High-stakes suit pits ranchers against water-sampling greens

– by Jeremy P. Jacobs, E&E reporter

Originally published Nov. 18, 2014, by Environment & Energy Daily. Contact E&E for permission to republish.

LINCOLN COUNTY, Wyo. — As the dusty pickup rolled up the red clay dirt road, Jonathan Ratner sensed trouble.

The navy Ford F150 stopped near Ratner, an environmentalist who considers it his duty to protect public lands from grazing livestock.

“You trespassed back there,” driver Joseph Jones yelled. In the passenger seat was Jones’ 82-year-old father, Bruce.

At issue was a dirt road that crosses part of the Jones family ranch.

Ratner, standing braced near the passenger door, stayed calm. There’s a public easement over that road, he answered, part of a network maintained by the federal government.

There was tense silence. Storm clouds gathered. Rain started falling.

After several minutes, the elder Jones asked Ratner what he was doing, though it was clear he was familiar with the environmentalist’s efforts to force regulators to crack down on grazing.

“You’re trying to put me out of business,” the elder Jones accused. “You’re after me. Why don’t you just take me out and shoot me!”

The exchange stretched on for more than 30 minutes, during most of which little was said. Hostility abated slowly. Ratner and the ranchers carefully probed each other’s motives like boxers trying to land jabs, each side seemingly trying to catch the other saying something they’d regret. Before parting ways, they drilled down to an irreconcilable disagreement on the right of ranchers to graze on public lands and its environmental impacts.

The animosity of the episode, however, has also made its way into court. Joseph Jones and a dozen other ranchers have filed a lawsuit against Ratner and the Western Watersheds Project.

Western Watersheds, an Idaho nonprofit focused on ending grazing on public lands, punches above its weight. Despite a skeletal staff, its lawsuits have helped overturn federal regulations that peeled environmental protections away from millions of acres.

Ratner’s latest effort is robust water sampling he says proves ranchers are letting their cows spend too much time near streams. The animals are fouling the water with bacteria at levels that far exceed federal limits. The group wants to force the state and U.S. EPA to list the streams as impaired under the Clean Water Act, a move that could spur restrictions on grazing permits.

Such a development would threaten ranching, a powerful political force in Wyoming. In June, 14 ranchers filed a complex lawsuit against Ratner that has the potential to put Western Watersheds out of business.

The ranchers allege that the group submitted water samples to the state that show Ratner has been trespassing. In one instance, a rancher saw Ratner on the contested road. But mostly they claim that based on documents showing where the water was drawn, Ratner must have crossed a private road to get there.

Ranchers claim that the case is about trespass and private property rights, which Jones said are being “trampled on, incrementally, little bit by little bit.” But it’s also a high-stakes gambit by Karen Budd-Falen, the attorney representing the ranchers and a hero of the Sagebrush Rebellion, the movement that since the 1970s has pushed for major changes to federal land control.

Western Watersheds Executive Director Travis Bruner refers to Budd-Falen as his group’s “nemesis.”

There’s never been a case quite like the Western Watersheds lawsuit, which was filed in state court in Wyoming. The case is in its early stages, but it has quickly grabbed the attention of environmentalists who collect water samples nationwide.

A ruling for the ranchers could deter environmental groups from Clean Water Act oversight for fear of costly litigation.

“If successful,” said Jen Pelz, the director of WildEarth Guardians’ Wild Rivers Program, “this suit could lead to citizen watchdog groups all over the country fighting frivolous litigation instead of channeling their resources toward protecting and restoring clean and healthy waterways throughout the West.”

Group says state ignores data

Ratner, 51, a former Forest Service employee, is tall, with blond hair and a pronounced nose. For more than a decade, he has undertaken nearly every project he can to try to force regulators to do more to shield public lands from grazing.

It’s a job that fits an eccentric and obsessive personality. Ratner spends more than 100 nights per year in a tent. He’s a vegetarian, practices transcendental meditation and drives very fast on dirt roads in his silver Toyota Tacoma pickup. He also counts cows as he flies over public grazing allotments in a motorized hang glider.

Ratner has been sampling and testing streams on public lands for more than a decade in 250 square miles of southwestern Wyoming. He estimates he has taken more than 1,000 samples, all in an attempt to persuade the state to add the streams to the list of impaired waters it sends to EPA.

