A representative from the U.S. Department of Labor will make a presentation reviewing key federal labor laws for agricultural employers.  There will also be an overview of the key state laws, programs and resources for agricultural employers.

Please see this link to the flyer Ag_employer_WS_flyer for details regarding presenters, location and parking.

1. The form is longer with more explanation regarding the information requested on the Form I-9 and how to comply with the requirements.
2. The employee must complete Section 1 no later than the first day of employment but not before accepting the job offer.
3. “Other Names used (if any)” is now requested instead of “maiden name.” Employees can respond with aliases they have used previously if appropriate.
4. The employee can provide their email address and phone number but this information is optional.
5. If the employee is an authorized alien who received an I-94 admission number from Customs and Border Protection (CBP) for arrival in the United States, then the employee must include his foreign passport number and country of issuance in Section 1.
6. The “Lists of Acceptable Documents” page now specifies what forms of Social Security Account Number cards are not acceptable under “List C.”  A card is not acceptable if it includes one of the following:
   1. Not valid for employment
   2. Valid for work only with INS authorization
   3. Valid for work only with DHS authorization

The new Form I-9 can be found here and a detailed Employer Handbook is provided by the USCIS as well.

If you have any questions, please contact Tim Bernasek at tbernasek@dunncarney.com.  Special thanks to Dunn Carney legal extern Chelsea Jones for her work on this article.

Three days prior to oral argument in December 2012, the Environmental Protection Agency (EPA) issued an amendment to the Industrial Stormwater Rule in an effort to clarify its position on discharge from logging roads. The Supreme Court found that this amendment did not render the case moot because discharges occurring prior to the amendment could still potentially be the subject of enforcement actions. The Court found that EPA’s amendment was consistent with its prior interpretation of the Clean Water Act and the Industrial Stormwater Rule. In deference to the agency, the Court found, consistent with EPA’s interpretation, that stormwater runoff associated with logging roads should not be regulated under the Clean Water Act as a point source. While it appears this decision should put the issue to rest, as noted in an Oregonian article, comments from the environmental groups suggest that they will continue to look at other avenues to bring this type of discharge under the Clean Water Act’s permitting system. You can also read further about this issue in this afternoon’s article in the New York Times.

If you have any questions, please contact me at KMoore@dunncarney.com.

Links to related posts:

December’s oral argument

Supreme Court Takes Up Forest Roads Case

Ninth Circuit Decision

Appeal of Ninth Circuit Decision

For more information, check out the recent articles in the Oregonian: Judge to rule on Stopping Salmon Release by Sandy Hatchery and the Columbia Basin Fish and Wildlife News Bulletin:  Oregon, Feds, Sport Fishing Defend Sandy Hatchery Operations; ‘Propogation a Permissible Tool’

The Governor’s water resources funding addresses: (a) water resources management and (b) water resources development. Water resources management includes improved reporting and oversight of water use to protect existing rights and to facilitate voluntary water transactions. Another management goal is to better understand in-stream flow needs and move towards meeting those needs. Water resources development is characterized as water supply development, watershed restoration efforts, and water conservation projects.

Development projects are likely to include among other things, multi-purpose storage projects, both above and below ground.  The budget assumes water resources development efforts will incorporate both private and public funding.

The budget sets forth a number of proposed investments associated with water resources management and development. Under water resources management, funds are proposed for:

• groundwater investigations;
• water-use measurement and reporting;
• investigation and development of instream resources (review of instream applications, studies to identify fish streamflow needs, and invasive species control);
• re-building field capacity (including watermasters in Wallowa County and the Klamath Basin and a water right management fee to fund field and scientific expertise);
• a voluntary program to update water right certificates; and
• extending the water right transaction fee schedule.

Proposed investments in water resources development include:

• establishing a water supply development program to finance multi-purpose water projects and hiring a water supply development specialist to address policy and technical issues related to the availability of water for Oregon’s farmers and ranchers;
• re-capitalizing the water development loan fund for the Umatilla Project in the Columbia River Basin; and
• re-capitalizing the grant program for water conservation, storage, and reuse proposals.

These proposed investments allocate $6,486,019 for water resources management and $23,748,565 for water resources development.

Additionally, the Governor’s Balanced Budget allocates over five million dollars to address water quality issues. Proposed water quality investments include water quality monitoring efforts such as collecting and assessing data on aquatic biological communities, evaluating protection standards for headwaters, tracking changes in riparian conditions, and funding additional ambient water quality monitoring. Additional investments would target water quality management. Water quality management investments include efforts targeted at pesticide use and compliance monitoring, restoring positions associated with wastewater permitting and TMDLs, and providing technical assistance for local water resource projects and implementation of the IWRS.

Several bills related to water resources and water quality have been introduced this session; however, it is too early to know how they will evolve and in what form, if any, they will be enacted. These bills would:

(1) direct WRD to establish a program to facilitate transfers of water rights between properties accessing the same water source;

(2) eliminate the requirement that certain water development projects receiving funds from WRD reserve water for in-stream flows;

(3) direct WRD to establish a water banking program;

(4) determine a set percentage of WRD operating costs attributable to the in-stream water rights program; and

(5) prohibit any water quality rule or order that imposes requirements, standards or other limitations that exceed those imposed under federal law.

Our office will continue to track water-related bills as the legislative session proceeds.

If you have any questions, please contact me at KMoore@dunncarney.com.

