The Future of Legacy Vineyards, Kevin Kohlman Pt 2
Ξ March 18th, 2011 | → 0 Comments | ∇ A Day at a Time, Herbicides, Interviews, Wine & Politics, Wine News, Winemakers, Wineries |
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.
Admin
