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August 26, 2016 CapitalPress.com 3 Farmers seek legal fees from GMO ban supporters By MATEUSZ PERKOWSKI Capital Press GRANTS PASS, Ore. — A judge here is considering whether parties that unsuccess- fully defended a legal challenge to Josephine County’s GMO ban should pay the plaintiff farmers’ attorney fees. In May, farmers Robert and Shelley Ann White convinced a judge the county’s GMO ban, approved by voters in 2014, was pre-empted by a state law passed the prior year. Supporters of the ban — Oregonians for Safe Farms and Families, a nonproit, and Siskiyou Seeds, an organic company — intervened in the lawsuit to defend the county ordinance. Now, the plaintiff farmers are seeking to recover $29,205 in attorney fees from the inter- venors for unnecessarily com- plicating the litigation. “All we want is compen- sation for time that we had to waste,” John DiLorenzo, at- torney for the growers, said Wednesday during a hearing on the matter. The intervenors unsuccess- fully argued that Oregon’s seed pre-emption law was uncon- stitutional because lawmakers created a “regulatory void” by not imposing rules on GMO production. DiLorenzo said this wasn’t an objectively reasonable argu- ment because the intervenors could point to no legal prece- dent in Oregon, but instead re- lied on a ruling from Ohio. “It had absolutely no bear- ing on Oregon law,” he said. Legal questions over state pre-emption of local ordinanc- es have long been settled by previous court rulings, he said. “Ignoring them would upset years of decisions and throw state pre-emption law into complete disarray,” DiLorenzo said. OSFF and Siskiyou Seeds countered that the plaintiffs are not allowed to recover attorney fees and are simply trying to send a “chilling message” to prevent similar defenses of lo- cal ordinances elsewhere. The intervenors’ arguments were plausible even if they ul- timately didn’t persuade the judge, and attorney fee sanc- tions can only be awarded when claims are entirely with- out legal merit, according to USDA projects 38,000-ton hazelnut crop Some farmers expect production to be higher By MATEUSZ PERKOWSKI Capital Press Mateusz Perkowski/Capital Press Gene Pierce, agricultural statistician with the USDA, prepares to collect hazelnuts as part of the agency’s annual crop forecast. Changes in the hazelnut industry have made such statistical analyses more challenging. hazelnut industry isn’t sure exactly how many Barcelona trees aflicted with eastern il- bert blight are being removed and how many new dis- ease-resistant Jefferson trees are reaching maturity, he said. “We’ve got two curves and we don’t know where they meet,” said Rodakowski. “We’ve had a lot of plantings going in, but they haven’t got- ten to the production stage as quickly as we’d thought.” The trees in Rodakowski’s orchard near Vida, Ore., ap- the intervenors. “Just losing an argument doesn’t rise to that level,” she said. The plaintiffs, whose law- suit is supported by biotech interests, should not be allowed to instill fear about making ar- guments that challenge the sta- tus quo, she said. “We want to be able to en- sure that safe space remains open in our court system,” Wischerath said, paraphrasing a court ruling. The fee request is also ex- cessive because their lawyers are claiming to have worked unreasonably long hours at higher-than-normal rates, she said. “Those rates are literal- ly off the chart for this area,” Wischerath said. Both OSFF and Siskiyou Seeds would be inancially dev- astated by the proposed award, which would discourage sim- ilar public policy litigation in other counties, they claim. “This battle may be uphill but these claims are in no way frivolous and sanctions should not be applied,” said Dolan. Josephine County Circuit Court Judge Pat Wolke asked DiLorenzo, the plaintiffs’ attor- ney, whether it would be wise to postpone the sanctions ques- tion until the lawsuit is resolved on appeal. DiLorenzo said any ruling on attorney fees would likely be consolidated with the over- all appeal. Wolke has taken the matter under consideration and said he will issue a written ruling. APHIS, researchers continue GE wheat probe pear to be generating healthy yields, but he owns smaller acreage than some hazelnut growers and has been able to “stay on top of pruning” to keep EFB at bay, he said. The fungal pathogen also infected orchards in the area later than other portions of the Willamette Valley farther to the north, Rodakowski said. Rodakowski agrees with USDA that some nuts haven’t fully illed shells this year. “I have seen what they’re talking about, and my spec- ulation would be a lack of moisture,” he said, adding that newer, irrigated orchards wouldn’t have the problem. The drier, warmer growing season is likely to result in the harvest beginning in mid-Sep- tember rather than the typical early October, he said. Crop estimates provided by farmers to the Northwest Hazelnut Co., a processor based