Image provided by: University of Oregon Libraries; Eugene, OR
About Capital press. (Salem, OR) 19??-current | View Entire Issue (Feb. 23, 2018)
14 CapitalPress.com February 23, 2018 EPA aims to avoid jury in Clean Water Act lawsuit Washington Government asks judge to declare farmer liable for alleged violations By MATEUSZ PERKOWSKI Capital Press EUGENE, Ore. — Rath- er than convince a jury, the U.S. Environmental Protec- tion Agency wants a federal judge to declare that an Ore- gon farmer violated the Clean Water Act by stabilizing a riverbank. Because the evidence “conclusively” shows large rocks were unlawfully dis- charged into the North San- tiam River, the judge should proclaim the farmer liable instead of referring the matter to a jury, according to EPA. The farmer, Bill Case of Linn County, Ore., argues a jury trial is necessary because it’s “hotly disputed” that his erosion-control activities ran afoul of the Clean Water Act. Attorneys representing Case likely expect he’d be a sympathetic defendant to jury members. The key question in the case is whether Case depos- ited large rocks under the river’s “ordinary high water mark,” below which the fed- eral government has Clean Water Act jurisdiction, said Kent Hanson, an attorney representing the EPA. The government’s experts have determined the farm- er worked below that level based on historical photo- graphs and LIDAR — or Light Detection and Ranging — a remote sensing technol- Capital Press File Farmer Bill Case of Linn County, Ore., points to the section of the North Santiam River where the Environmental Protection Agency claims he violated the Clean Water Act by stabilizing the riverbank. The Army Corps of Engineers and the Oregon Department of State Lands approved the work, according to Case. ogy, Hanson said during Feb. 21 oral arguments in Eugene, Ore. “The defendants have questioned that but have presented absolutely no evi- dence,” Hanson said. “They have no expert testimony.” Crystal Chase, the farm- er’s attorney, acknowledged the defendant hasn’t pro- duced an expert witness, but said that’s not necessary to establish a controversy to be decided upon by a jury — rather than a “summary judg- ment” ruling by a judge. “Expert testimony is not the only way to create a fact dispute,” Chase said. The federal government hasn’t sufficiently shown that the entirety of Case’s bank stabilization project fell be- low the ordinary high water mark, she said. “There has not been a ju- risdictional determination,” Chase said. “The government has not met its burden of proving where it is.” If the EPA convinces the judge to rule that Case was liable, the judge would pro- ceed to determine “remedies” for the violations. Case could be fined up to $37,500 per day of violation dating back roughly nine years. Attorneys for the EPA filed a lawsuit against Case two years ago, claiming that in 2009 he placed riprap and other fill materials in an 835-foot-long trench along the river without the required CWA permit. During the oral argu- ments, U.S. Magistrate Judge Thomas Coffin appeared skeptical the farmer wouldn’t realize he was working below the ordinary high water mark. “It’s not all that difficult of a concept to grasp if you live along the river,” Coffin said. Case argued the govern- ment’s lawsuit should be blocked because he was rely- ing on the advice of another federal agency — the U.S. Army Corps of Engineers — in carrying out the stabiliza- tion project. However, the EPA argues the farmer can’t rely on this doctrine — known as “equi- table estoppel” — because government officials didn’t purposely mislead Case, even if he’s accurately represent- ing their instructions. “Does all that add up to a deliberate lie? The answer is no,” said Hanson. “It does not add up to a pattern of false promises.” Case countered that rely- ing on “repeated, affirmative statements” is enough of an injustice to invoke “equitable estoppel” and block the law- suit. It’s not necessary to show the government intentionally lied, said Chase. “That’s not the standard.” Apart from the original project in 2009, the EPA alleges that Case built an 800-foot-long dike along the river in 2012 and then ex- tended it by 170 feet the fol- lowing year, also without the proper permits. Altogether, the EPA claims he deposited more than 20,000 cubic yards of fill material under the river’s “ordinary high water mark.” According to Case, flood- waters had washed away roughly 2 acres of a field ad- jacent to the river, prompting him to undertake the original stabilization project in 2009 with the consent of the U.S. Army Corps of Engineers and Oregon’s Department of State Lands. As for the activities in 2012 and 2013, Case argues that he was simply repairing dikes that had been built by the U.S. Army Corps of En- gineers more than a half-cen- tury earlier, which doesn’t require CWA permitting. However, the EPA claims he doesn’t qualify for the maintenance exemption be- cause the dikes he rebuilt were more than twice as tall and three times wider than any pre-existing structure. “What’s there is much bigger than what was there before,” said Hanson. UI ag dean solicits support for dairy research center By SEAN ELLIS Capital Press BOISE — The Universi- ty of Idaho’s ag college dean told farm industry members that UI’s proposed $45 mil- lion dairy research center would benefit all agriculture and its long-term impact will be profound. Fundraising