by Todd Neeley DTN Staff Reporter
OMAHA (DTN) — Fort Bridger, Wyoming, rancher Andrew Johnson is negotiating a settlement with the U.S. Environmental Protection Agency in a case that drew national attention when the agency claimed Johnson's stock pond was not exempt from the Clean Water Act.
Johnson and EPA were granted a stay in the case for 45 days in the U.S. District Court for the District of Wyoming in Cheyenne. Both sides are scheduled to meet in court Friday regarding a possible settlement, according to court documents.
DTN's attempts to reach Johnson and his attorneys were unsuccessful.
On Nov. 16, 2015, Johnson filed a motion for alternative dispute resolution, asking the district court to refer his case to non-binding alternative dispute resolution before Magistrate Judge Kelly H. Rankin.
“Since that time, the parties have worked diligently and collaboratively to explore possible avenues for settlement,” according to court documents.
“Their most recent exchange of correspondence indicates that they have made significant progress and share enough common ground to warrant a stay of the proceedings while they participate in non-binding alternative dispute resolution before Magistrate Judge Rankin. Because a settlement would conserve judicial resources and obviate the need for further litigation, and because the requested stay is limited to a relatively short period, good cause exists for granting the parties' joint motion.”
According to court records, Johnson and EPA were scheduled to hold a settlement conference call Wednesday ahead of an in-court settlement conference set for Friday before Judge Rankin.
At least 10 days prior to the settlement conference, Johnson's attorneys were required to submit a written settlement demand to EPA with explanations of why a settlement is appropriate, according to an order filed by the court for the settlement conference. Conversely, EPA was required to submit a written offer to Johnson no later than five days before the settlement conference, stating why “such a settlement is appropriate.”
If a settlement wasn't reached, according to court documents, Johnson's attorneys were required to submit information to the court Tuesday.
Johnson faces tens of millions of dollars in fines for building a stock pond on his 8-acre ranch in 2012. He constructed the pond after obtaining all of the necessary permits from the state of Wyoming. EPA ordered Johnson to remove the stock pond. Johnson countered by asking a federal court in Wyoming to nullify the order.
EPA has maintained Johnson needed a federal permit because he altered waters of the United States — a claim that was later disputed by a former U.S. Army Corps of Engineers engineer whose analysis of Johnson's property found no waters of the United States were disturbed.
Even the new waters of the United States rule tied up in federal court exempts stock ponds from the Clean Water Act, though it offers no definition of “stock ponds” or “dams.”
With a state engineer's permit in hand, Johnson constructed what has become a wildlife oasis along 2-foot-wide by inches-deep Six Mile Creek on his small cattle ranch in the southwestern part of the state. An engineer's analysis found the creek is not connected to waters of the United States.
Once EPA caught wind of the project built without a Clean Water Act permit, the agency ordered Johnson to remove what it says is a dam and to restore the creek — or face potential penalties of some $75,000 a day until the work is completed. EPA contends Johnson's pond doesn't qualify for an agriculture exemption. Total fines now exceed $20 million.
The state of Wyoming issues stock pond permits for structures with dams of up to 20 feet high and ponds that contain no more than 20 acre feet of water. State officials told DTN there are thousands of stock ponds in Wyoming similar to Johnson's.
The Pacific Legal Foundation agreed to take on Johnson's case. The group has successfully argued cases against EPA at the U.S. Supreme Court, recently scoring a victory for Idaho property owners Mike and Chantell Sackett. In that case, the court ruled property owners are entitled to review under the Administrative Procedures Act when EPA issues compliance orders.
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