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CapitalPress.com
Friday, August 12, 2022
Farmworkers may owe attorney fees for ‘groundless’ lawsuit
By MATEUSZ PERKOWSKI
Capital Press
A married couple of
farmworkers
who
pur-
sued “groundless” litigation
against an Oregon hop farm
may have to pay its attorney
fees, according to the state’s
Court of Appeals.
In 2018, a judge rejected
claims that 4B Farms of Mt.
Angel, Ore., had unlawfully
retaliated against the couple
— Jackeline Rondin-Rios and
Nahum Crispin-Zuniga — for
seeking workers’ compensa-
tion benefits.
Though it’s “shocking that
the case went to trial” because
it was supported with “so lit-
tle evidence,” the judge said
state law precluded the farm
from recovering attorney fees.
The Oregon Court of
Appeals has now overturned
that decision, ruling the farm
is entitled to seek attorney
fees based on the determi-
nation the allegations were
“groundless.”
Defending against the law-
suit cost the farm more than
$100,000 in attorney fees,
said Tim Bernasek, the com-
pany’s attorney.
If the farm pursues the
matter, it’s likely to win
“some type of fee award”
based on the judge’s conclu-
sion that the case was “merit-
less,” he said.
“If fees and costs are not
given in a case like this one,
it’s hard to imagine a case
where they were warranted,
so we felt like it was import-
ant to raise the issue with the
Court of Appeals,” Bernasek
said.
The appellate ruling is
“particularly
gratifying”
because it’s often financially
difficult for farm employers
to seek vindication in “vex-
ing” litigation, he said. “It is
so costly to defend yourself
that it’s rare farmers are will-
ing to take a case all the way
to trial, like 4B Farms did.”
Attorneys for the Ore-
gon Law Center, which rep-
resented the plaintiffs at trial,
refused to comment on the
appellate court’s decision or
to provide contact informa-
tion for the farmworkers. The
nonprofit stopped represent-
ing the plaintiffs after the tri-
al’s conclusion.
The plaintiffs did not
hire attorneys or otherwise
respond to the farm’s appeal,
“which is not surprising given
that they are seasonal farm-
workers whose primary lan-
guage is Spanish,” said Steve
Walters, one of their former
attorneys.
“Professional obligations
of confidentiality to our former
clients prevent us from saying
anything further,” he said.
In the complaint, Jackeline
Rondin-Rios claimed she filed
for workers compensation
benefits after falling from a
mechanized cart while string-
ing hops.
She claimed that 4B Farms
intimidated and threatened her
in retaliation her for filing the
claim and for making a work-
place safety complaint, forcing
her to quit and firing her hus-
band, Nahum Crispin-Zuniga.
Marion County Circuit
Judge Mary Mertens James
dismissed the husband from
the case because he “was never
eligible to bring such a claim”
under Oregon law and offered
no “legal authority or evidence
supporting his claim.”
During trial, the judge
issued a rare “directed verdict”
rejecting the wife’s allegations,
ruling that she “did not present
any evidence of discrimination
on the basis of her status as an
injured worker.”
The judge agreed with 4B
Farms that “no reasonable jury
could find in plaintiff’s favor,”
since the company complied
with Oregon law and didn’t
create any “intolerable work-
ing condition.”
“Plaintiff did not present —
and never had — any evidence
of a constructive discharge,”
she said.
The farm was “never unre-
sponsive” and didn’t take a
“dismissive approach” to the
woman’s complaint, instead
giving her a “special light-duty
assignment” as required, the
judge said.
Her attorneys continued to
“misrepresent the record” and
“besmirch the motives, con-
duct or appropriate response”
of the company, she said.
Even so, the judge did not
order the husband to pay the
farm’s attorney fees, since
his “claim was forwarded as
a result of his attorneys’ zeal
rather than bad faith attribut-
able to him.”
The wife was “represented
by an attorney even before the
injury occurred, making the
situation more transparent than
ever,” the judge said.
Despite the farm’s “sub-
stantial expense in defending
its employment practices,” the
judge said the wife wasn’t lia-
ble for the company’s attorney
fees.
