A May 2021 Ninth Circuit Court ruling rejects Washington dairy farms petition by supporting EPA’s claims of statute of limitations––even though EPA withheld documents proving their fraud until after the time limit

The Ninth Circuit Court issued a ruling that gives legal cover to federal officials to lie, cover up critical facts and get by with it. All they have to do is delay providing documents requested under the Freedom of Information Act until a 45 day statute of limitations applies.

The ruling on Thursday, May 13 dismisses a petition by a Washington dairy farmer, Adam Dolsen, and the Washington State Dairy Federation. The petition asked that a 2013 science study issued by the Environmental Protection Agency used to take drastic enforcement action against the Dolsen farm be withdrawn because the EPA failed to conduct a proper peer review of the study. The study was criticized as wrong and even fraudulent by every science expert who reviewed it as part of the public review.

The 2012-2013 Yakima Nitrate report purported to prove the dairy farmers in the Central Washington area were responsible for nitrate in groundwater. It was used as the basis for coercing four dairies to sign an Administrative Order on Consent that cost the Dolsen dairy, one of the state’s largest, to spend upwards of $10 million to comply. The EPA claimed the study was designated as “influential,” meaning it carried significant weight.

Efforts to challenge the legitimacy of the study and the peer review were rebuffed by the Obama-appointed Regional Administrator who oversaw the science study. When a Trump appointee became Regional Administrator, Save Family Farming along with the state dairy federation, secured a meeting with the new administrator to discuss the report and the peer review.

In that meeting in November 2018, key staff lied about the nature of the peer review. When challenged on the staff characterization of the peer review as “thorough and complete,” the staff told the farm groups that the study was not influential as previously claimed but was categorized as “other” which allowed for complete discretion in the peer review.

The farm leaders knew this contradicted public documents and requested a meeting and the documents to justify the claims. Those requests were denied, forcing the use of the Freedom of Information Act (FOIA) to produce the documents. The same staff involved in the coverup were assigned to release the documents and they were produced in small batches over the next 18 months.

With proof solidly in hand that EPA officials lied about the nature of the peer review and changed the designation from “influential” to “other” to lower the bar for scientific review and cover their tracks, the farm groups appealed to the Trump-appointed head of EPA, Andrew Wheeler. Their request was merely to set the EPA study aside and allow the USDA to conduct a legitimate science study. An Oregon attorney, Charlie Tebbutt, was launching a series of lawsuits against other dairy farms using the false EPA study as the basis for those lawsuits.

Failing to get the expected action by EPA officials at the national level, the Dairy Federation submitted the petition to the Ninth Circuit Court. The claim was based on the Administrative Procedures Act which provides accountability for how the federal government operates. That Act has a 45 day statute of limitations on final action by agencies.

When the petition was filed, the EPA responded that such an appeal needed to be made 45 days after the report was published. In other words, in 2013. But, the facts didn’t come to light to prove the misdeeds of the staff until six years later. Then, because of delay in allowing for meetings and providing the requested documents, the necessary proof wasn’t available until at least a year later. Adam Dolsen in the court filing stated February, 2019 was when he became aware of the change from “influential” to EPA’s claim of “other.”

Astoundingly, the Court ruled that any complaint about such a change required a petition within 45 days of that February 2019 date. It didn’t matter to the three justices that the EPA was clearly intentionally withholding documents to ensure the statute of limitations was passed.

In responding to the petition, the EPA not only tried to avoid accountability by claiming the statute of limitations expired, but also that the now eight year old report was not “final.” By claiming this, the EPA was using another technicality of the Administrative Procedures Act to say you can’t file a complaint about misbehavior while officials are still working on something.

When the petition by the farmers was first filed in November 2018, the EPA tried to have it immediately rejected based on the statute of limitations. But the panel of judges ruling on that rejected that claim and allowed the petition to be heard. It was the later panel that ruled that EPA’s statute of limitations claim was justified.

What does all this mean for farmers? As Adam Dolsen commented after the Ninth Court ruling:

“This does not make one confident that we live in a nation of laws. How can we trust the actions of federal officials when judges allow them to create false science, lie about the necessary review, delay providing documents that prove their guilt and then claim our complaints are too late?”

Dan Wood, Executive Director of the Washington State Dairy Federation, sees this issue extending far beyond the four farms inexcusably harmed by the EPA, this action and the ruling represents a great danger to not just dairy farmers but all farmers.

“The lawyer using the EPA study with close ties to the EPA regional staff has made it clear that he intends to apply the false science in the EPA report to all farms. No one is safe from this kind of abuse of the EPA and the environmental litigation industry. As we have already seen it’s not difficult to get judges to use fraudulent science to impose draconian new rules based only on the supposed legitimacy of the EPA.”