Joseph Lemire, Respondent, v. The Department of Ecology et al., Appellants, 178 Wash. 2d 227

Stephens, J. ¶1 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 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 ¶2 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. Following its 2009 observations, Ecology issued administrative order 7178.

The order prescribed a number of corrective actions for Lemire, including constructing livestock fencing and off-stream water facilities in order to eliminate livestock access to the stream corridor. ¶3 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 ¶4 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). ¶5 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. A. The Board properly upheld Ecology’s order on

summary judgment ¶6 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. Id. ¶7 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 & Mot. for Summ. J.). ¶8 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 authority to regulate nonpoint source pollution. The party asserting the invalidity of the order carries the burden of proof. RCW 34.05.570(l)(a). 1.

Substantial evidence supports Ecology’s order ¶9 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. ¶10 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 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 injurious 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. ¶11 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. ¶12 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. Deck 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, overgrazing 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. ¶13 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. ¶14 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 impacts the measure of dissolved oxygen in a stream, which can negatively impact the stream’s aquatic life. Id. at 7-8. ¶15 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 of the State’s waters to the United States Congress and the public. Id.

The assessment report lists Pataha Creek as exceeding water quality standards for fecal coliform bacteria, pH, temperature, and dissolved oxygen. Id. The creek is a polluted water body. Id. ¶16 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. ¶17 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. Id. 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 from veterinarians at a clinic in Lewiston, Idaho. Id. 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. ¶18 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. ¶19 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-l 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 contends was never confirmed for the stretch of creek running on his land) and the conditions of his parcel. Id. at 19. ¶20 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. Id. 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). ¶21 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 Wash. Cattlemen’s Ass’n et al. at 13-14. As noted, Ecology needed to show only 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 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. ¶22 The dissent chastises us for disregarding the superior court’s judgment. Dissent at 256-57. In an APA 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 251-52 (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. Ecology properly exercised its statutorily mandated powers and duties. ¶23 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 ¶24 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 non-point 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 ¶25 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.

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. ¶26 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 various administrative code provisions to mean that nonpoint source pollution is not a “discharge of pollutant” and that Ecology cannot regulate nonpoint source pollution. ¶27 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 Wash, in Supp. of State of Wash., Dep’t 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. b.

Ecology’s order was not contrary to statutes prohibiting impairment of water rights and conversion of agricultural land ¶28 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. ¶29 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(l)(a). ¶30 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(l)(a). ¶31 We hold that Ecology is authorized to regulate nonpoint source pollution, and there is no evidence suggesting that Ecology otherwise contravened statutory provisions. ¶32 The remaining issue is whether Ecology’s order impaired Lemire’s constitutional rights. B.

Ecology’s administrative order did not effect an unconstitutional taking ¶33 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. ¶34 The parties and amici strenuously debate the framework on 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, with 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. ¶35 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 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. ¶36 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 (EAJA) ¶37 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 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 ¶38 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 EAJA, we further reverse the trial court’s award of fees and costs. Madsen, C.J.; C. Johnson, Owens, Fairhurst, Wiggins, and González, JJ.; and Chambers, J. Pro Tem., concur.

Contrary to the dissent’s unsupported assertion that Ecology spent “six years trying to make a case against Lemire,” dissent at 247 n.10, 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.”).

The APA 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). 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. 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-l 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 247. 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 247 n.9, or that what he saw were merely gopher mounds, id. at 248. The material facts, while perhaps doubted by the dissent, were not disputed in the record.

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.