Who Poisoned My Grapes? (Part 3)

So the grape crop was picked, less than one ton, picked right next to the railroad. I gave a sigh of relief. But this was not the end of the saga.

Derek Moore from the Press Democrat kept his word both in holding the story for one more day and meeting me at the vineyard on the afternoon of August 27, 2015. He did however show up with a photographer. At the time I thought it was harmless. Looking back I would have preferred that they had not recorded the conversation.

We walked from the agreed meeting place at the corner of the railroad tracks and my county road. Derek was a quick study and was almost immediately able to identify the herbicide damage. His photographer took several pictures of me standing in front of a vine with obvious herbicide damage. I related to him day by day the activities of all of the players.

The article appeared the next day. Front page with my picture. The article was well written and accurate.

(“Healdsburg grape grower raises alarm over Northwestern Pacific Railroad's herbicide spraying” Derek Moore, The Press Democrat)

What I was not prepared for was the media attention. Both radio and television picked up on the story. I got phone calls from friends in the Bay Area. They wanted to know, was this the Bob Dempel they knew. There is no other Dempel, let alone Bob.

The next phone call was from Congressman Guod. He had seen the Press Democrat article. He asked why I had not called him when this problem occurred in June. “Just send me the bill,” he said, “I will immediately handle everything related to this incident.”

Now how would I know that Congressman Emeritus Guod owns the railroad company? He owns the newspaper and lord knows what else. At the time I did not think the congressman and I were that close of friends. A few weeks before the phone call I had received a handwritten invitation to an afternoon campaign party at his home for his neighbor running for re-election to the Board of Supervisors. He and his retired Superior Court wife live in the Historic Section of Santa Rosa. Think homes comparable to Pennsylvania Avenue in DC.

Several weeks went by and I did not hear form Guod. My phone calls to him went unanswered.

My next step was to file a Small Claims court action against the applicator, North Western Pacific Railroad, Sonoma Marin Area Rapid Transit, and a defendant who was a neighbor who had applied Roundup adjacent to the railroad on the west of me in the spring of 2015.

This action got some attention from the applicator. I had a difficult time serving old Crutch-Face. He did not live at his place of work. The occupants of the house at his workplace lied to the process server as to where he did live. I finally resorted to old relationships and found a phone number for his son clear up in Arbuckle and he freely gave me his father’s correct home address in city of Davis. The action triggered Crutch-Face’s insurance company to finally call me. They made a small offer. Guog and his partners were just silent. Sonoma Marin Area Rapid Transit (SMART) was just playing dumb. The neighbor was hostile about the whole thing.

While all of this is happening the Sonoma County Agricultural Commissioner’s office was in full pause. No reports from them as to the results of the samples they had taken in June. In fact White Shirt told me I was causing him stress and not to not call him again and when his report was issued he would notify me. That was pretty specific. I did not call him again on anything related to this incident until the report was issued in October of 2016. That is 15 months after I reported the damage. When I went in to pick up the report I was charged $0.35 per page for the report.

I took all of the defendants to Small Claims court in October of 2016. I had the positive herbicide level reports from the laboratory. I had positive statements from the University, private consultants, readouts from weather stations showing high winds on the day of sprayings, and a gallery of pictures. I knew the drill since I had been a certified expert witness in previous court actions.

The day before the court date I get a call from Congressman Guod. Could we negotiate a settlement? I never say no to a settlement offer. Also the insurance company for Crutch-Face assured me a check was in the mail. Ever hear that before?

The day of the trial arrived. Guod invited me to his lush office in the morning to pick up a negotiated check from his railroad company. Later that day at 1 pm I appeared at court with my three inch file. Old Crutch-Face was in the hall with his wife.

Also in the hall was the appointed mediator. She was young and eager to settle this matter. Courts now wish to take one last stand for settlement before a trial starts. Old Crutch-Face had a photocopy of a check made out to me from his insurance company dated a few days prior. He assured me it was in the mail. This check was for the amount I negotiated for with the insurance adjuster. The total of the two checks was far less than I had spent testing the vines and grapes. In addition I had picked and disposed of around a ton of Pinot Noir grapes picked from the first three vines on thirty rows closest to the railroad. The mediator scribbled out something to the effect that we had settled. She had both of us sign the paper and quickly disappeared into the judge’s chambers.

