Water war continues despite court “settlement”

When environmentalists and Wyoming ranchers agreed on Aug. 11 to end their two-year legal fight over whether a field worker trespassed when measuring water pollution on public grazing allotments, both sides proclaimed victory.

“Trespassing to stop under settlement,”  the Wyoming Stockgrowers Association trumpeted in a press release supporting the rancher plaintiffs.

“Frivolous Wyoming trespass lawsuit finally dropped,” announced the defendant – Western Watersheds Project.

In fact, the “settlement” between the 17 Wyoming ranchers who brought the lawsuit and Western Watersheds, the Idaho-based environmental watchdog, is like a ceasefire in Syria — more posturing than fact — rather than an actual end to hostilities.   

Indeed, the fight over water quality in Wyoming continues, perhaps with the rules of engagement slightly better defined as the result of the settlement:

• Ranchers can now easily seek a court fine — $2,500 for the first trespass and $5,000 for subsequent ones.
• The sides agreed which roads through certain private properties have easements allowing Western Watersheds to pass.

The state DEQ has meanwhile rolled out its revised plan for reclassifying — some say downgrading —  waterways after the federal government said the state’s first attempt lacked public notice and a proper record of public involvement. Wyoming now seeks to list for higher protection about 5,000 more miles of streams and creeks than originally planned — partly due to accepting a federal request to maintain protection under two different labels for key pristine streams.

But the real conflict, both sides agree, was never really as much about  “trespassing” as it was about who was trespassing.  Most ranchers, plaintiff’s attorney Karen Budd-Falen said, are tolerant when it comes to recreational visitors and even hunters crossing their property to get to public land.

The ranchers she represents, said Budd-Falen, “generally are fine with the general public crossing their property.”  But when someone shows up with a water testing kit that could possibly affect their grazing business they draw the line. “We brought the case because Western Watersheds abused the system,” she said.

Western Watersheds says abuse comes from stock growers, heaped on the public-lands environment to the detriment of wildlife. “The landowners don’t want Western Watersheds Project exposing the effects of their land-use practices on the adjacent public lands,” Watersheds’ interim director Greta Anderson said, “so they’re particularly hostile to watchdogs — environmental organizations using those access points. If they were particularly upset by something hunters were doing maybe they would pursue hunters. This was an agenda-driven legal action. This lawsuit was not about trespass.”

As the dust settles one thing is clear. Despite the initial celebration of the settlement, the core issues — including those that go to the very definition of Wyoming as the “Cowboy State” and the schisms over appropriate land use in an arid territory — remain as volatile as ever.

The basis for the battle

On one side, Western Watersheds charges that cattle feces dangerously overwhelms Wyoming’s public-land waterways, contrary to federal laws. Further, state bureaucratic oversight of federal clean-water standards favors ranchers, says Western Watersheds’ determined Wyoming project leader, Jonathan Ratner. He claims Wyoming lawmakers unabashedly pass unconstitutional bills in an effort to aid agricultural interests.

Cowmen and their supporters have fought back. The federal government applied clean water standards too broadly, they assert – and the state’s DEQ agrees. Western Watersheds’ goal is to remove stock from public lands, they say. And if environmentalists are going to trespass in the process, lawmakers have at least legalized additional protections and penalties to prevent that behavior.

The original civil suit against Western Watersheds alleged that Ratner, who collects water samples and range data as part of his organization’s effort to preserve wildlife habitat, trespassed while getting that information. Criminal trespass in Wyoming is a misdemeanor that carries a maximum 6 month sentence and $750 fine for those who knowingly enter or remain on someone’s property. Ratner was never cited by law enforcement — the one time he was confronted by authorities, a deputy took his side.

In a state where private property rights are rigorously guarded, unwanted intrusions are not taken lightly. Ranchers alleged, and Ratner disputes, that he trespassed more than 60 times despite warnings. The settlement — officially a “stipulated final order and permanent injunction” — states in the awkward language of compromise, “that Defendants trespassed on some of Plaintiffs’ property, and did not trespass on some of Plaintiffs’ property…” There was no exchange of money, no fines, no penalties, no actual injury.

Even though Ratner drives “like a bat out of hell,” as one critic said, the ranchers contend that just looking at a map shows he couldn’t have collected the samples in question without trespassing. They say he also owns a motorized hang glider. Among the unique provisions of the settlement is a prohibition barring Western Watersheds from “entering into the private airspace” above the ranchers’ properties “up to an altitude of 500 feet.”