The District Court for the District of Maryland ruled in favor of the Fisheries Service’s motion for summary judgment finding that the BiOp was rationally supported by “voluminous facts and studies considered by the [Fisheries Service].” That court relied largely on an affidavit submitted by the Fisheries Service, which discussed among other things the sources of data and information that the agency considered. The district court conceded that this affidavit provided an explanation that was not given in the administrative record; however, it found the explanations did not constitute post-hoc rationalizations because they stemmed from information in the record. As a result, the district court ruled in favor of the Fisheries Service.

On appeal, the Fourth Circuit more closely scrutinized the appropriateness of the affidavit. The court noted that only under certain circumstances may litigation affidavits be considered by the court to explain agency rationalizations – where the agency has provided no administrative record from which the court may evaluate its decision. Even under these circumstances, the more typical response would be to remand to the agency for additional explanation. Here, the court found that the Fisheries Service’s lengthy BiOp provided adequate opportunity for explanation and that, as a result, consideration of the affidavit was inappropriate.

Limiting its review to the administrative record, the Fourth Circuit found that the Fisheries Service failed to: (a) explain why it relied on a 96-hour exposure period; (b) provide rationale for relying on outdated data despite having more recent data available; and (c) address why suggested buffers for spraying do not vary according to channel depth and width. As a result, the court vacated the BiOp in its present form, remanding the case to the district court with instructions to remand to the Fisheries Service.

Katy Coba, director of the Oregon Department of Agriculture, said 2012 was a good year for the state’s farmers and ranchers, and she expects more of the same this year.

In an interview carried on her department’s website, Coba said the success of Oregon blueberries and recovery of the grass seed industry were among the year’s highlights. Oregon became the first state approved to ship fresh blueberries to South Korea. While the amount shipped is relatively small, the approval opens a key market and Coba predicted blueberry production will increase significantly over the next five years.

Grass seed sales are closely tied to development, and demand sank during the housing market crash and recession. But the price for seed picked up in 2012, primarily due to exports to China, Coba said.

Among other remarks, Coba said:

“I thought it was a great year overall. We’ll have to wait and see the official 2012 statistics once they are tabulated, but we learned that 2011 was a record year for Oregon agriculture, breaking the $5 billion mark in farmgate value. For me, it is extraordinary how quickly agriculture was able to rebound from the recession in 2008– which hit the industry very hard.

“Our nursery and greenhouse sector is recovering and we continue to be optimistic about the dairy sector. Kudos to our farmers and ranchers for breaking that $5 billion mark. It’s very reflective of their resiliency and ability to go through tough times and come out the other end.

“All indications are that 2012 was also a good year. The question is whether commodity prices stayed as strong as they were in 2011. We could have the same volume of production, but lower prices for some commodities. However, this is the season of annual meetings and one of my barometers for how things are going is what I hear as I meet with the various agriculture groups. The producers seem pretty happy with the way things are going, which is generally a very good sign.”

On January 11, 2013, Katy Coba will open the Dunn Carney Ag Summit at the Holiday Inn in Wilsonville.   For more information and to register please go to http://www.dunncarney.com/news-events/ag-summit/ .

The Defenders’ challenge is the latest in a series against the FWS and state management of gray wolves. In 2011, the FWS published a final rule delisting gray wolves in Idaho, Montana, and parts of Oregon, Washington and Utah. Following multiple challenges, the 2011 rule was ultimately adopted as a law by Congress—an approach that was upheld in Alliance for the Wild Rockies v. Salazar. The current FWS final rule completes the FWS’ efforts to delist the entire Rocky Mountain segment of gray wolves by delisting the Wyoming population of gray wolves.

In the September 2012 rule, the FWS found that Wyoming’s population of gray wolves had recovered such that they no longer required the protection of the federal Endangered Species Act (ESA). The final rule returned management of the gray wolves to the State of Wyoming under an approved management plan, though the FWS continues to monitor the delisted gray wolf populations for a minimum of five years.

The Defenders allege that the Wyoming delisting rule is arbitrary and capricious. Similar to their arguments from before, Defenders allege that the best available science indicates that the gray wolves are not biologically recovered. Further, Defenders allege that populations cannot recover under the Wyoming management plan and that state management contradicts the purposes and mandates of the ESA and its implementing regulations. Briefing is not yet scheduled in the case, but is likely to proceed late in the spring of 2013.

In an effort to address this issue before it reached the Supreme Court, just Friday, the Environmental Protection Agency (EPA) amended its prior rule to clarify that water coming off a logging road should be treated as non-point discharge in the same manner as agricultural runoff. This rule addresses the issues raised by NEDC’s original case.  However, during today’s oral argument, Petitioners urged the Court to reach a decision on the matter anticipating environmental groups are likely to petition for review of EPA’s new rule as being in conflict with the Clean Water Act.

The Supreme Court voiced frustration with amicus curiae, the United States, for failing to notify the Court of the imminence of the amended rule. The Supreme Court could have rescheduled oral argument to allow the parties more time to present their positions on whether this issue should be heard in light of the new rule or remanded to the Ninth Circuit.

Questions remain whether the lower decision will be vacated, and if not, whether the environmental groups would be considered prevailing parties entitled to attorney’s fees. Also remaining is the question whether the activity was lawful prior to the rule amendment, and if not, whether Petitioners are subject to civil penalties for violating the law. In addition, counsel for NEDC suggested that they plan to challenge the amended rule on the grounds that it is arbitrary and capricious. During oral argument, NEDC identified inconsistencies it sees within EPA’s amended rule and questioned why stormwater discharge associated with forestry would not be regulated while stormwater associated with construction, which includes building roads and removing trees, is regulated. Given these ongoing conflicts, it appears this issue will not soon be resolved.

If you have any questions, please contact me at KMoore@dunncarney.com.

Click here to Register for Dunn Carney’s January 11, 2103 Ag Summit!