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State seeks oyster plats in dairy pollution lawsuit

Attorneys representing Oregon’s Department of Environmental Quality claim a Tillamook oysterman would be forced to sell his plats if he prevails in a lawsuit over alleged dairy pollution.
Mateusz Perkowski

Capital Press

Published on December 19, 2017 11:22AM

Mateusz Perkowski/Capital Press File
The Tillamook County Court House in Tillamook, Ore., where a judge will decide a case in which an oyster farmer alleges that the state has inadequately regulated dairy farms.

Mateusz Perkowski/Capital Press File The Tillamook County Court House in Tillamook, Ore., where a judge will decide a case in which an oyster farmer alleges that the state has inadequately regulated dairy farms.

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An oysterman would forfeit his oyster plats in Tillamook Bay if he prevails in a lawsuit alleging inadequate regulation of dairy pollution, according to Oregon’s attorneys.

Jesse Hayes, president of the Hayes Oyster Co., filed a complaint accusing the Oregon Department of Environmental Quality of allowing dairy pollution to effectively shut down oyster harvests in the bay.

The lawsuit seeks $100,000 for lost profits and reduced property value, as well as an order for DEQ to regulate pollution more strictly in the region.

The State of Oregon denies taking the plaintiff’s property by sanctioning pollution, but if he’s successful in this claim, ownership of the affected oyster beds should go to DEQ, according to the state’s attorneys.

The title to the oyster bed lease would “vest” to the agency because Hayes is pursuing a claim of “inverse condemnation,” under which a government action is alleged to have take property without compensation, the state’s attorneys said in a counterclaim against Hayes.

Hayes objects to the state government’s argument because the lawsuit’s goal is to “regain economically viable use of its oyster plats” rather than being forced to sell them to DEQ “for a disputed price so that the pollution easement can continue indefinitely,” according to a letter sent by his attorney, Thomas Benke.

“If nothing else, public policy should preclude DEQ from extinguishing a ‘beneficial use’ that it is mandated by law to protect,” Benke said in the letter to Tillamook County Circuit Judge Mari Garric Trevino.

The fair market value of the oyster plats would be in the “millions of dollars” if Oregon properly regulated pollution, rather than the $100,000 cited in the complaint, Benke said.

If his “only remedy at law” is to seek the full value of the oyster beds, Hayes should be allowed to modify the complaint to reflect the actual value or withdraw the unjust takings claim, Benke said.

The judge has asked for a formal motion to be submitted on the matter.

Earlier this year, the judge rejected Oregon’s motion for the case to be dismissed, allowing Hayes to proceed with the lawsuit.

Because it involves regulations affecting dairy farmers, the litigation is being monitored by the Oregon Dairy Farmers Association, which has disputed that dairy cows are predominantly responsible for bacterial contamination in the bay.



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