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What's the state's big beef?

Scappoose farmer, and accused polluter, says the state illegally targeted him
by: Submitted photo illustration Farm bred - This Hereford bull at Holdner Farms appears to be healthy and in good shape. From the state's perspective, however, it is a contributor of pollution in South Scappoose Creek.

Arrayed before, behind and to each side of William Holdner's chair at his office on Sandy Boulevard in Portland are dozens of neatly stacked paper piles spread over several desks. He navigates through the piles easily to find the documentation he wants; there's very little backtracking and he typically references paperwork and laws - both federal and state - by title and number in the short span before his broad, weathered fingers land on the object of his search.

It's an impressive sight. Even more so considering Holdner just celebrated his 85th birthday.

And it's not just his mental prowess that impresses. Holdner is remarkably fit with a spare history of medical malady, a fact he attributes to his staunch views on nutrition. He openly criticizes the Oregon Department of Agriculture's allowance of herbicides such as the water-soluble and controversial atrazine, which critics claim causes birth defects; he shuns imported vegetables, barring proof of their all-natural cultivation, due to the practice of rinsing them in chlorine-based water prior to market delivery.

He had also taken an early position against tobacco use in the workplace, banning the practice in his own office in 1965.

'You couldn't even see the end of the office because of the blue haze of the smoke,' Holdner recalls. 'I've always kind of looked down the road. I don't look just to today. I look to the future.'

Holdner developed the office complex - called Data System Plaza - in 1972, which is anchored by his accounting partnership, Holdner, Backstrom and Baum, Inc. He's also recently improved the building to accommodate a moderately sized professional dance studio, and in the past had operated a significant computer sales operation that inspired the office building's name.

Not least of all, it serves as the administrative headquarters for Holdner Farms, a 300-cattle beef operation located on Dutch Canyon Road in Scappoose.

The farming operation, above all else, commands much of Holdner's attention these days. Last year, the Oregon Department of Justice brought three felony counts and 25 misdemeanor counts against Holdner for water pollution. The allegations contend Holdner Farms operates as a confined animal feedlot without the requisite Oregon Department of Agriculture permit, and that it discharges animal wastes to the section of South Scappoose Creek that runs along the farm's southern border.

Holdner pleaded not guilty to the charges and the case is still pending in Columbia County Circuit Court.

But the criminal action is only the latest in a string of legal disputes between Holdner Farms, the ODA and the DOJ.

Case history

To understand Holdner's perspective, a retelling of his history regarding the land is paramount. He purchased it in the early 1970s. The property's 1880s barn had been constructed so that it traversed Scappoose Creek and provided for animal wastes to drop down into the water.

Because there is no subsurface water on the property, he says he knew his beef cattle operation wouldn't work without access to fresh water.

'I wanted to make sure the water available to the facility was clean and safe for the cattle to drink,' Holdner says.

He contacted the federal soils resource agency, at the time called the U.S. Soil Conservation Service, to come out to the 102-acre property and help him devise a strategy to ensure pollutants were captured and held on site.

The result was the design and construction of a 40,000-gallon concrete holding tank that receives cattle wastes prior to discharging from the site. When there is a risk the tank could overflow with the onset of sustained or heavy rains, the contents are pumped via an underground pipe to a pasture several hundred yards away, where a spray 'manure' gun fires the water-waste blend onto a 300-foot diameter section within a pasture.

St. Helens' Bill Eagle, now the board secretary with the Columbia County Soil and Water Conservation District, worked with the federal Soil Conservation Service and assisted in the system design in 1975.

'At that day and age, it was state of the art,' Eagle recalls.

CAFO Questions

Holdner is adamant the waste containment system is as effective today as it had been nearly 40 years earlier.

But there's more at play beyond pollution questions.

ODA officials had inspected Holdner Farms going back to 1997. No citations had been issued against it at the time and, says Holdner, the farm operation has not substantially changed between then and today.

In March 2007, however, ODA inspectors filed two notices of noncompliance against Holdner based on the prior month's observation of an ODA inspector who had watched operation of the manure gun from Dutch Canyon Road.

The first notice alleged Holdner Farms was operating as a confined animal feedlot operation, or CAFO, and was negligent obtaining the requisite permit.

The second notice was based on the assumption the manure gun discharge would likely flow to Scappoose Creek.

Holdner disputed both claims, which ultimately landed in front of an administrative law judge.

Agricultural operations, according to Oregon law, are defined as CAFOs once several criteria are met. One criterion is that the operation intends to discharge processed waste water offsite. Another is that the animals - cattle, pigs, sheep - are confined in a specific area of the farm for no less than a period of four months.

Holdner argues that neither of those conditions have been met.

In fact, Holdner says he asked the state to conduct its own water testing of Scappoose Creek.

'Wouldn't it be smart to have my water tested by a geohydrologist to prove my point?' he says. 'I said, 'If there's any pollution, I'll close the operation down. They wouldn't do it.'

Though he says the state wouldn't test, Holdner hired an independent firm - EnviroLogic Resources, Inc. - to conduct water testing of Scappoose Creek at points entering, throughout and exiting his property. The test occurred April 22, 2010, and turned up no evidence of pollution.

