The dust may have settled around the civil case of Kevin Kohlman versus Roseburg Forest Products, but not the herbicides. Fate and transport issues remain. Indeed, in this interview with the expert witness in the case, Dr. Susan Kegley of the Pesticide Research Institute, we learn of a surprising new twist, one of potentially even greater import than that of herbicide drift as it has so far been discussed in my series: Surface and groundwater contamination.
Drift falling directly onto a vineyard, whether upon initial application or through secondary volatilization, is only one of the modes of errant herbicide transport. It may often happen that a herbicide finds its way into the primary irrigation sources used for a crop.
Though in the Kohlman’s case, we saw prima facie evidence of a helicopter spray application clearly done contrary to label recommendations – as shown in a photo included in part 2 of my interview with the gentleman – the jury came back with a reasonable doubt. How are we to explain their decision? Apart from claims that the defendant, Roseburg Forest Products, frustrated discovery and massaged evidence, of an apparent Voir Dire violation during jury selection, and the judge’s refusal to allow relevant information into evidence, Dr. Kegley mentions an additional possible source of doubt. Perhaps it was that too few water samples were taken from the Kohlman’s irrigation sources, for herbicide contamination was strongly indicated in their holding reservoir. The idea is that both drift and improper herbicide applications, on snow melt for example, were potential contamination pathways. It bears repeating that none of the herbicides found in the Legacy vineyard were used by the Kohlmans.
Here as well does Dr. Kegley provide a crash course on what might be called the culture of the EPA; she sketches the health concerns surrounding herbicides commonly used in forestry; and offers insight into the scientific spirit. With even ’sustainable’ farming is at risk, of the dire consequences of drift and water contamination on organics, including finished organic wine, she say with classic understatement, “It’s not good press, put it that way.” Of course, her work is far more multifaceted. I strongly encourage readers to visit her company’s website, the Pesticide Research Institute, to learn more.
Please read the newspaper report Dying on the Vine for critical background. For previous installments of this series, please see Herbicides.
Admin I am working on the matter of herbicide drift and I was hoping you might help. My research began when looking into a case out of Oregon, the Douglas County area, involving a winery, Legacy Vineyards.
Dr. Susan Kegley I was the expert witness on that case.
You know, it was the funniest thing. During my conversation with Mr. Tupper of the Pesticide Action Network (PAN) a short time ago and he mentioned your familiarity with drift issues and the herbicides in that case. It is a remarkable coincidence that you were in fact the expert witness!
Dr. SK (laughs) Well, it is one of the few that made it into the papers. A lot of times these cases are settled on the contingency that nobody say anything to the public.
Is that right? I spoke to Steve Renquist. He’s the OSU Extension agent, and he went into considerable depth. He mentioned nothing about such a contingency. As the expert witness, are you free to speak?
Dr. SK The case is over. As for speaking, I was never told not to. He lost. So there is no settlement.
Yes. In that case it came down to reasonable doubt about the source of the herbicides.
Dr. SK Yes. Herbicides are used for more than one thing. The question in that case was where did these things come from. There were other uses of herbicides, but they were all further away. And the wind wasn’t blowing in the right direction to get them into Kevin Kohlman’s vineyard.
And even if one assumes roadside spraying alone might have had some effect, it certainly wouldn’t have resulted in the death of so many 1000s of vines. One of Mr. Renquist’s points was that because of fairly recent introduction of the wine industry in that part of the world, near Roseburg, that it is going to take some time for negotiations between the timber industry and wineries and grape growers to come to terms with spray drift?
Dr. Susan Kegley That would be an accurate characterization. I think that one of the things that happened to Kevin was that he called his legislator and she said what was he doing trying to grow grapes in timber country anyway? So there are a lot of barriers that need to be broken down before this is given the same weight. If you think about it economically, grapes have the potential to – and are already – contributing pretty heavily to Oregon’s economy. The state would be wise to accommodate as many different economic activities as they can. The Oregon Department of Agriculture really doesn’t think that way now.
It took 4 years for this case to be litigated. Once again relying on my conversation with Mr. Renquist, he suggested that there were perpetual continuances sought by Roseburg Forest Products. Is that your observation as well?
Dr. Susan Kegley I wasn’t privy to the day to day legal details about why it took forever. (laughs) But that sounds correct. They kept asking for the case to be dismissed.
The idea was to wear down Mr. Kohlman. Maybe this guy will just go away.
Dr. SK Yes. But he wasn’t interested in giving up and going away.
When did you come into the case? And your responsibility was to perform scientific assays of plant tissue?
Dr. SK Perhaps it was in the summer of 2008. No, there were 2 main things: Providing testimony on whether pesticides and herbicides can move from one place to another, the fate and transport of a compound after you release it from the spray rig; and then the other was to talk about damage characteristic of those particular herbicides.
So it was principally Oust and Velpar. Is that correct?
Dr. SK Yes.
But there has also been talk of 2,4,D and Garlon. I’ve been told these are used in smaller applications, a rancher spraying a fence line, for example.
Dr. SK No. They use those a lot in forestry.
And they are often used in aerial spraying?
Dr. SK Yes.
I’ve read the product sheets for a number of these herbicides. And 2,4,D was specifically recommended for grasses…
Dr. SK It’s mostly used for broadleaf plants. You may have looked a label that is specific to roadside spraying. Several 2,4,D products are made for targeting different markets, including forestry applications.
Perhaps this is merely inflammatory, but my understanding is that the product is related to Agent Orange. Is that correct?
Dr. SK Yes and no. It’s got one fewer chlorine atom than Agent Orange does. Agent Orange is a mixture of 2,4,D and 2,4,5,T. Both of those products are contaminated with Dioxins and other really carcinogenic substances. In theory they’ve gotten most of the contaminants out of the production process, so it is not clear whether that is still an issue. The EPA usually spends some time talking about impurities, and I haven’t looked at that assessment lately, but they seem to have gotten it down to the point where the EPA is not concerned about it anymore.
Were you to estimate the percentage of these chemicals, Oust,Velpar, 2,4,D, and Garlon, used by the forest products industry, where would 2,4,D fit in?
Dr. SK It is one of the main ones. People are moving away from ester formulations of 2,4,D, which is very volatile and does really drift. But that was one of the products we found that was used in the Kohlman case. They are not out of circulation.
A lot was made of the elevation of the helicopters seen spraying herbicides on the clearcut above the Kohlman’s property. The article mentioned spraying being done at 90 feet when the recommended altitude is far lower. But then there is the question of secondary volatilization on subsequent days, and as a result of environmental events, rain and wind for example. Is there science on the secondary volatility of these compounds?
Dr. SK Yes, and that is mostly what the Drift Catcher program Karl [Tupper] and I together worked on over at PAN, volatilization drift. The 2,4,D ester formulation does do volatilization drift, and most of the other chemicals used in forestry; Garlon might be the next most volatile. Certainly Oust, sulfometuron-methyl, they’re not volatile at all. They are not going to volatilize after application. So if you’re finding Oust and sulfometuron-methyl it is almost certainly from spray drift.
Herbicide Toxicity and Transport
The subject is vast and very complicated. And bringing bad news to one’s readership is often met with a shrug. The wine community tends to be upbeat, and a bit on the conservative side. In any event, someone wouldn’t buy vineyard property in complete isolation from all local services. Neither would virtually any business. So it is more likely that there is patchwork of land ownership nearer towns and cities. So with respect to drift upon application and drift from secondary volatilization after application, many more people and farmers are potentially affected by timber industry herbicide use than simply Mr. Kohlman and his vineyard. Now one of the issues OSU Extension agent Mr. Renquist could not address are the health risks associated with these chemicals. Could you speak to that matter?
Dr. SK 2,4,D is on the list of possible carcinogens.
Is that because of Dioxin contamination?
Dr. SK Probably, but it’s not really clear. Very few of the tests have actually been done with very pure 2,4,D. And then the question becomes whether someone is using pure 2,4,D in the products. And that is not clear either. There is certainly still some Dioxin contamination. That’s the issue with 2,4,D. It is also an endocrine disrupter. There is a fair amount of evidence that shows that it interferes with reproduction in amphibians for sure, and potentially humans as well.
Garlon, at high enough doses, causes birth defects. And again, are you going to get enough from spray drift to have that effect? We’re not sure. It depends on the particular incident. All of these herbicides can make their way into groundwater. They are all potential groundwater contaminants. You run the risk of exposure through both air and water when living in the area, particularly if you’re on a well.
Oust and sulfometuron-methyl have relatively low toxicity to humans, but a super high toxicity to plants. So that anything that depends on plants for food – like grape growers and vineyard owners – (laughs) it’s particularly problematic. But it not so much of human health risk. Or even fish or aquatic organisms, or birds, anything like that, not the data I’ve looked at anyway. There are always more studies that can be done, but basically it comes out pretty clean on those studies.
And then Atrazine is also on the list of endocrine disrupting chemicals. Its been a big deal at EPA. People have been trying to get EPA to regulate it, but it’s billions of dollars a year for Syngenta, the company that makes it. EPA has trouble making decisions about chemicals like that.
Whose Science Is It Anyway?
There is also the question of synergistic effects. Everything is tested on a chemical by chemical basis, but in the chemical bath an industrial agricultural area can be, it seems somewhat futile to analyze each in isolation.
Dr. SK But we have no data on the testing. No one has tested them as mixtures even though they are often formulated as mixtures of active ingredients in the products. It is another failing of our regulatory system although I do not want them to spend the next 50 years doing the tests on the mixtures! I would like to see them move to something besides the more toxic herbicides and pesticides.
That raises another question about whose science is it? I mean, Monsanto is infamous for its ability to skew and bend research protocols to already preconceived ends, if I may put it that way. I’m trying to be diplomatic here. So how do results from your organization, the Pesticide Research Institute, confront the often proprietary research done in university labs, for example, by companies like Syngenta and Monsanto? In other words, how can science be done if the scientific protocols and results are not publicly known?
Dr. SK Well, EPA uses a certain set of data to register the pesticide/herbicide, to make the decision to allow it to be used. That’s public. Or at least EPA’s interpretation of it is public. We don’t get to look at the actual studies. EPA’s staff writes it up, and that is what’s made available. So we have that data. We’re really relying on the agency to do a good job of that. But that does not always happen, that’s for sure.
