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HomeMy WebLinkAboutSHB95-44 Stipulation and Order of Dismissal - SHX Letters / Memos - 5/13/1996 M AAY ? n 7996 BEFORE THE SHORELINES HEARINGS BOARD STATE OF WASHINGTON 6 � DCUGLAS J. NEYHART, ) 8 � t Appellant, ) SHB NO. 95-44 I v ) 91 ) STATE OF WASHINGTCN, ) STIPULATION AND ORDER 101 DEPARTMENT OF ECOLOGY, ) OF DISMISSAL Respondent , ) 121 ) TAHUYA RIVER BASIN ) 13I ORGANIZATION; and SKOKOMISH } 141 INDIAN TRIBE, ) j Intervenors . ) 1j ) 161 COMES. NOW the respondent , State of Washington Department of 1:' � Ecology ( "Ecology" ) , represented by Assistant Attorney General 181 Mark C. Jobson, and appellant, Douglas J. Neyhart, represented by 19 0 Richard T. Hoss, and Intervenors, Tahuya River Basin i I _'1 , Organization, represented by Vernon L. Rutter and the Skokomisn I ?21 Indian Tribe, represented by Gordon James, and hereby stipula`e i ,3 1 and •agree to the following: ,4 I� ST?Pjjj TION _5 j The parties desire . to avoid the time and expense o= '- i --litigation and, therefore, agree to settle this appeal . The ,8 i _ ST:PULATION AND ORDER HOSS and W(LSON-HCSS . i OF DISMISSAL - 1 TAT ATTORNEYS AT LAW Vv7 276 WEST BIRCH STHETREc' i +.L 7 SHELTON.WASHINGTON 9e56A (960)426.2099 FAX 426.67!5 I parties rev_uest from the Board an order of dismissal based on she terms of the attached Settlement Agreement which is incorporated i herein by this reference . SI CHRISTINE O. GREGOIRE HOSS & WILSON-HOSS Attorney General �� II 81 MARK C. JOBSON, WSBA #22171 RICHARD T. HOSS, WSBA #12976 Assistant Attorney General Attorney for Douglas Neyhart 9i Attorneys for Ecology (360) 426-2999 101 (360) 459-6156 DATE: `i —zz y— L DATE: 121 13 ; SKOKOMISH INDIAN TRIBE TAE=A RIVER BASIN ORGANIZATION 141 151 viz. B y: GORDON JAMESV Chairperson VERNON L. RUTTER, 161 (360) Registered Agent 4z� z 1 171 (360) 275c5459. DATE: U`.- ��3 - DATE. 4 18i - 1 191 20 ORDER OF DISMISSAL. 21 ; Having reviewed the foregoing Stipulation, the attached I 721 Settlement Agreement, and the file and pleadings herein, and 23 appearing that the parties have reached an agreement; 241 ,5 IT IS HEREBY ORDERED that the foregoing Stipulations ;GPI entered as an Order. '-of this Board, and this appeal is hereby 271 - ,8 d STIPULATION AND ORDER HOSS and WILSON-HCSS OFF DISMISSAL — 2 ATTORNEYS AT LAW it 296 WEST BIRCH STRE_T 1 SHELTON.WASHINGTON 9a55A 1 (760)426.2M FAX 426.67;5 DISMISSED with prejudice, each party to bear own costs and attorneys fees. 'I .j DATED this �a day of 1996 . SHOULINES. HEARINGS BOARD: - RICIHARD C. KELLEY, iiA'Tg presiding w i! E A. TUPPER, -R. , Member Presented by: CHRISTINE O. GREGOIRE JUDY WILSON,, Member 13 � AttAney General � 1 MARK C. JOBSON, WSBA ##22171 Assistant Attorney General 16 ; Attorneys for Ecology 1- APPROVED AS TO FORM; NOTICE OF PRESENTATION WAIVED: 18 ;I '0 I RICHARD T. HOSS, WSBA #12976 GORDON Chairperson Attorney for Appellant Skokomish Indian Tribe VERNON L. RUTTER, President Tahuya River Basin Organization ,4 STIPULATION AND ORDER HOSS and WILSON-HOSS OF DISMISSAL - 3 ATTORNEYS AT LAW 236 WEST BIRCH STREET SHELTON.WASHINGTON 9855A (9601 A26-2999 FAX 426.6715 iAV ;fob SETTLEMENT AGREEMENT CC^.TTGL S_ 4j NE'—?Z.RT 11 T"'EURT`= QF T' OLCGY` 'r,),HTYX R-11"FR BAST*I CRCayT7=C.N aNI) ';KC)KCMT-qH- TRTRE SHE No. 95-44 This settlement agreement is by . and between Douglas J. eyhart, the Washington State Cepartme_nt of Ecology, the Tahuya ='-ver Basin Organization and the Skokomish Indian 'tribe, all parties* to the adjudicative proceeding before the Washington estate Shorelines Hearings Board in SHE No. 95-44 . 1 . In August 1995 , Douglas-. Neyhart, Appellant (Neyhart) was served with an Order and Notice of Penalty Incurred (Order) , . cology No. 94-SH-217, for alleged development on the shorelines cf the state in violation of chapter 90 .58 RCW, the Shoreline '�anagement Act, and. Mason County Shoreline Management Master :rcgram (MCSMP) . The order alleges that Neyhart constructed a " ke or berm on the main channel of the Tahuya River by filling within the floodway and floodplain of the river, and within 200 -eet of the ordinary high cater mark without a required permit . 