Burley man seeks new trial: King fighting conviction on injections into aquifer

Jul 04, 2009 (The Times-News - McClatchy-Tribune Information Services via COMTEX) -- KIGCF | Quote | Chart | News | PowerRating -- A Burley man convicted earlier this year in federal court on four counts of intentionally injecting fluids into an aquifer is appealing his case, seeking an acquittal or even a new trial.

Cory King, co-owner of the 16,000-acre Double C Farms, was the subject of a state and federal investigation after a routine inspection in spring 2005 raised questions about some of his wells. Besides the four water-law violations, a jury also found King guilty of one count of lying to an inspector from the Idaho State Department of Agriculture.

He faces up to 14 years in prison, with sentencing set for Aug. 24 in Pocatello. But nearly two weeks before that, on Aug. 12, U.S. District Judge B. Lynn Winmill will hear arguments on whether violations of a restriction the judge placed on the trial and various alleged jurisdictional issues should set King free.

On May 28, King's attorneys argued in a motion for acquittal that King had to have been informed about federal law to have willfully violated it, and at the time the government says he was informed -- in 1987 -- U.S. law did not require a permit for his type of injection well. They also wrote that the question King supposedly lied in response to was too vague for that charge, and the ISDA inspector didn't have the jurisdiction needed for a federal charge.

In a separate motion, they also wrote King deserves a new trial, based on what they viewed as a series of prosecutor errors that improperly biased jurors. The motion refers back to four motions for mistrial made during the trial itself, all at times when the subject came up of cattle waste kept on site.

Prosecutors had originally charged that King injected wastewater through his wells, contaminating the aquifer. But the controversial allegation was set aside when an order from Winmill forbade any discussion of waste issues in the case, leading to the use of "fluids" to describe what was pumped. Nevertheless, the subject managed to slip through, and defense attorneys counted three verbal mentions and a diagram that they objected to. Winmill and a defense attorney characterized one witness who used the word "waste" as a "loose cannon."

King and his attorneys maintain that creek water was what ended up in the wells. Attorney Larry Westberg told the Times-News on Friday that his client has a report on various water samples by a "leading national microbiologist" that proves no wastewater was injected, evidence that he offered to share with the paper "at some point." He also argued that the U.S. Environmental Protection Agency has never produced credible evidence of contamination in the case, and argued to keep the samples out of evidence.

Government attorneys have responded to the motions, writing that the defense misinterpreted federal law in the 1980s, that recorded conversation and testimony from a King employee proved the false statement and downplaying or rejecting all instances where they allegedly prejudiced the jury. For the wastewater issue, they argued that Winmill's instructions to the jury to ignore such mentions properly preserved the trial.

"There is no reason to assume the jury in this case did not fully comply with all of the court's instructions, including to disregard any improper references and not to speculate as to the substance injected," they wrote.

King's attorneys are currently drafting replies to the government's rebuttals.

Even if King's motions get denied, the August appearances won't be his last visits to court. He and Idaho state agencies -- most notably ISDA -- also have cases filed against each other in 5th District court in Cassia County. The next hearing is set for July 13 and 14 and will determine whether ISDA violated state law in its search of King's facility, according to Westberg.

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