The settlement almost resolves a principal point of confrontation between the two groups, and that’s which roads through the ranchers’ property can be legally traveled on easements or rights of way. The settlement includes 14 exhibits comprised of maps with property boundaries, roads and easements marked on them.

“Western Watersheds Project never intentionally trespassed,” said Anderson, interim director, of the Idaho-based conservation group. Ratner is “very, very careful,” about where he is and whether he is on private property, Anderson said. “Western Watersheds Project has always tried to do due diligence and adhere to trespass laws.”

Nevertheless, Western Watersheds admitted to trespass. “I think that a lot of people make mistakes when they’re out driving on unmarked roads on their way to public lands,” Anderson said.

In his initial ruling, when he required both sides to seek settlement via a mediator, state district court Judge Norman Young in Lander let the trespass claims stand, to be decided by a jury if the settlement failed and the case went to trial.  But, the judge ordered, no punitive damages would be awarded against Western Watersheds.

One result: Understanding not all Forest, BLM roads may be open to the public

One of the outcomes of the lawsuit is its revelation that federal roads — even those that are numbered and part of an official agency network — may not be open to the general public without permission from owners of the private land they cross.

BLM and U.S. Forest Service maps, for example, show numerous “system roads” that cross private property. Two of the three major accesses into the east side of the Wyoming Range cross private land where there is no public right-of-way, Ratner said in an interview.

None of that is an excuse, said Bobbie Frank, executive director of the Wyoming Association of Conservation Districts, a group that has helped stockmen but which was not a party to the suit. She is a member of the Frank Ranches family that was involved in the court action. “If you go to the bottom of BLM maps it says roads may cross private land,” she said. “I think that with today’s technology, people can find where they’re at and do due diligence.”

Ken Hamilton, executive vice president of the Wyoming Farm Bureau Federation, another group that was also not part of the suit, said the onus is on the traveler and the burden is especially heavy on researchers. “I believe if you’re going out and doing a scientific data collection you probably should have the ability to know where you’re at.” Added Budd-Falen, “clearly Western Watersheds knew where they were.”

Ratner said he knew where he was, but that determining the status of easements is another matter. “It’s amazingly difficult, if not impossible in some cases, to find if there is legal access to BLM roads that cross private property,” he said. “The county records don’t contain all the easements. Many of the easements that we found are not recorded by the county. It required going to the BLM office, searching through files. Even the BLM haven’t kept their records properly.”

The settlement — and its 14 map exhibits — is an example of the tangled nature of rural federal roads. It took two years of wrangling among lawyers, witnesses and judges to define the easements.

The parties couldn’t determine the status of one BLM road in Lincoln County (located in Township 28N, Range 119W, Section 25). The settlement states that Western Watersheds is;

“allowed to travel on it until it is determined whether the current public easement held by the federal government covers the current or planned route location. If the current road is later determined by the federal government to not fall within the public easement, then Defendants shall refrain from further use of the road until the easement is corrected.”

But ranchers and their supporters say this shouldn’t take the fun out of a drive to public land. For example, Budd-Falen’s family owns property traversed by one of the eastern accesses to the Wyoming Range and there’s no easement across that Sublette County ranch. Sublette County online GIS ownership maps show South Piney Fish Creek Road 23-142 entering property owned by Budd and Sons Land Company (which was not a party to the suit) and continuing through the ranch to BLM and U.S. Forest Service land beyond.

“We never did ever close [the road] to those recreationists as long as they stayed on the road,” Budd-Falen said. “That road still isn’t closed. We didn’t bring [the suit] to close the roads.”

Wyoming’s data trespass law

In 2015, Wyoming lawmakers took Western Watersheds Project on in a straightforward manner. Solons, generally sympathetic to and supportive of ranchers, passed a law making it illegal to collect environmental data on “open land,” including federal public property.

WWP, the National Press Photographers Association, Natural Resources Defense Council, People for the Ethical Treatment of Animals and the Center for Food Safety sued.

Federal District Court Judge Scott W. Skavdahl, in Casper, revealed which way he was leaning after hearing initial arguments. “At this stage, the Court finds it difficult to conceive a permissible rationale for preventing the collection of resource data on lands which the public has the right to be upon,” he wrote.

