Microsoft and the Stream With No Name

story by Matt Robesch

photo by Neal Herbert

The Free Press

From the pools and aquifers on the present day Microsoft main campus, to the waters of Lake Sammammish, there runs a stream with no name. Years ago it was a bigger stream, sending 100 gallons of water per minute through the neighborhoods and on to the lake. Today it flows at 22 gallons per minute, a mere trickle in comparison. Chet and Peggy McIntyre, owners of Lil' Bit O' Heaven, a trout farm dependent upon the stream, say it all started declining when Microsoft came to town.

When Microsoft set down in Redmond, Wash. in the mid-1980s, the individuals involved had their sights set on the future of the computer software industry. Their thoughts were of the competition they would be facing, the needs of home computer users, and how to make information flow faster and easier from point A to point B. Yet, when the construction crews started to clear the acres of land on which the Microsoft campus now stands, all the geniuses in the entire company somehow didn't make the connection between the streams and aquifers they were about to construct upon and the neighbors who lived just down the street. In their world of corporate mergers, and extensive legal battles over trivial technicalities, it is hardly surprising that, somehow, the smaller details were overlooked, simple details such as streams and the natural environment.

History
Herman Rekow, a long-time resident of Redmond, was executor of the Delbert Stevens estate and mill property upon some of which Microsoft now stands. "Before all this development came in, we had some good streams of water, at least three good sources of water on that property where the mill buildings were."

The stream that feeds Peggy McIntyre's trout farm originates from this property. It is fed year round by natural springs and ponds. She says of her stream, "It's a main tributary to Lake Sammammish. It has two sources. One started at Microsoft and went into the mill pond, and that's their property now. The other came from the Evergreen Park Apts., across the street. The water came underneath the street and through our property on it's way down to the lake. We used to have wild brook trout that would come up in our pond."

Lil' Bit O' Heaven
The stream and its aquifers were here long before Bill Gates was born, indeed since before the term 'computer' was even coined. The McIntyres themselves were filling their ponds with water from this stream before Bill Gates was old enough to vote.

Lil' Bit O' Heaven trout farm, in its heyday, was 3.5 acres of grass, trees and the rich sound of running water. Families could come here to fish, picnic and play. There was even a modest petting zoo for children to enjoy. The fishery was the main attraction. The McIntyres hatched fish in a large pond on the upper half of their property. Scattered throughout the premises were tiny ponds connected by beautifully designed water falls and miniature canals. Each pond was suitable for a relaxing day at your own private fishing hole. The fish were born and raised on this little aquatic farm, to be caught by the neighbors or to be sold as food to the Woodland Park Zoo.

Chet McIntyre stands in an empty pool which was once used to hatch trout at his Lil' Bit O' Heaven trout farm in Redmond.

When the water was flowing, business took care of itself.

Peggy describes those days. "Lil' Bit O' Heaven was kind of a word of mouth thing. The farm has been on television many times and has been written up in 'Discovering Seattle with Children'. It was a joyful place, a lot of laughter and happiness, grandparents and parents taking pictures. We used to have a real nice picnic area with teepees and swings and the kids would play. We had a barbecue, a lot of nice amenities. We were running all the ponds in front, we had worked out all the kinks, we were raising fish, and we could compete because we had enough fish and enough water."

Delbert Stevens' Property Sold
While the McIntyre's ran a successful business downstream, upstream things were changing. Over the years, Herman Rekow's mill partner, Delbert Stevens, was selling off his property little by little to land speculators. "I was half-owner in the mill," says Mr. Rekow. "Then when Delbert passed on, he willed the other half to me, which was a lot of machinery, a lot of junk and mostly a headache. It became that I had to move off the property which meant either selling it or tearing it down. Of course, mills of this era were all going out."

Great Western Savings accumulated the bulk sum of the property, eventually selling it to Microsoft and the Evergreen Park apts (owned by RREEF). This was in the mid 1980s. The McIntyre's water rights had already been established and an Environmental Impact Statement (EIS) had been issued describing to the new owners how to approach developing this particular plot of land. After city road improvements were completed, the real development got underway.

