April 20, 2018
CapitalPress.com
3
Judge: Oregon farmer liable for Clean Water Act violation
Federal government
claims riverbank
stabilization was
unlawful
By MATEUSZ PERKOWSKI
Capital Press
An Oregon farmer should
be held liable without a jury
trial for violating the Clean
Water Act by stabilizing a riv-
erbank, according to a federal
judge.
U.S. Magistrate Judge
Thomas Coffin has agreed
with the U.S. Environmental
Protection Agency that “am-
ple evidence” shows farmer
Bill Case of Albany, Ore.,
broke the law by working be-
low the North Santiam Riv-
er’s ordinary high water mark.
The farmer hasn’t proven
“a reasonable jury could find
a serious injustice had been
committed” in holding him
File photo
Bill Case, a farmer near Albany, Ore., points to the North Santiam
River, which abuts his property. A judge has ruled Case should be
held liable for violating the Clean Water Act for stabilizing a riverbank.
liable, Coffin said.
Because there is no ques-
tion regarding a “genuine is-
sue of material fact,” the issue
can be resolved on “summary
judgment” by a judge instead
of a jury, he said.
The judge also rejected the
argument that Case should
Compensation to ranchers
small part of Washington’s
$1.27M wolf budget
By DON JENKINS
Capital Press
Washington ranchers re-
ceived $3,700 in compensa-
tion last year for livestock
attacked by wolves, out of the
$1.27 million the Department
of Fish and Wildlife spent on
wolves.
The department’s total
spending, contained in a re-
cently released report on wolf
recovery, was in line with
previous years. Wolf-related
expenditures have topped $1
million a year since at least
2015, the year the department
began disclosing the figure in
annual reports.
The department also spent
money to protect livestock
and to cull two packs that
were attacking cattle.
Ranchers are eligible for
compensation for wolf attacks
confirmed by the department.
Ranchers can also apply for
payments for missing or un-
derweight livestock, or for
low pregnancy rates caused
by wolves harassing herds.
Two ranchers were com-
pensated for direct losses last
year. No rancher filed a claim
for indirect losses.
Cattle Producers of Wash-
ington President Scott Nielsen
said the low payouts do not
reflect the damage wolves in-
flict on individual producers.
“Man, when you’re the af-
fected producer, it becomes
pretty bad pretty fast,” he said.
Nielsen said that some
ranchers are reluctant to go
through submitting a claim
for indirect losses. He also
said that confirmed depreda-
tions understate losses.
“Wolves killed a heckuva
lot more (livestock) than the
department says they did,” he
said.
The department last year
confirmed that wolves killed
eight cows or calves and in-
jured five others. The depart-
ment confirms attacks when
enough flesh of the animal
remains to see wolf-inflicted
wounds.
Stevens County sheep
rancher Dave Dashiell said
that he remains unhappy with
how the department handled
his claim for indirect losses in
2014.
“It’s a pain in the (rear) to
get any money out of them,”
he said.
The department con-
firmed that wolves killed 28
of Dashiell’s sheep and shot
one wolf in response in 2014.
Dashiell said he was soon
compensated for those sheep,
but it took nearly two years to
Washington DFW
A calf suffers from a gaping
wound inflicted by wolves in
Washington. The Department
of Fish and Wildlife spent $1.27
million on wolf-related activities
in 2017, of which $3,700 went
to compensate ranchers for
dead or injured livestock.
receive payment for some 300
sheep that were never found.
“Then it was half to two-
thirds what they were worth,”
he said. “They didn’t pay any
attention to my figures.”
To be eligible for compen-
sation, a producer must have
agreed to use department-ap-
proved ways to prevent dep-
redations. The producer must
provide sales records for the
previous three years and de-
clare in writing he has ex-
hausted all other sources of
compensation from non-profit
groups.
“We’ve heard from folks
that it’s cumbersome,” Fish
and Wildlife wolf policy co-
ordinator Donny Martorello
said.
He said the department
plans to talk to producers
about revising the process.
“We’re open to having that
conversation,” he said.
The department paid out
more in compensation in 2016
— $20,037 for direct losses
to six producers and $65,648
for indirect losses to two pro-
ducers. They are the only two
claims ever paid by the de-
partment for indirect losses
caused by wolves.
Last year, the department
spent $306,000 to share costs
with 37 producers on non-le-
thal measures, such as range
riders, to protect herds. This
was down from $410,000 and
54 producers in 2016.
The department spent
$15,087 to kill two wolves
in the Sherman pack. The
department last fall prelimi-
narily estimated spending less
than $7,000 to kill one wolf in
the Smackout pack. The de-
partment has not provided a
final number.
