The Future of Farming

The Right to Farm: Agricultural Protections and Threats in Washington State

Growing up in the Salzer and Little Hanford Valleys near Centralia, Washington, there were some things one just got used to. Seasonal rains, general to western Washington, were reliable enough that one could set a calender to it: rain stopped the week of July 4th, a few weeks after school got out, and it started raining two weeks before Halloween. Like countless other sixth graders I spent the month of September restlessly squirming behind a beat up desk in a painted white cinderblock schoolhouse, looking out the windows and longing to be in the sun. I wanted to be on the sundappled ground under the grape arbor that clung to the fence between the school and a private home, and I would end up there the first and second week of October searching up through the ceiling of vines for those tart sweet treats.

I checked them before school started, during recess, and I longed for the last bell when I could run out to the arbor and inspect the grapes while waiting for bus. We were allowed any of the grapes on the school yard side of the fence. When they were ripe I would stand under them with an open mouth, to which I pulled every ripe cluster I could reach. Sometimes I would throw a grape high into the air and catch it, my joy turned into performance and whim. Grapes, I later found out, are the predecessors of wine, but I didn't need them to be mashed and fermented to become intoxicated; simply eating them off the vine did it for me. The Mrs., whose name I dont recall, may have been in her 60's at the time, and she watched us and the grapes from her porch with a distant intimacy. The year's harvest ripened, magic underneath it all, and more coming the next year, after these ones go- both us, the students, and the grapes.

On the hour long bus ride home we rode past forest and farm. Our driver, Gretchen, told us stories of how the valley used to be. She had lived there since just after WWII, and told us of cedar trees as big around as houses and firs 200 feet tall that used to line the valley walls, along with giant maples and cottonwood. But few of them remained, even in 1975. Tree farms, with uniform stands of doug fir harvested at 30" diameter had replaced them, and spray planes spreading broadleaf defoliant, pesticides and so on flew over every few months. The farms along the valley bottom were still there, but had changed. Those that were making it had new machinery to spread fertilizer and spray chemicals, replacing team horses, old tractors, and volunteers- the weeds of native diversity which show up when one doesnt practice chemical authoritarianism. We played in the windowless houses and among the blackberry covered abandoned cars of the farms that had failed.

The trailer court was new, and many farms had parceled out. Houses sprung up like mushrooms, flooding when the water rose, and sold or remodeled went it went down. We lived in such a place for two years before the folks got smart and bought a house on the valley wall. Gretchen said Salzer creek used to fill up with salmon so that a person couldn't cross without stepping on them, but they hadn't run like that since the 1950's. By the time I started playing in Salzer Creek it was just a cow-run mud hole that turned into a lake some 2 miles long every December. Over Seminary Hill, in China Creek, along the abandoned railroad right of way, only minnows, frogs and water skippers enjoyed the riffles. No fish passed Centralia's street-covered, concrete-walled waterways. We were too young to understanding the causes, but those of us who listened to her had a sad curiosity, wondering about a past with such great trees and so many salmon.

The dairy farm came to visit us on the late summer breeze. The smell of the silage and effluent ponds moved up and down the valley on a tide of wind. It was a smell we got used to. My folks had 20 acres of timber, and kept horses, and fowl, but no cattle. I tended rabbits and geese as a 4-H kid. We had a one acre garden for putting food by, and I weeded string beans for canning, left carrots and onions in the ground to winter over, and grew a few pumpkins for pie and jack-o-lanterns. We would simply gather something from the garden, butcher a fryer, and there would be soup or stew. We traded with neighbors, exchanging eggs for raw milk. Rodale's Organic Gardening and Mother Earth News were delivered to our house, and composed my recreational reading from ages 8-14. In the early spring the valley dairy farms, all small family outfits, would spray the fodder fields. I suspect, from my recolllection of the smell, that it was effluent from the barns. This fertilizer kept the pasture green and growing. The whole valley would smell, especially on days that the rain wasn't falling and it got a little warm. Just like the rains, and the position of the sun when one could see it, the smells of various stages of composting effluents and fermenting grain in the silos kept me attunded to the seasons.

