January 13, 2017
CapitalPress.com
5
Supreme Court refuses to hear wetland case Cold nips at Washington cherry buds
By MATEUSZ PERKOWSKI
Capital Press
The U.S. Supreme Court
will not review a farmer’s
lawsuit challenging the US-
DA’s designation of a wetland
on his property in South Da-
kota.
Farmer Arlen Foster had
asked the nation’s highest
court to reconsider a ruling
by the 8th U.S. Circuit Court
of Appeals, which found that
USDA was allowed to declare
a wetland on the property
based on plants growing 33
miles away.
The Supreme Court’s re-
fusal to hear the case is a dis-
appointment for the Pacifi c
Legal Foundation, a nonprofi t
law fi rm that represented Fos-
ter and believes USDA has
too much leeway in declaring
wetlands.
Though the Foster lawsuit
has ended, the Pacifi c Le-
gal Foundation is optimistic
that “nonsensical” wetland
rules will soon pose less of a
burden for landowners, said
James Burling, the group’s di-
rector of litigation.
“I’m hoping the Trump ad-
ministration will be taking a
bottom-to-top look at wetland
regulation,” he said.
Properties can be dis-
qualifi ed from federal crop
insurance and other agency
programs if they are farmed
despite being designated by
USDA as wetlands, meaning
they have wetland soils, hy-
drology and plants.
In the Foster case, a one-
acre parcel was determined to
have wetland hydrology and
soils, but it lacked wetland
plants due to conversion from
its natural state.
The USDA compared the
property to a similar site 33
miles away to determine that
it contained wetland plants
and thus qualifi ed as a wet-
land.
The Fosters argued that
this method unfairly denied
them due process because
USDA decided on the site
without public input roughly
a decade earlier, but a federal
judge and the 8th Circuit held
that the agency reasonably in-
terpreted its regulations.
Pacifi c Legal Foundation
wanted the Supreme Court
to limit the deference with
which federal courts treat
agency interpretations of their
own rules, said Burling.
When
federal
agen-
cies interpret laws to create
their regulations, the pro-
cess is at least subject to no-
tice-and-comment procedures
that provide feedback, he
said.
If those regulations can be
freely interpreted without any
checks, though, it creates the
risk that agencies will write
regulations ambiguously to
maximize their fl exibility,
Burling said.
Frigid weather may help
farmers battle destructive bugs
By ERIC MORTENSON
Capital Press
Spotted wing drosophila
Your frozen fi ngertips may
not appreciate it, but the ex-
tended cold snap gripping the
Pacifi c Northwest through
the fi rst week of January may
actually do some good.
Oregon pest specialists
say it could reduce the pop-
ulation or at least delay the
onslaught of spotted wing
drosophila, or SWD, the fruit
fl y that can cause devastating
damage to raspberries, black-
berries, blueberries and other
small fruit crops.
“We’re very optimistic
that it will defi nitely im-
pact SWD and kill off a fair
amount,” said Tom Peerbolt,
founder and senior consultant
with Peerbolt Crop Manage-
ment. “From that viewpoint
it’s a very good event. We’re
killing a bunch of them off
and that’s good.”
Peerbolt said SWD almost
exclusively over-winter as
adult fl ies, making them sus-
ceptible to cold. While they
can take refuge, an extend-
ed run of cold temperatures
can knock down their num-
bers, he said. The fl ies can
go through a dozen breed-
ing cycles per year, and the
cold may stall the population
buildups that lead to heavy
damage, Peerbolt said. Even
gaining a week or 10 days
would help mid-season har-
vests, he said.
Peerbolt said SWD love
caneberries, and growers are
planting fewer late-season
varieties in an attempt to
avoid some damage. SWD
populations build over the
summer, so the earlier farm-
ers can harvest, the better.
Jim Labonte, an entomol-
ogist with the Oregon De-
partment of Agriculture, said
planting earlier berry variet-
ies is a “really good strategy”
in the fi ght against spotted
wing drosophila. “I’m glad to
hear that,” he said. “Toward
the end of the year, the popu-
lation gets to be tremendous.
I think that would help.”
Otherwise, Labonte said
he’s not sure the recent cold
Oregon weather will have
much effect on SWD or an-
other major pest, the brown
marmorated stink bug, which
damage hazelnuts and feed
on a wide variety of other
crops.
Both of them live in re-
gions of the U.S. that are far
colder than the Willamette
Valley, he said. “I’m uncer-
tain of the threshold of severe
cold that’s suffi cient to really
knock them down,” he said.
