June 23, 2017
CapitalPress.com
9
Oregon
Lawmakers resolve sick pay confusion
Farmers can pay
minimum wage to
piece-rate workers
who are ill
By MATEUSZ PERKOWSKI
Capital Press
SALEM — Farmers can
pay the minimum wage to
piece-rate employees who
miss work due to illness un-
der a bill Oregon lawmakers
passed last week.
Senate Bill 299, approved
by the House 38-21 after ear-
lier passing the Senate unani-
mously, resolves some of the
confusion that’s dogged Ore-
gon’s paid sick time law since
2015.
As interpreted by the state
Bureau of Labor and Indus-
tries, the statute required grow-
ers to calculate a “regular rate
of pay” to compensate piece-
Eric Mortenson/Capital Press File
A picker displays a handful of strawberries near Cornelius, Ore. State
lawmakers have clarified that farmers must pay the state minimum
wage to piece-rate employees who miss work because of illness.
rate workers for sick time.
The problem is workers
are often paid varying rates
per pound for different crops,
which means their hourly
wage changes over time.
This fluctuation created a
conundrum for farmers, who
were uncertain when the “reg-
ular rate of pay” was estab-
lished.
Should a worker be paid
based on the previous week’s
earnings, during the harvest of
a higher-value crop?
Or is the “regular rate of
pay” based on average rates
earned by other workers when
the sick employee was miss-
ing, when a lower-value crop
was picked?
Although BOLI recom-
mended basing sick time
wages on the previous week’s
earnings, farmers could still
face lawsuits from workers
who disagreed with that inter-
pretation.
SB 299 clarifies that sick
piece-rate employees can be
paid the minimum wage un-
less they have a predetermined
hourly, weekly or monthly
wage.
Provisions in the bill also
help distinguish between
farms that must pay workers
for sick time and those that
can provide it without pay.
Throughout much of the
state, 40 hours of sick time
must be paid by employers
with 10 workers or more, while
those with a smaller workforce
must still provide those 40
hours but without compensa-
tion. In Portland, that thresh-
old is six employees.
Business owners and their
family members weren’t sup-
posed to contribute to this
employee count, but BOLI de-
termined that they still count
as workers if they fill out a
federal “W-2” form for tax
purposes.
The newly passed bill
exempts business owners —
those who have at least 15
percent ownership in a com-
pany — and their spouses and
children from the employee
count.
The provision is important
to multi-generational farms
that have family members
working on them, said Jenny
Dresler, state public policy
director for the Oregon Farm
Bureau, which supports SB
299.
“They don’t necessarily
consider themselves employ-
ees, but rather managers of
the farm,” said Dresler.
Setting the ownership
threshold at 15 percent was
necessary to overcome objec-
tions from the bill’s critics,
who feared that companies
would list employees as own-
ers to circumvent the sick pay
requirement, she said.
“That was probably one of
the most contentious pieces,”
Dresler said.
Uncertainty over growers
who participate in seasonal
farmers’ markets in Portland
is also relieved by SB 299.
The worry was that farm-
ers who normally operate
outside Portland but regularly
sell produce within its borders
would become subject to the
city’s lower six-employee
sick time threshold.
The bill makes clear that
such temporary locations
don’t count as Portland busi-
nesses.
Landowner challenges Oregon Strawberry cultivars
county’s aerial spray prohibition take center stage
By ERIC MORTENSON
Capital Press
Ordinance would
allow ‘direct action’
to enforce aerial
spray ban
By MATEUSZ PERKOWSKI
Capital Press
A forestland owner is chal-
lenging a prohibition against
aerial pesticide spraying in
Oregon’s Lincoln County that
was recently approved by vot-
ers.
Rex Capri has filed a com-
plaint against the county seek-
ing to overturn the ordinance
because it’s pre-empted by
state laws and violates the Or-
egon Constitution.
Lincoln County will re-
spond to the lawsuit but it’s
still reviewing whether to ac-
tively defend the ban, said Bill
Hall, a county commissioner.
However, the county does
agree with Capri that an in-
junction should be issued
against a provision in the or-
dinance allowing “direct ac-
tion” against aerial spraying,
Hall said.
