Port of Morrow’s East Beach Facility in Boardman, Oregon on April 15, 2022. Gov. Tina Kotek recently signed an executive order allowing the Port of Morrow to dump more nitrate-laden wastewater on agricultural fields.
(Photo by Monica Samayoa/OPB)
A federal lawsuit accusing agricultural businesses of polluting groundwater in the Lower Umatilla Basin is moving forward and changing venues.
In an 80-page recommendation released Monday, U.S. Magistrate Judge Andrew Hallman mostly favored a group of eastern Oregon residents, who filed the lawsuit a year ago. Hallman referred the case from Pendleton to a U.S. District Court in Portland.
The state first recognized the public health threats of high nitrate levels in the Lower Umatilla Basin more than three decades ago. Recent studies show the problems have gotten worse. Consuming high levels of nitrates has been linked to a variety of health issues, like cancer, thyroid disease and kidney disorder. Dangerous levels of nitrates in the Lower Umatilla Basin have long been connected to fertilizers and animal waste leaching into the soil.
Last February, five residents living in the basin sued some of the region’s top agricultural operations – Beef Northwest Feeders, Lamb Weston Holdings, Madison Ranches, the Port of Morrow and Threemile Canyon Farms – for claims including negligence and violating the federal Resource Conservation and Recovery Act. The residents want compensation and environmental remediation, among other things.
The businesses tried to get the case dismissed by arguing federal courts don’t have jurisdiction over nitrate regulation. They claimed that authority belongs with state agencies like the Oregon Department of Environmental Quality and the Oregon Department of Agriculture. Both agencies have lately taken steps to fix the issues, like introducing the Nitrate Reduction Plan last year.
But this state plan didn’t convince Hallman to throw out the lawsuit.
“The fact remains that it is just a plan, and there is no current proceeding or enforcement action that would allow Plaintiffs to seek the relief that they could seek … in this proceeding,” he wrote.
In court filings, the businesses also argued that they were the victims of a “shotgun pleading,” meaning the accusations are overly generalized and don’t identify who caused specific harms.
But Hallman didn’t buy this argument either, writing that “it is generally apparent which Defendants are involved in which actions.”
The original complaint states that many of the area’s residents are Latino, Indigenous and live below the federal poverty line, while relying on unregulated domestic wells for their drinking water. Although the plaintiffs’ water has tested well above federal safety standards, long-term solutions like water filters or digging deeper wells were prohibitively expensive. While some received bottled water deliveries from the state, these were often sporadic and not enough to cover household needs.
Hallman’s recommendation wasn’t a total victory for the residents behind the lawsuit.
The magistrate judge dropped plaintiff Jeannie Strange from the public nuisance claim because she rents her house in Hermiston, and her only “injury” was having to buy bottled water, he wrote.
Hallman also nixed a claim that sought to make the businesses pay for a medical monitoring system, saying that the residents failed to specifically allege how their health was adversely affected by overexposure to nitrates.
Hallman’s decision does leave the door open for these claims to be reintroduced with more supporting evidence.
Attorney for the residents Steve Berman said his legal team intends to amend the complaint and expand it to include other defendants, including Tillamook Cheese.
As the case moves from Pendleton to Portland, the debate over nitrate regulation continues in Salem.
Oregon Gov. Tina Kotek has vowed to take action toward improving nitrate levels in the basin. But, she recently signed an executive order allowing the Port of Morrow to dump more nitrate-rich wastewater on agricultural fields during the non-growing season. That order expires at the end of that season on Feb. 28.
On Feb. 21, a collection of more than two dozen environmental groups, community organizations and individuals organized by Oregon Rural Action pressured Kotek to rescind that order and declare a public health emergency.
“We ask that you act with speed – pollution grows worse with each passing day,” they wrote in a letter.
This story was originally published by Oregon Public Broadcasting.