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EPA and Army Corps Attempt to Clarify Clean Water Act Jurisdiction

March 26, 2014

Yesterday, March 25, 2014, the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers jointly released a proposed rule to clarify what constitutes “waters of the United States” for purposes of Clean Water Act jurisdiction. Due to a series of lawsuits and Supreme Court decisions, determining which upstream waters fell under Clean Water Act protections became so confusing and uncertain that stakeholders and the public requested a rulemaking to clarify the issue.

The EPA’s press release states that the definition in the proposed rule is consistent with the Supreme Court’s narrow reading of the Clean Water Act jurisdiction. Generally, apart from the more obvious protected waterways (e.g. navigable rivers and streams, interstate waters, territorial seas), the protections extend to:

  • Impoundments of a traditional navigable water, interstate water, the territorial seas or a tributary;
  • Tributaries of traditional navigable water, interstate water, the territorial seas or impoundment (including perennial, intermittent, or ephemeral waterways and waterways that at some point flow through a culvert, pipe, etc.);
  • All waters, including wetlands, adjacent to (i.e. integrally linked to chemical, physical or biological functions of) a traditional navigable water, interstate water, the territorial seas, impoundments or tributary; and
  • Other waters, including wetlands, that when evaluated on a case-specific basis, have a “significant nexus” to a traditional navigable water, interstate water or the territorial seas either alone, or in combination with other similarly situated waters, including wetlands.

“Significant nexus,” as it relates to this last category, means that a water, alone or in combination with other similarly situated waters in the region, significantly affects the chemical, physical, or biological integrity of the traditional navigable water, interstate water, or the territorial seas. The EPA and Army Corps are specifically requesting comments that might help streamline this analysis to avoid or limit case-specific assessments.

Existing exemptions and exclusions for agriculture remain in place in the proposed rule. An interpretive rule, prepared in coordination with U.S. Department of Agriculture, ensures conservation practices that protect or improve water quality will not be subject to Section 404 dredge-and-fill permits.

Early responses to the proposed rule appear to be varied. Some, including the American Farm Bureau Federation, believe it has expanded federal jurisdiction over the nation’s water. Others think it will provide positive economic impact by better protecting headwaters and providing clarity. Given the mixed response, it is likely the proposed rule will undergo additional edits before it is finalized.

For additional details regarding what the proposed rule does and does not do, see the EPA website on “Waters of the United States.” Also available for review on that website is a pre-publication copy of the 371-page proposed rule.

If you have any questions, please contact the author of this article, Kate Moore at KMoore@dunncarney.com.

Future of the West: Less Snow, More Drought?

March 7, 2014

California’s current drought could possibly be the worst in modern times. In response to this water crisis, California’s Governor, Jerry Brown, signed legislation last weekend to provide $687 million in drought relief. In addition to providing immediate relief, the legislation is also targeted at efforts to make more water available in the future through storm water recapturing, expanding the use of recycled water, better management of groundwater storage, and water conservation measures. It also includes a program to deal with contaminated groundwater, which will increase water availability.

Articles in the LA Times and Reuters provide further details on the California legislation.

Like our neighbor to the south, agriculture plays a large role in Oregon’s and Washington’s economies. While this is by no means the first time California has seen drought, climate change models predict a continuous decrease in winter snow pack throughout the west, which means less water is available to use during the summer, when demands are highest. The Oregon Climate Change Research Institute recently released a report on the impacts of climate change in the Northwest, which can be found here. That report indicates that “as snow accumulation diminishes, spring peak flows shift earlier, winter flow increases, and late-summer flow decreases,” meaning that “dry years are drier everywhere.” Decreased snowpack and increased drought will inevitably impact agriculture and other water resource users.

To address these concerns, Oregon’s legislature passed SB 839 in 2013. This bill, which I spoke about at Dunn Carney’s Ag Summit in January, provides funding for water supply development. If you have questions about this bill and what opportunities it might provide, please do not hesitate to contact me at kmoore@dunncarney.com.

Fish and Wildlife Service Reopens Comment Period for Proposed Gray Wolf Delisting

February 21, 2014

The public will again have the opportunity to comment on the US Fish and Wildlife Service’s proposal to take the Gray Wolf off the Endangered Species list. The Service has revised the proposed rule to incorporate the National Center for Ecological Analysis and Synthesis (NCEAS) peer review of the science supporting the delisting proposal. The NCEAS report concluded the Service did not consider the best available science when proposing to delist the Gray Wolf. Public comment is reopened so the Service may get feedback on the entire proposal, including the NCEAS report. In addition to delisting the Gray Wolf, the proposed rule will list the Mexican wolf as an endangered subspecies under the Endangered Species Act.