Under Section 303(d) of the Clean Water Act, the state would then have to take action to clean up the streams, including developing a total maximum daily load (TMDL) of pollution for them. That could — in years — force the federal Bureau of Land Management and state regulators to do something to keep cows from the streams.

Ratner leads a short hike along Dutch George Creek here to make his point about grazing. You can’t walk more than two steps along the narrow stream without having to avoid a cow pie. There’s also a dead calf in the water.

Some of his samples, Ratner said, reveal levels of E. coli, a bacterium found in animal wastes, that are more than 20 times higher than the state water standard. The Wyoming Department of Environmental Quality, or DEQ, has been reluctant to accept Ratner’s data, he said, but in the 2012 listing cycle, it did add some of the streams because of his samples.

DEQ was supposed to have issued a proposed list by last April, but it has yet to do so.

Western Watersheds, the only environmental group that submits it own data to DEQ, and Ratner have received multiple letters from the agency telling him his samples don’t meet various criteria. A Sept. 2 letter from DEQ says that “it has come to our attention” the group “is involved in various disputes with private and public entities regarding the collection of water quality data.”

Ratner says the agency is stalling and hoping he’ll go away.

“The whole issue is my data holding them up,” he said, “because they are desperately trying to find a way to ignore it.”

That mindset has led to accusations that DEQ is colluding with the ranchers in the lawsuit to undermine Ratner’s water program.

“Basically, what happened is DEQ got our information, gave it to the ranchers and said, ‘Look what’s coming.’” said Bruner, Western Watersheds’ executive director. “That’s what we think.”

DEQ denies the group’s allegations.

David Waterstreet, manager of the agency’s watershed protection program, said all samples are open, public records the ranchers could have easily obtained on their own.

He also said the agency is not waiting for the resolution of the lawsuit to proceed with the impaired-stream proposal.

“We will be going out with the public notice as soon as we finish our administrative process,” he said.

But he added that the agency won’t consider Ratner’s data if a court finds he trespassed.

“We are not going to be using data that is collected in trespass,” he said. “We would not utilize that in decisionmaking.”

All about trespass

The ranchers’ lawsuit paints Ratner as a menace.

At least a dozen times dating back to 2006, their lawsuit alleges, Ratner resorted to “falsehoods and trickery” to trespass. In some instances, he “attempted to sneak onto” the land of the dozen ranchers.

But in only two instances did anyone claim to have seen Ratner trespass.

Both occurred in 2013 on the tract owned by Frank Ranches of Lander. In one instance, Gary Frank’s son-in-law called the sheriff, who, according to the police report, let Ratner off the hook after he showed a document from BLM demonstrating an easement over that land.

“According to my viewing, Mr. Ratner was not trespassing,” the report says, adding that Ratner would not be cited.

Beyond the episode with Frank Ranches, in only three instances is Ratner alleged to have taken water on private land.

Most of the claims in the lawsuit are derived from plotting the locations of Ratner’s samples on a map and trying to deduce how he would have gotten there.

“We started going through that and discovered that there was no way that some of this water data could have been collected without trespassing on private property,” Budd-Falen said. “This seemed to be a pattern by Jonathan and other members of Western Watersheds Project.”

Budd-Falen, the ranchers’ attorney, took issue with the group trying to cast the case as something larger than it is, including part of some sort of conspiracy to put it out of business.

She also criticized it for invoking other defenses, including the “public necessity” doctrine, which, Western Watersheds says in court documents, allows it to trespass “to further an important federal or state policy designed to protect human health and welfare and the environment.”

“Western Watersheds is trying to make it into this bigger public-interest kind of deal,” she said. “But there is nothing in the law that says there is a public-interest exception to private property. They are trying to turn it into all sorts of things that this case is not.”

‘They don’t care about us’

Joseph Jones, Bruce’s 40-year-old son and another plaintiff in the case, expressed frustration with Ratner and Western Watersheds that goes beyond trespassing.

“The issue with me is that there is no interest in public grazing,” Jones said. “Their goal is to get us off. That’s their goal.”

Jones said the group is more focused on scoring legal victories than on addressing the environmental issues.

“If they had a real concern about the groundwater, we could sit down at a table and we could figure it out,” he said.

