U.S. Plans to Recommend Changes to Columbia River Treaty: Comments due Friday, October 25, on Draft Regional Recommendation
The United States is expected to propose changes to the Columbia River Treaty amid ongoing negotiations. The U.S. Entity, consisting of the Administrator of the Bonneville Power Administration and the Northwestern Division Engineer of the U.S. Army Corps of Engineers, released draft recommendations on September 20, 2013 proposing that modernizing the Treaty after 2024 will provide greater benefits to the region.
As discussed in an earlier post, the Columbia River Treaty is currently under a multi-year review. As part of this process, the U.S. Entity is engaged in a multi-year regional discussion regarding resource management issues associated with the Columbia River. It has undertaken a series of studies regarding current and potential operations under the Treaty. The U.S. Entity’s goal is to present recommendations with broad regional support to the U.S. Department of State by the end of 2013. The recommendations identify elements that the Pacific Northwest would like the Department of State to pursue in its negotiations with Canada. The potential impacts of a major change to the treaty are vast and could affect millions of people and various interests, in both the U.S. and Canada.
The draft recommendation is a key step in this process of identifying and analyzing benefits of and potential improvements to the Treaty. In it, the U.S. Entity acknowledges the Treaty’s immense benefits including flood control and assured streamflows to support the region’s hydropower system. It also identifies a number of changes that may benefit the Region. Since the time the Treaty was first negotiated in the 1960s, the region has gone through changes that warrant revisions. As summarized in the U.S. Entity’s cover letter, the draft recommendation envisions the revised Treaty will:
- Better address the region’s need for a reliable and economically sustainable hydropower system;
- Continue to provide a similar level of flood risk management to protect public safety and the region’s economy;
- Include ecosystem-based function as a third primary purpose of the Treaty, to ensure a more comprehensive approach throughout the Columbia Basin watershed; and
- Create the flexibility within the Treaty that is necessary to respond to climate change, changing water supply needs, and other future potential changes in system operations while continuing to meet authorized purposes such as navigation.
The future management of the Columbia River is crucial to everyone in the region, with potentially significant impacts on natural resource management and agriculture. A final recommendation to the U.S. Department of State is planned for mid-December of this year. The deadline for submitting comments on the draft recommendation is Friday, October 25. Comments can be submitted on-line by visiting: www.bpa.gov/comment or by mail to BPA, P.O. Box 14428, Portland, OR 97293-4428. To view comments submitted to date, click here.
If you have any questions, please contact me at KMoore@dunncarney.com.
We are proud of Tim Bernasek and really pleased to share this great article about him.
Portland attorney Tim Bernasek emerges as the go-to legal gun for Oregon agriculture
By Eric Mortenson, Capital Press
Published: October 01. 2013 3:36PM
The eastern Oregon farmer was shaken. The volunteer wheat plants he’d sprayed with glyphosate didn’t die, and now grim investigators with the USDA wanted to know what he was doing with unapproved “Roundup Ready” wheat growing in his field.
The grower was certain he hadn’t done anything wrong and was willing to cooperate. After all, he’d reported the finding when he could have tilled the plants under with no one the wiser. But the feds were talking potential criminal or civil penalties, and vociferous GMO opponents were sure to howl when they found out. The farmer was nervous.
Fellow farmers urged the Oregon Wheat Commission to help, and chief executive Blake Rowe scoured his sources for an attorney who could stand between the grower and the storm that was sure to come. Someone who could do a little handholding, explain the process and protect the farmer’s rights.
One name emerged: Tim Bernasek, a partner in the Portland law firm of Dunn Carney Allen Higgins & Tongue.
Rowe hadn’t heard of him, but in retrospect it was an obvious choice. Bernasek in the past couple years has become Oregon agriculture’s go-to problem solver, a calm presence who quickly “figures out the endgame,” as one admirer puts it, and guides his clients to a resolution. In the process, the agricultural practice group he heads at Dunn Carney has become a model that other law firms are beginning to emulate. Some are expanding their natural resource and environmental teams to include farm labor, estate law, land use, water and food safety specialists.
In the wheat case, Bernasek protected the farmer’s privacy, carefully answered the media’s questions and served as intermediary as investigators from the Animal and Plant Health Inspection Service flooded eastern Oregon and Washington.
The investigation is unresolved — APHIS has not yet determined how the genetically engineered plants ended up in the farmer’s field — but Bernasek’s work won praise.
“I really feel this poor farmer was caught like a deer in the headlights,” says Paulette Pyle, grass roots director with Oregonians for Food & Shelter. When Rowe called looking for an attorney, Pyle recommended Bernasek.
