ONE MAN'S DUNG PILE IS ANOTHER MAN'S WATER GAP
An agricultural water quality complaint was filed nearly a year ago by a retired English professor against local farmer and rancher Sherman Hawkins, 83, over a winter cattle feeding operation on 800 acres of Hawkins' land leased and managed by Owen Kropf.
What followed has been, if nothing else, a case study in Murphy's Law.
Everything that could have gone wrong during the state's investigation into the complaint has. Even those within the investigation could not agree on certain points of the investigation. And at the end of the day, the Oregon Department of Agriculture appeared to have more subjective opinion than evidence to support the claim of a water quality violation at the Catherine Creek site.
Kropf's strict adherence to the tenets of his non-confrontational faith make him refrain from speaking out in his own defense. But initially, he commented to staff from the Union County Soil and Water Conservation District during their onsite visit a week after the complaint was filed, that there could be some riparian problems at the operation along Catherine Creek. And, that he had already planned some changes.
Those statements ended up being the ODA's best evidence against him.
In early April 2005, George Venn decided to kayak over a stretch of Catherine Creek between the bridge on Wilkinson Road to the bridge on Gekeler Lane.
"One of the best moments is seeing the heronry," Venn responded via e-mail. "My notes show that I counted or photographed 56 nesting pairs."
But as the kayakers floated toward Mount Fanny, Venn's perspective on the scene changed. His complaint states, "(the) banks (were) being damaged by cows. Little or no riparian vegetation and dead cows on the banks. Noticeable sediment in river."
There are no pictures of this, however Â— though they would have proven enormously helpful later on. Because, as Venn explained, his friend Â— who preferred to remain anonymous Â— had used all of his small digital camera's memory card on photographing herons.
At home, Venn studied a BLM map of the Grande Ronde Valley with landowner names, ranges and township numbers. The next morning he began making phone calls Â— the Oregon Department of Fish and Wildlife, the National Oceanic and Atmospheric Administration's fisheries office in La Grande, the Department of Environmental Quality in both Baker City and in Pendleton.
Bruce Eddy at ODFW and Eric Murray at NOAA Fisheries recall instructing Venn that under Senate Bill 1010, the Agricultural Water Quality Management Plan passed in 1993, the ODA is the agency authorized to manage agricultural water quality complaints. Murray referred Venn to Ken Diebel, Union County's water quality specialist with the ODA, and the author of Union and Wallowa counties' individual 1010 plans.
On April 14, Venn ended up filing a formal complaint over the phone with Diebel.
On April 21, SWCD staff met Kropf at the site. He told them he had moved about 2,000 head of feeder cattle through the property during the previous winter. All 2,000 head were not on the property at the same time, and the remainder would be gone by month end.
Normally, Hawkins has said, the operation runs 1,200 to 1,500 head through and the feeder cattle are usually off the property by the end of April. The high number of 2,000 head was due to the owner of the cattle anticipating a good market that year, so he bought more. During the summer months, only a few head and some horses are kept on the 800 acres, which also produces alfalfa hay each year.
The area of Venn's complaint was determined to be a water gap along a stretch of the south bank of Catherine Creek bordering Hawkins' property. Approved by the Oregon Department of Agriculture, water gaps are either naturally occurring or constructed areas along creeks, streams and rivers where livestock and game can have access to water. The water gap in question is naturally occurring.
Larry Larson, a member of the local cattlemen's association, has a Ph.D. in range ecology. He has been to the water gap.
"This is a naturally occurring water gap with 10-foot high vertical banks on either side. Fencing is not the answer. It would be a waste of time and money," he said.
Larson says cows, and game animals, will always take the path of least resistance to water. The natural curve of the creek bed has caused an area that has more slope to the water.
"I measured from the point of access on one side of the gap straight across to the other Â— I didn't follow the curve of the bank. But from point of access to point of access, it's about 100 feet," he said.
Although Diebel made repeated efforts to meet with Kropf on site, due to spring runoff and high water levels, it was four months later, in August, before he was able to conduct his first site visit.
By August, the site was dried up. But even if there had been water, in order to determine whether there was a water quality problem in the creek in April when the complaint was filed, water samples had to have been taken then. Diebel was left with taking pictures of the dry creek bed and late summer riparian areas. He also made visual observations and discussed offsite water options with Kropf.
In his compliance investigation report, Diebel stated his two main concerns were the lack of vegetation along the stream and bank stability.
His recommendation to Salem on Aug. 16, 2005, was to send Kropf and Hawkins Water Quality Advisory letters, which are issued if there is no clear violation of SB 1010 rules.
Instead, three days later Salem issued a Letter of Warning, which indicates the ODA believed pollution was occurring.
Even though there were no water samples to prove pollution, Ray Jaindl, the department's Water Quality Program assistant administrator, said the Letter of Warning was justified because of Kropf's own statements.
The complaint and the series of events that followed kept ranchers from Baker County to Wallowa County boiling mad. The saga served to heat the winter meetings of the Union County Soil and Water Conservation District and the Union County Farm Bureau Â— both of which were attended by ODA representatives from Salem, including Jaindl, and Diebel.