Where you have some help is with independent researches, mostly at universities, who are studying the effects of these chemicals as well. The problem is that for someone trying to get research money, funding for research on these things, it’s not a particularly sexy topic. So it is not well-funded. It’s like, ‘Yeah, you’re doing the same studies that a billion other people have done. You’re not learning anything new.’ And that is the goal of academic research. Tyrone Hayes, who is a professor here at UC Berkeley, has been doing research on Atrazine and its effects on amphibians. He’s finding feminization of male frogs so that they actually have ovaries and eggs. EPA is trying really hard to ignore his evidence. (laughs) EPA has said that it’s an effect that the frogs were feminized, but it’s not an adverse effect!
We certainly don’t have enough information on these chemicals; but we have more than we do on a lot of chemicals. And that’s helpful. We have enough to know that we shouldn’t be using some of them. From the angle of the grape growers, these really toxic and persistent herbicides and pesticides, like Oust and sulfometuron-methyl, because they just don’t go away for years, they really should be reserved for very, very select uses where you don’t really want anything growing anywhere! There are not too many of those situations. Certainly not steep hillsides with forests and soil!
It is not clear in the Kevin Kohlman case. Certainly drift played a part. But it is also possible that the ground water he was using for his vines may have been contaminated. There were not enough water samples taken to really confirm that.
Can it be said that EPA evaluations take into consideration ‘extra-scientific’ considerations? From the outcome of the Kohman trial, for example, it’s clear that it was very difficult for the jurors to overcome reasonable doubt. He didn’t seek a change of venue, perhaps because the Kohlman’s felt completely confident in the quality of their scientific evidence they had amassed. [See the interview with Mr. Kohlman, conducted after this, for his reasons in not seeking a change of venue. It had, among other reasons, to do with the requirements of a civil suit. -Admin].
Dr. SK Do you know what happened, though? The jury foreman who, once selected, and having sat through the whole trial, he died the night before, or very soon before the verdict was made. The person who was the alternate – and I’m telling you what I heard from the attorneys – had worked for the forest service in the past; but he had not revealed that during the Voir Dire, the jury selection process. He had apparently made some comment like ‘I’ve worked with herbicides all my life. There is nothing wrong with them.’ Had he said that during the Voir Dire process he would have been excluded from the jury. There were all kinds of things that didn’t work out quite right.
Yes. I read in Marie-Monique Robin’s The World According to Monsanto it often happens that chemical company executives, whether from Monsanto or Syngenta, others perhaps, bounce around from private to public service. It is not unusual for someone to go from an elevated position within Monsanto to the EPA, for example. That’s what I’m getting at. It seems that there is an extra element here that vitiates the science. So my question is how does one work to make science triumph as opposed to political expediency and convenience.
Dr. SK That’s a really good question. If I knew the answer to that… (laughs) But that is the key question. The hires that are made at EPA, even at the staff level, are vetted by industry, at least that’s what I hear from inside the agency. I have not confirmed that myself, but I know someone pretty high up in the agency who said that during the Bush years there was a lot of this, even among fairly low-level staff positions, this vetting by the industry. The thing is, political appointments can only take you so far. Your staff has to made up of good scientists. They have to believe in protecting public health. You can change the upper-level by political appointments but the staff, they’re government employees, so they’re impossible to change. If you get someone who isn’t a good scientist and who doesn’t care about public health protection, you will be out of luck for many years.
Ultimately you will be found out, whether through the Freedom of Information Act or peer review of your work, presumably…
Dr. SK It’s really hard to distinguish between crappy work and someone with a bias.
With respect to Oust and Velpar, one of them, perhaps both, that among the scientific experiments concerning drift involved applying them under ideal circumstances, in this case on a table top landscape, the plains of Texas, rather than the rugged, mountainous landscape of Roseburg Forest Products’ Oregon. There the temperature changes at elevation, as does the wind and fog, heat gradients, the presence of water, and so on. That would seem to suggest that instructions for the application of herbicides are short-sighted, to say the least. Experimental conditions differ significantly from the real world. So what are we to make of label instructions?
Dr. SK True. That’s exactly right, every bit of it. (laughs) EPA exercises its control over pesticide/herbicide risk through the label. And the label specifies certain application conditions. But there is no one checking. There is very little enforcement, put it that way. No one comes by with any frequency to check if your application is being done correctly; whether you have the proper nozzle size; whether you are applying when the winds are low enough or high enough to prevent drift. It’s a house of cards set up on a label which can’t be enforced. Or it isn’t being enforced. It doesn’t work.
Crop Sensitivity And Organic Woes
What is it about a grapevine that makes it particularly susceptible to these toxins, these herbicides?
Dr. SK There are several different mechanisms of action for these herbicides. Grapes grow really fast during their season. And many of the mechanisms of action of the herbicides are inhibiting some pathway for a vine’s growth. They are particularly sensitive. There are probably many other crops similarly sensitive, but since they are growing a lot of grapes in that area you’re seeing the effects in a vineyard first. In California there have been issues with prune and plum trees, orchard crops, with herbicide drift. They are still finding herbicides used on rice in damaged prune trees 10 miles away. So, grapes aren’t unique; but they are fast-growing and therefore are pretty susceptible.
My understanding is that the levels required to do significant damage are quite low, down to parts per billion. It mortality high at such levels, or is it damage from which a plant could recover?
Dr. SK There is damage from which the plant could recover but you might lose your yield for the year, lose your harvest altogether. I think what Kevin Kohlman was seeing was that established vines would suffer damage, but not die. But the new vines couldn’t handle it at all. They died.
What happens to one’s organic certification when herbicide drift is implicated in crop damage?
Dr. SK They can’t market their crop. Their certification doesn’t usually get revoked because it’s not their fault. Another case I did involved Larry Jacobs who owns Jacob’s Farm Del Cabo out of Pescadero, California. He was getting drifted on by brussel spout pesticide applications that were upwind of him. He would periodically test his crops just to be sure he’s not adding pesticide residues. I think he has to some of that for marketing. Once he detected residue from brussel sprout drift, he couldn’t market his crops for a couple of years.
Grapes are somewhat different. You don’t necessarily test the grapes directly. And from those grapes a wine is made. In your scientific opinion, can herbicide and pesticide residues end up in the finished wine?
Dr. SK Yes. I’ve seen some data on that. There are some that make it in. In fact, there were such residues in Kevin Kohlman’s wine. 2,4,D was found in his wine. That’s not good. So growers really do need to worry about that because, well, it’s not good press, put it that way. I’m not sure whether the FDA tests wine, whether I’ve seen the data there, but there have been several publications on different food crops, and wine was one of them. Yes, it’s an issue.
Are the tests expensive?
Dr. SK Yes. About $300 a sample.
There was a instance of this recently. I read of an enterprising couple of wine bloggers who took what is known in the trade as a ‘natural’ wine made in Washington State, the Walla Walla area, where winegrowers have had difficulties with orchardists and wheat growers, and they submitted it for testing. Now, let me first add that as far as I’ve been able to determine, winegrowers do not necessarily want to know if they have drift issues, even when an orchard or wheat field is very near their vineyard. So the wine bloggers did submit a sample of the wine but only, as far as I know, for the testing of volatile acidity, bioamines, levels of which would cause spoilage or would at the very least suggest poor winery hygiene and quality control. They did not look for pesticide or herbicide residues. If one were to do a test does it cost $300 per compound sought?
Dr. SK No. There is a lab that we use for our air monitoring work. They do a multi-residue scan for about 130 pesticides for about $350 a sample.
Are you an avid wine drinker?
Dr. SK I am, indeed!
And finally, would you tell me how you arrived at your profession?
Dr. SK I have a Ph.D in Organic Chemistry from the University of North Carolina, Chapel Hill. After graduating in 1982, I taught in academia for 14 years, and did research on organometallic chemistry; nobody knows what that is. (laughs) Then I became very interested in doing environmentally-related chemistry. I then reoriented my research program to start looking at fate and transport of chemicals in the environment. I moved to Berkeley in 1992 and started an environmental chemistry program there, a curriculum development program to get the students using state-of-the-art instrumentation and doing their own projects. They would go out in the field, take the samples, bring them to the lab and learn how to do the analyses. They would learn the whole process, along with data interpretation.”
One of our experiments was on strawberries. We went to the California Department of Food and Agriculture’s lab that does such analyses. After doing our work, it really changed their opinions about what they were eating. When you can see the chemicals on your food, it makes it very real.
In 1998 a job opened up at PAN, the Pesticide Action Network. I took it. And I have been doing pesticide research ever since.
Thank you very much for your time.
Dr. SK Good luck. It’s important for this information to get out to the public.
Here is offered the conclusion of my interview with Kevin Kohlman of Legacy Vineyards. I spoke with the gentleman as he drove along I-5 as it threads it’s way through southern Oregon. Ironically, he was Just passing near Roseburg, returning from a consulting job in California’s Bay Area. In his former life he was a chemical engineer. And owing to the financial calamity following upon his failed lawsuit against Roseburg Forest Products, I was surprised to learn he’s had to come out of retirement. Here you will read how he sees the future of the timber industry and of Legacy Vineyards. You will read further details of the cozy relationship between government and Big Timber. And you will get an idea of his indomitable spirit in the face of the potential of further damaging herbicide drift. For Oregon is his home. No timber baron is going to drive him away. This time he’ll ready for them.
Previous posts in this series:
Herbicide Drift And An Oregon Vineyard
Oregon Herbicide Politics, Part 1
Admin I presume spraying will resume in March and April. How do you plan to approach it this time?
Kevin Kohlman If we see damage in the vineyard we definitely now have the list of experts. And if we can get into the vineyard early enough when the damage occurs, we can put together information and absolute, rock solid evidence such that there could be no doubts as to where the herbicide came from. But you’ve got to remember it’s kind of like a quarterback: I should have thrown the ball to the guy on the left side of the field instead of the right. So I lost the Super Bowl. We never get to live in hindsight.
About the time we got to the point where we could really collect data, and the experts could do something, because of their summary judgement delays in the court system, and because of the delays by the Department of Ag, we were way past the time when we could have gotten effective scientific data. In hindsight, if I had it to do over again, the only thing I’d do differently is that I would have the right experts on top of it from a sampling standpoint.
But the thing you’ve got to realize is that if I have a notice that they plan to spray 14 different products, it gets costly. Let’s say I have one of Dr. Kegley’s Drift Catchers in my vineyard, and I ran that thing 365 days a year, when I get a notice that they’re going to spray 14 products, each one of the 14 analyses is about $1,000. So if I have 14 products on one notice, I have to run 14 tests at a cost of $14,000 just looking for the product that killed vines. And if I have 12 notices, each with a list of 14 products – and not all of them overlap – I could have a $40,000 bill just running a test to say, ‘Yup, we found herbicide in the air around your vineyard”. And then comes the question of how do I tell which one of those products killed my vines followed by figuring out where the herbicide came from.
