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What’s next in Yakima groundwater lawsuits?

Dave Wilkins Published on 11 March 2014

If this legal battle were a baseball game, it would still be in the first inning.

The fight between environmental activists and a group of Yakima Valley dairymen is just beginning.

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The case could drag on for years. It’s being watched around the country and stands a good chance of going all the way to the U.S. Supreme Court, some attorneys predict.

There are actually five separate lawsuits, all filed last year in federal district court in eastern Washington. The defendants are the Cow Palace, D&A Dairy, George DeRuyter & Son Dairy, Liberty Dairy and the R&M Haak Dairy.

The Cow Palace case is set for trial in September. The others will follow in quick succession over the next four months, winding up early 2015.

The cases are now in the “discovery” phase. That’s when depositions are taken and attorneys get to find out what the other side will use as evidence.

U.S. District Judge Thomas Rice is scheduled to consider pre-trial motions beginning early this summer. These could include motions for summary judgment in which one or both sides try to convince the judge they should win the case as a matter of law and that there’s no reason to go to trial.

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“Whatever happens at trial or summary judgment, I’m sure the other side that does not prevail will likely appeal it to the 9th Circuit Court of Appeals,” says Boise-based lawyer Debora Kristensen, one of the attorneys representing the dairymen.

The 9th Circuit has a reputation as a liberal court that often comes down on the side of environmental arguments, so dairymen probably won’t be pinning their hopes on a favorable ruling at this level. The Supreme Court could be their best hope.

There’s a good chance the high court will weigh in on the case, Kristensen says. It has implications for livestock producers all across the country, and there’s never been a definitive court ruling on this point of law.

“This is likely one that the Supreme Court could take a hard look at to see if they want to hear it. People are paying attention to it for that very reason,” she says.

The five lawsuits are all identical in terms of allegations. The plaintiffs allege that the dairies are in violation of the Resource Conservation and Recovery Act (RCRA) because of the way they use, handle and store manure. They say the dairies are polluting the aquifer, the primary source of drinking water for many rural residents.

“Our defense is that these dairies are in compliance with all state and federal laws,” Kristensen says.

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RCRA was enacted in 1976 to regulate solid and hazardous waste. In the past, courts have held that agricultural operations are exempt from the statute.

In one case, environmentalists sued poultry giant Tyson Foods, alleging that its use and handling of chicken manure was a violation of RCRA.

“The court did not allow those claims to succeed,” Kristensen says. “Now (environmental groups) are coming after the dairy industry.”

The Yakima dairymen have already spent nearly $2 million on legal fees and there will be a lot more bills where those came from. If they lose, they’ll also likely have to pay the plaintiffs’ attorneys fees.

The Yakima dairymen shouldn’t have to shoulder the financial burden alone, industry officials say. The stakes are huge for the entire industry.

If the environmental activists win, all livestock operations – not just dairies – could be regulated like municipal solid waste dumps, industry leaders warn.

The Washington State Dairy Federation and Idaho Dairymen’s Association are both helping out and are seeking support from other industry organizations. They’ve received pledges from several groups, including DFA’s Mountain Area Council, Farmers Cooperative Creamery, United Dairymen of Arizona and the Washington Cattle Feeders Association.

The National Milk Producers Federation is aware of the case and has helped get the word out at several venues, says WSDF Executive Director Jay Gordon.

More donations are needed.

“Any and all help is appreciated,” he says.

Dairy producers around the country need to understand that they have a dog in this fight, industry officials say.

The case might be easy to ignore if the defendants were rogue dairies that were disregarding the law, but they aren’t; they’re some of the best dairies in the state, says Toni Meacham, director of the Washington State Agricultural Legal Foundation.

“That’s why we became involved,” Meacham says. “We are trying to raise awareness about these types of lawsuits … Just because you’re doing everything right and are abiding by the law doesn’t mean you are immune to these lawsuits. It makes the situation very difficult.”

It could be years before the Yakima dairymen reach the ninth inning of this fight.

They can’t afford to strike out. If they do, they won’t be the only losers. PD

Dave Wilkins is a freelance writer based in Twin Falls, Idaho.

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