The process for filing a suit and making legal claim for punitive or practicable arbitration against a presumed violation of rights is one, in Washington state, which starts with a complaint. Stripped of legalese, it basically comes down to "so and so has done me (or whoever) wrong". Persons afflicted with damages, and in some cases discomfort, can file suit by making a bona fide legal complaint through civil governance such as a county seat or senators office. Thus, when pesticides or herbicides are sprayed on farmland or forest and drift occurs, inundating nearby homes with potentially toxic chemicals, the folks in that neighborhood have recourse to seek claim for nuisance and damages. Industrial fertilizers, effluents and silage can kill fish and foul water through the process of eutrophication, which adds so much nitrogen to water that oxygen is used up by rapidly reproducing micro-organisms, and none is left for fish. The State and particularly the departments of Fish and Wildlife, and Ecology, work diligently to end this kind of pollution. Pesticides and herbicides can harm and even kill farm animals and humans. Then there is the smell of silage, that fermented grass compost fed to cattle (it is higher in nutrients than dry hay), and feed lot effluent, sprayed on fodder fields to encourage grass growth. The smells coming from these Agf practices have illicited considerable complaints over the years. I grew up with a stink both at home and school,for dairies once surrounded Centralia. As kids, we jokingly blamed one another of overeating beans. The smells pose no danger, at least at a distance, but I never grew to think of either as pleasant.

RCW 7.48 describes what kind of nuisances can and cannot be filed against, and it is here that we find the basis of Washington States "Right to Farm" law. RCW 7.48.305 is titled, "Agricultural activities and forest practices — Presumed reasonable and not a nuisance — Exception — Damages." In short, this RCW states that an existing farm using reasonable practices cannot be filed against for nuisances so long as the farm was in operation prior to the establishment of the residence or workplace, etc., of the party attempting a suit.

Regarding RCW 7.48, State Legislators have written a supplement entitled "Findings -- Intent -- [2007 c 331 ? 1.]" It reads: "The legislature finds that agricultural activities are often subjected to nuisance lawsuits. The legislature also finds that such lawsuits hasten premature conversion of agricultural lands to other uses. The legislature further finds that agricultural activities must be able to adopt new technologies and diversify into new crops and products if the agricultural industry is to survive and agricultural lands are to be conserved. Therefore, the legislature intends to enhance the protection of agricultural activities from nuisance lawsuits, and to further the clear legislative directive of the state growth management act to maintain and enhance the agricultural industry and conserve productive agricultural lands."

The interpretation of this law turns out to be a bit of a stickler. From eastern Washington Orchards to western Washington field producers, suits based on both complaints and blockades by County governments and even Army Corps of Engineers have put family farmers out of business or threaten to. In Yakima county Micheal Taylor, an orchard producer, encountered a suit based on his use of 'cherry guns' to scare birds away from his crops. In 1997 he converted the orchard from apples to cherries in order to adjust to market demand. With his new produce he acquired new practices, and despite the long existence of orchards at the site, and Yakima Counties finding on his behalf, the State court of Appeals in 2006, prior to the above finding of intent, favored the litigant, stating that the practice, not just the agricultural zoning or farm, must predate the tenancy as a neighbor. How this case or future cases will be resolved remains unclear.

I expect that the State, who legislated to conserve farm lands by giving immunity to complaints received from encroaching development, has eroded the basis of the very intent of the law. Curiously, the finding on the intent, appears to favor the producer, but was made after the court finding against the Yakima orchardist. Perhaps the courts, in some fit of regret for the trouble the Tayor ruling will cause farmers, produced the statement as a post mortem for his farm. If it had any effect on the Taylor case, I have found no online reference to it. If our farms are not protected against crippling nuisance claims while diligently working to adapt to changing markets and changing climates, the overwhelming tide of in-migrants into the state will be able to register legally valid complaints against adaptations a farmer must make in order to stay in business; thus threatening and potentially putting farms out of business. In short order the weak “right to farm” laws could find no farms remain to protect- given the rate of decline over the last 30 years, there will be no family farms as we have come to know them by the end of the 20 year strategy window.

Even when a complaint does not hold up in courts, the producers still must endure the frustration of facing yet another notice of distemper from a person who moved in next door without understanding the producer's practice. One of the producers at the FoF meeting in Ridgefield commented that the neighbors in the new subdivision next door had complained about his use of pesticide and herbicide sprays. Farming is a source of livelihood, and the new neighbor chose to live next to a business. Imagine a person moving in next to SeaTac airport and subsequently filing complaints for noise. A farmer/producer must live with the complaining neighbor even after the right to farm is determined. I suspect that none of us desire to have tension between ourselves and our neighbors. The difference between legal and personal can be vast, and despite legal backing, the constant complaint of neighbors certainly reduces the pleasure one takes in their work.