So what needs to change is that the Departments of Ag and Forestry needs to say that they will not allow a timber industry notice to merely read that they plan to spray 14 products sometime with the year. They need to insist that the timber industry tell them exactly what they plan to spray and when they plan to spray it, say within a two week period. Then someone could catch somebody drifting herbicide. But the fact that the Department of Forestry doesn’t do that tells me that they don’t want anybody to find drifting herbicide.
Testing is very expensive, and then tracking it back to the point of origin is otherwise very difficult.
Where would you estimate Roseburg Forest Products is in the cycle of the clearcut above your vineyard? How tall are the replanted trees? And what is the life expectancy of the replanting before it is again harvested?
KK Well, typically they’ve got a 40 year turn. They harvested that clearcut directly above us in 2003. They sprayed it for the first time in 2004, and we were damaged. They sprayed it again in 2005, and we were devastated. They sprayed it again in 2006, and we were hit because we had evidence of new product. So, in other words, every time they’ve sprayed that clearcut, even when they’ve sprayed the roads by hand, we’ve been hit. But if you called Roseburg Forest Products tomorrow and asked them what they sprayed on this township range and section, they could look at you and say, “Go jump off a bridge! We’re not going to tell you that information.” And the Department of Ag can’t make them tell you that information either. The Department of Ag doesn’t even know!
They make no effort to know.
KK Well, they don’t know. They’ll tell you they don’t gather that information. They cite budget cuts, blah, blah, blah. The days of excuses have got to end. You want to talk about anger, if I could get the ear of the Legislature and the Governor’s office I would tell them that these two departments, Forestry and Agriculture, need to be eliminated tomorrow. If they want to save money in the budget? Get rid of them. They do nothing.
I mean, how many public feet of timber has been harvested in the last 5 years? Zero. It’s all private timber. so the only thing the Department of Forestry really does is make sure that the taxes from the private timber harvested gets collected. That’s about all they do. They are little more than an expensive tax collection agency. (laughs)
My understanding is that there will be other vineyard properties moving in over the years. Steve Renquist mentioned that there will be additional pressure on the forest products industry generally because the area is very good for growing wine grapes. That the quality is there. And that wineries, too, can be a source of revenue, as can the hospitality industry with hotels, wine tours, and the like. Can the Oregon state government be persuaded that there is an important economic argument to be made in favor of the wine industry?
KK Well, again, I’ll quote you back what Ms. Morgan [former legislator] said to me, “What are you doing growing grapes in timber country?” As long as the Legislature and the government officials think that timber is the only option for Oregon, the wine business can pretty much go jump the fence.
So the government is willing to close the door to economic diversity in the agricultural sector just for the sake of the forest products industry?
KK Who owns the Legislature? If I drive to Salem, Oregon and I park right across from the Director of Natural Resources’ office, I’ve parked in front of a multi-million dollar building that was donated by Hallie Ford, Alan Ford’s mother. [Alan Ford is president of Roseburg Forest Products] It’s called the Hallie Ford Art Museum. So I got a real clear message about where I stand in this process. I know exactly where I stand in this battle. If the justice system isn’t going to step in and make sure things are done right, and if the economics of the litigation itself means somebody’s got to have a million dollars in their pocket for a lawsuit, and unless you have a hit like mine where it’s 3.5 million dollars in losses, who is going to try? And those are hard dollar losses – there’s no soft stuff in there – it’s all economic and market leadership. I was the second vineyard in Oregon to plant Tempranillo. How much market leadership do you think I’ve lost? So what if somebody has a vineyard and their loss is only three or four rows? For that year maybe it’s a $20,000 or $30,000 loss. Do you think they are stupid enough to go to court to try and stop the herbicide drift? It would not be a financially sound decision. The system is set up to make sure it’s not a financially sound decision to go to litigation.
The public right now thinks they’ve got a Department of Ag, and they’ve got this investigative group, they must be making sure the public is safe. But I’m in the background screaming that their investigation is a joke! Here’s their investigation on the 2,4,D issue… are you ready?
Go for it.
KK A representative from the Department of Agriculture got on the phone, called Roseburg Forest Products and asked them if they sprayed 2,4,D and Garlon on the road at the top of the Tyee Resources clearcut. And they said no, they didn’t. They said they had no records that showed they sprayed up there at all. End of investigation. Investigation closed. They didn’t pull one sample from up there. But the Department of Ag pulled samples from my vineyard. Don’t you think the protocols of an investigation should be that if you suspect herbicide drift came from some place you can see, wouldn’t you go to that place and see if the same products show up in the test?
That would seem to be basic science.
KK Well, that basic science wasn’t done by our highly paid investigative agency, paid millions of dollars by the EPA to investigate label violations! I’m going to go one better for you because you’ve got me rolling now. (laughs) I have photographs that were taken by the Department of Agriculture when they were “monitoring” the spraying by Roseburg Forest Products. They were called by Roseburg Forest Products to come out and monitor a clearcut being sprayed. This was in 2009, I believe, or 2007; I’m not sure which. But I have the photos. The pictures taken by the Department are of a helicopter flying over a snow-covered clearcut, with fog laying in the valley below. And the helicopter is more than 200 feet off the ground.
All three of those elements are label violations.
KK They are actually not violations, and this is where the public is not educated. The are not violations. In fact they are in the suggestions section of the EPA’s label on the herbicides. It says you shouldn’t spray under these conditions because there is a high potential for drift. That’s exactly what the label says. It does not say do not spray; it merely suggests that doing so creates the strong possibility for drift. The only label, the Oust label – sulfometuron methyl is the generic version – the one says do not spray frozen ground or water. In my opinion, and here again, it’s a gray area, if the ground being sprayed is covered with snow, does that qualify as ‘frozen ground’ or ‘water’? (laughs)
Now, this investigative agency, paid by the EPA and my public tax dollars, that took these photos, there was nothing written up that there was a suggestion of a high potential for drift. There was nothing written up on site by the Department of Ag saying to the Roseburg Forest Products people that there was fog indicating an inversion and therefore drift. And this when there had been gathered evidence of drifting! Nothing like that was written up from their report.
It sounds as though each party was acting with a sense of impunity.
KK Exactly. They are not accountable for anything with respect to their positions. I believe they are in collusion. I mean, if they would have just made a statement about the photograph that said the present conditions indicate inversion, that there was snow on the ground, and the helicopter is more than 10 feet above the crop being sprayed, all indications of the high potential for herbicide drift; if they had just made that statement I would have never gone to court. I would never have lost $500,000. But they did not do that. And that is what the public needs to hear. That’s what the public needs to know. We are relying on this agency, the Department of Agriculture, to do its job. But they are not.
I’ve called for the EPA to shut off their funding of the agency, as an enforcement agency. I’ve suggested they hire a third party, an environmental fate group to do the monitoring. [environmental fate refers to the fate of a substance following its release into the environment. It includes the movement and persistence of the substance. Admin] I’ve yet to hear back from them.
You want to light up somebody’s anger, you’ve done it.
I must say I’m astonished. In my conversation with Steve Renquist, he spoke of how there might be reasonable solutions to issues like this through neighborly conversations, and greater public awareness of safe herbicide application; that knowledge would somehow win the day. But it is quite obvious the political and timber culture frustrates neighborly negotiation.
KK And here’s the other funny part. Whenever I’ve gone to the Departments of Ag or Forestry and asked for records, I’ve had to fill out the Public Information Request form. And they tried to charge me money for that. But anyway, what I find really odd is that in 2007 I found out we got a lab sample back that Steve Renquist collected – he’d collected a sample back in 2005 at the same time as the defendant’s guys pulled samples, leaf for leaf. Steve collected a sample because he didn’t trust the way their tissue for analysis was being collected. So he collected samples right next to their guy and saved them in Oregon State’s pathology freezer. He said they would be there if I ever needed them to be run by a third party for analysis.
Throughout this investigation Steve Renquist, in my opinion, has been an absolutely shining star. He is the only individual who actually did something in my case. Before we were at a point where we needed more evidence, I said to him we should send the samples in. He did all the chain of custody forms and sent them into this lab that does nothing but analyze agricultural tissue samples. It’s called Pacific Ag Labs. We got back the analysis from Pacific Ag Labs that showed Oust and Velpar were both in the tissue samples. One was at 16 parts per billion, the other one was at 17 or 18 parts per billion, which is a significant amount seeing how that test was taken more than 120 days after the hit. We got the report back and I called Dale Mitchell [co-chair of PARC, Oregon Dept. of Ag, Pesticide Division, Pesticide Analytical Response Center] and said I’d like them to reopen their investigation. He asked on what grounds. I told him I had received the lab results from the exact same tissue samples that were pulled by everybody else. It shows the products they say they sprayed in the clearcuts. A meeting was scheduled. I went up, sat in his office, and we went through the documents. He took my documents, and he said that while they couldn’t promise to reopen the investigation, he would take a hard look at what I had given him. You want to know what he did with it?
I’m afraid to ask.
KK He handed it to Roseburg Forest Products. He gave it to Tim Miller, who is their attorney for their insurance company. He got all of those documents. So now, before trial, he got to go through all of those documents and prepare a defense to try and fight Pacific Ag Labs’ testing analyses. So when someone starts talking to me about why I didn’t go ahead and file the appeal, I tell them it’s like fighting the mob.
So on December 14th our litigation ended, and I’ve moved on.
But in the back of your mind you’re streamlining a process of how you might proceed with litigation should the herbicide drift happen again. Is that fair to say?
KK If I have another hit of herbicide, I would fight this again. I mean, I have to fight it. This is my home. This is where I live. I’m not going to be run off my property like they were in the 1800s by the railroad companies. This is the same kind of deal. I have no doubt that there are people inside of Roseburg Forest Products who would love nothing more than to spray straight in the air and wipe me out once and for all. So, if I can catch them at it. Beautiful. But you know and I know that if they have a full year to spray when ever they want, to spray whatever products they want – and for them to spray by a 20 acre clearcut by helicopter takes them about 20 minutes – how am I going to catch them? I get notice of a spray but have no idea when. so what do I do? Stay at home everyday with a video camera and wait for them fire up a helicopter?
So the Department of Ag’s notification system must be tightened up. Companies have to be made to specify exactly what they plan to spray and in what time period, a reasonable time period where Drift Catchers could be set out by the Department of Agriculture, out of their budget, on an adjoining commercial operation. It would protect them so that later on if there is a hit, there is some hard evidence by a neutral third party so that the thing would never go to court.
