Valley dairyman judged innocent water pollution case

Nov. 21, 2000
The owner of a dairy farm who had received help from a government agency for its wastewater treatment system has been found innocent of wrongdoing in a federal pollution case.

By JANE LARSON

Nov. 20, 2000 (www.azcentral.com)— The owner of a dairy farm who had received help from a government agency for its wastewater treatment system has been found innocent of wrongdoing in a federal pollution case.

For Tommy DeJong and his family, the situation turned into an eight-year ordeal that was resolved last month when a federal judge decided the owner of Buckeye Dairy Farm was not only innocent, but also entitled to a $205,000 repayment by the government.

It is the first time in Arizona, and only the second time nationally, that a defendant in an environmental case has won back attorney's fees under the 1997 Hyde Amendment, which allows courts to order such payments if the case was "vexatious, frivolous or in bad faith." The burden of proof is on the defendants, however, and criteria are so strict that a Justice Department spokeswoman said only "a handful" of people have won such cases.

"In this case . . . prosecutorial zeal overrode prosecutorial common sense," U.S. District Court Judge Roger Strand wrote in his decision to award the fees. Strand noted the government prosecuted the case despite the facts that it had a large quantity information that indicated the water system was inadequate and that it knew DeJong had spent more than $600,000 to correct the flaws.

The Justice Department has filed an intent to appeal Strand's decision. A spokeswoman declined to comment further.

For now, DeJong feels relief at being exonerated but resentful about an experience that could have put him behind bars.

"What kind of a cost can you put on that?"' asked DeJong, who grew up on his father's dairy farm in California and is the latest in a line of dairy farmers that stretches back to 17th-century Holland.

DeJong and his wife, Susan, rented part of a West Valley dairy in 1986 and bought it under a long-term payment agreement in 1988.

Susan DeJong skipped trips to McDonald's and watched the family shoe budget, because every $200 they saved meant they could buy another cow.

Tommy DeJong figures he worked 16-hour days and lost 27 pounds in the dairy's first year. But the work paid off as the farm grew to 3,300 cows, $10 million in annual sales and enough profit to provide a spacious home for their six children and a light plane in the garage.

In the late '80s, dairy farmers across the nation became more aware of how cows' waste could pollute waters downstream. DeJong thought he could use help solving the problem of water draining across his dairy, which begins at the foot of a few small mountains east of the Estrella range. From there, the land slopes to a small wash lined with rock-strewn soil and desert trees.

He asked the U.S. Department of Agriculture's Soil Conservation Service to design a wastewater system. The agency paid $15,000 toward its $150,000 cost.

The system, designed in 1989 and completed in 1992, consisted of seven ponds on the open land between the cow pens and the wash. The ponds were designed to hold rain and wastewater runoff from the 22 acres of pens, but the slope of the land meant the ponds actually were catching water from DeJong's 120 acres and the surrounding 280 acres of desert.

The ponds, supposedly designed to withstand a 25-year storm, overflowed into the wash whenever the skies more than sprinkled. DeJong rented, then bought, pumps to send the water back uphill and installed a standby generator to make sure the pumps worked when storms knocked out electricity.

DeJong spent $600,000 of his own money to correct the errors, including buying adjacent property above the cow pens, building his own new storage ponds there and installing a mile-long pipe to pump the water there.The U.S. Environmental Protection Agency and the U.S. Attorney's Office in Arizona thought the old, ineffective system was criminal.

A federal grand jury indicted DeJong in 1996 on three counts of polluting navigable waters. If convicted, he would have faced six years in prison.

The government offered to settle if DeJong served a year. He refused, wanting his name cleared. The case went to trial in the summer of 1999 with DeJong's attorney, Ivan Mathew of Phoenix, maintaining that the government knew the design was flawed.

The department contended that it had witnesses and photographs of three incidents during which DeJong discharged wastewater from his farm through a pipe that was not part of the federal agency's design.

The court disagreed.

"The kids will tell you it was the rottenest summer of their lives,"' Susan DeJong said.

The damage award came under federal legislation known as the Hyde Amendment, designed to protect innocent people from financial ruin. Illinois Republican Henry Hyde inserted it into a $31 billion spending bill that Congress passed in 1997.

Stephen Dichter, an environmental defense lawyer with the Phoenix firm Bryan Cave, said DeJong's case is the first he has heard of where the Hyde Amendment has been used successfully in Arizona.

"It is, and should be, very rare that this kind of result occurs," Dichter said.

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