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Oregon regulators seek dismissal of oysterman’s lawsuit

September 26, 2018

SALEM, Ore. (AP) — Oregon environmental regulators are seeking the dismissal of a lawsuit aimed at strengthening pollution regulations in Tillamook Bay.

Attorneys for the state Department of Environmental Quality have asked Tillamook County Circuit Judge Mari Garric Trevino to throw out the case before it goes to trial scheduled for next month, the Capital Press reported Tuesday.

Oyster Co. President Jesse Hayes claims in the lawsuit that excessive fecal coliform bacteria from dairies have curtailed or shut down harvests from his oyster beds in the bay.

In a hearing last week, the state claims its total maximum daily load regulation for the bacteria in the rivers is a final agency order that can only be challenged through an administrative process, but the deadline for an objection has long passed. The daily load regulation was set in 2001.

Hayes argues otherwise, saying the regulation can be challenged in court because the harm to his oyster beds is a continuing violation. Hayes is targeting the state because it is “hard to hold any one dairy farmer accountable for what’s going on in the bay,” said Thomas Benke, his attorney.

The state never notified Hayes about the regulation action, Benke said.

The state was not obligated to make such a notification because he could have participated in the same public process as other people affected by water quality issues, said Sadie Forzley, an attorney for the state Department of Environmental Quality.

The judge questioned the department’s conclusion, saying “it just doesn’t make sense to me that he wouldn’t be noticed.”

“His property is affected probably more than anyone in the watershed,” Trevino said.

Hayes said he might take legal action against the state Department of Agriculture, which handles permitting of confined animal feeding operations, if the state doesn’t reconsider the daily load regulation.

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Information from: Capital Press, http://www.capitalpress.com/washington

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