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but there’s no evidence the
government approved him
going below that level.
Case also didn’t provide
evidence, apart from testimo-
ny, that the 2012 and 2013
work occurred above the ordi-
nary high water mark, Coffin
said.
The government, mean-
while, had sufficient evidence
the levee improvements oc-
curred below that level, he
said.
“Although Mr. Case may
have been unaware that the
areas in which he worked and
the types of changes to the
dike he performed were sub-
ject to permit requirements,
the CWA imposes strict lia-
bility upon its violators,” the
judge said.
While the magistrate judge
has found that Case should be
held liable, that is not the final
word on the matter. His rec-
ommendation has now been
referred to U.S. District Judge
Ann Aiken.
Case said he plans to chal-
lenge the recommendation
and is also negotiating with
EPA about mitigation work to
the riverbank.
The U.S. Army Corps of
Engineers never mentioned
he’d have to stay above the
ordinary high water mark
when stabilizing the river-
bank, Case said.
“The only thing they said
was stay out of the river,” he
said.
Case said it’s implausible
that he’d document the stabi-
lization work with photos if
he thought the work was un-
lawful.
“We weren’t trying to hide
anything, we were just doing
what they told,” he said.
A jury would likely have
understood the situation and
thrown out the lawsuit, which
is why the judge didn’t like
that option, Case said. “You
get a judge on the side of the
EPA, he’s going to go in that
direction.”
Oregon wolf population continues to grow
By GEORGE PLAVEN
Known Oregon wolf packs (As of Dec. 2017)
Capital Press
SALEM — Oregon wild-
life officials counted at least
124 wolves at the end of
2017, an 11 percent increase
over the year end total for
2016, according to the latest
annual report released April
12.
The survey, which is con-
ducted by the Oregon De-
partment of Fish and Wild-
life, is not a true population
estimate but documents the
minimum number of wolves
across the state based on ver-
ified evidence such as visual
sightings, tracks and photo-
graphs.
ODFW will present an
overview of the findings at
the next Fish and Wildlife
Commission meeting April
20 in Astoria.
“The wolf population con-
tinues to grow and expand its
range in Oregon,” said Rob-
lyn Brown, ODFW wolf pro-
gram coordinator. “This year,
we also documented resident
wolves in the northern part of
Oregon’s Cascade Mountains
for the first time.”
Most wolves in Oregon
remain clustered around the
northeast corner of the state,
though several packs and
known wolf territory can also
be found in Wasco, Klamath
and Lake counties. State-
wide, Oregon now has 12
wolf packs, 11 of which were
successful breeding pairs,
meaning that at least two
adults and two pups survived
to the end of the year.
Wolf reproduction was
the highest recorded in 2017
since the species returned
to Oregon, with pups being
born in 18 groups — a 50
percent increase over 2016.
Though they did not meet the
definition of a breeding pair,
reproduction was confirmed
in the Chesnimnus, Harl
Butte, Meacham, North Em-
ily and Shamrock packs, as
well as the OR-30 and OR-
52 pairs.
Gov. Kate Brown said she
is encouraged by the con-
tinued recovery of Oregon
wolves, though ongoing con-
flicts with poachers and live-
stock remain troublesome.
Confirmed pack/individual range
Estimated pack/individual range
NOTE: Polygons represent estimated
ranges for known wolf packs with
radio-collared animals.
9 10
11 14 15
Pendleton
16
7
395
6
12
3
17
5
18
13
OREGON
2
19
82
4 8
84
Portland
97
101
197
5
1
Salem
22
26
84
26
20
126
20
97
58
5
21
101
N
22
25 miles
199
Medford
John Day
5
*At least one breeding pair
Pack/area
Total
1. White River
2
2. Desolation
2
3. OR30
3
4. Meacham*
3
5. OR52
3
6. Mt. Emily*
5
7. Ruckel Ridge 7
8. N. Emily
2
9. Walla Walla* 7
10. Wenaha*
10
11. Noregaard* 9
12. Minam*
11
Source: Oregon Dept. of Fish and Wildlife
“Despite this good news,
ongoing issues of poaching
and livestock depredation
must be carefully considered
as we explore more effective
management and conserva-
tion practices,” Brown said.
Though ODFW removed
wolves from the state endan-
gered species list in 2015,
it remains illegal to shoot a
wolf except in limited cir-
cumstances, such as in de-
fense of human life or those
caught in the act of chasing
livestock. Wolves remain
federally protected west of
highways 395, 78 and 95.