in Hubbard, are gen- erally higher than the 38,000 tons projected by USDA, said Jonathan Thompson, the com- pany’s CEO. “I can tell you the grow- ers we’re talking to are much more optimistic than that,” Thompson said. While the USDA’s fore- cast is helpful, processors ultimately wait until the crop is being harvested before making irm commitments to buyers, he said. “It’s just one piece of the puzzle.” By MATTHEW WEAVER Capital Press USDA researchers con- tinue to investigate 22 genet- ically engineered wheat plants found two months ago in a fallow Washington state ield. No conclusions have been reached, said Animal and Plant Health Inspection Ser- vice spokesman Richard A. Bell. Laboratories at two USDA agencies continue to analyze the test results of samples taken from the incident, Bell said. Researchers are also ex- amining wheat production in the area to look for the pres- ence of glyphosate-resistant wheat. Wheat breeders and genet- icists continue to look for sim- ilar patterns between the two previous discoveries of gly- phosate-resistant wheat and the most recent occurrence. “We continue to examine APHIS records related to au- thorized ield tests of MON 71700 looking for patterns that may provide insight into how these volunteers came to be growing in the fallow Capital Press ile The investigation into geneti- cally engineered wheat found in a fallow Washington ield continues. ield,” Bell said. The investigations into the previous incidents, which took place in 2013 in Oregon and in 2014 in Montana, did not yield deinitive determi- nations of how the plants got there. “Over a decade had passed since the last authorized ield trials,” Bell said. “Any sug- gestions about how the volun- teers came to be growing on that single ield in Oregon are speculation.” Japan temporarily deferred all new purchases of Western white wheat, a blend of soft white wheat and subclass club wheat produced in the Pacif- ic Northwest, until tests were in place to check for MON 71700 and MON 71800, the types of Monsanto wheat dis- covered in Washington, Ore- gon and Montana. Steve Mercer, vice presi- dent of communications for U.S. Wheat Associates, said Japan has not lifted the re- striction. “We assume their internal work on their test protocol continues,” Mercer said. South Korea restricted U.S. wheat for about four days as it began testing. The country recently tendered for U.S. wheat, including soft white, Mercer said. All samples taken from the Washington farmer’s crop were found to be negative for GE material and it was allowed to enter commerce. The agency has not identiied the farmer. APHIS did not conduct what it called a formal inves- tigation into the incident. “This is a minor incident involving only 22 volunteer plants,” the agency stated. “USDA routinely handles these types of incidents with- out formal investigations.” 35-1/#04X Oregon farmers are pro- jected to reap 38,000 tons of hazelnuts this year, which would be a substantial in- crease over 2015 but less than some had expected. The USDA’s National Ag- ricultural Statistics Service has forecast the crop will be 22.5 percent larger in 2016, based on statistical surveys conducted earlier this sum- mer. Although the average number of nuts collected per tree in the survey was 224, up from 186 last year, they weighed slightly less and a bit more of them were defective, according to the forecast. Gene Pierce, a NASS stat- istician, said he noticed more space within the shells than during past surveys. “The kernel hadn’t illed to the entire capacity of the shell and it had already stopped de- velopment,” Pierce said. Garry Rodakowski, chair- man of the Oregon Hazelnut Commission, said he was expecting a larger forecast- ed crop of roughly 42,000- 43,000 tons, but that’s based only on observation. Predicting the actual har- vest is tough because the their attorneys. The authority of local gov- ernments to set their own rules should be revisited by higher courts in Oregon, which the in- tervenors are pursuing through an appeal, said Stephanie Dolan, their attorney. “There are instances where the law is shaken up and changed,” Dolan said. Because Josephine Coun- ty’s GMO ban presented a novel legal question, the in- tervenors were allowed to cite case law from Ohio to argue Oregon’s pre-emption statute was unconstitutional, the inter- venors claim. Sanctions of attorney fees can only be awarded when a party acts in bad faith, but that wasn’t the case here, said Me- lissa Wischerath, attorney for Bag needs? Bag solutions! SMITH PACKAGING YOUR MAIN SUPPLIER FOR: • Polyethylene Bags • Polypropylene Bags • Paper Bags • Bulk Bags • Stretch Films • Hay Sleeves • Mesh Produce Bags • Plastic Pallet Covers • Bag Closure Products • General Warehouse Supplies Competitive pricing! Great quality products! Service you expect and trust! • Halsey, Oregon: 541-369-2850 • Eastern Washington, Ed Kropf: 509-936-2652 or ed@smith-packaging.com www.smithpackagingservices.com 35-1/#5 35-1/#04x