Agriculture’s top legal gun
By Eric Mortenson
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.”