Friday, May 14, 2021
CapitalPress.com 3
Judge refuses to restrict water releases from Upper Klamath Lake
By MATEUSZ PERKOWSKI
Capital Press
A federal judge has
denied a temporary restrain-
ing order sought by the
Klamath Tribes that would
restrict water releases from
Upper Klamath Lake to ben-
efit threatened sucker fish.
The tribes claim the
U.S. Bureau of Reclama-
tion is prioritizing flows in
the Klamath River to bene-
fit threatened coho salmon
at the expense of Lost
River and shortnose suck-
ers, which suffer from lower
lake levels.
U.S. District Judge
Michael McShane has now
refused to interfere in the
agency’s plan to regulate
water in the Klamath Basin,
ruling that the tribes are
unlikely to prove the federal
government is violating the
Endangered Species Act.
“Here, the Defendant
Bureau, in coordination
with expert agencies and all
competing interests, is better
equipped to serve the public
interest than a judge with a
law degree,” McShane said
in the May 6 ruling.
While the agency’s
actions may harm threat-
ened suckers, it’s taking the
“appropriate steps” under
ESA to deal with this year’s
severe drought, which will
cause “devastation” to eco-
systems and communities
from Upper Klamath Lake
to the Pacific Ocean, he said.
The lake has already
fallen below the optimum
level for sucker spawning
and it’s unlikely to meet
other conditions in a “bio-
logical opinion” that guides
operations for the Klamath
irrigation project, McShane
Associated Press File
A debate over water levels in Oregon’s Upper Klamath
Lake has sparked a legal dispute among tribes, irriga-
tors and the federal government.
said.
However, the Bureau
expects to keep the eleva-
tion high enough for the fish
to migrate through a shal-
low area and into a bay with
higher-quality water during
the summer, he said.
Though the “terms and
conditions” of the biological
opinion are unlikely to be
met this year, the agency has
coordinated with the U.S.
Fish and Wildlife Service
and National Marine Fish-
eries Service to adapt to the
drought, McShane said.
“To the extent that the
Bureau was required to
engage in informal consul-
tation with USFWS, they
have satisfied this burden
by maintaining regular com-
munication with the Ser-
vice as they determined the
causes for the low elevation
of Upper Klamath Lake and
developed temporary oper-
ating procedures to address
the situation,” the judge
said.
The government has
taken “proactive steps” to
keep the lake’s elevation as
high as possible, such as sus-
pending irrigation deliveries
and diversions, McShane
said. “The Bureau cannot
control the current hydro-
logic conditions; they can
only work within these nat-
ural limitations.”
To obtain a temporary
restraining order, the Klam-
ath Tribes would have to
show they’re likely to prevail
in the litigation but McShane
said they hadn’t met this
“threshold.”
The Klamath Irriga-
tion District, which has
intervened in the lawsuit,
acknowledged that it would
also prefer for the lake lev-
el’s to be kept higher to avoid
infringing on its water rights.
However, the district has
argued the agency can’t sim-
ply take away water that’s
contracted to irrigators and
must instead acquire their
water rights.
The Klamath Water Users
Association, which has also
intervened, opposed an
injunction that would pro-
hibit the lake from falling
below a certain level if that
meant curtailing water avail-
able to irrigators.
Grass seed dealer agrees to $300K
settlement in mislabeling case
By GEORGE PLAVEN
Capital Press
Capital Press File
Farmworker housing in Mattawa, Wash.
Washington issues new rules
for housing farmworkers
By DON JENKINS
Capital Press
Washington agencies Fri-
day issued new emergency
COVID rules for housing
farmworkers, relaxing some
restrictions for fully vacci-
nated workers.
The rules retain a
15-worker limit on shel-
ters with bunk beds. How-
ever, fully vaccinated work-
ers in one group will be
able to share kitchens and
restrooms with workers
from other fully vaccinated
groups.
“It’s a big step forward,”
Wafla CEO Dan Fazio said.
Wafla, a supplier of for-
eign workers on H-2A visas,
and the Washington Farm
Bureau sued the Department
of Labor and Industries and
Department of Health over
the emergency rules.