Sometimes farm related litigations aren't complaint driven. In 1874 the Colf family of Woodland Washington, began faming along the Lewis river. In 1927 eminent domain forced them to sell land for the construction of the Merwin Dam. Now the State, through eminent domain, seeks to take more of their land. The Army Corps of Engineers (ACE) Columbia dredging project has been determined to require hundreds of acres of wetlands mitigation by the Department of Ecology. The ACE is calling for the sale of 500 acres of the Colf family's Columbia river frontage, which is prime and active farm land, to fill that mitigation requirement. The family has worked to develop alternate offers, and noted that the Ports of the lower Columbia, and over 100 miles of river shoreline, also have open space which could serve the mitigation requirements. Despite this, the Colf's are being asked to provide 70% of the land required for the mitigations. Their land currently produces barley, haygrass, cattle fodder, wheat and sweet corn. ACE and the Ports would turn this land into a wetland to handle flooding offsets from dredge fill, taking some 40% of the families productive holdings when other land- land owned by the State and Ports- is available. This is an ongoing discussion whose end does not seem close.

It seems that the right to farm is only shakily established in this state, even with the provision of the RCW's. The complaint driven process, eminent domain, and other property right and land use/management conflicts contribute to the grinding down of the family farms of our State. Despite the intent findings of the Senate regarding RCW 74.48, nuisance laws and the encroachment inherent in our rapidly increasing population synergize to produce an environment unfriendly to the family farm. However, I suspect that this effect is not so onerous as another aspect of state legislation, and beyond that, federal legislation.

Prior to the Civil War, import tarrifs were the meat and potatoes of the federal budget. Now they have been eroded to the point that they count for only a pittance. Now taxpayers shoulder the burden of financing our federal governance, not trade tarrifs. If the US raises or re-established tarrifs, the countries we trade with will raise their tarrifs on US imports- including the 25 million pounds of carcinogenic pesticide made in the US, banned for application in the US, but legal to produce here and sale out of country. Producers of other countries use this pesticide on their crops and sell it back to us on fruit, making a profit while poisoning us and their underpaid workers. We have scrutinized the toxicity of poison in toys manufacturing dog food from China, but little mention is made of bromo-compounds made in the US, sold in Latin America and sold back to us in the form of fruit. Thousands of US citizens are poisoned annually in this trade, but few ever connect the dots and fewer talk. US Ag producers have US consumers, Chemical Corporations and Governance to confront on this topic. US companies making chemicals banned for use in US ag should be scrutinized; Consumers at US markets who want cheap or out of season fruit must be educated, and Policy Makers must use thier legal power to assure that industrial and market power no longer erodes the viability family farms. More than a 5 BIllion dollar industry is at stake: Our lives, our children's lives and the vitality of our heritage are in immediate danger, and the kind of business that leads to this danger must be stopped.

US customs records show that exports of chlordane, one of the most toxic pesticides ever formulated, increased tenfold between 1987 and 1990. Chlordane disrupts liver function and can cause permanent nervous damage or death. Dozens of other chemicals including DDT, and the vast family of PCB's and PBB's, are all banned for agricultural use in the US. Despite this the US manufacturers of these compounds have amassed fortunes selling the product for use in third world countries where there are no bans. The fruits and vegetables from these countries are routinely sold in the US without warning about health risks, all the while undercutting the local produce markets.

When a dollar goes to Chile for grapes, it does not go to local farmers. Thus, local consumers drive much of the family farm crisis- underpaid Chileans arent clamoring for Washington apples or cherries in return for the favor of our grape purchase. But the chilean producers do want chlordane and DDT. This is the convention of modern industrial agriculture, a direct result of NAFTA and similar trade agreements. The current "right to farm" laws in Washington can do nothing to protect family farms against this kind of business. It is, in fact, a far larger scope of threat to family farming than the failures of “right to farm” legislation. They are, however, connected.

The words Traditional, Customary, and Conventional often get used to describe farming practices, and are, like 'Sustainable', wildly inadequate words. If one says "traditional farming methods", it makes little sense without a qualifier: traditional methods of the 17th century, the late 1900's and the 1960's were very different than todays convention, and were conventions, not traditions, in their time. ESB 5962, a bill which passed in Washington state in July of 2005, uses the term “customary farming practice”, in conjunction with "consistent with good agricultural practice". Since this is the wording of Law, I wonder if are we to consider the customary practices which eroded 4 feet of Palouse topsoil as good Ag practices? While it does no good to blame our ancestors for the errs of their practice, in seeing them we are obligated to change the practice.

I regret that language again fails, despite the heart of the bill being relatively benign. What was customary yesterday- for instance, the mass spraying of cancer causing pesticides- may be considered by consensus peer review science and common sense to be unhealthy and ureasonable today. Customs, conventions, and traditions change. In order to keep aligned with market shifts- such as the consumer call for inexpensive if toxic fruits- local farmers have to change crops, production practice and marketing strategies. Failing to do this they will make no sale and lose their business. Yet state law has created a barrier to this. Without the ability to adapt, and the (fortunate) ban of chemicals which would allow local family producers to compete with international industrial Ag, family farmers are in a pressure cooker. And as of yet we've only named a few of the many ingredients in their stew of trouble!