2 . On September 11, 1995 .Neyhart filed a timely Request =�r Review and Request for Stay of Order and Notice of Penalty with the Shorelines Hearings Board which become SHB No. 95-44 alleging that Neyhart has ' complied with governing law, has _btained numerous permits for work done on his property, and has :aintained a system. of dikes along his property which have existed for over twenty-rive years. 3 . On October 3 , 1995 the Tahuya River Basin Organization TRBOL, by its President and Registered Agent, Mr. Vern, Rutter, 1 _ :roved to intervene, which Motion was granted by the SHB on --ctcber 16 , 1995 at the pre-hearing conference. 4 . On November 1, 1995 the Skokomish Indian Tribe filed and served, a motion tc intervene, which motion was .granted by the an November 21, 1995 . The SHB scheduled an evidentiary hearing for March 7 and 8 , 1996 in Belfai=, Washingtcn. r o . The parties have used their best efforts to resolve _ eir differences and 'having done so enter into this settlement agreement resolving all those differences fully and finally. NOW THEREFORE, in consideration of the mutual promises set =:Drth below, the parties agree as follows : 1. The parties agree to the General Principles and -Specific Limitations set out below. 2 . The General Principles are statements of .intent. which -:av be used if necessary, for interpretation to resolve any ispute between the parties which might arise from this agreement . 3 . General Principles . A. Much of the Neyhart farm is within the floodway and floodplain of the Tahuya River. B . While Nevhart has a right to maintain agricultural activities on t-he property, such activity occurs in a shoreline area . which historically has been and will likely continue to be subject to periodic flooding. C. All the parties seek to preserve and protect the river and its estuary from contamination by manure and other by-products of the farm. Contamination is defined as an illegal increase over background values of nutrients and/or fecal coliform bacteria. 2 -- D. The specific liai tat ions set out below in Section 4 are intended to : (1) Allow the river to establish or re-establish overflow channels and meanders which it is expected may interfere with and make impossible grazing and farming on a portion of the Neyhart farm at some time in the future . f (2) Alicw Nevhart to protect and maintain the three existina farm buildings which are adjacent to the bridae over the river. and, between the river and Winter Creek. ' (3 ) Allow and require Neyhart to replace his manure storage building with a new structure in the location known as the Gravel Pit which is above the 100 year f'_oodplain: (4) Allow Neyhart to use the existing manure storage shed to park a truck with which to haul manure after coilections . (5) Allow Neyhart. to continue to graze, train and board horses on ---the property but place strict seasonal limits on the number of horses and the areas suitable for grazing, exercise or boarding. (6) It is expected that eventually the river will reclaim parts of the property between the current exercise .track and the current main channel . Neyhart agrees not to interfere with the river' s natural 1 "Winter Creek" is the label used by the parties for the stream which :pins the Tahuya River about 4 mile downstream from the Neyhart Bridge. 