It sounds as though the current tangle of regulations, the overlap and confusion, is essentially designed to provide cover for the forest products industry.
KK Absolutely. Absolutely.
Don’t you have a sneaking suspicion that the outrages are simply so extreme, so egregious, that they can’t help, if well publicized, but goad regional and state government into action?
KK No. I believe there is a big problem there. Number one: An awful lot of people on what I’m going to call the environmentalist side, they don’t stay in science. There’s a lot of people who say they’re sick, their joints hurt; they go into all of these touchy-feely scenarios that the spray has harmed them. In my opinion that has hurt the fact that the strong science that’s here indicates an awful lot of damage is being done to our environment that we can actually measure. Lets stay in science.
I’ve a commercial vineyard and I’ve been wiped out by these products because you cannot keep them where you say you are putting them. So rather than get out into all the touchy-feely stuff, ‘we’re worried about the salmon’… the point is we can’t scientifically prove right now that Oust levels of 16 parts per billion damage a watershed. We can’t do that right now. But I can sure as hell tell you that 16 parts per billion of Oust, when it drifts off the property target site and hits my vineyard, wipes me out. That’s science. (laughs)
We must find ways to make the Departments of Ag and Forestry liable when these products go off target. That means that if there is a property line, and you set up a Drift Catcher one inch on the other side of that property line, when a guy sprays from a helicopter and that Drift Catcher detects the product, Bam!, there’s a liability issue. Guess what? You wouldn’t have aerial spraying of these products in a way that is going to harm other people. It would eliminate that industry.
I’m kind of the tip of the iceberg. The biggest problem right now is that nobody is being devastated as I was. Can you imagine the impact to organic farming just to the State of Oregon if the word got out to the public that you had uncontrolled herbicide sprays that are not being tested for? When an agricultural product is certified organic, have they tested it for sulfometuron methyl? It can travel 26 miles. The organic farmers don’t want that to get out. So people are concerned but they don’t want to make a big deal out of it because that can hurt their market. How can you certify anybody in Oregon if the Department of Ag is this loose with their interpretation of labels?
Did I give you enough information to chew on for a bit? (laughs)
Good lord, I’m gagging. You are like a man without a country.
KK ‘Rock and a hard place’; ‘You were here.’ (laughs)
So why were you recently in the Bay Area?
KK To earn back my half a million dollars that I lost in the trial, plus the 3 1/2 million from the business, I’m back in the consulting industry. I’m actually a chemical engineer by trade. Right now I’m doing consulting work inside a refinery! (laughs) I should be enjoying my retirement, but instead I’m working to pay back my retirement fund that I spent on the litigation.
It’s been an extraordinary pleasure speaking with you.
KK If you know people who can help get the story out, have them call me. I would love folks to hear this story over and over.
I’ll do my best.
Oregon wineries enjoy a reputation as among the greenest in the nation. Sustainable, organic, biodynamic, the state seems to have it all, and in abundance. But is this reputation truly deserved? As the case of Kevin Kohlman vs Roseburg Forest Products grimly demonstrates, all is not well in the Pacific Northwest. And here is why. Herbicides widely employed by the timber industry routinely drift from their targeted crop, replantings on clearcuts in the main. In fact, herbicides applied even under the best conditions, which minimally means in accordance with label instructions, are known to drift considerable distances, not merely upon their initial application, but also because of secondary volatilization. The compromising truth is that, according to evidence gathered by winemaker Kevin Kohlman, the Oregon timber industry writes its own rules. Labeled instructions are only marginally observed; little transparency exists with respect to the herbicides sprayed and at what times; injured parties are met by disabling financial burdens should they seek legal redress. And all the above is sustained by a deep-seated political culture dedicated to protecting the timber industry at the expense of all others.
Hit by herbicides? Let us imagine you’re an organic vegetable or winegrower. Detectable levels of forestry herbicides guarantee decertification. Perhaps you grow herbs or flowers. Better quietly replant. Maybe cane fruit is your crop. Blame failure on the spotted wing drosophila. But what of even the conventional grower who notices herbicide damage to rows of their non-tree crop? They may have been able to resolve the matter with their immediate neighbor, a friendly rancher just across the fence, but not if the ‘neighbor’ shares the business philosophy of Roseburg Forest Products.
Here offered is part 1 of a two-part interview with Kevin Kohlman, a winemakers’ education and cautionary tale if there was ever one. It requires having read Dying on the vine and my earlier post Herbicide Drift And An Oregon Vineyard. Part 2 will appear before the end of the week.
Admin I can’t begin to understand all that you and your wife Karen have been through. Could you very broadly characterize your experience with Roseburg Forest Products these past few years?
Kevin Kohlman In 2004 we were lightly hit with herbicides. But no one knew that it was herbicides. None of the telltale characteristics occurred. It kind of looked like it might be herbicides, it could have been a disease; we didn’t know. We called in Steve Renquist, the OSU Extension agent, and he came out but couldn’t put his finger on the cause of our vines’ distress. That year we lost about 1,200 plants, unproductive for the growing season. There was damage but we didn’t actually have deaths.
It was in July of 2005 that we really got hammered. That was when the vineyard was totally devastated. Mature plants, re-plants, everything got wiped. That’s when everything hit the fan. We again called Steve Renquist out and he said it looked like herbicide. Then the question was asked, “Who owns that clearcut above you?” Of course, I had no idea. So I was told by the OSU Extension to get in touch with the Oregon State Department of Forestry; they could tell me the ownership of the clearcut and whether there had been spray notices published, and all that. That’s what started us down the process.
We found out it was owned by Roseburg Forest Products. Turns out I actually belong to the same Rotary Club as as Alan Ford [President of Roseburg Forest Products]. I called Alan out of the Rotary directory. He reassured me and said he would send his guys out to the vineyard. If there was a problem he said they’d take care of it. They came out and started looking at the systems and were trying to figure out if it was herbicides they had sprayed. They immediately said that the damage to my vineyard didn’t look like their herbicide. They then claimed they sprayed only Oust and Velpar in their clearcut. They told me that the damage looked like 2,4,D and Garlon.
The Turning Point
They claimed to only use Oust and Velpar?
KK Yes. That is what they stated. I wasn’t very educated on herbicides at that time, or forestry operations for that matter, so I told them I didn’t know the differences between damage caused by one herbicide and another. But what kicked it off was that I checked will all the neighbors. The Extension agent and the Department of Agriculture investigator said they didn’t find evidence of any sprays used by my immediate neighbors that could do this kind of damage to my vineyard. In fact, the Department of Agriculture said they were fairly certain that the herbicide came from the clearcut. The clearcut is located directly above us; and it has a funnel shape that dumps right down off of the foothill right onto my ranch.
There was no litigation at that point. We went back and forth, Roseburg Forests Products and I; we were just working together like neighbors. I finally just asked what is it you actually spray? Again they said only Velpar and Oust. So I asked them for spray records. Dan Newton [manager of land and timber for Roseburg Forest Products], one of the people they had out there, said he would not share Roseburg’s spray records with me. He said it was a precedent he didn’t want to set. I immediately had a trust issue, right there. I said, ‘now wait a minute. I’ve been very open with you guys. I’ve let you on my property; I’ve let you pull samples. Now you won’t share your spray records with me?!’ That’s when the trust issue started.
They continued to insist the damage to my vineyard was caused by 2,4,D and Garlon which they claimed not to use. Then they brought in Dr. Cobb who said the same thing. I asked him how he knew it was 2,4,D and Garlon. He said he could just tell. I asked whether he could tell the difference between damage caused by those herbicides and the others. Yes, he said. I came to find out later that you really can’t tell the difference. Unless you test the herbicide residues themselves, you can’t tell which herbicide has caused the problem. Now I’ve got another trust issue on my hands, you know what I’m saying? I knew this process wasn’t going where we need it to go.
So again I asked where did the herbicides come from? They didn’t just magically appear. They said that as far as their investigation was concerned, they didn’t spray the products that damaged my vineyard. Conversation over. I said, “No it isn’t!” I was to then find out from the Department of Agriculture that I had 60 days from the time that I first noticed damage to file a report of loss, otherwise you cannot sue in the State of Oregon.
So even while you are undertaking neighborly negotiations the clock is ticking.
KK Right. Once you notice damage, or more than 50% of your crop is harvested, you know longer have legal recourse in civil court if you haven’t filed a report of loss. So I again called Alan [Ford]. I told him I had to file this report of loss with the Dept. of Ag, a public document, and I really don’t want to do that. I said I still felt we could figure out what was going on in my vineyard. He basically said, ‘You gotta do what you gotta do’.
So there I was… I’d been lied to twice, and now I’m being told I gotta do what I gotta do. So after letting these guys on my property, letting them get an idea about how they are going to cover up this issue, now they’re kicking me loose. That’s when litigation began. And that is not my style! I’ve never been involved in a court case in my life. To me it was very disappointing seeing folks treat a neighbor that way.
Did you speak with other winegrowers in the area about herbicide drift damage to their vineyards?
KK I did. At that time we were trying to keep everything low key. This was between two neighbors. It was not a dispute for public display. Yes, before the litigation began I asked other growers in the area about damage. Many of them have had damage but most incidences have been very minor, and usually it’s about a neighbor who has sprayed a fence line with Crossbow, something like that. It hasn’t been about an entire vineyard being absolutely devastated.
So Roseburg Forest Products’ court strategy, after gaining intelligence gathered from your vineyard, was to sow reasonable doubt.
KK Right. The way the notification system of the Department of Forestry works in Oregon is that they, a timber company, are required to put in a notice of when they plan to spray. Now, only if I am a subscriber – you have to pay to subscribe – will I get notice. But a typical notification – and I’ve already received 12 notifications this year for sprays within one mile of my vineyard – might list 15 different herbicides. And it says only that they plan to spray, for example, from January 31st of 2011 through December 1st of 2011. The whole system is designed to put so much information down that nobody can ever track what’s going on.
And it’s complicated further by the fact that it sounds like an old boys’ network.
KK From what I can see, absolutely. So the Department of Forestry’s goal is to make sure sprays can happen. I actually had a Department of Forestry Stewardship Forester at a spray close to my property which I videotaped. I was asking him questions about a label. He was spraying Oust, but on the label it says you shouldn’t spray it in fog; you shouldn’t spray it in zero wind; you shouldn’t spray it when there is an indication of an inversion which is fog. He looked at me and said ‘If we followed those labels to the tee, we’d never get to spray.’ And this was a Stewardship Forester! That mentality has gone deep into the Department of Forestry here. And then the Department of Ag in my opinion, basically says that as long as you file the paperwork and you start an investigation with us, they reserve the right to decide whether to investigate. But regardless of whether they investigate, you are given the right to litigate. And that is supposed to be the answer to the problem as far as they are concerned.