There’s a “lack of sup-
port” in Oregon case law for
granting “attorney fee awards
for employers in the arena of
employment discrimination
claims,” she said. The policy
is intended to “encourage vig-
orous enforcement of statutes
prohibiting discrimination.”
Attorneys with the Oregon
Law Center disagreed with
the judge’s statements, which
were based on “assumptions
about our advice to our cli-
ents,” said Walters, the attor-
ney with the nonprofit.
However, the plaintiffs
did not further challenge the
judge’s comments because
they’d prevailed against the
farm’s motion for attorney
fees, he said.
Organic livestock rule
nearing finish line, again
By CAROL RYAN DUMAS
Capital Press
An organic animal-wel-
fare rule finalized in the
Obama
administration,
quashed by the Trump
administration and resur-
rected in the Biden admin-
istration is back for public
review.
The USDA on Aug. 5
published the Organic Live-
stock and Poultry Stan-
dards proposed rule, updat-
ing organic standards with
requirements for living con-
ditions, care, transport and
slaughter.
The Organic Trade Asso-
ciation said the rule rep-
resents a refinement and
clarification of several
organic animal-welfare pro-
visions that were first intro-
duced over 20 years ago.
“The Organic Trade
Association has always
fought for the highest ani-
mal-welfare standards in
organic,” said Tom Chap-
men, OTA executive direc-
tor and CEO.
OTA brought suit against
USDA in 2017 for rescind-
ing the original version of
the rule, which garnered
widespread support from the
organic industry.
“Today marks the first
significant movement on
organic animal welfare in
years,” he said.
“We hope that it also sig-
nals a willingness on behalf
of USDA to listen to the
organic industry and act
swiftly to implement these
common-sense
reforms.
Organic producers and their
animals have waited long
enough, it’s time for USDA
to act,” he said.
New standards were set
to go into effect in March
2017, but were delayed by
an executive order by Pres-
ident Donald Trump, putting
implementation of all pend-
ing regulations on hold.
USDA delayed imple-
mentation again in May
and November 2017 and
withdrew the rule in March
2018, stating it exceeds the
agency’s statutory author-
ity and could have a nega-
tive effect on voluntary par-
ticipation in the National
Organic Program.
The Organic Trade Asso-
ciation challenged the delays
in court in September 2017,
amending its complaint twice
and challenging the with-
drawal of the rule.
In December 2020, OTA
filed a motion to extend
the deadlines for summary
judgment briefing to permit
the incoming Biden admin-
istration time to evaluate the
case.
The court granted the
motion, and OTA and USDA
in February 2021 and again
in March 2021 requested a
30-day stay as they worked
on a resolution.
USDA announced in June
2021 the agency will recon-
sider the Trump adminis-
tration’s interpretation that
USDA is not authorized to
regulate the practices set
forth in the 2017 rule.
Conventional livestock
and poultry groups fiercely
opposed the rule, citing
health threats to animals and
the public. They argued its
animal-welfare
standards
aren’t based on science and
are outside the scope of the
Organic Food Production
Act, which they said regu-
lates only feeding and medi-
cation practices.
In addition, some con-
tended the rule would vil-
ify conventionally raised
livestock.
USDA Agricultural Mar-
keting Service will host a
virtual listening session on
the new proposed rule on
Aug. 19 to hear comments
live. Individuals who want
to present oral comments
during the virtual listening
session must preregister by
Aug. 15 at https://www.ams.
usda.gov .
Written comments will
also be accepted via Reg-
ulations.gov (docket num-
ber
AMS-NOP-21-0073)
for 60 days from the date of
publication.
The Organic Trade Asso-
ciation is analyzing the pro-
posed rule and will provide
more detailed feedback, as
well as submit a formal com-
ment to the record.
The National Organic
Coalition is also conducting
an analysis of the proposed
rule and wants provisions
that are at least as strong
as the provisions that were
finalized in 2017.
Idaho Power
Much of Idaho will remain in drought through the end of the water year.