The ballot initiative, nar-
rowly approved with 50.2 per-
cent of the vote during a May
16 special election, allows
citizens to enforce the law
through “direct action” if the
county government or court
fail to uphold the ordinance.
The provision would free
“direct action” enforcers from
facing criminal or civil liabili-
Associated Press File
A helicopter prepares to apply pesticides. A lawsuit is challenging a ban on aerial pesticide spraying in
Oregon’s Lincoln County.
ty for their activities.
Due to the possibility that
“direct action” may result in
property damage or physi-
cal violence, the county be-
lieves the provision should be
blocked, Hall said.
Lincoln County Circuit
Judge Sheryl Bachart has
agreed to enjoin the “direct
action” provision at the par-
ties’ request.
Proponents of the ordi-
nance claim the concerns over
“direct action” vigilantism are
overblown.
The provision would only
become effective once it be-
comes clear the county gov-
ernment and courts won’t
enforce the ordinance, which
would not take place imme-
diately, said Kai Huschke,
Northwest organizer for the
Community Environmental
Legal Defense Fund, which
helped draft the measure.
It’s unlikely the extreme
scenarios envisioned by the
initiative’s opponents would
ever transpire, he said. “You
can create fear out of anything
if you want.”
Lincoln County’s com-
missioners opposed the ballot
initiative so it would be unsur-
prising if they decided against
defending the ordinance, Hus-
chke said.
The CELDF has proposed
representing local ordinance
supporters as intervenors in
the case without charge, but
proponents have yet to accept
that offer, he said.
Although Oregon law pre-
empts local restrictions on
pesticide usage, Huschke said
it undermines constitutional
protections for citizens.
“The courts have gotten it
wrong,” he said.
While it’s clear ordinances
such as Lincoln County’s are
pre-empted, a court challenge
is still necessary — partic-
ularly in light of the “direct
action” provision that could
lead to vandalism, said Scott
Dahlman, policy director of
the Oregonians for Food and
Shelter agribusiness group.
“That’s very risky for an
applicator,” Dahlman said.
Opponents of the ballot
initiative argued that existing
regulations disallow pesticide
drift and impose other restric-
tions on aerial spraying, while
the ordinance would effec-
tively let people take the law
into their own hands.
Zumwalt Prairie ranch sells development rights to nonprofit
By KATY NESBITT
For the Capital Press
Katy Nesbitt/For the Capital Press
Jeff Fields and Derek Johnson of The Nature Conservancy visit
with Dan and Suzy Probert on their Lightning Creek Ranch. The
nonprofit organization and the Proberts entered into a conservation
easement this spring on the entire 12,000-acre ranch.
it bought 33,000 acres, now
known at the Zumwalt Prairie
Preserve — a multi-use land
leased for cattle grazing, hunt-
ing and hiking as well as re-
search. When the 38,000-acre
Buckhorn Ranch on the prairie
came up for sale, the organiza-
tion looked into buying it, too.
“They were interested in the
prairie because it’s so well tak-
en care of,” Probert said.
Eventually the Buckhorn
Ranch was sold off in several
large chunks and the Prob-
erts bought approximately
one-third in 2014. Knowing
it would take a few years to
complete the easement, Probert
said they secured a bridge loan
in order to purchase the ranch
while they worked out the de-
tails of the agreement.
“That’s where I think Dan
was really savvy,” Jeff Fields,
Nature Conservancy’s Zum-
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ENTERPRISE, Ore. —
The owners of a 12,000-acre
ranch on northeastern Ore-
gon’s prime bunch grass prai-
rie signed an agreement this
spring relinquishing specific
development rights into perpe-
tuity while retaining the ability
to raise livestock.
The Probert family, with
Dan and Suzy Probert as
managers of Lightning Creek
Ranch, gave up their rights
to wind, mineral and housing
development as well as tilled
agriculture across their entire
Zumwalt Prairie ranch in ex-
change for $2.6 million, mak-
ing it the largest conservation
easement completed by The
Nature Conservancy in Ore-
gon.
