April 27, 2018
CapitalPress.com
3
Ranchers, government defeat
15-year-old anti-grazing lawsuit
Judge dismisses
environmental
complaint filed 15
years ago
By MATEUSZ PERKOWSKI
Capital Press
Ranchers and the federal
government have defeated a
15-year-old environmentalist
lawsuit that claimed grazing
imperils threatened bull trout
in Oregon’s Malheur National
Forest.
U.S. District Judge Mi-
chael Mosman has dismissed
the complaint, which was
originally filed by the Oregon
Natural Desert Association
and the Center for Biological
Diversity in early 2003.
The environmental plain-
tiffs sought to prohibit live-
stock grazing on “units of
concern” in seven allotments
along the Malheur and North
Fork rivers, arguing the wa-
terways contain only 100
bull trout despite having the
capacity for 4,000 of the pro-
tected fish.
Last year, however, U.S.
Magistrate Judge Paul Papak
dealt the case a blow when
he found that grazing autho-
rizations hadn’t likely caused
the decline in bull trout pop-
ulations, which have suffered
from the introduction of
non-native fish, dam-building
and other factors.
Mosman has now agreed
with the recommendation to
throw out the lawsuit because
the plaintiffs haven’t estab-
U.S. Fish and Wildlife Service
A judge has dismissed a 15-year-old lawsuit over bull trout brought
by environmentalists.
lished the U.S. Forest Service
violated the National Forest
Management Act and Wild
and Scenic Rivers Act by ap-
proving grazing plans.
Jeff Hussey, a rancher af-
fected by the lawsuit, said
he’s excited the judge took
the time to look at the science
and “sort through the mum-
bo-jumbo.”
The ruling recognizes that
ranchers in the area want to
graze livestock in an ecolog-
ically and economically sus-
tainable way, he said.
“We’re not trying to take
advantage of the system,”
Hussey said. “We just want
to run our cows and run them
right.”
Elizabeth Howard, attor-
ney for the ranchers, said the
ruling validates the Forest
Service’s methods for imple-
menting grazing and monitor-
ing its effects.
It also shows that plaintiffs
overestimated the amount of
paperwork that’s necessary
for the agency to comply with
conservation plans for fish,
she said.
While the ruling is a vic-
tory, two ranches preferred
to sell their grazing permits
rather than continue with the
lengthy litigation, Hussey
said.
“That’s how hard it’s been
on some of these guys. They
just gave up,” he said.
Mac Lacy, attorney for
ONDA, said the group is still
reviewing the decision but is
disappointed the “court failed
to explain why it was reason-
able for the Forest Service to
collect, but then ignore” data
regarding “riparian manage-
ment objectives” under the
agency’s strategy for preserv-
ing inland fish.
Ranchers who rely on the
grazing allotments, which
span tens of thousands of
acres, intervened in the case
to defend the government’s
grazing authorizations.
A major point of contention
in the case was whether the
Forest Service was properly
monitoring stream conditions
to ensure grazing doesn’t de-
grade the bull trout’s habitat.
Lacy had argued the agen-
cy was relying on “proxy”
data — such as grass stubble
height and alteration to stream
banks — that didn’t reflect
worsening conditions in the
waterways.
“These failures, to the ex-
tent they’re showing up in the
record, are getting worse over
time,” Lacy said during oral
arguments last year.
Egg nests laid by bull trout
are trampled by cattle, which
also raise water temperatures
to unhealthful levels by wid-
ening streams and denud-
ing vegetation, the plaintiffs
claimed.
Stephen Odell, attorney for
the Forest Service, countered
that the environmental plain-
tiffs were “cherry-picking”
data from problematic “hot
spots” that don’t represent
broader conditions.
Forest Service scientists
have determined streambank
alteration and stubble height
are useful measures of prog-
ress that show conditions are
improving, he said.
“The record does not show
ongoing negative effects from
grazing,” Odell said during
last year’s oral arguments.
Over the objections of the
environmental groups, both
judges overseeing the case
agreed the Forest Service was
permitted to analyze habitat
health on the “watershed or
landscape scale, rather than
stream by stream.”
Fruit growers eye frost, pollination
By DAN WHEAT
Capital Press
WENATCHEE, Wash. —
It’s that time of year when tree
fruit growers throughout the
Northwest and in Michigan
and New York are anxious to
clear the rest of frost season
without damage.
