12 CapitalPress.com
January 30, 2015
Litigation is big business for the environmental groups
NO from Page 1
Dairy farmer Jay Gordon,
director of governmental
affairs for the Washington
State Dairy Federation, says
negotiating compromises to
agriculture-environmental
conflicts is a painstaking, at
times painful, process.
“It’s democracy. It means
you’ve got to put a huge
amount of time into basic
understanding,” he said.
“Sadly, some of the envi-
ronmental groups choosing
to sue us are shutting that
down.
“It’s really hard to hold
hands and sing ‘Kumbaya’
and roast marshmallows
over the fire when you’re in
the middle of depositions,”
Gordon said. “I don’t mind
criticism, but let’s have a
conversation, not just hold a
gun to my head.”
Big business
Litigation is big busi-
ness for the environmental
organizations, which often
use the deadlines in the
ESA as leverage to get their
way with the government.
Last year alone, they
filed 526 environmental
lawsuits in federal courts,
according to a search of
public records. The year
before, the number was
1,421.
One of the most litigious
groups is Earthjustice, a
nonprofit law firm former-
ly called the Sierra Club
Legal Defense Fund. The
group promotes itself with
the catchphrase, “We exist
because the Earth needs a
good lawyer.”
The San Francisco-based
group, which boasts 94
lawyers in 10 regional and
one international office, en-
tered 2015 involved in 370
active court cases. Over the
last two years, Earthjustice
has collected $6.4 million
in court-awarded attorney
fees.
Besides attorney fees
awarded by courts, the non-
profit organizations also
solicit donations from their
supporters.
Another group, the Cen-
ter for Biological Diversi-
ty, has collected $2 million
in attorney fees during the
same time.
The proliferation of
lawsuits draws fire from
critics, who say the envi-
ronmental groups abuse
the courts and force federal
agencies to change or adopt
new policies by bowing to
what they call “sue-and-
settle” tactics. Those tac-
tics involve flooding the
courts with lawsuits against
an agency such as the U.S.
Fish and Wildlife Service,
forcing it negotiate a settle-
ment.
“One of the big chal-
lenges has been litigation
activity,” Washington Cat-
tlemen’s Association Ex-
ecutive Vice President Jack
Field said.
“There are groups that
litigate, litigate, litigate,”
he said. “It’s been a perpet-
Courtesy photo
Seattle author Don Stuart says farmers need flexibility but environmentalists want certainty, setting the stage for conflicts over regulations.
Don Jenkins/Capital Press
Conservation Northwest director Mitch Friedman, shown here
in a Seattle coffee shop, says a culture clash underlies much of
the conflict between farmers and environmentalists. “A lot of the
environmentalists I know don’t have a lot of experience with the
agricultural community.”
ual funding machine.”
The U.S. House last
summer passed legislation
to cap the attorney fees
plaintiffs can collect from
the federal government in
ESA lawsuits.
“That would be a huge,
critical first step,” Field
said.
The White House has
threatened to veto the leg-
islation if it ever reaches
the president. At the request
of House Republicans, the
Government Accountability
Office investigated the lit-
igation’s influence on the
U.S. Environmental Pro-
tection Agency. The GAO
reported last month that
the EPA issued 32 major
air-pollution rules between
2008 and 2013 and nine
stemmed from lawsuit set-
tlements.
The Center for Biologi-
cal Diversity in its 2013 an-
nual report takes credit for
securing “new protection of
55 animals and plants.”
“We do have some pret-
ty terrific environmental
protection laws,” center
spokeswoman
Amaroq
Weiss said.
The GAO estimated in
2012 that over a decade
federal agencies paid $21.1
million in attorney fees and
legal costs to plaintiffs in
238 lawsuits based on the
Endangered Species Act.
The stakes are large for
the environmental groups,
but they are enormous for
agriculture in the West. In
California and the Pacific
Northwest alone, 175,366
farms produce crops and
livestock worth $64.4 bil-
lion a year, according to
the 2012 USDA Census of
Agriculture. And most of
the those farms and ranch-
es have been impacted by
ESA-related
regulations
such as those governing wa-
ter use and quality, forest
management and grazing on
public and private land.
No communication
Seattle resident Don
Stuart, who wrote a book
on conflicts between envi-
ronmentalists and farmers,
said lawsuits shut down
communication, the best
remedy for resolving dif-
ferences.
“When you’re litigat-
ing something, you almost
can’t really talk to anyone,”
he said.
Weiss said her group
talks, calls and writes ag-
riculture producers before
resorting to lawsuits. The
center, however, won’t
compromise on what it sees
as sound science, she said.
In an interview, Weiss
was particularly critical of
meat production, calling
some practices “inhumane
for the animal and devastat-
ing for the environment.”