Idaho drought likely to linger into new water year
By BRAD CARLSON
Capital Press
Much of Idaho likely will remain in
some level of drought when the water
year ends on Sept. 30.
Erin Whorton, a water supply spe-
cialist at the USDA Natural Resources
Conservation Service in Boise, said
about 68% of the state is drier than nor-
mal, and 45% remains in moderate to
severe drought.
Some relief came with the wet
weather last spring. But the hot, dry
summer in much of the state leaves lit-
tle time to make up ground before the
water year ends, she said.
The dry pattern “really doesn’t let us
get out of drought until we get into the
wetter fall and winter months,” Whar-
ton said.
She said that to end drought by Sept.
30, Idaho needs between 96% and
317% of normal precipitation, depend-
ing on the region.
The National Oceanic and Atmo-
spheric Administration’s drought
recovery tool pegs the probability of
ending drought in the current water
year at about 50% in central and north-
ern Idaho, 15% in the state’s southwest
and 10-12% in the eastern Upper Snake
River region. The Wood and Lost river
basins in the east central mountains,
and south Snake basins to the south and
west, are less likely to recover.
The outlook calls for drought
remaining throughout much of Idaho,
with some improvement in the south-
east along the Utah-Wyoming border
area, Whorton said.
“Hopefully, we will have wet
weather this coming fall,” she said.
“And we need a big snowpack year.”
Upper Snake reservoirs’ sys-
tem-wide volume as of Aug. 8 was
61% of normal, or about 1 million acre-
feet below average, said Jeremy Dal-
ling, U.S. Bureau of Reclamation water
management lead for the region.
“We’re better off than we thought
we would be but are still well below
average,” he said.
Volumes left following the hot, dry
2021 irrigation season were low, as
was snowpack for much of the 2021-
2022 accumulation season.
Dalling said above-normal spring
precipitation improved the situation.
So did crop selection, and saving and
shifting irrigation water.
“It’s not as bad as it could have
been,” he said. “It takes everyone
working together to get through dry
years like this.”
To the west, reservoir levels on the
Boise River system, a Snake River trib-
utary, are higher than 2021 and a little
above the historical average, Whorton
said.
Bob Carter, who manages the Boise
Project Board of Control, said irriga-
tion deliveries could end in mid- to late
September, at least a month later than
first predicted. Directors are expected
to set a shutoff date during their Sept.
7 meeting.
He said many farmers had already
changed their crop mixes last spring by
the time unusually wet, cold conditions
arrived, reducing demand and filling
reservoirs.
“Hopefully, we can save some
water” following irrigation season,
Carter said.
Post-season carryover storage likely
will be higher than last year, he said.
DEQ study tracks rising trend of wildfire smoke
By GEORGE PLAVEN
Capital Press
SALEM — As wildfires
continue to burn bigger and
hotter across the West, a new
report shows Oregon is expe-
riencing more days with poor
air quality caused by smoke.
