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.”
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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
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