Ξ March 16th, 2011 | → 3 Comments | ∇ A Day at a Time, Herbicides, Interviews, Wine & Politics, Wine News, Winemakers |
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