Regional populations of Gray Wolves have successfully recovered and been delisted in the western Great Lakes states and northern Rockies. The current rule proposes to delist the Gray Wolf throughout the United States. Prior updates covered this issue.

This comment period is open from February 10 to March 27, 2014. Comments may be submitted online at http://www.regulations.gov/#!submitComment;D=FWS-HQ-ES-2013-0073-43030.

If you have questions, please contact Laysan Unger at lunger@dunncarney.com.

Blueberry Growers win case against Dept. of Labor

January 16, 2014

Judge: ‘Hot goods’ settlements should be vacated

By Mateusz Perkowski at Capital Press

URL: http://www.capitalpress.com/article/20140115/ARTICLE/140119900

Pan-American Berry Growers produces blueberries near Salem, Ore. A federal magistrate judge said the farm was forced into signing a financial settlement with the U.S. Labor Department under duress and the deal should be overturned.

A federal judge has recommended that “hot goods” settlements between two Oregon blueberry farms and the U.S. Labor Department be overturned.

U.S. Magistrate Judge Thomas Coffin has recommended vacating the deals because the growers signed them under economic duress.

The deals “unfairly stacked the deck” against the farms, which faced the “potential loss of millions of dollars’ worth of berries” if they didn’t capitulate to the agency’s demands, Coffin said in his decision.

In 2012, the farms — Pan-American Berry Growers and B&G Ditchen — paid the agency $220,000 to settle allegations of minimum wage law violations.

The growers claimed they were coerced by the agency, which threatened to halt shipment of their blueberry crops under the “hot goods” provision of federal labor law.

The Labor Department also notified the farms’ customers that the crop was subject to the “hot goods” provision, which allows the agency to block shipment of unlawfully produced goods.

Coffin said the DOL’s hot goods objection “effectively eliminates any potential market for the goods in question” until the threat is lifted.

Due to the perishable nature of the blueberries, the farms “were left with no choice but to accept the judgments,” Coffin said.

Under the settlement deals, the farms also had to waive their rights to appeal the agency’s findings.

The judge held that the agency’s actions amounted to misconduct because the farmers signed the deals against their will.

“Although the government’s use of the hot goods authority is authorized by statute to resolve wage and hour violations, applying such authority in this situation, in effect, prevented defendants from having their day in court,” he said.

Coffin also said he could “think of no good reason” the Labor Department didn’t allow the farms to place the $220,000 in an escrow account while they challenged the agency’s findings.

The agency exercised “heavy handed leverage,” forcing the farms to endure major financial losses “simply to engage in the judicial process,” he said.

The Department of Labor had argued that the farms waited too long to fight the deals in court.

They waited nearly a year to oppose the judgments, when they could have sought an injunction immediately, the agency argued.

The judge rejected that argument, finding that it made sense for the growers to seek more information before resorting to litigation.

Attacking the judgments immediately “could have had uncertain repercussions for the defendants in any future interactions with the DOL in view of its more aggressive tactics,” he said.

The Labor Department must object to Coffin’s findings by Feb. 3, or else the agency loses its right to challenge the opinion.

If the agency objects, the order vacating the settlements must be finalized by U.S. District Judge Michael McShane.

“The Department of Labor is reviewing the ruling and considering its options,” said agency spokesman Jose Carnevali in an email.

The opinion sends a very strong message that DOL violated the farms’ due process rights and should never do so again, said Dave Dillon, executive vice president of the Oregon Farm Bureau.

“If we would have written the ruling, I’m not sure it could have been any better,” Dillon said.

Steve Erickson, CEO of Pan-American Berry Growers, said he’s glad the farms stood up for themselves against the agency.

“We are ecstatic that the judge backed us up,” he said.

The growers aim to provide decent wages for their workers and were frustrated not to be able to defend themselves against DOL’s accusations, he said.

The ruling will probably discourage the agency from using its hot goods powers in such a coercive fashion in the future, said Tim Bernasek, attorney for the farms.

“I would be very surprised if they tried these heavy handed tactics,” he said.

While it’s very rare for a consent decree to be overturned, the judge in this case solidly based his decision on legal precedent, Bernasek said.

The ruling probably won’t be significantly modified or reversed by McShane, he said.

It’s possible the Labor Department will challenge the decision before the 9th U.S. Circuit Court of Appeals.

However, DOL may want to avoid such an appeal — if 9th Circuit ruled against the agency, the decision would become legal precedent across its large jurisdiction, Bernasek said.