The judge in the administrative hearing upheld ODA's claims, and though Holdner contested the findings to ODA's director, Katy Coba, the state department dismissed his arguments and sustained the civil penalties against him in the amounts of $1,620 for the CAFO permit and $2,280 for the alleged pollution.

In November 2009, Holdner filed an appeal of the civil penalties in the Oregon Court of Appeals. Last week, on June 15, the state's appellate court confirmed the ODA's civil penalties against Holdner.

Enter the DOJ

Perhaps the most compelling aspect in the Holdner Farms case file is the Oregon Department of Justice's involvement.

Before the ODA had filed its claims against Holdner Farms, Holdner - representing himself and filing all requisite court briefs - brought several complaints in U.S. District Court against the ODA and the state agency's top brass. The complaints challenged ODA's regulatory authority to impose storm water pollution controls more stringent than what has been established in the 1972 federal Clean Water Act.

Holdner points to exceptions that allow for agricultural operations to have water discharge during storm water events; he is backing up his arguments following a recent Fifth Circuit Court of Appeals ruling in April that the Environmental Protection Agency can not require agricultural operations, specifically CAFOs, not actually discharging water to have a storm water discharge permit.

As Holdner's federal filing worked its way through the district court and his appellate actions had been filed on the administrative ruling, the DOJ started to ramp up pressure on Holdner Farms.

On Dec. 21, 2009, an Oregon State Police Fish and Wildlife officer issued criminal citations against Holdner Farms for alleged water pollution, court records show.

According to an affidavit from Margaret H. Leiberan, who is representing Holdner in the Court of Appeals filing, she received a call from DOJ Senior Assistant Attorney General Patrick Flanagan in the Criminal Justice Division on Feb. 11, 2010, soon after she had filed notices of appeal of the state's civil penalties. Flanagan is the state's top environmental prosecutor.

Leiberan says in the affidavit that Flanagan had 'authority from his superiors' to file three first-degree felony charges for unlawful water pollution and multiple misdemeanor charges against Holdner, and that he would take the charges to the grand jury if he did not hear back from Holdner by Feb. 19.

Leiberan says Flanagan 'wanted to negotiate' and said he would not bring the felony charges if Holdner would plead guilty to two misdemeanor charges that he had polluted state waters.

'In my opinion, if Mr. Holdner had complied with Mr. Flanagan's request and pled guilty to the two misdemeanor charges, I would have had no choice but to dismiss the appeal because Mr. Holdner would have admitted to all of the essential factual findings challenged on the appeal,' Leiberan says in the affidavit.

For Holdner, the DOJ's threat of felony charges was intended to strong arm him into dropping his federal challenge of the state's authority to regulate his farm, and numerous other farms across the state, as a CAFO.

Holdner did not submit, however, and on May 19, 2010 he was indicted on the felony and misdemeanor counts in Columbia County Circuit Court.

There has also been some question about the origin of the criminal charges. ODA department heads, including those responsible for the CAFO and natural resources programs, testified via affidavit that at no time had they requested or directed the Oregon State Police or Oregon Department of Fish and Wildlife to pursue criminal actions against Holdner.

In an e-mail response to the Spotlight, DOJ spokesman Tony Green said all parties - including the ODA, the DOJ and the Oregon State Police - agreed to pursue criminal charges against Holdner.

Green also says the contested case hearing scheduled for the Court of Appeals was never raised during the pre-indictment plea hearings with Holdner.

In a U.S. District Court affidavit, Flanagan says he had learned of an Oregon State Police investigation, in conjunction with the ODA, Department of Environmental Quality and the Environmental Protection Agency, of ongoing 'criminal activity' occurring on Holdner Farms.

Flanagan says in his affidavit the charges and the result of the investigation were specific to Holdner Farms operating as a CAFO and the water pollution allegations, both instances raised by the ODA.

Flanagan's supervisor, Oregon Attorney General John Kroger, restated Flanagan's assertions in his own affidavit, including statements that the ODA officials had not requested police involvement or the pursuit of criminal charges.

In an e-mail response to the Spotlight, Green says Holdner's claims are unsubstantiated and that there is no disagreement amongst the state agencies regarding the criminal prosecution of Holdner Farms.

Farming continues

Holdner, who says he feeds 40 head of cattle in the morning before making his way to his accounting office (the farm's Hereford cattle are mostly used for beef or breeding) says he's prepared to go the distance regarding the allegations against him.

Though he hasn't filed the paperwork to certify his farm as organic, he markets the beef produced there as being all-natural.

'I haven't broken any law,' he says. 'I would never do anything I felt would cause harm to anybody.'

Holdner had been arrested at his Portland office and briefly lodged in the Columbia County Jail following the felony indictment.

Those, like Eagle, who know him say he's a 'formidable' man who likely has made an enemy or two over his eight-and-a-half decades.

'Bill is a formidable person, he truly is. He's a brilliant man,' Eagle says. 'I almost think there might be some kind of vendetta against him. I don't think Bill Holdner is the villain.'

Today Holdner is free and is expected to appear in Columbia County Circuit Court on July 19 for motions in the criminal case.

The web version of this story has been modified to include information regarding the June 15 appellate court decision in favor of the ODA and to correct for proofreading oversights