Following a half-decade squabble over a pond permit between the state Department of Natural Resources and Conservation and a Rollins cattle rancher, the DNRC faces a lawsuit from one of the state’s most prominent civil liberties attorneys for “harassment” and “malicious prosecution.”
Ron Waterman, a Helena attorney who is running for Montana Chief Justice, filed a complaint on June 19 against the DNRC seeking monetary awards for rancher Ed Jonas. Jonas, who runs an all-natural beef operation south of Kalispell called Blacktail Mountain Ranch, said the DNRC “put me through hell” when department officials filed a petition to revoke a water permit he has for a pond on his property. Jonas, who plans to stock the pond with trout, was eventually allowed to keep his permit.
In his complaint, Waterman wrote that the “DNRC’s actions were actuated in malice” and that the department “conceded it lacked evidence” yet supported the revocation “action against the plaintiff even though it knew that the prosecution was not justified in the first instance.”
John Tubbs, administrator for the DNRC’s water resources division, said the department acted within its right by pursuing a permit violation. He said the evidence supported the department’s actions.
“We weren’t being malicious,” Tubbs said. “We had a clear violation.”
John Bloomquist, a Helena-based water rights attorney who initially represented Jonas, said there was never a clear reason or appropriate evidence for the department to pursue the permit revocation. At a 2006 hearing, a DNRC hearing examiner failed to reach a decision and after several more months without a ruling, Bloomquist filed to dismiss the petition, which was granted.
Tubbs said vital evidence, such as photographs of a football plugging the outflow hole of the pond, wasn’t allowed at the hearing because the hearing administrator ruled that the department hadn’t followed proper procedures.
Jonas has retained his non-consumptive water permit and plans to proceed with stocking the trout. But he said it was a costly way to get back to where he started: He spent more than $60,000 on attorney fees, hydrologist payments and other costs.
Bloomquist said it was strange for the DNRC to so intently pursue a permit revocation.
“I’ve been doing water rights for 20 years and it’s the only revocation process I’ve ever heard of or seen,” Bloomquist said. “It sure seemed like a silly exercise. It seems the DNRC could have been using its resources for other things.”
Originally the DNRC responded to a complaint in 2002 by Jonas’s neighbor. The neighbor told the DNRC that the pond was damaging his senior rights by sucking up drainage water that would otherwise reach his property. This prompted the revocation proceedings, though it was later revealed the DNRC never checked to see if the neighbor had any water rights, let alone senior rights, Bloomquist said.
Furthermore, Bloomquist said, the neighbor had made the same complaint in 1996 when Jonas’s predecessor owned the property. The DNRC dismissed his complaint at the time. But Tubbs maintains that based on the department’s findings, Jonas’s pond is indeed disrupting the flow of water to nearby properties and breaches the non-consumptive permit.
“We feel strongly in the actions we took,” Tubbs said. “We’ll go to court and a judge will decide whether we violated or not.”
As the case wore on, Bloomquist said, depending on whom he talked to within the DNRC, the reasons for continuing with the revocation alternated between Chapman’s complaint, the inflow and outflow of the pond, and whether Jonas was properly operating it.
“In the end there was clearly no basis to revoke the permit,” Bloomquist said. “Why did they even put him through this?”
When Waterman heard about the case, he felt the DNRC’s actions had been an abuse of governmental power, so he filed the malicious prosecution complaint on Jonas’s behalf. He has accepted the case on a contingency basis, meaning he won’t get paid unless he wins.
“Here you had some really rather clear rules,” Waterman said in an interview, “that the department should have followed and some fundamental questions they should have been asking and it doesn’t appear they asked those questions.”
Jonas said a DNRC official, who is no longer with the agency, visited his property a half-dozen times to inspect the pond. He feels the frequent visits were unwarranted and intrusive. Jonas hired hydrologists to conduct studies and took other measures such as installing a polymer pond liner, hoping that the efforts would stop the revocation. Ultimately, Jonas said it took legal wrangling to keep his pond.
“If I was a poor farmer, if I didn’t have the money for an attorney, they would have steamrolled me,” Jonas said.
Waterman has built a reputation as a defender of civil liberties against governments and authorities abusing their power.
“Have I seen cases like this where governments have been excessive?” Waterman said. “Certainly. Unfortunately we see it too much. The Constitution is there to protect people from that excessive conduct.”
Bloomquist said ponds in general are a gray area for the DNRC, as he has seen over his years in water rights litigation. Officials disagree on how much water they consume through seepage and evaporation, and what purpose they serve, among other issues.
“I think it’s safe to say that DNRC has an issue with ponds,” Bloomquist said. “Depending on who you talk to, there are different ideas of what to do with (ponds). To a certain extent I don’t think there’s a lot of real clear direction within agency.”
Jonas, an East Coast trial lawyer turned cattle rancher, said he still owes Bloomquist nearly $30,000.
“This is kind of like a nightmare for me,” Jonas said. “This was unwanted, just harassment.”