Environmental Cleanup: What Landowners Need to Know

January 15, 2014

Occasionally, owners of agricultural property encounter contamination in the soil or groundwater. For example, it is possible that an old fuel storage tank corroded and fuel has leaked into the soil and groundwater. The cost of addressing contaminated property can be significant. Dunn Carney environmental attorney Kate Moore answers questions frequently asked by landowners facing potential liability for contaminated property. Issues addressed are insurance coverage, liability, proper procedures and steps that can help mitigate cleanup costs. To learn more, please read the full report, Q&A: First Steps in Dealing with Contaminated Property.

Jury Hits Land O’Lakes Purina for Destroying Family’s Dairy Herd with Toxic Feed

December 19, 2013

Tillamook, Oregon – Land O’Lakes Purina, one of the nation’s largest producers of cattle feed, sold defective feed that sickened and killed most of a family’s award-winning dairy herd, a Tillamook County jury found December 18. Land O’Lakes mixed a toxic combination of minerals into feed and sold it over several years to Neal and Nancy Kaste, fifth-generation dairy farmers, leading to the deaths or unfitness for milking of 140 cows. The jury, by a 10-2 verdict, awarded the $750,000 plus attorney fees sought by the Kastes, and the jury asked to award damages well above that amount, but was not allowed to by the judge. 

Anne D. Foster and Blair E. McCrory of Dunn Carney Allen Higgins & Tongue were the Kastes’ attorneys. Land O’Lakes allowed a salesman who was not trained as an animal nutritionist to adjust the formula of feed sold to the Kastes, Foster said, upping the amount of copper in the feed to six times the required level, and taking out needed phosphorous. As a result, the cattle were slowly poisoned by the excessive copper, and because of the lack of phosphorous, the cattle’s bodies began feeding on the phosphorous in their own bones. “These cows were literally dying on their feet,” Foster said. “Dairy farmers are close to their cows. The Kastes had names for all of them. They began watching their cows get sick and die before their eyes, and at first they didn’t know why,” she said. “It broke their hearts and pushed them to the brink financially. It was only because the Kastes were such good, careful farmers that they were able to stay afloat. Most dairy farmers would have been ruined.”

The defendant found liable, Land O’Lakes Purina Feed, LLC, is a subsidiary of Land O’Lakes, Inc., headquartered in Arden Hills, Minn.  It has feed cooperatives and mills throughout the U.S., with Oregon mills located outside Portland and in McMinnville. The Kastes began purchasing feed from Land O’Lakes in November 2005. The Kastes were unaware that the feed contained dangerously high levels of copper, a standard ingredient in feed for dairy cattle, but toxic at high levels if fed to high-producing dairy cows over a long period.  

Shortly after the Kastes began using the feed, their cows started to produce less milk and acted sick. Over the next two years these problems worsened. In the fall of 2007, shortly after the Kastes were convinced by their local feed representative Greg Wildhaber, to enter into a new one-year feed contract, they noticed their cows appeared seriously ill. By the end of November 2007, many of the Kastes’ animals started dying.  Later, the Kastes learned that Wildhaber had changed the feed mixture without permission and removed all added phosphorous from the feed.  Despite a state law requiring feed makers like Land O’Lakes to immediately produce a list of feed ingredients upon request, Land O’Lakes repeatedly refused to reveal to the Kastes the feed’s contents. Only after the Kastes spent their own money to test the feed and their cows did they learn that the feed contained toxic levels of copper and insufficient phosphorous and protein to sustain the health of the cows. From 2009 to 2013, the health of the cows on feed continued to deteriorate due to the permanent damage done to their livers, ultimately leading to the death of all but one of the cows that ate the feed. At trial, Land O’Lakes denied knowing that the copper levels in the feed could cause chronic copper toxicity, but the jury saw a memo from the Land O’Lakes legal department summarizing each of the numerous scientific copper toxicity articles confirming the Kastes’ claims. After the five-week trial, the jury agreed that the unsafe feed supplied by Land O’Lakes was the lone cause of the illnesses, injuries and deaths in the herd. The size of the jury award is believed to be a record in Tillamook County.     

Read more about this case in The Oregonian,  The Capital Press, and The Daily Astorian.

 

About Dunn Carney

Dunn Carney is a leading Pacific Northwest litigation and business law firm in Portland. Anne Foster, a partner at the firm, is a noted trial lawyer with numerous large jury verdicts and settlements. She can be reached by email at afoster@dunncarney.com or by phone at 503-306-5331.   

Dunn Carney Ag Summit 2014

November 22, 2013

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