TILLAMOOK, Ore. — An Oregon judge has refused to dismiss a lawsuit that alleges state environmental regulators allow pollution from dairies to harm oyster harvests in Tillamook Bay.
Attorneys for the Oregon Department of Environmental Quality argued the agency cannot be held liable for the adverse effects suffered by oysterman Jesse Hayes, president of the Hayes Oyster Co.
According to Hayes’ lawsuit, the DEQ incorrectly assumes that local dairies aren’t discharging fecal coliform bacteria into rivers that flow into Tillamook Bay.
Nonetheless, bacteria levels in the bay are so high that Hayes is entirely prohibited from harvesting oysters from 250 acres of his plats and faces frequent shutdowns on 350 acres, according to his complaint.
Hayes argues that insufficient regulation by DEQ constitutes a public nuisance and an unjust taking of his property due to lost profits and reduced plat values.
The complaint seeks $100,000 in damages and an order requiring DEQ to strengthen its pollution regulations in the area.
Without deciding the merits of the case, Tillamook County Circuit Judge Mari Garric Trevino denied DEQ’s motion to throw out the lawsuit and ordered the agency to answer Hayes’ allegations.
The ruling means that Hayes has cleared an important first hurdle and may proceed with the litigation.
“We get to prove what’s in our complaint,” said Thomas Benke, his attorney.
During oral arguments on Sept. 29, DEQ 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 “erroneous assumption” that Oregon unjustly deprived him of property by failing to regulate his neighbors strictly enough, but inadequate regulation isn’t recognized as a government “taking” under legal precedents, according to DEQ.
“The government is not responsible for inaction,” said Christina Beatty-Walters, DEQ’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 process, said Beatty-Walters.
The state’s “total maximum daily load” order for fecal coliform bacteria in the region was enacted in 2001, so Hayes missed a deadline to challenge the action by 16 years, Beatty-Walters said.
“They’re way too late,” she said.
According to Hayes, the complaint against DEQ is valid because it’s challenging the adverse impacts that insufficient TMDL rules have imposed on his oyster operation, rather than attacking the validity of the regulations themselves.
“The agency made the decision to take away the use of 250 acres of tideland from the Hayes Oyster Company perpetually,” said Benke.
Hayes argues that DEQ has unlawfully sanctioned pollution, which is a form of government taking.
The agency could restrict pollution from dairies with confined animal feeding operations 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 TMDL regulation 16 years ago, Hayes did not and should still be allowed to seek a legal remedy, he said.
“It flies in the face of fundamental due process,” he said.
The Oregon Dairy Farmers Association is watching the case closely because it involves TMDL 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 Oregon Department of Agriculture, Kerr said.
Faulty septic tanks, municipal wastewater and wildlife feces all contribute to fecal coliform bacteria in water, which has been confirmed by DEQ, she said.
“Dairy is always the first thought when people talk about pollution but DNA testing has shown it’s broader than that,” Kerr said. “There’s a large human influence in that.”