Abusing the courts to raise funds and then attack farmers

But a larger story has emerged in which RE Sources, led by the Puget Soundkeeper Alliance, is participating in a controversial fundraising technique involving the use or, some would say, abuse of the courts. The action against Ferndale Grain is one example. Even though these lawsuits go on with the protection of the notedly extreme Ninth Circuit Court, legal authorities in major universities note these lawsuits violate the intent of Congress and the direction from the Supreme Court while generating millions of dollars for Northwest activist groups. Farmers across Washington state are very concerned because significant dollars from these sources are being used to fund efforts to create public anger against farmers and secure political support for anti-farm actions. Some of these funds have been directly linked to the “What’s Upstream” political attack on farmers that angered over one third of Congress and is still being remedied by legislative activity in Washington DC.

There are some who will think it is good to get money from big companies and use that money for environmental purposes. We note that some good environmental projects have come from it. But we believe most who discover this will see that even if some good comes from it, the ends do not justify the means. Plus, when the money is used to fund political lobbying and to promote false accusations against our family farmers, most would agree this is a practice that must stop.

How the citizen law suits work

Federal pollution law allows for citizen enforcement

The federal Clean Water Act came into being with that name in 1972 as a means of protecting against water pollution. Although it is federal law, the enforcement of it is done largely by state agencies, such as the Washington State Department of Ecology. It also provides for citizen enforcement, but following abuse of this provision in the 1980s Congress clarified that such citizen enforcement would only be allowed if federal and state agencies failed to stop significant pollution. Despite this and despite clear direction from the US Supreme Court, the lawsuits continue but only under the protection of the extreme Ninth Circuit Court in San Francisco (details provided below).

State permits guarantee that perfect compliance is impossible

Permits issued and enforced by the state Department of Ecology are so complicated and convoluted that legal experts on both sides of citizen suits agree that 100% compliance is essentially impossible. Agency enforcement action does not focus on minor permit violations such as recordkeeping discrepancies. But these minor violations provide the basis for most of these citizen suits.

In the case of Ferndale Grain, the so-called violation according to press reports involved water that was more turbid or cloudy than state law allowed. Not only is this not a major pollution issue, but according to the news report, the violations date back two and four years! Zinc is not a toxin as activists may claim, but is needed in our food and animal feed as a micronutrient. Copper, the other “toxin,” referenced, is the most important pesticide used by organic farmers and is also a micro-nutrient. By making claims of this being significant pollution of toxic materials, these lawsuits put a cloud over organic farming practices.

Companies with deep pockets are targeted

A law firm in Seattle specializes in this type of citizen enforcement action. A detailed review of the compliance record of a target firm will almost always bring up some kind of minor violation. The deep pockets are essential as was made clear in the lawsuit against Ferndale Grain when the court documents stated that the company’s owner, Cargill, could afford to pay the substantial penalties. Clearly ability to pay is a primary motivator in these “environmental” actions. This could be seen as a “Robin Hood” strategy except the gains do not go to the public, but in many cases go to the environmental groups suing.

Extremely heavy penalties threatened

Any violation of the Clean Water Act can involve potentially heavy penalties. The Ferndale Grain action claims the violations accrue penalties of $52,414 per day. Note, this is for cloudy water dating back two to four years with essential nutrients. But, add these up and Puget Soundkeepers and RE Sources with their attorneys are threatening the company with up to $20 million a year in penalties. The news article said the lawsuit covered multiple years so the threat against even a large company with deep pockets is very significant.

Settlement dollars help fund those suing

Defendants almost always choose to settle. Indeed, that is the intention of the citizen lawsuit. Those filing the suit do not want to go to court as it would involve substantial time and work on their part, so they threaten huge penalties but settle for comparatively little. The settlement includes payment of substantial legal fees as well as the “expert” hired by the Seattle law firm, who just so happens to have his office with the lawyers. It’s his lucrative “profession” to show up at the target site, give his “expert” opinion, and then get paid a hefty sum. The law firm gets paid from the settlement, but what about the “citizens” filing the suit? They cannot receive funds directly in a Clean Water Act case, so a way has been devised so they can get funding through an indirect method. This circular system is why we believe the impetus for these is not environmental protection but fundraising for activist groups.

The settlement usually involves payment into a Supplemental Environmental Project or a “mitigation fund.” This avoids the payment of penalties to the federal government which would just go into the treasury. Such payments don’t help these activist groups. Instead, the settlement specifies payment to an organization like the Rose Foundation in California (https://rosefdn.org/). This foundation raises funds through donations and legal restitution payments and then provides grants. The biggest source of their funds is restitution payments from the kind of citizen lawsuits we are discussing. Their website states they have received over $25 million in restitution funds which then have been distributed to a number of organizations in the form of grants.