In Sonoma County as in many counties Small Claims Court actions are heard by lawyers sitting as pro tem judges. The plaintiff or defendant always has the choice to turn down a pro tem judge. These judges are mostly lawyers who have some aspirations for being elected to a cushiony job as judge. Cases are posted outside of the courtroom the afternoon before the case is heard. The name of the judge is also listed. This gives both parties time to look up the personal information of the person who will hear the case. I always go to the courtroom the day before and get the name of what some people refer to as a “rent a judge.” In my case I had sat in court with this judge. He was middle of the road, not leaning for either side. He would do fine for me. Cases that have reached agreement in the hallway are heard first in the court.

The bailiff opened the doors and all of the participants went into the courtroom. Old Crutch-Face, his wife and I went in. Our case was one of the first to be called. The judge immediately questioned Crutch-Face and assured him that the check needed to be immediately delivered to me. No screwing around or he would amend the ruling on the case. Crutch-Face was let off with no judgment recorded against him. All of the other defendants were dismissed without prejudice. I could re-file against them if and when the Agriculture Commissioner ever released their Pesticide Episode Investigation Report (form pr-enf-127). Twelve months had elapsed since my first phone call to the Agricultural Commissioner’s Office; fifteen months since the herbicide was illegally applied.

I rushed to the bank to deposit the one check from Guod. And I sat by the mailbox for several days before the insurance check finally arrived.

Old Crutch-Face’s wife accused me of being nasty. What was nasty was that they could have notified their insurance company following the very first phone call to them and settled this claim months before.

(To be continued…)

* * *

Healdsburg Grape Grower Raises Alarm Over Northwestern Pacific Railroad's Herbicide Spraying.

By Derek Moore, The Santa Rosa Press Democrat, August 27, 2015

A little more than 1,200 pounds, or a half-ton, of plump and juicy pinot noir grapes that Dempel harvested from the vines this week were stacked nearby in trays, the fruit wasting in the summer sun. Dempel, 79, said he is planning to torch the fruit.

The longtime North Coast grower alleges his crop loss was due to spraying for weed control along the adjacent railroad tracks running south of Bailhache Avenue, near the intersection with Healdsburg Avenue. The tracks in that area are maintained by the Northwestern Pacific Railroad, the freight operator that in 2011 resumed service along the line, although farther to the south.

The office of the Sonoma County Agricultural Commissioner is investigating a complaint Dempel filed with the county about the spraying. "This has consumed my life," the grape grower said.

The case could have far-reaching implications for railroad operators and for farmers and ranchers who have property along the tracks. Rail activities, including weed abatement, could come under greater scrutiny depending on the outcome of the investigation.

"Absolutely it's a concern going forward," said Tony Linegar, the county's agricultural commissioner. "Obviously, if the evidence shows the rail line is responsible, we're going to have to review the materials they used and the method they used to make sure this doesn't happen again."

The contractor who applied the herbicide on March 24 did so under contract with the Northwestern Pacific Railroad.

"From my point of view, it's a bad situation," said John Williams, Northwestern Pacific's president. "We still don't know what really happened."

Dempel said three other growers near the Bailhache Avenue vineyard suffered damage from the suspected herbicide contamination. Dempel would not identify them.

Linegar confirmed that the county's investigation has grown to include several grape growers, but county officials declined to name the growers, citing a desire to maintain confidentiality for parties contacting the Ag Commissioner's Office.

Dempel agreed to speak publicly about the case this week only after he finished harvesting about 20 tons of grapes from his vineyard and delivered the fruit to Bogle Vineyards.

Dempel said lab tests he commissioned showed the grapes to be free of unwanted chemical residues. But he fears lingering fallout, including potential economic losses, once people discover that one of his vineyards may have been hit by a chemical spray.

He said he and his wife, Shirley, "worked our lifetimes to develop a brand, and in one fell swoop, we are having to defend ourselves, at great cost."

