3A
THE DAILY ASTORIAN • MONDAY, OCTOBER 2, 2017
Judge declines to dismiss oysterman’s suit against state
Tillamook man
claims harm in
dairy pollution
‘The agency made the
decision to take away the
use of 250 acres of tideland
from the Hayes Oyster Co.
perpetually. ’
By MATEUSZ
PERKOWSKI
EO Media Group
TILLAMOOK — A Circuit
Court judge has refused to dis-
miss a lawsuit that alleges state
environmental regulators allow
pollution from dairies to harm
oyster harvests in Tillamook
Bay.
Attorneys for the state
Department of Environmen-
tal Quality argued the agency
cannot be held liable for the
adverse effects suffered by oys-
terman Jesse Hayes, president
of the Hayes Oyster Co.
According to Hayes’ law-
suit, the state incorrectly
assumes that local dairies aren’t
discharging fecal coliform bac-
teria into rivers that fl ow into
Tillamook Bay.
Nonetheless, bacteria lev-
els in the bay are so high that
Hayes is entirely prohib-
ited from harvesting oysters
from 250 acres of his plats
Thomas Benke
attorney for oysterman Jesse Hayes
Mateusz Perkowski/EO Media Group
An oysterman’s lawsuit
against the state over dairy
pollution can continue.
and faces frequent shutdowns
on 350 acres, according to his
complaint.
Hayes argues that insuffi -
cient state regulation consti-
tutes a public nuisance and an
unjust taking of his property
due to lost profi ts and reduced
plat values.
The
complaint
seeks
$100,000 in damages and an
order requiring the Department
of Environmental Quality to
strengthen its pollution regula-
tions in the area.
Without deciding the merits
of the case, Tillamook County
Circuit Judge Mari Garric Tre-
vino denied the state’s motion
to throw out the lawsuit and
ordered the agency to answer
Hayes’ allegations.
The ruling means that Hayes
has cleared an important fi rst
hurdle and may proceed with
the litigation.
“We get to prove what’s in
our complaint,” said Thomas
Benke, his attorney.
Arguments
During oral arguments
on Friday , the Department of
Environmental Quality claimed
that Hayes incorrectly targeted
the agency rather than the dairy
farmers who are alleged to be
the underlying source of the
problem.
Hayes makes the “errone-
Coast Guard evacuates burn victim
The Daily Astorian
The Coast Guard medeva-
ced a 38-year-old man from
a cargo vessel 174 miles
from the Columbia River
entrance Saturday.
The shipping agent of the
cargo vessel Tawa Arrow
called watch standers at Sec-
tor Columbia River in War-
renton and reported a crew
member with burns on his
legs and arms from boiler
steam.
The Coast Guard launched
an MH-60 Jayhawk helicop-
ter crew from Air Station
Astoria with a Life Flight
Network nurse aboard and
fl ew to the vessel. Because
of concerns with the distance,
the sector brought in a C-27
Spartan surveillance plane
from Air Station Sacramento
for support.
The Jayhawk hoisted the
injured crewman and trans-
ported him to the Astoria
Regional Airport, where he
was transferred to Life Flight
and taken to Legacy Emanuel
Medical Center in Portland.
Body of missing mushroom picker found
Associated Press
PORTLAND — Search-
ers have found the body of a
man who went missing in the
Tillamook State Forest.
Portland Mountain Res-
cue posted to Facebook
on Friday that the body of
Michael Lund had been
recovered from a ravine. The
Tillamook County Sheriff’s
Office confirmed to KPTV
that the body had been
found.
The 49-year-old man was
reported missing by a friend
Sept. 18 after he did not
return from picking mush-
rooms in the wilderness. The
sheriff’s office said at the
time that Lund did not have
supplies for an extended stay
in the forest.
ous assumption” that the state
unjustly deprived him of prop-
erty by failing to regulate his
neighbors strictly enough, but
inadequate regulation isn’t rec-
ognized as a government “tak-
ing” under legal precedents,
according to the Department of
Environmental Quality .
“The government is not
responsible for inaction,” said
Christina Beatty-Walters, the
department’s attorney. “That’s
not a situation the government
is responsible for.”
The lawsuit also attempts
an impermissible “collateral
attack” against state regulations,
which can only be challenged
through an administrative pro-
cess, said Beatty-Walters.
The state’s “total maximum
daily load” order for fecal coli-
form bacteria in the region
was enacted in 2001, so Hayes
missed a deadline to challenge
the action by 16 years, Beat-
ty-Walters said.
“They’re way too late,” she
said.
According to Hayes, the
complaint is valid because
it’s challenging the adverse
impacts that insuffi cient rules
have imposed on his oyster
operation, rather than attack-
ing the validity of the regula-
tions themselves.
“The agency made the
decision to take away the use
of 250 acres of tideland from
the Hayes Oyster Co. perpetu-
ally,” said Benke.
Hayes argues that the
Department of Environmental
Quality has unlawfully sanc-
tioned pollution, which is a
form of government taking.
The agency could restrict
pollution from dairies with
confi ned animal feeding oper-
ations or from municipal
wastewater, but it’s the act of
allowing excessive pollution
that Hayes is challenging in
court, Benke said.
While polluters received
notice of the agency’s regula-
tion 16 years ago, Hayes did
not and should still be allowed
to seek a legal remedy, he said.
“It fl ies in the face of funda-
mental due process,” he said.
Closely watched
The Oregon Dairy Farm-
ers Association is watching
the case closely because it
involves regulations affecting
farmers, said Tami Kerr, the
group’s executive director.
The lawsuit also implies
that dairies are polluters, she
said. “I’m frankly tired of that.”
Oregon is a national leader
in manure management, with
dairy farmers being regularly
inspected by the state Depart-
ment of Agriculture, Kerr said.
Faulty septic tanks, munic-
ipal wastewater and wildlife
feces all contribute to fecal
coliform bacteria in water,
which has been confi rmed by
the Department of Environ-
mental Quality , she said.
“Dairy is always the fi rst
thought when people talk
about pollution but DNA test-
ing has shown it’s broader than
that,” Kerr said. “There’s a
large human infl uence in that.”