Washington — the over-
whelming national leader in
apple, pear and cherry produc-
tion — will finish frost season
about mid-May. Fruit trees
are still dormant in New York
and Michigan where April has
been the coldest in recent re-
cord. Frost season will go the
whole month of May.
Bloom was late last year in
Washington. This year it’s vir-
tually right on the 90-year av-
erage of April 27 for full bloom
of Red Delicious apple trees at
the Washington State Universi-
ty Tree Fruit Research and Ex-
tension Center in Wenatchee.
Apricots have finished
blooming. Cherries are done
in the southern part of the state
and just past full bloom from
Wenatchee northward. Pears
are in full bloom in Wenatchee,
following cherries and ahead of
apples.
“Just because we’re at blos-
som doesn’t mean we’re out
of frost season,” said Harold
Schell, director of field services
at Chelan Fruit Cooperative in
Chelan.
“Fruitlets can be just as
susceptible as blossoms them-
selves. The weather looks fa-
vorable for the next 10 days,
but it’s been unsettled. The jury
is still out,” Shell said.
Jim Holcomb, agricultural
meteorologist at Clearwest Inc.,
Wenatchee, said frost damage
chances diminish with each
passing day. Central Washing-
ton temperatures pushed into
Dan Wheat/Capital Press
Beehives in an East Wenatchee, Wash., pear orchard in full bloom
April 23. Bees help pollinate blossoms, but frost could still damage
crops.
the 70s and 80s this week,
but Holcomb said forecasts
beyond five days are too unre-
liable so he could not say the
frost threat is gone.
There have been no real
cold nights requiring wind
machines or propane heaters
throughout the region, only in
colder pockets, he said.
“Yesterday morning (April
23) was the first time any num-
ber of fans ran in the Upper
Wenatchee Valley, but bud de-
velopment was not far enough
along before that,” Holcomb
said. The morning low was 28
degrees.
The Upper Wenatchee Val-
ley is predominately pears
which, along with apples, aren’t
as susceptible to frost damage
as cherries and stone fruit.
B.J. Thurlby, president of
Northwest Cherry Growers in
Yakima, said there hasn’t been
much freeze damage since a
mid-February freeze resulting
in about a 20 percent loss on
apricot blossoms and less than
5 percent on cherries. The big-
ger question is pollination, he
said.
The southern part of the
state, 10 days ahead of the
north in bloom, battled wet,
cold weather during bloom,
hampering pollination. Bloom
was spread out time wise also
contributing to uneven pollina-
tion.
“Hopefully, we’ll set a crop
but it’s a little early to tell,”
said David Douglas, president
of Douglas Fruit Co., Pasco.
Charles Lyall, a Mattawa
grower, said shuck fall (bloom
to fruitlet separation) was just
starting on his Chelan cherries
and doesn’t look good.
“There’s probably three
to four sizes of fruit out there
and if only the big stuff sets it
won’t be pretty,” he said. “It
will be a light crop on early
varieties.”
Five tons per acre is normal
harvest on early varieties and
depending on price, supply
and demand, it’s hard to make
a profit under 2 tons per acre,
he said.
New York and Michigan,
second and third to Washing-
ton in apple production, ex-
perienced devastating spring
freezes in 2012, wiping out
about 50 percent of New
York’s apple crop and 95 per-
cent of Michigan’s. Washing-
ton had a large crop that year
and made good money.
“We’ve had the coldest
April on record so our trees
are completely dormant. We
had snow on the ground in
the entire state until April 19,”
said Don Armock, president
of Riveridge Produce, Spar-
ta, Mich. “Our danger period
of frost generally goes into
the first three weeks of May.
I would anticipate we will go
beyond that.”
There’s been no freeze
damage so far, but last year’s
crop was down 70 percent
from freeze, Armock said.
Cynthia Haskins, president
of New York Apple and Cher-
ry Growers, Fishers, N.Y., said
there have been no reports of
frost or freeze damage in the
state.
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Washington L&I cited
‘publicity’ in fining
farm record amount
By DON JENKINS
Capital Press
Uproar over a worker’s
death figured in the Wash-
ington Department of Labor
and Industries’ decision to
levy a record fine against a
Whatcom County blueberry
farm for unrelated violations
of employment standards, ac-
cording to department records
obtained by the Capital Press.
An L&I investigation
found Sarbanand Farms
blameless in Honesto Silva
Ibarra’s death in August, but
in a separate probe penalized
the farm $149,800 for late
meals and missed rest breaks
in July.