Our work is on several fronts; in order to save family farms in Washington we need stronger protections which allow farmers to adapt production to market trends without enduring effective complaints by encroaching in-migrants to Ag zoned lands. At the same time we must examine trade tariffs, and I suggest placing high tariffs on imported produce which is produced with labor that does not provide a living wage. We should also ban the import of produce which is known to be cultivated with chemicals which are banned in this country. At the same time we might perhaps lower tarriffs on organic produce, using that bargaining chip to avoid dramatically increasing the tariffs leveraged against our country. However, if those tariffs do rise, the increase will affect the cost of exporting chlordane, which is a strong message to US chemical producers: Dont stab our farms and citizens in the liver!

Ultimately we must re-examine the very farming practices we've come to take for granted, whether we call them traditional, conventional or customary. The limited viability of fossil fuels, climate changes, market trends, and ecological collapse and shift are all affecting and changing the way we must think about and change our farming practices. As we seek to integrate our practices in the face of these changes, learning to use natures functional capacity to bolster our farming rather than fighting against it,farming will change radically. We will integrate waste streams in cradle-to-cradle cycles of nutrient movement, learn to farm without oil and within the balance of soil-rain-climate capacities, and understand that cultivation of soil biology and conservation are the core assets accounted for by farmers, agricultural economists and the citizen consumers. We must educate 'consumers', which means Ag programs must be a part of every school, urban and rural. As we restore and engender a knowledge of ecology, agriculture and international trade in our population, we will find fewer and fewer consumers and more and more citizens. It may not be easy, but it is, fortunately, simple, straightforward and honest work.

What we define as 'good agricultural practice' is changing constantly, and tradition, custom and convention are fully inadequate to describe Ag practices as diverse as the practices found in the wide range of climates and regions of Washington State. Farmers must be allowed, encouraged, to adapt without undue reproach from encroaching communities whose quest for an idyllic and quiet rural lifestyle has led them to settle in Ag country. At the same time family farmers should be pushing the envelope of their practice by re-examining their influence on law, their practice on the ground and how they share community and commerce with their new neighbors. Universities and agencies must be the producer's ally in this, especially Land Grant Universities which were specifically chartered for this purpose. Finally, farmers need to become active in education, to include youth, and to show the value of Ag education to the State in such a way that it becomes an essential priority in the education of future generations. With all this work to do, one question remains: When will there be time to farm?

ESB 5962 and RCW 74.48.305 may offer some protection to family farmers, but appear weak in light of the numerous examples of lawsuit and findings from across the state. However, the bigger threat appears to come from domestic consumers who continue buying inexpensive, toxin laden, foreign produce cultivated by underpaid workers whose net income is poverty and a potential for cancer. Ultimately this purchasing trend threatens family farms far more than complaints from neighbors about smells or dust. The farmer remains pinched from all sides. New neighbors, angry about sounds, smells, dust and spray, complain. Even if their complaints have no legal back, there is tension and energy lost by the farmer working to face such a terse environment. Meanwhile the US citizen consumer buys 50% of their produce from Latin America, and though it seems to cost less, it has less nutritional value, is too often covered with or supports business in banned toxic chemicals, and contributes to carbon emissions. As third world industrial producers pay their laborer much less than Washington producers are required to pay, poverty is enforced at both ends of the trade. Thus,the inexpensive import produce may be weeks, even months old, and support the modern equivalent of slave labor while taking away local jobs, and insuring people on both sides of the trade are exposed to known toxins.Who is this good business for? We get what we pay for: the Environmental Working Group produced a study showing that 27% of Chilean grapes -- a new mainstay of off-season supermarket bins -- were contaminated with the endocrine-disrupting fungicide vin clozolin. Less than 1% of US Grapes were found to be contaminated.

While I can't prove it, I suspect that the grapes hanging in the dappled sun of my 1975 schoolyard were clean. The Mrs. wasnt tending a vast orchard, trying to minimize expenses, or make a profit, She was just happily tending a yard the old fashioned way, with simple methods, a trowel, shears, and a hose. Her lawn was a postage stamp, barely big enough for a pair of chairs and small table for lemonade. Everything else was food and flowers. I remember the grapes, at first tart, and as the month went on, they became juicy, and sweet, growing right there, in the schoolyard, free of charge and good for us.