Shortly after the war, the company sought to get rid of the waste that was the byproduct of manufacturing these chemicals, and it had the toxic waste transported in over 25,000 fifty-five gallon drums to Alkali Lake in Lake County just north of Christmas Valley.   According to news reports at the time, the drums were leaking when Oregon DEQ took over the site in 1976, and it was estimated that about 50% of the Agent Orange and residues had evaporated into the air and leaked out onto the desert floor.  DEQ took over the illegal waste site because the company had done nothing to ensure the toxic waste was properly maintained.  In 1976, the DEQ crushed and buried the drums onsite as KOIN news documented in this historic footage from its news broadcast.

Now decades later, the company that made the waste and profited from its sale demands to be let off the hook by Oregon for a mere $700,000 in monitoring and maintenance costs along with a permanent cap on its future liability – capping the overall liability for monitoring only at a paltry 20%.  The company is demanding that DEQ let it off the hook for about 50 cents per gallon for the poisons it made which were dumped in Oregon’s high desert – just to cover the cost of monitoring and maintaining the site to date.  The company is refusing to take any responsibility for an actual clean up of the illegal dump site.

DEQ floated this “offer” to the public and it was rejected.  On behalf of local residents and the Oregon Natural Desert Association, the Crag Law Center objected to the settlement, and DEQ recently announced publicly that it would not go forward with the deal.   The EPA’s recent review of the site underscored the limitations of the monitoring conducted to date.   The EPA’s report identified the risks that the toxic dump poses to the threatened Western Snowy Plovers, Greater Sage Grouse,  backcountry visitors to the nearby Juniper Mountain proposed Wilderness area, adjacent cattle operations and nearby spring water sources.  The EPA did not explain how the site scores on being designated for clean up on the National Priority List (the Superfund list), and ONDA may petition the EPA to designate the area for clean up.

While Bayer Cropscience reports billions in sales every year, its attorneys have said they would fight Oregon in court unless the DEQ agreed to just monitor and maintain the site – and not perform any clean up.   If a third party opens the case, Bayer Cropscience has demanded that DEQ accept the lion’s share of the responsibility and make Oregon taxpayers responsible for 80% of the estimated future costs.

An EPA technical team visited the site last year and documented that these highly toxic chemicals are migrating from the dump site – underground and on the surface in rain water.    While the DEQ has put a perimeter fence up around part of the most toxic parts of the dump, the fence does nothing to prevent the migration of the chemicals in the ground and surface water.  The area where the toxic chemicals were applied to land – as part of failed experiments – has not been fenced off or cleaned up.  The DEQ has not proposed any options to clean up the site – as cleaning even part of it up the site could cost tens, if not hundreds, of millions of dollars.  To date, DEQ has taken a “maintain and monitor approach” – and Bayer only offered to pay based on the limited site characterization performed by DEQ.

Local citizens do not believe that the Oregon DEQ or its attorneys with the Oregon Department of Justice have done an adequate job holding Bayer accountable nor have they done an adequate job characterizing the risks that the toxic dump poses to human health and the environment.  DEQ appears to be conflicted and unable to advocate for the public interest.  Bayer Cropscience appears to be exploiting the conflict by offering DEQ a little something towards its cost to date, while foisting the burden for any clean up onto Oregon taxpayers.  On behalf of our clients, the Crag Law Center has asked DEQ to exercise its authority and work with EPA to declare the site a Superfund site and initiate a clean-up action with EPA’s help.  DEQ has yet to explore feasible clean-up options – including digging up the most contaminated soils and ridding them of dioxin.  DEQ needs to take a fresh look at the facts and pursue a meaningful settlement with the polluter.

The material at this site is highly toxic, poisonous to life – and it is actively migrating off the site.  There is no clean up planned.  On behalf of local citizens and the Oregon Natural Desert Association, the Crag Law Center will continue to press the EPA and the DEQ to make the polluter pay for the toxic mess it left in the desert.   Bayer Cropscience records billions of dollars in sales every year, and Oregon can do much better than to let the company off the hook for a pittance of just the costs to monitor.   The polluter who made the profits should pay the bulk of the costs to clean this toxic mess up.