A department manager
had approved fining the farm
$4,617, according to the re-
cords, but the penalty was re-
vised upward by the assistant
director of L&I’s Fraud Pre-
vention and Labor Standards,
Elizabeth Smith.
In justifying the fine, a de-
partment memo cited the large
number of workers affected
and the regularity of missed
breaks and late meals. “In
addition, this is a high-profile
case with much publicity,” the
memo stated.
L&I spokesman Tim
Church agreed Friday that
Ibarra’s death and the sub-
sequent firing of concerned
workers who went on strike
made the case high-profile.
But he disagreed that public-
ity was a factor in calculating
the fine for violations that oc-
curred before Ibarra fell ill.
“I don’t think we would
say it played a factor. We
would say it was part of
the discussion of the larger
event,” Church said. “We
knew we would have to jus-
tify what we were doing in a
public way.”
California brothers David
and Kable Munger, who call
their company the largest pro-
ducer of fresh blueberries in
North American, own Sarba-
nand, a farm in Sumas near
the U.S.-Canada border.
L&I launched a high-pro-
file safety investigation Aug.
9, three days after Ibarra, 28,
died at a Seattle hospital. He
had been taken by ambulance
from the farm Aug. 2. Before
Ibarra died, about 70 workers
staged a one-day strike and
were fired by Sarbanand.
Social justice activists ac-
cused farm managers of being
indifferent to Ibarra’s health
and callously firing other
Mexican nationals who were
worried about Ibarra.
The King County medical
examiner said Ibarra died of
natural causes, and L&I ruled
the death was not workplace
related. L&I also cleared Sar-
banand of allegations that pes-
ticides sickened workers.
The newly available docu-
ments, released in response to
a records request by the Capi-
tal Press, pertain to an investi-
gation into employment prac-
tices. L&I started the probe
at the same time as the safety
and pesticide investigations.
The agency concluded
workers were served meals
late or missed rest breaks 13
times on nine different days
over two weeks in July. L&I
had broad discretion in calcu-
lating Sarbanand’s fine. The
options presented in agency
records ranged from as little
as $513 to more than $2.95
million.
L&I investigators reported
that farm managers “open-
ly shared information” and
“made immediate corrections
to avoid future” violations.
The farm also had no previous
violations to count against it.
The agency’s employment
standards manager, David
Johnson, created a note in Oc-
tober approving a $513 fine
for each of the nine days for
a total penalty of $4,617, ac-
cording to agency records.
Records also indicate
the department considered a
$61,500 penalty. In the end,
the department settled on
what it announced in a press
release was the largest fine it
had ever levied for those types
of violations.
L&I arrived at the penalty
by picking the day on which
the most workers — 583 —
were affected. The number
was reduced in half and multi-
plied by $513.
“We chose the middle
path,” Church said.
Efforts to obtain comment
from Sarbanand were unsuc-
cessful.
L&I’s records on the em-
ployment standards investi-
gation include copies of news
accounts about Ibarra’s death,
the strike and a class-action
lawsuit filed by Columbia
Legal Services and a Seattle
law firm. None of the stories
focused on rest breaks or late
meals.
The lawsuit, pending in
U.S. District Court in Seattle,
alleges workers were under-
fed, overworked and illegally
fired.
L&I’s files include numer-
ous complaints from workers
about the quality and quantity
of food, and long lines that
gave them little time to eat.
Many workers also said they
were disgusted by filthy re-
strooms.
L&I has filed the citation
in Whatcom County District
Court.
Weekly fieldwork report
Item/description (Source: USDA, NASS; NOAA)
• Days suitable for fieldwork (As of April 24)
5.8
• Topsoil moisture, surplus
7%
• Topsoil moisture, percent short
26%
• Subsoil moisture, surplus
7%
• Subsoil moisture, percent short
45%
• Precipitation probability
40% below/
(6-10 day outlook as of April. 24)
33% above
ROP-13-40-3/102
Community to Community Development
Striking farmworkers show their visas after being fired in August
by Sarbanand Farms in Whatcom County, Wash. The strike
received widespread publicity, influencing the record penalty the
farm later received for unrelated employment violations, accord-
ing to Washington Department of Labor and Industries records.
Wash.
Idaho
Calif.
5.4
11%
8%
7%
7%
5.6
21%
12%
16%
10%
6.8
10%
35%
10%
35%
40% below/
Normal
33-50% above
33% below/
33% above