State vs. Pennie, March 23

News release from the Coos Co. District Attorney’s Office. The defendant, Dale Alan Pennie, has been accumulating solid waste on the property where he resides as well as on an easement he has across a neighbor’s the property since around 2002. The properties in question are located off of Tom Smith road near Bandon, OR. He has been receiving citations for this behavior and has been advised to clear the material since late 2005. The defendant refused to clear the material from either property and continued to add trash, old electronics, broken down cars, trailers, and various other waste to several dump sites on the properties. Due to the scope of the problem the Oregon Department of Environmental Quality (DEQ) conducted an investigation in 2007 and at that time determined that the entire solid waste disposal site across both properties consisted of approximately 53.6 tons of waste. From 2007 through 2013 the defendant was convicted of multiple county code violations related to the accumulation of solid waste. In 2009 the DEQ was awarded a $28,805 civil judgment after a contested hearing. The defendant was found to have violated Oregon law by operating or maintaining a disposal site without a permit from DEQ and ordered to immediately initiate actions to remove the waste from both properties. Despite the outcome of the civil action and the multiple code violations the defendant continued to accumulate solid waste at the site. At the time this case was filed he had been convicted approximately 73 times of Coos County Code violations (59 times for Prohibited Accumulation of Solid Waste and 14 times for Maintenance of Property as a Junkyard) covering the period from 2007 to 2013. The defendant has been hostile with law enforcement and has continually protested what he claimed were unlawful searches but during previous litigation his motions on that issue have been denied. Around 2007 the defendant also interfered with the neighbor’s access to their property by moving a gate on the easement (owned by the neighbor), locking it, stringing barbed wire on the top rail, and at times coating the top rail with axle grease. This made it difficult for deputies to monitor the situation and locked the neighbors out of their nine acre parcel. Deputy Del Dahlen, from the Coos County Sheriff’s Office, continued to monitor the location. He had permission from the neighbors to go on their property, which he had to reach by going through the forest, and observed the growth of the solid waste disposal site. For many years he visited the site about once a month and would write the defendant citations if the waste remained. He visited in May of 2013 and again in late June of 2013 and could tell that waste had been added to the properties in continuing violation of the law. Deputy Dahlen retired from the Coos County Sheriff’s Office later in the summer of 2013. Seeing that the citations and civil awards were having no effect an investigator from the Oregon State Police began researching the history of the case. The investigator looked through maps, photographs, reports on the DEQ investigations, records from the Coos County Sheriff’s Office, property records, hearing transcripts, and other documentation dealing with the defendant’s accumulation of solid waste over the past decade. He compiled an extensive report detailing several environmental crimes, as well as other criminal behavior, that was referred to the Coos County District Attorney’s Office. Based on the thorough and detailed investigation the defendant was charged with multiple crimes based on the last three months that Deputy Dahlen had monitored the defendant’s activities. The criminal case was handled by Deputy District Attorney Stephen Pettey. Criminal Case – The defendant was arraigned on September 30, 2014. He requested an omnibus hearing and a jury trial at an appearance on November 18, 2014. The omnibus hearing was held on February 17, 2015. During that hearing the defendant sought the severance of some of the charges from the upcoming trial and also sought the suppression of evidence that he once again claimed was the result of an illegal search by Deputy Del Dahlen. Both motions were denied and a jury trial was held on February 20, 2015. During the trial the jury heard from Deputy Dahlen, an investigator from DEQ who had also visited the site multiple times, and also from the neighbors who had been locked out of their property for years. The jury deliberated for about five minutes before finding him guilty of all seven charges before them. The crimes are listed below and grouped by date: April 1, 2013 – April 30, 2013
Maintaining a Disposal Site Without a Permit – Class “A” Misdemeanor; Criminal Mischief in the Third Degree – Class “C” Misdemeanor; May 1, 2013 – May 31, 2013 Maintaining a Disposal Site Without a Permit – Class “A” Misdemeanor; Criminal Mischief in the Third Degree – Class “C” Misdemeanor; June 1, 2013 – June 30, 2013 Maintaining a Disposal Site Without a Permit – Class “A” Misdemeanor’ Criminal Mischief in the Third Degree – Class “C” Misdemeanor; May 1, 2013 – June 30, 2013 Offensive Littering – Class “C” Misdemeanor; The counts of Maintaining a Disposal Site Without a Permit relate to the fact that the defendant had never cleaned up the accumulated waste on both properties and never had a permit from DEQ for a solid waste disposal site. The defendant was essentially keeping his own private junkyard. The counts of Criminal Mischief in the Third Degree relate to the defendant’s interfering with his neighbor’s property by moving and locking their own gate. This was a continuing violation as long as the gate interfered with the neighbors’ access. Finally the Offensive Littering count relates to the new accumulation of solid waste that Deputy Dahlen had observed during his last visit to the site in June of 2013. Sentencing – The defendant was sentenced by Judge Martin Stone on March 9, 2015. Due to the unique nature of the case and the fact that it seemed clear that financial penalties would do nothing to dissuade the defendant from continuing his activities the Coos County District Attorney’s Office asked the Court to impose specific conditions of probation on the defendant. The State recommended that the Court impose the maximum sentence of one a year in the Coos County Jail on the first count of Maintaining a Disposal Site Without a Permit, and to place the defendant on five years of bench probation on all counts. The State further recommended that the court suspend the execution of the one year sentence for 12 months so that the defendant has time to clean up the entire solid waste disposal site to the satisfaction of DEQ. A compliance date would be set for the defendant to return to Court. At the compliance date the only question would be whether or not the defendant has cleaned up the entire solid waste disposal site to the satisfaction of DEQ. If he has not the Court would order that he immediately serve the previously imposed one year sentence and if he has the Court could entertain a motion to terminate the defendant’s probation at that point. The Court followed the recommendations of the State and imposed a one year sentence with the execution suspended until a compliance date of March 14, 2016. If the defendant has not cleaned up the entire solid waste disposal site by that date to the satisfaction of DEQ, as determined at a hearing, he would then serve the one year jail sentence. The Court imposed five years of probation which included the following special conditions: • Immediately cease all accumulation of solid waste on the entire solid waste disposal sites, including the land where you reside, the access roadway, and the neighbor’s land. • Remove and clean up all solid waste disposal sites on the land where you reside, the neighbor’s land and along the roadway which accesses the land no later than March 14, 2016 to the satisfaction of DEQ. • Allow DEQ personnel and law enforcement officials to access the land where you reside and along the access roadway and the property of the neighbor to monitor progress regarding clean up and removal of the solid waste disposal sites. • Do not restrict or interfere with DEQ and law enforcement officials in monitoring the cleanup of the solid waste disposal sites. • Unlock immediately the gate placed on the roadway which accesses the property. • Remove immediately the barbed wire and any other barricades that are on the gate. • Do not interfere, modify or lock the gate at any time during the probation term. • Do not interfere with access by the neighbor and her family on and along the access roadway and their property. • Have no contact with the neighbor or her family. • Return to court on March 14, 2016 at 8:30AM for a compliance hearing to verify that the solid waste clean up has been completed to the satisfactions of DEQ. The Coos County District Attorney’s Office would like to thank Investigator Jeremy Richardson of the Oregon State Police, Craig Filip of DEQ, and Ret. Deputy Del Dahlen for all of their hard work on this case and their commitment to seeing that justice was served. Questions regarding the case should be directed to Deputy District Attorney Stephen Pettey at the Coos County District Attorney’s Office.