by these threats, representing financial ruin for him, has abandoned the property, leaving the hole that Mr. Anderson wished to have filled.

The land prior to the recover effort was a meadow that has been used for decades to graze cows , sheep and other animals, and to grow peas and hay. Historic photos dating to the turn of the century show a variety of uses of the entire parcel, including as an auto junk yard, commercial log yard, pasture, row crop and other typical agricultural uses as allowed by past zoning and regulation and by current zoning and regulation. The use of this land has not changed.

After the equipment recovery effort the canary grass that comprised the bulk of the vegetation in this 1/8th of an acre and still does comprise the bulk of the vegetation surrounding this area, was mashed down and unusable as pasture. To restore the land to useful pasture I initially planted several species of pasture grass and forage grass with an eye towards improving the protein content of the forage. I found that the reed canary grass was too well established and out-competed more desirable strains of grass. After consulting with the weed control board, I chose to use a layer of wood chips to suppress the canary grass, which worked well.

The choice of mulching with wood chips in the opinion of the noxious weed control board of snohomish county, was the most ecologically friendly method and posed no danger of herbicide runoff or any other form of pollution or damage to the surrounding area or vegetation.

The snohomish county planning and development service served notice on me that fencing was considered to be an obstruction in the 100 year flood plain, and this prevented me from fencing off that 1/8th acre of restored pasture. Given that I could not fence and so could not contain my animals on my property, I decided to use that 1/8th acre area of land to construct a temporary greenhouse to use as part of my small integrated farm. This is a lightweight, membrane (plastic) covered structure that I use to extend my growing season. This sort of building and its location is allowed by the zoning and is common on farms in western Washington. This building was constructed on grade by driving metal pipes into the dirt and then mounting metal hoops on those pipes, covering the resulting structure with plastic. There is no foundation and there was no disturbance of the soil required to construct this temporary structure.

I raise chickens, pigs, cows, goats, sheep, turkeys and geese on this property.

I use wood chips in my farm operation as a source of organic material for compost, to control weeds, and to amend my soil as indicated by soil tests and experience with my land.

When the state, county or any other entity creates a new wetland, one of the key components of that construction is wood chips, also known as hog fuel, and woody debris such as stumps, logs and branches. At times they dump these items on the banks of a river or stream, or sometimes directly into the stream or river itself. Given that accepted science and practice in this state has led to the dumping of millions of cubic yards of wood chips in tens of thousands of "wetland" sites, to now claim that wood chips here are a pollutant is inconsistent, at best.

Mulching to control noxious weeds is considered to be best practice, as evinced by the publication attached to this appeal.

Heavy rains in the earlier part of this year led to standing water on my property, which borders on highway 2. Runoff from the 76 acres of concrete from highway 2 are not controlled or impounded in any way. This huge impervious surface next to my property and the surface roads underneath this elevated highway have diverted water that would normally drain to the south onto my property, leaving the impression that it is wetter than it is. The department of ecology approved plans for this section of highway 2 require a lower area and plantings designed to aid in the impounding and filtering of water, none of which has been completed, and none of which have been enforced. The state department of transportation has had to post "Water on roadway" signs on the surface roads for months this year, something they have not had to do in previous years.

My property sits entirely within diking district #6, which dike was established in 1905. Prior to the construction of the dike the area was a tidal marsh. The presence of hydric soils or plants in the surrounding area may not be indicative of wetland status. Inundation by runoff from highway 2 combined with local random distributions of wetland plants means that they will re-establish themselves very quickly if standing water is present, but this is caused by the surface roads and construction of highway 2, along with the department of ecologies complete failure to enforce the approved plan for highway 2. This standing water is a recent occurrence. Peat bog will persist for centuries after the water is removed, and tannic acid, one output from peat bogs, is an excellent preservative.

This appeal pleading may be amended as the county and state respond to my public document requests. I believe that there will be information material to this appeal that will be disclosed by these requests.


Adam said...

That man is crazy! How do you not explode on this man and do something stupid? When someone in my neighborhood feels like waving their big stick around I do my best to make a fool of them.

Good luck to you with this mentally inept neighbor of yours. Hopefully you win the argument (sounds like you will)!

Bruce King said...

This isn't the neighbor I'm fighting with. it's the department of ecology. They are telling me that spreading wood chips on my land is forbidden, and have issued a legally enforceable order that prevents me from doing anything on my land. So I'm working through their appeal process and we'll see if my arguments are considered valid.

Mark my words -- if you farm in washington state, the department of ecology is NOT your friend in any way.

Galeandra said...

Does it seem to you that it is the intention of the Dept of Ecology to have all farmers in your area abandon farming or walk off the land?

Bruce King said...

Yes, and for the most part it has succeeded. There are fewer and fewer farms and less and less farmland; lost to both development and to "wetland restoration". what little farmland remains in snohomish county is in the flood plain, and it appears to be targeted for extinction, mostly by regulations that in theory help conserve the environment but in practice have not stopped or even slowed the decline of the targeted species. Salmon runs, for example, have continued to decline despite the hundreds of millions of dollars we've spent.

My opinion is that appears to be the goal of the department of ecology to destroy farmland.

Anonymous said...

Bruce, my od pressure was zooming higher and higher as I read your account. I hope you find a court that will respect your property rights. From your account you sound like you have much more respect for the environment that does the Dept. of Ecology. I understand the need for regulation - and have argued for it in my teaching days - but too much regulation is badly designed or applied by ill-informed or even mendacious officials. Anyway, I wish you well.

Patty S. said...

There is NOTHING worse than petty bureaucrats on a mission. I pray as hard as I can that your appeal is successful and that you dump TONS of woodchips wherever you want. One question - if your neighbour abandoned the property and failed to fill in the hole, what happened to his property? Was it seized for taxes, or did (or can, for that matter) the county add the cost of reclamation to his tax roll? And seeing as how you have suffered the damage to your property as a direct result of the negligence of your neighbour, can you not sue him for your recovery/reclamation costs? That's assuming that everybody is litigation-happy, but if you follow the "responsibility" trail, it shouldn't end with you. Only my opinion of course. Stay the course, Bruce! Good luck.