FILE: Lamb Weston's potato processing facility in Hermiston, Ore., April 15, 2022. The plant produces around 750 million pounds of french fries annually that are shipped globally. It's one of the largest employers in the area.
Monica Samayoa / OPB
A lawsuit has put the Lower Umatilla Basin’s largest agricultural players in the position of defending Oregon’s regulators.
Four months after a group of basin residents filed a lawsuit alleging that five members of the local agricultural industry were polluting their groundwater with nitrates, the defendants have broken their silence and asked the court to toss the legal action.
The plaintiffs accused the defendants — the Port of Morrow, Lamb Weston, Madison Ranches, Threemile Canyon Farms and Beef Northwest Feeders — of putting basin residents’ health at risk by allowing nitrates from their irrigated fields and livestock farms to seep into the drinking water of domestic wells.
But the lawyers for these organizations argue this is not an issue for the courts to decide. Instead, they asked a federal judge to dismiss the case and defer to state agencies that have been trying to get a handle on the pollution for more than 30 years.
The legal fight over nitrates
The plaintiffs’ legal team has made some change since it first filed the basin residents’ complaint in late February.
The attorneys switched out well users Mike and Virginia Brandt for Jeannie Strange, a Hermiston resident who gets her water from the city’s water system. The updated complaint said Strange’s water tested at “dangerously high levels of nitrates” after several of her fish died following their bowl being filled with the home’s tap water.
Unlike domestic wells, state and federal law requires cities to track potentially harmful chemicals and filter it out of the water before it goes to the tap. Hermiston’s most recent water quality report from 2023 shows that one sample tested at 8.83 milligrams per liter, not far from the federal limit of 10 ml/L. Hermiston assistant city manager Mark Morgan wrote in an email that the city has typically tested between 5-6 milligrams, and after retesting the city’s water system, the high readout appeared to be an anomaly.
Regardless of the identities of the plaintiffs — a pool attorneys hope to expand if a judge agrees to declare it a class action lawsuit — the gist of their argument remains the same.
Whether its wastewater from the Port of Morrow or Lamb Weston, field irrigation from Threemile Canyon or Madison Ranches or a concentrated animal feeding operation from Beef Northwest and a Threemile Canyon subsidiary, the region’s agriculture industry generates excess nitrates, a chemical that can cause cancer and other illnesses if consumed in large quantities.
The plaintiffs’ legal team is led by Steve Berman, a Seattle attorney who built his reputation by filing lawsuits against the tobacco industry in the 1990s.
The defendants now have legal teams of their own. The group representing the port and Threemile Canyon includes Misha Isaak, the one-time chief legal counsel for former Gov. Kate Brown.
Isaak and more than a dozen other attorneys representing the defendants are now hoping to quash the case before it goes to a trial.
A ‘shotgun pleading’
Across four separate motions to dismiss, the defendants had a consistent argument: The federal courts don’t have jurisdiction over this issue.
Although the lawyers admitted that nitrate levels are high in the basin, the defendants said agencies like the Oregon Department of Environmental Quality and the Oregon Department of Agriculture are already regulating their industry for nitrates. The state declared the basin as a groundwater management area in 1990 and is maintaining a committee to create voluntary measures to lower nitrate levels.
Attorneys for Lamb Weston wrote that the courts wouldn’t make the process go any faster.
“Any intervention by the Court would likely be counterproductive, invite inconsistent obligations on the part of Lamb Weston, and potentially delay the implementation of the corrective measures that Plaintiffs seek,” they wrote.
In their filings, the defendants called the basin’s nitrate issue “complex” and in need of “specialized expertise.” A motion to dismiss filed jointly by the Port of Morrow and Threemile Canyon called the pollution an “intractable environmental challenge” that could be dragged out by court intervention.
The defendants didn’t stop at jurisdictional arguments.
Some argued that none of the plaintiffs live in close proximity to their farming and industrial operations, and that they failed to point to specific instances of pollution that led to the basin’s residents water testing high with nitrates. Attorneys for Lamb Weston called the lawsuit a “shotgun pleading.”
“Plaintiffs have lumped defendants together such that the allegations against Lamb Weston and other defendants blend, making them indistinguishable,” he said. “Indeed, the Complaint is replete with allegations that make no attempt to state which Defendant engaged in which alleged conduct and which Defendant caused what harm.”
A federal judge will decide at an Oct. 29 hearing in Pendleton whether the motions to dismiss hold merit.