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Appeal planned in lawsuit challenging state’s Clean Water Act authority

By MATEUSZ PERKOWSKI

Capital Press

A livestock auction company is planning to appeal a federal judge’s dismissal of its lawsuit challenging the State of Oregon’s oversight of confined animal feeding operations, according to the company’s lawyer.

Last year, the Eugene Livestock Auction of Junction City, Ore., filed a complaint against two state agencies — the Department of Environmental Quality and the Department of Agriculture — claiming they were illegally administering federal law.

The complaint alleged that Oregon doesn’t have the proper authority to enforce the federal Clean Water Act, which means it “may not administer an independent state-based, water pollution control program related to confined or concentrated animal feeding operations.”

Even if the state can enforce that law, the plaintiff claimed the Oregon Department of Environmental Quality improperly delegated its authority to the Oregon Department of Agriculture.

U.S. District Judge Michael Simon has now dismissed the lawsuit, finding that the auction yard should have made those arguments during previous state administrative proceedings.

Between 2008 and 2010, the livestock auction was cited three times by the Oregon Department of Agriculture for allegedly failing to comply with the terms of its Clean Water Act permit, according to a previous opinion.

In each of the three cases, the company could have appealed the findings in state court but chose not to, the document said.

The underlying controversy in those proceedings was the same as in the federal case, so the livestock auction already had the opportunity to question the state’s power over CAFOs, the judge said.

“When plaintiff received the noncompliance notices, plaintiff could have raised the defense that the state did not have the authority to regulate plaintiff before ODA or before the Oregon courts,” Simon’s ruling said.

Bruce Anderson, owner of the livestock auction, said Oregon’s regulations don’t comply with the federal Clean Water Act and were never approved by the U.S. Environmental Protection Agency.

Anderson said that a drainage ditch from a state highway diverts water onto his property, causing it to flood.

He said the state entered into a settlement deal agreeing to correct the problem when it planned to build a prison nearby, but the project was scrapped and the flooding persists.

“It was the state causing the discharge on my property and the Oregon Department of Agriculture was fining me for it,” Anderson said.

Jacob Wieselman, attorney for the auction, said he believes the ruling was erroneous and plans to appeal it.

The previous state proceedings were separate from the company’s lawsuit, which asked the federal court to interpret the Clean Water Act, Wieselman said.

“We’re just looking at the law,” Wieselman said. “We’re not challenging the fines or prior actions.”

Capital Press was unable to immediately reach Stephanie Parent, the attorney representing the state agencies in the case, for comment.

Source:  http://www.capitalpress.com/content/mp-livestock-auction-ruling-080513

 

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