3 - tendency to overflow across and channelize this floodplain area by filling, or diking except as set out in this Settlement Agreement . In exchange, Neyhart expects and the. parties agree that he will continue to use, protect, maintain and access the exercise track, so long as the work complies with governing law. (7) Allow Neyhart to seek permits and approvals 'for work within the subject matter of this Settlement Agreement under laws, rules and procedures existing at the time such permits', if any, are applied for. 4 . Specific Limits and Prohibitions . A. Neyhart agrees not to maintain the dike or add fill material to it, except as specifically permitted by this Settlement Agreement. B. Neyhart may maintain the dike only in the . area upstream of the farm buildings for up to 1.50 feet for the purpose of protecting the 3 existing farm buildings. C. Neyhart may plant live willows or other native species on the faces of the dike in an effort to protect the dike from erosion. I To facilitate planting, jute, burlap or other organic matting may be laid on the dike. D. Neyhart may protect the current exercise track from flooding or washout. Neyhart agrees to apply for and obtain any required permit prior to undertaking "substantial development" to protect the track.Z Other parties will not object to this development if authorized by permit . 2. "Substantial Develocment" is defined in Rc'.d 90.58.030 (3) (e) 4 E. Eventually the road from the barns to the track adjacent to the dike may be eroded by the river. Neyhart shall not add fill to the road from the barns to the track adjacent to the dike. for any reason. Neyhart agrees not to add culverts, ditches or other bypasses designed to protect the road from the barns to the track adjacent to the dike, nor seek hydraulic permits authorizing such repairs or to remove any log jam, the primary purpose or just Ification .- for which is to protect or preserve the road .from the barns to .the track adjacent to the dike. F. Neyhart may twice annually maintain the road by leveling with a harrow pulled by a tractor. No heavy equipment or bladed vehicle may be used for grading, ,provided, however, that twice annually Neyhart may use a harrow and blade along the ditch to remove the grass from the road along the ditch. G. if and when the road becomes impassable by farm vehicles, it shall be abandoned and no longer maintained as a road. Neyhart shall be entitled to maintain a reasonable alternative access to the track from the farm buildings in the event the road from the barns to the track adjacent to the dike is abandoned. H. The current manure storage building is neither adequate in size nor properly located. This building shall be converted to other uses . No manure shall be stored in the building after November 1, 1996 except as contained in a tr•-,ck or trailer after collection and before transport to anot:ier storage area outside the floodplain. The manure storage building may be used for emergency temporary storage for manure if Nevhart is unable to cross the creek to the alternative storage site, and then only until Neyhart is able to access tie alternative storage site . All manure shall be removed from the building weekly. I . A new manure storage building may be built in the gravel pit area or other upland location above the 100 year floodplain. Anv such structure must meet plans and t specification of the Soil Conservation Service and have : 1) an impervious floor and roof; 2) at least three walls; 3 ) adequate capacity fcr storage of manure generated by 50• horses over 6 months. time. J. Neyhart may instal'_ a ,bridce over Winter Creek. to provide vehicle access to the gravel pit if authorized by a hydraulic permit and shoreline permit (if required) . K. The parties shall not oppose construction of the •new storage buildina or access bridge . L. Parties may have access to Winter Creek and the gravel pit area to "take" water samples upon reasonable notice, and during regular business , hours, and while accompanied by Neyhart or Neyhart' s representative . M. If water samples indicate that location or construction of the manure storage shed causes an illegal increase over background values of nutrients and/or fecal coliform bacteria in Winter Creek or waters leading to Winter Creek, then Neyhart shall immediately either repair any structural. cause of contamination or discontinue all future storage . I` repairs do not prevent such contamination future storage at that site shall be g • prohibited. 