So the Department of Agriculture essentially undermines the possibility of a resolution outside of court action should one party refuse to negotiate, even if it can be easily determined who is at fault.
KK Yup. They say they are restricted by law from helping someone find out the source of contamination. But I don’t believe that is correct. I actually had a meeting with the then-Governor’s Director of Natural Resources, Katy Coba, the Director of the Department of Agriculture, and Margaret Brown, the Director of the State Department of Forestry. I told them what was going on here. I told them there has to be a change in the way they do business. And we exchanged letters as well. Their answer back to me in a nutshell was ‘We’ll form a task force to look into that’.
So as far as I am concerned, you could take the State Department of Forestry and the State Department of Agriculture and eliminate both budgets to help our state save money. They don’t do anything. They are charged with enforcement of the labels and enforcement of the Oregon Forest Practices Act, but they don’t actually do it.
At what point did you decide to contact the Environmental Protection Agency (EPA)?
KK That was way into litigation. I was able to get ahold of the EPA because through our discovery process we found out that the water in our irrigation pond had some problems. Initially Roseburg Forest Products gave the court only a summary sheet of the testing they had done to the water. They set – you’ll laugh at this – they set the detection limits for herbicides at 5 parts per million! In other words, anything less than 5 ppm would show up as a ‘non-detect’.
What? We know that these herbicides are lethal at parts per billion (ppb).
KK Parts per trillion (ppt)! The best way to explain this to the public, since most people don’t know the difference between ppm, ppb, ppt, is this. You know those truck weigh stations along the hi-way? The difference between a part per million and a part per billion is about the same as detecting the difference in the weight of a sugar packet on one of the big rigs.
So anyway, after the fact, when the actual raw data was examined by Dr. Kegley and others, they said they could not use their data to tell me exactly how much was there. But what they could tell me was that there were herbicides measurable above the ppt range. So Roseburg Forest Products did a great job of hiding information from the court system. (laughs)
And lay people, you and I, we wouldn’t necessarily know all of this. No matter what experts you hire, they only get to review the data put in front of them. Early in the discovery process, we asked for all documents pertaining to the testing on Roseburg’s clearcut and on my vineyard that the defendants performed. And they responded by giving us the summary sheet. Then the lab manager told us when under oath during his deposition, that it was from his research packet that he came up with his summary sheet. Well, after court was over we were reviewing notes and we found a note by Dave Russell, one of the defendant’s agents, that said, “Why Oust levels so high?” This was among his personal phone notes when he was talking to DuPont [Oust's creator]. So we wondered why someone would ask why Oust levels are so high if they came up with a ‘non-detect’ on the summary sheet?
So we took that information through the appeals process, the motion for a mistrial, the whole deal. But ultimately it came down to the fact we had subpoenaed the lab after the trial. But when we subpoenaed the lab we got a three-ring binder three inches thick full of the raw data from their testing. We then found out that not only did they find Oust, Velpar, 2,4,D, and Garlon in the vineyard, but they also found all 4 of those products in their clearcut! Remember, they said they never sprayed 2,4,D, they never sprayed Garlon. Then during our discovery, in 2007 approximately – because Roseburg Forest Products stretched it out so long – we actually had experts with them up on the road on top of that clearcut. The experts pulled samples along the road and found massive amounts of 2,4,D and Garlon. That was a strong indication that they had done road sprays, something on the order of 19,000 parts per billion.
Now, in those years we’ve actually received notices from the Department of Forestry where they stated they would be doing road sprays in our area. But when we asked them under oath for their road spray records, they said they didn’t have any records because they didn’t spray those roads. Somebody nuked that road with 2,4,D and Garlon, and those two will easily vaporize and travel for miles. Studies done in Washington and Oregon on those herbicides found damage done more than 26 miles away.
What was the reason you did not seek a change of venue? I read that 4 Douglas County judges recused themselves. Why did they do this?
KK Well, I was told at the time, and I’ve not investigated it any further, that for a civil court case a change of venue you have to have very compelling reasons why that there will be, for example, a tainted jury. According to my attorneys they felt that just because Roseburg Forest Products is a large employer in the area doesn’t necessarily tell the court that you will be able to get a change of venue, not in civil court. That was a strategic decision because they brought in a judge from out of the area, Jackson County. Although I think that in many ways he was a fair judge, there was so much influence by the judge as to what was permitted and what was excluded as evidence.
After the trial was over my attorneys consulted with some experts in the area, they basically said there was a 90% chance that at appeal this ruling would be overturned and I would get a new trial. It seemed very much in our favor. You might ask ‘Why didn’t you just have a mistrial and got to trial again?’ Right?
KK Ken, I’m going to give you a basic lesson in economics. Number one, I spent $500,000 on litigation; plus I’m at a $3.5 million loss just to the business. So that’s the first part. The second part is that the appeals process could take two years if it were granted, which was very possible. I would then spend another $350,000 on that litigation, because it is now a new trial. Not only that but now, because its gone to an appeals court, the defendants get to adjust their answer to our complaint. Of course, we were going to go after punitive damages because we now had evidence to show that they withheld stuff. That makes the possible win worth a lot more; but they could also quote on their answer to our complaint the Oregon Forest Practices Act, which they never did in the first trial. And if they quoted the statute 934-12 – I could be wrong about that number – that says the prevailing party is entitled to attorney fees. So now the ante to get into this poker game is another $350,000. So if I lose they are going to go after me for in excess of $500,000 in attorney fees. You know what I’m saying?
At some point you’ve got to sit down and just say “We’ve got to stop the hemorrhage”. This system in Oregon is so broken that there is no one in there right mind, who was a small-time farmer, who should in any way ever consider a herbicide case, in my opinion. Look at what its done to me.
The Next Step
But if you had to do it again, would you have compiled your evidence differently? Would you have taken more video? Would you refine your discovery questions?
KK You’ve got to remember, you’re relying on the court. Now, if I request all documents, how in the world can a judge deny the motion and say that the three-ring binder, three inches thick, is not to be included in the request for all documents? I’m dealing with a corrupt system, in my opinion. The system is broken. If a judge can withhold compelling evidence, then why should I lose another $500,000 with a risk of losing another $1,000,000 on a system I know to be corrupt?
Especially if the consequences for the forest products industry is going to have to be a rethink of their spraying protocols and the use of certain herbicides.
KK No, they won’t. Because they know nobody, unless you’re a multi-multi-millionaire with money to lose is ever going to take them to court again. They know that for a fact. They’ve been doing this for years. They are still doing it. And there aren’t any environmental groups, there is nobody out there that wants to jump into the middle of this and help people like me. So, you’re on your own. The Oregon Winegrowers Association were all sympathetic and very concerned, but they didn’t step up and say they were going to give me a grant to help this case go through the courts. There isn’t an environmental group that says they want to change this law. There were no offers to help with this case to change the law so that we could have a precedent. See what I mean?
It is a difficult situation. I spoke with Susan Morgan – who was at the time our legislator – way early in our process. I asked her if there was some way I could get the legislature involved in the way the Oregon Forest Practices Act is written. And the very first statement out of her mouth was “What are you doing growing grapes in forest country?” The Oregon legislature wants this to go away. The Oregon Winegrowers Association, from a marketing standpoint they know it isn’t very good for the organic winegrowers in the area. So they want to keep it quiet. And the forest companies are so wealthy, so powerful, and own so much land that they just want to keep things the way they are. I got the message full, strong, and clear. From a financial standpoint, this is absolutely devastating to me and my family. And I understand just where the state stands. (laughs)
But surely exposure and publicity about this calamity would figure into future challenges to the forest products industry.
KK You’ve read the article. Susan Palmer did a very fantastic job of displaying a lot of information. She could have written an article 30 pages long. There is a lot of compelling stuff here. I mean, just the letters between myself and the Department of Forestry and the Governor’s office would make people’s hair curl. I asked specific questions. Why does this happen? What is the protocol for an investigation? They could have easily sent me a copy of the protocol. But they didn’t. And the reason they didn’t is because they don’t have one. How many millions of dollars is the Department of Agriculture’s budget in the state of Oregon? And they don’t even have an investigative protocol? That’s incompetence. (laughs)
End of Part 1
I thought January was quiet, but February passed by with barely a whimper here in the North East of England, as can be seen by the world wine news making up most of this piece!
Every month I try and read a range of wine related blog posts, news stories, press releases etc. and there’s always a section that I categorise as “and now for something completely different”, usually light hearted, quirky, niche or off-piste. For February this includes;
- the news that in England half of all vineyard area is dedicated to Chardonnay, Pinot Noir and Pinot Meunier while more than half of all grapes harvested went towards the production of sparkling wine.
- Tim Atkin’s “An agnostic’s view of natural wines“ an interesting read on a style of winemaking I’ve not really tried.
- The story of the 237 year old bottle of Vin Jaune sold for $77,000 to a group of a group of wine lovers who say they will drink it. Nick Stephens goes into great background detail on the wines of the Jura, although I should mention that Savoie & Jura expert Wink Lorch (@WineTravel on twitter) has been at pains to correct the story saying it was a 1774 vintage and not 1773 as widely reported!
Robert M. Parker, Jr. was in the news last month with the announcement that he was passing the Wine Advocate’s Californian wine review duties to Antonio Galloni, although he would still dabble in California with “…a series of horizontal and vertical tastings of perfectly stored California wines”. Seeing Parker pull back from reviewing duties, especially for California, made the headlines and initiated a batch of media stories and blog posts discussing the implications – in particular Jon Bonné’s insightful article. Alder Yarrow over at Vinography published a copy of Parker’s e-mail posted to Wine Advocate subscribers breaking the news.
Also initiating some robust debate on both sides of the Atlantic was the Wine Intelligence press release suggesting that Wine Bloggers aren’t a trusted source of wine advice. Robert McIntosh at Wine Conversation put up a stern defence of Bloggers while Harpers Wine & Spirits polled a selection of opinions for their more sober reflection.
Unfortunately the month had its share of sobering news as well. Winemaker and owner of Bogle Vineyards Patty Bogle Roncoroni died after a 4 year battle with leukemia, the Sacramento Bee publishing a full obituary and winery history. In the Southern Hempisphere an earthquake measuring 6.3 on the Richter scale caused devastation for the city of Christchurch in New Zealand. The wine regions of Canterbury and the Waipara are nearby but a statement from the New Zealand Wine web site confirms no reported damage or injuries to anyone in the industry.