“Tim had all the ability, especially the cool, calm intelligence, to lead him through that,” Pyle says.
‘Hot goods’ battle
It wasn’t the first time. Bernasek, 42, is legal counsel for the Oregon Farm Bureau, and in July 2012 he was summoned to represent Oregon blueberry farms accused of widespread record keeping and minimum wage violations involving pickers.
The U.S. Department of Labor slapped the farmers with “hot goods” orders that prevented them from shipping berries unless they paid a combined $220,000 in fines and back wages and signed consent decrees admitting wrong. The also had to agree not to contest the order even if they were later exonerated.
The farms, Pan American Berry Growers of Salem and B&G Ditchen of Silverton, were in a tight spot. They faced a choice of signing the papers or fighting it and risk their berries going bad while the court process dragged. One grower called the situation “extortion.” According to court documents, he had berries worth an estimated $1.5 million sitting in storage, ready to be shipped. The feds had already warned processors not to move the berries.
“We were in a little bit of uncharted territory here,” says Dave Dillon, the Farm Bureau vice president. “The Department of Labor was using tactics we’d never seen before. I can’t think of anything more delicate than fresh market blueberries.”
Bernasek urged a strategic retreat: Sign the consent orders, save the berry crop, then strike back when time was on the growers’ side. In August, 13 months later, he filed a federal court complaint alleging the labor department’s action was coercive and denied the growers due process. The complaint demands that the department rescind its action and repay the farmers.
Dillon, the Farm Bureau’s vice president, says the case illustrates Bernasek’s “longer-term strategic view” of a fast-changing world.
“I’ve never seen him anything but steady and focused on how do we get to right place from here,” he says.
With courts increasingly deciding natural resource issues and activist groups setting the agenda, once-reticent farmers and farm organizations must be engaged in policy decisions, Dillon says. Attorneys representing agriculture can’t be content with reviewing contracts and tending risk management issues.
The human side
“We’re not in court cases for what it means today, but we’re engaged today as a building block to help us get to the next spot, and the next spot,” Dillon says.
What sets Bernasek apart, Dillon says, is his sensitivity to the human side of legal issues.
“Other attorneys are very proficient and capable, but they just don’t understand we’re talking about people,” he says. “Tim never loses sight of that.”
Bernasek waves off praise. It’s an honor, he says, to represent Oregon’s farmers.
He acknowledges it’s an unusual turn that brought him to this point. He works in downtown Portland, and there isn’t a silo, barn or tractor in sight from his 15th floor office. He’s a trim urban jogger and fly fisherman who lives in a pleasant southwest Portland neighborhood with his wife, Poppy, and their two children.
If there’s a clue to his social or political approach to life, it’s the bust of Teddy Roosevelt that shares space on his bookshelf with photos of his family. Roosevelt, he says, was a true conservationist: Wanting neither to lock up the nation’s natural areas nor to exploit them, but to assure they were preserved for the public’s enjoyment. The 26th president also sought the middle ground economically, favoring legislation that leveled the playing field.
Bernasek spent his high school years in southern Idaho, the son of a chemical engineer and the eldest of three brothers, but has no farm experience. When he was a first-year law student at Willamette University in Salem and applied for a clerking position at the Oregon Farm Bureau, he first thought he was interviewing with an insurance firm.
But the man interviewing him, then-Farm Bureau counsel Joe Hobson, was talking about land-use, labor law and water quality issues.
“What a great experience,” Bernasek thought to himself.
He and Hobson, whom Bernasek describes as a mentor and a “great, great guy,” worked together at the Farm Bureau and later partnered in a law firm. Bernasek was initially attracted by the complex challenges of agricultural and natural resources legal issues, but quickly developed deep respect for the farmers immersed in them.
“They don’t suffer fools,” he says. “You never have to guess where they’re coming from.”
He hesitates, saying he doesn’t want to sound corny, then speaks of the “general forthrightness” and “common decency” that is part of the rural ethic.
“Because there’s so little in the world that’s real,” he says. “These are real people, working the land to create a tangible product.
“I’m drawn to that,” he says. “I also see what’s happening as the rules and regulations become more and more complex. They’re written by people who are well meaning but, not having grown up on the land, they don’t understand what farmers do. The regulations don’t match up and don’t make sense.”
‘Caught in the crosshairs’
As a result, people working in natural resource industries are “caught in the crosshairs,” he says.
Tough decisions loom ahead. Water quality and quantity will continue to be issues for agriculture, Bernasek says. Animal welfare regulations will be debated. And air quality is “going to be a big one.” Dust, odor and emissions from agricultural operations are coming under scrutiny.