The Legislature amended the law in 2016 to cover only data collection on private land. That didn’t satisfy Western Watersheds, represented by pro bono attorneys, which amended its suit and continued its fight.  Judge Skavdahl dismissed the renewed claims. Western Watersheds will appeal, said Justin Marceau, a professor at the Sturm College of Law and the University of Denver who represents the environmental group.

“We feel pretty confident that the complete denial will be overturned,” Marceau said. “The District Court failed to acknowledge that the conduct of groups like Western Watersheds Project in trying to collect data is part of expression.”

David Muraskin of Public Justice, among the plaintiffs’ legal counsel, also outlined the case to WyoFile earlier this year. Wyoming’s data trespass laws target the actual gathering and sharing of environmental information — which is protected under the First and Fourteenth amendments — as crimes themselves if associated with trespass, he said. “It’s basically giving the state leverage to suppress speech in the most blatant way…”

Marceau continued; “The new law still creates criminal and civil liabilities for truly harmless errors,” he said. “It sometimes happens the BLM tells you there’s an easement and there’s not — or they haven’t done the paperwork. Wyoming’s statute, as amended, still allows punitive damages [for someone] that does everything in their power … not to trespass.

“But if they happen to do so, should they go to jail for it? They wouldn’t in any other state. I haven’t seen anything like this — it’s even unique among ag-gag laws,” which are said to protect farmers from scrutiny.

Marceau and others pitched in to help Western Watersheds at no charge because they saw the ranchers’ suit as one attacking the group itself. “The group was kind of being put through this litigation wringer,” he said. “The litigation expenses alone could have bankrupted a nonprofit.”

Such court actions are called Strategic Lawsuits Against Public Participation or “SLAPP suits.” Western Watersheds flatly called the ranchers’ suit petty and “a malicious diversionary tactic by the ag industry to deflect attention away from the [damage] livestock grazing does to our public lands, public waters and wildlife.”

Budd-Falen flatly denies that. “These landowners [sued for] one reason — to stop the abuse of their property rights so they wouldn’t have to close their property to everyone,” she told WyoFile in an interview.

The ranchers’ civil suit, addressed in the settlement, was brought in 2014 under longstanding Wyoming trespass law, not the controversial data trespass law which was passed in 2015 in response to ranchers’ concerns.

Federal clean water rules at heart of the fight

While the lawyers were fighting in court, the Wyoming Department of Environmental Quality was changing the classification of thousands of miles of Wyoming waterways. Many were protected as recreational waters under the federal Clean Water Act. The standards are designed to protect people playing in waters near campgrounds, schools and picnic areas, among other places. Typically, recreational waters are where one could swim or play — get water on the face, nose and mouth — and potentially become sick from any E.coli in the water. The bacterium lives in the intestines of people and animals and can cause severe illness, even death.

Critics of the federal classification contended the government was wrong to use a blanket approach that imposed the recreation standards across a vast, arid landscape. The primary recreation standard says the waterway must have fewer than 126 E. coli organisms per 100 ml of water during the summer recreation period of May 1 through Sept. 30. Failure to meet the standard would be a call for corrective action.

But many of the waterways in Wyoming didn’t have the flows required for recreation, stockgrowers and their allies said. The Wyoming DEQ, which administers the federal law, sought a blanket de-categorization to counter the federal Environmental Protection Agency’s sweeping listing. Under the initial DEQ proposal, 87,775 miles of rivers, streams and creeks would reclassified as “secondary” and could have five times as much bacteria — an E. coli count of up to 630 — without being considered “impaired.”

DEQ, helped by Bobbie Frank’s association of conservation districts, surveyed dozens and dozens of creeks to help create a model that allowed the state agency to propose the re-categorization. Conservation district workers documented flows, among other attributes, to aid the reclassification.

“If you have a water body that is 3 inches deep, I don’t think most people would consider that to be a recreational water body,” said the Farm Bureau Federation’s Hamilton.

When the DEQ announced its new proposal in 2015, after years of work with the conservation districts, environmental and conservation groups decried Wyoming’s effort as “downgrading” streams. DEQ, unconvincingly to some, said the changes wouldn’t add pollution but rather allow the agency to concentrate pollution control on real recreational waters.

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The National Outdoor Leadership School in Lander, a major economic engine in Fremont County and an entity that rarely comments on environmental or political issues, joined the fray. “The DEQ’s decision to implement bulk downgrades of stream quality should not be a future that Wyomingites settle for,” wrote John Gans, director of the National Outdoor Leadership School in Lander. His opinion piece in the Casper Star Tribune on Sept. 10, 2016, outlined some of the thinking by the outdoors community.