5 _ . N. During the "wet season, " from October 1 to March 1, Neyhart shall r_ot have more than 50 horses on the 31 acre promerty described in the order. 0. Between Cctober 1 and March .1, no horses shall be grazed, confined cr otherwise kept in the area between the exercise track and the Tahuya River. No paddocks shall be located. in the area described on the Attached Conservation Plan 'Map as "2A, 23, 2C, 2D or 2E. " P. Horses shall not be . kept or permitted anywhere .within 50 feet of Winter Creek during the period October 1 to March 1, .except ,when traveling along established roads to and from farm buildings, track or paddocks . Q . After 'and if the river establishes any new channel, no horses shall be kept or confined within -50 feet of such channel at any time. R. Manure -,rav be spread on pastures for fertilizer onl.v in the amount capable of being taken up by .new growth according to the June 1993 Conservation Agreement (Farm Plan Waste Utilization) only after March 1 during reasonably dry periods or before October 1 during reasonably dry periods . Manure shall not "be spread between October l to March I . S. No horses shall be kept in Field Number 4 during the period between October 1 and March I . T. Paddock Numbers `17A, 7B and 7C" shall not be used to keep or confine animals overnight between October 1 and March 1, but may be used for short term exercise during the day, and manure shall be removed daily. 7 S . This agreement is maae _n settlement of the dispute between the parties.. Nothing in the Agreement shall he construed as an admission by any _arty of any contention of fact or law at _ssue in the SH-S. ammeal . 6 . The penalty in the amount of $5 , 004 is sus:.ended for a =ericd of three years frcm the entry of the Agreed Order of Dismissal of SFHB No . 95-44 . ;f terms of the agreement are erformed tin good faith. for t hroo full years after entry of the order, the penalty shall be vacated. A notice of satisfaction will be delivered - fr= Department of Ecology to Neyhart upon satisfactory completion of t=e three year suspension. If the terms of the agreement are materially violated, the penalty shall become due and payable* upon demand by Ecology. 7 . The parties wish to resolve any potential future dispute before any harp to the environment, and before seeking _-dicial or quasi-judicial enforcement of this agreement . To . is end, . the pa=ties agree that prior to initiating any enforcement by any agency or court they will notify the party which is thought to be in violation of the agreement and attempt resolve the dispute -privately. Ir shall be a condition , precedent prior to any enforcement, Shorelines Hearings Board or curt action that the parties pursue mediation in good .faith according to procedures substantially similar to t=.e mediation _rocess which resulted in this Settlement Agreement . S . The parties represent and warrant that the signatories zelow have the proper authority to ' enter this agreement and to rind their respective parties in accord. with these. terms . 9 . Simultaneous with the' executicr. of this Agreement, the _artiers agree to take such steps as are necessary. to dismiss the appeal ancitled Dnuglas Neyha _t_ v, n na_rtment :2f m ning "?huya gacin nr=i--aticn and Sknknmish Tribe, SHB No. 95- :=SPONDENT APPELLANT DEPARTMENT OF ECOLOGY DOUGLAS J. NEYEART SAL BLOMSTROM, Ecology SWRO DOU S . NE T/ Regional Section, Superviscr App lan't . :eater Resources and Sherelands q / iATE: DATE: b =NTERVENOR. INTERVENOR RIVER BASIN ORGANIZATION SKOKOMISH INDIAN TRIBE / / 21z✓�/ By: esident Its : //����7ov /�iyr�� ��,d✓icrs rir LATE: _� Qlo DATE: 9 a / • •t . •- �t� y :. � ,[, � :.tom=zv�� ,F,,. .�. -- . ' `• ^ems 1V\���,^ _ 4.r V .r>•' ® �'� ../ ^JS e./� _ •�- `.=y' • .- Is . `� -�✓`,t-A,'..,, ...-ate' ,�_ :�_ `�` ® e� -.-> C�;� � . cam.. -.