“What water has been, air will be,” Bernasek says. “It will be a challenge for the industry to tell its story.”
The public’s intense but often uninformed interest in food production, land and water use and agriculture’s environmental impact provides an opportunity to clearly tell that story.
In addition, there’s growing recognition of agriculture as an “economic driver,” Bernasek says. In Oregon it’s the second leading economic force, behind high-tech. A 2011 study by Oregon State University’s Rural Studies Program estimated agriculture is responsible for or connected to 15 percent of the state’s economic activity. More than 420,000 jobs, ranging from field production and transportation to retail service, are linked to agriculture. It adds an estimated $22 billion to the state’s economy annually, according to the report.
It’s that impact and connection that increasingly is leading Pacific Northwest law firms to pad their natural resource teams with attorneys versed in agricultural issues.
Professor Mary Wood, director of the natural resources and environmental law program at the University of Oregon School of Law, says agricultural practice groups are more common at Midwest law firms, where giant commodities such as corn and soybeans fill the landscape.
Emerging issues such as genetically engineered crops, chemical trespassing cases and food safety make ag law a growing legal specialty, Wood says.
“It does involve a very complex constellation of legal issues — labor, taxes, land use, environmental law,” she says. “Oregon is a great place for this kind of practice.”
The ag practice group at Dunn Carney was founded by Elizabeth Howard, a water law expert who worked with Oregon dairy farmers and the Oregon Cattlemen’s Association on issues ranging from Klamath Basin water to eastern Oregon wolves. She recruited Bernasek to the team about six years ago. Last year, she asked him to take over the team leadership.
Howard, who recently accepted a position at the prestigious Portland firm Schwabe, Williamson & Wyatt, echoes Bernasek in her admiration of farmers and ranchers.
“Agriculture is facing so many issues on so many fronts, that it’s a critical time to have really good and strong legal representation, and political representation, too,” Howard says.
Pyle, of Oregonians for Food & Shelter, says Bernasek is the attorney who “sits at the table” with the state’s farmers and ranchers.
“If you get the right attorney — and for agriculture, Tim is it,” she says, “you can avoid a lot of mistakes.”
The Environmental Protection Agency (EPA) disapproved Oregon’s natural conditions criteria late Thursday, August 8, 2013. The disapproval follows a February 2012 ruling by Oregon federal court Judge Acosta, which required EPA to review Oregon’s temperature standard, which contained a natural conditions criteria provision and general natural conditions criteria.
Oregon’s natural conditions criteria, or a similar provision, has been in place since the 1970s. These criteria allow the Department of Environmental Quality (DEQ) to set natural conditions as the water quality standard when the biologically-based (laboratory) water quality standard is higher than natural water conditions. Many Oregon streams do not meet Oregon’s temperature standards. As a result, relying on the (now disapproved) natural conditions criteria regulation, DEQ set water quality standards for certain watersheds that were based on natural conditions. All water quality regulation was then based on meeting natural conditions, rather than a standard developed in a laboratory.
With EPA’s disapproval, DEQ can no longer set water quality standards that reflect natural conditions. Instead, DEQ must regulate point sources (i.e. industrial and municipal dischargers) to standards that are more stringent than natural conditions. DEQ intends to require point sources to meet water quality standards that are below natural conditions using compliance schedules and variances. Some additional details about how DEQ intends to approach point source regulation and permit renewals are provided in the DEQ’s August 8, 2013 fact sheet.
DEQ will not change targets, such as stream shade, for nonpoint sources (i.e. agriculture and forestry). These targets are set out in its Total Maximum Daily Load and Water Quality Management Plans (TMDL). A TMDL is a plan developed by DEQ that calculates the maximum amount of a pollutant that a water body can receive without exceeding water quality standards and allocates those pollutant “loads” to point and non-point sources within the watershed. DEQ currently looks to the Oregon Department of Agriculture and Oregon Department of Forestry to implement targets it develops to meet water quality standards through the TMDL process.
TMDLs that were developed based on temperature standards relying on the natural conditions criteria are also being challenged in litigation filed by the Northwest Environmental Advocates.
DEQ does not intend to immediately begin work on a new temperature standard. However, EPA suggested three options for DEQ to respond to EPA’s disapproval of the natural conditions criteria. One option is to implement temperature standards that do not account for natural conditions. Another second option is to develop site-specific criteria for each of Oregon’s waterways. A third option is to develop a methodology (i.e., science-based equation) that DEQ could use to derive standards reflective of the variations in streams across Oregon. What DEQ will do remains to be seen.