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The Puget Soundkeeper Alliance is at the heart of these questionable legal actions

On their website, Puget Soundkeeper Alliance states that they have undertaken 170 of these citizen lawsuits since 1992 and the result of these is $5.16 million in mitigation and penalty money. Puget Soundkeeper says the money goes to environmental restoration and water quality improvements and declares that the non-profit does not receive any funds itself. That in itself is uncertain, but it is clear that their environmental partners definitely do receive funds. The lawyers and “expert” witnesses used also definitely receive payment of their fees as the Rose Foundation website explains:

Settlement funds are then donated to local environmental groups to help them repair damage done to the Sound. Soundkeeper receives no money from these settlements; however, the lawyers on the cases receive repayment of attorneys’ fees and expenses, which are paid separately from the mitigation fund.

Puget Soundkeeper Alliance reports on its site the $5.16 million does not include the reimbursement of legal fees needed to pursue the litigation. Whatever amount Puget Soundkeepers received in legal fees is not disclosed, nor is the retention of any of those funds paid to attorneys or beyond what was paid to attorneys.

How these funds are used to support anti-farm activism
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The Rose Foundation and Puget Soundkeeper Alliance state these funds are for environmental restoration and water quality. Most of the money does indeed go to what appears to be valuable projects. The concern of Save Family Farmers is the attack against farmers by a few of the groups receiving funds from these citizen lawsuits. The claims by those involved that these are used for environmental purposes is not supported by an in-depth look at the details. The Puget Sound Mitigation Stewardship and Mitigation Fund has been used for:

• a false and malicious attack on farmers that most view as illegal lobbying
• data and “constituent management” systems clearly aimed at fundraising
• “messaging” and content development aimed at furthering the public communication purposes of these organizations

Mitigation funds were used by Western Environmental Law Center to support illegal lobbying and generate public outrage against farmers through false accusations.

To show the connection between grant funds received by Western Environmental Law Center and the What’s Upstream campaign, compare the grant request with the false accusations widely published and promoted in this illegal lobbying campaign. This is the $25,000 grant request submitted by Western Environmental Law Center which was approved:

Project Description:
In the Puget Sound; water pollution caused by industrial agriculture is degrading salmon habitat; water quality; and the Northwest’s economy and culture. For the last 30 years; the State of Washington has spent billions of dollars on voluntary incentive programs designed to reduce agricultural pollution and to facilitate the recovery of salmon in the Puget Sound basin. These voluntary incentive programs; while a potentially useful tool; have largely failed to improve water quality and restore salmon and shellfish habitat; and a new; comprehensive approach is needed. Funding supports policy development and related advocacy to help state government develop and implement an Agricultural Pollution Prevention Strategy to restore salmon and shellfish in Puget Sound.

The $60,000 grant request approved in 2014 provided the basis for many of the false accusations of this ill-fated campaign and makes it obvious the intent was lobbying:

However; there are no legally-enforceable rules that protect salmon from non-point source pollution resulting from agricultural activity…The results will be compiled and broadly disseminated in a report to help regulators; governmental policy makers and the public understand the values and drawbacks of the current voluntary approach to this major pollution source; and encourage the use of a more stringent regulatory approach where needed to protect Puget Sound’s water quality and salmon fisheries.

We note that Western Environmental Law Center disclosed that the funds used to develop their attack piece on agriculture, called Agriculture Pollution in Puget Sound, which served as the basis for most content in the “What’s Upstream” campaign, was funded by the mitigation fund set up by Puget Soundkeepers and delivered through the Rose Foundation. The false statements made in this document and the campaign were rejected by the EPA based on the intentional use of old and outdated science studies. This critique was revealed through Freedom of Information Act documents on the “What’s Upstream” campaign secured by Save Family Farming.

RE Sources received $144,000 in “mitigation” funds but used them for purposes far beyond environmental improvements

Given that farmers have been the target of significant community outreach that included widely publicizing false accusations about farmers, we are very concerned when we see these funds being used for anti-farm propaganda purposes such as was included in a $60,000 grant:

The project will also facilitate outreach and resident education via a series of fact sheets; written materials; published articles; the training of a cadre of interns and volunteers who will conduct conversations within the community; as well as the formation of two stakeholder groups that will vet solutions to the problems of urban stormwater and fecal coliform.

Perhaps more troubling is using funds that these groups all claim are specific to environmental restoration and water quality, to build the organization’s capability to raise more funds. A $50,000 grant was used in part for:

In order to provide adequate back-office support for the Citizen Stewardship groups; a portion of the funds also helps defray fund needed communications and data-management upgrades including a web-based; constituent relationship management database system.

