(The Center Square) – A Washington ranching family fighting for the right to a jury trial filed an appeal this week after a judge dismissed their lawsuit against the state.
Wade and Teresa King, owners of King Ranch in Grant and Douglas counties, are asking the Washington Court of Appeals to reverse the dismissal and to stop an administrative proceeding against them while their appeal is considered.
CASE BACKGROUND
To ensure water for their ranching operation, the Kings performed customary maintenance work on historical stock water ponds on their private land and on land they lease from the government for ranching.
The Kings have operated their ranch on a combination of private and public land for decades, and received an email from Ecology on Dec. 23, 2021, advising them of the state’s claim that they had no right to excavate their stock water ponds on regulated wetlands.
Ecology claims the Kings’ routine maintenance violated the Washington Pollution Control Act and the department issued large fines and told the Kings they had to restore the land at their own expense.
“The department sent out what’s called a penalty order requiring the King’s to pay $270,000 and some. And then the Kings are stuck either paying and complying and then also stuck with restoring the property that was damaged,” said Dunford. “It’s supposedly wetlands and the King’s expert says that [cost] will be over $3.5 million.”
ECOLOGY’S POSITION
Via email to The Center Square Friday, DOE suggested they have followed Washington law every step of the way.
“We welcomed the decision from the Grant County Superior Court upholding our state’s longstanding approach for resolving environmental issues, and we will continue our efforts to restore these important alkali wetlands,” wrote Stephanie May, communications manager for DOE, Eastern Regional Office.
“We remain dedicated to carrying out our responsibilities with transparency, fairness, and integrity, and we will continue to serve the public in accordance with the law.”
The Kings wanted a jury of their peers to hear this case, rather than a government appointed group via the Pollution Control Hearings Board, but that has been denied.
“After the PCHB issues an opinion, the Kings can appeal to a true independent court. But the courts have to treat the findings by the agency as all but conclusive,” said Dunford.
“There is some wiggle room if the court finds there’s no support whatsoever for a finding by the agency, but basically if there’s a little bit of evidence to support the agency’s findings, the court is going to uphold it. That’s very important because of the King’s dispute that the properties in question include wetlands.”
On Friday afternoon, Ecology sent The Center Square the agency’s documentation of their own investigation.
“After examining the soil and hydrology, our wetlands staff confirmed that the damaged wetlands were naturally occurring, including rare alkali wetlands,” it states.
On Aug. 19, a Grant County Superior Court judge dismissed the case, ruling the Kings couldn’t file a lawsuit until the administrative process was over, without addressing whether the administrative process itself is unlawful, because it deprives citizens of their right to a jury trial.
Dunford disputes the argument that the King’s property includes sensitive wetlands.
The Kings have asked the court of appeals to expedite review and postpone the PCHB proceeding so that their constitutional challenge may be heard before it’s too late.
“The government has to respond to our motion for stay by Sept. 4 and then we have three days to reply….and then I think we’ll just get a decision from the court on whether they will speed up review of the case and postpone the PCHB proceeding while the appeal continues,” said Dunford.