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October 13, 2014
RANDLE, Lewis County — Last July, the Washington State Department of Transportation asked Victor Khvoroff to sign a permit allowing survey crews onto his ranch. A few days later, WSDOT sent them out without telling Khvoroff and before he had agreed to anything.
He found them trespassing on his property on the second day of an archeological survey. They were digging test holes July 16 and Khvoroff had them escorted off the land by the Lewis County Sheriff's Office. No charges were ever filed.
“They just assumed there'd be no problems whatsoever,” Khvoroff said.
But there were a lot of problems, and not just with the permits. Khvoroff has owned his ranch outside of Randle for 24 years. He's watched one bend of the Cowlitz River migrate hundreds of feet across his land, alarmingly close to U.S. Highway 12.
He said he tried several times over the years to work with WSDOT and other agencies to preserve the bank, but nothing came of it.
Now, WSDOT wants to use eminent domain to forcibly buy some of Khvoroff's land to protect the road. On Oct. 2, agency officials met and took the first steps in the condemnation process.
WSDOT officials argue the situation is unavoidable, that they won't take more than they need and they'll pay the fair market value.
Khvoroff agrees the river needs to at least be halted; but he argues that WSDOT's plans will effectively cut his ranch in two. He worries that he could be responsible for future maintenance costs and suspects there's more to the sale than the agency is revealing.
“Rivers move, they do what they want,” said WSDOT spokesman Bart Treece. “It's something we're very cognizant of with highway projects.”
WSDOT wants to buy about 6.9 acres of land from Khvoroff above the river, about 3 acres of submerged land and acquire another 6.9 acres for a temporary construction easement. The agency plans on installing roughened logs, rocks, rootwads and barbs along 1,950 linear feet of riverbank, resloping the land above the water and planting a variety of broadleaf maple and other riparian pants, then installing a cattle exclusion fence to protect the plants.
“We have to balance the needs of the highway while being responsible stewards for the environment,” Treece said. “We could dump a bunch of rocks into the water but that's not responsible.”
Khvoroff wears old glasses and has a fluffy white beard. He attended the University of Washington, but for the last 24 years has raised cattle on his 400-acre ranch.
Up until this year he was able to move animals and drive equipment through the land in question to reach the other side of his property, which he rents to other grazers; but now there's only about 4 feet of earth left between his fence and the river below.
Along the property is a highway access that Khvoroff said is critical for his ranch. He has another highway access down the road, but the one on the land desired by WSDOT is the only safe access he has to get animals out of the fields during high floods.
Additionally, should he not be allowed access, he'll have to drive his equipment down roughly 1,200 feet of highway any time he needs to access the other side of his land.
WSDOT officials didn't comment on the details of the negotiations because they wanted to respect the process.
Khvoroff wouldn't specify how much he was offered, but said an independent appraiser hired by WSDOT valued other nearby parcels at $1,950 and $2,950 per acre, with his properties on the lower side.
“It's not about the money — partially it is — but it's the necessity,” Khvoroff said. “I need this land. Each acre translates into dollars by how many cows it'll support.”
After a big flood in 1990, Khvoroff said, he asked officials from several agencies, including WSDOT, the Washington Department of Fish and Wildlife and Lewis County Soils and Conservation, among others, out to his property to warn them about the river's course.
At that time, it was still hundreds of feet away from the road, but he wanted to shore up about 300 feet of bank with rocks to stop the progress.
Khvoroff claims he wasn't issued the permits because officials were concerned about him getting sediment into the river and endangering the fish.
After the 1996 flood, Khvoroff said, he tried again, but WSDOT wasn't interested in stopping the flow, he said. He claims he tried to stop the river by planting a number of trees along the bank, but they were all either washed away or eaten by wildlife.
Then, he said, in 2002, WSDOT officials contacted him and asked for permission to reinforce the bank by burying logs along the bank to stabilize it. This, however, couldn't be immediately verified with WSDOT.
“I said, ‘That's fine but those are cottonwood logs and as far as I see it you'd be foolish to use them because they're not going to last long,'” Khvoroff said.
Left uninhibited, the river continued washing the bank away, taking feet at a time in some years.
“The river wasn't on our right of way yet,” said Treece. “It wasn't an immediate concern for the road.”
In April 2013, with just 33 feet of land left between the river and the fence, he received a letter from WSDOT informing him about survey projects the agency was planning to do on his property.
Over the next couple months, he went back and forth with WSDOT trying to define the scope and duration of the surveying and the project.
After not agreeing to the first permit and having the sheriff's office escort the archeologists off his land, Khvoroff eventually agreed to allow crews to do geotechnical boring.
The project was delayed until 2014.
WSDOT sent Khvoroff a plan for permanent riparian restoration easements at 2.5 acres and aquatic easement of 3.1 acres; and temporary construction easements of 4.6 acres of upland and 5.2 acres of submerged lands he owned.
The agency said they would be responsible for maintaining the fence but the area was, “too narrow and not suitable for large equipment or a large number of animals such as cattle to pass through.”
He said WSDOT officials told him there would be some sort of access provided for him and his animals on the property, and they asked him to sign by June 20, 2014, or else the agreement would be void.
“Through this process, they extorted the right of the landowner to be able to continue to apply those pre-existing uses of livestock grazing and hay production to the land in the future away from the landowner, in effect, causing an involuntary surrender of those rights,” Khvoroff wrote in a letter to the Washington State Attorney General Bob Ferguson's Office.
The 9-page letter dated May 31, 2014, asked the attorney general to intervene in WSDOT's efforts to get the permanent easements and to advise them on the laws that allow landowners to continue pre-existing uses of land in riparian zones in Washington State.
In June, WSDOT canceled the agreement and withdrew its written offer for easements, and scheduled construction for summer 2015.
In September, the agency told Khvoroff it wanted to purchase roughly 10 acres, and wanted to continue with the riparian planting.
Khvoroff said he's worried that he could be held responsible by another agency if the fencing is damaged and washed onto his property during a flood and he wants to maintain his historic access to the highway and the other side of his ranch.
The two sides couldn't come to an agreement, so the Oct. 2 meeting was the first step in the condemnation process. Since officials in the Vancouver office of WSDOT moved forward, the case will be forwarded to the Olympia headquarters. If they, too, decide to pursue the issue, it will be forwarded to the attorney general's office, who would represent WSDOT.
“There's a process prescribed in the law and this is part of the process,” Treece said.
He said that Washington Fish and Wildlife, the Department of Ecology, the U.S. Department of Fish and Wildlife and the Army Corps of Engineers and have all provided permits for the project.
Mike Palazzo, WSDOT real estate manager, said eminent domain condemnations are rare. He added there are maybe two or three trials every biennium and perhaps one acquisition per year.
“These are projects that benefit the public. If the project requires additional land, like in this case, we try to work with the property owner and if negotiations hit an impasse we have tools we can use to acquire and property and to compensate the owner fairly,” said Treece. “There's clearly a need here to protect the roadway and we need to do what we can.”