These lawsuits violate the clear intent of Congress and the US Supreme Court

These citizen lawsuits are controversial because law experts make it clear they way they are exercised is against the clear intent of Congress and the US Supreme Court. In fact, all federal courts have significantly limited these cases, except for the Ninth Circuit Court, well-known as outlier in legal decisions. Every other federal court has upheld the intent of Congress and the US Supreme Court in rejecting citizen lawsuits that don’t meet the standards established by Congress and the high court. Puget Soundkeepers Alliance, RE Sources and those groups participating are operating under a legal shield that legal experts seriously question.

In the February 2015 Journal of Legislation, Patrick S Cawley wrote an article titled “Diminished Need for Citizen Suits to Enforce the Clean Water Act:”

Congress’ intent that government agencies should enforce the Clean Water Act. The Supreme Court has recognized this congressional goal, and further restrained citizen suits. In Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation,” the Supreme Court held that a “citizen suit” under § 1365 must allege “a state of either continuous or intermittent violation – that is, a reasonable likelihood that a past polluter will continue to pollute in the future.”‘ 2 Thus, if an agency has issued a compliance order under § 1319(a), but the violator continues to pollute the water, a citizen who lives or works downstream from the offender may augment the enforcement of the Clean Water Act by seeking injunctive relief and monetary penalties. The citizen suit will be inappropriate, however, when an effective compliance order spurs a polluter to eliminate or treat the effluents he discharges. Courts after Gwaltney consider this offense wholly rectified, and demand that citizen suits address only ongoing water pollution that has not been stemmed by governmental action.

The intent of Congress is that enforcement would be by government agencies and the US Supreme Court upheld that in the case just mentioned. But Puget Soundkeeper Alliance and the others participating in these operate under the aberrant protection of the Ninth Circuit Court. Cawley makes clear the legal error of this extreme court:

That State agency programs to reduce pollution take priority over citizen suits is a recurring theme of the CWA. The Supreme Court explained that he bar on citizen suits when governmental enforcement action is under way suggests that the citizen suit is meant to supplement rather than to supplant governmental action. The legislative history of the Act reinforces this view of the role of the citizen suit. The Senate Report noted that “the Committee intends the great volume of enforcement actions be brought by the State,” and that citizen suits are proper only “if the Federal, State, and local agencies fail to exercise their enforcement responsibility.” This explanation highlights the mistake made by the Ninth Circuit in allowing citizen suits to disrupt calculated enforcement strategies of the State agency. According to the Supreme Court’s explanation, citizens harmed by water pollution must trust the Federal and State agencies to combat the problem, but when governmental attempts to thwart pollution prove to be truly dilatory, the citizens may begin an action.

Another scholarly analysis in the William & Mary Environmental Law and Policy Review is titled “Has the Citizen Suit Provision of the Clean Water Act Exceeded its Supplemental Birth?” Written by Jonathan S. Campbell, it makes clear there are serious negative consequences to this action by the Ninth Circuit Court including the pursuit of “vengeance and personal self-interest:”

Such deviation from congressional intent and the plain language of the Act results in an overabundance of citizen-suits flooding the already polluted dockets.
Without future direction from the Court, the role of the citizen-suit will inevitably expand past its supplemental birth and muddy the waters of the Act with vengeance and personal self-interest.
[source linked here]

However, what company threatened by these wants to spend the money necessary to take the very wrong decision by the Ninth Circuit Court all the way to the US Supreme Court? Most simply want to negotiate for pennies on the dollar and allow the shakedown to continue with minimal publicity and cost. Does the Ferndale Grain lawsuit for example qualify based on the intent of Congress and the Supreme Court? Not even close. What it does qualify for is the accusation that such cases are about vengeance and self-interest – in this case, the self-interest of these “citizens” to fill their non-profit coffers.

Is Puget Soundkeeper anti-farm?
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Because the Puget Soundkeeper Alliance appears to lead in this area of environmental legal action and development of funds used to attack farmers, does not mean that this respected environmental group is anti-farm. No doubt, leaders would claim the opposite. However, such words matter little to farmers who instead watch the action of this group in taking multiple steps to harm farmers through false accusations and legal action.