My section on North East England will be painfully short this month – not because there’s nothing going on, but because I didn’t go to it! The NEWTS meeting was on the wines of Chilean producer Montes, but unfortunately I was on a business trip to the US and missed out – and in case you’re wondering it was to the tourist hot-spot of Schaumburg, Illinois, where I spent the whole 4 days in the hotel & conference centre and didn’t get a chance for even a single shopping trip (and don’t even ask about the wine)!
Moving quickly on and it was a Supermarket month with France and South Africa battling it out for my meagre purchasing powers. France just won with a brace of White Burgundies (Jean-Baptiste Béjot 2005 Puligny-Montrachet & Nicolas Potel 2008 Montagny 1er Cru) going for less than £10 each and adding to a 2009 Fleurie from Cave du Château de Chénas, all courtesy of my local Co-op. The South Africans were a Voor Paardeberg Roussane – made for Tesco and bottled by Boschendal – and the Meerlust 2006 Rubicon Bordeaux blend which will disappear into the cellar for a few years (I still have a 2001 to open!).
Simple everyday drinking was the name of the game for February, cycling through some red bottles I’ve probably been holding too long. The Roches Noir 2004 (Saint Chinian Roquebruin) was starting to show its age but still had enough life to provide drinking enjoyment and food accompaniment, while the 2005 Southern Point was a smooth, fruity McLaren Vale Shiraz which provided routine sipping pleasure.
On the whites my favourite was a bone-dry 2009 Jurançon Sec from De Nays – Labassère – a steely wine with lemon, bitter orange and some herbs. My better half couldn’t take the steely acidity though, and much preferred two Italian whites which were much easier on the palate; a light, banana dominated 2009 Falerio dei Colli Ascolani by Saladini Pilastri and the fuller, citrus flower freshness of the Pieropan 2009 Soave.
I also opened an Oloroso Sherry to provide a glass of something thought-provoking to finish off the evenings with (including tonight, as I finish off this piece, since it’s lasted more than 2 weeks!). This was the Don José Oloroso Reservas Especiales by Romate whose website offers up some haunting Spanish choral music on the intro page!
You definitely have to be in a “certain place” to consider opening a bottle of Sherry (this one was originally earmarked for Christmas), but as I sip away on a glass I’m always amazed at the depth of flavour and complexity in these wines – the Don José had a smoky, sweet caramel, tang to the nose with a nutty flavour, dry but not astringent leaving the palate fresh and quite enlivened at the end.
So that was February, gone and almost forgotten. Looking forward and a few events are appearing in the Wine Calendar for March and April;
- 18-20 March. 19th annual Zinfandel Festival in Paso Robles, California.
- 27-29th March. ProWein 2011 International Trade Fair for Wine and Spirits, Düsseldorf, Germany.
- 28th March – 3rd April. 33rd annual Vancouver Playhouse International Wine Festival
For me March includes another visit to China (although this time south, I’m still investigating whether there’s any vineyards nearby) and a return to NEWTS ahead of my own tasting in April (more to come on that).
Kevin and Karen Kohlman, owners of Legacy Vineyards, may have lost a battle, but they just may win the war. Up in Douglas County, Oregon and elsewhere in the state, the timber industry is facing new questions about its use of powerful herbicides and their inevitable drift onto vineyard and other agricultural properties.
The recently concluded litigation brought against Roseburg Forest Products was not in the Kohlman’s favor, but a harsh spotlight now shines upon regional herbicide spraying practices, particularly application by helicopter, that simply must change if a new generation of winemakers and vineyards is to survive and prosper. A lot is at stake. By adding badly needed tourist dollars to a growing hospitality industry, tax revenue to city coffers, and international prestige, wineries overall can be an important energizing element to local economies. Agricultural diversity insulates communities, no doubt. And this is by no means limited to Southern Oregon’s Umpqua Valley; the state’s wine industry is now well-established on the international stage, the quality of her wines beyond dispute. All that is needed is sound political and environmental vision to further ensure all of Oregon’s people and industries have fair and equitable access to her natural resources.
From a January 2nd article, Dying On The Vine, An Oakland wine grape grower wages a costly fight against damaging pesticide drift:
“The California couple moved to Oregon in 1999 with dreams of creating a new vineyard. Under their plan, 2010 should have yielded 26 tons of grapes. Instead, year after year they’ve watched vines wither and die, killed by herbicide drift so severe it has sterilized the soil in places. They’ve put off launching their own label while they rebuild from the financial damage.”
Yes, 1999. And since the original planting of the vineyard, year after year herbicide drift contamination events have made the harvesting of a single grape crop impossible for the Kohlman’s. Each Spring bud break would be followed by severe damage and death to vines, 1000s of vines. After multiple frustrated re-plantings, a painstaking scientific analysis of necrotic vine tissue was done, and it was determined that select herbicides were to blame, herbicides the Kohlman’s have never used but that are commonly employed by the timber industry, Oust, Velpar, 2,4,D, and Garlon, to name the most popular. Owing to the hilly and mountainous terrain and the vast tracts of timber under cultivation, the timber industry often uses helicopters to apply herbicides to clearcuts so as to kill vegetation competing with tree re-plantings. So it is with Roseburg Forest Products. They harvest from timber acreage very near the Kohlman’s vineyard, and in fact employ the very herbicides detected at Legacy Vineyards.
“But by 2004, the year he expected his first real harvest, his vines began to wither. By September he had row after row of shriveled grape clusters on skeletal plants that were dying. It would take another year, after Kohlman had replanted with new vines that also began to fail, for him to understand what he faced.” [op. cit.]
In the coming days I will post interviews I’ve completed with a few of the individuals associated with this case. First up is Steve Renquist. The article linked above and here, Dying on the Vine describes Mr. Renquist’s participation in the case this way:
“When thousands more grapevines died in 2005, Kohlman called Steve Renquist, the OSU Extension Service horticultural agent in Douglas County, who had come out the previous year to take samples of Kohlman’s dead plants. Renquist suspected herbicides were killing the vines, and tests confirmed that.”
Admin Thank you for taking time out of your day to speak with me. Let’s get right to it. We have herbicide and pesticide drift issues here in California. Perhaps fewer than Oregon specifically with respect to the forest products industry. So what kinds of herbicides are most common in that sector?
Steve Renquist The two in particular that we were noticing in a couple of the real contentious spray programs was Oust and Velpar.
And not 2,4,D?
SR Well, 2,4,D was one of the sidebars. When the initial complaints came from viticulturists and producers of other crops, the wood guys were saying Oust and Velpar were proven over and over that they don’t drift, that they don’t cause problems; they stay ‘at home’. But the thing is we were noticing that with both of those herbicides in fact they do drift. And that they contaminate in very small amounts. Our guys were saying when they first checked into complaints that levels weren’t even at parts per million. We didn’t think it was then a problem. But we would subsequently find with both of these herbicides that even at parts per billion they were causing serious damage.
Along with 2,4,D, Oust and Velpar, Garlon was also mentioned in the article in question…
SR Garlon was one the forest people were saying they did not use, but after running a few tests on plant material Garlon is, yes, another one pretty widely used for what they call slash and squirt for killing the hardwoods when they’re trying to replant clear cut areas.
So to be clear, 2,4,D is marginally used?
SR Yes, it’s just marginally used. In fact, 2,4,D is more widely used by people living out in the countryside. They’ll typically use a combination of Triclopyr [Garlon] and 2,4,D. What we find is that when the timber industry is using herbicides, they’re using the Oust and Velpar. And when it is people, maybe hobby farmers and ranchers, they’ll often use 2,4,D and the Garlon.
But presumably those folks would make applications from the ground. They would not use helicopters.
SR Exactly. There is almost no 2,4,D spraying that I’m aware of in our area here from helicopters. I don’t have 100% certainty. But forest guys know it just moves too well, it moves too easily. 2,4,D is one of those products that is going to cause so many particular problems in other sidebar crops other than the tree crop. So it’s just not a preferred herbicide.
I see. The article quotes you as saying that every wine grape grower that you’ve come in contact with has experienced herbicide drift. You go on to say that 25-30% of those growers noted “a fairly significant incident”. What does that phrase mean?
SR Instead of just seeing a couple of plants that might look a little odd, getting a little growth distortion, I think a significant incident would be when somebody notices along one side of their farm a whole row typically affected; a fairly significant segment along the side of a particular vineyard. Depending on the prevailing wind on a given day and a given spray, it would tend to drift and hit a fairly wide area. Out in the countryside you most of the time you don’t have people doing very small spot sprays like a homeowner might. Instead a neighbor, a rancher, for example, next to a vineyard or vegetable crop will be spraying a fence row to get rid of thistles. When they do get damage it’s around 100 plants. Typically that’s the kind of damage that the herbicide would do to the vineyard.
Apart from the Kohlman’s Legacy Vineyards, have there been other legal battles? What recourse do diverse growers have? Not everyone can afford the $500,000 Mr. Kohlman said he spent on the litigation, not to mention the four years in court. How have things been normally handled up to this point?
SR In general, what most people do with that type of toxic problem or contamination is to go and talk to their neighbor. I would think that a pretty high percentage of those 25-30% of vineyard growers being hit by ranchers, or others not growing grapes, who don’t realize just how sensitive grape vines are to herbicides, that they work things out. It isn’t just this great contentious issue repeated between the tree farm people or the timber industry and the grape growers. But we’re increasing the potential for such because Oregon, certainly here in Douglas County, is expanding vineyard properties pretty rapidly in what was once a very traditional tree farm area. So there is this problem we’re facing.
Most people do not have the finances. It comes down to talking, meeting with people, raising the awareness. Most of the time, between one farmer and another, the problem can be worked out after a single exchange. Communication helps educate the other grower or rancher. Someone might ask that an herbicide application be done instead in March, before they get bud break in April. Good communication matters.
Another approach is a grower calls the Oregon Department of Ag [ODA] and they will send an inspector who’ll look at the fields. He’ll decide whether it’s a herbicide issue. If it is, the ODA representative is not authorized to issue a penalty. They often just try to get the parties together, get them talking, maybe over a glass of wine. So we haven’t had much litigation. The situation with the Kohlman’s was pretty unique. Damage was happening over and over. It just kept hitting them year after year. Mr. Kohlman felt as though that when talking with people they would pay no attention to what he was saying. He felt he had no recourse but the courts.
It often happens that real-world tests on pesticides and herbicides are conducted under ideal environmental circumstances. With respect to drift a herbicide might be tested on a flatland, on the tabletop plains of Texas. What is it about the Oregon landscape that vitiates such tests? Why do elements within the pesticide industry, for example, freely admit the problem of drift simply cannot be solved?