At the February meeting of the Union County Cattlemen, the ODA suggested Diebel not attend Â— a move that did not set well with the local ranchers.
To represent them, they sent Stephanie Page, a compliance program leader, with a power point presentation to explain SB 1010's compliance evaluation and resolution process.
Sherman Hawkins' son, Fred, a retired state police investigator, now runs the farm and oversees the operations.
"This whole things is a fiasco," said Fred Hawkins, addressing Page. "The complaint isn't signed and according to your own rules it has to be written and signed by the complainant.
"The Letter of Warning states we have a water quality violation. But without samples of the water from last April how could you know that? By the time Diebel got out there in August, there wasn't enough water in the crick to get a sample, so you've got a bunch of pictures taken in August and somebody's opinion. You don't have a case."
Page did agree that the complaint was not signed Â— an error in procedure, but explained, "As you can see from the pictures, the riparian vegetation is poor. That would affect the water quality."
Under 1010 rules, a formal complaint is to be submitted in writing and signed. Venn's complaint was tneither, which would constitute an informal complaint. So, at some point during the investigation, the ODA had begun to refer to NOAA Fisheries as a complainant agency, as well.
"You don't want the feds as a complainant agency Â— it changes the whole nature of the things," says Cory Parsons, the county livestock agent for OSU Extension Service.
According to Diebel's chronology of events, Eric Murray from NOAA fisheries referred Venn to the ODA. When asked if his office had filed a complaint themselves, Murray said no.
"On the ground, this really is an ag issue. If there was some indication there was a violation of the ESA with regard to salmon or steelhead in Catherine Creek, we would look into it. But with lack of detail Â— an unclear situation, I thought it best to let them handle it at the time. Although I have continued to get updates on the situation," Murray said.
But last week, when asked if NOAA Fisheries in La Grande was considered a complainant agency in this case, Jaindl said yes.
When asked what the ODA would do next, Page said that since Mr. Hawkins had decided not to grant them access to his property without a search warrant, they might float the creek this coming April to take water samples and make observations on the riparian areas.
"How are water samples taken in April 2006 going to tell you whether there was a water quality problem in April 2005?" Fred Hawkins asked. "Wouldn't that results in a new complaint?"
"Well, yes, I guess it would," Page replied.
By last week, however, Jaindl said the ODA had no plans to float Catherine Creek this spring and no plans to issue another violation.
"We're satisfied that the violations that had occurred are being taken care of. The numbers of livestock have been reduced and management practices have changed," he said.
Left unsatisfied with no clear answers as to how something like this happened, local cattlemen would like to see more ODA effort going into educating landowners about SB1010 and the county's agricultural water plan. Though they admit holding educational meetings are one thing and getting enough to attend a meeting is another.
"But there's no reason why investigators can't carry a supply of the (water quality) plan with them. The first thing they ought to do when they walk onto somebody's property is hand them a copy," Larson says.
Livestock agent Cory Parsons suggests each landowner needs to be proactive in arming himself with as much information as he can. And to cooperate with any state or federal agency following up on a water quality complaint.
"Set up a meeting as soon as possible. Greet them when they show up, escort them onto your property and escort them back off. Everywhere they take a picture, you take a picture. Every place they take a water sample, you take two. Send one to the same lab they send theirs to and send the other one to a completely different lab. Then you have everything they have and more," he suggests.
Should Kropf have done things differently? Perhaps. But he won't say because he doesn't want his name in the paper, let alone a quote. The Hawkins family, Larry Larson, Cory Parsons and several cattlemen at February's meeting all agree Kropf is the kind of man who would take the blame for any grievance, whether he was guilty or not.
He once offered to pay Fred Hawkins a large hay bill when a buyer Kropf had brokered the sale with was overdue in settling accounts with Hawkins, rather than confront the buyer about his bill.
"He turns the other cheek every time," says Hawkins.
"There's nothing wrong with Owen running a herd of cows on this property and watering them in the creek. Animals have been watering up and down this creek for a thousand years. We've taken water sample. There's nothing wrong with that water," says Sherman Hawkins.
In all his 20-odd years of managing land in Union County, he has never been more insulted or enraged that someone could cause so much trouble simply because they didn't like the way things looked, he says.
As for Ken Diebel, well, he admits he has thought a lot about it and wonders himself why it has turned out so badly.
"I was just doing my job. These people are my neighbors. I'm not going to do something unwarranted, but if I get a complaint, I have to do my job," he says.
Ironically, Diebel's job will change soon. He's applied for and been offered another job with ODA as a riparian and outreach specialist.
Diebel's position will probably not be filled until April, Jaindl says.
"I think what happened here was a series of unfortunate events involving all parties," Jandl says. "Our goal is to work with landowners to solve problems, but it's a balancing act. Are there things we could have done differently?" he asks. "Well, perhaps some procedural issues, but hindsight is 20/20."