Save Family Farmers considers Puget Soundkeepers to be one of the biggest threats to the future of our family farms for these reasons:

1. They were a willing and eager sponsor of “What’s Upstream,” the vicious anti-farm campaign condemned by Congressional leaders and one third of the members of Congress

This campaign contained numerous false accusations about farmers and even used images from dairy cows from Pennsylvania and the UK to illustrate the lack of regulation. Nowhere did they clarify that despite the false impression left by these images, dairy cows and manure runoff are forbidden to be anywhere near streams in Washington State. This was an overt and illegal lobbying campaign using taxpayer dollars to attempt to pass legislation in the Washington legislature. The latest documents released to Save Family Farming show that even EPA officials recognized that it was lobbying and the EPA’s Inspector General report made clear the intent was to lobby the Washington legislature. EPA officials also noted the numerous false accusations against farmers which the sponsors insisted on keeping.

2. Puget Soundkeepers’ website itself contains false accusations, represents an assault on the entire farming community and demonstrates their antagonism to our farms. The website says:

The truth is that 95% of our farms in Washington state are family owned and operated. Some are large, some small and a lot in the middle. Large ones and small ones all must meet farm regulations which in Washington state are some of the most stringent in the nation. As we are seeing in Whatcom County, water quality including groundwater contamination caused by 40 years of previous farming practices, is improving. It is completely false (and even maliciously false) to say that our dairy farms cannot manage the organic fertilizer produced by cows or that manure runs off into streams and groundwater. State regulations demand it and significant penalties ensure it. This accusation is offensive to the vast majority of our family farmers who are great stewards of air, land and water while producing great food. The contamination Puget Soundkeepers accuses farmers of primarily comes from urban areas and septic systems which is well documented by all respectable agencies and groups. With this kind of intentional misinformation prominently placed on their website, how can farmers conclude anything else than this group is working to put an end to our family farms?

3. The Puget Soundkeeper Alliance is attempting to force Ecology into regulations that would put an end to most state dairy farms.

Teaming up with Eugene, Oregon-based attorneys who declared in court that our dairy farmers are “killing America,” the Puget Soundkeepers Alliance is a leader in a legal appeal of Ecology’s new Concentrated Animal Feeding Operation permit. They are demanding that Ecology remove the protection against the kind of citizen lawsuits they are pursuing here despite the fact that other state discharge permits provide exactly that protection. This shows they want to keep the legal fees coming despite the fact that these lawsuits and the mere threat of them have already destroyed some of our farms. Worse, they are demanding that Ecology require all dairy farms to install lagoon liners that are so costly only the very largest farms could afford them. It would be one thing if these liners solved a significant environmental problem, but numerous studies show current lagoons built to USDA standards are protective of water as both Ecology and the state Agriculture Department have determined.

4. By working to destroy our farms, Puget Soundkeeper shows they are more interested in fundraising and legal fees than doing what is right for the environment.

The actions of Puget Soundkeepers is contrary to the Puget Sound Partnership’s Action Agenda which places a high priority on saving our farms and farmland. Sixty percent of farmland in Puget Sound has been lost to urbanization and no one (except perhaps this anti-farm consortium) recognizes that most water quality and environmental problems come from this urbanization. It is entirely reasonable to suggest, as we are here, that what Puget Soundkeepers is doing is harming the environment rather than helping it. Such is the corrupting power of fundraising.

Because of these positions, Save Family Farming will continue to aggressively defend farmers against the distortions, misinformation and dubious fundraising tactics employed by Puget Soundkeepers, RE Sources and Western Environmental Law Center. We believe that even the strongest environmental supporters can readily understand that lies do not make for good activism. When it comes to their position on our family farms, we do not consider Puget Soundkeepers to be looking out for the environment and we think most in the environmental community will agree. Forcing our family farms out directly contradicts the Action Agenda of the Puget Sound Partnership, accelerates the loss of precious remaining farmland, and adds to pollution by creating more impervious surfaces that cause the runoff and water contamination problems blamed on farmers.

What needs to be done to stop this?

Save Family Farming plans to take several steps to address what we consider a violation of the clear intent of Congress and the US Supreme Court. We will work to stop this kind of legal action and its use as a weapon against our family farms. Specific actions planned include:

1. Request a legislative review of the Department of Ecology and its permitting and enforcement practices which we believe are tacitly or directly enabling these environmental groups to engage in this shakedown.

2. Seek legislative action if needed to improve the permitting issues identified.

3. Pursue national awareness of the abuse of the law permitted by a roundly criticized Ninth Circuit Court decision.

4. Review every legal action under the citizen’s enforcement provisions in Washington state and use all available means to alert the public to what is happening and how these funds are used.

5. Investigate federal legislative changes to the Clean Water Act to eliminate environmental mitigation payment abuse and require payment of penalties to the treasury rather than allowing these groups to use these funds for their own organizational outreach, fundraising and development purposes.

6. Seek support for legislative changes to the Clean Water Act to eliminate reimbursement of legal fees to law firms and environmental groups taking legal action.