An Oregon farmer is asking the state’s Court of Appeals to reduce his $160,000 in pesticide fines, claiming he was improperly penalized multiple times for the same violation.

The state’s Department of Agriculture determined that Creekside Valley Farms and its owner, Paul Kuehne, sprayed a prohibited herbicide on radish eight times in 2019.

Last year, Creekside Valley Farms was assessed civil penalties of $10,000 for each application, and Kuehne was also assessed $10,000 for ordering and supervising each operation.

How many violations?

Kuehne and his farm are now challenging the ODA’s reasoning that eight separate violations occurred, arguing the applications amounted to a single spray operation on a contiguous radish field.

“The point of this appeal is to have good rules and there are not good rules in place,” said Richard Brown, the farmer’s attorney, during oral arguments on Oct. 25.

According to ODA, the agency received a complaint in June 2019 that Witness herbicide had been sprayed on hundreds of acres of radish growing in Linn County even though it wasn’t labeled for use on that crop.

After the farmer refused to allow ODA onto his property, inspectors obtained a search warrant to take plant and soil samples that later tested positive for the chemicals in Witness herbicide, the agency said.

From on-site observations, the agency determined the violations had occurred in eight fields ranging from 7 acres to 170 acres, totaling more than 460 acres.

The case was referred to an administrative law judge who agreed with ODA that Kuehne and his farm were separately liable for eight pesticide violations and owed the maximum $10,000 for each, based partly on a lack of cooperation with the investigation.

ODA challenged

Kuehne and his farm have challenged the agency’s final order before the Court of Appeals, arguing ODA lacked evidence that eight pesticide violations occurred.

The herbicide was sprayed on a single contiguous field, regardless of various land features and pieces of irrigation equipment, said Brown, the farmer’s attorney. “This was all one crop being grown and it was radish.”

The ODA could have plausibly argued that eight violations occurred if the herbicide was sprayed on different crops, since pesticide labels would apply differently to each, he said. However, the herbicide was applied only to radish at the same concentration.

“In this case, the evidence is the areas were all treated the same, Brown said.

The agency largely relied on the presence of multiple pieces of irrigation equipment to make its determination but didn’t account for the radish crop being managed collectively by the farmer, he said.

“He made a single decision about a pesticide application to this area,” Brown said.

According to ODA, the agency based its reasoning on a variety of factors, including differences in crop growth and physical barriers between fields, such as trees and roads. The agency said it also considered irrigation systems, such as some fields relying on big guns and others on center pivots.

“Those separate decision points are treated as separate acts under the rule,” said Robert Koch, the government’s attorney. “Separate growing areas have separate decision-making processes.”

The legal standard requires that a reasonable person could have arrived at the same conclusion, which is satisfied in this case, as were the notice and hearing requirements, he said.

“They received all the process that was due to them,” Koch said.