A yearslong legal battle between Andy Johnson and U.S. EPA over a stock pond on Johnson's southwest Wyoming property ended this week in a settlement that Johnson and the Wyoming Congressional delegation are hailing as a victory. (Creative Commons)

A ranchers’ suit claiming an environmental activist trespassed to collect water samples and other data may go to trial, a judge ruled, but without the prospect of imposing punitive damages.

Judge Norman Young issued two orders in the case against Western Watersheds Project and Jonathan Ratner last week, throwing out some of the claims against them. Both Western Watersheds and attorneys representing Frank Ranches and other stockmen had asked the judge to decide aspects of the case without a trial.

Young refused to toss out most of the trespass allegations, as sought by Ratner and Western Watersheds, saying a jury should decide about them. The judge also ordered that punitive damages — fines over and above actual damages and that seek to dissuade someone from trespassing again — would not be imposed in the case.

Two of the ranchers’ attorneys said they had to be cautious in their comments because the case is ongoing. Western Watersheds did not immediately respond to a request for comment Thursday. Western Watersheds collects data about grazing on public BLM and U.S. Forest Service lands but is accused of trespassing in the process.

“We were glad that the court found that, based on our circumstantial evidence, we had raised enough facts we do get to present our trespass allegations to a jury,” said Karen Budd-Falen, who represents most of the ranchers. Regarding Young’s order that no punitive damages would be allowed, “we have not decided if we are going to appeal that,” she said.

Dan Frank, who represents Frank Ranches only, said his clients “were pretty much left unscathed,” by the orders.

Both sides sought summary judgments on aspects of the case and argued their positions in front of Young on Jan. 22 in Lander. Young signed orders Feb. 11 rejecting the ranchers’ request for partial summary judgment and granting, in part, Ratner and Western Watersheds’ request.

Young also has required the two sides to meet outside the court to see whether they can settle their disagreements through a mediator. Meantime, Young’s orders relieve Ratner and the environmental group of the prospect of potentially onerous penalties.

In ruling out punitive damages, Young relied on case law that says such penalties are only appropriate if there are actual damages to ranchers’ property. “In Wyoming, the rule appears to be that punitive damages are not appropriate in the absence of compensatory [actual] damages,” Young wrote.

“The plaintiffs have not claimed any actual damage and counsel confirmed such during oral arguments,” Young wrote. “The plaintiffs are not entitled to punitive damages and this is the law of the case unless and until modified.”

Hang-gliding “bat out of hell”

A number of trespass allegations remain fit for trial, Young also wrote, even as he tossed out a few for being filed too late. Ratner and Western Watersheds said the trespass allegations against them in all but one instance — a June 19, 2013 incident on Frank Ranches — relied on speculation and conjecture and not on witness.

Ranchers claimed they have direct evidence of trespass. They argued that the opinion of Catherine Rosenthal, an employee of the Wyoming Association of Conservation Districts, was “based on facts representing competent circumstantial evidence.”

The case file in the suit filed by ranchers against Western Watersheds Project and Jonathan Ratner fills several legal folders. (Matt Copeland/WyoFile)
The case file in the suit filed by ranchers against Western Watersheds Project and Jonathan Ratner fills several legal folders. (Matt Copeland/WyoFile)

Among Rosenthal’s observations were the times when Ratner said water samples were taken — times documented by Ratner and later submitted to Wyoming DEQ with the samples — and the likely routes Ratner would have had to travel to get them. That information shows Ratner would have had to trespass, ranchers argue

Documents obtained by Western Watersheds in the course of the case and shared with WyoFile show Rosenthal’s boss Bobbie Frank describing how Ratner speeds while collecting samples. Even if he drove fast, he would have to trespass to collect the samples when he said he did, Frank wrote in an email.

“He does drive like a bat out of hell,” Frank wrote in one email, “but even then I don’t see how it’s possible,” to avoid trespassing, the email says. Ratner also has a motorized hang glider and ranchers believe he used it to at least take photographs, documents show.

Young wrote, “the weight and credibility of evidence, both direct and circumstantial, are matters for the jury.”

Western Watersheds failed to get the bulk of the allegations thrown out on the grounds that the plaintiffs’ filing amounts to an abuse of power — that they constitute what’s known as a SLAPP lawsuit, a Strategic Lawsuit Against Public Participation.

“The Court finds that the existence or non-existence of a motive such as spite or other improper or ulterior motive is a factual issue for determination by the jury and not a proper subject for summary judgment,” Young wrote.

Some ranchers are tossed from suit

Some ranchers failed to file suit in time, Young ruled. He barred Roberts Ranch, White Acorn Sheep Company and the Little Sandy Grazing Association from continuing as plaintiffs. The three allege trespass before June 12, 2010, which the judge said was too far in the past to allow legal action.

Western Watersheds and Ratner also asked Young to declare some roads, primarily in Lincoln County, are public. Lincoln County commissioners in June 2000 passed a resolution establishing public roads under an 1866 statute known as RS2477, the environmental group contends.

The roads cross property owned by Ray Okelberry, Fish Creek Flying W Ranches, Inc., Hope Eccles Behle, C&D Enterprises, Inc., Joseph and Glade Jones, Roberts Ranch and 3Y Livestock, LC.

“It is incumbent on the defendants to establish among other things, that the RS2477 rights of way were established prior to the lands in question passing into private ownership, and that the resolution was adequate to establish a particular right of way on a particular piece of ground in a particular location,” Young wrote.

The judge tossed ranchers’ request that Ratner not be able to defend himself using several principles governing rights of way. Among those are “presumptive permission,” “public necessity,” and “prescriptive easements.”

Western Watersheds has sued Wyoming officials challenging a law passed last year that would make data collection on “open land” illegal. Lawmakers are seeking to amend that statute this year to tie it closer to trespassing on private property.

Angus M. Thuermer Jr.

Angus M. Thuermer Jr.

Angus M. Thuermer Jr. is the natural resources reporter for WyoFile. He is a veteran Wyoming reporter and editor with more than 35 years experience in Wyoming. Contact him at angus@wyofile.com or (307)...

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