The Behemoth Approaches
According to Herman Rekow, Microsoft killed three streams by filling in a shallow well, constructing new roads and a jogging path for its employees, and other development activities. Peggy recalls, "Apparently things were going on (upstream) without our knowledge causing the muddying of the water and many incidents of unnatural discharges." Just after Memorial Day of 1991 a tremendous amount of milky gray material came into the McIntyre ponds. "They, without any prior notice, took it upon themselves to fill their jogging trail above the mill pond in with fresh gravel; tons and tons of it. Now it's a maintenance road, according to Buck Ferguson (Senior Director of Administration and Investor Relations) of Microsoft."

"There's an element of 'horse sense' in this..." says McIntyre Attorney David Bricklin when asked how it was determined that Microsoft and RREEF were responsible for the streams reduced water flow. "There wasn't a problem with the creek until the development took place. When the developments occurred the creek started having all these problems. It doesn't take a rocket scientist to figure this out."

Knowing it takes more than 'horse sense' to win a court case, experts and city officials were asked to look into the matter. Consultants who worked with the City Parks Department in Redmond, and Advanced Water Systems in Woodinville were hired. Then the City did some testing. Together they pinpointed the cause of the water problems on the construction of NE 163rd St which is owned and maintained by Microsoft.

Dirty water, dead streams and dried up wells all add up to trouble for the trout farm. The McIntyre's have had to shut down the splendid upper ponds of Lil' Bit O' Heaven. They can no longer hatch fish there. They've had to invest heavily in filter systems that, at one point during this ordeal, needed to be changed up to three times a day. They have had to raise their catch prices to stay in business. Many school field trips cannot afford to visit this farm anymore. The farm can no longer accommodate handicapped children. An acre of the property was sold to pay bills, so the children's playground had to be turned into the visitor's parking lot. Their business is no longer profitable.

"They've really had a tremendous impact on us," says Peggy. "We've had parties of Microsoft employees come out here and ask us what's wrong with our water, 'why don't you have these ponds working?' One guy wanted to know why we didn't truck water in, we kinda laughed. Don't they know we're a little bitty farm? We don't have endless resources and if we don't have water, we're outta business."

Approaching the Behemoth
The McIntyres and their attorney wrote Microsoft a letter, setting forth their concerns about the creek and the damages that had been done, why they believed it was the result of the company's actions but it took a short article in the Seattle P.I. to finally get the attention of the millionaires up the street.

According to Peggy McIntyre, the first she'd heard back from Microsoft was when, "Buck Ferguson came down here after the first newspaper article, unannounced, uninvited, after ignoring me for weeks, and he was very, very cross with me for reporting Microsoft to the newspaper. I wanted not to speak to him, he was so uptight, but he insisted on my taking him and showing him around the farm. He told me that gravel road was good for my fish. He doesn't know beans about fish and I don't know beans about computers, but it's generally a good idea, when you're on another person's property, to have nice manners. He lacked the manners. He was coarse, abrasive, arrogant and knew nothing of our business." Mr. Ferguson did not return calls to the Free Press in time to comment.

The Lawsuit
McIntyre Attorney David Bricklin details how the lawsuit came about. "We asked Microsoft to consider compensating the McIntyres for the damage they had suffered. We weren't able to get satisfaction that way, so the lawsuit was filed in the Fall of 1991. We originally sued Microsoft and the then-owners of the apartments."

The apartments Bricklin refers to are the Evergreen Park Apartments that reside on the banks of the stream. They were built in 1986 about the same time that Microsoft took over their portion of the property. The apartments are owned by RREEF Limited Partnership in San Francisco. They have filed a third party suit against the City of Redmond, claiming the city didn't tell them everything they needed to know when issuing permits. The City of Redmond's stance is that it wasn't responsible, its role was limited to reviewing permit applications and issuing permits, and that it was the responsibility of the landowners to make sure their activities didn't cause harm to neighbors.

"Apparently there is a whole other drama going on over there," says Peggy McIntyre. "There are two different owners of RREEF and, I guess, one has declared bankruptcy. One did sue the City and didn't win and now the other one is going to sue."

