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Trial starts in case of altering course of the Wind River

Feb 3, 2012 - By Martin Reed Staff Writer

Trial started this week in Casper concerning allegations that LeClair Irrigation District and its former operations manager are responsible for failing to remove a series of dikes from the Wind River and correcting the waterway.

The lawsuit involves four dikes 18 miles upstream from Riverton and was initiated by the United States government and joined by the Northern Arapaho and Eastern Shoshone tribes against John Hubenka and LeClair

The litigation stems from Hubenka's criminal conviction in September 2004 for violating the federal Clean Water Act by constructing illegal dikes in the river while under LeClair's employment.

Hubenka received a sentence of one year of probation as well as an order to restore the riverbed and remove the dikes under a restoration plan prepared at his expense and approved by the Environmental Protection Agency.

Hubenka "never prepared and submitted a restoration plan to EPA for approval. The dikes remain in the river, although high river flows this past summer eroded sections of the dikes," according to the final pretrial order in the case.

The case filed in Wyoming's U.S. District Court is taking place at the federal courthouse in Lander. The trial that started Monday could last seven days.

In its lawsuit filed in May 2010 against Hubenka and amended to include LeClair as a defendant in March 2011, the federal government is asking the court to impose a restoration plan for the river. The government also is seeking a civil penalty against Hubenka.

Not affordable

The pretrial order from District Judge Alan B. Johnson states that Hubenka's contends he tried to develop a plan after his conviction but failed to complete it because of a lack of funds.

Specifically how the restoration plan should address the river alterations is an issue for argument at trial.

Hubenka wants the court to impose a minimum penalty against him for the dikes remaining in the river.

"Due to the fact that Mr. Hubenka has limited financial resources and did not receive any economic gain from these dikes, and the fact that restoration costs will exceed his ability to pay, any civil penalty should be de minimus," according to assertions by the defendant in the pretrial order.

LeClair contends the reason the irrigation district became a defendant is because of Hubenka's inability to pay the restoration costs, according to court documents.

The irrigation district alleges the federal government "readily admits that it has brought LeClair into this action solely in the hopes that its pockets are sufficiently deep to construct the designer river that it demands," according to the pretrial order.

LeClair "vehemently denies any involvement with the construction" of the dikes in question, according to court documents.

"It is significant to note that not only was LeClair's non-involvement with construction of the dikes addressed in the criminal proceeding, the United States was the party that made that claim," according to the pretrial order.

Clean water concerns

"LeClair further contends that the United States and the Tribes are not seeking to enforce the Clean Water Act, but to find someone -- anyone -- who can pay for Hubenka's actions and to construct a new river, the likes of which did not exist prior to Hubenka's actions anyway," according to the order.

The Wind River Indian Reservation tribes joined the litigation as intervening parties to the matter, requesting the court to order the waterway's restoration.

The Eastern Shoshone Tribe contends Hubenka's actions changed the riverflow, "thereby destroying a delicate ecosystem, disrupting tribal hunting grounds and committing a continuous harm daily to the Wind River and its natural ecosystem," according to court documents.

The Northern Arapaho Tribe is forwarding similar claims.

"The damage to the ecosystem has affected the ability of tribal members to hunt and fish in this area, and has affected grazing. The damage to the river has impeded the right of tribal members to collect plants and other items of cultural and economic significance from the area," according to court documents.

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Wind River Indian Reservation