A label for canned oyster stew from 1952 testifies to the Hayes family’s long presence on Tillamook Bay, where runoff from dairy operations influences water quality.

An oyster company can revive its lawsuit over pollution rules in Oregon’s Tillamook Bay after the state Court of Appeals decided the case was wrongly dismissed.

The Hayes Oyster Co.’s complaint against the Oregon Department of Agriculture was dismissed for procedural reasons last year.

The case is part of the company’s long-running battle with state authorities over regulations for fecal coliform bacteria in the region, which allegedly hinder oyster harvests due to food safety concerns.

Pull Quote

‘Hayes Oyster Company appreciates the importance of Tillamook’s dairy industry but we have to find ways to ensure that both Tillamook’s dairy and shellfish industries can co-exist.’

Thomas Benke, attorney for the Hayeses

Hayes argues the state’s oversight of dairy pollution in the region is inadequate, as manure applied to fields allegedly causes excessive runoff that contaminates the bay.

State officials and dairy industry representatives have blamed defective septic systems and other pollution sources for contributing to the problem while arguing water quality in the bay is improving.

In 2019, Hayes petitioned the Oregon Department of Agriculture to implement a rule to ensure dairy farms and pastures contribute “zero load” to the bay’s fecal bacteria levels.

The ODA rejected that request because its water quality management plan for the area encompasses Tillamook Bay while dairies are regulated under confined animal feeding operation permits meant to protect waterways.

Hayes challenged the ODA’s decision as unlawful but the case was thrown out after Tillamook County Circuit Judge Mari Garric Trevino determined it didn’t meet the statutory requirements to proceed.

The Oregon Court of Appeals has now reversed that ruling, finding that Hayes has stated a plausible claim under a state law governing when agencies may be compelled to take regulatory action.

While the ODA’s water quality plan generally applies to the entirety of the Oregon’s north coast, the oyster company seeks rules to specifically enforce total maximum daily load, or TMDL, pollutant standards in Tillamook Bay, according to the Court of Appeals.

The appellate court said it does “not express any opinion on the merits of Hayes’s claim” but finds it’s “cognizable” under state law.

“This is a claim of agency inaction where the law required the agency to take a specific action that the agency has not taken,” which is “properly the basis for a claim” under the statute, the ruling said.

A representative of the ODA said the agency does not comment on pending litigation.

Thomas Benke, attorney for the Hayeses, said anyone who fishes or swims in the region’s rivers or eats seafood from Tillamook Bay faces a health threat from pollution caused by manure that was spread on pastures.

Meanwhile, ODA has refused to adopt pollution prevention and control rules since the TMDL standards for Tillamook Bay were established 23 years ago, he said. “Hayes Oyster Company appreciates the importance of Tillamook’s dairy industry but we have to find ways to ensure that both Tillamook’s dairy and shellfish industries can co-exist.”