Showing off his vineyard, Dempel this week walked along the railroad tracks to reach his property, where he stopped to show grape leaves that appeared to be cupped and curled.

Documents Dempel obtained from the Ag Commissioner's Office show that Paul Washburn with Davis-based AgriChem Services, Inc. sprayed a combination of herbicides in the area of the vineyard March 24. The chemicals included glyphosate, commonly known as Roundup, and clopyralid, also known as Stinger.

A handwritten notation on the work order stated, "Do not drift onto grapes."

Reached by phone Thursday, Washburn confirmed the March 24 spraying. But he would not say what method was used to apply the chemicals.

"It was all legal and proper," he said.

Asked whether any spray hit vines, Washburn said, "I don't believe it did."

He disputed that Dempel's vines were damaged.

Williams, with Northwestern Pacific, said the rail agency sprays for weeds twice a year along the 271 miles of tracks between Schellville and Eureka. Only a 62-mile section of rail, from Windsor to Schellville, is currently in operation with twice-weekly freight service.

Williams said federal law requires the tracks to be maintained for safety reasons.

He said he wanted the weeds removed on the tracks running near Dempel's vineyards because the rail agency is weighing extending freight service to Healdsburg.

"I wanted to get the weeds down and see how much work needed to be done to rehabilitate the tracks," Williams said.

Since resuming freight operation four years ago, the railroad has never taken a complaint about spraying for weed control causing damage, Williams said.

"If it happened, and we have proof it did, we would try to resolve the issue with the property owner," Williams said. "We don't have any proof damage occurred."

Former Congressman Doug Bosco, an investor in Sonoma Media Investments, which owns The Press Democrat, is a co-founder and owner of Northwestern Pacific. The tracks where the alleged spraying incident occurred are owned by the Sonoma-Marin Area Rail Transit authority.

SMART is scheduled to begin passenger service late next year. The agency has yet to assume responsibility for maintaining tracks north of Airport Boulevard on Santa Rosa's northern outskirts. Elsewhere, SMART abides by all local, state and federal regulations when it comes to weed abatement, a spokesman said.

Dempel, who also owns vineyards in Mendocino County, said tests of plant materials from his Healdsburg vineyard confirm that the source of the contamination was the herbicide sprayed on the adjacent tracks. He said he paid to have the analysis done by an Oregon lab, which found both glyphosate and clopyralid on the plant material.

"It was full of it," Dempel said.

The chemical residue was found on grapes and other plant material taken from the first vines closest to the tracks. But Dempel removed grapes on three vines along 30 rows and set them aside to be destroyed.

"We wanted to make sure we had no contaminants going into that load for sale," he said.

Dempel said he alerted Bogle about the apparent contamination and about tests showing grapes he delivered to the winery being free of herbicides.

After filing his complaint with the county, Dempel received a letter from the Ag Commissioner's Office warning him that he could be subjected to criminal prosecution or face civil penalties for selling produce that carries excessive pesticide residue, which also covers herbicides.

That put Dempel in the odd position of having to defend himself in a situation in which he feels he is the victim of someone else's actions. It's also a blow for a man who expresses pride that his vineyards are certified by Protected Harvest, a nonprofit that sets environmental standards for sustainable agricultural practices.

Dempel said he uses glyphosate in his vineyards in December for weed control. But he said that could not be the source of damage to his vines.

Linegar, the agricultural commissioner, said investigators are considering all possible sources of damage to the vines, including plant diseases or agricultural spraying. That's while waiting for results of lab tests that could determine the outcome of the case.

Linegar said if the results of tests being conducted at a state lab confirm a match between the chemicals used for the March 24 spraying and residue found on plant materials at the vineyards in question, that would "absolutely be compelling evidence that would give us enough to take action."

He said the civil penalties for herbicides hitting unintended targets and causing damage can be as high as $5,000 per violation. Such cases typically result in lawsuits.

Dempel said money is not the issue, however. He estimated the value of the fruit he lost to be about $1,500, and that he has spent about $5,000 so far to investigate the crop damage.

"I don't know how they could pay for the amount of hours my wife and I have spent on this," he said.