“Even if it does, both of
these things can reproduce
very effi ciently,” he said.
“They may have a slow start
in spring, but by mid-season
there will be plenty of them
around.”
He said stink bugs pro-
duce far fewer generations
of offspring per season than
SWD, but are “remarkably
tough creatures” and very
good at sheltering themselves
from the cold.
Spotted wing drosophi-
la are native to Asia but ar-
rived on the West Coast about
2008. They are unusual fruit
fl ies in that they attack ripe
• A type of “vinegar fly”, its ability to feed and lay eggs on ripening fruit
makes it a significant threat to Pacific Northwest growers.
• Adult spotted wing drosophilas
are small with red eyes and
pale yellowish-brown bodies.
Spotted
wings
• Males have a dark spot on the
tips of their wings. They also
have two dark bands on their
front legs.
• Females lack the distinctive
dark spot on their wings. Look
for a large, serrated ovipositor
protruding from the abdomen.
Ovipositor
Female
Actual
size
Male
• For more information
2-3 mm
on monitoring, preventative,
cultural and chemical controls, go to: spottedwing.org
Sources: Oregon State University Extension Service
or ripening berries and fruit;
most fl ies are attracted to
over-ripe or rotting produce.
The female SWD has a ser-
rated-edged ovipositor that it
uses to cut through the berry
surface and lay eggs inside.
The developing larvae feed
on the fruit from the inside,
turning it into a gooey mess
Alan Kenaga/Capital Press
that cannot be used commer-
cially.
Common pesticides work
against them, but require
additional sprayings and
cost to growers. In addition,
prolonged pesticide use may
lead to the flies developing
resistance to it, Peerbolt
said.
By DAN WHEAT
Capital Press
Growers used heaters and
wind machines in early morn-
ing hours in some Central
Washington orchards the fi rst
week of January to ward off po-
tential bud damage from freez-
ing temperatures.
Concern appeared limited
to Rainier and Rainier-type
cherry varieties and soft fruits
including apricots and peach-
es. Winter coldness developed
gradually enough over the past
couple of months to give most
fruit trees and wine grapes good
hardiness, growers said.
Single-digit lows were re-
corded throughout the region
several mornings accompanied
by daytime highs in the teens
and 20s.
It was minus 12 in Toppen-
ish the morning of Jan. 5, mi-
nus 10 in Wapato, minus 11 in
Tonasket, minus 6 at Brewster
Flats, minus 2 in Wenatchee,
minus 3 in Ephrata, minus 4 in
Ellensburg and minus 5 in Pas-
co, according to the National
Weather Service and Washing-
ton State University AgWeath-
erNet. Most readings were
above zero that morning with 2
in Yakima and 5 in Chelan be-
ing typical.
Carlos Soto, supervisor
at CRO Orchard south of
Wenatchee, owned by Zirkle
Fruit in Selah, said heaters and
wind machines were used to
try to protect cherry buds some
of which were damaged in a
mid-December freeze.
B.J. Thurlby, president of
Northwest Cherry Growers in
Yakima, said no growers have
told him that any signifi cant
portion of their crops are in
danger. A lot of fi eldmen say
trees have lots of buds so they
may not be so worried about
freezes, he said. Most varieties
are safe to minus 8 to minus 12,
he said.
Harold Schell, director of
fi eld services at Chelan Fruit
Cooperative in Chelan, said
bud samples tested in freeze
chambers have shown buds
of all types of tree fruit from
Wenatchee north, generally in
good shape.
Pears are most hardy with
apples a close second and cher-
ries and soft fruit most suscepti-
ble, Schell said. Young trees are
Dan Wheat/Capital Press
Young apple trees near Pangborn Memorial Airport in East
Wenatchee, Wash., Jan. 4, where the temperature was zero the
next morning. Wind machines like this one were used elsewhere to
try to warm cherry buds. Horse Lake Mountain, aka Twin Peaks, in
background.
also more vulnerable, he said.
Mike Omeg, a cherry grow-
er in The Dalles, Ore., said
his coldest temperature was 1
degree which is manageable
because of good hardiness.
He said he’s not aware of any
growers there using heaters or
wind machines. He said he’s
holding off pruning until it’s
above 20 degrees for worker
comfort and effi ciency.
Tim Smith, WSU tree
fruit specialist emeritus in
Wenatchee, said trees had a
good, gradual acclamation to
cold this season and should be
OK.
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