Land use law is inherently local; a landowner’s application for permission to use his/her property is processed by a city or county planner. Some 25 years ago, however, the United States Supreme Court stepped squarely into the process, applying the constitution’s Takings Clause.
Local governments long had relatively free rein to make a landowner dedicate a portion of his or her land to the public as a condition of permit approval. In Nollan v. California Coastal Commission and Dolan v. City of Tigard, however, the Court drew limits on the practice. In Nollan, it said that such a permit condition must mitigate the type of impact that the proposed land use will occasion; a county may not make you widen a drainageway because your proposed land use will increase vehicle traffic. In Dolan v. City of Tigard, the court added that a permit condition must be roughly proportional to the extent of such impact; a county may not make you build a new treatment plant for simply adding a restroom.
Local governments responded to these cases, in part, by significantly increasing use of fees as a way to avoid the constitutional issue. That is, rather than require a permittee to dedicate an easement, the government would simply require him or her to pay a fee. The Court limited this practice in the recent case of Koontz v. St. Johns River Water Management District.
Koontz’ father purchased a vacant 15-acre lot in 1972. Florida regulations placed all but 1.4 acres of the property in a “riparian habitat zone.” So, when the elder Koontz later sought District permission to develop a portion of it, he was required to obtain permission from the St. Johns River Water Management District. The District told Koontz it would approve the permit on the condition that he either deed the remainder of his property into a conservation area and perform offsite mitigation or reduce development to one acre and turn the remaining 14 into a deed-restricted conservation area. Koontz refused to accept either condition and, when the District denied the permit, he sued.
The Court ruled for Koontz. In doing so, it made two new announcements about the Takings Clause. First, prior cases had restricted conditions of permit approval. Here, the Court said for the first time that an agency may not deny a permit because a property owner refuses to acquiesce to an unconstitutional condition. This proposition was not controversial; all nine justices agreed with it.
The Court’s second announcement was controversial, gaining a bare 5-4 majority of the Court, and is potentially much more important. Citizens paying fees to offset the cost of government has a long history and, in the land use context, has been less controversial that appropriating land. The Koontz decision changed the game by stating that this practice also must demonstrate compliance with the Nollan/Dolan doctrine. That is, a fee must offset the type of impact that the land use will have and be roughly proportional to the extent of the impact.
The extent to which the government may exact a fee as a condition of permit approval remains unclear in the wake of Koontz. Fees paid to mitigate the impacts of a proposed land use – called “system development charges” in Oregon – are probably still okay. However, requiring such payment “in lieu” of dedicating real property is apparently not. One thing though is clear, the Court has opened the door to challenging permit approvals on a basis that was previously considered off limits.
By: David Rossmiller, Partner, Dunn Carney Allen Higgins & Tongue LLP
Oregon insurance and environmental contamination law has undergone major and far-reaching changes in favor of policyholders and landowners with the enactment of Senate Bill 814. The bill went into effect on June 10, 2013 after it was signed by Governor Kitzhaber. The bill had overwhelming support from the Oregon Legislature. In fact, it passed both chambers of the Oregon Legislature with only two votes against. Importantly, SB 814 applies not only to new environmental claims, but to existing and even past claims, as long as no final judgment was entered on the claim before the bill became law.
The key changes from the new law include:
- It gives policyholders a right to sue insurers for bad faith and to collect up to three times the actual damages for a number of reasons, including failing to quickly investigate or pay a claim, wrongfully denying a claim, delaying payments for policyholders’ lawyers and environmental consultants, refusing to engage in nonbinding mediation and failing to pay interest on money the insurer owes. This is a dramatic change from previous Oregon law, which did not allow bad faith lawsuits against insurers except in very limited circumstances. The right to sue for bad faith is sure to tip the scales to policyholders in many disputes against insurers, as occurred in Washington when its bad faith laws were expanded several years ago.
- Policyholders have the right to retain independent counsel at the insurer’s expense in almost all pollution cases. This overrides the provision found in virtually all liability insurance policies that allows insurers to appoint counsel of their choice, usually without consulting the policyholder. “Independent counsel” means policyholders get to chose their own attorneys and that those attorneys represent only the policyholders’ interests and are not controlled or directed by insurers. The new law does not completely strip insurers of input in the selection of counsel, and policyholders and their attorneys will still have a duty to cooperate with insurers, but the effect of this provision will be a wider range of attorneys available to policyholders and a significant increase in the rates attorneys charge insurers.