Relevant Documents:

Proposed Settlement (Consent Judgment) with Bayer Cropscience

Oregon Natural Desert Association – Comments on Alkali Lake Settlement with Bayer

Letter to EPA from ONDA regarding Threats from Alkali Lake – December 22, 2009

Report to EPA – March 2011 re Alkali Lake Risks to Environmental Health

Maps:

Alkali Lake Vicinity Map

Aerial Map with Location of Dump Site

Map Showing Location of Arroyo

Bark and Food and Water Watch are members of the Keep Nestlé Out of the Gorge Coalition, which also includes the union Oregon AFSCME, Oregon Mission Centres of the Sisters of the Holy Names, Oregon Physicians for Social Responsibility, Environment Oregon, Alliance for Democracy and the Sierra Club.   The Coalition formed two years ago in response to Nestlé’s bottled water proposal, which has become the most controversial proposal in the Columbia River Gorge National Scenic Area since the proposed casino in Cascade Locks.

In February the Water Department approved water transfer permits that start Nestlé down the path to bottling and selling Oregon water.  The spring water is located on state property and is currently used by the Oregon Department of Fish & Wildlife (ODFW) for a hatchery raising threatened salmon.  The approved transfer applications now under protest are an integral part of the process that would lead to ODFW exchanging its water rights with the City of Cascade Locks, so that ultimately the City can sell the spring water to Nestlé.  In essence, the state agencies are carving up the water right for a publicly owned fish hatchery to facilitate Nestlé’s plans to bottle and sell Oregonians’ public water for private gain.

“It’s the State’s job to safeguard Oregon’s public resources, especially our precious water resources for the benefit of all Oregonians, not multinational corporations. Allowing the Oregon Department of Fish and Wildlife to move forward with this water rights exchange would permit a state-owned resource to be used for a private business model that is unsustainable,” said Jackie Dingfelder, Oregon State Senator for District 23. The Coalition has raised many other concerns, including the increased manufacturing of wasteful plastic bottles and Nestlé’s documented track record of not serving rural communities’ best interests when bottling public water resources.

We need your help!  Support Crag’s legal efforts to prevent Nestlé from bottling and selling our spring water by making a donation to our No Nestlé in the Gorge fund.

Stay tuned here and on our Facebook page for updates on these protests, and check out Scott Learn’s recent Oregonian article about this issue.

Currently, the rezone has been approved by the Klickitat County Planning Department and it is now awaiting approval by the County Board of Commissioners.  If the County Commissioners approve it, local citizens and conservation groups may appeal the matter to Washington Superior Court.

In October of 2011, the County planning department issued a Mitigated Determination of Non-Significance (“MDNS”) and found as a threshold matter that the proposed rezone determination was not likely to have a significant effect on the water quality, water quantity, wildlife and other natural resources enjoyed by the public and private landowners under the State Environmental Policy Act.

The affected lands and waters found in the White Salmon River valley are remarkable.  The water is enjoyed by tens of thousands of people annually and relied upon by local residents for their drinking water.  The area boasts the Wild & Scenic White Salmon River and its “outstandingly remarkable values” include wild fish, world class white water boating, a rich heritage of Native American cultural sites and unique hydrogeology of cold water springs that feed the river.  The planning area contains prime and unique farmlands that are of statewide significance and numerous Washington Department of Fish and Wildlife (“WDFW”) designated “priority habitats.”

This map shows in red the lands along the river which are proposed to be rezoned to 2-acre density, which is 10 times the density of what current zoning allows on this rural resource land.

According to a top expert in the field, Mark Yinger, the water in the White Salmon River, in its tributaries, and in the leaky, inter-connected aquifers are vulnerable to increased levels of uncoordinated new development which will rely heavily on new groundwater wells spread out across the landscape.  Download Mark Yinger Technical Memorandum to Department of Ecology

For some time now the Klickitat County planning department has tried to amend the Sub-Area Plan and zoning code to allow a significant increase in the nature and location of development which responsible agencies and individual property owners have opposed because of the significant impact on the natural resources and livability of the lands in the White Salmon River valley.

Back in 2007, the Klickitat County Planning Department issued a Determination of Non-significance for a significant rezone of over one thousand acres of land to 2-acre lots through the Husum/BZ Corner Sub-Area Plan Update (County File No. SEP2007-12, the “2007 Update”).  The Planning Commission approved the proposed update and rezone.  The County received numerous comments from multiple agencies, the public, and conservation groups.  Subsequently the County issued a DNS for a proposal by SDS Lumber Co. to rezone over 100 acres of the same Sub-Area from Resource Land to 1-acre minimum lot sizes.

The County received substantial comments from the public and state agencies and the decision of the Planning Commission was appealed by the Friends of the White Salmon River and the Yakama Nation.

