TILLAMOOK, Ore. — An Oregon judge has refused to reconsider throwing out a “public nuisance” claim in a lawsuit filed by a Tillamook oysterman over alleged dairy pollution.
However, Tillamook County Circuit Judge Mari Garric Trevino will allow Jess Hayes of the Hayes Oyster Co. to file an amended lawsuit against Oregon’s Department of Environmental Quality.
Hayes argues that DEQ’s “total maximum daily load” regulation under the federal Clean Water Act for fecal coliform bacteria in rivers flowing into the Tillamook Bay inadequately controls pollution from dairies.
As a result, Hayes is prohibited from harvesting oysters from 250 acres of plats in the bay and faces restrictions on another 350 acres, according to his complaint.
In October, Trevino dismissed the “public nuisance” component of Hayes’ lawsuit while ruling the DEQ never properly finalized the TMDL process in 2001, largely for procedural and jurisdictional reasons.
Thomas Benke, attorney for Hayes, filed a motion for reconsideration of the public nuisance ruling but the judge declined to hear arguments over the matter during a Dec. 3 hearing in Tillamook, Ore.
Trevino said her policy is not to reconsider decisions unless there’s been a change in the case law that applies to the matter.
“Unless there’s something new, that’s what the Court of Appeals is for,” she said.
The judge said she would allow Benke to file a third amended complaint to argue that DEQ should be compelled to issue a new TMDL regulation that would allow shellfish to be harvested throughout Tillamook Bay and implement stricter manure management strategies for dairy farms.
However, Trevino said she has not yet decided whether she has the power to compel the agency to take certain actions with the TMDL, or simply to finalize the regulation.
“I haven’t researched that far ahead, what ultimate authority I have,” she said.
Attorneys for the state government argued in court documents against allowing Hayes to file a third amended complaint, alleging the claims are “futile” and vowing to file a motion to dismiss them.