Rader Farms violated Whatcom County law when it cleared and graded wetlands in preparation for blueberry planting without obtaining the approval of county planners, an appeals court ruled.
The court decision touches a sensitive topic for many in the county: protecting wetlands versus protecting agriculture.
In this case, the state Court of Appeals, Division I, stated in its Dec. 27 ruling that Rader Farms' logging, clearing and grading in 2006 was subject to the county's critical areas ordinance, a law protecting wetlands. Citing the law, county planners ordered the company to present a plan for restoring the Category 1 forested and peat bog wetlands on 10 acres. The land is located near Pangborn Lake between Lynden and Sumas.
"This is one of the more egregious violations," said Wayne Fitch, natural resources supervisor at the county planning department. "There's not a whole lot of Category 1 wetlands left in the county, and they're highly protected."
Had Rader Farms applied, it wouldn't have been legally allowed to do what it did, Fitch said.
In 2005, Lyle and Sue Rader, owners of Rader Farms, bought a large dairy farm for more than $3 million, spending an additional $300,000 to clean up environmental problems from past dairy operations, according to court documents. The purchase included the disputed 10 acres, where cattle used to graze.
In 2006, they cleared the 10 acres in preparation for berry planting, as they'd done, without permits, on other nearby land, court documents state. Later that year, planners ordered them to hire a wetlands expert to develop a restoration plan.
The Raders appealed, arguing that the work didn't need a permit under the critical areas ordinance, among other claims.
After the appeal, the county's hearing examiner, County Council and Superior Court each decided the work was subject to county environmental law. Whatcom County asked for attorney's fees, but the appeals court denied the request. The Raders could appeal to the state Supreme Court.
Lyle died in April 2010. Brad Rader, general manager and vice president of Rader Farms, didn't return calls Tuesday and Wednesday.
An attorney for the company, Douglas Shepherd, declined to answer questions about the case. He issued a short statement defending the Raders' right to farm on the 10 acres.
"I hope the decision provides sufficient guidance to Whatcom County to allow farmers to continue to farm in Whatcom County," he wrote.
Royce Buckingham, attorney at the county prosecutor's office, said Rader Farms balked at restoring the area, which was likely to be expensive.
"They weren't interested in replanting that area and taking it back to what it was, which was a highest-level wetland," he said.
Fitch said Rader Farms submitted a plan addressing best practices for farming the land but not for repairing damage. No berries are currently growing on the land, he said.
Henry Bierlink said resource lands, including forestry and farming, ought to be valued and protected as much as wetlands. He is executive director of two organizations: Whatcom Farm Friends and of the Washington Red Raspberry Commission.
"We tend to allow the critical area, the environmental concern, trump the resource concern, and I don't think it should be that simple," he said.
Currently, the law relies on a regulatory, punitive approach, he said.
He'd like to see an incentive option with creation of a natural resources marketplace. With a marketplace, for example, perhaps Rader Farms could farm in wetlands in exchange for relinquishing the right to develop homes, he said.
READ THE DOCUMENTS
Click on the links below:
• Appeals court decision (PDF).
• Rader's Superior Court appeal, with attached order to correct, and hearing examiner decision (PDF).
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