Eating less meat “would
be a great start” toward a
healthier planet, she said.
“People need to eat, and
there has to be food pro-
duction. At the same time,
we’re very concerned about
agricultural practices that
continue to focus on animal
agriculture,” she said.
Americans have been
privileged to have access to
a variety of foods. But, she
added, “the environmental
consequences of that are
never taken into account
economically.”
“Our concern is that the
way agriculture is practiced
is not sustainable for the
planet,” she said. “I don’t
think it’s elitist to ask peo-
ple to be thoughtful about
their food choices.”
A culture clash
Hardly any aspect of ag-
riculture escapes criticism,
or a lawsuit.
“No one else in this coun-
try faces a more poisonous,
unregulated workplace than
the agricultural worker,” an
Earthjustice blog says.
“Livestock
grazing
spreads invasive species, in-
creases the fire risk and de-
grades rivers and streams,”
the Center for Biological Di-
versity says.
Dominant
agricultural
practices are a “dead end,”
the Union of Concerned Sci-
entists says.
Environmentalists would
be wiser to try to under-
stand, not vilify, farmers,
said Stuart, whose book is ti-
tled “Barnyards and Birken-
stocks: Why Farmers and En-
vironmentalists Need Each
Other.”
“If the farmer goes out of
business, it’s not an environ-
mental win,” he said. Farms
often give way to other less
environmentally friendly de-
velopment.
Stuart’s idea for the book
began forming more than a
decade ago when he was ex-
ecutive director of the Wash-
ington Association for Con-
servation Districts.
Stuart, who has a back-
ground in law and commer-
cial fishing, said he thought
the job would be easy and
that he would be embraced
by farmers and environ-
mentalists. It wasn’t, and he
wasn’t.
Farmers were “sort of
lukewarm” and more con-
cerned about avoiding regu-
lations, he said. Meanwhile,
environmentalists were con-
stantly in a lather over “life
and death on the planet.”
“The bottom line is noth-
ing gets done,” he said. “And
the environment suffers.”
Stuart, who was later the
American Farmland Trust’s
Pacific Northwest director,
said different perspectives set
up clashes between farmers
and environmentalists.
Environmentalists
find
comfort in uniform and per-
manent rules, while farmers
are worried about costs and
whether they will survive an-
other year, he said.
“I think the environmental
movement by and large is
an urban movement. I think
that from their viewpoint,
they need something cer-
tain,” he said. “But if you
start passing rules, you end
up passing rules that work
for a few people, maybe
work OK for others and
don’t work at all for a bunch
more.”
Ideologues abound
Conservation Northwest
founder and director Mitch
Friedman agreed much of
the conflict between envi-
ronmentalists and farmers is
rooted in culture.
“A lot of environmental-
ists I know don’t have a lot
of base of experience with
the agricultural community,”
Friedman said.
Friedman founded his
group, formerly called
Northwest Ecosystem Alli-
ance, in 1989 after spending
time as an often-arrested
Earth First! tree-sitter.
He also spent a summer
as a teen-age ranch hand in
Wyoming. Environmental-
ists should know agriculture
is hard and “on a scale, it’s a
lot less damaging than a lot
of land uses,” he said.
“I have trouble with ideo-
logues that are rooted in
distrust, combativeness,” he
said. “I find plenty of that on
both sides.”
Friedman’s group advo-
cates bringing wolves and
grizzly bears back to Wash-
ington state. Still, in 2012,
he supported the lethal re-
moval of wolves from the
Wedge Pack to curb live-
stock predation.
According to Friedman,
moderation has its price.
“It’s a problem,” Fried-
man said. “Our pragmatism
makes us vulnerable.
“Throwing red meat to
enthusiastic
personalities
works. It works for politi-
cal parties. It works for the
Seattle Seahawks. We are a
tribal society,” he said. “It
leads to fundraising success.
It doesn’t lead to solutions
on the ground.”
Conservation Northwest
reported revenues of almost
$2 million in 2013.
A narrowing gulf
Field, the cattlemen’s
group executive, said cattle
grazing near waterways has
been the biggest conflict
between ranchers and envi-
ronmentalists. Field said his
“chips are all in” on working
with the Washington Depart-
ment of Ecology to write
rules that cattlemen and con-
servation groups can accept.
The process includes lis-
tening to environmentalists,
he said.
“It think it’s valuable
for agriculture to hear their
perspective,” Field said.
“It’s not like it’s all been
wine and roses for sure, but
I think we’re moving in the
right direction.”
Gordon, the dairyman,
said farmers need to show
more people what they’re
doing, including providing
wildlife habitat. On the other
hand, Gordon said he doesn’t
blame anyone for being cau-
tious about opening up their
operations. “Anyone with an
attorney can sue anybody for
any reason, and they do,” he
said.
