A group of small dairy farms in Oregon is proceeding with their federal lawsuit against the state over a rescinded requirement that small operators seek a permit usually intended for large animal-feeding farms.

The dairies, represented by the public-interest law firm Institute for Justice, contend that the Oregon Department of Agriculture’s policy change would have unconstitutionally placed an undue burden on some farmers to the benefit of others.

Last year, the department reinterpreted its definition of a confined animal feeding operation (CAFO) to include small dairy farms, requiring them to follow plans previously imposed on large commercial operations to protect surface water and groundwater from pollution, Oregon Public Broadcasting explains.

The small dairy operators complained the rule would have required them to install expensive drainage systems, put in wastewater holdings tanks and pay hefty fees just to milk a handful of cows.

The ODA announced on March 21 it has withdrawn its policy. But since the withdrawal was only temporary and the department didn’t concede that it lacked the power to enforce the new requirements, the IJ said the lawsuit filed by four dairies challenging the regulations will continue in federal court.

“I’m glad that the lawsuit will continue so we can ensure that the government doesn’t tie us up in needless red tape in the future,” said one of the plaintiffs, Sarah King of Newberg, Ore.-based Godspeed Hollow. “It will never make sense to treat a tiny dairy like mine the same as a large dairy with hundreds of cows.”

Overly burdensome

King’s lawyers say the new regulations would have required her to spend tens or hundreds of thousands of dollars to supposedly manage wastewater that farms like hers don’t typically produce. The state was set to begin enforcement on April 1.

The ODA told King that milking her cows in the barn meets the definition of a CAFO simply because the cows are “confined” for a few minutes during milking, the Institute asserted.

The change came after lobbyists for larger dairies complained that some small farms had an “unfair” competitive advantage over bigger operations that had to follow state regulations and pay annual fees, OPB reports.

Oregon officials said they are evaluating their current CAFO rules as they prepare to implement last year’s Senate Bill 85, which imposed new restrictions on what some environmental organizations have called “factory” farms.

The IJ’s attorneys argue the state is intervening on behalf of the larger dairies at the expense of the smaller ones.

“The government cannot crush small producers because its industry pals ask them to,” Senior Attorney Ari Bargil said. “Economic protectionism is flatly unconstitutional and our lawsuit will continue on until the courts acknowledge precisely that.”

Joining King as plaintiffs are dairy farmer Christine Anderson of McMinnville, Ore.; and goat farmers Waneva LaVelle of Hubbard, Ore., and Melissa Derfler of Grants Pass, Ore.