The Environmental Protection Agency (EPA) filed a lawsuit Aug. 31 against a private ranch about 40 minutes west of Missoula for violations of the Clean Water Act. Bar-One Ranch in Huson, which originally intended to offer luxury cabin and lodge accommodations to tourists, violated a string of state and federal permit requirements in the process of constructing 16 recreational ponds along Cedar and Ninemile creeks in 2003. The project uprooted native plant life and diverted surface water, allegedly polluting downstream waterways. Five different agencies investigated the construction activity through fall 2006.
The ranch contends the situation was resolved with roughly $600,000 in restoration work, but the EPA contends more problems remain and filed suit. U.S. Magistrate Judge Jeremiah Lynch responded to the complaint on Sept. 4, setting a pretrial conference date for Jan. 5, 2010.
The EPA's suit lists as defendants both Bar-One Ranch Ltd.–the corporation presiding over the ranch's affairs–and ranch owner Alfred Barone. Barone, a New York resident, went over the handlebars of a motorcycle in Florida on February 7, 2007, just months after resolving his dispute with the Montana Department of Natural Resources and Conservation (DNRC). The accident left Barone with a lasting traumatic brain injury. Steve Scerri, Barone's son-in-law and president of Bar-One Ranch Ltd., currently acts on Barone's behalf regarding Bar-One operations. The ranch has not opened to guests, in part due to its construction problems.
"[Scerri] thought the matter was resolved," says attorney Mike Sherwood, speaking on Scerri's behalf. "We dealt with federal, state and local agencies. He thought that he'd fully complied with state and local violations. He doesn't believe there was a [Clean Water Act] exposure...and has no further obligations to the EPA. He finds the lawsuit unnecessary at best and an exercise of federal overreaching and greed at worst."
According to state files on the Bar-One Ranch, representatives from the DNRC and the Missoula Conservation District (MCD) conducted several site visits to Barone's property in fall 2005. The agencies found that Barone had disturbed 900 feet of native vegetation along Ninemile Creek and dug 16 interconnected ponds of varying sizes on a roughly 19-acre section of property bisected by Cedar Creek. Records indicate none of the work was done with adequate permitting.
"When building these ponds, he violated pretty much every water use permit out there," says Bill Schultz, regional manager for DNRC's Water Resources Division.
Barone repeatedly missed deadlines for permit applications and failed to meet a number of extended deadlines, according to Schultz. Schultz eventually terminated a number of applications due in large part to the ranch's failure to meet EPA instructions to stop work.
By April 2006, the EPA had already directed Barone to halt construction and fill in the ponds. The DNRC went so far as to threaten leveling top fines against Barone for water use violations, a penalty of $1,000 per day for each day violations persisted. The agency never acted on the fines, and Schultz's original involvement with the ranch ceased when Barone finally filled in the ponds prior to his accident.
Bar-One Ranch resurfaced when Scerri applied with DNRC for redirection permits for irrigation fed by Cedar Creek. Schultz says Bar-One Ranch Ltd. needs the water for continued restoration and rehabilitation on the site. He visited the property in August and says the ranch is "much more on the ball with applications now."
The ranch contracted Missoula's PBS&J in 2006 for the restoration work. Phase I of the two-phase project–now completed–included culvert removal, bank stabilization, flood protection and channel alteration. Total costs of the project to date amount to $600,000.
The restoration work settled the arguments between Bar-One Ranch and local and state agencies, but not the EPA. Among the EPA's complaints are several federal permit violations with regard to the Clean Water Act. The agency's case claims that material discharged by Barone's construction project "resulted in the filling of or adverse impacts to creeks, ponds, drainages, wetlands and/or other waters of the United States."
"Wetlands perform important functions in terms of sediment retention, aesthetics, habitat," says Wendy Silver, senior attorney with the EPA's Region 8. "So protection of wetlands is extremely important. Placement of dredged or fill material into a wetland and thus filling the wetland removes all of those benefits that wetlands afford."
Silver's entire caseload at the EPA deals with violations of the Clean Water Act. She declined to comment on the EPA's case against Barone and the ranch except to state that prosecuting Clean Water Act violations is an important duty for the agency.
Silver says the EPA is aware of Barone's injury and it did not affect the agency's filing. Sherwood could not comment on how Barone's head injury will impact the way the EPA and the defense conduct the proceedings.
"I haven't explored it because we haven't come to [a] conclusion [about Barone's condition]," Sherwood says. "Certainly he has multiple physical maladies and some closed-head organic brain damage, but I'm not an expert and I guess we'll need to explore what the experts say in regards to his current capacity."
Barone and the ranch are also charged with violations of administrative order after refusing to acknowledge requests in 2005 from the United States Army Corps of Engineers, the Montana Department of Environmental Quality and the EPA to halt pond construction activities. Each of the four charges demands payment of as much as $32,000 per day for violations going as far back as March 2004.