The Wyoming Outdoor Council, among others, said the effort wasn’t well advertised and was moved through obscure channels of state government under obfuscating technical language. The entire reclassification effort, for example, was called, in public notices,  a CUAA — a Categorical Use Attainment Analysis for recreation.

While Wyoming administers aspects of the Clean Water Act, it has to do so under federal standards. The federal EPA had to approve Wyoming’s methods and its proposal to change the number of waterways classified for protection under the primary recreation standard.

The feds took note of complaints and told Wyoming it hadn’t properly advertised its public meetings and had not made a necessary record of comments. Wyoming took offense. “EPA is misreading both the Clean Water Act and its own regulations,” DEQ director Todd Parfitt wrote.

Ultimately, Wyoming agreed to advertise and hold another public meeting and to record comments. But only because EPA “has only raised a procedural objection,” Parfitt wrote, and because “this approach will also avoid costly and lengthy litigation.”

“We felt we met all the [federal] criteria,” DEQ spokesman Keith Guille said of the reclassification effort. Nevertheless, “EPA asked us to hold another hearing, members of the public said they wanted that [so] certainly we provided that again.”

Wyoming had proposed removing some of what are known as “Class I” waters from protection under the recreational water rule. The thinking was that Class I waters were already protected, state officials said. “I think there was, honestly, a misunderstanding,” said Lindsay Patterson, who works on surface water quality standards with the state.

Guille reiterated Parfitt’s position regarding the significance of federal EPA intervention in the process. “At the end of the day,” he said recently, “this was more of a procedural matter.”

After the new hearing, Wyoming rolled out its revised reclassification on Sept. 1, 2016 with significant changes. Many of them had to do with maintaining the primary recreational designation of Class I streams, following requests from federal agencies and environmental groups to do so. Giving those streams both Class I and recreational protection meant that Wyoming decreased its reclassification of streams to the secondary standard by 4,789 miles, or about five percent. Looked at another way, that meant that the number of miles classed for maximum protection as recreational jumped by 18 percent.  In addition to the Class I areas, which included streams in wilderness areas, some of the increase in recreation protection came when DEQ added to that category waters in Indian Country and 4 miles of Wild and Scenic rivers. DEQ also added a number of areas near dispersed camping sites — using Forest Service data and other information — to protect areas where campers frequently pull off dirt roads.

Among those waterways that will be guarded by the recreational standard — but were originally slated for “decategorization,” so they could be considered secondary streams with less protection — are well known streams, rivers and creeks like the Fish Creek watershed in Teton County, national park waters, parts of the Snake, Green, Wind, North Platte, Sweetwater and Encampment rivers, the South Fork of the Tongue River, Middle Fork of the Powder River, and the Clarks Fork.

As to the wilderness waters, U.S. Forest Service officials said — during the EPA’s required rehearing — that federal laws required wilderness waters be protected at the higher standard. “A change in recreation use designation of these waters from primary to secondary would conflict with congressional mandates under the Wilderness Act of 1964 and the Wild and Scenic Rivers Act of 1968….” a letter from regional foresters said.

The milieu of Jonathan Ratner

Ratner, an outdoorsman who once worked for the Forest Service, has spent many days monitoring range conditions in Wyoming, including collecting water samples to quantify pollution on public land. His data collection effort is directly tied to his concerns about livestock impacting wildlife habitat on public lands. If Western Watersheds could get the DEQ to recognize degradation of streams — the violation of water quality standards — it could ask the Forest Service or BLM to change grazing practices to cure the problem. Ratner and Western Watersheds had been collecting water samples for years, as allowed by Wyoming’s DEQ. They filed a Sampling Analysis Plan with DEQ that outlined the scientific method they would use. They submitted the samples to DEQ, regularly.

Adherence to protocol is essential under this system. “When you perform some of these processes you need to determine whether a water body is impaired … that is a pretty scientific process,” said the Farm Bureau’s Hamilton. “They shouldn’t be accepting it from a rancher, nor should they probably be accepting anything from Western Watersheds.” In today’s world, where data can even be gathered by remote-control methods — “it’s particularly important to our folks they have control who’s doing that,” he said.

Off Ratner would drive, up one side of the Wind River Range and down the other, like a hang-gliding bat out of hell, largely on public land and public roads, collecting water, incubating samples and performing analyses that were turned into the state. After a recent submission, DEQ “rejected all the samples,” Ratner said.