Jones extols the ranching lifestyle that he learned from his father and that he is now teaching his own five children in regular work trips on the range.

To him, Western Watersheds is a threat to his way of life as well as to his family’s business.

“I’ve looked at their history, and I’ve had enough friends wrecked because of what they have done and putting it in certain courts,” he said. “How long do you let that happen?”

After the confrontation with Ratner — which ended amicably — Jones said he regretted the way he approached Ratner. He said he wished he hadn’t “gotten so heated.” In general, he said, he avoids confrontations.

“But what do you do?” he asked.

His father interjected about the environmentalists: “They don’t care about us.”

Jones added, “Or they don’t really even care about this ground.”

Complicated lawsuit

Ratner is determined to demonstrate he didn’t trespass.

“I hope to show you the absurdity of this situation,” he said as he drove to a spot where he allegedly trespassed.

Cruising along a roughly 20-foot-wide, smooth red clay road that is maintained by BLM, Ratner abruptly stopped.

The road ahead curves and crosses a corner of a rectangular parcel owned by the Jones family, Ratner said. The road is in a sea of public land, he said.

After about 200 feet, the road is no longer on Jones land, he said. It’s back on the public tract.

There’s no way to know where the public lands end and Jones’ land begins, he noted. There’s no sign, no line.

That strip is the subject of one of the claims in the lawsuit. But Ratner claims he has never crossed it. This is the first time, he said, he’s been on this road.

To get the water sample at issue in the case, he said, he took a different route.

Ratner and Western Watersheds deny every allegation in the ranchers’ complaint. In most, they contend, there’s an easement on the road that grants the public access to cross private property.

And in the others, Ratner said, he never was on those roads.

The complexity of the litigation, which is in its early stages and could drag on for months, if not years, stands to put a major financial strain on Western Watersheds.

The group claims that was probably the idea behind it in the first place.

Justin Pidot, a former environmental attorney at the Justice Department who is now a professor at the University of Denver Sturm College of Law, is representing the group pro bono. He said part of the difficulty of the case is the lack of specifics in the ranchers’ complaint, particularly the fact that for most of them, no one saw Ratner.

He also said that in most instances, even if there weren’t easements, there is a general legal presumption in favor of a public right of way over the types of roads at issue.

SLAPP suit?

The case, Pidot said, bears similarities to a type of litigation that was popular in the 1980s, dubbed strategic lawsuits against public participation — best known as SLAPP suits.

The idea in such cases is that it scares the defendant and buries him or her in legal fees. The typical SLAPP case is defamation, in which a celebrity files a lawsuit against an individual or even a publication, forcing it to engage in a lengthy and costly legal fight.

“The apparent goal of SLAPPs is to stop citizens from exercising their political rights or to punish them for having done so,” wrote University of Denver Sturm College of Law professor George Pring, who defined the term, in 1989. “SLAPPs send a clear message: that there is a ‘price’ for speaking out politically. The price is a multimillion-dollar lawsuit and expenses, lost resources, and emotional stress such litigation brings.”

Recognizing the meritless nature of such litigation, 28 states and the District of Columbia have passed some form of anti-SLAPP law. They typically allow a defendant to make a motion to identify the suit as meritless early and get it dismissed. No such law exists in Wyoming.

Pidot said the ranchers’ case would qualify as a SLAPP suit, adding that Western Watersheds will soon seek to dismiss the case.

“The threat of such a lawsuit alone could well chill the willingness of environmental nonprofits and their volunteers to engage in the important work of monitoring public lands,” he said. “I suspect that is precisely the purpose behind the lawsuit. Even if all the plaintiffs’ allegations are true, the idea that individuals driving on roads maintained by the government cause actual damage to the underlying landowner is ludicrous.”

If the lawsuit was intended to send Ratner the message to back off, he has certainly received it. Whether he’ll heed it, however, is a different matter. The lawsuit, he said, is just part of the uphill struggle he has endured for decades trying to take on the livestock industry and seemingly endless bureaucracies at the Wyoming DEQ and BLM.

“Oh, my God,” he said. “Here is how I characterize what I do. Let’s say you are standing here and you had someone with a fire hose filled with a slurry of bullshit — literally bullshit — opening that thing up on you. That’s how it feels every day.”

Correction: An earlier version of this story misidentified the court where the lawsuit was filed.