Wafla and the Farm
Bureau claimed the rules
were unreasonable. They
have been in place for a year
and were extended Friday
because emergency rules
must be renewed every 120
days.
The old rules expired
Saturday and the new rules
took effect Sunday.
L&I and the Health
Department
incorporated
several changes sought by
Wafla and the Farm Bureau,
though stuck with the
15-worker limit on shelters
with bunk beds. In larger
units, workers can’t use the
top bunk.
Even if all workers are
vaccinated, they must wear
masks and stay 6 feet apart
if they mix with workers
from another fully vacci-
nated group.
Workers with COVID
must be isolated and
checked by a health care
professional every day, even
if by phone. Previously,
the rules required twice-
daily house calls by a health
professional.
The new rules eliminate
the requirement that workers
with COVID be kept within
20 minutes of life-saving
emergency medical treat-
ment and within one hour of
a hospital with ventilators.
The new rules also clarify
that farms must allow legal
aid and union representa-
tives to visit group shelters.
Previously, the rules autho-
rized the entry of “commu-
nity-based outreach work-
ers” but didn’t define the
term.
Fazio said the new rules
concede the points Wafla
and Farm Bureau raised in
the lawsuit, which is still
pending in Thurston County.
The farm groups will review
whether to pursue the suit,
he said.
“We’re going to take a
long, hard look to see if the
rules adequately address
our concerns about keeping
farmworkers safe and farm-
ers in business,” he said.
Fazio said the agencies
should indicate how farms
can get back to normal if
all workers are vaccinated,
rather than just extending
the emergency rules.
“We can’t have a regu-
lation every 120 days for
the rest of our lives,” he
said. “We need to know
what it will take to return
to normal.”
The Health Depart-
ment in court documents
maintains
farmwork-
ers in company housing
are particularly vulner-
able to COVID, though
Health Department testing
last year found workers at
Gebbers Farms in Okano-
gan County were far less
likely to get COVID if they
lived in company housing,
rather than in the commu-
nity. Gebbers faces a $2
million fine for not config-
uring its group shelters to
match state rules.
“They have to stop blam-
ing the people who are doing
things right,” Fazio said.
SALEM — A Willa-
mette Valley grass seed
dealer accused of misla-
beling more than 8 million
pounds of seed has reached
a settlement with state
agriculture officials.
Dynamic Seed Source
LLC and owner Trevor
Abbott have agreed to pay
$300,000 in fines to the Ore-
gon Department of Agricul-
ture as part of the deal. The
company will also have its
wholesale seed dealer’s
license suspended for one
year, effective June 30.
ODA initially alleged
Dynamic Seed Source and
Abbott in 2019 had misla-
beled 124 seed lots as Ken-
tucky 31, or K-31, a pop-
ular variety of tall fescue
used for livestock forage,
manicured lawns, erosion
control and turf.
Investigators later deter-
mined the company mis-
labeled 161 seed lots as
K-31, totaling 207 infrac-
tions. Each lot equals up to
55,000 pounds of seed.
False labeling is a vio-
lation of both the Federal
Seed Act and Oregon seed
laws, regulating the sale
and commerce of agricul-
tural seed crops.
“It’s all about consumer
protection,” said Elizabeth
Savory, Seed Regulatory
Program manager at ODA.
“You want to make sure
what’s on the label, that’s
the seed they’re getting.”
Savory made the com-
parison to someone buying
a bag of M&Ms, only to
open the bag and find out
there were Skittles inside
— they’re both round
candy, she said, but not the
same thing and not what
the person thought he was
buying.
K-31 is sought after for
its heat and drought toler-
ance, low maintenance and
durability, fetching a pre-
mium price for growers.
About half of all K-31
grass seed comes from
Missouri, Savory said, and
the other half is grown in
Oregon. In 2017, Missouri
experienced a record-low
harvest caused by several
years of difficult weather.
The shortage led to a spike
in demand and prices.
ODA began an indus-
try-wide investigation in
2018 at the request of the
Oregon Seed Association
to root out bad actors mis-
representing K-31 seed,
based on anomalies in the
market.
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