The County’s 2010 MDNS relies heavily on a report produced by Aspect Consulting (the “Aspect report”) which presents an analysis of possible water quality and water quantity impacts of the Sub-Area Plan and mitigation.  The Aspect report contrasts forecasts of a hypothetical full build-out under existing zoning and under the proposed zoning. Based on its hypothetical projections, the Aspect report attempts an analysis of the impact on water quality and quantity and suggests it will be about the same because the total number of residential dwellings under the existing zoning and the proposed zoning.

The County received substantial comments from agencies, the public, and conservation groups which pointed out problems with the County’s MDNS.  For example, the County’s MDNS did not address the impacts of the rezoning on wildlife, as required by the County Commissioners, or the specific criticisms or recommendations submitted by the WDFW or the United States Forest Service in extensive comments dating back several years.

The County never obtained a peer review of the Aspect report or addressed the significant criticisms of the report identified by the Forest Service.  While the County identified the future removal of Condit Dam as being foreseeable, it did address the significant change in the existing condition caused by the removal of Condit Dam and Northwestern Lake.  The removal of Condit Dam is significant for a number of reasons. First, the lower section of the river is now full of sediments and the long process of recovery is just beginning. Second, numerous threatened and endangered fish species now have access to the White Salmon River and its tributaries within the planning area.  Third, the removal of Northwestern Lake has dramatically changed the water table and is having a significant effect on groundwater on adjacent lands.

Mark Yinger’s report underscores what the County has not disclosed, considered or analyzed in terms of the direct, indirect and cumulatively significant changes that will result in terms of new wells, new septic drainfields on the tributaries, seeps and springs along the White Salmon River.

Today, BLM announced that it will conduct a public scoping process, publish an environmental analysis and take public comment before making any final decision on access to Trout Creek.  BLM also revised its earlier order and implemented a voluntary closure during the nesting season for this year.  Thank you to everyone that emailed BLM with your concerns – your input made a big difference!

Trout Creek is still closed! It is more important than ever to respect the closure and the need to protect habitat for golden eagles.

Today’s announcement followed a recent three-hour meeting involving Eric Sorenson of the Access Fund, John Connor of the American Alpine Club and Chris Winter from the Crag Law Center.  They met with officials from the Prineville District BLM office, who expressed a strong interest in working with the public and involving climbers in the future of Trout Creek.

This is an important gesture of good faith from BLM, as they responded to our concerns and invited the climbing community to work with them to manage Trout Creek and implement an appropriate closure.  It is critical that the climbing community now take advantage of this opportunity to establish a good working relationship with BLM moving forward.  Please respect the closure.

For more information, check back here for updates and or stop by Friends of Trout Creek on Facebook.  You can also read the letter that was sent to BLM following the recent meeting.  We’re also awaiting a response to a Freedom of Information Act request, and we’ll post more information once its available.

When the scoping process opens, we’ll post information on how to participate.  In the meantime, feel free to contact us or leave a comment here if you have any questions or want to provide input.

The incredible climbing at Trout Creek

The Trout Creek climbing area in Central Oregon – one of Oregon’s truly unique and treasured recreational resources – was closed by the Bureau of Land Management on February 1, 2012.  Rock climbers from around the country have traveled to Central Oregon to experience the incredible “traditional” crack climbing of Trout Creek, which is situated on a scenic butte overlooking the world-famous Deschutes River just outside of Madras.

BLM has been considering a seasonal closure of the Trout Creek area for several months because of potential issues related to Golden Eagles.  A dedicated group of local climbers had been making every effort to talk to the BLM to ensure that Golden Eagles are protected while also preserving reasonable public access.  Local climbers have been trying to obtain from BLM information on whether and to what extent Golden Eagles have used the area in order to develop a plan to manage human access for the benefit of wildlife.  Golden Eagles are not listed as either threatened or endangered, but they are protected by the Bald and Golden Eagle Act.

Despite the efforts of the local climbing community, BLM first refused to disclose for several months information on Golden Eagle use of the area.  Although the agency was slow to produce relevant data, it had assured the local climbing community that it would conduct a public environmental assessment process before closing the area.

Despite those earlier promises, BLM suddenly made the decision to close Trout Creek without any advance notice, without any public comment process, and without any environmental analysis.  BLM decided to close Trout Creek from February 1st – August 31st, and the closure could be lifted in May or June if Golden Eagles have chosen a nest besides the one on the main wall or if no nesting has occurred.