Gordon represents the
dairy industry in Olympia,
moving from meeting to
meeting to come up with pol-
icies that can be supported by
urban and rural legislators.
He said he’s optimistic the
gulf between environmental
and agricultural groups can
be narrowed through this
slow process.
“I can’t focus on the law-
suits because they give me
ulcers.”
‘I feel pretty confident that if we Backyard flocks have been infected
in Washington, Oregon and Idaho
challenge them, we will win’
DOL from Page 1
The first worker to sign
in can start picking berries
immediately, but the one at
the end of the line may have
to wait 15 minutes, he said.
Those 15 minutes would be
logged separately from the
time spent harvesting.
“Under this scenario, you
will be required to account
for each bit of those hours,”
Bernasek said. “How do you
track that?”
Growers must pay the min-
imum wage during periods of
time when workers are unable
to earn the piece rate because
it’s a requirement of the Mi-
grant and Seasonal Worker
Protection Act, or MSPA, said
Richard Longo, director of
enforcement for DOL’s west-
ern region.
When an employer tells
migrant workers they’ll be
paid the state minimum wage,
they must receive that rate
when they’re denied the op-
portunity to harvest crops or
perform other piece rate du-
ties, he said.
DOL had previously fo-
cused on ensuring that work-
ers are paid the federal mini-
mum wage of $7.25 per hour
under the Fair Labor Stan-
dards Act, Longo said.
Now that more farmers
are in compliance with the
FLSA, the agency can bet-
ter enforce MSPA, he said.
“It’s not a new position, in
a sense, it’s just a new em-
phasis on what the rules re-
quire.”
Bernasek said case law
does not require such a con-
voluted system for tracking
wages.
“I feel pretty confident
that if we challenge them,
we will win,” he said.
Even so, litigating with
the agency is not a desirable
process for farmers, which is
why the agriculture industry
should ask its congressional
delegations to press DOL on
the issue, he said.
Another possible ap-
proach — though it has not
been tested — is for farmers
to base hourly wages on pro-
ductivity, Bernasek said,
In other words, workers
who brought in more berries
per hour would be paid a
higher hourly wage, instead
of directly being paid a piece
rate.
It could be problematic
to communicate such a wage
scale, since workers may
not understand why people
are paid different hourly
wages, said Austin Chapin,
whose family grows cherries
and hazelnuts near Salem,
Ore.
Providing
productive
workers with a bonus above
the hourly rate may be a less
complicated approach, he
said.
The easiest solution
would be to reduce the
amount of down time for em-
ployees, if possible, Chapin
said. “It will make us have to
really minimize the amount
of time standing around.”
FLU from Page 1
this instance the highly con-
tagious and lethal virus had
been confined in the U.S. to
non-commercial flocks, wild
birds and captive falcons.
“We feared that at some
point it was going to end up
in commercial operations,”
USA Poultry and Egg Ex-
port Council President Jim
Sumner said.
Backyard flocks with
access to the outdoors and
in contact with disease-car-
rying wild birds have been
infected in Washington, Or-
egon and Idaho.
Low pathogenic bird
flu — less virulent than the
highly pathogenic strains
circulating in the West this
winter — was detected in a
Stanislaus County, Calif.,
quail farm last April.
The European Union and
Japan on Monday reacted to
the newest case by banning
poultry raised, processed
or shipped from California.
Many countries have already
banned poultry from Wash-
ington, Oregon and Idaho
and likely will now put Cali-
fornia on the list.
None of the West Coast
states are major poultry
producers for export, but
their ports provide access to
Asian markets.
Poultry exporters already
were struggling with port
slowdowns that have affect-
ed other commodities. Re-
strictions on shipping from
the West Coast will further
hamper the industry, Sumner
said.
The Port of Oakland is
particularly important for
poultry exports, he said.
“The thing that concerns
us is California is a tran-
sit center for the world,”
Sumner said. “You can’t fea-
sibly airfreight poultry.”
The Washington State
Department of Agriculture
on Tuesday lifted a quaran-
tine imposed in parts of Ben-
ton and Franklin counties
after two non-commercial
flocks were infected with
highly pathogenic bird flu.
The quarantine, which
was in place for 21 days,
restricted the movement
of eggs, poultry or poultry
products in the zone.
The avian influenza de-
tected in the two Benton
County backyard flocks in
December apparently did
not spread beyond those
two sites, according to
WSDA.
Veterinarians with the
U.S. Department of Agricul-
ture and WSDA visited ap-
proximately 1,800 premises
in the quarantine area and
tested samples from birds at
more than 70 locations. All
samples tested negative for
avian influenza.
Restrictions remain in
place in parts of Clallam
County, were a second quar-
antine was established after
a flock was confirmed in-
fected with the H5N2 avian
influenza virus on Jan. 16.