SR It is pretty daunting. With such a small hill and mountainous terrain, and with so many acres of timberland, in the modern timber production cycle people use herbicides. With so much varying landscape, the use of helicopters is demanded. When they can use ground crews, they do. But here you have radically changing weather, wind direction constantly changes; so there just doesn’t seem to be much consistency for the people trying to use the herbicides. It’s difficult enough when we don’t have storms; but it often seems like we have storms coming in for the better part of 6 or 7 months straight! And with our vertical terrain you easily get the potential for drift and drift damage.
The grape growers moving in often plant their vineyards on the hillsides. They don’t really want to be on the bottom ground. They get better frost protection, exposure, and drainage. So when you’re up on the slopes, often surrounded by timberland, it is really an easy situation for conflict. So I think the timber industry is probably having to face the same situation as wheat and grape growers ran into in eastern Washington and eastern Oregon 10 to 15 years ago. They were having the same issue. “This wheat country. What are these guys doing out here trying to grow grapes? We’ve always supplied herbicides to kill out the broadleaf in our wheat crop. We can’t change.” It took a lot of time and a lot of negotiation and discussion, between the parties; I believe university extension people were actively involved to bring the two parties together. Now they do a good job in encouraging certain types of products that aren’t so volatile; they encourage people to apply their products outside the growing season of the grapevines. They are finding they can do that. They’ve worked it out.
Well, the timber industry and grape industry, especially in southwest Oregon, they have not had the time to interact around some of these conflicts boiling up. There hasn’t been a group from both industries to sit down and try to work through some of these issues.
Yes. But there certainly appears to be a political aspect as well. For example, the article mentions that 4 Douglas County judges had to recuse themselves from the case. Do you know the reason?
SR At one time or another they had probably worked for, and handled litigation for the Roseburg Forest Products company.
As a defense attorney, for example? Or perhaps owning interests in a timber concern?
SR Yes, in private practice. And perhaps the latter as well. It was unfortunate for the Kohlman’s that they decided not to seek a change of venue. Roseburg Forest Products is by far and away the biggest employer in the area, and they have a great history of having worked well with the people of the area. It was a difficult issue when David went to battle with Goliath.
So the Kohlman’s declined to seek a change of venue?
SR I think they did. They decided that they had enough information to support their side. The Oregon Wine Symposium that occurs in the last week of February in Eugene is a gathering of all the growers. The attorneys for this case were invited by the Oregon Wine Board to come and discuss what are some of the repercussions, what can growers do. I sat in on a pretty interesting session! One of the lawyers said to the growers that you have to keep impeccable records of everything, and do a lot of homework, dig in if you want to start litigation. He tried to be real world about it; not to just say ‘go after people’. Keep exacting records, note the sequence of events, talk to people; but there is no guarantee you will be successful.
Clearly. Do you have any idea why it took 4 years to litigate?
SR I don’t know all the details. But I recall that one of the attorneys said that every time they got up there, the Roseburg Forest Products asked for a continuance. They just kept rolling it forward and rolling it forward. The company figured they’d just wear them out and run up the bills a little bit. I think that was the main thing.
I searched in vain for Legacy Vineyards on the internet. There is nothing. I understand they’ve been forced to post-pone the launch of their label as a result of all of this.
SR Well, they were hit so hard for 3, maybe 4 years in a row, that they had to do an awful lot of reworking in the vineyard. A lot of vines died; somewhere around 4,000 vines died. A big percentage of them had to be replanted. And he’s [Kevin Kohlman] been using things to try and enhance the microbial activity in the soil to help eat up any residue. He was planting new vines in the soil but these herbicides are so toxic to grape vines that even with parts per billion in the soil the vines were still having trouble. He also had to graft over some vines because the residues were not disappearing from the wood that had been contacted. So he had to cut the tops off of some and re-graft. I think the idea was to go back to square one and try to reinvigorate the vineyard.
I was up there not too long ago, maybe a couple months ago, and they’ve got some nice young vines coming on now. Another season or two and they’ll be back into it.
Whether in Burgundy or Napa, many vineyards run the risk of losing various certifications. What of organic or biodynamic growers? What are the consequences of drift contamination for them?
SR Well, you need a 3 year period to try to work that out. That’s one of the other reasons that I think the Kohlman’s are working on enhancing the microbial activity in their soil through the use of compost and compost teas. That will eat up the residue eventually. I don’t know if they were seeking organic certification, but sure, that would mess you up. It would be another big economic setback.
So even if you were to talk with your neighbor about their drift, there would still be a significant financial threat were you organic certified.
SR Another thing is the property that is right adjacent, kind of uphill from theirs, the Forest Products people are still growing on it. At some point they’ll be cycling back in there. Most of it’s been replanted now, so hopefully they can get through this next year without getting hit by another spray.
In light of the lawsuit, do you anticipate greater vigilance with respect to spraying operations?
SR Yeah, because of this case we’ve had people from the timber industry – not just from Roseburg Forest Products, but representatives from other companies, too – put out feelers to the [OSU] Extension and others asking that they sit down with grape growers to get GIS mapping for their businesses so they know precisely where all the vineyards are located. We’re happy to share that information with the timber industry. I think we already have shared one file with most of the vineyards listed. Hopefully they are getting the message. The troublesome thing is the ability of somebody spraying from a helicopter in this terrain… I just don’t ever see the risk disappearing. Hopefully the guys are going to really pay attention to the weather conditions. I know the growers themselves are sure going to be out there taking pictures and verifying and getting third-parties out if there is some question.
How would you characterize the relation between the state and federal regulators in this matter?
SR From what I could tell they didn’t seem to communicate very well. The EPA people and the Oregon Department of Ag people seemed to have completely different goals and directives. What Mr. Kohlman was trying to do was to get EPA to look at the fact that it was their responsibility to make sure that regulations are in place and enforced so as to prevent the contamination of the people’s water. You can’t be spraying these hillsides if the herbicide is ending up in the water. Mr. Kohlman’s pond is at the bottom of the hill. And the runoff is contaminating the people of Oregon. You can’t do that. Water belongs to all of us. So he brought in the EPA and told them to get these guys to follow through. The Oregon Department of Agriculture is not controlling this. They are just advising, not saying you can’t do this. There was a fair amount of conflict going on there!
About conversations you’ve had with colleagues out of state or out of other university extension offices within Oregon, how widespread is the problem of herbicide drift? I’m thinking of a multi-state view.
SR I think it is an important issue in just about every state I’ve been around, and I’ve worked in a few. I worked in Extension for Cornell out in New York; I’ve worked in Ohio; I’ve worked and lived in Minnesota and Iowa with another company. I’ve worked in agriculture for 40 plus years. And in the last 10 or 15 especially, just about everywhere I’ve been it’s an important issue.
One of the problems I think we often face is that there are established industries – it doesn’t matter if it’s California, Oregon of New York – they are the ones, and this includes Extension agents, who are always pretty careful not to offend. So when you get new industries coming in there is kind of a political thing there. As an Extension agent you’ve got to be careful not to offend your prime clientele. So I suppose people are pretty careful.
I grew up in California and went to Cal Poly. I know agriculture in California pretty well. I think the Extension agents and farm advisors down there are very strong supporters and believers in the agriculture industry. They try to support it very strongly. It is one of those delicate issues. They want to educate people; they want people to understand you can’t be over-spraying; it’s up to the industry to control the spray; you can’t be hitting your neighbors. But at the same time I don’t think anybody says we’re going to eliminate herbicides or sprays. Herbicides are a significant tool. But, yes, I do think people tip toe around this issue a little bit more than they probably should have over the years. The education just has to be pressed a little harder.
But it’s also a question of whose science do we read? Is it the science from DOW, Bayer, Monsanto? Or is it the science from OSU? What science wins the day?
SR If EPA continues to have the authority over regulating labels, then the EPA will have the ultimate authority. But more to the point, I think more and more people just need to learn that maybe we have to make that step to no till and using fewer herbicides. And be willing to give it a go. But people don’t like change. They’re just no gonna want to let go of that. It’s not just herbicides. It’s fungicides and insecticides that are showing up in waterways, too. But my gut feel is that I think we’ve shown we can do a lot of good IPM [Integrated Pest Management]. A lot of real creative things have developed. So why not? Let’s go ahead, go forward, and try to find solutions to minimize herbicides around waterways. And then look at forests.
You don’t sound like a wide-eyed radical to me.
SR (laughs) I try to work for both sides of the issue. The universities really don’t want us to get involved in litigation because we do work for everybody in the community. We don’t want to create sides on an issue. The ideal is to get out and educate people. We have this pattern of allowing things to happen and then realizing that it wasn’t a very good idea. We ought to have tighter control over these things.
Well, Mr. Renquist, it was a great pleasure speaking with you.
SR You’re very welcome.
Special thanks to Cyril Penn of WineBusiness.com for tweeting the story upon which this series is based.
In 2005 then-California Governor Arnold Swarzenegger signed new farm worker legislation which required
“employers to provide workers with four cups of water per hour, shaded resting areas, paid break periods of at least 5 minutes, safety training and an emergency plan.”
Is this too much to ask? Apparently it is. For in May of 2008, 17 year-old farm laborer Maria Isabel Vasquez Jimenez died of heatstroke. Her first job, and only her third day as a California farm laborer, she was training wine grape vines in a blistering Farmington vineyard when she collapsed after a 9 hour shift, her temperature spiking at 108. But no assistance was offered on site by the employees of labor contractor Merced Farm Labor. In fact, still quoting from a contemporaneous Decanter report, her fiancée, Flaurentino Bautista,
“told officials that the supervisors did not call for medical help after Jimenez collapsed, didn’t offer her water or shade, and later told him to lie to hospital staff about his fiancee’s age and whom she was working for.”
She was two months pregnant.
From an article written in 2009, the author Dana Goodyear writes,
“The State of California cited the labor contractor that had hired Jimenez, Merced Farm Labor, for a number of violations, including failure to provide accessible drinking water and shade, and fined its owner a record $262,700. [....] In late April, the San Joaquin County district attorney submitted a criminal complaint against the owner of Merced Farm Labor and two of her employees, for involuntary manslaughter.”
The wheels of justice move slowly. Here they appear to be altogether skidding down an icy slope, for as the Sacramento Bee reported on January 21st, 2011, the district attorney decided, and without prior notification of Maria Isabel’s family, that a plea bargain would instead be submitted. Defendants Maria De Los Angeles Colunga and Elias Armenta – the third defendant, Raul Martinez is believed to have fled to Mexico – will plead no contest lesser charges in exchange for community service, probation, and a $1000 fine.