The scenic views of the Cascades from Trout Creek

The climbing community and especially the Trout Creek locals have been excellent stewards of the environment and respect the importance of preserving wildlife habitat.  At the same time, there are many open questions as to whether BLM’s heavy-handed tactics are necessary in this situation, including: 1) to what extent do Golden Eagles use the nests near the climbing area; 2) what buffer is necessary to protect Golden Eagles; and 3) how long must the area remain closed before it is determined whether the birds will nest in an particular season.  These issues should have been answered as part of a public process instead of being made by BLM behind closed doors without any public involvement.

Please contact the following people to let your voice be heard.  BLM personnel are good, hard-working people, so please be respectful.  The Crag Law Center will be providing additional information as it becomes available.

Recommended Talking Points:

• Trout Creek is an irreplaceable, world-class recreational resource for Oregon, and it helps to support the local recreation-based economy in Madras and Central Oregon;
• Climbers care about Golden Eagles and are committed to protecting their habitat while preserving climbing access to the extent possible;
• The current closure of Trout Creek was a closed-door decision made without any advance public notice or public input; and
• BLM must conduct a public environmental assessment, disclose all relevant information, and take input from the interested public on Trout Creek access and wildlife management issues.

Resources:

• The Access Fund
• Trout Creek Guidebook
• Mountainproject Info on Trout Creek
• Friends of Trout Creek Facebook Page
• Information on the Golden Eagle
• The Bald and Golden Eagle Protection Act

Judge Rasmussen will issue a written ruling.

For more information, check out KLCC Public Radio’s coverage of the case and the January 24 Eugene Register-Guard’s article.

To learn more about the youth who are taking action and speaking out about climate change, check out the Trust Films series produced by Our Children’s Trust, the iMatter Campaign and WITNESS.

Nesting Murrelet, photo courtesy of US Fish & Wildlife

Today Cascadia Wildlands, the Center for Biological Diversity, and Audubon Society of Portland gave the State of Oregon and its forestry departments notice of their intent to file a lawsuit to protect the federally threatened marbled murrelet.

Marbled murrelets are rare seabirds that nest inland in big, old trees.  The birds have large webbed feet and require big tree limbs upon which they can crash land and moss in which they can nest.  Murrelet populations in the Pacific Northwest have been dwindling each year largely due to the loss of the mature and old-growth forests the birds require for nesting.  The marbled murrelet was listed as a threatened species under the Endangered Species Act in 1992.

Tillamook Forest thin

Oregon has a practice of playing fast and loose with the requirements for finding murrelets and their habitat, a practice that has resulted in significant logging of occupied murrelet habitat and fragmentation of the older forests upon which the birds rely.  Couple this practice with the State’s recent decisions to increase logging on Oregon’s coastal state forests – the Tillamook, Clatsop, and Elliott – and the recipe spells disaster for murrelets.

As a result, the Crag Law Center is partnering with Eugene attorney Daniel Kruse and Cascadia Wildland’s staff attorney Nick Cady to represent the groups in a lawsuit against the state.  As described in the notice letter, the State is violating the ESA by causing the “take” of marbled murrelets – i.e., by authorizing activities that are harming and harassing the birds and impacting their breeding.

Marbled Murrelet chick, photo courtesy of Peter Halasz

Read the murrelet_press_release and visit Cascadia Wildlands; the Center for Biological Diversity; and Audubon Society of Portland’s websites to learn more about this issue and marbled murrelets.

Here are some of the news articles talking about this matter:
The Oregonian
The Associated Press
OPB
Portland Tribune
The Register Guard

Since the Ninth Circuit issued its final unanimous decision this past May, a number of developments have taken place.  First, both the timber industry and the State of Oregon announced that they will ask the Supreme Court to overturn the Ninth Circuit decision.  As a first step, they must file a “petition for certiorari” requesting that the Supreme Court accept the case for review.  We expect those petitions to be filed in September, and Crag will then be working with our partners on a response defending the decision.  The Supreme Court only accepts a limited number of cases for review, and the timber industry and the State will have to convince the Court that this should be one of those limited cases.

Second, Senator Wyden (D – Or) has co-sponsored a bill that would exempt the timber industry from the permitting requirements of the Clean Water Act.  Industry has tried to convince anyone and everyone that the sky is falling in the form of a CWA permit program that has already been applied to most other industries in the country.  In response, we have been working with a coalition of organizations to clarify the contours and operation of the Clean Water Act program, which has proven to be an efficient, transparent and reliable way to protect our natural resources for more than 30 years.

