by Seth L. Cooper
Federalist Society
February 12, 2014
In Lemire v. Department of Ecology (2013), the Washington Supreme Court addressed the constitutionality of an order made pursuant to the State’s Water Pollution Control Act (“WPCA”). At issue in Lemire was an administrative order issued by the Washington Department of Ecology to cattle rancher Joseph Lemire pursuant to the WPCA. The Department directed Lemire to take steps—namely constructing livestock fencing and off-stream water facilities—to curb activities it determined were polluting a creek that runs through Lemire’s property. The Washington Supreme Court held that the Department acted within its authority, the order was supported by substantial evidence, and Lemire failed to establish that a taking occurred. Lemire did not establish any new jurisprudential doctrines or significantly expand on existing ones. But the opinion provides the Washington Supreme Court’s latest take on evidentiary standards for reviewing administrative agency actions that affect property rights.

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