Among the reasons — that Ratner’s incubator did not meet standards. Ratner said he got a better machine than was required. Among the DEQ objections, he said, was that WWP didn’t have a continuous record of the incubator’s temperature.

“It appears that they want … a graph of the temperature for every single incubation session,” he said. “The DEQ, for its own incubation, doesn’t have this data yet they’re demanding it for us.”

“Of course, if we give that to them, they will come up with some other excuse,’ he said. “We’re sort of in this endless loop. The state wants to keep its head buried in the sand on the issue of E. coli in Wyoming’s waters. The issue is ideological, not rational or scientific.”

Complaining to federal agencies won’t help, he said. Those officials say “the state hasn’t listed the streams [as impaired], so we don’t have to do anything,” Ratner said.

DEQ rejected Ratner’s charge. “We are concerned,” Fredrick said about water quality. “I think that’s acknowledged in the approach we took.”

For David Waterstreet, DEQ’s program manager, the reclassification allows the agency to concentrate on pollution in streams that matter, not ephemeral ones that aren’t used for recreation. “That was one of the purposes,” he said, to ensure “that we are placing our resources in the appropriate place.”

Like the Wyoming Association of Conservation Districts, which says it “promotes and protects the quality of Wyoming’s waters,” Western Watersheds also has a stated goal. “Our mission,” director Anderson said, “is to restore western watersheds for wildlife. The way we have found to be effective is to limit degradation caused by livestock grazing on public lands. The goal is not to end livestock grazing. The goal is to restore species and their habitat.”

Ranchers don’t buy a word of it. “I don’t think it’s any secret their desire is to get grazing off federal lands,” said Farm Bureau Federation’s Hamilton. “That was on their website for a number of years.”

Anderson said that’s a mischaracterization, based on “a photocopy of a handwritten Post-It Note.” Ratner, too, says anybody who thinks Western Watersheds is going to end multiple use on federal lands is unrealistic. But the group can’t help itself; “The time has come to end public lands ranching,” a statement on its website says.

The way Hamilton tells it, ranchers don’t like feces-infested waters any more than anyone else. “If there’s a legitimate reason [to worry about pollution and collect water samples] most of our folks are pretty supportive of those kinds of efforts,” he said. “If those folks are out there doing it legally, there’s nothing they [ranchers] can do about it and I don’t think they want to do anything about it.”

Hamilton, nevertheless, supports tougher trespass laws. “We need to have it easier for our law enforcement people and to address these trespass incidents … because of the resource damage that occurs,” he said. “By the time you get a sheriff out there… to find out if an individual broke the law … [enforcement is] probably not going to happen.”

After about a year’s hiatus between when the data trespass law was first passed and when it was amended to exclude all “open land,” Western Watersheds is again in the field. “We’re already back out on the ground using public-lands access to monitor water quality and wildlife habitat,” Anderson said. “That’s what we do.”

As example of its work, the group recently celebrated results of a threat to sue the Humboldt-Toiyabe National Forest for failing to consult with the U.S. Fish and Wildlife Service when approving 10 grazing permits on the Jarbridge Ranger District in Nevada. At issue was habitat for threatened bull trout and Lahontan cutthroat trout. Western Watersheds claimed victory. “It’s an important win,” the group said in a statement, “because the near-term restrictions will afford the fish a reprieve from grazing impacts for the rest of this year, and the new consultation is likely to impose even more stringent protections for the species going forward.”

For Ratner in Wyoming, such wins are few and far between. “Progress on issues are pretty slow,” he said “There is great resistance to any kind of environmental protection, both within the State of Wyoming’s apparatus as well as with the federal land-management agencies.”

“The level of hatred for the Clean Water Act and its implementation, by the governor and conservation districts, is so extreme that the chances for getting a stream listed for E. coli is virtually impossible,” he said. “When livestock are present on a particular allotment, streams will generally violate the state standard by 10 to 20 times. This is why it is a hot political issue.”

Stockgrowers say Western Watersheds has learned a lesson. For Frank, with the conservation districts, the fact that “there’s been an acknowledgement of trespass,” was a key settlement point. “And in the future people will be respectful of trespass and get the appropriate permission.”

The admission also was important to Wyoming Stock Growers Association Executive Vice President Jim Magagna. The settlement will cause WWP “to be more careful, more astute.” While the sides have not become friends, adherence to property lines, he said, “can certainly improve that relationship.”