PORTLAND, Ore. (CN) – A federal judge appeared sympathetic Friday to an Oregon oyster farmer who claims his livelihood is endangered by the state’s failure to regulate fecal coliform bacteria pollution from nearby dairy farms.
Six major rivers feed Tillamook Bay, whose 8 square miles and have hosted oyster farms for more than 150 years. But for more than a decade, Hayes Oyster Company says, it has struggled to stay afloat, though it owns 600 acres of prime oyster habitat in the bay’s fertile tidelands.
That’s because two of the major economic forces in the small coastal community of Tillamook Bay, directly west of Portland, are pitted against each other.
Dairy farmers have to dispose of cow manure somehow, and they need healthy pastures for the cows to graze. So the U.S. Department of Agriculture issues permits that allow Tillamook County dairy farmers to spray “big guns” of liquefied cow manure on their fields.
Hayes Oyster Co. claims the permits let dairy farmers ruin the bay’s oyster habitat.
The Oregon Department of Environmental Quality regulates the shellfish harvest in the bay under the Clean Water Act. For the past 15 years, it has closed 250 acres of Hayes’ oyster plats year-round, because heavy runoff from the dairy pastures has caused increasingly high levels of fecal coliform in the bay.
For more than a decade, the agency has seasonally closed another 350 acres of Hayes’ oyster plats for the same reason.
So during the wet winter months Hayes can’t harvest any oysters at all.
In October 2016, Hayes Oyster sued the Oregon Department of Environmental Quality and its Interim Director Richard Whitman, claiming they created a public nuisance by letting dairy farmers ruin the bay’s shellfish habitat. Hayes called it an unjust taking, in violation of the Oregon and U.S. Constitutions.
At the Friday hearing, attorneys argued over the government’s request for dismissal.
But first, there were some basics to get out of the way.
“I think we’re talking about cow poop: That would be about 14 organisms in about 3.4 oz of water, am I right?” U.S. Magistrate Judge John Jelderks asked.
“I would concur, and add that it’s about equivalent to one shot of Russian vodka,” replied Tom Benke, attorney for Hayes Oyster Company.
Oregon Department of Justice attorney Christina Beatty-Waters said the case should never have been filed against the Oregon Department of Environmental Quality. She said Hayes should have sued the people responsible for harming its business: Tillamook dairy farmers.
“The claims that are brought here really ought to be directed toward the parties that are causing them harm, which apparently here is the dairy farms,” Beatty-Waters said. “So if they believe the dairy farms are causing them harm, that’s who they should sue.
“The court hasn’t recognized these claims when they’re essentially saying to the government: You haven’t regulated my neighbor enough, that it’s the government’s fault somehow that it hasn’t installed enough regulation.”
Jelderks was not persuaded.
“Wouldn’t the dairy farmers’ permits from the Department of Agriculture go a long way to insulate them from liability?” he asked.
“Perhaps,” Beatty-Waters replied. “But there are several avenues they have to challenge those orders. And they haven’t used those.”
Benke said the dairy farmers were hiding behind their permits, and that the government agency that issued them was tasked with the difficult-to-impossible impossible job of regulating the conflicting needs of the dairy and shellfish industries.
“There’s an inherent conflict of interest in the state system and a lack of accountability, frankly,” Benke said. “You see, what’s going on out there is the farmers claim they are properly applying manure under the regulations. But you can’t spread it all over the fields like that and not have it run into the river.
“Fecal coliform is not a nutrient. It washes off the fields predictably in the winter and in the spring. And those fields are tiled. The feds paid in 1980s to put in French drains that created superhighways for fecal coliform to enter the waterway.”
Beatty-Waters said there is a second reason for Jelderks to dismiss the case. She said the federal Clean Water Act is, in effect, a state program because individual states, not the federal government, are responsible for setting regulations to enforce it.
“States develop, enforce and administer permits and water quality standards,” Beatty-Waters said. “This is really a state program run by the State of Oregon and we think it would disturb the state-federal balance of authority for the court to exercise federal jurisdiction here.”
Benke countered that state judges might not be politically able to issue a ruling that could hurt the county’s powerful dairy lobby.
“I do not want to put this question to a state judge,” Benke said. “I don’t care how honorable that state judge is, because he’s going to have to make a decision that puts considerable economic burden on that community. Elected judges are subject to pressures. I mean no disparagement. If I am out of order, let me know.”
Jelderks did not answer. But he said he was sympathetic to oyster farmers, calling it a case of “the little guy getting squeezed out by a whole lot of cow poop, essentially.”
Jelderks said he would likely issue a ruling in about two weeks.