goals for the Idaho Center for Agriculture, Food and the Environment (CAFE) need to be met by June, and he encouraged them to consider helping the project financially. The project is a heavy lift but the university is making good progress toward meet- ing the fundraising goal, Michael Parrella, dean of UI’s College of Agricultural and Life Sciences, told Food Producers of Idaho members Feb. 7 during their weekly meeting. UI received $10 million from the Idaho Legislature for CAFE last year and hopes Sean Ellis/Capital Press File Michael Parrella, dean of the University of Idaho’s College of Agricultural and Life Sciences, says research at the proposed Center for Agriculture, Food and the Environment will impact all sectors of Idaho agriculture. to obtain $5 million in state funds next year. UI also sold some of its assets to raise $15 million for the project and needs to raise $10 million from outside sources. Realistically, that $10 million needs to be lined up by June, Parrella said. “I think we’re making good progress and we’re go- ing to do that,” he said. “2018 is a critical year in terms of the fundraising component, (and) we are moving forward very aggressively with fund- raising.” He said the university needs farm groups’ moral support and added, “It would be nice to think there is some financial support behind that as well.” Parrella said dairy re- search will be a big focus of CAFE, but the facility will also conduct research that will impact every aspect of agriculture. “CAFE is dairy centric but it’s a lot more than just dairy,” he said. A central theme of the center will be water efficien- cy and protection and “water is a central theme to agricul- ture everywhere,” he said. Parrella said CAFE will conduct dairy-related re- search on lagoons, nutrient management and surface and water management, which have been the subject of re- cent lawsuits. “Those issues are not go- ing to go away. CAFE will di- rectly address those issues,” he said. The center will also con- duct research on forage cropping and agronomy, soil health and fertility, pro- duction management, food safety, labor management, animal genetic improve- ment, precision agriculture, commodity risk management and food science and manu- facturing. “It’s relevant to more than just dairy. It’s much, much broader than that,” Parrella said. “There is something in CAFE for everyone.” Rich Garber, director of governmental affairs of the Idaho Grain Producers As- sociation, encouraged fellow FPI members to consider how they can support the center. “I really think this is a ris- ing tide that can lift all of our boats,” he said. “This is an opportunity we are not going to have again. I hope we take it very seriously.” While addressing the House Agricultural Affairs Committee Feb. 9, Idaho Barley Commission Admin- istrator Kelly Olson encour- aged lawmakers and the ag- riculture industry to support CAFE. Panel discusses hurdles to passing new farm bill Consumer group backs states in egg, meat lawsuits By CAROL RYAN DUMAS Capital Press By CAROL RYAN DUMAS Finding funding for cur- rent farm bill programs will be the biggest factor in up- coming debates over the new legislation, Craig Jagger, for- mer chief economist for the House Agriculture Commit- tee, says. He took part in a forum last week that was sponsored by the Farm Foundation, an agricultural policy institute. Jagger was one several pro- fessionals involved in delib- erations over past farm bills who discussed the issues in play for the next farm bill. The Congressional Budget Office’s baseline for agricul- ture is the only certain source of funds for the next farm bill, and it’s not enough to fund all the current farm bill pro- grams, he said. Thirty-seven current pro- visions and programs have no baseline funding after 2018. Not only is the budget situa- tion tighter for this farm bill, but so are the budget rules. The House and Senate agri- culture committees will be lucky if they can maintain current funding, he said. Patrick Westhoff, director of the Food and Agricultural Policy Research Institute at the University of Missouri, Capital Press said one of the biggest is- sues is whether lawmakers can find a compromise on the Supplemental Nutrition As- sistance Program that would pass. SNAP is seen as a key to gaining farm bill support from urban members of Congress. Joe Outlaw, co-director of the Agricultural and Food Policy center at Texas A&M University, said uncertainty over current events will also be a big factor. Trade relations with China are high on the list. Renego- tiation of the North American Free Trade Agreement, im- migration reform, welfare re- form and the primary and No- vember elections could also divert congressional attention, he said. Farmer and former Indiana Farm Bureau President Don Villwock — who also served as a state executive director of the Agricultural Stabilization and Conservation Service and a liaison to former U.S. Sen. Richard Lugar — said politics are going to be the biggest factor in the current highly partisan environment. Crop insurance is the No. 1 topic in the heartland, and farmers are hearing all kinds of stories of what might hap- pen to crop insurance, he said. “We are extremely, ex- tremely nervous,” he said. USDA is predicting farm income will go down 6.7 percent this year and be the lowest since 2006. Farmers growing many commodities are struggling with breakev- en or below breakeven