“Their lawyer and prosecutors said Thursday they had reached an agreement for the pair to plea to lesser charges in early March, when the case is next set to go before San Joaquin County Superior Court Judge Michael Garrigan.
‘There will be some guilty pleas, but the consequences will be bearable,’ defense attorney Randy Thomas said. ‘Enough time has elapsed and everyone needs to move along with their lives. My clients are very, very nice people and very remorseful.’” Sacto Bee op cit.
“Everyone needs to move along with their lives.” So says the defense attorney Randy Thomas. Are the terms of the plea bargain enough of a punishment for Maria Isabel Vasquez Jimenez’ family to ‘move along with their lives’? No. It is not enough for her brother, Luis Vasquez, or her uncle, Doreteo Jimenez; it is not enough for her widowed mother, Jovita Jimenez Bautista, in Oaxaca, Mexico. (Maria Isabel’s father, once a policeman in Oaxaca, died 10 years ago. In fact, it was in order to support her mother that Maria Isabel originally came to America.) Neither is it enough for the more than 27,000 people – and growing – who have sent emails and signed the United Farm Worker petition urging District Attorney James Willett to withdraw the deal or for county Superior Court Judge Michael Garrigan to refuse the plea. A trial before a jury is demanded. Yet time is short. A decision on the plea bargain is expected March 9th.
It was not the first time Merced Farm Labor had run afoul of the law. I spoke with United Farm Worker’s deputy political director Merlyn Calderon who told me,
“Her uncle also worked for that company. He was not there that day, but he did comment that there was rarely water available for the workers. It was not a one time occurrence. Keep in mind that this company had been fined back in 2006 for not having a heat safety plan in place. But Cal/OSHA never went back to make sure they actually did that. Or even collect the fine. So it was not the first time.”
I also asked Ms. Calderon about defense attorney Randy Thomas’ claim “that Vasquez Jimenez lied about her age, and didn’t tell the employer she was pregnant.” Was blaming the victim an honorable defense?
“Farm workers are not covered under the National Labor Relations Act. Child labor law for farm workers is very different. But setting that aside, that is completely irrelevant to whether of not they provided shade of water. She was working for their company. They were still liable for providing water and shade. They hired her. She was working there. The law is clear.”
In addition to the petition campaign, the United Farm Worker’s organization is participating in what they call The Laptop Rally, aka the Fresno Day of Action, Monday, March 7 · 10:00am – 5:00pm. From their Facebook page,
“Join us at the Free Speech Area in CSU Fresno where we will be taking action and sending emails to the District Attorney, James Willett, not to set a precedent that farm workers’ lives are unimportant. There must be serious consequences. We need to tell him that jail time is a must and nothing short of that will satisfy the family or the public.”
The contact for this event is Matt Rogers. I called him for more detail.
Admin Thank you for agreeing to speak with me. First of all, why is the Fresno Day of Action taking place on the California State Fresno campus?
Matt Rogers I’m an alumni of Fresno State and I keep in close connection with many of my fellow alumni and students here on campus. We got together as more and more people began learning of this case. It is unfortunate that the media has really not taken the lead on educating the public on what happened to Maria Isabel and all that has followed. Though the death happened two years ago, many of us are only now finding out the full details of the case. The Day of Action is taking place here because about two weeks ago we got together and began discussing the issue. We learned of the United Farm Worker’s campaign through the emails they’ve sent to the district attorney; we thought we could do something on campus to not only educate the students about what happened, to draw attention to the case, but to see if we could get possibly a 1000 emails sent into the district attorney on our Day of Action.
It is an issue, that of farm worker rights, that is very dear to many of our hearts. We are alumni of Fresno State, we’re students of Fresno State, and Fresno, the county and the valley, is home to tens of thousands of farm workers. Attending Fresno are many students who have parents and grandparents who are or were farm workers. We felt what better place and what better way to take action than doing this.
And can you tell me a little more about yourself, your educational background at Fresno State. And how you’ve become involved in this?
MR I grew up in the valley in an agriculturally related family. Agriculture has changed over my years growing up; it’s drastically changing into corporate ag. The more corporate it’s become, the less family oriented and the less care for the worker do we see. I attended local schools; I attended Fresno State where I got a Bachelor’s Degree in Political Science. I’ve been involved in numerous campaigns, both political for candidates, and causes. I’ve most recently worked for Senator Dean Florez who many recognize as one of the champions of farm workers in this area. He spearheaded the effort last year for farm worker overtime. They are the only workers in the entire State of California not granted the right to overtime pay. So working with him, especially on the overtime legislation, really put the message even deeper into my heart that farm workers are folks who don’t have a voice. And if we don’t work on their behalf to give them a voice, who will?
Well said. Before Maria Isabel’s death, Merced Farm Labor had a checkered history. Can you tell me a little about them?
MR Merced Farm Labor stands out from others because they were cited previously for violations of state law in regards to worker safety. And you had a failure on the part of the State of California and Cal/OSHA to properly investigate. What they should have done was shut down this company. But they allowed them to continue; now we see that failure resulted in a death.
I recently read on a UFW Facebook site that there have been 11 heat-related deaths of farm workers since the implementation of the 2005 heat safety regulation. Clearly enforcement is lax, and Cal/OSHA is stretched very thin.
MR There are somewhere around 120 to 140 inspectors for the entire state of California. I’ve lived in the valley all my life – I’m from a family involved in agriculture – so it is very clear to me that the laws on the books are not the laws in the fields. They never have been. The laws that are passed in Sacramento, they sound good, the public thinks they are good – which they are, they mean well – but they are never implemented. There is not enough staff, and therefore not enough oversight in the fields.
And the labor contractors know this, of course.
MR Absolutely they know that. Because of the heat-related illnesses, the previous Governor Schwarzenegger signed into law some legislation which was promoted by the United Farm Workers. But it is one thing to sign something into law; it’s quite another to go out and enforce it. That the laws are not enforced is wide-spread knowledge throughout the agricultural industry. There is nobody to provide oversight. That’s why you end up with negligence like this.
And the negligence is so basic, so trivial. In the case of Merced Farm Labor it’s getting a drink of water, providing shade, providing immediate medical attention… I mean, we’re not talking about much here.
MR It is not that difficult. The problem that we have seen over the last two decades is that every time there is a crisis like this, the ag industry believes they should be exempt.* Every other industry has certain standards they have to meet for their workers, but for a long time we have exempted the ag industry for reasons not altogether clear. But that exemption has to end. When you begin exempting one industry, essentially telling them they don’t have to play by the rules everybody does, then you have negligence and tragedy. We must hold everybody to the same standard.
I must tell you, the hostility displayed in the comments section of various newspapers where notice of the plea bargain has been posted is really quite ugly. At the very least, the indifference to farm worker issues is staggering…
MR That’s why we’re doing this. Since we started this Day of Action, the days leading up to this, the people we’ve talked to, even personal friends of mine, had no idea that this had happened. They had heard rumors, but it had never been brought close to home. It is unfortunate the media has not drawn attention to this. I will say that ABC 30 here in Fresno did a great job recently in highlighting the Oaxacan community which has come together; they did a segment on our Day of Action encouraging people to come out… But other than that it’s been very mute. We’ve tried to get onto a couple of Morning shows here in Fresno. We were told it was too political. They would come out the day of the event but declined to do anything prior. It is really unfortunate that it takes someone like yourself who has to dig deep to find out this information. It shouldn’t be that way.
Well, we are in a chilly political environment. And from my perspective, the wine writing community tends to shy away from such matters, shall we say.
MR I spoke with friends this morning who are attending a local wine tasting this weekend, actually. And we talked about that very thing. We are so detached as a public from agriculture. We sip wine, we eat fruit, we eat vegetables, but we’re so detached from the people who are responsible for bringing that to us. If the public were more aware of who it is, the faces of these people who are providing these products to them, I believe we’d see a lot more action taking place.
Do you know whether Maria Isabel’s mother will be attending the event?
MR She will not. There is a possibility that her uncle [Doreteo Jimenez] might be there. During the Fresno event there is also a vigil taking place outside the courthouse in Stockton. We want to make sure it’s a local event. Everybody is welcome to attend, but it is very important to us that the folks who are up there in Stockton, who will be going to this vigil Monday and Tuesday, not be asked to drive down to Fresno. That vigil, the public presence at the courthouse, is very important. The judge and the D.A. need to know that this matters, that adherence to the law matters.
But it’s because this is about a farm worker, someone who is deemed by this court, by this D.A., I guess as less than a person, that we’re having to do this Day of Action. In fact, prior and up to the time District Attorney James Willett made this plea bargain deal, he had not even talked with the members of Maria Isabel’s family. At this point over 10,000 emails have been sent to him via the UFW’s website. So our hope is that the more we bring this to the public’s attention, the more we put their feet to the fire, the better they will understand that they will be held accountable for their actions. Any attention that people such as yourself can draw to this issue is vitally important.
Great speaking with you, Matt. I shall do my best.
MR Same to you, Ken. You may want to know: To our knowledge, this is the first time in Fresno State history, on the campus, or anywhere n the county, that a group of students has come together to utilize the power of the internet and social media on behalf of farm workers. This is the first time any organizing on campus has taken place using email and the internet to stand up for farm workers. March 9th is historical. If the judge rules in our favor, in the favor of justice for this young lady and her family, than that will be the first time in history that a judge will have sided with a farm worker over a labor contractor and an employer. I am happy in only this, that we have organized folks willing to stand up and take action.
A question suddenly occurs to me. Were the plea bargain rejected then the case would go to trial. So perhaps it is less important to stress imprisonment for those who have plead guilty, than that a public trial take place.
MR Yes. Our goal is to make sure the judge rejects the plea bargain so that they can move forward to trial and be prosecuted to the fullest extent of the law. No exception should be made in this case because of who the victim was, what her surname was, what was her profession.
So the plea bargain would, in this case, be a function of just how invisible farm workers are in America.
MR Absolutely. They thought it would be a quick deal. Let’s get this over with. Let’s get these guys community service; and let’s move on. Nobody will notice. But the United Farm Workers noticed, and then tens of thousands of people would start noticing. Now they realize they are in hot water, or they should.
Thank you, again, Mr. Rogers.
MR Thank you for drawing attention to this.
*Per a phone call from Mr. Rogers following upon the appearance of this article: It is important to stress, he insists, that the regulatory burden be placed upon the labor contractors; and that wine grape growers increasingly demand that the laws be followed.