Aside from reviewing applications and issuing permits, the City also undertakes Environmental Impact studies. One such study was conducted for this property, and it set forth some very specific guidelines to ensure that developers would not infringe upon the McIntyre's water rights. Questions still remain as to how closely the recommendations in this EIS have been followed by either defendant. Peggy McIntyre asserts, "the recommendations were not followed. I'm not going to say Microsoft is or isn't environmentally sensitive, but in this case, someone was very careless with the water. You don't take an aquifer like that and dry it to powder without effort."

Neighbor Herman Rekow knows the impact study well. "Microsoft was supposed to leave three man-made ponds on the property." He explained these ponds were to be supplied by the spring water plus the runoff from the parking lots and the roofs of the buildings. According to the experts involved with the drafting of the EIS, the ponds were supposed to be maintained at a certain level. If any of this were to runoff, Microsoft was supposed to treat it before it ran into the lake. Says Rekow, "All of those ponds have been covered over, or else they have buildings on them. There's only one pond that doesn't have a building on it, but Microsoft did fill it in."

The EIS was put in place to protect the water rights of a business that had become something of a fixture in this growing Eastside community. "All those impact studies involve us," reminds Peggy. "We've been here a long time. We're not a secret."

Bob Eshelman, of Microsoft's Investor Relations department, was the only representative among the defendants who returned calls from the Free Press. According to him, the official Microsoft position is "the Microsoft campus is in a different drainage basin, kind of over the crest of the hill, from the stream that feeds their fish pond." When asked if the company was aware of the McIntyre's water rights, or had read the City of Redmond's EIS he responded, "We're certainly aware of them now. I don't know if they really bear on the case." And when asked why Microsoft doesn't simply help its neighbors in order to enhance public relations Mr. Eshelman replied, "Being a good neighbor doesn't necessarily mean taking care of problems you didn't create. Just because we are nearby and we happen to have a lot of money doesn't mean we're responsible for the damage."

It is this kind of attitude that has caused the lawsuit to drag on into its third year. Being a corporate giant raking in billions of dollars, evidently, does not require you to take responsibility for the problems you cause. Microsoft seems content to let this go to court and let high paid experts attempt to define for the jury their version of how eco-systems work.

The McIntyre's main concern now is staying afloat. Today there are three surviving sections treading water to keep the family fish farm in business. Fifty percent of it is coming from the zoo. The remainder of Peggy and Chet McIntyre's business comes from U-Catch and planting stocking ponds. "Instead of being the farmer, now we're kind of a middle man. We're no longer able to raise our own fish. The cost has to be passed on to the public. Not just buying fish, but the other costs of insufficient water, we have to aerate the water, we have to clean what we have because they're careless with it upstream."

The lawsuit is for $1 million. When asked if the McIntyres would be willing to settle for complete stream repair over a cash settlement, attorney Bricklin feels at this late date, after years of declining business due to these water-oriented circumstances, Microsoft and the apartments owe the McIntyres a combination of stream repair and financial compensation for their losses.

To date, no one from Microsoft or RREEF has offered to repair the stream or compensate the McIntyre's in any way. "Our costs are escalating because of litigation. Nobody wishes Microsoft or the apartment complex any harm... we just wanted our water." says Peggy. "I feel they could have made some effort that would've saved us a heck of a lot of time and money. We do look forward to a solution. We had hoped for water, but no one has talked water with us."

The Future
The McIntyres requested a jury trial, which they were granted. The date has been set and the case will be decided in the end of September. Chet and Peggy feel they have an excellent chance of winning should this dispute come down to a jury decision, as it appears it will. Attorney David Bricklin also is hopeful. "I think our chances are very good. It's a very clear case of liability"

Those wishing to support the McIntyres can send contributions to their defense fund at: Chet and Peggy McIntyre, P.O. Box 70081, Bellevue, WA 98004.

This story was updated in the Oct/Nov 1994 issue of Washington Free Press. Please see:
"Microsoft Suggests Redmond Change a Few Laws"

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Contents on this page were published in the June/July, 1994 edition of the Washington Free Press.
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