pric- es, and that makes bankers nervous. Bankers are already struggling to make cash flows work for farmers, and crop insurance is not voluntary in that equation, he said. The Center for Consum- er Freedom has filed amicus briefs with the U.S. Supreme Court, imploring the justices to hear two lawsuits chal- lenging laws in California and Massachusetts that hin- der sales of eggs and meat products from other states. The center believes the cases are important because the California and Massa- chusetts laws are unconsti- tutional, said Will Coggin, CCF managing director. California banned the sale of conventionally raised eggs in 2015, follow- ing a successful 2008 ballot initiative outlining housing standards for laying hens that would provide more space than conventional practices. In December, Missouri and 12 other states filed a motion for permission to file a complaint against the ban in the Supreme Court. The complaint challenges California’s attempt to dic- tate the manner of agricultur- al production in other states, increasing costs to egg pro- ducers and consumers. It also cites increased costs to other states whose agencies such as schools and prisons buy eggs and to state-owned egg-production facilities. A similar motion was filed with the Supreme Court by Indiana and 12 other states against Massachusetts in its attempt to dictate con- ditions of housing for poul- try, hogs and calves in every other state. Massachusetts voters passed a ballot measure in 2016 that bans the sale of conventionally produced eggs, pork and veal in the state beginning in 2022. The complaint against the state, also filed in December, cites Massachusetts’ attempt to impose regulatory stan- dards on the entire interstate market for eggs, pork and veal. Both complaints contend the restrictions violate the interstate commerce clause of the Constitution. “California and Mas- sachusetts shouldn’t get to dictate how farmers in Iowa, North Carolina or any other state care for their animals,” Coggin said. Animal-care decisions should be made by farmers and veterinarians, not at the ballot box, he said. House bill calls for counseling for farmers By DON JENKINS Capital Press OLYMPIA — One day be- fore the USDA predicted farm income will slump in 2018, the Washington House budget committee voted unanimous- ly to study giving farmers and farmworkers free mental health counseling. The timing was coinciden- tal, but the events are related. Farm advo- cates say fail- ure haunts the industry and contributes to a high suicide rate. “What you J.T. Wilcox have in the farming world are people that are deeply committed,” said Rep. J.T. Wilcox, a Yelm Re- publican with a farming back- ground. “They are people that perhaps have a tradition of not asking for a lot of help and not being interested in a lot of talk. But it is super high stress, and you have the unusual weight of generations on your shoul- ders,” Wilcox said he introduced House Bill 2671 after reading a story about farmer suicides in the Guardian newspaper. His bill would create a task force to study providing coun- seling statewide. As a test, the state would contract for coun- seling services in one Western Washington county. House Health Care and Wellness Committee Chair- woman Eileen Cody, D-Seat- tle, said it was “a bit shocking” to learn a study by the Centers for Disease Control and Pre- vention found farmers, loggers and commercial fishermen have the highest suicide rate among all occupations. “I think it’s a great bill,” she said. The Appropriations Com- mittee advanced the bill to the full House Feb. 6. The next day, the USDA forecast that farm profits this year would drop by 6.7 percent to the low- est level since 2006. Washington State Dairy Federation policy director Jay Gordon said there was pro- gram a little more than a de- cade ago to provide farmers with counseling. The program ran out of money after about 3 1/2 years, he said. “As we’re seeing commod- ity prices today also getting fairly low, I think the timing on this bill is very good,” Gor- don said. The CDC survey cited in the bill was released in 2016. It looked at about 12,300 sui- cides in 2012 in 17 states. Washington was not one of the states, though Oregon was. Idaho and California also were not included. The study sorted victims into 22 occupational catego- ries. Farming, fishing and for- estry formed one category. The suicide rate for that group was 84.5 deaths per 100,000 work- ers. The victims were over- whelmingly male. The next highest suicide rate was for workers in con- struction and extraction indus- tries such as mining, with 53.3 suicides per 100,000 people. The CDC report speculat- ed that factors contributing to suicide among farmers could include social isolation, poten- tial for financial losses, barri- ers to and unwillingness to seek counseling, and access to lethal means of suicide. The CDC noted the lim- itations of the study. The 17 states are not representative of the entire nation, and in 6 per- cent of the cases, the victims’ occupations couldn’t be deter- mined. A forthcoming study on 2014 suicides in 32 states could provide more insight, according to the CDC. It won’t be known until March whether House and Senate budget writers will fund Wilcox’s proposal. The Health Department estimates the bill would add $485,000 to the current budget. The House and Senate budget committees are advancing more bills than can possibly be funded.