Dan Probert, whose family
moved to Wallowa County in
1967, said he was running his
Malheur County ranch when, at
the urging of friends, he looked
into buying Zumwalt Prairie
ranch land. The price was high,
so Probert said he started con-
versations with Nature Conser-
vancy staff about entering into
a conservation easement.
“We couldn’t have swung
the land purchase without it,”
Probert said.
The Nature Conservancy
has long had a vested inter-
est in the prairie. In the 2000s
walt Prairie Preserve manager,
said. “The property rights that
he didn’t want could be turned
into a cash payment allowing
him to buy the ranch and man-
age it for agriculture.”
The USDA Natural Re-
source Conservation Service
contributed half the price of
the easement. Other contribu-
tors were Climate Trust, Doris
Duke Charitable Trust, The Na-
ture Conservancy and the Prob-
erts donated back a portion of
the appraised value.
Because the land was al-
ready in farm deferral, Prob-
ert said, the tax revenue to the
county remained the same.
While the Lightning Creek
Ranch gave up a list of rights,
it retained flexibility within its
management plan designed
with neighboring ranchers
and The Nature Conservancy.
It will be reviewed annually,
Probert said, with a major look
every five years.
AURORA, ORE. — No
one will ever mistake Ore-
gon’s minuscule strawberry
production for California’s
$1.8 billion crop, but for a
couple weeks in early sum-
mer the state’s berries take
center stage to bask in the lore
of their supreme flavor.
Hoods, anyone? Case
closed, strawberry pur-
ists would argue. No hard,
white-centered,
flavorless
pretenders from out of state
allowed.
At a strawberry field day
earlier this month, growers
got a glimpse of some new
cultivars that could provide
options in what USDA’s Na-
tional Agricultural Statistics
Service estimates is a $9 mil-
lion annual agricultural niche
in Oregon.
Chad Finn, a USDA berry
breeder who works closely
with Oregon State Universi-
ty in Corvallis, said Charm
and Sweet Sunrise are early,
high-quality,
June-bearing
berries that will be good for
processing.
Charm is sweet enough
that it could be used in ice
cream like Hoods, which
have been around since 1965.
“It’s got that kind of quality,”
Finn said.
It has a tender skin and
Finn said he’s always de-
scribed it as a processing
berry, but at farmers’ markets
in Corvallis it’s been one of
the predominant varieties
brought in for sale, he said.
Charm also is a tough,
vigorous plant and produc-
es a thick canopy, Finn said.
There was concern the cano-
py was so thick that pickers
wouldn’t be able to get at ber-
ries efficiently, but anecdotal
feedback from picking crew
bosses indicate it hasn’t been
a problem, he said.
Because of its vigorous
nature and reliably high yield,
Finn said Charm might be
suited for organic production.
“If I was an organic guy I
would start experimenting,”
he said.
Sweet Sunrise, mean-
while, is a full flavor berry,
one of the best, Finn said.
It’s a bit tart, but a little sug-
ar allows the flavor to come
through, he said. It’s a more
open plant than Charm, mak-
ing it easy to pick.
Both cultivars appear to be
ones that will hold up longer
in the field, providing three
years of harvest compared
to two years or even one for
Tillamook, Totem or Hood
strawberries, Finn said.
Another relatively new
cultivar, Mary’s Peak, also
is a June-bearing berry, with
a big canopy and large fruit,
he said.
Bringing new strawber-
ry cultivars to commercial
production is a slow motion
process. Sweet Sunrise was
selected in 2000 and Charm
in 2001 from crosses made
two years earlier in each case.
Years of trials and testing are
necessary, then the plants
have to be reproduced in large
numbers by commercial nurs-
eries, which can slow down
the process, Finn said. U.S.
plant patent applications are
pending on both.
Beyond size, flavor and
plant vigor, another key fac-
tor in strawberry production
is the availability of labor. If
berries ripen too early in the
season, professional picking
crews may not be on hand
to harvest them, Finn said. If
they are too late, crews may
have moved on to blueberries,
which are easier to pick.
Of Oregon’s strawberry
production, roughly one-third
goes into ice cream, one-third
is sold fresh market, and per-
haps one-third is flash frozen
and bagged for store sale,
Finn estimated.
25-2/#6