- Provisions in liability policies that bar coverage for pollution on the policyholder’s or landowner’s own property cannot be enforced if that pollution presents any possibility of damaging a neighbor’s property or the state’s waterways and underground water. This “owned property” exclusion is sometimes, but not always, stated as a reason insurers should not pay the entire cost of a clean-up. This part of the new law makes it clear that when the pollution could migrate and cause future damage to wetlands, waterways or neighbors, it is part of the damage that insurers must pay for.
- Insurers cannot rely on so-called “anti-transfer” clauses to prevent policyholders from settling with claimants and assigning their rights under the policy. In years past, when an insurer refused to provide a paid defense to a policyholder who was sued, policyholder defendants who had limited resources frequently settled with plaintiffs in return for an agreed judgment and rights to sue the defendant’s insurer. This practice almost totally stopped, however, after a 2006 Oregon Supreme Court case said insurers could enforce provisions in policies that voided such transfers and that prevented plaintiffs from being able to sue insurers directly until they had obtained a judgment in court. The new law allows such settlements and assignments of policy rights, even where an insurer is actually providing a defense. This goes beyond the law in most states that allow such assignments – those states usually say the insurer must have first breached the contract by wrongfully failing to provide a defense.
The new law is the latest amendment to several existing Oregon statutes known as the Oregon Environmental Cleanup Assistance Act – Oregon Revised Statutes 465.475 to 465.480. The previous provisions relating to insurance coverage were enacted in 1999 and were much more limited. Because the new law applies mostly to insurance policies that are 30 to 50 years old or more, many anticipate that the law will be challenged as an unconstitutional retroactive impairment of existing contracts. Both the United States and Oregon constitutions contain prohibitions on legislative modification of existing contractual obligations. These constitutional provisions were enacted due to the experience of the fledgling United States under the Articles of Confederation that preceded the national constitution. Under the Articles of Confederation, state governments frequently favored debtors by passing laws that voided contracts after the creditor had performed under the contract.
The proponents of SB 814 said that the bill is constitutional because it does not take away all value of the insurance policies from insurers, the public policy behind the law is more important than the rights being taken away, and insurance is a highly regulated field where insurers expect significant oversight and involvement by state regulators and legislators.
Proponents also say the law’s “savings clause” makes it constitutional. That clause says that any part of the law that conflicts with “the intent of the parties” is void. This language, proponents claim, “saves” the law from being unconstitutional because it can never truly bar enforcement of the sections of an insurance contract discussed above if it is clear that the insurance company and the policyholder agreed on the meaning of terms and conditions in the policy. However, insurance policies are standard form contracts where insurers and policyholders seldom negotiate over what is in the policy and what it means. This leads to frequent disputes between insurers and policyholders, and requires courts to interpret what the policy’s terms mean. When Oregon’s Supreme court says what certain language in a policy means, that settles the issue for others who have exactly the same dispute, because insurance law is governed by state rather than federal law, and the Oregon Supreme Court is the final arbitor of state law. But few disputes are exactly the same as the one in a particular court case, insurance policies and language change over time and often change from insurance company to insurance company. Small changes in language, or the addition of new sections of the policy, mean a court might make a different decision in another case.
Insurers are certain to challenge the new law on many different grounds, but it remains the law until a court rules otherwise. If the new law stands, it will fundamentally alter the relationship of insurers and policyholders for many environmental claims. Remember, however, that the new law applies only to environmental cleanup cases, and not to any other kind of liability claims.
This is a brief overview of the portions of the new law that will most directly affect policyholders and landowners. The law contains other provisions that will also be significant in many cases. For more information about this new law, and to answer any questions about environmental insurance coverage or environmental insurance defense, you may contact David Rossmiller at email@example.com or 503-306-5311. David was involved with the Legislature during debate over SB 814, has extensively analyzed it and testified about the bill to legislators.
On Wednesday, the Oregon Farm Bureau Federation filed a lawsuit against the United States Department of Labor under the Freedom of Information Act. The lawsuit was filed to compel the Department to produce public records relating to the Department’s use of “hot goods” objections under the Fair Labor Standards Act. Under the hot goods provision, the Department can object to farmers shipping their crops due to alleged violations of minimum wage, child labor or overtime regulations.
The lawsuit is the result of a February 2013 request by the Oregon Farm Bureau Federation requesting records concerning the Department’s use of its hot goods objections. The Department refused to produce the records sought by Oregon Farm Bureau Federation, and failed to respond to the organization’s appeal within the statutory time period.
Link to the story in Oregonian: Oregon Farm Bureau Sues U.S. Labor Dept. over actions against blueberry farmers
If you have any questions, please contact Tim Bernasek at TBernasek@dunncarney.com.