The state Department of
LEGAL
PURSUANT TO ORS
CHAPTER 87
Notice is hereby given that the
following vehicle will be sold,
for cash to the highest bidder, on
08/15/2022. The sale will be held
at 10:00am by
COPART OF WASHINGTON INC
2885 NATIONAL WAY WOODBURN, OR
2001 BMW 525I 4D
VIN = WBADT43461GX25722
Amount due on lien $1535.00
Reputed owner(s)
MARK L WYNER &
NICOLE R BRANSON
LEGAL
PURSUANT TO ORS
CHAPTER 87
Notice is hereby given that the
following vehicle will be sold,
for cash to the highest bidder, on
08/15/2022. The sale will be held
at 10:00am by
COPART OF WASHINGTON INC
2885 NATIONAL WAY WOODBURN, OR
2019 HONDA ACC 4D
VIN = 1HGCV1F55KA091613
Amount due on lien $1515.00
Reputed owner(s)
PEDRO SORIANO SANCHEZ
LEGAL
PURSUANT TO ORS
CHAPTER 87
Notice is hereby given that the
following vehicle will be sold,
for cash to the highest bidder, on
08/15/2022. The sale will be held
at 10:00am by
COPART OF WASHINGTON INC
2885 NATIONAL WAY WOODBURN, OR
1999 HONDA ACC 4DR
VIN = JHMCG5649XC031044
Amount due on lien $1535.00
Reputed owner(s)
ROBERT HENRY CLARK
LEGAL
PURSUANT TO ORS
CHAPTER 87
Notice is hereby given that the
following vehicle will be sold,
for cash to the highest bidder, on
08/15/2022. The sale will be held
at 10:00am by
COPART OF WASHINGTON INC
2885 NATIONAL WAY WOODBURN, OR
2015 MERZ C300 4D
VIN =55SWF4JB7FU090367
Amount due on lien $1515.00
Reputed owner(s)
MILAGROS ELAIDE BARRIOS ALPIZAR
GATEWAY INSURANCE CO
LEGAL
PURSUANT TO ORS
CHAPTER 87
Notice is hereby given that the
following vehicle will be sold,
for cash to the highest bidder, on
08/15/2022. The sale will be held
at 10:00am by
COPART OF WASHINGTON INC
2885 NATIONAL WAY WOODBURN, OR
2010 TOYT TAC PU
VIN =5TETX4CN4AZ712472
Amount due on lien $1535.00
Reputed owner(s)
GENE E SAMPSON
TOYOTA MOTOR CREDIT CORP
LEGAL
PURSUANT TO ORS
CHAPTER 87
Notice is hereby given that the
following vehicle will be sold,
for cash to the highest bidder, on
08/15/2022. The sale will be held
at 10:00am by
COPART OF WASHINGTON INC
2885 NATIONAL WAY WOODBURN, OR
2015 MAZD 3 4D
VIN = 3MZBM1L71FM225686
Amount due on lien $1515.00
Reputed owner(s)
TAYLOR VIRTUE
Environmental Quality mon-
itors air quality statewide
using a color-coded index
that measures three main pol-
lutants, including ground-
level ozone, airborne partic-
ulates and nitrogen dioxide,
which are combined into a
final rating on a scale of 0 to
500.
The higher the value, the
worse the air quality. For
example, anything below
50 is considered “good,”
while anything above 300 is
“hazardous.”
In its latest annual study
charting wildfire smoke
trends, DEQ found the area
from Portland to Bend to
Klamath Falls is seeing a
rise in the number of days
with unhealthful air qual-
ity — particularly for sensi-
tive groups such as children,
the elderly, pregnant women
and people with respiratory
diseases.
DEQ began monitor-
ing air quality from wild-
fire smoke in 1985. Wildfire
smoke contains a variety of
harmful particulates, includ-
ing black carbon, nitrogen
dioxide, carbon monoxide,
polycyclic aromatic hydro-
carbons and other volatile
organic compounds.
Bill Breneman/EO Media Group File
Dense smoke caused by wildfires in Oregon’s Santiam
Canyon two years ago blocks the sunlight.
The DEQ report breaks
down its findings by region.
Last year, Bend had 18 days
in which the air was unhealth-
ful for sensitive groups or
worse due to smoke, setting
a new record.
Klamath Falls had 38
such days, tying the record
set in 2018, and Medford
had 27 such days, the sec-
ond-highest on record. Ore-
gon’s largest wildfire in 2021
was the Bootleg Fire, burn-
ing 413,717 acres in Klamath
and Lake counties.
Historical data also rein-
forces wildfire seasons are
getting longer and smokier.
From 1989 to 2016, Bend
totaled 10 days with air qual-
ity that was unhealthful for
sensitive groups or worse
caused by smoke, according
to DEQ. That number shot
up to 53 days from 2017 to
2021, a 430% increase.
In Klamath Falls, the air
quality was unhealthful for
sensitive groups or worse
for 37 days from 1989 to
2014. That increased to 117
days from 2015 to 2021, up
216.2%.
While the Portland metro
area largely escaped smoky
skies last year, it too is seeing
worsening impacts.