The case has also generated substantial media over the past several weeks.  To learn more, you can read a sample of that coverage:

1)            The Oregonian story on Sen. Wyden’s bill;

2)            An editorial from the Oregonian regarding the bill; and

3)            A response that I co-authored with Bill Bakke, Executive Director of the Native Fish Society and Jim Lichatowich, fisheries biologist and author of Salmon Without Rivers – A History of the Pacific Salmon Crisis.

Finally, we also recently sent out an e-mail blast to our supporters asking for their help as we move the work forward.  We’re a small organization working on a shoestring budget, and we depend on the generous support from individuals that believe in Crag’s mission of protecting our natural resources for future generations.  Please consider making a gift to help with our work, and rest assured that we will continue to defend the public’s interest in clean water and our iconic runs of native salmon and steelhead.

© 2011 John Hyde/AlaskaStock.com Blurred motion view of a wolf in *black phase* running in the Tongass National Forest, Southeast, Alaska during Winter

Crag recently won a key victory in the fight to preserve old-growth forest and wildlife habitat in the Tongass National Forest.  In the case – Greenpeace v. Cole – the Ninth Circuit Court of Appeals threw out four old-growth timber sales that would have logged important habitat for the rare Alexander Archipelago wolf.  Crag filed the case on behalf of Greenpeace, Inc. and Cascadia Wildlands.

The Tongass contains some of the most magnificent old-growth forests remaining in the United States, and these forests are laid out across both the mainland as well as a network of coastal islands known as the Alexander Archipelago.  These coastal rainforests provide irreplaceable habitat for the wolf, a unique subspecies of the gray wolf, which can swim from island to island and dens in old-growth forest near salmon streams and fresh water.

The Forest Service was using a computer model to estimate impacts to wolves and deer, but the model suffered from numerous errors that greatly underestimated the damage done to these old-growth dependent species.  In a unanimous decision, the three-judge panel rejected four separate timber sales, which collectively would have logged over 1,700 acres of old-growth forest.  The Court recognized that the Forest Service was ignoring the best available science on how old-growth logging affects wolves and deer, instead relying on inaccurate and outdated data.

Years of intensive old-growth logging and road building have caused significant declines in wolf populations in the Tongass, and the errors identified by the Court have also plagued every other sale approved by the Forest Service in this area from 1996 to 2008.  For years, Greenpeace and others attempted to bring their concerns directly to the federal government, but the Forest Service refused to acknowledge the best available science or admit the errors in its computer models.  After running out of options, Greenpeace contacted Crag and moved forward with court action as a last resort.

Chris Winter, staff attorney and Co-Executive Director, handled the case for Crag and its clients.  Winter said, “The Forest Service ignored the best available science on the impacts of clearcutting old-growth forest in the Tongass.  The court issued a common sense decision requiring more from our federal government.”

For more information, the read the 9th Circuit Court of Appeals opinion and the press release distributed by Greenpeace and Cascadia Wildlands.

The communities of Padres and El Pueblo play host to the only three hazardous waste dumps in the entire State of California.  Title VI of the Civil Rights Act, signed by President Johnson in 1963, prohibits any recipient of federal funding from discriminating on the basis of race or national origin.  EPA distributed funds to state agencies that issued permits for these three hazardous waste facilities.

In 1994, Padres and El Pueblo filed an administrative complaint with EPA under Title VI of the Civil Rights Act.  At that time, the state Department of Toxic Substances Control had used EPA funding to issue permits for the construction and expansion of the toxic dumps.

Since 1994, EPA has failed to respond to the Title VI complaint, letting the allegations languish inside the agency’s co-called “Office of Civil Rights.”  Although it was required to issue a preliminary report within 180 days of accepting the case for investigation, EPA has now sat on the complaint for more than 15 years without any resolution to these civil rights violations.

The recent complaint follows up on Crag’s 2009 victory in the case of Rosemere Neighborhood Association v. EPA.  In that case, the Ninth Circuit Court of Appeals reviewed a similar situation involving years and years of illegal delay in EPA’s processing of civil rights complaints.  At that time, the Ninth Circuit noted the “consistent pattern of delay by the EPA” and stated that the delays “appear, sadly and unfortunately, typical of those who appeal to [EPA] to remedy civil rights violations.”

Crag looks forward to working on behalf of Padres and El Pueblo in prosecuting this important environmental justice case.  Their communities have struggled with these issues for many years, and we hope to be able to serve their interests along with the Center for Race Poverty and the Environment.

Complaint

Press Release