ODFW reported four cas-
es of wolves killed illegal-
ly in 2017. Three cases are
still under investigation. The
fourth, in Union County, in-
volved a wildlife trapper who
shot a wolf he found in one
of his traps. David Sanders
Jr., 58, pleaded guilty to one
count of using unbranded
traps, and was sentenced to
24 months bench probation,
100 hours of community ser-
vice and a $7,500 fine.
The Union County Dis-
trict Attorney’s Office agreed
to dismiss one count of ille-
20
26
395
Wolf pack population
Bend
Eugene
(cont.)
Total
13. Catherine*
4
14. Shamrock
3
15. Chesnimnus* 3
16. Snake River* 10
17. Harl Butte*
4
18. Middle Fork* 6
19. Pine Creek* 8
20. OR37
1
21. Silver Lake 1
22. Rogue*
7
Lone/misc.
13
Minimum total 124
Alan Kenaga/Capital Press
gally shooting a special sta-
tus game mammal, though
Sanders did have his hunting
and trapping license suspend-
ed for 36 months and agreed
to pay an additional $1,000
penalty to ODFW.
In all, 13 wolf deaths
were recorded in 2017 — 12
of which were caused by hu-
mans. ODFW issued lethal
take permits that resulted
in four wolves being shot
from the Harl Butte pack in
Wallowa County, and one
from the Meacham pack in
Umatilla County, to try and
curb livestock depredations.
Lethal take is allowed under
Phase III of the Wolf Man-
agement and Conservation
Plan in Eastern Oregon.
Meanwhile, OR-48 from
the Shamrock pack was unin-
tentionally killed by an M-44
cyanide trap that had been
set by USDA Wildlife Ser-
vices on private land; a pup
from the Ruckel Ridge pack
was killed by a livestock
protection dog; and OR-30
was shot by an elk hunter in
Union County who claimed
he was acting in self-defense.
The hunter, 38-year-old Bri-
an Scott, was not charged
with a crime.
Sean Stevens, executive
director of the Portland-based
environmental group Oregon
Wild, was sharply critical of
poachers and ODFW killing
wolves. Most recently, the
agency approved killing two
more animals from the Pine
Creek pack in Baker County
for preying on cattle.
“The wolf population is
stagnant because poachers
and ODFW agents are killing
more wolves — this despite
the fact that ODFW admits
livestock depredations are
down from last year,” Ste-
vens said. “It demands ac-
countability from an agency
that insists on killing more
wolves every year.”
The annual wolf report
shows confirmed livestock
depredations decreased from
24 in 2016 to 17 in 2017.
Those cases involved 11
calves, one llama, one alpaca
and 23 domestic fowl.
Quinn Read, Northwest
director for the group De-
fenders of Wildlife, said the
evidence shows Oregonians
can co-exist with wolves.
Weekly fieldwork report
Item/description (Source: USDA, NASS; NOAA)
• Days suitable for fieldwork (As of April 15)
• Topsoil moisture, surplus
• Topsoil moisture, percent short
• Subsoil moisture, surplus
• Subsoil moisture, percent short
• Precipitation probability
(6-10 day outlook as of April. 17)
16-1/108
GREENWAY SEEDS
not be held liable because he
didn’t know a Clean Water
Act permit was necessary,
government officials had been
aware of the work, and he had
relied on the federal govern-
ment’s advice when stabiliz-
ing the riverbank.
Although the farmer “pre-
sented sufficient evidence”
that these elements were
satisfied, he didn’t show the
government had committed
“affirmative misconduct” —
such as a “deliberate lie” or
a “pattern of false promises”
— as required by legal prece-
dent, Coffin said.
Under the Clear Water Act,
it’s illegal to discharge mate-
rial below the ordinary high
water mark of a navigable wa-
ter without a permit. It carries
penalties of up to $37,500 per
day of violation.
The U.S. Environmen-
tal Protection Agency filed a
lawsuit against Case in 2016,
claiming he violated the stat-
ute by placing large “riprap”
rocks along the river in 2009
and later expanding levees in
2012 and 2013.
The judge said that Case’s
own photos indicate that fill
material was placed beneath
the North Santiam river’s
ordinary high water mark
during the 2009 stabilization,
Ore.
Wash.
Idaho
Calif.
3.9
15%
18%
6%
34%
3.4
12%
5%
7%
10%
4.2
33%
3%
22%
6%
6.1
10%
25%
10%
25%
33-50% below
40-50% below
33-40% below/
Normal (South)
40-50% below/
Normal (South)